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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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11.25 


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Photographic 

Sdaices 
Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  M5M 

(716)  S73-4S03 


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CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  may  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 


D 


□ 


□ 


□ 


Coloured  covers/ 
Couverture  de  couleur 


r~~]    Covers  damaged/ 


Couverture  endommagie 


Covers  restored  and/or  laminated/ 
Couverture  restaurAe  et/ou  pelliculAe 


I      I    Cover  title  missing/ 


Le  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  giographiques  en  couleur 

Coloured  inic  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
Reli6  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  re  liure  serrie  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  intirieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouties 
lors  dune  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  M  film^es. 


Additional  comments:/ 
Commentaires  supplimentalres; 


Variou*  pagingt. 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6tA  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  methods  normale  de  filmage 
sont  indiqute  ci-dessous. 


r~n   Coloured  pages/ 


y 


D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommag^es 

Pages  restored  and/or  laminated/ 
Pages  restauries  et/ou  pellicultes 

Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolor^es,  tacheties  ou  piqu^es 

Pages  detached/ 
Pages  ddtachies 


Showthrough/ 
Transparence 


r~~|    Quality  of  print  varies/ 


Th 
to 


Th 
pc 
of 
fill 


Or 
be 
th( 
sic 
oti 
fir 
sic 
or 


Quality  inigale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  suppKmentaire 

Only  edition  available/ 
Seule  Mition  disponible 


Th 
sh 
Til 
wl 

Ml 
dif 
en 
be 

rig 
ret 
m( 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  M  film6es  it  nouveau  de  fafon  d 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  rMuction  indiquA  ci-dessous. 

10X  14X  18X  22X 


12X 


16X 


20X 


26X 


30X 


/ 


24X 


28X 


H 


32X 


ails 

du 

idifier 

une 

nape 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

University  of  Saskstditwan 
SMkitoon 

The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L'exemplaire  fllmA  f ut  reproduit  grice  A  la 
g^nArositA  de: 

Univmnity  of  Saskitehcwan 
Saskatoon 


Les  images  suivantes  ont  6tA  reproduites  avec  le 
plus  grand  soin.  compte  tenu  de  le  condition  et 
de  la  nettet*  de  l'exemplaire  filmA,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  prirted  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  AH 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  ImprimAe  sont  filmte  en  commen^ant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derniAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'iiiustration.  soit  par  le  second 
plat,  seion  ie  cas.  Tous  les  autres  exemplaires 
originaux  sont  filmte  en  commenpant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'iiiustration  et  en  terminant  par 
la  derniire  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shuil  contain  the  symbol  -^  (meaning  "CON- 
TINUED"), or  the  symbol  y  (meaning  "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparattra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  ie 
cas:  le  symbols  -^  signifie  "A  SUiVRE",  ie 
symbols  V  signifie  "FIN". 


iVIaps,  plates,  charts,  etc..  may  be  filmed  at 
different  red   stion  ratios.  Those  too  large  to  be 
ent^ely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hend  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmte  A  des  taux  de  reduction  diffArents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA,  11  est  filmA  A  partir 
de  Tangle  supArieur  geuche,  de  geuche  A  droite, 
et  de  haut  en  bes,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diegrammes  suivants 
illustrent  la  mAthode. 


rata 

9 


lelure, 
A 


J 


32X 


1 

2 

3 

1 

2 

3 

4 

5 

6 

9 


BEHRING  SEA  CLAIMS  COMMISSION, 


RECORD  OF  PROCEEDINGS 


BEFORE 


THE    COMMISSIONERS, 


UNDER    THE 


CONVEMION  OF  FEBRUARY  8,  1896, 


AT 


MONTREAL,  JUNE    16,   1897. 


AND    AT 


HALIFAX,   AUGUST    25  TO    SEPTEMBER    29,    1897. 


n' 


■■^( 


r^ 


./' 


,k; 


20 


The  Commissioners  under  the  Convention  of  Febru- 
ary 8,  1896,  between  Great  Britain  and  the 
United  States  of  America. 

The  Coininissiont'is  met  at  tlio  Windsor  Hotel,  Montreal. 
loC'anada.  on  tli*-  l«lth  day  of  June,  |.si»T.  at  half  past  ten 
o'clock.  A.  M..  in  pursuance  of  the  adjoiirnnienf  from  Vic- 
toria. B.  C. 

At  the  HMpiest  of  counsel  an  adjourmuent  was  ordered 
to  the  Court  of  Appeals  Rooms  in  thi;  Court  House,  at  the 
City  of  Montreal. 

At  eleven  o'clock,  the  Commissictners  took  their  seats  in 
the  Court  of  Appeals  Kooms  atten<led  by  counsel  for  Her 
Aiajesty  and  lor  the  United  States. 

The  Conuuissioner  on  th    part  of  tin-  Tniteil  States:— 
I  would  ask  the  Secretary  to  state,  for  the  information 
of  the  Connnissioners,  what  has  transpired   since  the  ad- 
journment at  Victoria. 

Mr.  Chandler  P.  Anderson,  Secretary:— For  the  informa- 
tion of  the  Commissioners  I  may  .state  that  since  the  ad- 
journment the  printed  arguments  on  both  sides  have  heen 
tiled  at  my  oftice  in  New  Voik,  in  pursuance  of  the  recpiire- 
nients  of  the  Conmiissioners.  adopted  at  the  last  .se.ssion. 
The  argument  in  chief  on  behalf  of  (J  real  Hritain  was  fil..«i 
,yOM  the  :!lst  of  March;  theargun)ent  on  behalf  of  the  I'nited 
'  Stales  was  tiled  on  (he  loth  day  of  Mav.  and  the  argu 
iiieiit  of  (ireat  Britain  in  reply  was  filed  on  the  Isl  dav  of 
.Imif.  In  each  case  copii's  of  these  aigumeiits  were  for- 
warded by  me  to  tile  Connnissioners  and  to  Ihe  opposing 
counsel. 

There  was  ;dso  tiled  with  roe.  on  the  I'.lst  of  .March,  a 
copy  of  , I  notice  of  motion  .iddressed  td  the  counsel  for 
(ireat  Miitain,  which  was  made  by  comisel  on  behalldf 
till'  Initefl  Sf.ites  for  the  iv(e|i|ioii  (.f  fmtliei  e\  idenee  at 

^ytlie  ne.xt  ensiling  session  of  I  lie  ( 'on i mission.  loj;etlier  with 

a  leller  reporting  that  tl liginal    iiotire  of    inoiionli.id 

been  .ilre.'idy  served    npoii   cdiinsel    f'nr  (Ir.'at    M.iilain,  ac 
coiiipanied   by   ;i   si.ggestion    thai  it    it    would    better  suit 
their  ((.nvenieiice  .ippiication    woiiM  be  made  for  leave  to 
bring  up  this  motion  at  ;i  session  jiiior  to  tbi'.session  fi.xed 
for  .lune. 

These  ail' all  Ihe  |i;nisailioiis,  ap.irt  lioin  the  prinliiig 
.-md  woiU  iii'itaining  to  the  Secietaiy's  olhiv.  that  have 
taken  place  since  the  ;iilioiiinnier,t  at  N'ictoiia. 

;,,     'I'hc  C( lissioneis  oiilend   tli.it  the  statement  slionid 

go  ( III  t  lie  pi  otocols. 

Till'  ('oiiimissioiieioii    the  part  of  the  Inited  states:— 

.Mr.  .Iiistice  King  desires  me  to  state  that  the  Connnis- 
sioners .•ire  ready  to  lie.ir  any  leniaks  that  mav  be  made 
by  counsel. 

Mr.  Dickinson:  -May  it  ple.ise  the  High  Coiiiiiiisi,iiier. 
I  am  (piite  sine  that  nothing  has  occiirred  sin.e  the  ris- 
ing of  till'  Commissioners  in  Kebiiiarv  at  \iiloria  to 
(diinsel  of  the  Cnited  States  at  least  -  of  ,i  more  |)leasing 
"^nature  than  the  reunion  here.  ; mil  to  see  that  Ihe  High 
Commissioners  have  remained  in  good  lieallh  and  to  know 
that  the  dislinguished  counsel  for  (ireat  Mrilain.  mv 
learned  brothers,  are  also  well. 

The  motion  to  which  refeieiice  has  been  made 
by  the  Secretary  is  this.  It  is  upon  the  i|uestion  of  the 
citizenship  of  .losi'ph  Hoskowii/,.     The  ipi.stion   is  nol  a 


-V 


( Oisi'iis-ioii.  I 

lu'w  (Hie.  It  was  raisi'd  iM'fon*  tin'  I'lir  seal  arliitralioii  at 
I'aiis.  ami  the  C'nuiiHt'l  of  llic  I'liitt'il  Slates,  without  if- 
^;a^tl  ti)  lliuiiowii  views  in  tlif  iiiatttT,  wore  instructed  to 
raise  the  <|neKti()n  hefdrc  this  lii^h  Cuniniission.  The  citi 
/enshiii  the  Matiiializ»"l  citizenHliiii— of  a  person  is  some- 
what <liflietiit  to  prove  atlirniatively,  and  it  is  more  difti- 
cnlt  to  prove  the  nenalive.     The  reasons  are:  Tliat  l)y  tlw 

loHevised  Statutes  of  the  I  iiited  States  a  person  may  he 
naturali/.e<l  in  any  I'ourt  of  the  I'nited  States,  throughout 
tile  length  and  hreatlth  of  that  count ry:  or  in  any  Court 
of  Uecord  of  any  State  of  the  I'nited  States,  throu^;hout 
the  length  and  hroatlth  of  that  State.  There  are  many 
courts  of  record  of  the  United  States,  and  there  are  many 
Courts  of  record  in  each  State.  So  that,  without  the  aid 
of  the  person  who  knows,  and  who  alone  knows— with.  <'f 
couise.  the  oflicers  who  have  taken  l)art  in  the  process  of 
citizenship— whither  he  is  a  citi/eii  or  not  or  whether  he 

2olias  undertaki>n  it,  it  is  difficult  to  tell.  In  order  to  prove 
citizensliip  hy  naturali/ation  it  would  he  necessary  to 
search  the  recoids  of  all  the  federal  Courts  of  the  I'nited 
States,  and  all  the  Courts  of  lecord  of  ea<;h  State,  of 
course,  with  the  aid  of  the  person  whose  citizenship  is 
sought  to  he  estahlished.  it  might  he  asct'rtaiued  so  as  to 
effect  a  search  of  all  those  places  where  he  has  lesided;  hut 
it  is  necessary  to  depend  upon  him  to  so  limit  the  research 
hy  asceitaining  from  hnn  where  In*  has  resi<led.  I'uder 
these  ditficidties,   the   High   Commission  will  rememher, 

30 instructed  as  we  weic  to  establish  the  American  citizen- 
ship  of  Joseph  Hoskowitz.  we  seaiched  the  records  of  the 
pl.ices  where  lie  had  lived,  so  far  as  we  could  learn  them, 
and  asi  el  t.'iincil  that  he  had  heeii  in  several  litigations  in 
which  it  iMcaiue  essential  to  his  interests  in  these  litiga 
lions  to  show  that  he  w.is  an  .American  citizen.  After 
much  diHifiilty,  wc  loiiiii!  and  produced,  first,  his  aver- 
ments in  pleadings  that  lie  w.is  an  .\inericaii  ciii/eii,  and 
second,  in  a  case  m  which  it  w.is  essential  for  him  toestah- 
lisli  it  in  a  suit  in  the  courts  of  last  resort  in  Ihitish  Coluiii- 

4ohia,  or  in  a  court  of  nist  jirias,  we  pnidiiced  evidence  to 
show  that  he  had  sworn  in  due  form,  iiiciiiring  all  the 
pains  and  penalties  otiieijiiry  if  his  siateiiieiit  were  not 
tine,  that  he  was  a  citizen  of  the  L'niled  Slates.  Having 
done  this  In-fore  the  Commissioners  ;tt  N'ictoria,  this  oc- 
ciiiied:  Wi'  had  siilTicieiiti  established  his  .Xmeiicaii  citi 
zeiishiji  for  .ill  purpos  •.-..  .\  /niiiin  linii-  case,  and  a  very 
strong /(//);/f//W(vV  ca.",  was  made  out.  that  he  was  an 
American  <Mtizeii.  It  i.|)pears  hy  the  record  of  the  pro- 
ceedings at    Victoria,   tint    from    the    time    the   Comniis- 

SOsioners  sat  ;it  \'ictoria.  from  their  o|ieiiiiig  up  to  the 
I'lose  of  that  session  at  \'i>toiia.  a  period  of  ah'iut  three 
months,  .losepli  Uoskowit/  himself  w.is  in  the  City  of 
Victoria,  and  was  there  constantly,  day  after  day,  from 
the  heginning  to  the  end  id'  the  sittiiigof  the  Commis- 
sioners. The  evideiic"  as  to  his  citizenship  h.id  been  put 
in  as  soon  as  found.  I  think  three  weeks  hefoi'c  the  close 
I  if  t  lie  session  at  \'ii;toria.  It  bad  been  cb.irged  in  the 
pleadings,  evidence  of  it  had  been  adduced  on  cross- 
e.Naniinat ion    six    weeks  before  the  close  of    the  session. 

f  11  lint  the  linal  leslinioiiy  of  the  admission  of  Joseph  Hosko- 
witz  uiidi'i'  oath,  in  the  proceedings  where  it  was  essential 
for  biiii  to  make  out  bis  .American  litizeiiship.  was  not 
liiuiid  and  prod. iced  until,  I  think,  three  wiu-ks  before  the 
close  of  the  session.  This  thing  Was  i.nsed  in  the  record 
from  the  beginning  of  the  seal  arbiti.ition  in  I'.iri-^  in 
|s!i-j,  ;ind  it  was  coll  till  Med  in  the  record  all  through,  down 


I 


I 


(DisciisHinii.  I 

to  tin-  closfof  tliosrssinii.  Ill  tlii>  iiicaiitiiiic.  |ii'ii(liii>;  tlif 
session  (if  tlit.' ('((iiimissiuncrs  in  Nictoria,  Moskowitz  was 
consf.iiiMy  in  Mu«  city.  I'lidcr  this  state  of  1liin;;s.  at  or 
soon  at'tor  tlu'  ConmiissioiH'is  hail  a^rfPtl  snhstaiitirillv 
that  an  atljomiiincnt  would  he  falicn  on  fucrtain  follovv- 
iiiK  Monday  or  Tuesday,  on  the  last  day  of  the  session  for 
testinioiiy.  lonji  after  the  lehntlal  in  chief  of  (iivat  Hritain 

,j,  had  heen  put  in.  Mr.  Moskowitz  was  jint  on  the  stand 
and  testified  that  when  he  made  tiieso  oaths  h«  supposed 
he  was  an  .American  citizen,  hiit  he  was  s.aisfiod  he 
may  have  Immmi  mistaken,  and  he  said  he  did  not 
know  whether  lie  was  or  not.  That,  of  coui-se.  we 
would  contend,  did  not  rehut  the  pviimi  f'urie  case 
against  his  own  evidence,  on  a  question  whicli  was  ma- 
terial in  the  litigation.  Hut  he  left  the  case  up  to  the 
last  flay  of  the  session  in  Victoria  without  that  state- 
ment.     We    learned    then    the   name  of    his  father.      We 

20 learned  it  within  a  day  or  two  before  that.  We  learned 
wh-jre  he  lived.  We  i(>arned  where  he  was  horn— and 
this  hy  cioss-examination  -that  he  knew  very  little  about 
his  father,  and  the  tendency  of  his  testiinonv  was  to 
show  that  tlujie  were  not  pleasant  relations  between  him 
and  his  father.  We  arrived  at  some  place  where  the 
name  of  Hoskowitz  had  appeared  in  the  I'liited  States. 
We  learned  the  name  of  his  t'athei  and  we  learned  that 
it  was  Aaron  Hoskowitz.  We  learned  tlu;  name  of  his 
brother  ;ind  we  learned  that,  it  was  Igiiatz  Hoskowitz.  and 

-Q  we  learned  the  place  where  .loseph  Hoskowitz  had  lived, 
namely,  at  Mailison.  Wisconsin,  .uid  at  Mineral  J'oiiit. 
where  he  had  tended  store.  Ofcoursenptotli.it  point 
we  had  nothing- to  e.xjiiiiiiie  as  to  aiiv  statement  before 
the  Commission  .IS  to  bis  whereaiioiits.  .and  up  to  that 
point  we  had  bad  no  coiiimuiiication  from  anviiodv  as  to 
where  to  e.xamine  to  prove  atlirmativelv  bv  naliiraliza- 
tion  papers  that  .loseph  Hoskowitz  was  naturalized.  After 
learning  the  wbtival)outs  of  .io.sepb  Hoskowitz  and  the 
possibilities  of  the  nalnrabzatioii  of  Aaron  Hoskowitz,  his 

-o father,  which  would  naturalize  him  under  the  testiinonv, 
we  investigated  the  records  at  Mineial  Point  and  Madi- 
son, in  the  State  of  Wisconsin,  and  this  investigation  was 
instituted  promptly  u|)on  our  knowledge  of  sufHcient  data 
to  know  wlu'ie  to  proceed,  and  the  investigation  was  un- 
dert.iken  by  telegram  from  Victori.a  at  lea.st  the  directions 
to  pursue  the  investigation  were  given.  The  investiga- 
tion could  not  be  completed,  and  the  fact  that  there  was 
anything  in  the  iuvestig.ition  of  a  character  which  would 
be  competent  to  the  case  was  not  known  ti>  us  before  the 

JO  adjournment.  The  f.ict  that  there  w;is  any  possibilitv  of 
arriving  at  anything  was  not  known  to  ns,  1  sav,  before 
the  adjournment  of  the  Ooininissioii  at  Victoria."  Uutlor 
these  circumstances,  taking  into  consideration  the  time 
at  which  Joseph  Hoskowitz  was  called  before  the  Commis- 
sioners in  \'ictoria.  taking  into  consideration  the  time  at 
which  he  should  have  becMi  called  and  submitted  to  exani- 
niation.  taking  into  consider.ation  the  fact  that  the  United 
States  had  rested  upon  the  oath  of  .loseph  Hoskowitz  in 
lestimony  that  was  materi.il.  and  in  litigation  where  he 
^,oliad  sworn  tli.it  he  w.is  an  American  citiz-.a;  we  sui)niit 
that  in  view  of  Ibis  last  testiinonv  of  Hoskowitz.  that  we 
are  eiititletl  to  put  in  the  result  of  the  investigation  at 
Mineral  Point  and  at  Madison. 
The  Commissioni'r  on  the  put  of  the  L'nited  States:  — 
Would   counsel   for   the    l'nited   States   please  read   the 


I  PlMlMISHJOII,) 

itiotioii  which   is  now  inudo  hv  roiiiisul  nil  holialf  of  the 
I'l'itt'd  StatJ's. 

Mr.  Warren,  of  roiinsel  for  the  rnitt'tl  Statt's.  read  the 
niotioii  as  follows:— 

Bkhrino  Ska  Claims  Commission. 

OKKIt'K  OK 
10  ThK  Coi-NSKI,  KOK  THK    UNITED  StaTKS. 

HoNOl'RABI.K   FkKDKKICK    PeTERH, 

Seniot  Conns^el  for  Great  Britain 
Sir:— 

Voii  will  |)lt)a.s«'  take  iiotitv  that  at  tli«*  next  ensuing 
sitting  of  the  High  CoinniisHioners,  {shall  move  the  re- 
reption  of  and  offer  in  l)ehalf  of  the  I'liited  States  the  fol- 
lowing evidence: 

[I.)  The  records  and  tiles  of  the  Circuit  Court  for  Dane 
County,  in  the  State  of  Wisconsin,  wherehy  it  will  appt>ar 
20 that  Aaron  Boskowitz,  the  father  of  Joseph  Boskowitz,  a 
witness  sworn  and  exainiiied  in  hehalf  of  (iieat  Britain  at 
the  sitting  of  the  Migh  Commissioners  at  Victoria,  did, 
on  the  iMth  day  of  August  A.  D.,  I>.">-_',  hefore  the  Clerk 
of  said  Com  it,  declare  on  oath  that  it  was  htnia  fiiU' ]\'ia 
intention  to  hecoiiie  a  citi/eii  of  the  Tnited  States  of 
.Vmerica.  and  to  renounce  forever  all  allegiance  and  fidelity 
to  any  foreign  Prince.  Potentate,  State  or  Sovereignty 
whatever,  and  particularly  to  the  Kingdom  of  Bavari.i, 
wlieieof  he  was  then  ,1  subject. 
^Q  i:.'.!  Testiiniiiiy  and  evidence  that  tln' tiles  !ind  records  of 
saiil  Cdiiri  of  iip|)licatioiis  for  citizenship  hy  aliens, 
such  as  ;iic  made  under  the  laws  of  the  I  iiited  States, 
two  ye.iis  nr  more  atltr  sutli  declaration  ,is  the 
Slid  .Aaron  Moskowitz  made  on  the  -.'ttli  <lay 
(if  .\iigMst.  I^."._'.  down  to  the  month  of  August.  Is.m". 
fi'itm  the  ur;:.'ini/;itiiin  nf  said  CouiLiuid  fiom  April.  Is.'i.'i. 
to  tlie  present  time,  are  complete,  .nid  disclose  veiy  many 
of  sticli  appliciliiiii-^  lor  citi/,eMslii|)  hy  aliens  who  liad  de- 
clared liieir  iiileiition  ,is  at'ores.lid  t<i  liecome  citizens  of 
4(,tlie  rriiteil  Slates;  hut  that  the  Hies  lUid  records  of  s;iid 
Court  for  the  time  lietweeii  the  dates  last  aforesaid  have 
di-appeared  Iroiii  the  jilace  of  custody  in  said  Coiu't.  and 
that  thes;uMe  have  lieen  lost,  destroyed  or  ahslracted. 

i;'i.  I  ( )i;il  testimony  as  toliie  maimer  of  access  to  such 
tiles  .^11(1  records,  and  .is  to  the  persons  who  have  had  and 
have  ,i('i-ess  to  said  tiles  imii  records 

'  4. 1  l"',\iileiice  I lom  the  records  of  tiie  ( 'ity  Clerk  of  the 
City  of  Mineral  I'oint.  in  the  County  of  Iowa,  in  the  State 
of  NViscoiisin  (the  said  City  Clerk  heing  the  projjer  cns- 
cotodian  of  such  lecoiilsi  of  the  |)o||  list  ;ind  tally  list  for  the 
First  Ward  of  the  City  of  Miner.al  I'oiiif  of  the  geiiei.il 
judicial  election  held  on  April  il,  |s.-,s,  disclosing  that  the 
said  Aaidii  I'.oskowit/  voted  ,it  t he s.-iid  election  heldat  the 
Mayor's  olliii'  of  the  First  Ward  m  sjiid  city. 

t.^.)  St;itiile<  of  the  State  of  Wisconsin  that  the  said 
Circuit  Court  for  the  County  of  haiiein  theSt.iti'of  Wis- 
consin was  dining  the  vear  Js.'C.  and  ever  since  has  heen, 
a  court  of  record  of  the  State  of  \N'isconsm.  h.iving  com- 
mon l;nv  jinisilictioii  and  having  a  se.il  .iial  .-i  clerk. 
()0  "''.>  Fvideiice  ;nid  testimony  tending  to  show  the  time 
at  whiili  the  said  records  and  tiles  of  the  saiil  Circuit 
Court  hir  the  ( 'onnty  of  Dane  were  lost,  destroyed  or  iih- 
stracted  fioui  the  ollice  of  their  cii-<to(lian.  the  Clerk  of 
said  Court. 

The  grounds  of  this  motion  are  that  the  testimony  of 
Joseph  Hoskowitz.  tending  to  show  th.it  he  was  not  a  cit- 


C' 


"v?- 


(DiscnsHion.) 

izt'ii  of  tln'  I'liitcfl  States,  was  ofTerod  (in  tlu'  la^t  day  r>f 
the  sitting  of  the  lli^li  Coiimiissioin'is  at  Victoria,  and 
was  ill  direct  coiitradiclioii  of  liis  tfstiiiioiiy  midci' oath, 
piv«'ii  ill  tin- cause  pcndiiiji  in  the  Sii|»ium('  ("oiirtof  tht* 
rroviiice  of  Ihitisli  Cohiinhia.  in  a  matter  material  in  said 
cause,  in  which  lie  was  interested,  wherein  he  had  sworn 
ill  siihstaiice   that    he  was  a  citizen   of  the  I'nited  States; 

loatid  ill  fiirect  contradiction  of  otlier  tesliinony  tending  to 
show  tliai  he  was  a  citizen  of  the  Inited  Slates,  .ill  as  a|) 
pears  hy  the  record  <d'  the  testinionv  hefoie  the  High 
('oinmissioncrs;  tli.it  the  lestiinoiiy  of  tlie  said  .loseph 
iioskowitz  in  tli.'it  re;;ard  wan  a  surprise  to  the  (*oiinst'l 
for  the  I'liited  States,  and  that  they  had  no  opportunity 
to  meet  the  same  hcfiire  th<^  .-idjoiirnmeiit  of  the  sitting  at 
N'ictoi  ia.  :ind  no  kiiow!ed};e  of  the  same  at  the  time  of 
such  adjonrnment. 

i  have  the  honor  to  Im>, 

20  Vonr  oht.  svt., 

iSif^nedi  l><iN  M.  !>i<kins(in, 
("oimsel  for  the  United  State.s. 
Dated  Marcli  :!ntli,  iMtT. 

Mr.  Dickinson:  -I  will  state  fnrthertii.it  for  the  pur- 
pose of  saving  time,  we  have  here  the  Clerk  of  the  Ciicnit 
("onrt  for  the  County  of  D.ine  in  the  St.ite  (d"  WiMoiisin, 
and  the  persons  who  have  ex.imined  the  record,  p.iiticu- 
lariy  who   examined    the   record    at    tirst.  and   who  h.ave 


30 


examined  the  record  siikc  the  hiatus  in  Itie  records  oc*- 
ciirred.  I  may  stale  to  the  lli<.;h  ('(iiiiniissioners  that 
these  witnesses  .are  here  in  the  Court  rooin. 

Mr.  I'elers:— .\I.iy  it  please  the  llij;li  Conimissionerfi: 
Hefore  answering  the  motion  m,ide  hy  my  le.inied  friend, 
I  must  join  with  him  heartily  in  the  salisf.iction  whii  h  li(> 
feels,  and  which  I  It ,'!.  and  which  all  the  counsel  for  Her 
.Majesty  feel,  that  the  High  Coiimiissioiiers  have  heeii  ahic 
to  meet  here  in  Montreal,  .after  such  a  lengthy  recess,  and 
that  we  meet  your  Lordships  in  good  he.iltli. 
^o  ^\  ilii  rt'gard  to  the  motion  made  hy  my  le.aiiied  fiieiid, 
I  havi;  most  certainly  to  enter  an  ohjection  ag.iiiist  its 
heing  grantee!.  'I"he  evidence  he  ;isUs  to  put  in  now  is 
evidence,  theohjectof  whitdi  is  to  show  that  .\aroii  Mos- 
kowitz  the  father  (d'  .Joseph  Hoskowitz.  at  sometime  or 
other-,  hecaiiie  a  natnialized  citizen  of  the  I'nited  State's. 
Til. it  is  the  ohjt'ct  of  the  evidence,  and  my  learned  fritMid 
makes  a  motion  now  to  put  in  a  certain  dirt'ereiil  class  of 
evidence.  The  class  of  evidence  he  proposes  to  put  in  as 
fhst    evidence,  is    evidence    that    in    .1    certain    town  in 


CQilie     State     of  Wisconsin,  this    man,   .\aroii    Moskowitz, 


Uh 


took  the  preliminary  steps  to  Ins  heconiing  a  natiir.alized 
citizen  of  the  I'liitcd  Slate;;.  It  is  uimeces.iiy  for  me  to 
stale  that  hef(tre  lie  could  het;ome  a  full  citizen  of  the 
Uniti'd  States  he  would  have  to  take  further  steps,  and 
that  these  further  steps  cannot  he  taken  until  a  period  of 
two  years  has  expired,  after  the  original  .ipplic.ition  had 
been  made  The  tirst  evidiMice  that  my  le.iined  friend 
lays  hefore  the  Commissioners  is  evidence  that  at  one  time 
Aaron  Hoskowitz  took  the  preliminary  stejis,  and  the 
fioSecond  piece  of  evidence  he  jiroposes  to  give  is  that  in  su(;li 
and  siiih  a  tiiwn  in  the  Inited  States,  the  records  have 
been  searched  and  it  appears  that  tlie(;oin[)leleiialnraliza- 
tion  papers  between  cerlain  years  and  cerl.iin  other  years 
are  not  to  be  found  in  the  records.  Therefore  my  learned 
friend  wants  to  bring  in  that  Aaron  Hoskowitz  did  actu- 
ally take  out  tinal  papers,  hut  that  something  has  occurred 


# 


6 

(DisciiBHittii.) 

ill  some  fiiwn  in  tin-  I'liitt'd  Stiilcs  whcirhy  tlicH*'  rocindH 
liav)>  lii>('oiiH>  in(-<iiii|ili>ti>,  anil  iii'i>  unolitainaltit'.  In  H<iili- 
tion  to  that,  my  li'aiM'it  liiriiil  says,  "1  wiHJi  to  put  in 
crrtain  otlicr  cvKJcncc  tliiit  on  a  mtain  occasion  Aaron 
Moskowit/  voted  in  tlir  Statcof  WisconHin."  ami  t'roni  t.liat 
Ik*  woiijil  at(i'tn|it,  I  pit'sinnc,  to  draw  the  conclusion  that 
Aaron  noskowit/ must  liav(>  licciia  citi/t-ii  of  the   United 

loStatesat  the  time  he  voted.  Now,  may  it  please  the  Com- 
inissioiu'i's,  I  will  take  that  last  point  tirst  Asa  matter 
of  fact,  ill  the  State  ol  Wisconsin,  any  pi'ison  who  has 
declared  liis  iiitiiitioii  of  liecoiiiiii^  a  <'ili/en  of  the  riiited 
Stall's  can  vote,  if  he  has  resided  m  the  Slate  of  Wiscon- 
sin for  one  year,  and  it  is  not  .it  .di  necessary  that  ho 
shi  iild  lieciime  a  iialiir.'ili/eil  citi/eii  id'  the  riiited  States 
ill  order  to  eiili  le  him  to  vole  Therefore  the  fact  that 
he  voted  ai  Hill'  election  or  Miled  at  more  than  one 
election,    it    ilms    iiiit  mailer   how    many  -  raises  no    pre 

Sosniiiptioii  whatever  that  he  had  done  anything  more  than 
dccl.'ire  his  iiiteiitioii,  or  t.ike  the  original  step  of  n.'itiiral- 
i/atioii.  (In  thai  puiiil  I  would  refer  the  ('ommissioiiers 
to  the  org.inic  law  nf  llie  Stale  of  Wisconsin,  which  was 
adopted  hy  ('i-ii;;res>  mi  tlieu'iMh  of  April.  is|t!.  'I'liat  de- 
clares that  the  persons  entitled  to  vole  in  the  State  ot" 
Wisconsin  aie  those  who  li,'i\e  ilecl;ired  their  intention  to 
become  citizens  of  the  State,  and  have  resided  in  the 
Slide  for  a  period  of  twelve  months.  The  (^^mmis- 
sioiieis  will  at    once  see    that    th<it  Iteinj;' the  law,  there  !:' 

30 no  presumption  thai  Aaron  i'loskovvit/ ever  took  tli*  iiiial 
ste|>s  ot  iiii.tiiiali/.at  ioii. 

Mr.  iMckinsoii:  ^'oii  stated  the  law  corn  ''y,  Hrotlier 
I'cters.  Th;it  is  rijilit.  We  concede  the  law  to  he  as  you 
state  it.  We  would  have  110  diniciilly  were  it  otiierwise. 
Mr.  I'eters:  Ceitaiidy.  The  l.iw  lu  iii^  as  I  stato.  and 
my  learned  friend  admitting  that  to  he  the  law,  it  is 
apparent  that  the  lact  that  a  man  voted  in  thu 
Slate  of  Wisconsin  it  is  not  the  same  in  other 
States  (d  the  I  iiioii-  raises  no  presumption  whatHver  th.it 

40tlu' peisnii  who  Voted  was  then  a  natiirali/ed  citi/eii  of 
the  United  States.  It  (allies  no  further  weight  witii  it 
than  the  fact  that  he  must  have  declared  his  intention  to 
hecoiiie  a  citizen.  'I  herefore,  that  part  of  the  evidence 
which  is  asked  to  he  put  in  now,  is  evidently  immaterial, 
and  coiisei|ueiitly  on  that  ground  alone  it  cannot  lie  al- 
jiiwed,  iveii  if  It  could  he  .illowed  oil  other  grounds,  to 
which  1  will  state  my  ohjectioii   later. 

lift  me  see  how  the    m;itter  stands  wit li    regard    to    the 
general  ipiestion  as  to  whether  this  evidence  oiigiit  to  he 

SOadmitted  at  all  or  not.  My  leaiiied  friend,  Mr.  Dickinson, 
stall's  the  iiositioii  id'  aflaiis  as  tliey  were  at  Victoria,  and 
with  all  di't'ieiice  to  my  leai lied  friend,  I  think  he  has 
put  the  state  of  all'aiis  liither  more  favor.ahle  to  himself 
than,  perhaps,  he  was  ipiite  justitied  in  doing,  it  is  nat- 
ural lh.it  he  should  relate  the  circumstances  as  strongly 
in  his  own  favor  as  he  can.  Now,  how  does  the  matter 
really  stand?  .Joseph  Hoskow  itz  was  alleged  to  he  inter- 
esleii  in  certain  of  these  vessels,  it  was  alleged  tliat 
Jo.sepli    lioskowitz    was   a    citizen   of   the    I'niled   States. 

fJoTlie  proof  id'  that  fact,  that  lie  was  a  citizen  of 
tlie  United  States,  was  open  to  my  learned  friend.  Tlie 
onus  of  proving  it  was  on  liini.  That  was  a  fact 
tiiat  lie  had  to  make  out  in  ilia  own  ca.se,  and  it 
was  ids  duty  to  give  all  the  evidence  tliat  could 
lie  given  on  tiiat  point  wlieii  lie  was  making  out 
liis  case.     From  time  to  time  as  the  case  went  on,   my 


(l)isciisHitiii. ) 

lenrii«'<]  fiiniil  attfiiiptcd  to  prnv**  lli.it  Joseph   huskowit/. 
wns  ii  citi/cii  (if  llu'    riiitcd    Slatis.      Tlif    luitiiic   nt    tlio 
pioot  attfrnptfd  til  he  ^ivcii  WiiH  tliis:  it    was  allfU'd  tliat 
III  a  (frlaiii  suit  pciuliii^  bftsviM-ti  Jdsfpli    Itnskdwil/,  and 
iiiu^  Wai'i'fii,  that    in   tlif    loi-iiial    pleadings    in    lliat  suit 
whifli  Mr.  Mosknwit/.'s  counsel  had  put  in,  tin'if    was   an 
allfgatidii  that  he  i  lidsknw  it/i  was  an    AiniTicaii  lilizeii. 
Kj'l'hat  was  the  liist    pinof    put    in    hy    my    icaiiH'd    trii'iKl. 
l«it<T  (III  still  ill  inv  learned  friend's  case,  he  puis  in  aimther 
piece  of  evidence,  iianiely,  that  ill    tliat   vaiiie  suit     tlnie 
were  seveial  suits  in  coiiiiectidn  with  these  ship-;     itdskd 
wit/  made  .III  atlidavil  in  whicii  he  ^t,tte(l   that    he  was  a 
citi/eii  df  the   I'liiled   States.      My   learned    tiieiid    makes 
the  statement  that  these  stateinenis  of   Udskdwit/ t  hat  he 
was  a  citi/iii  (it  the  I'nileij    States    were   stalemeiits  th.it 
were  tiitii  material  td  the  lilij;atidii  ill   whicli   these  slate 
iiieiiis  weic  made.      I  entirely  jdin  issue  with  him  (in  that 
20pdinl.     They  were  not  statements  tli.it  wcie  at    all    mite 
rial  to  the  lilij;alidn  that  was  then  piiiij:  dii.     'i'he  allega- 
tion dl  the  pl>ailinv;s  was  that    he  Cdilld    lint    hdid  ceitaili 
fihips  h(ran-e  he  wis  a  citi/eii  of   the  I'nited  Stales.     'I'he 
(inly  p(  iiit  that    v  n-    at  all    material    in    tiiat    cdiiiiectidn 
was   whether  or  iK.t  he  was  a  lirifish   sulijecl.      if  he   u.is 
iidl    a    iiiitisli  Mihjecl,  whether  he   was    a   ciliziii   dt   the 
Tiiitid      St-i.s,       1,1      ii     (iti/eii     o\'     Itavaiia.      as       h.- 
originally       \\a.;.     malteid     not.      'I'he     point      ind     the 
diily      |»diiil,     tlial      uas     matiMial     in     that     case,     was 
10  whether  he  was,  a.   i  matter  of  lad.  a  citi/.eii    df  (ireat 
Britain,  and  tin- si.itemeiit  that    he  was  a    citi/eii    df  tlw! 
L'.iited  Slates  was  in  iki  way  nifiteiial   tn  lli.it  suit  wii.at- 
ever.     The  (inly  pnii,',  .is  1  say,  was  whether  he  was  ;i  citi 
zen  of  tireat  liiilaiii  or  ikiI,  and  it  mattered    iidt,  whelher 
lie    w.is  a    I'.ivarian    (ir  .i    I'liited   Stat. 's  citizen.      Kither 
Wduld  render  it   impossihle  for  him  to  iiold  a  Ihitish   siiip. 
I  tlierefdic   jdin  issue    with  my    learned    friend    when    he 
says   that  these  statements  were  material  td  the    issue  at 
that  lime  td  he  tried. 
40     That  was  ;ill  the  evider.ce   tiiat  w.is    given,    and   we,  at 
the  he.iiiiig  ill   N'ictdria.  cdiiteiided  that  that  evidence  w;is 
tdd  slight  Id  setllu  .aiK!  determine  in  a    case  iidt    hetweeii 
Hdskdwitz.    hut   hetweeii    otlier   parties     and   tlie    linittMl 
Sl.ites.  llie  (piestidii  whellier  this  man  was  a  citizen  of  tlie 
liiited  States  or  not.      My  learned  friend    Mr.    Dickinson, 
however,  thought  that  tli.it  evidence    was   sullicieiit.    ami 
he  closed  his  cii.se,  and  havingclosed  ins  case,  as  he  led  us  to 
understand,  as  (pii(kly  as  possihle.  and    .it    the  veiv    llrst 
mom    it  that  we  had  an  opportunity  of  dding  so,  and  h.id 
5oan  dppditiiiiity  df  answering  ids  evidence,  in  this  respect, 
we    put    in    dur    rehiittal     evidence    giving     onr     stoiv 
in  the  matter.      What    was  the    iiiituie  of    the    evideiKe 
we  gave;     We  called   .Mr.    Roskowitz.   and  we    explained 
in     the    first    place    that    so  f.ir    .is    the     ple.iding    was 
concerned,     Air.     Hoskowitz     was     ahsohitely     ignorant 
of     what      the      pleadings      contained,     and      ii       there 
was  any  ddiiht  upon  that  point,  we  calle(l  Ciiief  Justice 
I>»vie,  of  Hritisli  C'olumhia,  to  prove  thai  he.  when   pjiic 
tit    ig  at  the  bar,  liad   drawn    these  ph^idings,  and  had  in 
60110  way  iiitii cited   to  iMr.  lidskowitz   wiiat  tlie   pleaijings 
contained.     Vh    proved    that    Mr.    Hoskowit/.    iiad    never 
seen  the  jileadings.      If  tiiat    stood    alone  it    would    have 
ended  the  matter  so  far  as  that   is  cdiiceriied.  hut  it  went 
further.     They  had  an  adidavit  signed  hy  Mr.  Bdskowitz, 
and  Mr.  Boskowitz  when  called  before  tiie  t'ominissioners 
made  this  statement:   "True  I   made  tli.it  atHdavit,  and   I 


( Hiscnssion. 


may  also  have  made  statcriifiits  io  otlier  people  that  I  was 
a  citi/cii  of  tilt'   I'liitfd  States,  and  wlu-n   1    niade  those 
st.iteineiits  I  lu'lieved  I  was  a  liti/.en  of  I  he  I'nited  States; 
I  did  not  look  into  the  matter,  and   I  (]id  not  know  what 
Wiis  necessary  locunstitnte  a  citizen  of  the  United  States." 
Hoskowitz  stated  all  the  facts  of  his  caieer  in  the  United 
States,  and   then  he  made  this  statement,  which  left  the 
lomattci- i)eyond  the  shadow  of  .1  ilouht.     Me   said,  "I  my- 
self never  was  natnialized."    That  statement  of  Hoskowitz 
will  he  foniid  on  the   record,  at  pa^es  litis  and  I'.tT'.i.     My 
learned   friend   says  that   he  was  a  little  surprised  at  this. 
\'>\\\   111  V  learned   friends  evidence  was  this:   ^'ou,  .loseph 
Bo!-k(iwil/,.   have  made  certain  admissions  that  yon  were 
a  citizen  of  the   liiited    States.     Then    Moskowitz  comes 
in    and    says.    ••]   may  have    m.ide   .ill  these  admissioiiH, 
hilt    I    tell    yon    ;is    a    matter   of    fact    that    I    never  was 
naturalized. '■     My    learned    friend    admits    that    so    far 
2oas  provinji'  that  Joseph  lioskowitz  ever  was  natnialized  is 
concerned,  he  stands  mute.     My   learned   friend   has  no 
evidence  whatever  to  show  that   Hoskowitz  was  natnial- 
ized.     He  admits  that  the  evidence  is  comiih'te  and  clear 
that    .loseph    lioskowitz   never  was  himself   naturalized. 
Hilt,  he  say;,  he  was  taken  hy  surprise  in  that.    He  rested 
Ids  c.'ise  on  certain  ailmissions  and    we  hrouglit  in    Mr. 
Joseph    Hoskowitz  to  explain  these  admissions.     That  is 
all  tiiat  happened,  that  is  the  whole  fact  of  the  case  .so  far 
as  that  is  coiuerned.     My  learned  friend   trusted    his  case 
30  to  these  statements  anil  we  disproved  these  statements  hy 
showing'  th.it    Mo-^kowitz   never   was   naturalizeil.     Now, 
my   learned  friend  says  "I   am  K"''iK  t"  prove  that  the 
father  ot   .loseph    Hoskowitz.   namely.    .-Xaron  Hoskowitz, 
w;is  ri.itnralized."  and   he  asks  the  commissioners  to  as- 
sume that   hecause   .A.udii   Hoskowitz  was  naturalizi^d  at 
such  a  time,  and  therefore  his  son  is  to  he  looked  upon  as 
an  .Xniericin  citizen. 

Mr.  |)ickinsi)ii:-  That  is  in  the  i-'ederal  Statute. 
Ml.  I'l'ters:  I  am  perfe<tly  aware  of  that.  I  am  pt'f- 
40fe<ily  aware  that  it  is  in  the  Federal  Statute,  if  Aaron 
Hoskowitz  was  naturalized  hefore  his  son  liecame  twenty- 
one  years  of  aj^e,  and  he  was  then  a  resident  of  the  Inited 
States.  None  of  these  facts  are  in  the  evidence  \ne- 
senteci. 

Mr.  Dickinson:     That  w.is  <alleil  out  on  the  testimony 
of  .loM'ph   Hoskowitz  .-IS  to  his  :i^e.      When    he  came  to 
'  Dane  ("oiinty  with    hi-^  lather,   he  was  fourteen   years  of 
age.     That  appears  hy  the  record. 

Mr.  Peters:  My  learned  fiienil  asks  you  to  assume   that 
5"sonie  time  or  another-  he  does  not  know  when  --this  man 
was  naturalized,  and  that    Joseph    Hoskowitz   hecanie   of 
a;j,e  ;it  a  certain  period. 

Mr.  Diikinsoii:  Ve<.   in  the  riiited    States.     He   canie 
there  and  lived  with  his  father  liefon*  he  was  of  age. 

Mr.  Peters;  My  learned  friend  has  nothing  to  show  that 
Aaron  Hoskowitz  was  natuinlized  liefore  he  was  tifty-si.v 
years  of  age.  The  evidence  that  my  learned  friend  ten- 
ders will  not  go  to  prove  tli.it.  However,  the  point  I  want 
to  come  to  is  this.  From  the  cross  ex.imination  of  .loseph 
'^  Hoskowitz  hy  my  learned  friend  it  was  clear  and  ajipareiit 
that  niv  le.irned  friend  knew  all  ;ihoiit  where  Aaron 
Hoskowitz  lived,  hec.iiise  he  went  into  the  veiv  fact,  and 
askeil  him  v.  hat  county  he  was  in  at  a  certain  ^ate.  You 
will  liiid  that  in  Mr.  iJickiiison's  cross-examination  of  Jo- 
seph Jioskowitz,  at  page  I'.tsi  .,f  the  record.  He  asks  him 
what  county  liis  father  lived   in,  and  tlie  witness  replied 


i 


''m. 


(Discussion.) 

.  tliat  lie  (lid  not  know,  and  lie  askod  liim  especially  as  to 
DiUie  County.     I  do  not  tliink  my  learned  friend  says  that 
that  is   the  first   time  he  knew  that  Hoskowitz's   father 
had   heen   at   Mineral   I'oint.     At   all   events,    from   the 
line   of    his   cross-examination   it  uonid   ajjpear  that  he 
knew      at      that      time      as      to      the     county     where 
Aaron      Hoskowitz     had     resided,     hecause      he     refers 
loespeciallv     in        his     cross-e.xamination,      to      wit,      at 
pap'    I'.tsi.     to   this.       'Die     following;    occuried:     "Mr. 
"  Dickin.son:     Do   you    remend)er   the  county    in    whicii 
■' Maiiison  is  situated?      Answer.    I  do  not  know.      (,)ues- 
"  tion.   Lit  me  refresh  your  memory,  it  is  in  Iowa  County, 
■'  is  it  not."  It  is  (piite  apiKUcnt  fiom  this  that  my  learne(i 
I'riend  knew  more  aliout  the  county  than  .Joseph  Hoskowitz 
did  himseir.     He  was  (juestionin^  iiim  on  that  very  point. 
Be  that  as  it  may,  what  does  my  learned  trii-nd  say  now? 
He  says  he  telcgra|)hed  at  once  to  Mineral  Toint  to  ^o\  fidl 
20 particulars  aJMiuL  this  matter.     Some  days  hefore  that,  lie 
iiad  tele^r.Mpiied   to  net   inl'ormatit)n  on   this  matter,  and 
haviii"^  <loiK'  so,  wt'  heard  not  on((  woid  aliout  tliis  matter 
until  alter  the  ai>cument  for  (ireat    Uiitain   had  lieen  d''- 
livered,  at  the  end  of  March,  and    ii!»td    after  oui-  posi 
tion  ill  the  matter  had  heen  laid  down  and  put  in  Mack 
and  Aviiite     not   until    that    time    did   my  learned  friend 
make  this  motion.      Of    coiii.se.    I  lay  no  hiame  to    him 
whatever,  as  he  may  have  had  .some  reason  for  not  he- 
inj;    ahle    to    fj;et    tiie    information    sooner.       lint    it   is  a 
3ofact    that    altlioiij;li    he    knew    of    this  iiefore  the  cross- 
e.xaminatioii    took    jilace.   and    althoii};li    lie    telei^raplied 
for  iiifoiiiiatioii.   we   are    allowed    to   nn    on  and  deliver 
our    printed    ai.uument,    and    lay    oiir    position    on    the 
matter    clearly  hefoie    the   Commissioners,   in    tiie    most 
formal  manner,  hefore    w«i    receive  any  notice  tliat  this 
new  evidence    was    Hoi|i;lit  to  he  put   in.     I  suhinit  that 
if   this    W(>re   a    matter    of   ordinary  litif^atiou,   where   a 
person   comes  hefore  a  Court  with  a  inirden  of  proving  a 
ceitam  point  upon  him.  and  if  that  jieison  chooses  to  rely 
40  upon  the  merest  scintilla  o\ priiiin  fucic  evidence,  and  then 
let    the  other  person    put  in    his  reply   in  full,   and   that 
after  that    reply   is  in,  come  on  with  a  new  hrancli  of  the 
case  which  they  should  have  made  in  the  tirst  instance,  I 
sniimit  that  in  an  ordinary  litigation  an  application  of  this 
kind  would  he  refused.     I  contend,  your  Honors,  that  in  a 
ca.se   such   as  the  pi'e.seiit  one,  it  ought  to  he  I'efiised  also. 
My  learned  frieinl  himself  staled  that  this  (piestiou  did  not 
come  up  as  a    new  (piestiou.     He  stated   that   it   did  not 
come  up  for  th.^  lirst  time  at  Victoria,  hut  that  it  was  a 
50(piestion  that  came  u|i  and   which  was  heing  considered, 
and  was  heing  investigated  hefore  the  sitting  of  the  Paris 
triiiun;d.     Siirelv    my    hoiiorahle  friend,  and    surely    the 
riiited  States,  with  all  the  f.icilities  ihey  jiave  for  investi- 
gating matters  of  this  kind,  have   had  good  aiid   ample 
time   to  consider  this  point,  which,  troiii   the  heginning, 
they  have  made  one  of  their  strongest  contentions.     J*ar- 
ticiilarly  so  is  this  the  case  when  they  have  attempted  to 
make  this  (piestiou  out  as  a  very  large  and  important 
one.  They  have  had  ample  time  to  prejiare  theii   case,  ami 
60  j  contend   that  their  reipiest  should  not  he  granted,  after 
(•reat    Britain    has    put    in    her    ( ase.     to     icopen     the 
whole    matter  again.     Voii    never  know   where  a  matter 
of   tliis  kind    will   end.     There   must    he    some    end    to 
litigation,  and  there  must  he  some  end  to  the  time  that  a 
ju'ison  should  he  allowed   to  give  evidence  on  a  matter  of 
this  kind.     1  suhmit  that  my  learned  friend  has  not  given 


H' 


'I 


(Dis  •iissioi).') 

suffic'iont  grounds  for  askiiiK   your   Honors  to  rule  that 
this  ovidoncc  sliould  be  adniittol. 

I  sultniit  hrit'My  to  tlic  C'ouiniissionors  tliat  tlie  evidonci) 
that  fho  (dunsi'l  lor  tin-  Uniti'd  States  now  attempts  to 
offer  should  have  h(>i'u  properly  part  of  their  main  origi- 
nal ca-e.  and  then'j'ore  it  is  too  late  to  put  it,  in  at  tliis 
stage  of  the  prorecdin«s.  It  is  rt'openinj;  the  whole  niat- 
loter  attci'  the  nliutt.d  evidence  has  heen  given.  It  is 
attempted  to  put  in  a  pie((>  of  evidence  at.  the  end  of  the 
ease  whieh  shoidd  havi-  lieen  put  in  in  the  original  ease, 
ami  it  is  niaknig  out  a  new  case  again  Counsel  for  tiie 
United  States  say  they  are  going  to  show  that  some 
recoids  ar<'  lo-I,  and  they  arc  going  to  prove  that  a  portion 
of  the  records  of  the  said  Court  with  reference  to  applica- 
tions t(ii'  citizenship  weie  lost  hetween  cei'taiu  dates. 

Mr.  nickinson;     They  disappeared  at  pecidiar  dates. 

Mr'.  I'eters:     'I'hi'    nnnutes   of   the  K'egistrar  will  prove 
20  whether  such  documents  ever  existetl  or  not. 

Mr.  Dickinson;  — Well,  we  have  the  clerk  here. 

Mr.  peters:  -Have  yoa  the  mimites? 

Mr.  Dickinson:— Certainly. 

Mr.  Peters:  — I  will  leave  the  mattei- for  the  considera- 
tion of  your  Honors.  We  snhmit  that  it  is  too  late  to 
o|»en  this  matter  now,  and  that  the  evidence  should  not 
he  receive<l.  I  may  say,  as  a  matter  of  fact,  that  I  have 
a  statement  of  the  Clerk  of  that  Court  to  the  ettect  that 
he  knows  nothing  whatevcM'  aoout  the  records  heing  lost. 
iO      Mr.  Dickinson:  -l''rom  .Mr.  Parish^ 

Mr.  Peteis:-Krom  Mr    Paiisli. 

Mr.  Dickinson:     lie  is  lieie. 

Mr.  Peters:     1  know. 

'I"he  Connnissioner  on  the  part  of  Hei' Majesty : — Is  it 
sought  to  connect  Hoskovvit/.  with  the  disappearance  of 
the  miinite. 

Mr.  Dickinson:  Does  your  fh)nor  mean  hy  the  direct 
testimony? 

'i'lie  Commissioner- on  the  part  of  Her  Majesty:     Weil, 
40  yes. 

Mr.  Dickin^orr:  \\  e  helieve  it,  your  Horror'.  We  expe(!t 
to  comrect  later-  on,  hut  possililv  rrot  for'  this  hearing. 
The  pecirhar  ity  of  it  is  this.  If  the  testiniorry  will  he 
heard,  it  wril  appe;ir' to  the  Cohrmissioners,  in  our  opinion, 
that  an  irrtelligerri-e  has  crcited  a  hiatirs  in  these  records 
hrtweerr  .Aprrl.  |s.")4,  and  April,  |.s.''),''i,  to  wit,  the  exact 
|ieri«.d  of  Piosknwit/  taking  out  the  second  pajiers, 

.Mr-.  Peters:  Ther-e  is  no  sugge>tri>rr  in  tlie  notice  of 
my  learrnMl  frrerrd  that  Mr'.  Hoskowitz,  or  any  other 
Sopeisorrs,  either'  dir'i'clly  or  indii-ectly,  had  anything  to 
do  with  takirrg  any  records  from  any  Cornt.  You  can- 
rrot  gather-  that  in  any  way  from  this  notice.  I 
will  re.id  the  wor'ds  of  the  notice,  and  there  is  nothing  in 
it  tosho.w  airy  chargeof  that  kind.  They  areas  foilows:- 
Sectron  •_'  Testimony  and  evidence  that  tht;  iiU's  and 
lec-or-ds  of  said  Coiiit  of  applications  lor  (itizeiiship  hy 
aliens,  such  as  are  made  under  the  l;iws  of  the  I'nited 
States,  two  years  or  more  after  such  ikvlaration  as  the 
said  Aaron  Hoskowitz  made  on  the  :'4th  day  of  August, 
^•o  l.^.'d',  down  to  the  month  of  August,  |s.'i4,  from  the  or- 
ganization of  said  Court,  and  from  April,  js,'').'),  (o  the 
present  time  are  complete,  and  disclose  very  many  of  such 
applii'.ttioiis  tor-  citizenship  hy  aliens  who  iiad  declaied 
their-  intention  as  jifoie.said  to  hiu'ome  citizens  of  the 
I'nited  States;  hut  that  the  files  and  records  of  said  Court 
for  the  time  hetween  the  dates  last  aforesaid  have  dis- 


II 


(Discussion.) 

appealed  from  the  place  of  custody  in  said  Court,  and  that 
tlie  same  have  Ix-cn  lost,  destroyed  or  ahstracted. 

Section  ;{.  — Oral  testimony  as  to  the  matter  of  access  to 
such  tiles  and  records,  and  as  to  the  persons  who  have  had 
and  liav»>  access  to  said  tiles  and  reconis." 

In  that  notice  there  is  no  reference  at  all  to  the  point 
hinted  at  l)y  my  learned   friend.     If  my   learned   friend 

iosujij!;ests  or  hints,  or  proposes  to  siigjiest  or  hint, 
that  Mr.  Boskowitz,  or  any  other  person  on  his 
hehalf,  or  any  person  comiected  witli  the  case  of 
Great  liritaiii,  had  anything?  to  do  with  the  dis- 
ap|)earan('e  of  these  iccoi'ds,  he  should  have  stated 
so  in  his  notice,  in  order  tlial  we  might  anticipatt-  wiiat 
we  h;\d  to  meet.  Such  an  idea  nevi-r  entered  my  mind 
until  this  moment,  hecause  we  all  along,  as  the  (^)llrt  will 
understand,  have  treated  this  cpu'^tion  as  one  that  really 
was  immaterial,  to  a   great    extent.     After   my    learned 

2ofriendgave  me  this  notice,  I  thought  it  was  my  duty  to 
have  the  records  of  that  part iculai' Court  investigatc'd  on 
my  own  accomit,  and  since  that  time  1  have  received  in- 
formation which  1  never  thought  of  ohtainiug  imtil  I  got 
the  notiie  of  my  learned  friend.  I  have  received  a  good 
deal  of  information  since  then,  hut  that  is  another  matter 
altogether.  My  contention  is,  that  the  mimite  hook  of  the 
Coiut,  if  there  is  such  a  thing,  would  show  that  such  papers 
had  heen  tiled,  and  there  is  no  suggestion  made  in  the 
motion  that  the  minute  hook  is  lost.    V(»u  understand  what 

30  1  mean.  When  such  a  document  as  this  is  filed,  the  recoi'd 
that  is  made  of  the  document  is  tile<l  on  a  minutt:'  hook, 
and  that  mimite  hook  would  show  whether  the  document 
was  tiled  or  not.  There  is  no  suggestion,  as  I  say,  that 
the  mimite  hook  has  heen  lost. 

Mr.  DickinsoiK-That  depends  upoii  certain  circum- 
stances. 1  do  not  know  what  the  proceedings  are  in  the 
liecoid  Court,  hut  in  the  Federal  Courts  the  minute  hook 
would  not  show. 

Mr.  Ti'tirs:     According  to  the  information    we  have,  in 

40that  par ticular  Court,  there  is  a  complete  mimite  h(K>k, 
showing  every  transaction. 

Mr.  Dirkinson:— I  cannot  say  anything  ahout  that  par- 
ticular court.     Of  course.  1  do  not  know  how  it  is  there. 
Mr.  I'eters:  -We  suhmit  that  this  evidence  should  not 
he  allowed,  and  that  iifter  all  a  large  portion  of  it    is  evi- 
d(>iitly  inimateri.il. 

The  CommissioiKM' on  the  part  of  the   rnited  States;  - 
Do  1  iiiKlerstand,    Mr.   Dickinson,  that  you   have  your 
witnesses  here? 

50      Mr.  Dickinson:     Yes,  your  Honor. 

If  it  is  material  at  all  that  my  learned  friend  should 
state  to  the  Court  that  he  has  information  from  tin-  rec- 
ords of  Dane  County,  it  is  cerlainly  material  that  the 
Court  should  know  what  the  circumslances  are  in  the 
office  of  the  Clerk  of  Daiu'  County  with  reference  to  this 
matter.  Now,  the  general  rule  of  evidence  with  regard 
to  proving  negatives  is  this,  as  1  understand  it:  That  no 
one  should  he  called  upon  to  prov«  a  iieg.ative  when  the 
hurden  is  011  the  other  side,  hut  there  is  an  exception  to 

6othat  st'img  rule,  and  that  exception  is  this,  as  laid  down 
in  every  hook  on  evidence,  that  if  the  tacts  are  exclusively 
in  the  |iossession  or  within  the  knowledge  of  the  party, 
the  hurden  of  jiroof  is  shifted  and  he  must  prove  the 
negative.  Now,  I  endeavored  to  state  to  the  learned 
Commissioners  the  peculiarities  of  the  naturali/,ation  laws 
of  the   United   Slates.     Whether  a   man   is   naturalized 


18 


(Discussion.) 

or  not  is  a  matter  witliin  his  oxchisive  knowledge, 
unless  you  know  where  he  lived  all  his  life.  He  ic  the 
only  man  who  can  give  you  the  points  at  which  you  could 
follow  the  question  up,  as  to  whether  he  had  been  natur- 
alized. There  are  fortA'  courts  in  Michigan,  two  hundred 
and  ten  in  the  State  of  New  Yoi'<— all  State  courts— and 
three  liundred  and   forty   in  tho  State  of  Pennsylvania, 

loand  so  on,  to  say  nothing  of  tlu;  Federal  courts,  in  which 
a  man  could  he  naturalized.  Therefoie,  if  there  ever  was 
a  case  where  tho  facts,  as  to  whether  he  might  have  been 
naturalized  or  not,  are  peculiarly  within  the  knowledge  of 
himself,  it  is  a  case  of  this  kind,  and  that  makes  it  a  case 
where  the  buicU'M  of  prof)f  is  shifted  from  us.  Having 
established  that  this  per.son  has  swoiii,  and  put  in  a  pa|)er 
and  signed  it,  wlietlier  he  sw<)r(>  to  it  or  not,  that  he  was 
an  American  citizen,  and  where  he  s^eks  to  contradict  his 
admission,  which  has  been  put  in  evidence,  the  burden  is 

20  upon  him  to  disclose  that  he  has  not  been  naturalized  and 
that  he  was  not  an  Anieriian  citizen.  They  have  not 
done  that.  They  simply  say  that  they  do  not  know 
whether  the  father  of  iloseph  I^uskowiiz  was  naturalized 
or  not.  They  simply  place  themselves  in  a  position  to  say 
to  counsel  foi'  tlie  l'nite<l  States,  "Wo  do  not  know; 
prove  it,  you."  The  buiden.  1  contend,  is  upon  tlieni, 
when  a  prima  fariv  case  is  established  of  Bt>skowitz's 
citizenship. 

My  learned  friend  says  that   the  oath  of  Boskowitz  in 

30 the  case  we  put  in,  w,\s  innnaterial  to  the  case.  But 
when  we  tiiul  a  statement  of  the  pleading,  a  pleading 
drawn  out  by  no  less  distinguished  a  coun.sel  than  the 
l)resent  t'hief  Justice  of  the  Supreme  Court  of  British 
Columi)ia,  cont.iining  the  averment  that  Boskowitz  was 
an  American  citizen,  surely  we  nmst  conclude  that  that 
statement  was  material  to  the  case.  In  that  litigation  the 
question  of  who  owned  the  bark  ''liarbara  Boskowitz" — 
wlit'ther  she  was  a  lirig  or  a  bark  or  a  ship,  I  do  not  know 
—  that  thing  of  value  calleil  the  "  P.arbara  Boskowitz" 

40  was  tho  issue  in  that  case.  The  question  of  ownei'8hii> 
came  up,  and  a  valuable  interest  in  the  insurance  came  up, 
and  whether  the  |)rolits  in  that  floating  thing  belonged  to 
one  or  another,  came  up.  .Joseph  Boskowitz  claimed  that 
Joseph  Boskowitz  bad  a  v.aluable  interest  in  it.  A  person 
by  the  name  of  Warren  claimed  that  his  wife  bad  a  valu- 
ble  interest  in  it,  and  Boskowitz  swore,  in  order  to  lecover 
the  i>rotits  of  that  valuable  thing  that  was  the  "  Bar- 
baia  Boskowitz,"  that  Mrs.  Warren  did  not  own  the 
"Barbara  Boskowitz,"  but  that  it  was  i)ut  in  her  name, 

5" because  he  (Boskowitz)  was  an  American  ,,  i-n,  and, 
therefore,  couM  not  own  her.  That  .soimds  to  me  to  he 
material  to  the  issue.  It  seems  to  m(>  to  be  a  st.ite- 
nient  ni)on  which  perjuiy  could  be  assigned.  If 
the  statement  that  it  was  |)ut  in  Mrs.  Warren'.s 
name,  because  Boskowitz  was  an  American  citizen — 
if  that  statt-ment  was  fahse,  Boskowitz  <'ould  be  punished 
for  it.  My  learned  friend  says  that  the  second  papers  are 
not  proposed  to  bo  disclosed,  and  that  the  voting  does  not 
show  citizensiiip.     Voting  always  has  a  tendency  to  show 

60  citizenship.  Now,. Mr.  Joseph  Boskowitz  swore  that  he  never 
took  out  bis  papeis.and  if  the  polling  list  shows  that  Joseph 
Boskowitz  votes  at  Mim-ral  Point,  as  they  do,  what  then? 
Well,  he  did  not  vote  on  naturalization  papers,  and  he 
nm.st  have  voted  becauso  his  father  had  taken  out  his 
second  pajjcrs  and  hecanie  a  naturalized  citizen.  The 
Federal  Statute  provides  that  the  first  papers  may  be  taken 


13 


(Discussion.) 

out  before  a  Federal  Court  or  a  court  of  record  of  the 
State  on  the  declaration  of  intentions  and  on  taking  a  cer- 
tain oath.  Tlie  first  papers  were  taken  out  somewhere 
after  the  first  of  April,  isr)2,  by  Aaron  Boskowitz. 

Mr.  Peters:  -Will  my  learned  friend  excuse  me.  My 
learned  friend  is  not  now  proceeding  in  answer  to  the 
statement  that  Aaion  Boskowitz  voted.  He  is  making 
10  remarks  upon  some  evidence  that  he  may  have,  or  that  be 
says  lie  has,  that  Joseph  Boskowitz  voted.  ■  I  have  no 
notice  whatever  of  anv  intention  on  the  part  of  my  learned 
friend  to  give  evidence  that  Joseph  Boskowitz  voted. 

Mr.  Dickinson:— Joseph   Boskowitz  is  shown  as  having 
voted. 

Mr.  Peters:— I  have  no  notice  whatever  that  my  learned 
friend  intended  to  give  an}'  evidence  on  this  point,  and  I 
am  not  able  to  test  whether  it  is  a  correct  statement  or 
not.  It  raises  the  question  whether  my  learned  fiiend  is 
20  (piite  fair  in  raising  that  argument.  1  have  beard  nothing 
in  the  notice  about  Joseph  Boscowitz  voting,  and  I  am 
not  able  to  say  whether  lie  did  or  not.  I  think  by  other 
facts  contained  in  this  record  I  can  prove  that  be  did  not 
vote.  Up  to  the  jiresent  time  I  have  not  had  the  first  in- 
timation from  my  learned  friend  thrit  he  proposes  to  prove 
tiiat  Joseph  Boskowitz  did  vote.  Surely  my  honourable 
friend  will  not  press  any  statement  of  that  kind  in  rela- 
tion to  a  matter  of  which  he  has  not  given  notice. 

Mr.  Dickenson: — Notice  is  given  that  we  would  put  in 
30 certain  copies  of  the  poll  lists,  or  the  iioll  lists  themselves. 

The  Commissioner   on  the  part  of  Her  Majesty:— That 
would  he  as  bearing  upon  Aaron  Boskowitz. 

Mr.  Dickinson: — But  everyone  that  voted  at  this  elec- 
tion is  said  to  be  in  the  polling  list. 

Mr.  Beique: — Joseph  Boskowitz  was  only  nineteen  years 
of  age. 

Mr.  Dickinson:— That  is   not  the  evidence.     We  have 

got  every  man  that  did  vote  on  the  tally  list,  and  among 

them  is  Tgiiatz   Boskowitz,  Aaron  Boskowitz  and  Joseph 

40  Boskowitz.     The  evidence  will  have  to  go  in  if  it  is  on 

the  poll  list. 

Mr.  Peters: — That  is  not  what  you  gave  me  notice  of. 

Mr.  Dickinson:— I  gave  j'ou  notice  with  regard  to  the 
poll  list. 

Mr.  Peters:— Kxcuse  me.  It  does  not  include  that.  It 
says  in  the  fourth  paragraph:  "  FA'idence  from  the  records 
of  the  City  Clerk  of  the  City  of  Mineral  Point  in  the 
County  of  Iowa,  in  the  State  of  Wisconsin  (the  .said  City 
Clerk  being  the  proper  custodian  of  such  records)  of  the 
50  poll  list  and  tally  list  for  the  First  Ward  of  the  City  of 
Mineral  Point  of  the  general  judicial  election  held  on 
April  (i,  18."»!S,  disclosing  that  the  said  Aaron  Bo.scowitz 
voted  at  the  said  election  held  at  the  Mayor's  office  of  the 
First  Ward  in  said  City." 

You  say  be  voted  in  IS'A. 

Mr.  Dickinson:— The  first  papers  were  taken  out  in  1852, 
and  the  second  pai)eis  could  not  be  taken  out  until  two 
years  after  that,  namely,  in  April,  IS.H.  Now  the  hiatus 
m  the  naturalization  papers  appears  to  be  only  between 
60  April,  1854,  and  April.  1855.  One  year  has  disappeared. 
There  is  therefore  a  disappearance  of  the  papers  that 
would  follow  the  Boskowitz  two  years. 

Mr.  Peters:— B>om,  August,  1S54,  to  April,  1855,  is  the 
hiatus. 

Mr.  Dickinson:— We  have  the  list  of  the  naturalization 
papers  back  to  the  year  1840,  I  believe. 


lO 


14 

(Charles  E.  Parish— Direct.) 

Mr.  Peters:— It  is  between  August,  1S54,  and  April,  18.5.5, 
that  you  allege. 

Mr.  Dickinson:— Just  when  the  period  of  the  two  years 
came  round  for  the  final  naturalization  papers. 

May  it  please  the  Court,  we  submit  the  motion  without 
any  further  argument. 

The  Conniiissioner  on  the  part  of  the  United  States: — 

Mr.  Justice  King  desires  me  to  announed,  on  the  i)artof 
the  Coniiui.ssioners,  that  they  are  perfectly  satisfied  that 
under  this  notice  the  United  States  <"ould  not  read  that 
part  of  the  tally  list,  or  poll  list,  which  shows  that  Joseph 
Boskowit/  voted.  So  far  we  are  agreed.  As  lo  .h<'  other 
]iortiou  of  the  motion,  ut>  will  take  it  into  consideration 
during  the  recess. 

Mr.  Dickinson:— I  wisli  to  state,  may  it  please  the  Com- 
missioners, that  I  had  never  sfcn  the   .irgument  of  my 
2„  learned  friend,  the  counsel  for  Her  Majesty,  when  1  made 
this  motion. 

Mr.  Peters:— I  stated  that  the  counsel  for  the  United 
States  had  received  my  printed  argument  in  this  matter 
before  giving  notice  of  this  motion.  I  think  that  \)rnh- 
ably  that  statement  is  incorrect.  I  see,  by  looking  at  the 
not  ice -and  1  desire  to  correct  the  former  statement  I 
maile— that  it  was  given  on  the  Sutb  of  March. 

Mr.  Dickinson:— Thank  you,  Mi.  Peters. 

1  iiavc  nothing   further   to   propose  on    behalf   of   the 
,jj  United  States. 
•^       The  Commissioners  took  recess  at  1  i*.  M. 


At  2.1.')  P.  M.,  the  Commissioners  resumed  their  seats. 

The  Commissiimer  on  the  part  of  the  United  States: — 
My  associate  decides  that  I  shall  make  the  aiuiouncement 
of  our  conclusion  with  refeience  to  the  motion  filed  by  the 
United  States,  and  presented  this  morning. 

Without  assuming  to  pass  upon  the  fjicts,  or  the  rele- 
vancy of  the  proofs,  we  have  decided  to  allow  the  United 
*^° States  to  take  out  such  proofs,  pertinent  to  the  motion,  as 
they  have  here  to  be  taken  out.  We,  however,  reserve 
until  the  close  of  that  evidence,  the  power  lo  make  such 
ordei-s  as  may  be  found  desirable  to  protect  Her  Majesty 
in  reference  to  the  testimony.  We  also  realiHrm  what  we 
said  this  morning,  that  the  tally  list  cannot  be  read  for 
the  purposi  of  proving  that  Mr.  Joseph  Boskowitz  was 
registered  as  a  voter,  or  voted.  Wo  also,  with  reference 
to  the  suggestion  made  that  there  might  be  some  evidence 
connecting  Mr.  Joseph  IJoskowitz  with  the  disappearance 
5° of  the  pjijiers  and  whatever  is  .slid  to  have  disappeared, 
are  of  the  opinion  that  the  evidence  must  be  limited  to  the 
purpose  of  showing  that  the  papers  and  other  matters 
disappeared;  tiiat  tlie  notice  is  too  general  to  permit  evi- 
dence to  be  offered  which  would  prejudice  Her  Majesty's 
case,  beyond  that  mere  fact. 

Charles  E.  Parish  was  called  as  ii  witness  on  the  i)art  of 
the  Unittxl  States  and  duly  sworn. 

6o     Direct-examination  by  Mr.  Dickinson: 

(^. — Where  do  you  live,  Mr.  Parish?  A. — Madison, 
Wisconsin. 

t^.— Is  that  the  Cai)ital  of  the  State  of  Wisconsinif  A.— 
Yes,  sir. 

y.— In  what  county  is  Madison  situated^  A — Dane 
County. 


4 


ir. 


^  (Charles  E.  Parish— Direct.^ 

*  Q. — And  wliat  is.the  highest  nisi  pi  inn  court  of  rocortl 
in  the  State  of  Wisconsin— court  of  trial?  A.-  Wliy.  the 
Circuit  Court. 

y. — Asa  Circuit  Court  for  each  county?  A. — No,  sir; 
tlierc  are  Circuit  Courts,  of  which  Dane  County  is  a  part 
of  the  circuit. 

Q.    -But  there  is  a  Cir<!uit  Court   for  each   county  and 
loscveral  counties  in  the  circuit?     A.  —  Ves.  sir. 

Q. — Tiiat  is  a  court  of  record?     A.  — Yes,  sir. 

(}.- Are  you  at  present  Clerk  of  Mie  Court?  A.  -Ves, 
sir. 

Q.  -How  loni?  have  you  heeu  Clerk  of  the  Circuit  Court 
for  the  County  of  Dane,  in  the  State  of  Wisconsin?  A. — 
I  was  elected  first  two  years  a>;o  last  fall,  took  office  two 
years  ago  last  Jamiary. 

(}.     And  you  are  the  custodian  of  the  files  and  records 
of  the  Court?     A.   -Yes,  sir. 
20     y    -And  have  received,  have  you,  the  tiles  and   records 
of  the  Court  from  your  predcce.-sor?     A.  —  Yes,  sir. 

Q.— Can  yon  tell  us  what  time  the  Circuit  Court  for  the 
County  of  Dane  was  organized?  A.  Not  of  my  own 
knowledge. 

Q.  —Well,  fiom  your  knowledge  as  an  ()tTicial  of  the 
Court.  Of  course  you  were  not  tliere  when  it  was  oigan- 
ized?     A.    1  do  not  know. 

y.  -Ahouthow  far  do  vour  records  go  hack?     A.   Back 
to  IS4I. 
30     (^.  —  Who  was  your  immediate  predecessor?     A.  — Wil- 
liam Felandt. 

y.  — Do  yo'.i  have  in  the  Ciicuit  Court  for  tiie  County  of 
Dane  the  naturalization  papeis  of  foreigners?  A.  -Yes, 
sir. 

i}. — And  do  you  know  from  tlie  recoi'ds,  whether 
foreigners  have  been  naturalized  there  since  the  period 
you  speak  of,  ls41?     A.— Y'es,  sir;  they  have. 

V. — Will  you  j)lea«e  state,    Mr.    I'arish,    whether  you 
have  made  any   search     for     the    Hies    and    records    of 
4onatinalization    papers    in    the    office  of   which   you   are 
custodian?    A.  — ^  es,  sir;  I  have 

Q.— How  far  hack  did  yon  Hnd  naturalization  papers  of 
foreigners?  A.--I  think,  if  my  recollection  serves  me 
right,  it  is  in  lS4;i,  the  second  papers  -the  full  citizenship 
papers.     1  am  not  positive  whether  theie  are  any  in  1S41. 

(.^.  — Kunning  down  to  what  period?  A. -Running 
down  to  the  present  time. 

Q.— Will   you    please   state,  Mr.  Parish,  whether,  aside 
from   the  files  of  naturalization  papers,  there  is  kept  any 
So  index  or  indices,  of   first  pa|»eis?    A.— \'es.  sir;  there  is  a 
sort  of  record  hook,  and  an  uidex  also  to  that. 

Q.— That  runs  from  the  earliest  period  to  the  latest? 
A. — No,  sir. 

Q.— What  period  does  that  cover?  A.  -It starts  in  with 
April  fi.  I.S.W. 

Q.— Of  the  first  papers?     A.- The  second  papers. 
(}.— The  first   papers   I   am  talking  of?     A. --The  fiist 
papers;  there  is  a  record  book— a  sort  of  index  and  record 
book. 
60     Q.— From  what  period  to  what  period?     A.— From  1841 
to  date. 

Q. — Now,  as  to  the  second  papers— we  have  been  speak- 
ing of  the  first  papers,  or  declaration  of  mtention  -as  to 
the  second  papeis,  are  there  any  records  of  the  papers 
filed?     .A..— Yes,  sir. 


Mi 


(Cliarle^  K.  Parish— Direct,. ) 
Q.— What   peiind   (lo«'s   that,  cover?     A.— That   covers 


from  April  <i.  \>:>:>,  to  tht-  present  time. 


(}  -  N 


ever  an 


V  hefore  that?     A. -N 


O,  SI  I. 


c).  —  Have  yiiu  the  record  of  secoiid  n.-itinalization 
papers?     A.-  I  have  the  liist  hook  of  the  second  papers. 

Q.  -The  tiist  liodk  that  was  ever  made  in  the  ottice? 
A.  -The  first  one  that  was  evci'  kept  in  the  ollice  I  can 
lotind,  or  know  anytiiin;.;  al)iint. 

t^.  —  Will  you  please  j)roihice  it? 


Witness  product 


hook. 


ni 


]k: 


Q.     The  hook  yon   jiresent   is  entilled  "  Uccord  of   Ad- 

issions  to  ('j(i7,cMslii|)."  is  it  not?     A,— I  ln'lievc  so. 

y.     And  it  states  on  its  f.ice  "  Connnen(  inj;  .lannary  1, 


A.-Y 


CS.    SMV 


20 


(,).  They  are  all  similar  entries,  are  they  not?  A.  Yes. 
sir,  I  hc'iicvf  they  are  .ill  similar  hack,  there  may  he  a 
little  dissimilarity  in  the  form. 

t,).      It  is  a  hook  of  lilanks,  is  it  not?     A-    Yes.  sir. 

l|).  —  Tlieie  were  record   hooks   running   hack,  you   sav, 
•      to  ls4-.' of  llrst  papers?     A.— IsH. 

Mr.  niikinson:  We  w  ill  state  the  facts  in  rej^ard  to  the 
hook,  (hat  the  hook  produced  appears  to  he  printed  origi- 
nally as  a  hook  of  lil.iidxs,  and  all  the  hianks  are  filled  in. 
with  an  inilex  to  the  persons  who  took  out  thial  papers, 
all  in  the  following  form: 

■  rilK  I'MTKd)  STATKS  OK  AMKU'ICA. 
30  Rk  rr  iJivMKMHKKKD.  that  on  this  12lh  day  of  .\pril.  in 
the  year  of  ( >nr  l.oni  One  thousand  eight  hundred  and 
fifty  live,  ami  of  the  Independence  of  the  Tnited  States 
the  seventy  ninth.  .lohn  N'alantine  I'feff,  an  alien,  heinga 
free  white  iiersoii.  ;i|ipeared  hefore  the  Oircuit  Court  of 
the  State  of  Wisconsin  for  D.ane  County,  and  ajtplied  to 
the  Court  to  he  admitted  t(»  iiecome  a  citi/en  o|  the  I'liited 
States.  And  the  said  .lohn  Valentiiie  rieff  having  more 
than  two  years  ago  made  a  declaration  of  his  intended  aj»- 
))lication  as  aforesaid,  in  the  manner  and  form  presciihed 
40  in  the  .Act  of  Congress  entitled  "An  Act  to  estahlish  a 
uiiifoiin  I'ule  of  natiirali/.ation,  and  to  repeal  the  acts 
heretofore!  pa.ssed  on  that  snhject.'  And  the  Court  luring 
satistied  hy  the  testimony  of  Nelson  J'ierce  and  laither 
Thoiiison,  citizens  of  the  Cnited  States,  that  the  said  .John 
Valentine  IMell'  has  resided  within  the  United  St.ites  for 
the  continued  term  of  five  years  last  past,  and  within  the 
State  of  Wisconsin,  aixl  th;it  dining  that  time  he  has  he- 
haved  as  a  man  of  good  moral  chnracler,  attached  to  the 
|)rinciples  of  the  Constitution  of  the  I'nited  States,  and 
5^  well  disposed  to  the  good  ordi'r  and  happiness  of  the  same. 

.And  the  saiil  applicant  declaring  on  oath  hefon;  the 
Court  that  he  will  support  the  Constitution  of  the  L'nited 
States,  and  forever  ahsolutely  and  entirely  renounce  and 
ahjui(>  all  allegianci'  and  fidelity  to  every  foreign 
I'riiKc.  Potentate.  State  or  Soveieigntv  whatever,  and 
paiticiilarly  Ma.ximillian  Second.  King  of  Havaria,  where- 
of he  was  Jiefore  a  siihject. 

Tliei«'U|)on  tiMi  Court  admitted  tlie.said  .John  Valantine 
IMetf  to  liecou'.e  a  citizen  of  the   United  States  of  Anier- 


fK> 


ica. 


Direct-e.xamination  hy  Mr.  Dickinson,  continued. 

Q.--  Now.  Mr.  I'arish,  do  you  know  your.self  whether 
there  was  any  other  hook  containing  the.se  records  prior 
to  .January  1,  ls.'),"j?  A. — No,  sir,  I  do  not.  1  found  uoue. 
1  think  there  were  none. 


i; 


it   covers 


lalizatioii 
papt'is. 
lilt   otticc? 
lice  I  call 


(1  of  A(l- 
'  so. 
aiiuary  1, 

A    -Yes. 
may  lie  a 

,  sir. 
\(ui  say, 

ii'd  to  tlie 

ited  oiigi- 

fillcd  in. 

il  papers. 

•A. 

.Al)iil,  in 
idled  and 
fed  State.s 
'11.  hcin^a 

(Vnii't  of 
a])i(li»Ml  to 
lie  Ignited 
dnj;  more 
lended  ap- 
picseiibed 
stahlisli  a 
I  the  arts 
)oit  being 
id  LiUlier 
■said  John 
St.ites  for 
Aitiiin  the 
liH  has  he- 
led  to  the 
Itates.  ami 
f  the.siine. 
before  the 
the  L'nited 
nil  nee  and 
i"y  foreign 
tever,  and 
ria,  wiiere- 

Valantine 
of  Ainer- 

iied. 

If  whether 
;ords  prior 
mud  uoue. 


«  (Charles  K.  Parish— Direct.) 

Q.— Von  did  not  find  any  on  any  examination  yonliave 
niadt'^  A.  — I  have  fonnd  nothing  later  tliait  that  book. 
Tliat  was  the  earliest  iiook  in  tiie  ottico. 

Q. — Will  yon  plea.se  state  whether,  in  addition  to  the 
hook  sncii  as  this  in  your  files  and  records,  there  are  kept 
the  original  papers?     A.  -Yes,  sir. 

<^.  — How  are  they  kept*     A.  — Well,  of  late  years  tlK'V 
lo have  all  been  kept  in  tiles,  and  placed  away   in  boxes  in 
the  vault,  and   late  years  the  first  paper,    or  a  copy  of 
the  first  paper,  is  fastened  to  a  copy  of  the  oath  of  allegi- 
ance and  filed  away. 

Q.— Those  tiles  are  kept  in  addition  to  this  bonk?  A.— 
Yes,  sir;  aiul  also  in  addition  to  a  separate  index. 

Q. — Have  you  made  examination  of  those  files  to  ascer- 
tain whethei  there  were  any  naturalization  pa jiers— second 
papers-  between  April,  lsr)4,  and  April,  185.5?  A.  — Yes, 
sir. 
20  y. — Do  you  find  any  such  files  for  that  year?  A. — No, 
sir. 

y.—After  the  taking  out  of  the  first  jtapers,  within 
what  period  are  the  second  papers  taken  out  in  accordance 
with  the  practice?  A. — Not  earlier  than  two  years  after- 
wards. They  cannot  be  taken  out  until  after  the  expira- 
tion of  two  years. 

y.— Is  it  the  custom  to  take  them  out  in  cibout  two 
years. 

Mr.  Peters:— It  cannot  be  less  than  two  yeare.    I  do  not 
30  think  that  is  a  fair  question,  what  the  custom  is. 

Mr.  Dickinson: — 1  will  waive  the  question.  It  does  not 
make  any  particular  difference. 

Q— I  think  you  prepared  and  certified  this  copy 
of  the  first  papers  of  Aaron  Boskowitz,  did  you  not? 
A. — Yes.  sir. 

Q.— It  is  your  certificate?    A. — Yes,  .sir. 

y.— This  is  your  signature  to  the  final  certificate  on  the 
first  papers?    A.— (Examining)  Yes. 

40  Mr.  Dickin.soii: — I  offer  a  certified  copy  of  the  first  oath 
of  Aaron  Boskowitz,  in  which  he  declares  his  intention  to 
renounce,  &c.,  the  oath  being  dated  August  24,  lM.5ii. 
This  paper  J  should  state,  may  it  please  your  Honors,  was 
the  result  of  a  telegram  sent  to  see  if  there  were  any  first 
papers  taken  out.  It  did  not  arrive  at  Victoria  until  after 
the  close  of  the  session,  although  the  certificate  is  dated 
the  litth  day  of  January. 

Mr.  Peters:— If  I  understand  correctly,  you  sent  that 
telegram  some  time  in  January,  before  we  left  Victoria? 

50  Mr.  Dickinson: — To  be  sure,  I  .sent  that  telegram  to 
ascertain  if  there  was  any  one  by  the  name  of  Boskowitz. 
I  received  that  certificate  after  the  close  of  the  session  at 
Victoria— I  think  on  the  day,  or  the  day  but  one  before  I 
left  Victoria.  The  mails  at  that  time  were  delayed  by  a 
flood,  or  something. 


ss. : 


The  oath  is  as  follows: — 
State  of  Wisconsin, 
Bane  County, 

^  To  the  Honorable 

Judge  of    the  Circuit  Court  in  and   for  the  County  of 
Dane,  aforesaid: 

I,  Aaron  Boskowitz,  an  alien  born,  being  duly  sworn 
according  to  law,  on  my  oath  do  declare  and  make  known 
that  I  was  born  in  Bavaria  in  the  Kingdom  of  Bavaria, 
and  that  I  am  about  forty-two  years  of  age;  that  I  emi- 


18 


i; 


(Charles  E.  PariHh— Direct.) 

grated  from  said  KiiiKtlom  in  tlio  inontii  of  July,  A.  D., 
1H4B,  and  entered  within  the  limits  of  tho  United  States, 
at  New  York,  in  the  State  of  New  York,  in  the  month  of 
Augnst,  A.  D.,  is4;t,  and  that  I  have  ever  since  remained 
within  the  limits  of  tho  United  States  and  that  it  is 
my  honnjiih'  intention  to  renounce  forever  all  allegiance 
and  fidelity  to  every  Fon'ign  I'rince,  Pow«'r,  Potentate  or 

lo  Sovereignty  whatever,  and  more  esjiecially  such  al- 
legiance and  fidelity  as  I  may  in  any  wis«!  oweto  Lndwig, 
jiresent  king  of  said  Kingdom,  either  as  a  citi/en  or  suh- 
ject,  and  that  I  do  not  enjoy  or  posses-s  nor  am  I  in  any 
wise  entitled  to  any  order  of  Distinction  or  Title  of  No- 
hility  hy  virtue  of  any  of  tho  laws,  customs  or  regulations 
of  the  said  Kingdom,  or  any  other  country;  and  that  I 
am  sincerely  attached  to  the  principles  ccmtained  in  the 
Constitution  of  the  United  States,  and  well  disposed  to 
the  good  order  and  well    being  of  the  same,  and  desire 

20 that  this,  my  Deci.nation  and  Report,  may  lie  accepted 
and  tiled,  preparatory  to  my  intended  application  to  be 
admitted  as  a  Naturalized  Citizen  of  the  Unitnd  Slates, 
in  conformity  with  the  several  acts  of  Congress  in  such 
case  made  and  provided. 

Akon  Boskowitz. 
Subscribed  and  sworn  to  before  me '' 
this  :i4th  day  of  August,  A.  D.  }- 


IS.'iL'. 


30 


Elisha  Blkdick, 
Clerk  Circuit  Court,  Dane  County. 


Q — I  desire  to  ask  when  you  last  made  a  search  of  the 
files  fnr  these  sectond  papei-s  for  the  year  1M54?  A.  On 
Saturday  last. 

Q.  — In  the  files  at  Madison?    A.  Yes,  sir. 

(^. — Now,  that  is  where  they  are  kept?     A.  Yes,  sir. 

y. — Will  you  please  state  whether  those  are  public  files? 
A.  They  are;  yes,  sir. 

Q  —  VVhere  are  they  kept?  In  your  office?  A.  They 
40  are  ke])t  in  the  vault  room. 

Q.^ — How  large  a  room  is  it?  A.  It  is  a  largo  room  -per- 
haps sixteen  by  twenty-four,  something  like  that— sup- 
posed to  he  fireproof. 

Q.-- Lighted?  A.  Lighted  by  three  windows  on  one 
end. 

Q.— Lighted  in  any  other  way  at  night?  A.  Electric 
lights. 

().  -What  are  the  hours  that  that  vault  is  open?  A. 
The  vault  is  open  to  the  public  all  the  time  tlie  office 
50  proper  is  open,  and  we  keep  the  office  open  longer  than 
the  regular  hours.  We  are  there  from  about  eight  o'clock 
in  the  morning  until  near  six.  The  door  is  always  open 
whde  we  are  there. 

(}. — Is  any  one  who  goes  in  there  accompanied  by  any- 
one connected  with  i;he  office,  as  a  rule?  A.— Not  unless 
they  want  assistance. 

(^. — So  theie  is  ])erfectly  free  access?  A. — Yes,  sir;  free 
to  the  general  public. 

Q. — Will  you  please  state  where  in  that  vault  were  the 
60  naturalization  files  kept — in  what  sort  of  a  receptacle?  A. 
— They  were  ke[)t  in  iron  boxes — sliding  drawers  or 
boxes. 

Q.  — Sliding  pigeon  holes?  A.^Yes,  sir;  iron  boxes 
probably  a  little  over  a  foot  deep,  so  that  these  papers 
could  stand  on  end  in  those  boxes,  and  shove  into  other 
iron  cases. 


?l 


!!♦ 


lo 


20 


30 


(Charles  E.  Parish -Ciohs.) 

Q.   -Were  tliose  in  any  way  locked  iui     A.  -No,  sir. 
•  Q  -  So  that  any  onecoulil  ^^,vi  intotlit'ottice,  pull  out  one 
of  those  iron  hoxeH  and  look  at  the  tiles  at  his  own  sweet 
will,  and  he  alone  in  that  otHce,  could  he?     A.  — Vesi,  sir. 

Cross-examination  by  Mr.  I'eters: 

(^.  -Mr.  Parish,  I  think  you  stated  yon  took  charge  of 
that  oHice  whenf     A. — In  January  two  years  aj^o. 

(/  -And  ui)  to  that  time  you  know  nothing  about  that 
otTite?     A.     Very  little  about  it. 

if.  When  did  you  bej^in  to  know  anythin;;  about  the 
oflicf^  A.  Well,  for  a  ureat  many  yt-ars  I  have  iH-en  in 
the  ollice  at  dillerent  times,  but  never  knew  .inythinK 
abiiit  the  praclical  workings  of  it. 

(,)  -Now.  couhl  you  |»reteurl  to  say  what  records  were 
in  that  ollice,  or  what  were  not  in  that  oHice,  before  you 
went  there?     A.  — No,  sir. 

(.,».     Vou  have  stated   that  here  is  a  record  of  admis- 
'.sions  to  citizenship,  and  that  bejiins  in  the  yeai-  Ih."».".,  and 
it  is  marked  volume  numbei'one?     A.     Ves,  sir. 

(jf.  -And  on  the  first  pa^e  of  that  is  stated  "  Record  of 
citizenship  commenciuf?  January  1.  |ss.">"     A.    -Yes,  sir. 

ip.  — Now,  do  you  or  do  you  not  allege  that  there  was 
ever  a  book  prior  to  that,  of  the  same  description <  A. — I 
have  no  knowledue  of  any  other  book. 

Q.-~  Y'ou  do  not  know  whether  there  was  or  not? — A.  I 
do  not  know. 

Q.    -At  all  events  thisbej;ins  number  one?    A.  —  Yes.  sir. 

Q — 80  far  as  tiiis  would  show,  it  is  the  first  record  book 
that  ever  was  kept  of  that  kind?  A. — It  has  tiiat  a|)pear- 
ance. 

(^.— Have  you  any  doubt  of  it  in  your  own  mind  that  tiiat 
is  tlie  tii'.st  time  such  a  record  book  was  kept?  A.  —  1  have 
no  means  of  knowing  whether  there  were  any  prior  or 
not. 

Q.  That  number  one  was  on  when  you  went  there?     A. 
— Yes,  sir. 
.-     Q.— And  appears  to  have  been  the  first  record  book  of 
^   that  kind?    A.  — Yes,  sir. 

Q.  — Now,  then,   have  you  any  record  or  any   trace  of 
any  final  citizenship  papers  before  that  date?     A.  I  have 
no  records  of  any  final  citizensiiip  papers. 
^  (^.— Or  any  trace  of  any  record  prior  to  that  date?     A. — 
No,  sir. 

Q  —And  from  that  date  they  are  all  complete?  A.— I 
think  they  are.     So  far  as  I  have  examined  they  are. 

Q.— It  appears  that  a  proper  systematic  record  has  been 
, kept  since  IS.^i")?     A.— Yes,  sir. 

Q.— And  it  also  appears  that  prior  to  IS.").")  a  proper 
systematic  record  was  not  kept?  A.  — It  appears  there  was 
no  record  kept. 

Q.  Nor  can  you  state  that  there  were  any  before  1^.5.5? 
A. — No,  sir:  I  cannot. 

Q.— Any  final  citizenship  papers  taken  out  in  a  Circuit 
Court  in  the  County  of  Dane?  A.— I  did  not  understand 
that  question. 

Q.— You  are  not  in  a  position  to  state  that  there  were 
g^auy  final  papers  prior  to  that  time?     A  — Y'es,  sir. 

Q.— How?  A.— From  the  fact  t  uc  there  were  final 
admission  papers  there  on  file  prior  to  that  date— final 
oath  on  file. 

Q.— Any  record  stating  that  the  Court  made  that  order? 
A. — No.  sir;  there  is  no  record. 
Q.~ Here  the  Court  made  this  order  "Thereupon  the 


50' 


c^. 


/u^y 


I  i' 


so 

<C'liiirl«'s  K,  I'iirish—CrosH.) 

Court  ndinittfd  said  to  l)e(-oni«>ii  citizen  of 

the  lliiitt'tl  Stfitt'S  of  Ainciica."  I'liorto  \s:,:,  wiih  tlirm 
any  hiicIi  loconl  in  liin  Circuit  Court  for  llw  County  of 
|)an»'<    A.-  I  foniid  iiont'.     No,  »ir. 

Q.-  Now  then  you  say  vou  do  find  records  of  tliat  Court 
back  as  far  as  tin- yi'Mr  IMl?  A.  -  ls4'J  i  think  was  the 
first  tiiiai  a<lniissioh  I  foinid  -1  am  not  |)ositiv«>. 
lo  (^.  What  do  you  call  thf  hooks  that  \v»'r»(  kept  there 
prior  to  that  timef  A.  —  1  fouiul  no  IxtokH  as  to  final  ad- 
missions. 

Q.  — Vou  foiMid  something  about  them,  did  you  iu)t? 
A.— No.  vir. 

Q  — Nolhiiif;  <'it -ill;     A.  -  Not  final  admissions, 

(/-'I'here  are  no  minutes  of  tho  Court;  A.-l  found 
none.  sir. 

U.  -  Difl  you  look?     A.   -Ves,  sir. 

Q.  —  ls  tiiere  not  a  hook  lalled  the  Court  Minutes?  A.— 
20  Yes,  sir,  tlieic  is 

(^  V\'her«' is  that  book?  Did  you  l)rinK  it  «ith  you?  A. — 
No,  sir. 

Q.  — Did  you  look  .it  it?     A. — Yes,  sir. 

Q.-  Does  not  what  is  called  the  Court  .Minutes show  nat- 
uralization papers,  as  well  as  anything;;  else?  A.— Not 
prior  to  that  date. 

Q.-  Prior  to  wliat  date?  A.— Prior  to  the  date  of  that 
book. 

l^.  — Did  you  loc    t    A.-— Ye.s.  sir. 
30     (.^  —  Looli  at  fl       ourt  minutes?     A.— Yes,  sir. 

Q  --And  you  I  iid  notliing  in  it?  A. — B\)und  notliiug. 
I  did  not  read  it  all  through. 

Q.  -flow  do  you  know  they  were  not  in  it?  .^  —I  do 
not.  hut  I  found  none. 

(./-What  i)art  did  you  read  through?  A.-  When  I 
found  the  first  pajters  on  file,  I  would  refer  to  tho  court 
minutes,  to  see  if  there  was  any  mention  in  tho  co  irt 
minutes,  and  I  found  none. 

Q.  — And  you  found  tlw  coiut  minutes  from  what  time? 
40  A.   I  coulil  not  stale  posilively. 

(^.  -  Did  you  find  the  comt  minutes  from  the  year  1842 
up  to  the  year  isM?  A.  I  think  not  consecutively.  lam 
not  sure  as  to  that.  I)ut  I  think  not. 

l^  --Wliat  was  missed?  A.  I  do  not  know.  I  found 
some  coui  t  minutes,  but  I  <lo  not  remember  the  dates. 

Q.  -Did  you  make  any  special  search  through  those 
court  miiuites  to  find  what  was  in  tliem  in  regard  to 
natunilization  papers?      A.   I  did  in  regard  to  those  on  file. 

I,). —  Did  you  go  througli  from  the  year  1H.52  to  the  year 
50  18r)tl  ()•.•  IS.').'),  ve  will  take?     A.  Nothing,  only  as  regards 
these  papers  that,  weie  on  Ide. 

Q.  — I  simply  ask  you  did  you  go  through  the  record  of 
the  court  minutes  from  tlut  year  1S.')2  to  the  year  18.55? 
A.  I  can  only  answer  you  as  I  did  i^efore  in  regard  to 
looking  at  thcjse  records. 

Q.— That  is,  you  did  not?  A.  No,  sir;  only  to  look  up 
to  see  if  there  wore  any  entries  of  those  papers,  of  those 
persons  who  had  taken  out  second  papers. 

Q.  — Did  you  not  find  between  the  years  18.52  and  1855 
6oa  complete  set  of  court  records--court  minutes?    A.  I  do 
not  know  whether  I  did  or  not. 

y.— Are  you  in  a  position  to  say  yon  did  not?  A. — No, 
nor  I  am  not  in  a  position  to  say  I  did.  I  have  no  recol- 
lection of  finding  a  complete  set. 

Q.— Then,   for   aught  you   know,   every   single  thing 


f^ 


Hi 


Ih  tliat 
I  lookcil 


(ChailttH  K.  PariHli-  CV08H.) 

about  tliiH  may  appear  in  tlutse  roiirt   niimites* 
tin*  ciiHt'i    A.— No,  Hir. 

y.     Why  not?    A—For  the  ri'a.Hoii  I  told  you. 
to  H«'t»  if  fht'y  were  «'iit»'re(l. 

t,!  — Thfii  iinavver  thiH  (|ii»!stioii:  Are  there  or  are  there 
not  court  niituites  fi(MU  IstrJ  to  l^'i.")?     A.    -F  do  not  know. 
There  are  court  niin  ;tes  alonj^iii  those  years,  but  whether 
10 they  aio  coni|)letu  or  not  I  do  not  know. 

(^.— Now,  then,  1  am  Koin>{  to  ask  you  r.nother  (piestion 
from  the  same  court  minutes  theie,  whether  or  not  vou 
have  read  them  thmugh,  in  orch-r  to  i»e  aide  to  say  w'liat 
is  or  what  is  not  contained  in  tiiem^  A.  — No.  sir;  I  have 
not  read  them  through. 

f.^.  — Nor  can  you  tell  me  for  what  period  you  have  read 
them?    A.  — N(»,  sir;  I  cannot. 

t^.  -And  as  a  matter  «d'  fact  you  ar«!  not  in  a  position  to 
tell  us  for  what  years  the  minutes  actuallv  existed^     A.— 
-oNo,  sir. 

().  — Nor  what  those  minutes  really  contain  if  A.  -No, 
sir. 

Q.  -So  that  really  on  this  point  you  are  not  able  to  give 
us  nnich  information?  A.  -Only  what  I  have  told  vou 
before.  1  was  looking  for  certain  matters,  and  that  was 
all  1  read. 

(^.-  Now.  will  you  li(>   kind   enough   to   tell    mo   what 

searchi's   y..u   really  did  make   yourself?     A.  — I   made  a 

seaicli  to  see  if  there  were  any  records  of  certain  papers 

30th.'it  I  found  there  in  that  tiltice;  second,   or  citi/ensliip 

papers. 

t^.  You  made  a  .search  to  asc:ertain  the  citizenship 
papers  of  Aaron  Boskowitz?     A.— No.  sir;  I  did  not. 

(^.  What  did  you  say  then?  A.  — I  made  a  search  to 
see  if  there  were  any  records  kept  m  those  minute  books 
of  the  |)apers  on  tile  then — the  citizenship  pajiers 

y.— For   what   years?    A.  — For  the  years   previous  to 

is.-,"). 

y.— Previous  to  185,")?    A.— Yes,  sir.     I  did  not  take  all 

40of   tiiese   pajters.     I    took   certain   ones    and   then    went 

through  the  minute  book  to  see  if  there  was  anv  record  iu 

the  minute  book  with  regard  to  them. 

Q.- Suppose,  then,  that  you  found  the  citizenship 
papers  of  say,  John  Brown,  you  would  go  to  the  minute 
book  and  see  if  it  were  entered?     A. — Yes. 

y  — And   you   took  three  or   four  of   those   from    1841 
to  l^.'i.')?    A.     1  probably  took  a  dozen. 
y.-From  1841  to  185.')?    A.  -  Yes,  sir. 
t^.  — Could   you   give  me  a  general   idea  of   liow  many 
50  papers  of   that  description   there   would   he  during  that 
period?    A.— No,    sir;  I   could   only  tell   you   about   how 
many  I  found. 

y.  — You  just  took  tlieni  here  and  there?  A.— I  took  a 
number. 

Q.— Aid  as  a  matter  of  fact  you  made  no— what  you  may 
call  a  systematic  search  whatever?    A.— 1  madeasearch.  a 
systematic  search,  for  those  persons  that  wore  natural- 
ized. 
f.       Q.— That   is  to   say,  for   persons  with  whom  we   have 
"° nothing  to  do?    A.  — Yes,  sii-. 

y.— How  many  did  you  take  between  the  years  1841 
and  1855?  A.— About  a  dozen.  Of  course,  I  am  just 
speaking  from  my  re(;ollection. 

y.-  How  many  did  you  find  of  them  in  the  minute 
book?     A. — I  did  not  find  one. 


1 


w 


(Charles  K.  Parish— Cross.) 

nono  of  them  in  the  miiuitos? 


'   fi 


record?      A.-- 1    went 

A— The  only  records 
mimite  hooks.     There 


-No, 


Q. — You   found 
None  of  them. 

Q.-Then  did  you  jjo  through  all  the  records  from  1852 
to  185.")*     A.— Yt's.  sir. 

Q.  —  You    went    through    every 
liirough  everything. 

y.     Wiiiit  (lid  you   go  through? 
ID  that  1  could  go  through    vere  the 

were  no  hooks  of  tinal  admission  duiing  those  days. 

(j). — Ther(>  were  no  hooks  of  final  admission?    A.- 
sir. 

Q. — And  no  tinal  papers  taken?     A.  — I  found  none. 

c).  —  For  Mohody?     A.     For  nohfxiy. 

Q.  —  Was  that    the   only    miiuite   hook   that    was   kept 

there?     You  expected  to  find   them  iu  the  miimte  hook? 

Did  not  you  think  they  were  there?     A— They  are  kept  in 

ihe  minute  hook  now,  or  not  a   minute  hook,  hut  iu  the 

20 court  recoid,  as  they  now  call  it. 

Q.— And  they  have  heen  ke])t  in  the  Court  record  for 
how  far  hack?     A      I  rlo  not  know. 

Q. —\Vh<':i  did  they  hegin  to  keep  them  there?  A. — I 
do  not  know. 

Q.  -And  you  expected  to  find  them  in  the  Court  record? 
A.  — I  looked  to  see  if  they  weie  there. 

Q. — Is  your  Court  record  a  complete  lecord,  as  far  as 
you  know?    A.     I  do  not  know  whether  it  is  or  not. 

Q.  -At   all  events,   you   went  hack  through    the  only 
3oCourt  record  that  is  kept,  from  the   year  isr)2  to  18.54,  did 
you?     A.  -Yes,  sir. 

Q.  -And  you  found  no  trace  of  Aaron  Boskowitz  hav- 
ing het'u  naturalized,  according  to  that  record?  A.— I 
found  none. 

(}.  —  You  found  none?     A.     No.  sir. 

().  —  And  from  that,  you  would  assume  that  he  had  not 
heen  naturalized,  in  that  Court,  at  all  events?  A.— No, 
sir;  I  would  not. 

Q. — You  would  assume  it  would  show  nothing  ahout  it? 

40  A.— I  would  assume  there  was  no  record  of    it,    just  the 

same    as    there    was  no    record  of  any  other  person  in 

these  minutes  jjrevious  to  that  date.     I  found  no  record  of 

any  person  whatevt-r  previous  to  is.")."i. 

{).- TluMe  is,  then,  no  difference  from  the  year  1841  up 
to  18,"),");  you  found  no  record  of  anythiug  during  that 
time?     A.  -That  is  right. 

Q.    -And  there  is  no  difference  in  any  of  the  years  be- 
tween is41  and  is.").">,  no  more  than  there  is  hetween   1854 
ami  ls.").">?     None  of  them  show  the  record,  according  to 
Soyou?     A.  —  I  found  no  record. 

(,).— Do  you  know  anything  ahout  the  records  havii>g 
heen  taken  away?     A. — No,  sir. 

Q.  -It  is  suggested— I  do  not  know  who  suggested  it — 
that  somehody  took  them  away,  hut  you  know  nothing 
ah'iut  that?     A.  —  No,  sir.  nothing  at  all. 

Q. — Tiiere  is  nothing  to  show  it?     A.  — No,  sir. 

Q. — And  nothing  to  suggest  it,  is  there?     A.  No,  sir. 

t). — So  that  you  know  nothing  ahout  it  whatever?    A. — 
I  know  nothing  about  it.     1  only  know  what  I  found  in 
60  the  search. 

Q.--And  you  know  that  no  matter  how  far  you  go  back 
you  do  not  find  these  records  before  1855?  A.  -I  have  no 
lecords. 

Q.  — In  1855  they  began  to  keep  the  records  in  a 
systematic  manner,  and  prior  to  that  they  did  not?    A. — 


23 


(Charles  E.  Parish— Cross.) 

I  do  not  know  what  they  did  before.     I  liave  not  any 
records,  tliat  is  nil  I  can  say. 

Q — There  is  nothing  that  you  know  that  would  lead 
you  to  suppose  that  any  part  of  the  records  have  been 
stolen  <  1  have  a  certificate  of  yours  in  my  hand,  and  I  do 
not  know  whether  it  is  correct  or  not. 

Mr.  Dickinson:  -Siiow  me  your  certificate. 
10      Witness:  -I  do  not  know  whether  I  am  allowed  to  say 
anything  with  regard  to  that  matter. 

Mr.  Peters  to  Witness: — I  ask  you,  is  there  anything 
there  to  show  it? 

Witness:— 'J'I'ere  is  nothing  there  to  show  it. 

Mr.  Dickinson:  Will  you  show  nie  the  certificate  that 
you  ask  about  now? 

Mr.  Peters:— The  letter  is  !is  follows:  "In  re{)ly  to  yours 
of  June  ;{d  would  say,  I  believe  the  certificates  already 
sent  you  cover  the  matter  you  enquire  about  and  includes 
2othe  period  from  August,  lsr.4,  to  April,  1.^55.  Myself  and 
deputy  have  searched  the  records  upon  several  (iccasions, 
and  we  can  find  nothing  relative  to  the  final  admission  of 
Aaron  Poskowitz.  I  know  nothing  about  the  reconls  hav- 
ing been  lost  or  mislaid  at  any  period."  That  letter  was 
sent  on  the  nth  June,  1807,  by  Mr.  Parish  to  Mr.  Strauss, 
who  was  making  enquiries  into  this  matter. 

Cross-examination  by  Mr.  Peters  continued: 

y.   -That  is  correct,  I  presume?     A.— Yes.  it  was  cor- 

30  '■^^*- 

Q.— And  it  is  coriect?  A.  -I  have  no  personal  knowl- 
edge of  any  papers  having  been  lost  or  stolen.  1  only 
know  what  I  found  there. 

(,).— And  you  know  what  you  did  not  find  there?  A.— 
Yes,  and  what  I  did  find  also. 

Q.  There  was  kept  in  tiiis  County  of  Dane  what  is  called 
Court  minutes?  Was  that  afterwards  called  a  rule  book? 
A.— I  think  it  was  first  called  the  rule  book— no,  excuse 
me.  there  was  a  rule  book  kept  and  also  the  Court 
.Q  minutes.  The  Court  miiuites  were  kept  bv  the  Court 
themselves,  and  the  rule  book  was  a  book,  if  t  understand 
it  right,  kept  by  the  clerk  in  these  times.  It  is  different  to 
what  we  have  now. 

Q. -And  there  was  also  kept  an  order  book?  A.— Not 
at  that  time. 

Q.— Later  on?  A.— Later  on  the  order  book  took  the 
place  of  the  itile  book. 

Q.-Is   that  l)efore  iS.5.')?     A.  -I  cannot  state.     I  do  not 
know    when  the  change  was  made.  I  know  that  when  I 
jgWent  into  tlie  otiice  there  was  a  rule  book  kept. 

Q.  — Now,  this  certificate  that  Mr.  Dickinson  has  pro- 
duced here  was  signtnl  by  vou  on  the  li»th  January. 
KsttT?     A. -Yes.  sir. 

Q  — And  that  was  given  in  response  to  a  telegram,  was 
it?    A.— Not  to  me. 

Q.— Well,  to  some  other  person?  A.  I  did  it  at  the  re- 
quest of  a  gentleman  who  was  there. 

Q.— Some  i)erson  came  there  and  made  enquiries  and 
you  gave  the  certificate?    A.— Yes. 
60     Q  — And  these  certificates   are  all  dated   on  the  19th 
January,   18!>7?    A. — Y<jp. 

Q.— flow  long  did  it  take  you  to  make  the  seai-ches? 
A.  — I  made  very  little  search  at  that  time.  I  looked  for 
the  first  papers,  and  foimd  it,  and  my  deputy  did  the  rest 
of  the  searching  then. 

Q.~How  long  before  you  gave  this  certificate  were  you 


f 


b 


I     ]'' 


24 

(Charles  E.  Parish— Cross— Redirect.) 

actually  requested  to  make  that  search?    A.— I  was  not 
requested  to  make  any  search. 

Q.-  You  were  requested  to  get  this  certificate?  A.— I 
was  not  requested  to  give  that  certificate  only  after  the 
records  had  heeu  gone  over  hy  my  deputy  and  another 
gentleman. 

Q. — How  long  was  it  after  that  your  deputy  was  re- 
lo quested  to  go  over  the  papers?    A. — That  same  day. 

Q.— It  was  all  done  on  the  one  day<    A. — Yes,  sir. 

Q. — Do  you  know  Mineral  Points  A. — No,  sir;  I  never 
was  there. 

Q.  — Do  you  know  what  county  it  is  in?  A. — I  under- 
stand it  is  in  Iowa  Count/y. 

Q. — There  is  a  Circuit  Court  there,  is  there?  A.— In  the 
county:  yes,  sir. 

Q.— Does  it  sit  at  Mineral   Point?    A. — It  is  my  recollec- 
tion that  it  does. 
20     Q. — At  all  events,   it  sits  in   Iowa  County?    A. — Yes. 
sir. 

Q. — Then  there  is  a  court  there?     A. — Ye.«. 

Q.  -Do  you  know  how  long  that  court  has  been  in  ex- 
istence?   A. — No,  sir. 

Q.  — Has  it  been  there  as  long  as  the  Court  of  Dane 
County?     A.—  I  do  not  know. 

t^.  — It  has  been  there,  at  all  events,  since  1852?  A.— I 
dii  not  know. 


30 


Kedirect-examination  by  Mr.  Dickinson: 

y.—  Now,  Mr.  Parish,  what  were  the  papers  that  are 
kejjt  on  file  in  regard  to  second  citizenship  papers?  What 
are  they  made  up  of?  I  refer  to  those  that  you  do  find  in 
your  office?  A. — Well,  some  of  them  there  consist  of  two 
papers  put  together. 

Q. — What  are  they?  A. -One  is  the  fiist  paper  or  a 
copy  (it  the  first  j)aper,  and  attached  to  the  oath  of  alle- 
giaiicf  and  filed  there. 

Q. — The  oath  of  allegiance  is  the  second  oath?  A. — 
40  Yes,  sir. 

Q. — That  consists  of  the  second  paper?    A. — Yes,  sir. 

Q. — Wliatilo  you  call  the  court  minutes?  Are  there 
any  court  minutes  prior  to  18;);')  in  reference  to  citizen- 
ship papers}     A. — 1  found  none  whatever. 

Q. — None  whatever?     A. — No,  .?ir. 

t).— Tliey  never  were  kept  in  court  minutes  at  alh  A. 
-It  did  not  appear  that  they  vveie.  I  can  only  testify  us 
to  what  I  saw. 

t^. — So  far  as  your  evidence  goes,  the  only  record  of 
50 second  citizenship  pajiers  would  appear  in  those  files  and 
in  this  record?  A.  Yes,  sir;  with  an  inde.x  to  these  record 
books. 

y.— Wi'.en  did  you  first  make  the  examination  wlierein 
you  found  that  the  files  from  August,  1S,54,  were  not  in 
your  oftice;  what  date  did  you  make  that  search?  A.  — I 
Inade  that  search  on  the  10th  of  this  tnonth,  I  think  last 
Thursday. 

Q. — Then  prior  to  the    loth  of  this  nionth,  you  would 

not  know,  would  you,  if   there  appeared  on   the  files  of 

60 your  ofltice  all  the  records  of  citizenship  papers,  consisting 

of  the  oath  of  allegiance  and  tiio  copy  of  the  first  original 

citizenship  papers  down  to  1854?     A.— I  did  not  know. 

Q. — You  would  not  have  known  that?  A.— No,  sir;  I 
would  not. 

Q.— Because  your  attention  was  not  called  to  it?  A.— I 
never  had  occasion  to  examine  or  look  into  it. 


26 


-I  was  not 

ate?  A.- 1 
ly  after  the 
nd  another 

ity  was  re- 
eday. 
es,  sir. 
sir;  I  never 

i.—I  under- 

A.— In  the 

my  recollf>c- 

'<    A.— Yes. 

been  in  ex- 
jrt  of  Dane 
1852?     A.— I 


ns  that  are 
pers?  What 
on  do  find  in 
onsist  of  two 

;  paper  or  a 
oath  of  alle- 

oatli?    A.-- 

— Yes,  sir. 
'(     Are  there 
;e  to  citizen- 


esatallt  A. 
nly  testify  as 

ily  record  of 
u)so  files  and 
3  these  record 

ition  wlierein 
,  were  not  in 
?^aicliJ  A.— I 
I,  I  think  last 

h,  you  would 
n  the  files  of 
)rs,  consisting 
e  first  original 
not  know. 
A.— No,  sir;  I 


1  to  it? 

it. 


I 


(Charles  E.  i'arish— Redirect.) 

Q.  —Now,  some  one  applied  to  you  to  make  out  a  certi- 
ficate that  there  was  no  such  papers  on  file.  Have  you 
got  the  original  papers  that  he  prepared  for  you,  and 
which  yru  took  to  the  Judge?  A. — Yes,  sir;  they  did  not 
come  to  my  hand  at  first. 

Q.— Will  you  please  state  whether  any  one  came  to  you 
since  the  date  of  this  notice,  March  HO,  1897,  to  get  you  to 
lo  sign  a  certificate?    A. — Yes. 

Q. — Who  was  that  person  who  came  to  get  you  to  sign 
a  certificate,  which  I  now  hold  in  my  hand^  A.— I  believe 
it  was  a  man  by  the  name  of  Joseph  G.  Howard.  He  was 
reported  to  me  as  such. 

Q.  — Did  you  sign  the  certificate  as  he  prepared  it  for 
you?    A. — i  consulted  the  Judge. 

Q.— The  Judge  of  the  Court?    A.  -Yes,  sir. 

Q. — Did  you  give  the  certificate  in  the  form  that  he 
prepared  it  for  you?     A. — No,  sir. 
20     Q. — Have  you  the  form  in  which  he  prepared  and  asked 
you  to  sign  the  certificate?     A.  — Yes,  sir. 

Q— Is  this  it,  which  I  hold  in  my  hand?    A. — Yes,  sir. 

Q. — This  was  the  original  form  that  was  shown  to  you, 
and  which  you  were  requested  to  sign?    A. — Yes,  sir. 

Q. — You  declined  to  sign  that  without  omitting  the 
words  written  in  pencil?  A.— Yes,  sir;  I  objected  to  it, 
and  sent  it  to  the  Judge  who  was  at  Montenello.  The 
Judge  had  left  Montenello  before  it  reached  there  and 
come  back  to  Madison.  I  took  it  down  to  the  Judge's 
3ohouseand  consulted  the  Judge  and  asked  him  what  he 
thought,  and  he  told  me  that  under  the  circumstances  he 
would  advise  me  to  make  the  changes. 

Q.— To  strike  out  the  words  that  are  erased  in  pencil 
here?    A. — Yes,  sir. 

Mr.  Dickinson:— If  my  friends  do  not  object,  I  will  read 
the  certificate. 

Mr.  Peters:— I  certainly  do  not.  It  is  the  certificate  he 
has  sworn  to. 

Mr.   Dickinson: -He  would  not  sign  the  certificate  in 
40  full,  but  he  has  sworn  to  what  it  contanied  in  full.     I  will 
read  the  certificate  as  prepared  for  the  Clerk,  before  his 
consultation  with  the  Judge. 

"State  of  Wisconsin,  ) 
Dane  County,        ) 

In  the  Circuit  Court  for  Dane  County. 

I,  C.  E.  Parish,  Clerk  of  the  Circuit  Court  in  and  for 
Dane  County,  Wisconsin,  duly  elected  and  qualified  and 
acting  as  such,  do  liereby  certify  that  I  am  the  custodian 
50  of  all  of  the  records  and  files  of  said  Circuit  Court,  embrac- 
ing the  records  and  files  of  naturalization  of  aliens  in  said 
Court. 

I  do  further  certify  that  I  have  made  diligent  search 
and  examined  ail  records  and  files  in  which  the  final  ad- 
mission to  citizenship  of  aliens  would  appear  and  find  that 
such  records  and  files  do  not  show  that  Aaron  Boskowitz 
was  ever  admitted  as  a  citizen  of  the  United  States  of  said 
Court. 

And  I  do  hereby  further  certify  that   the  records  and 

•60  files  in  which  final  admissions  to  citizenship  would  be 

entered  in  said  Court  are  complete  and   contain  all  the 

records  of  admissions  to  citizenship  of  aliens  from  the 

year  1850  until  the  present  date. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  said  Court,  at  the  City  of  Madison,  in 
said  County,  this  10th  day  of  June,  A.  D.  1897." 


ss. : 


/^^9KM* 


L>»'. 


:'   t 


20 


(Lothrop  S.  Hodges-Direct.) 

Mr.  Dickinson:— These  words  written  in  pencil  "  would 
be  entered "  and  "are  complete  and"  were  stricken  out? 
A.— Yes. 

Q.— And  yo\i  substituted  for  the  word  "would"  the 
word  "are?"    A. — Yes. 

Mr.  Dickinson:— I  will  now  read  the  certificate  as  you 
signed  it. 
10  "  And  I  do  liereby  further  certify  that  the  records  and 
files  in  which  final  admissions  to  citizenship  are  entered 
in  said  Court  contain  all  the  records  of  admissions  to 
citizenship  of  aliens  from  the  year  1S50  until  the  present 
date." 

You  signed  that  certificate?    A. — Yes. 

Q.  — And  you  did  not  sign  the  certificate  in  the  original 
foim  as  he  presented  it  to  you?    A. — No. 

Lothrop  S.  Hodges  was  called  as  a  witness  on  the  part 
of  the  United  States,  and  duly  sworn:  — 

Direct-examination  by  Mr.  Dickinson: 

Q.— I  think  you  area  practicing  counsellorat  law?  A. — 
Yes,  sir. 

Q.— In  the  Federal  and  State  Courts  of  the  State  of 
Illinois,  and  in  the  United  States  Supreme  Court?  A. — 
Yes. 

(^). — Will  yo«j  please  state  where  you  reside?  A. — 
Chicajio,  Illinois. 

Q. — How  long  have  you  lived  there?    A. — I  went  there 
30  in  isOit,  and  have  been  there  ever  since. 

(^.  —  Practicing  law?     A. — Yes,  sir. 

Q  — I  think  some  time  in  January  you  got  a  dispatch 
from  me,  from  Victoria,  asking  you  to  proceed  to  Wis- 
consin?   A. — Yes,  sir. 

Q. — Did  you,  in  the  course  of  your  proceedings,  go  to 
the  Clerk's  ofiice  in  the  County  of  Dane?    A. — Yes,  sir. 

Q. — And  you,  I  tiiink,  procured  this  certificate  from  the 
County  Clerk  tliat  has  been  put  in  evidence  as  to  the  first 
citizenship   of   Aaron    Boskowitz?     A. — I   obtained  from 
40  him  at  that  time  a  certificate— a  certified  copy  of  Bosko- 
witz' intention  to  declare. 

y. — And  the  declaiation?     A. — Yes,  sir. 

Q.— And  you  mailed  it  to  me^  A.  Yes,  I  mailed  it  to 
you  at  Victoria. 

Q. — From  Chicago?    A. — Yes,  from  Chicago. 

Q. — Now,  did  you  make  an  examination  as  to  the 
citizenship  papei-s  in  the  vault  room  of  the  Clerk's  office  in 
the  County  of  Dane?    A. — Yes,  sir. 

Q.— About  what  date?    A. — li)th  January,  1897. 

Q.— Will  you  please  state  whether  you  then  found  any 
'    files  or  lecords  of  second  citizenship  papers  for  the  Circuit 
Court  of  the  Countv  of  Dane,    Wisconsin?    A.--I  found 
both. 

Q. — First  and  second  citizenship  papers?  A.— I  found 
both  files  and  records,  that  is  my  answer. 

Q.— This  is  as  to  second  citizenship  papers.  Confining 
yourself  to  that,  what  did  you  find  in  that  office  of  files  of 
second  citizenship  papers  at  that  time,  on  the  li)th  Jan- 
uary, 1897?  A. — I  found  a  package  of  papers  which  pur- 
j,  ported  to  be  tiie  applications  for  certificates  for  naturaliza- 
tion from  1841  down  to  the  spring  of  185i. 

Q.— Of  second  papers?    A. — Yes,  sir. 

y.— Where  were  they?    A. — They  were  in  this  vault. 

Q. — Did  you  go  through  them!  A.— I  went  through 
them  to  this  extent,  either  I  or  the  Clerk  opened  up  the 
package.    It  was  a  package  of  paper  about  six  inches  thick. 


27 


liled  it  to 


(Lothrop  S.  Hodges— Direct.) 

It  was  done  up  in  wrapper  colored  paper,  and  on  opening 
the  wrapper  and  looking  at  the  paper  I  found  that  there 
wasiiiside  of  it  the  certificates  for  each  year. 

Q.— From  what  year?  A.— From  184J  down  to  the 
spring  of  ISiH. 

The  Commissioner  on  the  part  of  the  United  States: — 
10     Do  you  mean    the  certificates  or  applications?    A.  — i 
mean  the  applications  for  second  papers. 

The  Commissioner  on  the  part  of  the  United  States:— 
Applications  endoi-sed  by  the  Judge?    With  the  Judge's 
initials  on  them?     A. — I  did  not  notice  that. 

The  Commissioner  on  the  part  of  the  United  States:— 
Were  the  papers  endorsed  by  the  Judge?     A. — On  the 

inside,  yes.  sir.     Let  me  be  sure  my  answer  does  not  cover 

more  tiian  I  intend.     Each  paper,  so  far  as  I  could  state, 
-o  was  not  endorsed  by  the  Clerk,  but  on  each  paper  was  an 

endorsement  of  the  name  of  the  applicant  and  the  date. 

Whether  the  Clerk's  name  was  on  it  or  not  I  could  not  say. 

Direct-examination  by  Mr.  Dickinson  continued:  — 

Q.  — Was  the  Judge's  endorsement  on  it?  A.— I  could 
not  say. 

Q. — What  did  these  papers  inside  consist  of?  What  were 
they?  A. — They  were  papers  similar  to  those  in  tiie  book 
there.  They  were  similar  to  those  papers  that  are  called 
^o applications  for  naturalization  papers. 

Q. — And  were  similar  in  form  to  those  in  the  book  called 
Book  Nmnber  One,  a  copy  of  which  has  been  read  into 
the  miiuites?    A. — Ves,  sir. 

Q. —'i'be  papers  were  similar?  A — The  papers  I  sought 
for  and  found  in  this  package  were  what  we  call  the 
second  api)lication,  by  the  party  desiiing  to  be  natiual- 
ized,  and  upon  which  be  obtains  iiis  final  certificate. 

The  Commissioner  on  the  part  of  Her  Majestj':  — 
Then  they  w  ould  not  correspond  with  the  certificates  in 
4°  this  book. 

Direct-examination  by  Mr.  Dickinson  continued: — 

Q.  -  Did  the  papers,  or  did  they  not,  have  attached  to 
them  in  the.se  files,  a  certificate  or  copy  of  certificate  like 
that  in  that  book?    A.— No,  sir. 

Q-  Then  what  do  the  papers  in  those  files  consist  of? 
A. — They  consisted  of  api)lications  by  the  parties  wishing 
to  have  their  final  certificate. 

Q.— Nothing  else?    There  was  not  a  copy  of  the  original 
50oatli,  or  anytliing  of  that  sort?    A. — The  oath  was  em- 
bodied in  that  paper. 

(^.— You  found  them  regularly  from  1841  down  to  the 
spring  of  1854,  and  did  you  find  any  .^uch  tiles  of  lec- 
ords  for  any  parties  subsequent  to  the  s|)ring  of  IS.H? 
A.— I  found  nothing  between  April,  1854.  That  was  the 
last  certificate.  That  is,  in  the  spring  of  bs.H.  There 
was  no  further  certificate.  The  next  record  I  was  able  to 
find  was  this  book  conuuencing  on  April  t>,  1855. 

Q. — You  have  no  interest  whatever  in  this  matter,  ex- 
(bcept  to  make  this  examination  for  me  at  the  time?    A.— I 
have  not.     I  have  no  interest  at  all.     I  do  not  even  know 
what  the  matter  is  about. 

Q.— You  are  sure  of  the  date  you  made  the  search,  that 
it  was  the  IDth  January,  18!t7?  A.— On  the  l!>th  January, 
1897. 

(j. -Then,  with  these  books  and  the  files  of  papers  you 


30 


el 


(Lotlirop  S.  Hodgt's—Diioct— Cross— Redirect.) 

found  tlie  record  of  naturalization  and  second  papers  com 
.  plete   fro(n    \H4l   down,   except  for  the  year  1H54?    A.— I 
cannot  say  just  that.  Mr.  Dickinson,  but  I  can  say  this:  I 
can  say  tilat  these  tiles  coveied  each  year.    There  were  no 
years  in   wliich   there   were   no  certificates,  except  from 
"lS.'i4  to  IS.V). 
l^.— There   were  ceitificates   for  eadi   ye.u'  from   1841 
lodowM  to  the  day  you  examined  them?     A. — Yes.  sir. 

Cross-examination  by  Mr.  Peters:  — 

Q. — There  were  certificates  in  1S.">4.  My  honorable 
friend's  notice  states  that  there  were  no  certificates  fiom 
August.  ls:)4,  and  now  you  state  there  were  no  certificates 
from  April.  IS.H.  How  do  you  know  it  is  the  month  of 
ApriU     A.— Tiiat  covers  the  time  down  to  August. 

Q. — It  covers  it  down  to  August?  A. — Yes,  sii'.  because 
there  were  none  between  April.  IS,")4,  and  April.  IHS.'i. 
^pThere  was  a  hiatus  between  those  dates. 

Q. — The  notice  I  have  from  Mr.  Dickinson  is  that  these 
papers  were  to  be  found  do\»'itothe  month  of  August, 
18.'>4.  and  now  you  say  that  yen  found  none  from  April, 
isr)4.  Are  you  sure  it  is  April,  because  I  ])resume  that 
Mr.  Dickinson  n)ade  this  motion  in  ct)nsequence  of  the  in- 
formation you  gave  him?  You  say  there  were  no  records 
after  the  month  of  April,  1S.")4?    A.— I  think  that  is  true. 

Q.  -That  is  correct?     A.  — I  think  so. 

y. — Will  yon  swear  to  that?  I  want  to  see  whether  you 
are  positi.v  or  not.  Did  you  make  anj'  memorandum? 
A. —I  did  at  the  time. 

Q. — And  that  memorandum  you  sent  to  Mr.  Dickinson? 
A.  — Yes.  sir. 

Q. — You  have  not  looked  at  it  since?     A.— No. 

Q. — And  if  Mr.  Dickinson  has  put  that  date  in  his  notice 
he  is  piobably  correct  and  you  are  incorrect?  A. — I  do 
not  know  as  to  that. 

y.  Will  you  swear  there  were  no  documents  after 
April,  1M.'>4?     A. -I  will  not  swear  positivelj'  as  to  that. 

(\  VVhtMi  did  you  send  the  certificate  of  the  19th 
Jamiary,  lh!»7.  enclosing  that  notice,  to  Mr.  Dickinson? 
A.  —  1  think  it  was  the  20th  January,  possibly,  or  the 
21st. 

i). — And  you  send  it  to  him  in  the  ordinary  way  by 
mail,  addressed  to  Mr.  Dickinson?     A.     Yes.  at  Victoria. 

Redirect  examination  by  Mr.  Dickinson: 

Q. — You  are  quite  positive  there  was  a  hiatus  there 
from  August  or  April.  ls,")4?  A.  — Yes.  I  may  state  that 
the  certificatt>s  of  naturalization  run  for  the  term  of 
50 Court,  and  that  term  is  April.  You  will  not  find  any 
term  of  Court  between  April  and  the  fall,  and  you  will 
not  find  naturalization  papers  from  then. 

Mr.  Dickinson:— I  call  the  Commissioners' attention  to 
the  fact  that  the  two  years  which  the  naturalization 
papers  of  Boskowitz  took  to  run  would  expire  in  August, 
so  that  no  legal  natuialization  could  have  oc;curred  before 
Augustj  is,'')4. 

I  offer  a  certified  copy  of  the  i)oll  list  in  evidence. 

Mr.  Peters: — My  learned  friend  tenders  in  evidence  the 
'^election  list  purporting  to  be  the  poll  list  and  tally  list 
for  the  Fiist  Ward  of  the  City  of  Mineral  Point,  Wiscon- 
sin, tor  the  municipal  election  held  on  the  (ith  April,  1858. 
I  do  not  think  that  there  is  any  necessity  that  the  whole 
list  should  go  in  to  encumber  the  record.  'I'here  appears 
to  he  on  that  list,  and  I  am  perfectly  willing  to  admit  it, 
the  name  of  one  A.  Boskowitz.     Who  he  is  I  do  not 


40 


-mjl 


29 


(Discussion.) 

know.  But  one  A.  Boskovvitz's  name  appeals  on  that 
list  as  having  polled  a  vote  on  the  Cth  April,  1858.  The 
name  is  just  A.  Boskowitz,  and  it  miKht  he  Arthur  or 
Alexander,  or  anyhody  else,  for  all  I  know. 

The  Commissioner  on  the  part  of  the  United  States:— 
It  says  that  A.  Boskowitz  polled  a  vote. 

Mr.  Dickinson:— He  voted. 
'°     Mr.  J'eters:— Although   most  of    the  other  names  are 
given  in  full,  his  is  not. 

Mr.  Dickiiison:--lt  appears  by  Joseph  Boskowitz's  testi- 
monv  tiiat  ho  removed  to  Mineial  Point  and  lived  there 
at  this  period. 

Mr.  Peters:— I  do  not  know  whetlior  tliat  is  in  the  testi- 
mony or  not. 

Mr.  Dickinson:— I  wisli  to  tender  in  evidence  the  poll 
list  of  the  ;3d  May,  18.")8,  of  an  election  held  in  the  City  of 
Minerall\)iiit. 

Mr.  Peters:— Of  this  we  have  had  no  notice  whatever. 
This  poll  list  purports  to  show  that  J.  Boskowitz— I  do 
not  know  who  he  is — voted. 

Mr.  Dickinson:— It  is  in  order  to  show  that  J.  Bos- 
kowitz, A.  Boskowitz  and  Ignatz  Boskowitz  voted  in  that 
election. 

Mr.  Peters:— There  is  no  notice  whatevi-r  given  that  this 
would  be  put  in,  and  tlie  linut  is  made  that  sucii  evidence 
should  only  be  i»ut  in  as  would  show  that  A.  Boskowitz 
voted. 
^  I  would  like  to  state  to  the  Commissioners  that  on  this 
question  we  will,  at  the  proper  time,  biing  to  the  notice 
of  the  Commissioners,  the  Treaty  between  Bavaria  and 
the  United  States  dated  1S&2. 

Mr.  Dickinson:— We  wish  to  put  in  the  Revised  Statutes 
of  the  United  States,  Chapter  on  naturalization. 

Mr.  Peters:  — They  are  all  sujiposed  to  he  in. 

Mr.  Dickinson:  -i  wish  to  put  it  in,  to  mention  it  in  ref- 
erence to  this  particular  matter. 

Do  I  undei^tivnd  the  Court  rules  out  the  poll  list  of  May 
"^^S,   is.'is,  on    which  it  is  pioposed  to  show  that  the  three 
Boskowitz's  voted ^ 

The  Commissioner  on  the  part  of  the  United  States:— I 
do  not  thiid<  that  anything  we  have  ruled  v.-ould  exclude 
the  second  poll  list  in  wliicii  the  name  of  A.  Boskowitz, 
or  .\aron  Boskowitx.  appears. 

.Ml'.  Peters:-  I  think  they  ouglit  to  be  confined  to  that. 
Th(!  .second  poll  list  does  not  help  them  any  more  than  the 
first.  It  merely  n't'ers  to  one  A.  Boskowitz. 
50  Mr.  l)i(  kinson:— It  was  in  the  tally  list  we  put  in  that 
Ignatz  Boscowitz  voted,  ai\d  the  tally  list  of  .\ray  :>,  poll 
list  of  May  lid,  is  ottered  to  show  that  J.  Boskowitz 
voted. 

The  Coninii.'sioner  on  the  part  of  the  L'nited  States: — 
Do  yon  intend  to  wad  in  the  notes  iliat  Ignatz  Bosko- 
witz voted? 

Mr.  Dickinson;— By  the  poll  list  of  April  (i,  I8.')S,  Ignatz 
Boskowitz  voted,  as  well  as  A.  Boskowitz. 

Mr.  Peters:— My  learned  friend  brings  evidence  now  to 
60 show  that  A.  lioskowitz  ami  one  of  his  sons,  Ignatz,  vottd 
in  ;i  certain  election,  and  he  asks  you  to  draw  from  that 
the  conclusion  that  they  were  both  AnuMican  citizens,  and 
that  Ignatz  voted  because  his  father  was  naturalized. 
Now,  i  have  Ignatz  Boskowitz's  linal  paiu'is,  taken  out  as 
late  as  the  year  isds,  and  they  will  show  that  the  assump- 
tion which  niy  learned  friend  attempts  to  draw  caiuiot  he 


T'f 


30 


(Discussion.) 

drawn  at  all.  These  papers  are  issued  in  the  State  of  New 
York.  Thi'y  contain  first  the  original  affidavit,  dated  12th 
Octohei',  18(')8,  setting  forth  liis  responsihility  and  his  de- 
sire to  become  naturalized,  and  then  there  is  the  affidavit 
of  certain  others,  and  the  oath  of  allegiance.  I  tender  the 
papers  to  be  filed,  and  I  simply  tender  them  to  show  that 
the  assumption  that  my  learned  friend  attempts  to  draw 

lofrom  these  poll  lists  Is  altogether  without  foundation. 
This,  I  may  say,  is  all  we  have  to  tender  with  regard  to 
this  point. 

The  Commissioner  on  the  part  of  the  United  States: — 
With  regard  to  the  adjournment  of  the  Commission  the 
Commissioners  are  entirely  in  the  hands  of  the  Counsel  as 
to  the  place  and  date  that  the  Commission  shall  be  ad- 
journed to.     Have  Counsel  any  suggestions  to  make? 

At  the  suggestion  ol  Counsel,  the  Commissioners  ordered 
that  the  Conimis.sion  should  adjourn  to  meet  at  Halifax, 

20  Nova  Scotia,  on  tht  iJoth  of  August  next,  at  eleven  o'clock 
in  the  forenoon,  at  the  Provincial  Buildings. 
The  Commissioners  then  rose. 


t9700QI 


e  of  New 
^ted  12th 
tl  his  de- 
affidavit 
ender  the 
how  that 

I  to  draw 
jiidation. 
regard  to 

States: — 
ission  the 
!ounsel  as 

II  be  ad- 
lake? 

rs  ordered 
t  Hahfax, 
en  o'clock 


Oommissioners  under  the  Convention  of  February  8th, 

1896,  between  Great  Britain  and  the  United 

States  of  America. 


Legislative  Council  Clmmber  of  the  Provincial  Building, 
At  Halifax,  N.  S.,  August  2oth,  1897 

20       At  1 1  A.  M.  the  Commiasioners  took  their  seats. 

The  CoinmisHioner  on  tlie  part  of  Her  Majesty : — Mr.  Thomas 
R.  E.  Mclnne.s,  who  was  appointed  one  of  the  chief  clerks  at  tiic 
session  at  Victoria,  is  not  present  and  Mr.  W.  B.  Wallace,  of 
Halifax,  is  appointed  in  his  place. 

We  have  met  here  for  the  purpose  of  hearing  the  oral  argu- 
ments of  counsel  and  we  should  he  glad  to  hear  from  counsel  as 
to  the  hours  that  will  be  convenient  for  them. 

Mr.  Peters : — Counsel  have  talked  over  the  matter  of  the 
30  length  of  the  sittings,  and  we  have  agreed  (if  it  will  be  con- 
venient to  your  honors)  that  a  session  of  four  hours  each  day 
will  probably  be  sufficient.  This,  of  course,  is  subject  to  the 
approval  of  your  Honors.  We  think  that  a  se.ssion  from  11  to 
1  and  from  2.30  to  4.30  would  be  the  hours  that  would  suit 
counsel,  if  it  would  suit  your  Honors. 

Tiie  Commissioner  on  the  part  of  the  United  S  ites : — It  may 
be  undei'stood  that  the  hours  named  will  be  the  hours  for  the 
sitting  of  the  Commission. 

We  desire  to  say  to  counsel  that  so  far  as  the  number  of  coun- 

40  sel  to  be  iieard  is  concerned  we  will  leave  that  to  counsel.    We  are 

now  prepared  to  hear  arguments  if  counsel  are  ready  to  go  on. 

Mr.  Peters ; — I  desire  to  say  that  some  of  the  counsel  upon  both 
sides  did  not  arrive  here  untilyesterday  evening-some  of  thecoun- 
sel  for  Great  Britain  and  some  of  the  counsel  for  the  United  .States. 
In  ])rcsentiiig  the  argument  on  behalf  of  Great  Britain  we  pro- 
pose to  divide  the  work  as  far  as  possible.  We  thinK  to  prevent 
any  unnecessary  repetition,  and  as  there  is  a  good  deal  of  mat- 
ter to  be  gone  over,  we  think  it  would  be  more  convenient  that 
each  counsel  should  take  up  some  especial  part  and  as  far  as 
50  possible  conclude  that  portion  of  the  argument.  In  that  way 
we  hope  to  shorten  the  matter.  But  from  the  fact  that  the  coun- 
sel on  neither  side  have  all  been  together  lately,  we  think  on  tliis 
side  that  if  the  Commission  will  allow  us  to  begin  our  argument 
next  Friday  morning  it  would  shorten  it  very  considerably. 
\\n  have  certain  matters  to  arrange  with  regard  to  the  actual 
part  that  each  counsel  shall  take  up,  and  if  we  have  an  adjourn- 
ment, although  we  do  not  wish  to  ask  for  anything  out  of  the 
way,  it  will  give  us  an  opportunity  to  so  divide  up  the  matter  as 
to  shorten  the  argument  very  considerably. 
60  Mr.  Dickinson : — As  to  the  number  of  counsel,  of  course  my 
friends  representing  Her  Majesty  must  be  their  own  judges  as 
to  their  presentation  of  the  case  on  the  part  of  Great  Britain.  We 
cannot  in  advance  make  any  statement  as  to  the  number  of 
counsel  or  the  division  of  the  work  until  we  have  heard  from  our 


(DisciiHHion.) 


IcuriuMl  frit'iKls.  Wc  must  priwrvi'  ai)  attitudfof  Ik'Iiijj  "at  rcHt, 
but  ready,"  until  we  hear  fi'oin  tlii'iii.  As  to  the  time  oi'  ()p('iiiii;f 
tilt'  ar;iuiiu'iit,  we  would  liavc  prclVrrcd  to  ^o  on  sonicwliat 
oarlirr,  l)ut  as  our  frit'iids  have  made  this  statcnu-iit  and  liavc 
never  in  tlu'  eovu'se  of  aryninent  asked  anytldnj;  unreasonalile 
]Q  for  tlieir  aeconiniodation  we  have  no  ohjection  to  Hxinj;  the  tiuns 
ns  asked  for  by  them. 

The  Connnissioiier  on  tlu-  part  of  Her  Majesty.:  —  i'lohahly  in 
the  reply  it  woidd  he  a<lvisahle  that  there  should  he  hut  ont> 
counsel  heard  however  many  we  may  hear  in  tiie  openin;,'. 

Mr.  Dickin.son  : — We  had  already  ujjreed  that  tlio  reply  should 
lie  oontineil  to  one  counsel. 

The  Commissioner  on  the  part  of  Her  Majesty: — The  order 
made  in  reijard  to  the  appointment  of  chief  elei-k  will  stand  for 
the  present,  hut  it  may  he  subject  to  a  slij^ht  amendment. 


20 


30 


Ah  U)  the  sittinj;s:  it  is  understood  that  the  C'onnuission  will 
sit  upon  Saturdays  as  well  as  other  days  in  the  week. 

The  Commissioner  on  the  part  of  the  I'niteil  States: — It  was 
not  intended  that  counsel  shoidd  inform  us  how  many  counsel 
should  l)e  hear<l  upon  each  side.  Counsel  will  arrange  that 
aniont;  themselves. 

Conunissioner  on  the  ])art  of  Her  Majesty :— In  makiufj  the 
announcement  of  the  appointment  of  chief  clerk  it  has  occurred 
to  ws  that  perhaps  we  had  not  sutliciently  considered  the  matter 
an<l  accordinijly  we  will  make  an  alteration.  Mr.  Thomas  I'. 
Owens,  who  formerly  acted  as  second  clerk,  will  he  made  chief 
clerk,  and  Mr.  W,  H.  Wallace  will  he  .secoml  clerk  in  Mr.  Owens' 
place.  Mr.  Wallace  has  cordially  a8.sented  to  this  as  heinjj  (|uitc 
proper  under  the  circumstances. 

Mr.  Dickin.son  : — In  helialf  of  the  Cnite<l  States  the  counsel 
desii'e  to  express  their  obligation  to  the  officials  of  this  (iovern- 
ment  for  the  courtesies  which  we  have  received  and  for  the  pro- 
vision made  for  the  accomuHxlation  of  counsel  iti  this  building. 
Aside  from  that,  and  over  and  above  that,  the  counsel  for  the 
Uniteil  States  highly  appreciate  the  connnodious  ipiarters  pro- 
An   vided  for  the  sitting  of  the  Counnission. 

Mr.  Peters: — I  may  say  on  behalf  of  the  counsel  for  Great 
Britain  that  we  take  great  plea.sure  in  joining  in  the  statement 
made  l)y  Mr.  Dickin.son. 

Conuni.ssioner  on  the  part  of  the  United  States- -I  will  say 
in  behalf  of  Judge  King  and  myself  that  we  appreciate  the 
kindness  of  the  Provincial  (iovernment.  It  is,  of  course,  no 
more  than  we  expected  from  what  we  know  of  the  spirit  of  hos- 
pitalit}'  that  prevails  in  this  Province,  and  we  will  at  the  proper 
time  enter  a  suitable  oriler  to  be  communicated  to  the  Pro- 
vincial Government. 

If  there  is  nothing  further  we  will  rise  until  11  o'clock  on 
Friday  morning. 

At  11.30  a.  m.  the  Commi.ssionors  rose. 


50 


Commission  Under  the  Convention  of  February   8th 

1896,  between  Great  Britain  and  the  United 

States  of  America 


1  o'clock  on 


LufjiHlative  Council  Chunibor  of  tlie  Provincial  Buildinjj, 

At  Halifax,  N.  S.,  Auj^ust  27th,  18!»7. 

20       At  11  A.  M.  the  ConiniisHiont'iH  took  tlu'ir  .seats. 

The  ConiniisHioniu-  on  the  part  of  the  United  States.: — The 
ConunisHioners  iie«ir(!  to  put  on  reconi  an  expreHsion  of  their 
gratification  with  the  facilities  furnished  them  by  the  Province 
of  Nova  Scotia  for  their  sessions  at  the  City  of  Halifax,  and 
direct  the  Secretary  to  coinnuniicute  this  expression  to  the 
Lieutenant-Ciovernor  of  the  i'rovince. 

-Mr.  Peters: — If  your  Honors  plea.se,  it  now  becouies  my  duty 
to  follow  the  printed  ari;ument  which  has  already  been  deliv- 
30  cred  on  behalf  of  Great  Britain  with  an  oral  argument  In  this 
we  propose  to  follow  as  nearly  lus  po.ssible  the  line  that  luus  al- 
ready been  taken.  It  will  also  be  nece,s.sary  for  me  and  for  my 
a-ssociate  coun.sel  to  contrast  the  diH'erent  jiositions  taken  on 
behalf  of  Great  Britain  with  the  jjositions  taken  by  coun.sel  for 
the  United  States,  so  that  by  comparing  one  with  the  other  your 
Honors  may  be  in  a  position  to  judge  whether  the  contention  on 
the  one  or  the  other  side  is  correct.  In  our  printed  arguments 
we  divi<le  the  matter  into  certain  heads,  these  I  propose  as  far 
as  posuible  to  follow.  It  seems  almo.st  strange  that  we  should 
40  be  here  in  the  year  18!(7,  in  the  month  of  August,  to  tinally  hear 
and  determine  a  case  which  arase  in  the  month  of  August,  ex- 
aetl}'  eleven  years  ago.  The  fact  that  the  case  did  arise  so  long 
ago,  as  your  Honors  are  aware,  has  had  the  etlect  of  lengthening 
the  in(|uiry  and  of  making  it  more  difficult  for  the  claimants  to 
prove  their  claims.  Evidence  which  might  have  been  obtained 
easily  a  short  time  after  the  transactions  took  place,  has  been 
very  much  more  difficult  to  procui'e. 

This  matter  arose,  as  you  are  very  well  aware,  in  1886.  We 
have  in  the  introductory  chapter  of  our  argument  followed  the 
50  transaction  from  the  beginning  up  to  the  making  of  the  treaty,  the 
making  of  the  main  treaty  I  should  call  it,  setting  forword  the 
main  features  of  the  diplomatic  correspondence  from  the  be- 
ginning of  the  transaction  up  to  that  time,  and  from  that 
point  we  have  followed  it  to  the  making  of  the  present 
convention.  It  is  alleged  by  my  learned  friends  on  the 
other  side  that  we  have  nothing  to  do  with  the  diplomatic 
correspondence ;  that  we  have  nothing  to  do  with  anything 
except  the  treaty  of  1893,  the  award  made  under  that 
treaty,  and  the  convention  under  which  we  are  now  sitting. 
60  We  join  issue  with  them  directly  upon  that  proposition.  The 
manner  in  which  the  dispute  has  been  conducted  by  the  U.  S. 
Government  has,  we  contend,  a  material  bearing  on  the  question 
aa  to  the  damages  that  should  be  assessed  in  this  case,  and  there- 
fore we  thought  it  necessary  to  go  into  this  diplomatic  corres- 


ffm 


(Mr,  IVtorH'  Arj;uinfiit.) 

IMiiidi'iict'.     I    j)ro|»<)N<'  now   to  hIiow  to  your  HoiiorN   from  the 
listory  of  tlic  cuMf,    why  we  (Icciii  it  iimii-riiil  that    this  iimtttT 
Hhoiiii]  ht>  lool\c(i  into. 

Uj»  to  188(1  ( 'iiiiiiiliiui  Mciih'rHto  ii  cfrtinn  oxti'iit  im<l  ('iinmlinii 
whiiicrH  iind  ('iiniKliiin  tishfrnirn  cnjfa^jcfl  in  ditfcifnt  iincH  of 
tiNhiii;;  husincsM  hml  ;;()iic  to  Hrin-intj  Si'ii  without  any  intcr- 
10  ruption.  No  (|U('.stion  wns  raisfij  no  pcrnon  Haiij  nay  to  thrni. 
They  wfiit  tiicrt'  as  ficeiy  hh  thi-y  wi'ut  to  any  other  uait  of  the 
ocean  to  follow  tin'ir  trade.  In  188(!,aH  we  allej;e,  anil  as  we  say 
the  forreHjM)nden('e  pi'oveH,  foi'  the  first  time,  without  warning, 
witliout  inforniini,' the  Canadian  tishermen  that  there  was  to  bo 
any  interference,  without  any  notice,  the  I'nited  States  took  tho 
practical  step  of  seizing  three  of  our  veMHeln.  We  hr  \i;  that  to 
the  notice  of  the  CommisHioners  at  the  «)UtHet  for  this  purpose: 
if  the  United  States  had  a  claim  which  they  intended  to  put 
forward  that  they  had  any  exclusive  rij^hts  in  Behrin;;  Sea,  of 
20  course  they  were  free  to  put  that  claim  forward  in  such  a  man- 
ner iw  they  saw  tit,  hut  wiien  they,  as  it  were,  put  the  execution 
before  the  judjrment,  when  they  took  the  stern  step  of  seizing 
our  vessels  without  any  notice,  without  makinjj  the  claim  public 
HO  that  persons  mij{ht  govern  themselves  accordinjjly,  we  say  that 
is  a  matter  which  should  be  taken  into  consideration  by  tho 
Commissioners,  and  therefore  wo  brinjj  to  the  notice  of  tho 
C'onnnission  the  diplomatic  correspondence  as  found  by  the  find- 
ings of  the  Paris  'I'ribunial.  These  .seizures  were  made  under 
special  particular  instructions  given  by  the  proper  authority  of 
30  the  United  States  Government  to  the  commanders  of  the  dltf'er- 
eiit  reveinu!  cutters,  and  thest'  instructions  whiMi  they  are  looked 
into  will  appear  to  have  been  instructions  to  .seize  these  vessels 
under  the  local  statute  which  stfitetl  that  it  would  bo  illegal  for 
any  person  to  hunt  fur  seal  in  the  waters  of  Alaska.  So  that 
in  the  instructiims  at  the  very  outset  it  will  appear  that  the 
United  States   government  was  not  seizing  vessels  for  the  piu'- 

foso  of  taking  the  vessels,  but  for  the  purpose  of  preventing  tho 
unting  of  fur    .seals.      That    was  their    intention    from    tho 
outstart.     That  was  what  took   place  in   lK8(i.       We  claim  you 

40  have  the  right  to  take    the  fact  of  want  of  notice  and  warning  ■ 
into   consi<leration,    when  you    come    to   the    consideration  of 
what  amount  of  damages  we  are  entitled  to. 

Then'  what  follcjws  :"  A  long  diploni.itic  corronpondence  takes 
place.  We  allege  that  there  has  been  a  gr«at  deal  of  flolay,  anil  that 
that  delay  has  prejudiced  our  case  and  that  should  also  be  taken 
into  consideration  on  the  ipiestion  of  damages.  How  has  that  de- 
lay been  caused:*  The  answer  is  given,  that  it  has  been  caused  by  a 
long  diplomatic  correspondence,  by  certain  .steps  taken  between  tho 
two  nations  to  settle  the  alleged  rights  of  one  of  them  in  Hehring 

oO  Sea.  This  point  stands  out  all  through  the  transaction  that  tho 
delay  took  place  in  the  discussion  of  a  very  material  point  upon 
which  the  United  States  was  found  to  bo  in  error.  The  whole 
delay  has  taken  place  in  arguing  out  a  proposition  which  the 
United  States  claimed  to  be  law,— a  proposition  of  international 
law,  and  which  has  been  held  not  to  be  law.  So  that  the  whole 
delay  on  this  discussion  luus  occurred  on  account  of  the  United 
States  pressing  a  claim  which  they  !iow  admit  has  been 
proved  to  be  incorrect  from  the  beginning.  In  188C  three  ves- 
.sels  were  aeized  and  two  alleged  to  have  been  warned.     In  1887 

t»0  what  took  place  ?  No  sooner  were  tho  seizures  made  than  Greiit 
Britain  began,  through  her  proper  otficials,  through  her  Am- 
bassador, to  make  protests  aganist  the  seizure  and  to  make 
protests  against  the  claim  put  forward  by  the  United 
States.      During  the   course    oi    those   protests,   as    early   as 


i 


l-ee  ves- 

lln  1887 

Ln  (Jrejit 

|er  Ain- 

make 

Uiiitetl 

lily   as 


(Mr.  PeterH'  Argument.) 

188tt,  (Ircut  Britain  niakes  i  inquiry  an  to  wlicthor  or  not 
then-  wi-rn  to  hv  iiiiy  ■  ■'  miulo  in  18H7.  On  tlio  7th  of 
DwenilxT,  l8H(i,  the'.'  ..n  A  tnlnisMiidor  wroto  U-  the  Uniti'd 
StiitcH  .SciTi'tary  of  Sti.  ioHon^h:  — 

"I  \mvv  t\w  lionor  to  .1  .to  that  vi'hhoIh  an-  t»,i,v,  as  usual, 
i'i|uij)i)in;j  in  British  Cnhniihia  for  Hshinj;  in  that  soa. 

10  "The  CanaiJiaii  (iovcrnnicnt,  thori'fori',  in  the  absi-iu'c  cf  in- 
formation art-  (it'sirioiis  of  asfi-rtaining  whi'tht-r  H'a-lt  vtssst-ls 
Kshing  in  tiic  open  nvti  and  hi-yond  tht'  territorial  waters  of 
Alaska  would  he  exposed  to  seizure,  ami  Her  .Majesty's  (iovt-in- 
m('nt  at  the  same  time  womM  be  glad  if  some  assuranee  would 
he  given  that  pending  the  s:'ttk'ment  of  the  (iiiestion  no  such 
seizures  of  British  veH.sels  wil'  l)e  made  in  Behruig  .Sea." 

That  was  a  re([nest  made  as  early  as  the  7th  of  l)ecemher, 
188G,  for  information  as  to  what  eourse  was  to  he  taken  in  1887. 
Coulil  Canadian  sealers  witli  safety  embark   their  money,  their 

20  vessels  and  their  property  in  tlie  ent('rpri.so  of  sealing  without 
risk  of  .seizure;  i  What  was  the  answer  to  that  (  The  answer 
came  in  the  shape  of  a  telegram  to  the  Juilge  and  District 
Attornt^y  at  Sitka,  stating  that  directions  had  been  given  by 
the  President  that  the  three  ves.sels  then  under  arrest  shouM  be 
discharged,  and  that  the  crew.s  of  the  vessels  under  arrest 
in  connection  therewitli  should  be  reloa.sed.  On  the  ',inl  of  Feb- 
ruary, 1887,  notice  was  given  to  the  Ambassador  of  Oreat 
Britain  that  orders  had  becjn  issued  by  the  Presidents' 
direction  for  tin;  di.scoiitimiance  of  all   proceedings  and  the  <li.s- 

.'10  charge  of  the  vessels  referred  to  and  the  release  of  all  persons 
un<lt;r  arrest.  (Jn  the  4th  of  April,  1887,  the  British  Ambassador 
again  wrote  to  the  United  States  Secretary  of  State  asking  the 
(juestion  whether  the  owners  of  such  vessels  might  rely  upon 
being  unmolested  by  the  crui.sers  of  the  Ignited  .States  when 
not  near  land.     His  answer  to  that  was  as  follows : — 

"The  (lue.stion  of  instructions  to  Goverinnent  vessels  in  regard 
to  prevent  th(!  inili.soriminate  killing  of  fur  seals  is  now  being 
considered,  and  I  will  iiform  you  at  the  earliest  day  possible 
what  has  been  ilecided,  .so  that  British  and  other  vessels  visiting 

40  the  waters  in  ipiestion  can  govern  themselves  accordingly." 

I  am  putting  these  inepiirics  and  answers  to  your  Honors  for 
this  pur'pose.  Here  was  a  reipiest  innde  as  early  as  December, 
followed  by  another  retjuest  in  April  asking  the  direct  tpiestion: 
what  can  the  .sealers  rely  upon  !  Can  they  seal  in  1887  without 
danger  of  arrest  f  The  first  answer  is  the  release  of  the  vessels 
seized  in  1880.  The  .second  answer  is  that  the  t}overnm(;nt  has 
under  consideration  the  regulations  that  are  going  to  bo  made 
and  the  in.structions  that  are  going  to  be  given,  and  that  as  .soon 
as  th<;y  have  been  decided  upon  the  British  (toverinnent  will   be 

50  notified,  ,so  that  thty  can  govern  themselves  accordingly.  What 
happened  ?  What  did  happen  was  this :  The  United  States  (lov- 
ernment  did  giveinstructionstotheirotticors,and  those;  instructions 
are  dated  on  the  10th  and  28th  of  May,  1887.  But  no  notice 
whatever  of  the  nature  of  these  in.structions  or  of  the  fact  that 
they  were  issued,  was  given  *:o  the  British  Government  or  to  any 
one  in  tlieir  behalf.  Now,  why  do  I  mention  this  ?  For  the 
reason  that  we  allege  that  in  1886  you  have  the  right  to  take 
into  consideration  the  fact  that  the  seizures  were  without  warn- 
ing and   without   notice,  and   for   the  stronger    rea.son     that 

60  in  1887  not  only  were  they  seized  without  notice,  without 
warning,  but  they  were  seized  after  the  release  of  the 
vessels  seized  in  1886,  and  after  an  assurance  thp.u  they  should 
be  notified.  The  people  who  were  engaged  in  the  business  were 
lulled  into  a  feeling  of  security.     They  naturally  thought  that 


»  .-mm 


6 

(Mr.  Peters'  Argument.) 

ut  all  events  if  any  Heiziires  wen;  conteinpliited  they  would 
recti- •>  iiotiee,  that  if  the  United  States  intended  to  make  tlie 
seizures  before  tliey  actually  made  them,  and  therefore  when  no 
communication  was  made,  no  notice  given,  when  tlie  British 
Government  iiad  ti>e  promise  that  notice  would  he  given,  tiiese 
men  went  into  the  scaling  business  in  18!S7  ;  and  it  is  true  that 

10  they  did  soon  a  larger  scale  in  ISS7  than  in  18S().  They  went 
there  having  almo.st  tlie  a.s.surance  from  the  United  States 
Ciovernment  that  in  1887  no  .seizures  would  be  niade.  I  say  that 
is  the  natiu'al  a.ssuniption  that  every  man  engaged  in  that  business 
would  draw  when  he  started  out  in  1887  to  enter  into  M\e  sealing 
business.  So  you  have  in  1887  that  fact  which  we  conteiid  must 
be  taken  into  consideration  by  thisConnnission.  Upon  that  point 
my  learned  friend  and  1  are  hopelessly  at  is,ssue.  His  contention 
all  through  is  that  it  does  not  matter  with  what  intention  the.se 
acts  were  done,  that  you  cannot  go  into  any  matter  of  intention, 

20  but  you  simply  have  the  fact  that  a  ves.sel  has  been  seized,  and 
that  there  is  a  hard  and  fa.st  rule  by  which  the  damages  must  be 
a.s,sessed,  that  the  damage  is  the  value  of  property  taken,  and  per- 
haps some  interest.  That  is  putting  it  biddly.  We  join  issue  on 
that,  and  we  .say  that  when  you  come  to  consider  the  (|ueHtion  of 
damages  you  have  the  right  between  nations  as  between  private 
individuals  to  look  at  all  the  .surrounding  circumstances,  to  look 
at  the  intention  with  which  the  acts  were  done  and  the  way  in 
which  the  acts  were  done  ;  that  a  seizure  made  with  one  intention 
might  entitle  a  claimant  to    one  amoimt  of  damages,  when  a 

30  seizure  made  with  another  intention  might  entitle  him  to  another 
amount.  It  is  with  this  idea  that  we  lay  before  Commission  the 
diplomatic  correspondence  which  shows  that  in  1880  no  warning 
was  given,  and  that  in  1887  such  things  had  taken  place  that 
these  men  were  justified  in  coming  to  the  conclusion  that  in  1887 
there  would  be  no  .seizure  at  all.  History  tells  us  t!'at  in  1887 
there  were  a  large  number  of  seizures.  In  1888  the  same 
question  came  up.  It  appears  that  in  1888  no  .seizures  were 
made ;  but  by  reference  to  the  record  at  page  184!),  line  50,  it 
appears  that  this  alwence  of  .seizures  in  1888   was  due  to  some 

40  unotlicial  assurance  which  was  given  by  tlie  United  States 
(ioveniiiient  to  the  Government  of  (Jreat  Britain.  It  matters 
not  to  us  why  it  was,  but  that  appears  to  lie  the  case.  In  1881) 
the  matter  went  still  further,  ami  the  United  States  Government 
made  a  large  number  of  seizures,  and  these  .seizures  were 
followed  up  with  one  in  1890,  which  is  a  special  case  by  itself, 
and  there  the  matter  stands  so  far  as  these  seizures  were  con- 
cerned. 

Now,  we  started  out  with  the  proposition  that  so  far  as 
damages  are  concerned  we  have  the  right  to  look  at  all  these 

50  circumstances,  we  have  the  right  to  look  at  the  manner  in  which 
the  acts  were  done  and  the  intention  with  which  they  were 
done,  the  manner  in  which  the  officers  and  cutters  carried  out  the 
instructions  they  had. 

As  1  have  already  .stated,  the  long  delay  that  has  '..iken  place 
in  the  settlement  of  these  cases  wius  occasioned  by  rea.son  or  the 
..laiiiis  of  the  United  States  tJovernment,  which,  so  far  as  they 
were  concerned,  were  di.-allowed.  We  also  point"'  nit  in  our 
argument  on  page  10  that  the  claims  put  forwaru  '■"  Jie  United 
States  ditl'ered  from  time  to  time,  and  differed  materially.     That 

(jO  they  difi'ered  is  very  clear  and  very  plain.  We  allege  at  page  10 
that  the  first  claim  was  that  Behring  Sea  was  a  mare  clausum. 
Second,  they  claim  that  they  had  a  certain  right  over  the  waters 
for  100  miles  from  the  coa«t  line,  and,  third,  that  they  had  the 
right  to  protect   the  fur  seals.     Well,  it  is  denied  on  the  other 


(Mr.  Peters'  Argument.) 

side  that  these  clmnging  chiiins  were  made.  I  am  not  going  to 
argue  th.e  (jueslion  further  tliau  this,  to  point  out  that  these  ves- 
sels were  seized  and  proceedeil  against  and  dealt  with  upon'  a 
charge  whieli  involved  nothing  less  than  the  proposition  that 
Behring  Sea  was  a  vuire  cl<tuf:um.  '''he  very  libels  which  we 
find  set  out  in  the  aj)pendix  to  the  Record  show  under   what 

10  particular  section  of  the  Ignited  States  .statute  thev  were  being 
prosecuted,  and  show  that  the  Judge  at  Alaska  decided  that  the 
places  were  these  vessels  were  seized  were  Alaskan  waters  and 
the  statute  .stated  that  its  intention  was  to  prevent  sealing  in 
Alaskan  waters.  So  that  in  the  outset,  no  matter  what  hap- 
pened afterwards,  the.se  ves.sels  were  .seized  and  condemned  upon 
the  ground  that  Behring  Sea  was  a  mare  clmtfium.  Very  well, 
they  took  that  po.sition  first,  but  they  afterwards  change<l  it. 
They  took  this  positior.  in  \HHV)  and  continued  it  for  .some  time, 
then  changed  to  another  positi(.n  and  finally  changed  to  a  third 

20  po.sition  when  the  matter  was  brought  before  the  Paris  tribunal. 
VVhat  does  that  show  when  you  come  to  consider  the  damages 
which  we  should  have  t  There  has  been  a  good  deal  of  delay, 
and  how  has  that  delay  occurred  I  That  delay  has  occurred  not 
only  by  reason  of  the  United  States  pressing  one  claim,  but  bj' 
reason  of  the  I'^nited  States  pressing  claims  which  varied  from 
time  to  time.  When  they  found  that  one  claim  could  not  be  up- 
held they  put  forward  another,  claiming  that  it  could  be  upheld 
upon  another  ground.  I  am  not  claiming  or  stating  that  it  was 
imprt)per  foi-  them  to  change  their  gromul  as  much  as  they  saw 

30  fit.  'i'hat  is  a  matter,  of  course,  with  which  we  have  nothing  to 
do,  but  it  should  be  taken  into  consideration  when  you  come  to 
the  (piestion  of  delay;  when  they  now  say,  as  they  finally  said, 
that  there  was  one  ground  oidy  upon  which  the  seizure  could  be 
justified,  we  say  why  did  you  not  put  this  claim  forward  in  the 
first  instance  and  .save  this  delay  ;*  Why  lengthen  the  delay 
and  make  it  longer  by  putting  your  claim  upon  one  ground  one 
day  and  then  upon  another  ground  tlit^  next. 

All  these  changes  of  front,  and  all  these  changes  of  tactics, 
added  to  the  delay,  and  added  to  the  difticulty  which  theclaim- 

40  ants  in  the.se  ca.ses  had  in  proving  theii-  claims,  and  it  made  the 
injury  which  has  bi^en  sustained  by  them  doubly  hard  to  bear. 
We  know  that  these  men  whose  vessels  were  seized  in  188(5  and 
1887,  and  al.so  in  188!),  worked  hard  in  their  business  and  entered 
into  an  occupation,  which  it  is  alleged  by  the  United  States  is  so 
dangerous  and  .so  hazardous,  and  so  uncertain  that  it  is  a  wonder 
that  any  persons  would  exa-r  venture  in  it.  Your  Honors  know, 
because  it  came  out  in  evidence,  that  many  of  these  poor  people 
were  absolutely  ruined  by  the  loss  o(  the.se  vessels,  and  the  mis- 
fortune to  them  was    not  altogether  so  much  by  the    loss  of  the 

^•0  vessels  as  by  the  fact  o;  t!ie  great  delay  which  took  place  after 
the  seizure.  I  refer  to  the  delay  which  they  experienced  in 
having  their  claims  settled.  I  venture  to  .say  to  your  Honors, 
that  even  should  we  receive  all  the  compensation,  which  at  the 
utmost  we  can  claim,  many  of  these  men  will  still  be  at  an  ex- 
tremely heavy  loss. 

That  is  the  chapter  which  we  put  in  the  introduction  of  our 
argument,  and  having  pointed  out  to  yoiu*  honors  the  reason  why 
we  consider  it  necessary  that  that  diplonuitic  correspondence 
should  be  looked  into  carefully,  let  us  come  to  the  next  heading 

GO  of  the  argument.     I  do  not  propose  to  deal  with  this  particular 

t)ha«e  of  the  (juestion  at  any  great  length,  because  I  will  be  fol- 
owed  on  this  point  by  one  of  my  as.sociate  counsel.  But 
let  us  consider  tor  a  moment  tlie  ijuestiou  of  the  scope  of 
the  Convention.     The  object  of  this  chapter  is  to  lay  before  the 


*««pltl 


8 

(Mr.   Pt'tein'  Aifjument.) 

CoiiuiiiasioiiorH  a  stiitomont  showiiifj  our  view  of  wliiit  oliiiin.s 
arc  ]>roj)t'rly  bct'orc  tlic  Cointuission  Tliat  is  oT  coiirHc  a  very 
important  (|U('stion,  and  ono  which  must  be  carefully  I'oiisidcrcd, 
and  it  is  a  question  upon  which  there  is  some  ditt'erencc  of 
opinion  between  my  learnecl  frienil,  the  counsel  for  the  United 
States  ami  myself.      I.,et  us  come  at  once  to  the  practical  (piestion 

10   wiiich  arises  before  us. 

The  Commissioner  on  the  part  of  the  United  States: — What 
chapter  of  the  arf;;ument,  Mr.  iVters,  is  that :" 

Mr.  Peters: — It  is  contained  on  pajjes  iVom  14  to  18  of  our 
arjjument.  The  snmminjj  up  of  that  chapter  is  on  jiajje  IH 
wliere  wt;  say  : — 

■'  It  is  therefore  submitted  that  the  claims  referri-d  to  arc 
"(fll  the  ritii.ms  which  iiad  been  pre.senteii  and  ur<je(i  b}' 
"  (ireat  Britain  prior  to  the  date  of  th<'  Convention :  and 
"  further  that  Creat   Britain  is  entitled   to  compen.sation  from 

20  "  the  United  States  on  iier  own  behalf,  and  on  behalf  of 
"  every  person  who  was  interested  in  any  of  the  vessels  in 
"  question,  their  cargjoes  and  voyaifc,  cither  an  owner, 
"  muster,  mute,  member  of  the  creir,  or  otherwixe." 

That  is  tiie  sunnninfj  up  of  that  jtart  of  the  contention  of  the 
counsel  for  Her  Majesty.  Let  ni"  ov  consider  for  a  moment 
tile  practical  j/ood  of  considerin'^  tint'  in  "  lion  of  the  .scope  of 
the  Convention  ;  let  us  see  whe:\  ''  piii,  '  -^Ily  effects  the  cases 
before  u.s.  We  have  here  someti'iiijj-  iik'  Zii  cases — -'JO  .seizures 
or  interferences  with  vesst'ls.      Tlv  •('  '.a  very  little  disptite  be- 

•10  tween  my  learned  friend,  Mr.  Dickinson,  and  myself,  as  to  what 
cases  are  before  the  Convention.  There  is  a  disjuite  with  r<><;ard 
to  the  "  liliiek  Diamoncl"  case  of  IcSStj.  which  has  been  settleiJ  in 
a  special  manner,  v.luch  the  Connni.ssioners  will  rememlmr. 
An<l  there  i'l  ;iiso  a  dispute  as  to  whether  the  case  of  C'aptain 
Gaudiii.  t^laim  No.  II,  for  ])ersonal  ilama<;es  is  properly  he- 
fore  the  (^onnnission.  Outside  of  that,  there  is  no  dispute 
that  all  tlu'se  eases  are  properly  before  the  Connnission.  They 
are  al!  befon'  the  Connnission  with  the  ex<>eption  of  these  two, 
and  my  learnecl   friend,  Mr.    I  )iekinson,  contends   that  these  are 

•to  not  before  the  Connnission  .'IS  he  filso  contends  with  reference  to 
a  special  matter  which  he  raisi'd  with  refjard  to  the.  "  Sjiy ward 
Costs  t\'(se." 

Hut.  when  we  come  down  to  consider  the  piU  fi\  ular  eases 
themselves,  there  are  several  jioints  upon  which  we  'H^'t,  ami 
which,  as  1  understami  the  arj^ument  upon  tl:.' vvtlier  si.je,  my 
learned  friend  contends  cannot  be  received  hytiie  ' '.  viniissiim 
and  with  reference  to  which,  we  on  oMr  side  'o;:  ciid  ■ 'lould  l)e 
received  and  adjuilicateil  upon. 

Take  for  instance  one  lai'jre  claim.     We  .■'■lini  thai    nndi  ■    (lie 

•'^O  Convention  yiiu  have  the  I'ie^ht  to  <;i\e  to  the  i.jiv  ■'.  of  the 
crew  of  each  of  these  vessels  a  certain  amoinit  of  money — tliat 
sum  of  money  is  ei\tirely  in  the  disi'retion  of  your  honors — for 
dama;,fes  for  personal  inconvenienee  jtud  personal  hardships  suf- 
fered by  the  mend>ers  of  the  crew.  That  is  our  contention.  On 
tht>  other  hand,  my  learnetl  friend,  Mr.  Dickin.son,  says: — "That 
is  not  within  the  .scope  of  the  Convention,  that  claim  cannot  be 
received."  Your  honors,  that  is  one  ini.tter  which  comes  up  be- 
fore us  under  this  heail.  nuil  it  is  important  i  it  involves  a  con- 
siderable amoiuit  of  money,     ^'ou  will   Ho-i     ::    th"  claims  pr,t 

*»0  forward  by  ( ireat  Bi'itain,  that  in  each  •  u-  v  iicre  there  lias 
been  actual  seizure,  we  have  claimed  a  siim  oi,  '  i  did\,  S.'jGO  fcr 
hardship  and  loss  to  ea''i  of  the  crew.  1  will  i.  k(  otiC  case  as 
an  example.  At  Pajje  !>(i  you  will  find  in  our  mimmary  of  tlie 
Oarolcna     cir      s,    a   st  iteiiient     as    follows: — "  ExpenscH  and 


(Mr.  Peters'  Arffiiiiient.) 

'  hurdship  of  crew,  0  iiien  at  ?500  each,  S4,500.00.  A  similar  claiiii 
is  made  in  all  the  eases  where  there  was  an  actual  sii^zufe 
and  arrest  of  the  erew.  Ft  is  included  in  the  eases  for  lS8(i, 
and  1  believe  in  nearly  all  the  eases  for  1887,  and  in  the  ajj^re- 
}jate  it  amounts  to  a  very  considerable  some  of  money.  It  is 
for  your  Honors  to  decide  which  side  is  rijjht  in  their  contention, 

IQ  and  to  that  (juestion  I  would  ask  the  att(>ntion  of  your  Honora. 
When  von  come  to  consider  the  (]uestion  of  the  scope  of  the 
Convention,  it  will  at  once  occur  to  you  to  ask  : — [s  that  a  matter 
which  is  Ix'fore  you  and  which  you  can  consider,  or  is  it  not.  I 
venture  to  submit  that  these  claims  avo  fairly  before  you  uudei- 
the  .sco[)e  of  the  (^)nvention.  Any  person  who  has  heard  the 
evidence  in  this  ca.se  unist  come  to  the  conclusion  that  the  mem- 
bers of  the  crews  of  those  vessels  are  as  much  entitled  to  flamajje 
for  their  hardshi])s  and  for  their  losses  as  were  the  masters  and 
mates  of  the  vessels   in  (piestion.     The  story  of  the  hardshipB 

20  *''"^  tiiese  men  ex|ierieneed  M-hen  tluy  were  imprisoned  at  Sitka 
ami  Ounalaska  are  set  forth  in  the  evidence.  Not  only  is  the 
story  of  their  hardships  told  when  they  were  at  these  places, 
but  also  the  story  of  their  hardships  on  their  journey 
to  Sitka  and  the  journ(>y  from  Sitka  home.  Several  witnesses 
have  depose(i  to  that.  T  will  not  referat  lenijth  totbat  evidence, 
but  your  Honors  will  re)nt>mber  that  in  some  cases  members  of 
the  crews  of  the.se  ve.ss(>ls  had  to  travel  over  1500  miles  at  sea 
in  open  canoes.  Your  Honors  will  remember  that  afterwards 
when  the  same  Indians  were   wanted  to  go  seal  huntinjjj,  their 

30  answer  was  they  wo>ild  not  <jo  becaust^  they  were  afraid  of 
seizures,  and  they  allejjed  that  some  of  them  had  died  on  the 
way  from  Sitka  and  Ounalaska  on  the  oeea.sion  referied  to.  Yoii 
will  also  remember  that  many  of  these  men  were  taken  in 
crowded  vessels  from  Ounalaska  to  Sitka — vessels  which 
then  carried  double  the  ninnber,  or  three  times  the 
tiumber  of  men  that  they  wei-e  ever  intended  to  carry. 
Yoin-  honors  will  remendier  that  they  were  taken  to 
Sitka  and  kept  under  airest  for  a  eonsidei-able  period  of  time; 
that  some    of  them  were  allowed  t  )  get    home  tin?    best   way 

40  they  could  :  that  s;)me  of  them  wer(>  sent  to  San  Franci.sco  to  find 
their  way  home  a-i  best  thev  eoidd  ;  and  that  some  of  them  were 
turned  out  on  Vaneouvei-  Island,  Innidreds  of  miles  froui  Vic- 
toria, to  find  their  way  home  in  whatever  way  they  could.  If 
your  honors  come  to  the  conclusion  that  th(>  claims  of  these  men 
are  within  the  jurisdiction  of  the  (^)mmission,  there  is  no  rea.soli 
in  justice  and  fair  play  why  they  should  not  be  indenuiitied  for 
the  personal  hardship  they  underwent,  just  as  W(>ll  as  !iny  other 
men  who  are  atl'ecte(l  by  the  seizuirs  of  these  vessels. 

Now  your  honors,  I  submit  to  you  the  ((Uestion,  which  side  is 

50  '■ifl''t  '"  t'lis  contention.  We  on  our  part  claim  that  you  have 
these  dainis  before  you  inidir  the  Convention.  \V(>  claim  that 
that  Convention  mi'iitioncd  eertiiin  claims.  My  learned  frieutl, 
Ml'.  Dicknison.  points  out  in  his  arunnuent  in  iuiswer  to  lis,  that 
W(>  would  not  be  entitli'd  to  L;n  into  thi'  (|iii'stion  of  dama;fes,  for 
instance,  foi-  some  person  bfiny- prcv  cntiM  from  wii.ilinj;'  or  some- 
thinji  of  that  kind.  We  are  not  el.iiininir  here  to  <;■()  beyond  the 
claims  that  are  mentioni'd  in  the  Convension  exei'pt  iicrhapsili 
the  cases  of  the  "  HIack  Diamond'and  t'ajitain  Cauilin,  which 
We  claim,  are  nientione()  in  the  Convention,  but  which  the  othet 

(JO  ''i'''^  claim  are  not.  We  are  not  askin;f  to  u'o  beyond  the  claitilh 
htentioned  in  the  t'onvention ;  we  do  .say  th.it  in  that  Collvehtiob 
thbse  claims  are  s|1ecitieally  mentioned.  These  elaimrt  tlult  I  rti- 
ft'rred  to  are  tnentioned  as  you  at(>  a\Val-l',  ftituitlv  ivy  {m  ilrtnle 
bt  thb  VesSbl  Hntl  by  tertaiil  ^etriohal  bliiiJtlS.     Wb  tib  clAliil  tltai 


10 


I         ii 


(Mr.  Peti'is'  Aif^unu'iit.) 

wlu'ii  we  (>()iiu>  to  tivko  into  consideration  any  parti<'ular  vcshoI. 
any  vcssol  tliat  is  nanuMJ,  tliat  wo  liavc  a  rii;lit  to  i-laini  (ianin<;(Ns 
on  bt'lialf  of  I'vcry  juMson  who  lias  hoi'u  injurod  by  reason  oi'  tho 
Hciznre  of  that  vessel.     That  is  our  claim. 

Let  ns  see  if  we  support  that  hy  reasonable  arijinnent  or  not. 
In  the  first  place,  on  iia<j;e  14  of  our  ar;;unient,  wo  first  stiite  tlie 
10  articles  of  ('onvontion  and  .say  : 

"  Articles  1  ami  -i  of  the  Convention  provide  that  all  claim.s 
•' on  accotnit  of  injuries  su.stainod  by  persons  in  who.se  behalf 
"(treat  Hritain  is  entitled  to  clain*  conipen.sation  from  the 
"United  States  and  arising'  by  virtue  of  the  Treaty  of  1S!)2, 
"  the  award  and  the  tindinjjs  of  the  Tribunal  of  Arbitration  at 
"  Paris,  as  also  the  additional  claims  mentioned  in  the  alxjve 
"  introduction,  siiall  be  referre(l  to  Commi.ssioners  who  shall 
"  doterniine  the  liabilty  of  the  United  States  in  respect  of  each 
"  claim  and  assess  the  amount  of  compensation  to  be  paid  on 
20  "  account  thereof." 

Then  we  add  : 

"  The  first  (luestiona,  therefore,  are :  What  are  the  claim.s;  and 
"in  who.se  behalf  is  Great  Britain  entitled  to  claim  coni- 
"  pen.sation  !" 

Here  1  make  the  .statement  with  which  my  learned  fri""d, 
Mr.  Dickinson,  Joins  issue,  and  that  statement  in  the  argi  nont 
i.s  as  follows : 

"  In  this  coiniection  it  nuist  be  borne  in  mind  that  at  the  tiino 
'of  the  Treaty  of  l^fi)2,  protests  had  been  made  on  behalf  of 
30  "  CJreat  Britain,  and  particulai-s  of  claims  had  been  formulated 
"and  presented  to  the  Ignited  States  (iovermnent.  The  framers 
•'  of  the  'I'reaty  and  (\)nvention  had  the.se  protests  and  claims 
"  Ix'fore  their  minds  in  .settling  upon  the  terms  of  said  Treaty 
'and  Convention." 

We  are  now  upon  the  (]uestion  of  the  construction  of  the 
Treaty  and  my  learned  friend,  Mr.  J)ickinson,  on  the  one  hand,  so 
far  a.s  I  can  understand,  his  argument,  says  this:  Vou  have  the 
claims  that  were  before  the  Paris  Tribunal;  these  claims  contain 
certain  items  of  claim  and  you  are  not  allowed  to  claim  one 
40  single  item  now  that  you  diil  not  claim  before  the  Paris  Tribunal. 
Ami  he  .says  furtln'r :  That  the  con.struction  of  the  Treaty  is 
very  clear  and  very  plain,  and  thereftire  you  cannot  look 
beyond  the.se  three  document.s.  First,  the  convention 
itself;  second,  the  main  Treaty  of  1Hft2:  and 
third,  the  Awar<l  and  findings  of  fact.  M\'  learned 
friend,  Mr.  Dickin.son,  says  further,  that  if  you  <lo 
not  find  anything  in  these  three  docunients  you  cannot  in  any 
way  help  yourselves  to  construe  the  Treaty  l)v  looking  outside 
of  them.  We  differ  from  om-  learned  frii'nd  in  that.  \N'o  say 
50  tl»at  a  Treaty  is  made  and  a  Convention  is  made,  and  that  that 
Treaty  and  ihatConvention  weremaile;  wiiat  for/  For  tlu'pin"[)ose 
of  settling  certain  <lisputes.  What  disputes  !  How  are  you  to 
find  out  what  these  disputes  were  f  'I'lu'se  disputes  are  certain 
disputes  that  have  arisen  by  virtue  of  claims  of  the  United  States 
in  coiniection  with  the  Behring  Sea.  How  are  you  to  find  that 
out  ?  I  say  that  you  are  to  find  it  out  by  l<M)king  and  .seeing 
what  claims  were  [iresented,  what  disputes  did  ari.se,  and  that 
then  3'ou  must  construe  the  Treaty  with   reference  to  the  dis- 

Kutes  that  had  arisen.  I  contend  there  is  no  practical  difference 
I'tween  the  construction  of  a  statute  and  the  con.struction 
of  a  treaty.  If  you  come  to  construe  a  statute,  what 
is  the  first  question  that  you  bring  your  mind  to  bear  on  I 
A  statute  is  piussed  to  remedy  some  evil,  and  the  first  eiK pi iry  you 
make  is:  what  wan  the  evil  which  that  statute  wiuj  postied  to 


1    ^1 


11 


(Mr.  Peters'  Arfjuincnt.) 

reinody  ?  How  (Jo  you  (iiscover  tlmt  ?  Yoii  may  be  able  to 
disfover  it  bctweeii  the  four  corners  of  the  statute,  and  you  may 
not ;  and  if  you  are  not  able  to  discover  it  from  the  statute 
itself,  vou  must  look  outside  to  find  the  evil  which  that  statute 
was  passed  to  correct,  an<i  then  you  nuist  construe  the  statute  in 
the  lifjht  of  the  evil  it  was  intended  to  remedy.  1  contend,  your 
10  Honors,  that  it  is  just  the  same  in  this  case.  We  find  that 
certain  claims  were  jnit  forward,  thatcertain  protests  were  made, 
and  that  certain  action  wa.s  taken  by  the  (lovernment  of  (Jreat 
Hritain,  and  we  say  that  when  you  come  to  consider  the  Treaty 
which  was  passed  for  the  purpose  of  settling  these  di.sputes  and 
of  dealinjj  with  these  disputes,  and  dealing  with  these  protests 
you  cannot  do  it  intelligently  unless  you  look  at  what  has  taken 
place  bt'fore  the  Convention  was  made. 

Now,  my  learned  friend,  Mr.  Dickin.son,  makes  a  very  ex- 
traordinarj'  statement— perhaps  I  should  not  use  the  word 
20  extraordinary — but  he  makes  a  statement  which  it  appears  to 
me  is  altogether  inconsistant  with  statements  which  ho  here- 
tofore made.  At  page  (i  of  his  argument,  what  does  my  learned 
friend,  Mr.  Dickinson,  say.     He  says  this  :— 

"  Notwith.staniling  the  statement  impliedly  to  the  contrary 
"and  expressly  made  at  page  14,  folio  10:  ("Particulars  of 
"  claim.s  had  been  formulated  and  presented  to  the  United  States 
"Government)  and  at  page  15  folio  30.  ("  the  claims  actually 
"  submitted  by  Great  Britain  referred  to  in  the  notes  verbales  ") 
"  Great  Britain  in  distinct  departure  from  her  own  preceilcnts 
HO  "  and  from  the  rules  of  international  law  in  .such  cases  ;  where 
"one  nation  .seeks  indeiimit}'  from  another  for  injury  to  persons 
"  or  property  ;  never  caused  the  claims  to  bo  audited  or  formu- 
"  lated  in  any  nnmner  for  presentation  to  the  United  States  and 
"  never  presented  them. 

"On  the  contrary,  on  April  18th,  1888,  as  appears  by  the 
"  records.  Her  Majesty's  Ambassador  formally  connnunicated  to 
"  Mr.  Bayard  the  following: — 

'  Her  Majestj''s    Government  have  just  received  the  particu- 
"  lars  of  the  claims  for  compensation  on  account  of  the   British 
40   "  sealers  seized  and  warned  off  by  the    United  States  authorities 
"  in  Behring  Sea." 

"  A  just  assessment  of  these  claims  appears  to  them  difficult 
"  withoiit  investigation  and  verification,  and  they  therefore  wish 
"  to  ascertain  whether  the  United  States  Government  would  be 
"  disposed  to  a;j;ree  to  a  mixed  commission." 

My  learned  friend  in  conclusion  adds  further: — 
"  These  claims  were  not  presented  in  an}'  form  until  the  Paris 
"  Trihunial  camo  together  in  18!):$,  and  in  the  n.eantime  negoti- 
"  ations  were  pending  between  the  governments,  wherein  the 
,50  "  position  of  the  United  States  claiming  jurisdiction  to  make 
"  the  seizures  in  (juestion,  and  denying  their  liability  for  making 
"them,  was  not  challenged  by  Great  Britain,  etc." 

In  other  words  my  learned  friend  states  that  Great  Britain 
departed  from  her  usual  custom  and  in  a  most  careless  manner 
never  had  these  claims  audited,  and  nt^ver  presented  them.  If 
the  claims  were  not  presei.t-d,  an<l  if  that  actually  took  place, 
as  stated  by  my  learned  friend,  I  would  call  it  rather  negligent. 
But  let  us  see,  is  the  statement  borne  out  by  the  facts.  I  will 
refer  your  honors  to  the  record,  page  56,  where  a  discussion  camo 
(50  up  before  yours  honors,  as  to  whether  or  not  we  should  put  in  lliis 
diplomatic  correspomlenco.  It  was  suggested  that  I  .should  give 
the  grounds  upon  which  I  tendered  that  evidence,  and  I  then  made 
this  statement : — 

"  It  is  proper  for  us  to  show  here  that  we  took  every  means  to 


I   ^ifmmm 


■r\ 


I  i 


12 

(Mr.  Peters'  Arfjuinent.) 

"  press  our  claims,  and  to  press  tlioin  promptly,  and  the  whole 
"  correspondence  from  bi-fiinninj^  to  end  hrinj^s  that  point  out 
"  very  clearly,  and  that  point  we  have  the  rifjtht  to  show;  also 
"the  honn jiile  manner  in  which  it  was  presented  by  the  British 
"  Government  from  beginning  to  end.  There  has  been  nothinij 
"  like  Idchrs  in  the  presentation  or  prosecution  of  the  claims." 

lO  "Mr.  Dickinson — And  nothinjj  of  the  kind  is  asserted  or  con- 
tended f(tr." 

Therefore  at  pai;e  56  of  thi.s  record,  when  we  were  actually 
trying  this  case,  we  have  Mr.  Dickinson's  statement.  My  state- 
ment was  that  we  put  in  this  correspondence  to  show  that  we 
were  jjuilty  of  no  laches;  and  Mr.  Dickinson  says,  "  VV'e  do  not 
"  contend  3-ou  were  Jjuilty  of  any  Itwlies"  Notwithstanding 
this  statement  of  the  learned  counsel,  lie  alleges  in  liis  argu- 
ment that  we  were  guilty  of  lurkes  in  a  very  serious  particular. 
I  do  not  allege  that    we  have  before  Your  Honors,  any  di.stinct 

20  and  plain  evidence  that  on  a  certain  day  these  claims  were  taken 
by  the  Ambassador  for  Great  Britain  and  hand(>d  to  the  Secre- 
tary of  the  Treasury  of  the  United  States.  1  tio  not  allege 
that.  But  I  do  take  the  argument  which  m ,  learned  friend, 
Mr".  Dickin.son  himself  uses.  In  connection  with  these  notes 
vet  bale,  my  learned  friend  say.s  himself:  You  mu.-tt  remember 
that  many  things  took  place  between  the  Ambassador  of  Great 
Britain  and  the  Secretary  of  State  of  the  United  States,  which 
are- not  put  in  the  form  of  ^tters;  ami  you  must  remember  that 
many  verbal  comniunicatii    s  took  place  between  them.     I  .say, 

30  that  when  you  have  before  you  the  fact  that  on  the  l.Sth  April, 
1888,  Mr.  Bayard  was  informed  that  the  British  Government 
had  these  claims  presented  to  them,  and  when  you  find  a  special 
request  that  a  tribunal  .should  be  established  to  settle  these  claims, 
and  when  j-ou  find  here  that  the  counsel  for  United  States  .says 
that  there  was  no  laches,  what  conclusion  can  the  Commissioner.s 
naturally  come  to  ?  They  mu.st  come  to  tlu^  conclusion  that  a.s 
a  matter  of  fact,  these  claims  were  delivered — it  maj'  lie 
unofficially — but  delivered  by  the  Amba.ssad!)r  of  Great 
Britain  to  the  Secretary  of  the  Treasury  of  the   United  States, 

40  and  that  the  latter  gentleman  knew  all  about  them.  Is  it  to  be 
suggested  for  a  moment  that  they  entered  into  the  making  (jf  a 
Treaty  which  contemplated  the  settlement  of  these  claims, 
without  the  officials  in  some  waj-  finding  out  vrhat  the  claims 
were?  I  submit  to  the  Commissioners,  that  the  only  conclusion 
they  can  draw  from  all  the  facts  is,  that  these  claims  were  all 
delivered. 

If  these  claims  were  not  delivered,  at  all  events  the  protests 
were  delivered.  That  part  of  it  is  (|uitc'  plain  for  it  appears  in 
the  correspondence  itself.     Your  Honors  may  remember  that  the 

50  question  as  to  these  particular  claims  for  hardship  to  the  crews 
came  before  you  at  Victoria.  They  were  first  brought  before 
you,  it  appears,  after  the  case  hail  gone  on  for  some  time.  TIte 
Counsel  for  Great  Britain,  being  under  the  impression,  and  having 
shaped  thoii  evidence  under  the  impression  that  there  was  no 
question  at  all  but  that  these  claims  were  before  the  Conmii.ssion. 
It  appeared  for  sometime  that  Counsel  for  the  United  States 
were  under  the  impression  that  we  were  not  pre-..sing  these 
claims,  and  from  t\w  expressions  used  by  the  Commissioners, 
3'our  Honors  were  evidentlj- under  the  impression  thatthese  claims 

QQ  were  not  being  pressed  at  that  time  ;  and  as  .soon  as  that  state  of 
affairs  developed,  your  Honors  will  remember  that  I  brought  it 
tlearly  and  plainly  before  the  Commissioners  that  we  were 
hiaking  these  claims,  that  we  always  did  make  these  claims,  and 
that  it  was  onr  intention  then  to  press  them. 


18 

(Mr    Peters'  Argument.) 


le  whole 
point  out 
u)w;  also 
10  Briti'sh 
1  notliin.i; 
ilaiins." 
Gil  or  con- 

e  actually 

My  state- 
V  that  we 
We  do  not 
ihstanding 

his  argu- 
particulaf. 
ly  (lihtinct 
ivere  taken 

the  Secre- 
not  allege 
led  friend, 
these  notes 
;  remember 
or  of  Great 
ates.  which 
leiitber  that 
em.     I  say, 

18th  April, 
government 
nd  a  special 
,hese  claims, 

States  says 
mmissioners 

sion  that  a.-* 

it    may    !>« 

of     Great 

lited   States, 

Is  it  to  he 

iiaUing  of  a 

lese    cliiiuis, 
the  claims 

y  cuneluiiion 

mis  were  all 

the   protests 
appears  in 
iher  that  the 
,()  the  crews 
)Ught  before 
time.     The 
uml  having 
lere  was   no 
Commission, 
lilted  States 
ing    these 
mmissioners, 
ttheso  claims 
that  state  of 
I  brought  it 
we    were 
e  claims,  and 


Ijotv  (Iocs  the  matter  .stand   then  as  a  question  of  law  ?     Are 
we  I'lititli'il  to   have  th'sc  claims  put  in    or  not?      In  the    tir.st 
•    pliiec  we  iiointcd  out  that  certain  |)rotests  were  made.     At  page 
14   if  tlic  argument  we  pointed  out: — 

■  fii    hi-*  ilcKpateli  to  the    United  States    Secretary    of  State 

■  'iatiil  21st  October,  lSS(i,  the  liritisli  Ambassador  says:'l  have 

10   ■•  tin;  honour    to  inform  you  that  I  am   now    instructed  liy  the 

'  Ivirl  of  Iddcsligli.  Her  Majesty's  I'rinciiml    Secretary  of  State 

'  lor  foreign    Att'airs,  to  protest  in  the    name  of  Her  Majesty's 

•  ( Jiivcnimeiit  against  such  seizure,  and  to  reserve  all  ri;/hta  to 
'  ciiiiipeiisation.'  " 

Tliat  was  the  first  protest.  The  .second  protest  whicii  is  .set 
out  at  line  40  of  the  same  page  was  put  in;  it  related  to  .seizures 
nt'  I,s,s7.  and  b\'  it  a  claim  was  made  similar  to  that  made  in  the 
CISC  of  the  "(hiward,"  the  "  Carolena  "  and  the  "Thornton,", 
ani  it  leservi'd  all  rights  to  C(juipensation  on  behalf  of  the 
20  o'.viicr-i  and  crews.  Then  furtiier  we  note  the  fact  that  the  un- 
■  I'lsigiied  (that  is  the  British  Ambassador)  is  in  consequence 
in^t  meted  : — 

•■  The    imd.rsigned  is  in  consequence  instructed  formally    to 

lifotest  against  such  interference  a" d  declare  that  Her  Britannic 

'   Majesty's  tioverniiientmust  hold  theGorerninentof  the  United 

•  Srates  responsible  for  the  consequences  that  may  ensue  from, 
"  iiitu  which  are  contrary  to  the  established  principles  of  inter- 
"  I'litioiKil  taw" 

Tliat  is  "  all  the   consequences."     We  then   proceed  to  point 

:iO  out  that  the  claims  theiiiselvea  (the  actual  claims  that  were  filed, 
and  for  this  purpose  it  is  immaterial  when  they  were  filed, 
Khitiier  belore  the  Treaty  of  l«i):l  or  after  the  Treaty  of  1893) 
C'lintain  a  demand  for  compensation  to  the  crew.  We  pointed 
mit.  several  cases  of  that  kind  and  mention  them  here. 

Now  what  is  the  argument  u.sed  on  the  other  side.  It  is 
Miii|ily  this  : — "That  you  cannot  claim  for  these  damages  at  all 
1  .  laii^i-  tln-y  are  not  specifically  mentioned  in  the  findings  of 
r.ici  .'^nd  not  mentioned  in  pages  1  to  (iO  of  the  British  case  before 
tlio    I'aris  Tribunal.      That  is   their  argument.     We   say   this: 

40  liint  in  the  Convention  under  which  we  are  sitting  there  is  no 
niiiiiion  of  anything  but  the  names  of  the  vessels,  and  that  we 
all'  entitled  to  recover  all  damages  which  accrued  by  reason  of 
the  si'izure  of  any  one  of  these  vessels  no  matter  under  what 
lii'ail.  or  which  occurred  to  nil}'  of  the  crew.  There  is  the  dis- 
tinction and  dirt'erence  between  counsel  for  the  United  States 
and  myself.  That  point  will  he  more  fully  referred  to  by  my 
lijinied  friend  who  is  to  follow  mo,  and  I  do  not  propose  to  argue 
it  at  length  at  the  present  time.  I  propose  merely  to  indicat'" 
that    that    point  arises    between    the    Counsel    for  the  Uniteu 

"lO  Stites  and  the  Counsel  for  (ircat  Britain.  It  is  perhaps  the 
iiHi-t  important  question  arising  under  this  head.  As  I  stated 
lici'ore,  it  is  not  disputed  that  all  these  claims  are  before  the 
Coimnissioners — at  least  with  regard  to  the  most  of  them.  It  is 
only  disputed  that  with  regard  to  this  item  and  one  or  two  other 
it 'lis,  they  do  not  Come  within  the  jurisdiction  of  the  Com- 
mission at  all. 

Now  having  dealt  with  this  matter,  I  propose  to  come  down  to 
■iiinther  question  which,  to  my  mind,  is  one  of  the  most  im- 
portant so  fur  as  the  amount  of  damages  is  concerned. 

(iO       The  t/'ommissioner  on  the  part  of  the  United  States: — Is  that 
part  of  the  British  case  anywhere  in  the  record  here  ? 
.Mr.  Peters  : — It  is  in  the  American  reprint. 
Th(!  Commissioner  on  the  part  of  the  United  States : — I  mean 
in  our  record  ? 


14 


fir 


(Mr.   Pi'terw'  Arijuinciit.) 

Mr.  Peters  : — It  in  not  in  tlu'  record. 

Mr.  Dickinson. —  It  is  in  evidence  j'oiir  Honor,  and  we  pro- 
duce for  the  argument  tlie  wri;,'inul  Biitish  .scliedule  as  presented 
at  Paris. 

Mr.  Peter.s  : — Pa;;es  1  to  (JO  of  the  British  case  really  consist 
of  the  affidavits. 

10  The  Commissioner  on  tliopartof  tlie  United  States: — I  merely 
wished  to   know  whether  they  were  in  the  record  hoforo  us. 

Mr.  PeterM: — They  arenot  actually  printed  in  the  hound  Record. 
There  was  an  ar>.;uineht  hijl'ore  the  Coinuiissioners  as  to  wlu-ther 
we  should  put  them  in  evidence  or  not,  ami  the  Commissioners 
ruled,  I  think,  that  as  a  matter  of  fact  they  were  not  evidence, 
but  that  we  could  refer  to  them  whenever  required. 

Your  Honors,  I  do  not  wish  to  dwell  on  this  point  more  than 
simply  to  .say,  in  what  respect,  in  our  opinion,  the  que.stion  of 
the  .scope  of  the  Convention  becomes  material  under  that  one 

20  heading  and  on  .some  other  points  also. 

Th^  question  I  now  proceed  to  deal  with  is  the  question  of  the 
proper  measure  of  damage.  I  begin  by  calling  your  Honor's 
attention  to  one  particular  case,  namely,  to  the  case  of  the 
"Carolena"  and  I  Hnd  that  in  that  case  in  our  claim  the  follow- 
ing item  is  contained  : — 

"  Balance  of  estimated  catch  from  the  first  to  the  thirty-first 
August,  four  canoes  and  one  stern  boat.  904  skins  at  S7.00  each." 
There  is  also  a  further  claim  for  the  year  18iS7  in  this  con- 
nection     I  shall  deal  with  that  matter  again  on  the  question  of 

3Q  amount  in  that  particular  case.  We  know  that  in  all  these  cases 
there  are  some  points  in  which  there  is  no  difference  of  opinion 
between  my  learned  friend,  Mr.  Dickinson,  and  myself.  For 
instance,  when  we  come  to  the  question  of  the  value  of  the  ship, 
although  we  differ  as  to  the  amount,  yet  wherever  a  ship  was 
seized  and  taken,  there  is  no  difference  between  us,  but  that  the 
value  of  the  ship — whatever  j'our  Honors  conclude  to  be  the  value 
of  the  ship — should  be  paid.  There  is  no  ilifi'erence  of 
opinion  but  that  the  boats  and  the  guns  and  sueh  otln'r 
things  as  were  .seizeil  and    taken  should   be  paid    for.      Tiiere 

40  is  no  difference  of  opinion  that  any  article  wliieh  was  aettially 
seizttd  should  be  componsatrd  for.  My  learned  friend.  Mr. 
Dickinson,  sa3's,  and  I  say,  that  we  are  entitled  to  receive  the 
full  value  of  those  things..  Wo  all  agree  on  that.  But  when  we 
come  to  the  question  of  what  is  called  the  prospective  catch,  we 
difier  widely.  My  learned  friend,  Mr.  Dickinson,  lays  down  a 
certain  proposition,  which  he  says  governs  these  cases,  and  if 
this  proposition  of  his  bo  right,  then  we  are  not  entitled  to  coin- 
per.  .ation  for  the  prospective  catch  If  the  propositions  which 
he  lays  down  are  wrong,  then  we  are  entitled  to  ci)inpunsation 

50  for  the  prospective  catch. 

I  propose  to  deal  with  this  question  with  a  considerable  amount 
of  detail,  because  of  the  large  amount  involved  and  the  position 
taken  by  the  other  side.  I  will  first  come  to  the  argument  used 
by  my  learned  friend,  at  page  9.'},  where  ho  lays  down  the  gen- 
eral proposition  which  he  saj-s  ou^ht  to  govern  j'our  Honors  in 
coming  to  the  conclusion  as  to  what  amount  of  compensation 
you  should  award.     Hu  lays  down  this  proposition  : — 

"The  theory  of  all  law  on  the  subject  of  the  loss  of  personal 
property,  is,   that  the  party  deprived  of  it  or  abandoning  it   to 

go  the  converter,  may  immediately  supply  its  place  in  the  market 
with  its  money  value  if  he  .sees  fit ;  and  therefore  his  measure 
of  recovery  is  limited  to  the  value  of  the  property  lost " 

The  following  propo.sitions  are  maintained  under  this  head  : — 
The  claim  for  prospective  catch  is  settled  adversely  to   Great 


15 


(Mr.  Peters'  Aij;uinent.) 

Britain  by  the  Geneva  case.  TIuh  is  the  first  proposition,  and 
tiien  he  laj's  down  tiie  proposition  that  "  tlie  chiiiii  for  prospec- 
tive catch,  prospective  profits,  and  the  liiie,  in  cases  of  marine 
torts  or  captures  on  the  high  seas,  however  tortious,  has  never 
been  allowed  by  any  tribunal  or  court  administering  inter- 
national law,  or  by  any  authoritative  judicial  judgment  of  either 

10  country,  whether  administering  international  or  the  municipal 
common  law."  So  that  his  proposition  on  the  question  of  pros- 
pective catch  divides  itself  into  two  heads.  First,  he  says  that 
the  decisions  of  international  courts  have  been,  that  prospective 
catch  can  never  be  allowed.  Secondly,  he  .says  that  on  appeal  to 
the  tribunals,  (prize  courts,  for  instance,  and  Admiralty  courts) 
in  collision  cases  and  cases  of  that  kind,  that  there  it  never  has 
been  allowed  ;  and  he  argues  from  that,  that  in  this  particular 
case  it  cannot  be  allowed.  With  this  general  proposition  of  the 
law  I  entirely  di.sagree.     Now,  what  is  our  propositions?      We 

20  lay  the  proposition  down  in  the  first  place  at  page  30  as  fol- 
lows : — 

"  It  having  now  being  determined  beyond  question  that  there 
was  no  foundation  in  international  law  for  the  assertion  of  any 
of  the  claims  put  forward  by  the  United  States,  the  ordinary 
practice  among  nations  requires  that  the  damages  should  be 
assessed  upon  a  scale  so  liberal  as  to  leave  no  room  for  doubt 
that  any  form  or  class  of  injury  sustained  has  been  left  without 
a  full  and  just  reparation." 

That  is  our  first  proposition,  and  then   coming  to  deal  par- 

30  ticularly  with  the  prospective  catch,  page  25,  our  proposition  is: 
"  Great  Britain  is  entitled  to  recover  for  loss  of  catch  as  being 
the  direct  consequence  not  only  of  the  acts  complained  of,  but 
as  being  the  very  object  of  such  acts.' 

In  that  statement  we  contend  is  the  whole  matter.  On  that 
point  turns  the  question  whether  or  not  we  are  entitled  to  this. 
Take  now  the  question  of  collision,  and  take  the  cases  in  prize 
courts  where  vessels  have  been  improperlj'  and  illegally  seized 
bj'  privateers,  and  cases  of  that  kind,  where  restitution  is  ordered. 
Take  these  cases  and  he  say.s,  "  your  damages  are  confined  to  the 

40  value  of  the  vessel  and  interest,"  or  something  of  that  descrip- 
tion. What  is  the  clear  distinction  between  the  two  cases.  In 
the  case  which  we  have  before  us  the  United  States  sent  their 
cruisers,  not  to  take  our  ships  because  they  had  a  claim  to  the 
ship,  but  for  the  purpose  of  preventing  the  carrying  on  of  legal 
ami  legitimate  business.  Their  intension  was  to  prevent  us  from 
carrj'ing  on  that  business.  They  wer  successful  in  accomplish- 
ing their  intention,  and  are  therefore  liable  for  damages  for 
loss  of  catch,  when  the  damage  that  has  actually  happened  was 
the  actual  thing  which  the  per.son  who  did  the  wrong  intended 

50  should  happen.  There  can  be  no  question  of  remoteness. 
Nothing  actually  intended  can  be  remote,  and  as  to  uncertainty, 
and  if  the  damage  is  uncertain,  it  does  not  lie  in  the  mouth  of 
the  person  who  has  committed  the  injury,  with  the  intention 
thatthat  very  damage  should  happen,  toafterwards  turnaroundand 
say  '  I  will  not  pay  damages  because  it  xnay  be  uncertain  what 
amount  of  damages  are  actuolly  sustained.'  Here  is  a  distinction 
which  exists  between  the  cases  relied  on  by  the  United  States 
when  you  come  to  the  question.  "Take  the  ordinary 
Adtnirality     case    of    a     collision    of     two    vesssels     at    sea. 

(50  The  point  of  distinction  between  that  case  and  thi.s  is 
that,  in  the  case  of  a  collision,  nine  times  out  of  ten  it  happens 
by  accident,  by  negligence,  by  carelessness.  For  instance,  if  one 
ship  runs  into  another,  and  the  ship  that  has  been  run  into  hap- 
pens to  be  out  on  a  fishing  voyage,  or  something  of  that  kind, 


I   -"mm* 


i':!; 


i  ''i  . 


Iti 

(Mr.  Pftfi's'  Aif^iiiiient.) 

tlip  ship  which  ran  into  lior  iievt-r  iiitciuled  to  break-up  tlie 
voj-iiijc.  Tii(!  coIUhIoii  itself  \v:is  ucciiifiitnl  ami  tluTcfore  no 
intention  could  exist;  theret'ore  the  courts  iiiy  down  tlie  ratlier 
hard  and  fast  rule  in  some  Admiralty  cases  tliat  the  damaife  to 
be  allowc'ii  is  confined  to  actual  value.  Then,  a^oiin,  take  the 
case  of  I'rizt!  Courts  wlieru  a  .ship  's  inipi'operly  seizecl  and 
10  ordered  to  be  j^iven  back  ai{ain  or  daniaj^es  paid.  Tlie  rule  laid 
down  is,  so  lonjx  a.s  it  is  the  policy  of  the  (Jovernment  to  allow 
these  jirivateers  to  seize  vessel.s,  that  it  would  be  improper  and  a 
bad  policy  to  keep  them  too  strictly,  and,  unless  tlioy  have 
acted  in  malice,  they  are  to  a  certain  extent  to  bi;  protecte(l.  I 
pi'opose,  in  order  to  make  clear  the  position  1  am  takiufr  in  n.. 
Hard  to  this,  to  examine  the  cases  that  my  learned  friend  relies 
on,  that  is,  both  international  cases  and  cases  in  Admiralty 
Courts  and  Prize  Courts;  and  I  tidnk  the  examination  of  these 
cases  will  make  the  point  that  I  take  come  out  very  clearh'.  I 
20  first  refer  you  to  the  case  of  the  ''  Lively,"  reported  in  (ialli.son'H 
Reports,  cited  in  my  learned  friend's  argument,  page  101.  It  i.s 
u  lengthy  case,  but  there  is  only  one  part  referring  to  this  point 
and  I  will  give  you  that.  The  statement  is  laiii  down  as  fol- 
lows :  "Where,  after  an  illegal  capture,  the  vcsstd  and  cargo 
have  been  wholly  lost,  the  prime  cost  and  interest  is  the  mea.sure 
of]  damages.  Freight  not  a  proper  item."  On  page  324  the 
learned  judge  deals  with  that  point  and  says:  "But  the  most 
important  item,  that  of  lo.ss  of  profits  deserves  a  more  exact 
consideration."  I  should  have  been  glad  to  have  seen  an 
30  authority  approving  of  such  an  allowance  under  circumstances 
like  the  present.  How  have  these  profits  been  lost  ?  The 
voyage  was  not  broken  up,  nor  incapable  of  being  pursued.  On 
page  32o  he  says : 

"After  all  it  would  be  calculation  upon  conjecture,  and  not 
upon  facts.  Such  a  rule,  therefore,  has  been  rejected  by  the 
courts  of  law  in  ordinary  cases;"  Not  that  I  am  not  disputing  the 
proposition  that,  in  ordinary  cases,  that  rule  is  correct.  "An 
uniform  ijiterest  has  been  applied,  as  the  measure  of  damages 
for  the  detention  of  property.', 
40  Then  he  goes  on  further  to  show  the  reason  of  the  rule  in 
prize  cases  saying  on  page  32()  as  follows  : — 

"  It  would  also  operate  as  a  discouragement  upon  the  public 
service.  So  long  as  public  ships  or  private  ships  are  armed  with 
warlike  commissions  of  the  government,  it  is  the  iluty  of  courts 
of  justice  to  grant  due  indulgence  to  the  nature  of  the  service 
and  not  to  punish  every  irregularity  with  penalties  amounting 
to  a  prohibition  of  captures." 

He  says  "  public  ships,  as  well  as  private  .ships,  n)ust  be  gov- 
erned by  the  same  principles,  and  if  an  erroneous  capture  were 
to  bo  followetl  by  a  compensation  of  all  the  po.ssible  profits  of 
the  voyagi%  no  person  in  the  service  could  be  safe." 

There  is  in  this  case,  as  in  all  the  eases  cited  by  mj-  learned 
friend,  an  ab-olute  want  of  the  element,  as  I  say,  which  settles 
his  liability — the  element  of  an  intention  to  cause  the  damage 
that  was  caused.  He  cites  again  the  ease  of  the  "Amiable 
Nancy,'  which  is  reported  in  3  Wheaton.  This  case  my  learned 
friend  relies  on  very  considerably.  This  also  was  a  prize  case. 
The  head  note  is : 
(jQ  "  The  prima  cost  or  value  of  the  property  lost,  and,  in  case  of 
injury,  the  diminution  in  value  by  rea.son  of  the  injury,  with  in- 
terest thereon,  affords  the  true  measure  for  estimating  damages 
in  such  a  case." 

This  case  ia  gone  into  very  fully  ;  all  the  items  are  set  out, 


50 


rule  in 


pul>lic 


set  out, 


17 

(Mr.    Peters'   Argument.) 

anil  the  same  reason  is  given.     Justice  Story,  on  page  201,  gives 
the  rea.son.     He  says  : 

"  While  the  Ooverninent  of  the  country  .shall  choosn  toauthor- 
"  izc  enployment  of  privateers  in  its  puhlic  wars,  with  the 
"  knowledge  that  such  enployment  cannot  he  Hxempt 
"  from     occasiomi      irregularities      and      improper      conduct, 

10  "  it  cannot  be  the  duty  of  courts  of  justice  to  defeat  the  policy 
"  of  the  Government,  by  burdening  the  service  with  a  responsi- 
"  bility  beyond  what  justice  require.",  with  a  responsibility  for 
"  unliijuidated  damages,  resting  in  mere  discretion,  and  intended 
"  to  punish  offenders." 

The  rule  applied  to  prize  cases  is  the  rule  of  public  policy, 
which  has  nothing  to  do  with  cases  of  this  description.  A  man 
has  a  privateer  and  resides  in  Halifax  or  New  York,  as  the  case 
may  be  :  he  sends  his  privateer  out ;  he  has  to  employ  this  man 
and  that  man,  and  whilst  you   will,  if  an   improper   seizure  is 

20  made,  restore  the  property,  you  will  not  hold  the  owner  of  the 
privateer,  who  really  has  but  small  control  over  these  men,  for 
such  liability  as,  if  put  into  practical  force,  would  make  the 
burden  so  great  that  no  man  would  ever  enter  into  the  business 
of  a  privateer  at  ail  ;  and  he  says  that  so  long  as  the  policy  of 
having  privateers  exists,  .so  long  you  must  be  careful  and  not 
put  too  great  a  burden  upon  them. 

The  next  case  that  he  refers  to  is  the  case  of  Le  Amistad 
de  Rues,  cited  at  page  101,  of  my  learned  friend's  argument. 
This  is  also  a  prize  case.     At  page  074  Judge  Btcry  gives  the 

30  following  judgment: — 

"  The  last  (luestion  will  be  first  considered.  And  as  to  the 
"  item  of  damages  for  loss  of  market,  we  are  all  of  opinion  that 
"  it  is  clearly  inadmissable.  In  cases  of  mariii"  torts,  this  court 
"  has  deliberately  settled  that  the  probable  profits  of  a  voyage 
"  are  not  a  fit  mode  for  the  ascertainment  uf  damages,"  and  he 
cites  the  "  Amiable  Nancy." 

It  is  considered  that  the  rule  is  too  uncertain  in  its  own 
nature,  and  too  limited  in  its  applicability,  to  entitle  it  to 
judicial  sanction.     The  same  principle  must  govern  in  the  present 

40  case.  Then  he  proceeds :  "  But  a  more  general  objection  is  to 
"  the  allowance  of  any  damages  in  cases  of  this  sort,  as  between 
"  the  belligerents.  The  doctrine  heretofore  asserted  in  this  court 
"  is,  that  whenever  a  capture  is  made  by  any  belligerent,  in 
"  violation  of  our  neutrality,  if  the  prize  come  ■  oluntarily  within 
"  our  jurisdiction,  it  shall  be  restored  to  the  o  >ginal  owners" 

He  then  goes  on  to  hold  that  in  that  cufe  they  have  no 
jurisdiction  to  give  any  damages  except  the  restoration  of  the 
property,  or  the  actual  value  of  the  property,  so  that  that  case, 
when  considered,  is  no  authority  in  my   learned  friend's  favor. 

50  But,  outside  of  that,  it  is  impossible  to  hold  them  in  cases  of  this 
sort  too  strictly  to  the  amount  of  damages.  Now,  in  regarl  to 
Admiralty  cases,  cases  of  colli"^!'.!-.  the  same  principle  will  be 
found  if  you  refer  to  the  en  >  (♦  collision  mentioned  by  my 
learned  friend.  He  cites  as  the  leading  authority  upon  the  point 
the  case  of  the  "  Columbus,"  3  W.  Robinson  (by  mistake  cited  2), 
a  judgment  by  Lushington.  He  cites  that  at  page  101.  This  is 
cited  as  a  leading  authority,  and,  of  course,  my  learned  friend 
has  taken  the  precaution,  in  citing  these  Admiralty  cases,  to  cite 
the  judgment  of  very  strong  men,  such  as  Lushington  and   Mr. 

GO  Justice  Story,  and  he  says  that  their  decisions  have  a  binding 
effect  everywhere. 

Mr.  Dickinson : — I  only  intended  to  give  you  the  leading 
cases,  of  cour.>e. 

Mr.  Peters  : — I  say  the  same  distinction  runs  through  them 


Hf 


■i   ^  ji 


l,s 

(M?',    I'cti'i"*'    Ar^utiii'iit.) 

all  ;  Hiiil,  if  you  woiiM  look  tlirnin;li  ono  Iminlrt'il  of  tlusiii,  you 
woiiiil  notcarry  yourself  (I  siii;;liisti'p  furtlicr.  TIki  "  Coliinilius" 
is  a  collision  casa  and  lias  no  luiaiini^  on  tliis  case,  wlicic  tiiM 
seiziirHs  maile  wero  of  vcss^'ls  cariyin;,'  on  a  Icj^itiinati'  hiisiiicss, 
vvilli  lliu  intfiition  of  preventing'  them  from  pursuing,'  that 
busiiiens.     This  remark  applies  to  all  the  eases  cited,  and  there  is 

10  a  remark  made  hy  thu  ji'dj^o  in  the  "  Colunihus  "  case,  to  which 
1  draw  your  attention,  at  page  14  of  my  reply  ;  the  Judi»i',  in 
his  decision,  asks  if  a  vessel  liail  heen  hound  on  a  voyage  to  the 
East  Inilies  "  with  a  valinilile  carjjo  on  hoard,  for  the  transporta- 
tion of  which  not  oidy  would   the  owners  I ntitled  to  a  lar^'o 

amount  of  prolit,  liut  iIk^  master  must  In  entitled  to  consideralile 
continj;ent  jirotits,  from  allowance  niadi'  to  him  upon  such  a 
voyBj,'e,  could  thi.s  court  take  upon  itself  to  deciile  upon  the 
amount  of  this  ?  "  This  is  the  (luesiion  that  the  ,iudt>e  puts,  and 
he  answers  this  ([uestion  in  the  nej,'ative.     Hut  if  one  other  fact 

20  had  lieon  ad<led  to  the  case,  namely,  that  the  collision  was  caused 
purposely,  with  the  olject  of  preventing'  the  nuister  I'lom  makinir 
these  profits,  would  he  have  yiven  the  sameanswei-  ?  Hut  if  you 
put  this  -nse :  Suppose  two  vessels  at  sen,  hoth  i^oinj;  on  a 
fishing  tiip,  the  one  likely  to  interfere  with  the  other;  suppose 
that  one  runs  into  thi!  other  (m  the  purpose  of  ])rev(>ntini,'  the 
othei  from  j,'oiiii,'  on  that  H-hing  voyaije,  and  so  henetittiti^  her 
own  chance,  can  it  he  ai;j;ued,  if  that  intention  existed,  aii(|  if  tl  i.' 
eH'ect  of  the  net  was  to  cause  the  very  thiui,'  that  was  intende  I, 
tluit  tlu^  dania<,'es  would  he  simply  confined   to  the  value  of  the 

30  schooner,  which  mii,dit  he  a  smiill  amount  compari.'d  to  t'lO 
possihle  i)rotits  of  the  voyage  :"  I  say  all  the  cases  relie<l  on  liy 
my  leariitMl  friend  ditl'er  from  this  cise  in  this  material  respei  t. 
that,  in  cases  (jf  collision  aiul  priz  -ases,  no  intentinn  exists  of 
preveiitinj,' a  certain   liusiricss;  '  \y,  in  this  c.'is  •   the    direct 

intention  was  not  to  tidvC  the  sh  to  stop  them  fmni  sealing. 

What  was  their  conduct,  your  hoi.  .s,  in  the  year  !NM>r  You 
remember  that  in  the  years  188(1  and  liSS7  the  vessels  that  were 
seized  were  actually  taken  to  Sitka  ami  forfeited  ;  hut  in  1SH9 
the  commanders  of  the   revenue  cutters  saw    that    they   would 

40  carry  out  their  ohject  just  as  well  without  going  to  the  trouble 
and  hoiher  of  taking  thiise  vessels  to  Sitka,  an<l  they  simply 
went  on  hoard,  took  oti'  the  skins,  took  away  their  arms,  their 
spears  and  guns,  and  let  the  vess(d  go,  telling  them  to  go  to 
Sitka,  which,  of  course,  they  did  not  do.  They  accomplished 
their  intetition  just  as  well  in  1!SS!)  as  they  did  in  I8S(J  and  1NH7. 
Their  object  was  iK)t  the  taking  of  the  vesi-el,  but  the  prevention 
of  the  sealing,  and  Just  as  in  the  case  1  have  put  of  the  two 
lishing  vessels  going  out  on  a  fishing  voyage,  and  the  one  i  uuning 
iito  the  other  to  stop  her  fiom  fishing,  so  in  thi-;  case  you   have 

oO  accomplished  what  ynu  have  intended,  and  should  be  satisfied. 
New,  what  is  the  next  thing  my  learned  friend  says?  He  says 
there  is  another  class  of  cases  which  siiow  that  these  damages 
cannot  be  given,  and  refers  to  the  well  known  ease  of  the  Geneva 
Arl  itration,  and  lays  down  his  proposition  very  clearly  in  these 
woids  : — 

The  claim  for  prospective  catch  is  settled  adversely  to  Great 
Britain  by  what  has  been  seen  is  conventii)nal  or  positive  inter- 
national law,  fixed  and  binding  on  both  nations,  viz.,  a  decision 
of  the  precise  (piestion  on  analogous  facts  by  the  adjudication  of 

GO   the  Tribunal  of  Arhiltation  at  Geneva." 

That  is  his  proi)osition,  and  he  cites  from  the  proceedings  in 
that  case  at  considerable  length.  Now,  we  join  issue  with  him 
in  regaid  to  the  applicability  of  that  authority.  We  say  tin.' 
same  distinction  exists  with   reference  to  that  case  as  in  Prize 


19 


(Mr.    Petor»'    Ar^jumont.) 

cases;  and,  in  order  tliat  yoii  mfty  sod  liow  clnarly  it  is  drawn,  I 
wisli  to  refer  vour  Honors  to  a  partieular  citation  in  tlio  ar^'u- 
incnt  of  (lie  United  Stales  co\insei  at  (hmeva,  Atpafji^22l  of 
what  is  called  tlie  "  Ar;,Mnnent  at  (Jeneva,"  the  citatioti  I  am 
to  make  sliows  tiiat  tlie  United  States  coiinso!  at  tiiat  time  liad 
in  tlu'ir  minils  the  very  distinction  which  I  am  attomptin;,'  to 
10  daaw  luTu.  The  connsel  was  argiiinj,'  the  (]iiostion  as  to  what 
(hinia^cs  were  to  he  aih)Wed  in  their  written  arj^ument  and 
amuiiu'st  other  thinjj;s  counsel  said  : — 

"  We  come  now  to  the  class  of  claims,  some  private,  some 
general,  which  in  r(!cent  discnssions  between  tlio  two  Govern- 
ments are  olijected  to  hy  (Jreat  Britain  as  beinjj  indirect.  'I'hese 
are: — (I)  "  Eniianced  rates  of   insurance   in  tiie    Unite<l   States, 

occasioned  by  confederate  cruisers." 

•  ••««« 

(2)  "  Transfer  of  the  maritime  commerce  of  the  United  States 

20   to  Oriat  I'.ritain." 

This  was  a  national  loss.  "  i^rowinj^  out  of  the  acts"  of  the 
cruisers,  and  liavin<^  them  for  its  distinct  and  sole  cause. 

It  was  a  loss  to  the  Unite<l  States,  constitutinjf  (rain  to  Oreat 
Britain.  We  do  not  say  that  there  was  culpable  nei^lect  of  the 
ubliL'ation.s  of  neutrality  in  order  that  she  might  thus  gain 
theiel.y.  There  is  the  very  ditference  that  e.xists  between  that 
case  and  this  case.  United  States  counsel  say  that  in  the 
"  Ahtliiiuia"  case  they  ilo  not  claim  that  (Jreat  Britian  was  guilty 
of  lU'glect  with  regard  to  nt.'Utrality  in  order  that  (ireat  Britain 

30  might  nuvke  a  gain.  In  this  partinidar  case  wi^  sa}'  that  you 
seized  our  vessel-  for  the  purpose  of  preventing  British  people 
carrying  on  the  .ishing  business,  so  that  you  might  carry  it  on 
solely  yourselves.  Tlie  very  thing  that  was  not  in  that  case,  is 
in  this  case  ;  an<]  therefore  the  argument  that  is  used  by  my 
learned  friend,  to  which  [  call  your  attention  does  not  assist  him. 
He  says  thi.s  at  page  i)!) : — 

"  But  it  IS  stated  in  the  opposing  argument  (p.  2'))  that  a 
"  radical  tlistinction  exists  between  the  Alaliama  case  and  the 
"  present.     In  the  case  of  the  Al.abauia  it  was  not  contended  that 

40  "  it  was  the  design  jf  the  (Government  to  cause  the  loss  which 
"  ensued,  nor  was  such  loss  the;  direct  result  of  the  negligenco  with 
"  which  they  are  charged." 

This  he  says  is  answered  in  tlie  Briti.sh  argument  :  — 
"  The  charge  of  tin;  United  States  before  the  Geneva  TrilMinal 
was  coiisidei-ed  by  Her  Maje.stj''.s  Government  as  '  a  charge  of 
injurious  negligence.'"  Then,  my  learned  friend  goes  on  to 
argue  that  because  there  were  the  same  stiong  wor<ls  used  in  the 
award  and  because  it  is  called  "  injurious  negligence  "  and 
"  culpable  negligence  "   a"d  that  sort  of  thing  that  therefore  it 

50  became  the  .same  as  this  ca.se.  But  all  through  the  Alabama 
case  lan  this  point.  The  ground  upon  which  Great  Britain  was 
eondenuied.  and  the  only  ground  was  that  she  ommitted  to  do 
something  that  she  ought  to  have  done.  This  is  entirely  ditl'erent 
case.  Let  ine  refer  you  on  that  point  to  the  award  itself  and 
you  will  see  that  that  case  comes  out  very  clearly.  I'ermit  me 
to  point  out  to  you  the  award  which  I  find  in  Forei^  n  Relation.s 
Geneva  Arbitration,  Vol.  I.  It  recites  certain  faf.ts,  beginning 
on  pages  4!)  and  oO.  Now,  what  are  the  facts  that  it  recites  ? 
"  And  wherea.s  with  respect  to  the  vessel  callcJ  die  '  Alaliama," 

60  "  it  cleiirly  results  from  all  the  facts  relative  to  the  con.struction 
"  of  the  ship  at  present  designated  by  the  number  '  290 '  in  the 
"  port  of  Liverpool,  and  its  equipment  and  armament  in  the  vicin- 
"  ity  of  Terceira,  from  the  agencie.s  of  the  vessels  called  the 
"  '  Agrippina '  and  the  '  Bahama,'  despatched  from  Great  Britain 


r  h*mm 


20 

(Mr.    Peters'   Argument.) 

"  to  that  ejiu,  thr.i  the  British  Government  failed  to  use  due 
"  diligence  in  the  performance  of  its  neutrality  oliligations,  and 
"  especially  that  it  omitted,  nothwithstanding  all  warnings  and 
'•  official  representations  made  by  the  diplomatic  aj,'ents  of  the 
"  United  States  during  the  construction  of  the  said  number  '  290,' 
"  to  take  in  due  time  any  effective  measures." 

10  And  when  they  came  to  the  operative  part  of  the  award  in 
the  Alabama  case,  four  of  tliS  arbitrators  say  that  they  are  of  the 
opinion  that  Great  Britain  has  failed  by  omission  to  fulfil  the 
duties  prescribed  in  article  third  ;  and  further  on,  when  the}' 
come  to  give  the  judgment  in  tiie  "  Florida"  case,  they  say  that 
Great  Britain  has  failed  by  omission  to  fulfil  the  duty,  and  so 
on.  With  regard  to  the  other  cases,  the  judgment  was  that 
Great  Britain  did  not  fail  by  any  act  or  omission  to  fultil  and  so  on. 
So  that  we  start  with  this  proposition  that  in  the  Geneva 
Awanl  Great   Britain  was  compelled  to  pay  compensation,  not 

20  because  she  did  iinything,  not  because  her  officers  did  anything, 
not  because  she  had  any  intention  of  injuring  the  United  States, 
or  any  subject  of  the  United  States,  or  any  property  of  the  United 
States,  but  because  she  had  omitted  to  do  something  which,  under 
the  Treaty,  she  was  bound  to  do.  There  is  all  the  difference  in 
the  world,  in  a  case  where  the  act  was  not  done  intentionally,  or 
with  wrong  motive,  but  where,  under  rules  of  International  law, 
it  was  held  that  a  nation  was  IjounJ  to  a  certain  amount  of  dili- 
gence in  seeing  that  neutrality  was  observed,  and  if  it  failed  in 
this  diligence  it  was  made  liable.     And  a  case  like  this  where  the 

30  injury  was  wilful  and  done  with  the  express  intention  of  causing 
the  loss  of  profits,  what  does  the  finding  to  which  they  refer 
amount  to?  It  amounts  simply  to  this — -that  in  the  case  where 
Great  Britain  was  charged  with  an  act  of  omission,  there  could 
be  no  recovery  of  damages  foi  prospective  profits.  That  is  all 
the  decision  amounts  to  in  relation  to  that  point.  That  decision, 
no  doubt,  is  one  that  ought  to  be  receivetl  by  every  international 
tribunal  with  great  weight, — but  it  can  only  be  authority  in  so 
far  as  applying  to  cases  where  thecircumstsnces  are  similar,  and 
if  there  was  wanting  in   that  case   what  e.xists  in  this  case — an 

40  intention  to  do  the  actual  wrong,  then  the  "  Alabama  "  case  is  no 
authority  on  behalf  of  the  contention  of  my  learned  friend.  It 
\h  an  authority  wanting, just  as  the  other  authorities  were  want- 
ing, in  the  one  particular  of  intention. 

The  Comntissioner  on  the  part  of  the  United  States  : — I  do 
not  find  the  page  in  the  reply,  in  which  you  refer  to  this  matter, 
and  cite  the  Geneva  case. 

Mr.  Peters  : — Part  of  the  citation  whicli  I  made  to-day  was 
not  in  my  reply.  Tlitr  portion  cited  from  page  221  of  the  argu- 
ment of  the    United  States  counsel   at  Geneva,  was  not  in  my 

50  reply.  Now,  I  also  refer  you  on  this  same  point,  to  th(!  o))inio.i 
given  by  (,'liief  Justice  Gockbuin  on  that  occasion — to  show  that 
the  decision  which  they  airived  at  upon  the  question  of  prospec- 
tive catch,  is  not  applicable  to  this  case.  He  deals  with  the  point 
at  page  o.'}?  of  the  volinne,  kriov  :i  as  the  "Geneva  Aibitration — 
Foreign  Kel.itions."  In  onh-r  to  get  at  what  was  the  decision  of 
the  arbitiators  in  that  case,  it  is  ne'!essary  to  look  at  the  opinions 
of  the' difleient  arbitrators  upon  the  matter.  Here  is  an  opiniiui 
of  the  arbitrator  that  most  strongly  contend  against  any  liability 
for  a  prospective  catch  : — 

'iO  Mr.  Dickinson  :  —  In  the  Geneva   Arbitration    there  was    no 

discussion  about  prospective  catch,  except   as  to  whalers. 

Mr.  Peteis  : — That  is  correct.  Chief  Justice  Cockburn  con- 
tended that  a  prospective  catch  could  not  be  allowed  for — and 
he  gave  reasons  for  his  contention. 


21 


(Mr.   Peters'    Argument.) 

The  Commissioner  on  the  part  of  the  United  State.s : — 
But  the  award  does  not  ii.se  the  words  "  prospective  catch  " — it 
uses  tlie  words  "prospective  earnings,"  does  it  not  ? 

Mr.  Pwter; : — Yes.  Let  me  refer  to  tlie  reasoning  of  Chief 
Justice  Cockhuia,  in  the  Geneva  case,  as  to  why  a  prospective 
CP.tch    could    not    be   alijwed    for.       Every     point    that    was 

10  fiecideil  has  to  be  taken  into  consitleration,  in  reference  to 
ihe  facts  before  tlieiii.  Tiiey  had  no  right  or  power  to  lay 
down  some  general  proposition  applicable  to  some  circum- 
stances different  from  the  circumstance.s  before  them,  such 
a  coun-e  would  be  outsi(ie  their  jurisdiction.  The  arbitra- 
tors in  that  case  had  no  more  right  to  give  a  judgment 
on  some,  matter  inapplicable  to  the  facts  l)efore  them,  than 
have  t)ie  honorable  commissioners  in  this  case.  (Jhief  Justice 
Cockburn  is  the  only  man  who  gives  the  reason  why  prospective 
earnings  were  not  allowed  in  the  Geneva  Aibitration  case.     This 

20  is  what  he  states  at  page  537 : 

'  Now,  there  can  be  no  doubt  that  the  only  damages  which  the 
"  tribunal  i;;  authorized  to  award,  under  the  Treaty,  for  the 
'■  indoninitication  of  American  citizens,  must  be  to  find  the  loss 
"  actually  sustained  by  destruction  of  ships,  cargoes,  or  personal 
"effects.  Where  damages  to  property  arises,  not  directly  from  a 
"wilful  injury — but  indirectly  only  frotn  want  of  due  care,  an 
"  indemnity  against  actual  loss  is  all  that  by  the  law  of  England 
"  and  America,  or  by  any  principal  of  general  jurisprudence, 
"  can  possibly  be  awarded." 

30  Mark  these  words  : — "  Where  damages  to  property  arises  not 
directly  fiom  wilful  injury."  Chief  Justice  Cockburn  makes 
that  distinction  himself,  but  in  the  present  case,  the  damages 
was  direct  and  wilful.  Now,  compare  the  language  of  Chief 
Justice  Cockburn,  with  the  language  of  the  United  States 
Counsel,  which  I  have  already  (|U()ted.  Both  the  arbitrators  for 
the  United  States  and  Great  Britain  seem  to  agree  that  there 
was  a  difference  between  a  case  where  damage  was  caused  from 
a  wilful  and  direct  act,  and  a  case  where  the  damage  was 
indirect  and  unintentional.     The   distinction  to  my  mind  seems 

40  clear. 

There  is  another  consideration  in  connection  with  the  Geneva 
Award  to  which  I  shall  call  attention  :  It  is  alleged  that,  in  the 
Geneva  Award  case,  it  was  decided  that  damage  for  prospective 
earnings,  or  catch,  should  not  be  allowed,  but  as  a  fact  the 
arbitrators  did  not  allow  for  .such  damage.  I  made  that  state- 
ment, and  my  learned  friend  denies  it  with  some  little  warmth  ; 
and  he  says  at  page  !)4  of  his  argument ; 

"  A  somewhat  remarkable  statement  is  found  in  the  Briiisli 
"argument  (p.   2.5,  fol.  20),  as  follows :  A  reference  to   the  pro- 

50  "  cet'ilings  before  the  Geneva  Arbitration  will  suow  that  as  a 
"  matter  of  fact  aii,'.  ugh  this  general  proposition  was  laid  down 
"  in  the  Award,  a  '•uin  in  lieu,  of  pvoxpedive  prufiti^  ivds  allourd 
"to  the  govern  ,>>L  By  leference  to  protocol  No.  20,  it  will 
"appear  that  t:.b  .iward  was  finally  made  upon  the  basis  of 
"  allowing  a  sum  eijual  to  25  per  cent  of  the  value  of  the  vessel 
"and  outfit  in  lieu  of  prospective  catch,  this  sum  amounting  in 
"  that  case  to  S!)8,S,000." 

My  learned  friend  proceeds  to  say  that  "  this  is  a  .-itriking 
error."     I  propose  to  answer  that  .statement  by  referring  to  the 

€0  protocols  at  hngth.  My  lenrncd  friemi  ;;nly  referred  to  them 
shortly,  and  retVrence  to  these  protocols  will  show  that  my 
statement  is  correct,  and  that  as  a  matter  of  fact,  in  the  CJeneva 
Award,  an  amount  waj  given  in  lieu  of  prospective  earnings.  At 
pages  «    and    9,  appemii.K    to  my   reply,  1  have    set  out   these 


I  r 


t  I 


22 

(Mr.    Peter8'   Argument.) 

protocols  in  full,  and  I  have  set  out  in  the  three  protocols,  "  29, 
30  and  31."     My  learned  friend  at  papje  !)5  of  his  argument  says  : 

"  After  a  very  full  and  mo.st  exhau.^tivo  discussion  of  the 
"question  of  a  prospective  catch,  and  after  both  sides  had  raised 
"the  entire  argument  on  August  l!)th,  1872,  given  but  ten  days 
"  before  the  first  forma!  ruling  against  prospective  profits—-  the 

10  "  arbitrators  requested  the  Counsel  for  the  United  States  to  pre- 
"  sent  a  table  of  the  claims  of  the  United  States,  and  then  in 
"  these  tables  as  stated  in  accordance  with  the  suggestions  of 
"some  of  the  arbitrators,  (the  Counsel  say).  \vc  have  eliminated 
"from  the  tables  the  claims  submitted  in  favor  of  the  whaling 
"  vessels  for  a  prospective  catch — the  amount  of  which  would 
"  bo  four  million  nine  thousand  three  hundre<l  and  two  dollars 
"  an<l  fifty  cents  ;  and  it  appears  that  these  claims  were  so 
"  eliiidnated  for  the  purposes  of  the  tables,  and  for  the  use  of  the 
"  arbi'rators,  although  not  wholly  withdrawn."     «     •     *     * 

20  Now,  under  protocol  XXIX,  by  which  the  British  argument 

here  stated,  as  above  q\ioted,  it  will  appear  that  the  award  was 
finally  maile  upon  the  basis  of  allowing  a  sum  equal  to  twenlj'- 
five  per  cent,  etc.,  in  lieu  of  a  prospi'ctive  catch.  It  appears  n,s 
a  matter  of  fact,  and  as  .'^tated  in  the  protocol  itself,  that,  the 
only  titvires  presented  were  not  an  awar<l,  but  a  finding,  and  that 
Mr.  Stnempfli,  as  one  of  the  arbitratois,  presented  to  the 
tribunal  copies  of  tlie  synoptical  tables  which  he  hail  prepared 
as  a  pi'oposition  for  the  <letermination  of  a  sum  in  gross.  Now, 
let  us   look    at   this  protocol.     It  shows  that   the  tribunal    first 

30  considered  the  (|U(!stion,  aii'l  Mr.  Staempfli  presented  to  the 
tiibunal  copi(>s  of  tin;  synoptical  taLle.  That  table  contains 
three  headings:  First,  an  American  table;  Second,  a  British 
allowanci-.  and  then  a  mean,  between  the  two  which  he  proposes 
to  give.  The  claim  for  prospective  catch  was  struck  out  of  ttie 
last,  but  in  the  mean  which  was  by  Staempfli  and  (yncklmrn,  the 
sum  of  S'iMS.OO!)  was  allowed  as  wages  in  lieu  of  proqiective 
piofits— that  is — it  was  called  "prospective  profits."  This  2o 
per  eerit  is  expressly  stated  to  have  been  given  in  lieu  of  the 
daieages  claimed  for  prospective  profits. 

40  Sir  Alexander  Coekburn  presents  certain  objections  to  this 
claim,     'i'be  objection  of  Coekburn  is  as  follows: — 

"The  new  claim  of  one  million  four  liutulred  and  fifty  thou- 
"sanil  dollars — advanced  for  the  first  time — on  l!)th  August  last. 
"  As  to  the  claim  —  Mr.  Staempfli  declared  that  he  would  exclude 
"it  from  consideiation.  It  is  important  toobserve  that  this  new 
"claim  comprises  over  and  above  the  entire  unsupported  claims 
'•  for  shares  of  vessels  and  for  ailditional  personal  effects,  a  claim 
"for  wages  extending  ovei  long  and  varying  periods.  The 
"  tribimal  has   decided   that  one  year's  wages,  in   respect  to  the 

50  "  whalers,  should  be  allowed,  in  lieu  of  prospective  catch.  For 
'this  one  vear's  wages  Mi-.  Staempfli  has  made  a  separate  allow- 
"ance  of  S.'jSS.OOO.'' 

This  (piotation  is  cited  as  authority  by  my  learned  friend  that 
the  CJeneva  Award  deej.led  that  a  prospective  catch  could  not  be 
allowed  for.  But  here  is  Chief  Justice  Coekburn — the  man  who 
.strongly  objects  to  this  class  of  claim — who  states  that  the 
tribunal  decided  that  one  year's  wages  should  be  allowed  in  lieu 
of  piospective  catch.  I  am  not  now  discussing  the  amount 
wdiieh  should  be  allowed   at  all ;  and   the  point  that  I  make  is 

CO  that,  notwithstanding  that  a  general  proposition  was  recognized 
— that  prospective  earnings  should  not  be  allowed  for — at  the 
same  time  in  that  particular  case  they  recognized  the  ju.^tice  of 
the  claim  under  particular  circumstances  and  decided  that  one 
year's  wages  should  be  allowed  in  lieu  of  prospective  catch. 


^m 


were    so 

use  of  the 

#     • 


23 

(Mr.    Peters'  Argument.) 

Chief  Justice  Cockburn  proceeds  to  argue  that  the  allowance 
on.  that  point  was  excessive,  but  that  is  not  material  to  my  ar<^u- 
ment.  Then  as  to  the  two  protocols,  30  and  31,  my  learned 
friend  desires  to  make  it  appear  that  there  is  certain  distinction 
in  the  dates  which  should  be  considered.  He  saj's  that  this  all 
occurred  on  September  2nd — seven  da^-s  before  the  formal  tinding 

10  of  the  arbitiators.  My  learned  friend  argues  that  because  a 
formal  award  was  signed  afterwards,  that  formal  award  must  be 
taken  as  ovcr-ridiiig  everything  hitherto  done,  but  it  nuist  be 
clear  that  the  arbitrators  decided  certain  questions  from  time  to 
time, — for  instance,  on  that  same  day  they  took  up  the  (juestion 
as  to  whether  interest  should  be  allowed,  and  they  decided  that 
it  should  be  allowed,  and  then  they  took  up  the  question  of 
prospective  earnings,  and  they  decided  that  it  should  not  be 
allowed,  but  that  a  certain  amoiuit  should  be  allowed  for  wages, 
in  lieu  of  prospective  catch,  and  then  they  decidoci  on  the  amount 

20  of  an  award  before  the  final  protocol.  The  fact  is  that  the  last 
protocol  was  simply  putting  into  a  form  what  they  had  together 
agreed  to  before — it  was  e.xpressiug  in  black  and  white  what 
they  had  decided  from  time  to  time  as  they  went  on.  So  that 
ther(!  is  reallj'  nothing  in  the  point  raised  bj'  my  learned  friend. 
His  statement  is  that  the  award  was  not  made  until  the  9th  of 
Septendjer.  What  is  the  fact  ?  There  was  n  hearing  on  the  Gth 
of  Se|)teuiber.  At  that  bearing  a  record  of  the  proceeding  of  the 
arbitration  was  read.  The  conference  was  held  with  closed 
doors.     The  protocol  was  read  anrl  approved  and  signed  by  the 

30  President  and  Secretary  of  the  urbitratoiN,  ami  the  Tribunal  pro- 
ceeded to  consider  th(>  approval  of  their  decision  ;  and  then,  at 
the  request  of  the  Tribunal.  .Mr.  A<lams  and  Chief  Justice  Cock- 
burn  undertook  to  give  a  tianslatioii  into  English,  so  that  the 
whr>le  mattter  was  settled  and  deterniine(l  upon  long  before  the 
date  referred  to  by  my  learned  friend.  \Vi^  therefore  have  these 
two  facts  broadly  brought  out — that  the  arbitrators  in  the 
(Jeneva  award  ilid  allow  a  certain  amount  in  lieu  of  prospective 
catch  :  and  we  find,  with  regard  to  the  decision  which  they  gave 
us  upon  the  ()i    stion  of  prospective  profits — that  decision  was 

40  arrived  at  liecause  the  cliargi>  was  not  that  Great  Hritain  had  wil- 
ftdly  seized,  or  clntic  anything  w  r  'Og,  to  these  ships,  l.iit  that  she 
had  committed  an  act  of  neL;lii;ince  which  they  held  made  her 
liable  for  certain  consequences  that  followeil. 

At  one  o'clock  the  Commissioneis  took  reee.>s. 

At  half-jiast  two  tlie  Commissioners  lesumed  tli  ir  seats. 

Mr.  Peters: — Before  proceeding  with  my  argument  upon  the 
r)0  question  of  damages  and  the  right  to  ri'cover  damages  for 
prospective  catch,  there  is  a  matter  which  I  should  havt"  brought 
to  the  attention  of  your  Honors  this  morning.  It  appeals  by 
reference  to  the  record  and  l)y  reference  to  the  loiinal  pleadings 
tluit  were  tiled  in  this  matter  before  your  lliiiors  at  Victoria 
under  the  rule  laid  down  by  the  Commi-■^nlll,  that  the  formal 
amount  claiuied  in  these  pleadings  in  many  instances  falls  short 
of  the  amount  that  wo  claim  has  bc^en  proved  by  the  evidence. 
My  learned  friend  on  the  other  side,  in  Ids  argument  at  page  137, 
has  pointed  out  tnis  ditt'erence,  and  has  tabulated  the  different 
00  figures  so  that  they  can  be  seen  at  a  glance.  By  reference  to 
that  table  I  find  that  in  all  the  ca.ses,  with  the  exception  of  two, 
the  claims  as  we  say  they  are  proved,  exceed  the  claims  set  out 
in  the  formal  statement  of  claim.  Wo  do  not  at  all  thiid<  that 
the    mere    fact   of  an    amount  being  claimed   at   the  end  of  a 


I   ';(;*^«i|Pi 


24 


ri!^ 


I,  . 

II: 


>   t 


(Mr.    Peters'    Argument.) 

statement  of  claim  in  any  way  affect?  our  right  to  recover 
whatever  amount  is  proved  by  the  evidence.  I  simply  state  that 
it  is  our  desire  that  the  pleading.s  be  considered  as  amended  so 
that  we  may  recover  whatever  amount  we  have  proved.  Uf 
course  the  statements  of  the  amount  in  the  formal  pleadings 
were  put  in  as  a  matter  of  convenience,  and   of  course  in  these 

10  cases,  where  evidence  had  to  be  obtained  so  long  after  the 
tran.sactions  took  place,  it  was  difficult  to  obtain  it  all  and  to 
get  at  the  facts  as  fully  as  we  did  afterwards  get  at  them.  We 
do  not  think  that  we  should  be  bound  by  any  statement  of  claim 
so  as  to  prevent  real  justice  beii  t  done  if  we  have  proved  a 
larger  amount.  I  do  not  know  that  there  will  be  any  objection 
made  by  my  learned  friend  on  the  other  .side  to  our  amendment ; 
at  any  rate,  we  make  the  application. 

Mr.  Dickinson: — I  do  not  myself  see  the  necessity  of  any 
amenduient.     Of  ourse  if  from  anything  my  learned  friend  has 

20  said  it  would  seem  to  the  Commissioners  that  we  had  taken  any 
such  technical  objection  as  that  he  was  bounil.asat  common  law, 
by  his  ad  (^amnuHi  clause  without  aunndment,  I  think  the  Com- 
missioners would  be  wrong. 

The  Coinmivsioner  on  the  part  of  the  United  States  : — 
I  did  not  get  the  impression  that  tlie  Counsel  so  stated  your 
position. 

Mr.  Dickinson  : — I  do  not  see  the  necessity  of  the  amend- 
ment. We  <lo  not  make  anj*  such  contention  as  that  he  is  bound 
by  the  dtl  ilanivam  clause  as  in  a  declaration  at  common  law. 

30  We  utilize  it  only  to  make  this  point,  tliai  the  claim  was 
unknown  to  the  parties  themselves,  and  that  their  claims  were 
extiavagiint.  We  make  some  point  of  that  kind,  which  we  shall 
amplify  in  argument.  I  very  much  <lislike  to  have  the  record 
amended  so  as  in  any  way  to  demonstrate  that  our  figures  are 
not  correct.  I  do  not  see  the  need  of  iin  amenruient  or  of  a 
change  in  the  record.  If  I  maintained  an}'  such  contention  as 
that  they  were  bound  by  any  figures  in  their  declaration,  it 
might  be  necessary  for  them  to  make  this  motion,  but  I  make  no 
such    contention,    except   as    it    beai's    upon    the    evidence   of 

40  exaggeration  of  their  claims. 

Mr.  Peters: — With  that  understanding  I  have  no  desire  to 
have  any  amendment  made.  My  learned  friend  has  .said  clearly 
and  distinctly  tliat  he  does  not  take  the  point,  and  so  there  is 
no  necessity  of  making  any  formal  amendment.  M}'  learned 
friend  is  at  liberty  to  use  the  argument  that  these  claims  are 
extravagant.  I  don't  object  to  his  use  of  that  at  all,  and,  on  the 
understanding  that  we  are  not  bound  by  our  statement  of  claim, 
I  do  not  see  myself  the  need  of  any  amendment,  and  it  is 
perfectly  satisfactory  to  me. 

50  Mr.  Dickinson: — The  only    question   that  can   be   made    is 

upon  the  schedule  in  the  Jiritish  case,  pages  1  to  fiO  inclusive. 

The  ('onunissioiiur  on  the  part  of  the  United  States: — 
That  is  a  fuudaniental  question  which  cannot  be  atJected  by  any 
amendment. 

Ml'.  Peters  : — Yes,  if  that  is  a  sound  proposition  as  laid  down 
by  my  friend  no  amendment  would  cure  it,  and  if  it  is  not  a 
sound  proposition  then  the  amendment  is  not  necessary. 

Commissioner  on  the  jiart  of  the  United  States  : — The 
notes  will  sliDW  the  whole  matter. 

00  Mr    Peteis  : — I    was  referring,  when    we  a<ljourned,  to  the 

case  ar  (Jeneva,  and  I  was  attempting  to  show,  and  I  think  I  did 
show,  tiint  there  was  a  railical  distinction  between  that  case  and 
the  case  here.  That  we  laid  down  in  these  words  in  our 
argument  at  page  2.") :  — 


25 


(Mr.   Peters'    Argument.) 

"  Apart  from  thi.s,  a  radical  distinction  exists  between 
"  the  '  Alabama '  case  and  the  present.  In  the  case  of  the 
"'Alnl'iama'  it  was  not  contended  that  it  was  the  design  of 
■"  the  British  Government  to  cause  the  loss  which  ensued, 
"  nor  was  such  loss  the  direct  result  of  the  negligence  with 
"  which  they  were  charged." 

10  That  is  the  proposition  which  we  lay  down  with  regard  to 
that.  It  has  been  argued,  for  instance  take  the  Geneva  case, 
which  is  a  peifectly  con  ect  argument  so  faras  the  persons  whose 
ve.sseis  were  seized  l)y  the  "  Alabama,"  or  the  "  Florida,"  or  any 
of  the  privateers,  that  these  vessels  had  no  right  to  complain 
themselves.  A  state  of  war  existed  and  tTiey  had  a  right  to  be 
seized  ;  they  had  no  cause  of  complaint.  Their  causes  of  com- 
plaint arose  not  from  the  act  of  seizure,  not  from  the  fact  that 
the  vessel  was  taken,  but  because  Great  Britain  hail  omitted  to 
do  something,  which,  if  she  had  done,  tliese   vessels  would    not 

20  have  gone  to  sea  at  all.  That  distinction  is  taken  in  several  of 
the  oases  that  arose  on  this  matter  afterwards,  which  I  will  refer 
to  a  little  later  on. 

Now  passing  from  the  "  Alabama "  case,  my  learned  friend 
cites  another  ca.«e  as  a  case  arising  out  of  international  ditierences. 
That  IS  known  as  the  case  of  the  "  Canada"  and  is  cited  in  the 
argument  on  the  other  side  of  pages  l();j.  In  that  case  the  facts 
were  those,  to  show  your  Honois  how  inapplicable  it  is  to  the 
present  case.  The  sliip  belonged  tf<  the  Utdted  State'',  was  fitted 
out  for  a  whaling  voyage  and    went    ashore   by  accident  some- 

30  where  on  tbecuastof  Brazil.  According  to  all  international  law, 
and  common  sense  as  well,  the  master  of  that  ship  bad  a  right  to 
use  all  proper  means  to  get  that  vessel  off.  The  Brazilian 
authorities  while  tlu>  ship  was  ashore,  and  while  the  master  of 
the  ship  was  doing  all  that  be  could  to  get  his  ship  ofi'and  with 
hopes  of  success,  allowed  an  armed  force  to  go  on  board  the 
vessel  and  umlersome  imaginary  right  or  claim  to  take  charge  of 
the  wreck,  took  charge  of  the  vessel  and  prevented  the  ma.ster 
from  getting  her  ott",  and  the  vessel  was  lost.  Under  these 
circumstances  a  claim  was  put  in,  and  that  included  prospective 

40  earnings  or  profits  of  the  voyage.  The  matter  went  to  arbitra- 
tion and  was  decided  Ijy  Sir  Edward  Thornton,  who  was  then 
British  Minister  at  Washington.  He  decided  that  in  that 
particidar  case  piospective  profits  coidd  not  be  obtained. 
He  decided  it  upon  several  grounds,  some  of  which  were  applicable 
to  that  case  otdy.  In  the  first  place,  before  you  come  to  hi.s 
actual  deoisio!!,  there  is  again  wanting  in  this  ca.se  the  element  of 
intention  to  prevent  tlint  vessel  from  carrying  on  its  legitimate 
business  of  whaling.  The  Brazilian  Government  claimed  that 
they  could  take  charge  of  the  wreck    because   it    was   a   wreck. 

oO  Tliej-  had  n(j  desire  to  stop  the  vessel  from  whaling,  the}'  had  im 
desire  to  prevent  those  on  board  from  carryirg  on  tb.e  whaling 
business.  What  did  Sir  Edward  Thornton  do  ?  He  said  "I  will 
not  give  pro.spective  profits  for  iwo  reason- ;  in  the  (irst  place, 
thi.s  voyage  is  about  beginning  and  for  ought  that  appear-, 
before!  they  could  get,  on  the  whaling  grounds  the  vessel  uduht 
be  lost.  And  in  the  case  before  him  for  the  leason  tliat  this 
captain  appears  to  bav^  run  this  vessel  ashore  at  a  point  where 
there  was  no  jiarticular  or  specuil  danger,  almost  in  the  dny  time, 
it  might  be  very  doubtful  whether  a  nuiti   who  was  so  careless 

(iO  and  negligent  would  make  anj'  profitable  voyage."  The  case 
will  be  found  in  00  Biitisli  and  Foreign  State  Papers  at  page 
20+.  I  will  read  that  part  of  his  judgment  that  refers  to  pros- 
pective profits,  page  209. 

"  The    undersigned,    however,  cannot     admit     in    anv    cu.se 


26 

(Mr.    Peters'   Argument.) 

"  tlie  riglit  to  probable  profits ;  becau.se  the  ship  might  have 
'been  lost  at  the  beginning  of  the  voyage,  or  the  expedition 
"  might  have  been  ultogeth(!r  a  failure  and  profitle.ss.  In 
"  the  present  case  this  objection  ha.s  the  more  force,  inasmuch 
"  a.s  the  Canada  was  commanded  by  a  captain  who,  veiy  little 
"  after  sunset,  and  wlien  it  hardly  began  to  be  dark,  ran  hi.s 
10  "  ship  aground  on  a  reef,  of  whose  existence  and  position  lie 
"  ought  to  have  been  perfectly  aware.  Still  the  undersigned 
"  cannot  admit  the  validity  of  any  argument  that  would  exempt 
"  the  Imperial  Government  from  the  payment  of  intere.st." 

Now  he  is  deciding  the  case  that  was  actually  before  liim, 
upon  the  facts  that  tRere  existed,  and  those  facts  shew  no  inten- 
tion on  the  part  of  the  people  who  took  the  vessel  to  prevent 
him  from  carrying  on  the  business  of  whaling,  which  is  the  point 
to  wl)ich  I  wish  to  call  3'oiir  Honors'  attention,  and  it  makes  the 
case  entirely  ditl'erent.  If  that  had  been  a  case  where  the  vessel 
20  was  seized  by  the  Govtrnnient  for  the  purpo.se  of  preventing 
him  from  whaling,  the  prospective  profits  would  have  been 
allowed,  but  no  element  of  that  kind  existed  in  that  case.  Thei-e 
was  another  thing  which  attention  is  called  to,  and  that  was  the 
negligent  conduct  of  the  master  which  ren<lered  it  very  doubtfi'l 
if  the  vovage  would  have  been  profitable  at  all. 

Mr.  Dickinson  ; — He    docs    not    use    the    neglif'ence    of  the 
captain  as  a  reason  for  the  rule  that  he  lays  down. 

Mr.  Peters: — He   says  in  the  present  case  this  objection  has 
the  more  force  inasmuch  as  the  "  Canada"  was  commanded  bj-  a 
30  captain  who  did  so  and  so. 

Mr.  Dickinson: — He  lays  down  the   universal   rule,  lie  says 
in  any  case. 

Mr.  Peteis: — Applicable  tn  cases,  the  cii'cunistances  of  which 
were  like  the  case  he  then  had  to  decide.  He  iloes  not  la}'  down 
a  rule  to  a])ply  to  a  case  in  which  the  circumstances  were 
ditl'erent.  He  does  not  lay  down  the  rule  nor  dues  he  say  that 
if  tlio  Prazilian  (Jovernment  had  seized  that  ship  for  the  purpose 
of  preventing  her  from  whaling  they  would  not  be  liable  for  the 
conse(|uence.s  and  the  damages. 
40  I  have  carefully  followed  out  all  the  autliorities  cited  by  my 
learnod  friend,  and  a  good  many  cases  besides,  with  the  object  of 
finding  out  if  this  rule  had  been  applied  to  any  case  where  the 
act  was  done  with  the  intention  of  stopping  the  carrying  on  of 
the  business,  and  I  am  satisfied  that  no  such  authority  can  be 
fonnd.  No  authority  can  be  found  to  the  effect  that  where  the 
act  is  conunitted  with  the  intention  of  stopping  one  from  carry- 
ing on  !i  certain  business,  and  the  act  has  that  ellect,  that  you  are 
estopped  from  claiming  damages  for  the  profits  that  you  would 
have  maile  if  U)u  had  been  allowed  to  carry  it  on.  The  distinc- 
50  tion  is  clear  aiiil  broad.  I  have  followed  through  to  find  out 
whether  there  is  any  case,  International,  I'rize  or  Adinir- 
altj'  where,  if  th  i,  element  existed  damages  have  been 
refused.  It  is  this  distinction  that  I  want  to  impress  upon  the 
Couit,  and  if  I  succeed  in  making  myself  clear  there  is  a  whole 
argument  in  it.  The  damages  recovered  must  not  be  too  remote. 
That  proposition  I  admit;  it  is  laid  down  by  authority  after 
authority,  and  j-et  I  say  when  the  damage  is  what  was  actually 
intended  by  the  person  who  did  the  act,  tiiat  damage  can  never 
be  too  remote.  If  it  is  in  your  mind  to  cause  a  certain  damage 
CO  and  you  do  the  act  with  that  object,  and  you  efiect  what  you 
intend  to  do,  that  efiect  is  not  too  remote  l)ecause  it  is  the  very 
thing  that  was  in  your  tnind  to  do  at  the  time  you  did  the  act. 
That  distinction  is  one  which  I  claim  runs  through  all  the  cases 
whether  in  contract  or  tort.     When  you  come  to  the  question  of 


27 


lie  saj's 


(Mr.    Peters'   Argument.) 

(fontrafit,  for  in.stance  you  are  to  .supply  machinery,  and  you  do 
not  supply  it,  and  it  is  proved  that  it  was  wanted  for  a  certain 
mill,  and  that  by  not  having  it  yo\i  were  not  able  to  cany  on 
*the  mill  the  question  is  whether  it  was  intended  at  the  time  the 
contract  was  made,  did  both  parties  at  the  time  know,  and  did 
they  intend  that  these  damages  should  be  taken  into  considera- 
10  tion  at  the  time  the  contract  was  made.  It  is  .so  in  the  cases  of 
tort.  If  you  do  an  act  intending  that  the  consequences  shall  be 
.00  and  so,  and  that  consequence  follows,  surely  that  cannot  be 
looked  upon  as  too  remote. 

I  shall  proceed  to  comment  upon  some  other  authorities  cited 
by  my  learned  frienfl  to  .'^how  that  prospective  profits  cannot  be 
allowed.  Let  me  take  the  case  of  "  Apollon  "  reported  in  the 
9th  of  Wheaton  3G2,  and  cited  by  my  learned  friend  in  his 
argument,  page  109.  I  wish  to  point  out  the  distinction  which 
exists  there.  In  that  case  the  head  note  states  : 
20  "The  probable  profits  of  a  voyage,  either  upon  the  cargo 
"  or  frtught,  do  not  form  an  item  for  the  computation  of 
"  damages  in  cases  of  marine  tort." 

At  page  376  and  377  the  matter  we  are  now  considering  was 
particularly  considered  by  Judge  Story,  who  drew  the  opinion, 
and  this  is  what  he  says  : 

"  The  principal  arguments  against  this  decree  have  been 
"  directed  to  the  allowance  of  demurrage,  as  a  just  measure 
"  of  compensation.  The  Attorney  General  contends  that  it 
"ought  to  be  disallowed  as  far  too  high  a  compensation;  the 
30  "counsel  for  the  libel'ant  as  an  allowance  unreasonably 
"  low.  This  court  on  various  occasions,  has  expressed  its 
"  decided  opinion,  that  the  probable  profits  of  a  voyage, 
"  either  upon  the  ship  or  cargo,  cannot  furnish  any  just 
"  basis  for  the  computation  of  damages  in  cases  of  marine 
"  tort  The  basis  has  accoidingly  been  in  every  itistance 
"rejected.  VVliere  the  vessel  or  cargo  are  lost  or  destroyed, 
"the  just  measure  has  been  deemed  to  be  their  actual  value, 
"  together  with  interest  upon  the  amount,  from  the  time  of  the 
"  trespass.  Whei'e  thee  has  been  a  partial  injury  only,  that 
40  "  loss  being  ascertained,  a  similar  rule  has  been  applied.  Where 
"  the  property  has  been  restored  after  detention,  demurrage 
"  during  the  period  has  been  generally  allowed  for  the  vessel, 
"and  interest  upon  the  value  of  the  cargo." 

A  few  lines  further  on  he  shews  that  this  rule  he  is  laying 
down  is  not  a  rule  of  universal  application,  but  that  there  are 
exceptions  to  it,  and  some  of  these  exceptions  are  pointed  out 
by  Judge  Storj*  in  this  very  judgment.      Ho  says  : 

"  Such,  it   is  believed,  have   been    the    rules   most  generally 
"  adopted   in    practise   in   cases   which    did   not  call    for  aggra- 
50  "  vated  or  vindictive  damages." 

Now,  there  is  a  proposition  clearly  and  plainly  admitted  that 
there  are  two  exceptions,  that  where  it  is  a  case  tlu.t  calls  for 
aggravated  damages,  or  where  it  calls  for  vindictive  damattes,  in 
neither  of  these  cases  would  this  rule  apply. 

Now,  my  fiiend  has  argued  that  this  is  not  a  case  for 
vindictive  or  aggravated  damages.  I  do  not  agree  with  him  in 
that  reipect.  I  .say,  putting  aside  the  word  vindictive, 
that  there  is  something  here  in  the  nature  of  aggravated 
damages,  because  the  act  was  not  only  wrongful,  but  wilful,  arJ 
CO  therefore  it  conies  within  the  exceptions  laid  down  by  JuVge 
Story.  Here  you  have  a  case  of  a  wilful  wrong,  and  I  say  tnat 
it  is  a  case  which  would  as  much  form  an  exception  to  lids 
general  rule  laid  down  by  Judge  Story  as  a  case  where  you 
would  be  entitled  to  aggravated  or  vindictive  damages. 


hi 


wm 


28 
(Mr.    Peters'    Argument.) 


m 


I 
s 


Now,  there  is  another  case  whicli  my  learned  friend  refers  to 
and  that  is  tlie  "  Amiahie  i^ancy." 

Commissioner  on  the  part  of  the  United  States  : — You 
have  ah'eady  referred  to  that. 

Mr.  Peters  : — There  is  one  part  of  tliat  judgment  as 
referred  to  on  page  19  of  my  reply  that  I  do  not  think  I 
10  have  referred  to.  There  i.s  one  j)art  there  where  they  say  as 
follows  : 

"  They,  (the  (nviu-rs  of  the  privateer)  are  innocent  of  the 
"demerit  of  this  tiansaction,  having  neither  diiected  it  nor 
"  countenancefj  it,  nor  participated  in  it  in  the  slightest 
"  degree.  Under  such  circnmstance,«,  we  are  of  opinion, 
"  that  the}'  are  bound  to  reyiair  all  the  real  injuries  and 
"  personal  wrongs  sustained  liy  the  liiiellants,  hut  ihey  are 
"  not  Idiind  to  the  extent  of  vindictive  dnninges." 

Such  are  tin-  authorities  that  my  learned  friend  relies  on 
20  upon  this  (ju(!stion  (jf  prospective  profits.  I  shall  now  refer  3'ou 
shortl}-,  ill  the  fii;st  place  to  some  of  the  facts  and  prove  the 
existence  of  the  intention  to  prevent  seal  fishing,  and  I  want 
them  to  i-efer  to  all  the  authorities  we  have  cited  to  make  the 
point  that  we  have  positive  autlmrity  for  our  contention.  The 
facts  aif  that  in  USSO,  1.S,S7,  l.HSS  and  ISHi),  a  largo  number  of 
ships  Were  sealing  in  Behring  Sea.  It  is  proved  that  these 
ship.s,  at  the  time  tlii^}*  weie  seized,  were  in  almt)st  every  case  in 
the  midst  of  the  sealing  season,  and  for  the  most  part  doing 
remarkiilily  well,  and  that  the  etlect  of  the  seizures  was  to  pre- 
30  vent  many  British  shi[)s  fi'om  engaging  in  the  business.  Our 
learned  friend  tries  to  make  this  appi'ar  I'alher  small 

At  the  first  part  of  his  aiginnent,  puge  11,  he  refers  to  the 
fact  that  after  all  onl\-  a  few  vessels  have  been  driven  out  of  the 
Hehiing  Sea.     He  makes  this  statement: 

"  It  is  estimated  that  great  fieets  have  been  driven  from  the 
"  Behring  .Sea  by  the  United  States  from  year  to  yi'ur.  This  is 
"  true,  but  the}-  have  not  been  the  fieets  of  Great  Biitain.  They 
"  have  been  the  vessels  of  citizens  of  the  United  States,  in  the 
"  proportion  of  loss  to  that  of  the  subjects  of  CJreat  Britain  as 
40   "  a  thousand  to  on"." 

I  do  not  know  from  what  part  of  the  record  my  learned  friend 
got  any  evidence  in  support  of  that  statement-  I  turn  to  the 
sche<lule  in  their  own  case  before  the  tribunal  at  Paris,  and  I 
find  that  in  1886  there  were  84'  vessels  in  tiie  sea,  of  which  2.') 
were  British  and  11  American;  and  I  find  that  in  liS87  there 
were  47  vessels  in  the  sea,  of  which  1!)  were  American,  27 
British  and  1  German  ;  and  I  find  that  in  1S88  there  were  3!) 
vessels  in  the  sea,  of  which  21  were  British,  17  American  and  1 
Geiman;  and  I  find  tli.it  in  18S!)  there  were  69  vessels  in  the 
50  sea,  of  wliieli  .'{(i  were  British,  and  1  German,  and  the  balance 
American  ;  and  I  find  that  in  181)0  there  were  61  vessels  in  the 
sea,  ipf  which  '.]!)  were  British,  1  Gm man  and  2')  American  ;  and 
I  find  that  in  l8'Jl  then.'  were  ()•">  British  vessels  in  the  sea,  48 
American  and  6  unknown;  and  I  find  that  in  1892  there  were 
(i7  British  vessels  in  the  sea,  46  Ameiican  and  9  unknown. 

Mr.   Dickinson  : — Where  do  you  gta  that  citation  ! 

Mr.   Betels  : — l'"'rom  the  Aineriean  reprint. 

Mr.  Dickinson: — You  will  find  the  whole  matter  schetluled 
in  thfit  volume  of  the  British  ca^e.  We  will  come  to  that  in  the 
60   argument  and  I  will  iu)t  interrupt  you  now. 

Mr.  Peters: — I  simpl}'  make  this  statement  in  answer  to  a 
statement  made  in  the  Argument  of  the  ITniied  States.  Here 
was  the  fact  that  in  all  these  years  we  have  mentioned,  according 
to  the  showiiiif  of  the  United  States,   British   vessels    were  to  a 


<9 


(Mr.    Peters'   Aifjuiiient.) 

greater  extent  carrying  on  the  businei^sof  sciiling  in  tlie  Beliring 
Sea  tlian,tlie  vessels  of  any  other  nationality. 

■  We  know  now  tiie  liistory  of  tlie  state  of  afl'airs  that  existed 
in  IHSli.  We  know  that  it  was  only  a  yi  ar  or  two  before  lliat 
the  great  value  of  the  pelagic  sealing  in  Behring  Sea  had  liecouie 
really    known.     But  comparatively   few  sealeis  went    into  the 

10  Behring  Sea  in  1880,  fewer  still  in  1885,  and  fewer  still  in  1884. 
The  first  year  was  1880,  when  a  large  niiinlier  of  sealers  went  in, 
and  the  largest  jiart  of  the  vessels  that  did  go  in  were  British 
ves.sels. 

Now  what  was  the  intintion  with  which  these  British  vessels 
were  seized  hy  tlie  Revenue  cruisers  of  the  United  States  ?  'I'hat 
intention  is  very  clearly  shown  by  the  evidence  we  have  before 
us.  It  is  most  clearly  shown  by  the  report  of  asnb-agent  of  the 
department,  Mr.  Tingle,  to  the  Secretary  of  the  Treasury  at 
Washington.     That  report  i.s  dated  the    i8th   August,  1887.     I 

20  may  point  out  to  your  Honors  that  tliis  is  just  about  a  fortnight 
after  the  fii'st  seizures  were  made.  This  American  officer  was 
reporting  to  his  chief  officer — and  at  page  '1^  of  the  e.xhibits 
Appendix  B  you  will  find  the  following  report: — 

"  Office  of  Special  Agcvt  of  the  Treasury  Department, 

San  Fravcixco,  Au;/.  i^',  ItlDfl, 
Hon.  C.  S.  l<'Air.cHiiJ> 

Actiiuj  Secretary/  of  the  Ireaituri/,  Wuxhinglon,  D.  G. 
"  SlU, — On  my  ariivivl  at  Oiinala^ka  I  met  the  revenue  cutter 

30  " 'C'orwin,'  Captain  Aiifiey,  in  charge  of  four  .schooners,  viz., 
"'San  Diego,'  'Onward,'  '  Tliointoii,'  and  '  Carolena,'  the  last 
"  three  English  from  Victoria.  C'liptain  Alibey  has,  unfurttinately, 
"  been  short  of  coal  or  he  would  have  made  more  seizures.  He 
"  has,  however,  been  very  active  and  done  good  work.  I  urged 
"  him  to  remain  if  he  could,  cruising  around  the  island  until  the 
"'  Bear'  arrived  to  relieve  Inm.  If  he  s'lould  be  obliged  to  leave 
"  the  waters  earlier  on  account  of  the  non-arrival  of  the  coal 
"  vessel,  which,  up  to  the  time  of  our  leaving  Ounalaska,  had  not 
"  been  heard  of,  it  will  be  unfortunate  as  the  fleet  of  schooneis 

4Q  "  will  play  havoc  iiiuong  nnd  with  the  seals.  If  the  case.s  now 
"  under  seizure  are  convicted,  the  marauding  will  be  broken  up  ; 
"if  not,  seal  life  will  be  seriously  as.sailed  next  year  by  a  larger 
"  fleet  of  ves.sels. 

"  I  earnestly  hope  that  no  efforts  will  be  spared  to  convict 
"Captain  Abbey's  prisoners,  as  V.e  has  certaiidy  done  his  part 
"  well.  I  telegr;ij)hed  yovt  as  per  his  request,  also  of  my  own 
"  arrival.  I  am,  ^ery  truly,    . 

(Sgd).    George  R.  Tincji-k, 

Treasury  Aijent. 

oO  I  bring  this  to  the  notice  of  your  Honors  for  the  purpo.se  of 

showing  what  the  intention  of  the  officials  of  the  United  States 
Government  was  at  that  time.  It  was  clearly  to  seize  these 
vessels  as  a  warning  to  others  ;  to  seize  all  tlie  vessels  they  could, 
so  that,  as  he  writes  :  ■  If  the  cases  ri"w  under  seizure'  are  coii- 
"  victed,  the  marauding  will  lie  broken  up  ;  if  not,  .seal  life  will 
"  be  seriously  assailed  next  year  by  a  larger  fleet  of  vessels," 
They  use  the  word  "  marauding  "  because  they  claim  that  no 
person  has  a  right  to  hunt  seals  in  Behring  Sea  except  them- 
selves.    That  letter'  from  Mr.  Tingle  is  in  itself  the  most  complete 

GO  evidence  of  the  intention  with  which  these  seizures  were  made. 
It  was  to  prevent  "  marauding"  as  they  called  it.  It  was  to 
.s-ave  seal  life;  it  wis  to  prevent  pela'..;ie  sealing.  That  same 
spirit  runs  through  all  the  reports  uiude  by  these  revenue 
officer.". 


30 


!;  -M 


(Mr.    Peters'    Argument.) 

I  may  also  call  your  Honors'  attention  upon  this  same  point 
to  the  written  reply  of  the  United  States  to  the  British  claim  for 
damages  before  the  Paris  tribunal,  page  130,  volunie  7,  American 
reprint.     It  is  as  follows  ; 

"  The  United  States  charge  that  each  and  all  of  the  vessels 
"  when  so  seized  were  engaged  in  the  hunting  of  fur-seals  in  the 

10  "  waters  of  Behring  Sea  in  violation  of  the  statutes  of  the  United 
"  States,  anti  that  such  seizures  were  made  in  accordance  with 
"  the  laws  of  the  United  States  enacteil  for  the  protection  of  their 
"property  interest  in  the  fur-seals  which  frequent  Behring  Sea 
•'and  breed  only  upon  the  Pribilof  Islands,  which  islands  are  part 
"  of  the  territory  of  the  United  States ;  and  that  the  acts  of  the 
"  crews  and  owners  of  these  vessels  in  hunting  and  catching  seals 
"  were  such  as,  if  permitted,  would  exterminate  the  Alaskan  seal 
"herd  and  thereby  destroj-  an  article  of  commerce  valuable  to 
'all  civilized  nations'." 

20  There  is  the  formal  contention  put  forward  by  the  United 
States  Government  in  a  reply  to  the  argument  of  counsel  for 
Great  Britain,  and  here  we  have  the  statement  made  by  the 
seizing  officer  of  the  United  States  at  the  time  he  actually  maile 
the  seizure,  I  think,  your  Honors,  I  have  said  enough  on  that 
point,  to  make  clear  that  the  seizures  were  made  with  the  inten- 
tion of  preventing  us  from  catching  .seals. 

Now  then,  I  shall  pass  on  from  that  point  and  let  us  see  when 
the}'  seized  us  with  that  intention,  what  reason  is  assigned  for 
saying  that  we  should  not  get  the  damages  in  this  respect.     The 

30  reason  they  assign  is  ;  all  these  damages  aie  too  uncertain  ;  they 
depend  upon  to  ninny  probabilities  or  improbabilities ;  you 
might  catch  seals,  and  you  might  not  catch  seals  ;  They  sum  that 
all  up  ftt  page  208  of  their  Argument,  in  these  words: — 

"The  contingencies  which  enter  into  the  speculation  of  how 
"  many  seal  skins  may  be  secured  during  a  bunting  ciuise  in 
"  Behring  Sea,  which  have  been  preser.ted  in  detail  with  the  sub- 
"stantiating  evidence,  may  be  bricHy  summaiized  as  follows  ; 
"  The  smallness  of  the  ves.sels  employed  ;  the  extraordinary 
'•  perils  of  a  voyage  to  and  cruise  in  Behring  Sea  ;  the  experience 

40  "  ar  d  skill  of  the  master,  hunters,  and  crew  ;  the  unreliability  of 
"  I.idian  hunters  through  their  ignorance  and  superstition;  the 
"  frequent  inclemency  of  the  weather;  the  provalency  of  fogs 
"  and  rain  :  the  condition  of  the  animals  when  hunted,  and  the 
'  uncertainty  of  finding  seals.  Those  coiitingoncies,  the  United 
"  States  claim,  are  of  such  a  nature  ns  to  make  impossible  any 
"  method  of  computing  an  ostimuted  caich  which  will  be  just." 
Now,  3'our  Honors.  Jam  still  arguing  on  the  (juestion  of  fact, 
and  Counsel  for  the  United  States  make  that  statement.  They 
say  you  are  not  to  recover  the  prospective  catch  because  it  is  so 

50  uncertain.  In  our  reply  we  answer  that  statement  in  this  way, 
and  it  will  be  found  on  page  27: 

"  Even  if  this  statement  were  correct,  which  is  by  no  means 
"admitted,  it  is  submitted  that  nearly  every  sea  fishery  is 
"carried  on  under  similar  difficulties.  Take,  for  example,  the 
"  cod  fisheries  as  they  are  prosecuted  on  the  banks  of  the 
"Atlantic;  the  persons  engaged  in  them  have  to  contend  with 
"  the  most  severe  weather  ;  the  condition  as  to  storms  and  fogs 
'•are  at  least  as  disadvantageous  as  those  in  Behring  Sea;  they 
"  have  also  to  use  small  boats  in  rough  and  foggy  weather ;  they 

CO  "  have  to  employ  fishermen  more  or  less  expert.  Public  records 
"  will  show  that  the  casualties  in  those  fisheries  are  much  greater 
"  than  seal  hunting. 

"Again  in  the  mackerel  fishery,  the  same  difficulties  exist  to 
"  a  greater  or  lesser  extent. 


81 


aine  point 

I  cliiim  for 

American 

bhe  vessels 
enh  in  the 
;he  United 
lance  with 
on  of  their 
shring  Sea 
ds  are  part 
icts  of  the 
ihing  seals 
askan  Heal 
aliiable  to 

the  United 
;ounsel  for 
(le  by  the 
iially  made 
^h  on  that 
1  the  iiiten- 

as  see  when 
ssigned  for 
.pect.  The 
rtain  ;  they 
iities  ;  you 
!y  sum  that 

tion  of  how 
I  ciuise  in 
til  the  sub- 
as  follows  ; 
traordinary 
I  experience 
eliability  of 
stition ;  the 
icy  of  fogs 
ed,  and  the 
the  United 
possible  any 
ill  be  just." 
tion  of  fact, 
lont.  They 
ause  it  is  so 
in  this  way, 

ly  no  means 
I  fishery  is 
xample,  the 
inks  (if  the 
untenil  with 
ns  and  fogs 
g  Sea ;  they 
athei  ;  they 
blic  records 
nuch  greater 

ties  exist  to 


(Mr.   Peters'    Argument.) 

"  The  same  may  be  said  of  the  hair  seal  lishery,  and  of  the 
"  lobster  fishery,  which  are  pro.secuted  to  a  great  extent  along 
"  the  coast  of  the  North  Atlantic  ;  instances  might  be  multiplied. 
"  The  argument  of  the  United  States  implies  that,  with  regard 
"  to  any  one  of  these  fisheries,  should  the  person  who  prosecutes 
"  them  be  intentionally  and  wilfully  prevented  from  carrying 
10  '•  on  the  same,  the  element  of  uncertainty  is  such  as  to  debar 
"  him  from  recovering  any  damages  except  the  mere  value  of  the 
"  property  seized  or  interfered  with. 

"  Whatever  may  be  the  opinions  of  witnesses  as  to  the  exist- 
"  ence  of  elements  of  uncertainty,  the  result  of  years  of  experi- 
"  ence  has  shown  that  people  properly  equipped  for  seal  hunting 
"  as  iu  other  fisheries  are  successful  when  not  molested  or  inter- 
"  fered  with." 

That  is  the  answer  we  gave  to  their  argument     On  the  one 
hand.  Counsel  for  the  United  States  says,  everything  is  uncertain  ; 
20  and  on  the  other  hand,  we  say  everything  is  not  uncertain.     We 
contend  that  there  is  just  as    much    certainty    with    regard   to 
the  hunting  of  the  fur  seal  as  there  is  in  regard    to  any   other 
fishery.     I  shall  undertake  your  honors,  to  prove  to  this  court 
from  the  record,  that  such  is  the  case,  a  matter  of  fact.     At  page 
75  of  our  argument  there  is  a  tabulated  statement  made  out,  show- 
ing all  the  vessels  that  we  have  evidence  of,  that  were  engaged  in 
seal  hunting  in  188G,  1887, 1888, 1889  and  1890.     The  particulars 
given  there  are  the  name  of   the   vessel,  the  number  of  boats  or 
canoes,  the  time  she  was  in  the  sea,  and  the  number  (jf  seals  taken 
30  as  shown  by  the  evidence.     I  might  state  with   regard   to   that 
schedule,  your  honors,  that  there  is  an  error  in  one  of  the  figures 
that  I  wotdd  like  to  correct,  as  it  might  lead  to  a  mis-calculation. 
With    legard   to  the  ship   "Onward,"   it  is  .stated   to   have 
caught  400  seals,  when   as  a   matter  of  fact  the  "  Onward  "  had 
400  .seals  on  board  when  she  was  seized,  and  she  had  caught  507 
seals  before  that  and   had  transferred  them  to  another  ship,  so 
that  the  "  Onward's  "  catch  should  have  been  907  instead  of  400. 
With  reference  to  ship  "  Black  Diamond,"  referred  to  in  that 
Schedule,  her  catch  should  have   been   80G.     There  is  another 
40  error  I   have  to  correct.     In  the  year  1889,  in  the  case  of  the 
"  Minnie"  (the  third  vessel   in  1889),  the  "  Minnie"  is  stated  as 
having  caught  420   seals.     The   facts  are  that   the   "Minnie" 
caught  429  seals  up  to  the  time  of  seizure,  which  was  the  15th 
of  July,  of  which  150  were  taken  before  entering  Behring  Sea, 
leaving  270  which   were  taken  in   the  .sea,  and  483  which  were 
caught  after  seizure.     The  total    would  be  753  instead  of  420. 
There  is  al.so  a  misprint  there  with  regard  to   the  "  Ada."     She 
is  entered  twice.     According  to  the  evidence  of  Captain  Gaudin 
in  1887,  she  entered   the  sea   on   the   15th  July,  whereas  as  a 
50   matter  of  fact  .she  is  referred  to  there  as  having  entered  on  the 
28th  June.  The  first  entry  is  right  but  the  second  one  is  a  mistake. 
1   am  now   on  the  question,  your  honors,  as  to  whether  my 
learned   friend   is  right  in  his  contention  on  the  facts,  that  seal 
hunting  is   so   uncertain   that   you   cannot  go  on  any    basis  of 
calculation  with  reference  to  it.     Then,  if  it  is  a  matter  of  law, 
which  I  do  not  admit,  because  I  will  come  back  to  the  old  point 
that  when  you  intend  that  a   wrong  shall  be  done  and  you  do 
that   wrong,  you   are   not  to  get  out  of  paying  the  damages 
because  it  is  difficult  to  find  out  what  the  damages  are.     I  have 
60  taken  this  list  of  vessels  and  made  with  regard  to  them  a  very 
simple  calculation,  and  with  your  honors  permission,  I  will  give 
to  each  of  your  Honors  a  copy   of  the  calculation  I  have  made, 
and   shall   also   give  a  copy  of  it  to  my  learned  friend.     The 
calculation  which  I  made  is  this — 


11 


a 


8S 

(Mr.    PetoiH    Arf»uincnt.) 
18H6. 

A'rtm.  of  rtiHl.  C'lUh  ,„;,■  ,hi/.  Catch  i>n'  dny  /" r  Imal. 

"  Carolena" 31)(i8(i(22  4)22 

62  

5.')0  per  ilay  per  canoe. 

m 

10  G2  •      • 

"Mniv  Ellen" .-,7)2:U).X+2  5)42 

228  

8.40  per  day  per  boat. 

11.5 
114 

"Savwm-a" 49)15!Hi(:}2  8)32 

147  

4.2.')  per  day  per  canoe. 

-^  126 

98 

"Dolpliin" 40)20:?7(o()  12,  V> 

200  

4.15  [icr  day  per  canoo. 

37 

"  Fathtinder  ■' 35(1460(42  5)42 

140  

3Q  8.40  per  day  per  boat. 

60 

"Theresa" 58)2000(34  5)34 

174  — 
7  per  da/ per  boat. 

260 
232 

"Adele" 32)000(27  3)27 

64  — 

40  9   per  day  per  boat. 

260 
224 

"Grace" 41)1700(41  11)41 

164  — 
4  per  day  per  canoe. 

GO 
41 

50  "Favorite"   39)2374(61  10)61 

234  — 
6. 1  per  day  per  canoe. 

34 

"Vanderbilt" 58)134.5(23  5)23 

116  — 
5  per  day  per  boat. 

185 
174 

60  "Anna  Deck" 48)1141(23  8)23 

96  — 
3  per  day  per  canoe. 

181 
144 


V         I 


per  canoe. 


y  per  boat. 


(T  per  canoe. 


y  percanoo. 


ly  per  lioat. 


boat. 


y  per  boat. 


y  per  canoe. 


\y  per  canoe. 


y  per  boat. 


y  per  canoe. 


i<3 
(Mr.   Peters'   Argument.) 

yamt  q/"  veutl.  Caleh  prr  itaf.         Catch  ptr  day  pir  hoot. 

"Onward"   25)400(16  8)l(i 

25  — 

2  per  day  per  canoe, 

150 

150 

^^'  Thornton" 27(403(15  4)15 

27  - 

'  4,  nearly,  per  day  per 

133  boat. 

135 

"  Black  Diamond  "  . .   34)763(22  -  9)22 

68  

—  2.44  per  day  per  boat. 
83 
20       Warned  July.                   68 

1887. 

"  Mountain  Chief  "  . .    20)700(35  4)35 

700  

8.75  per  day  per  canoe. 

"  Pathfinder  " 50)2200(44  6)44 

2000  

7.33  per  day  per  boat. 

30  "Adele" 32)1200(37  6)37 

6.11  per  canoe. 

"Ada" 41)1871(45  8)45 

164  

5.62  per  canoe  and  1  boat. 

231 

205 

"  Mary  Taylor" .33)700(21  5)21 

*"  693  

4.20  per  day  per  boat, 

June,  no  good. 

Or  if  you  leave  June  out, — 

28)700(25  5)25 

700  

5  per  day  per  boat 

"Kate" 40)1800(45  11)45 

50                                            1^00  _ 

4  per  canoe  per  day. 

"  Mary  Ellen  " 32)1 530(47  6)47 

128  

7.83  per  day  per  boat. 

250 

224 

•'  Favorite  " 47)1884(40  10)40 

1888  — 

CO                                             4  per  day  per  canoe. 

This  is  assuming  she  had  same  number  of  canoes  as  in  188C, 
the  number  for  1887  not  being  given. 

"  Alger  " Data  not  given. 


JV'^f 


lit 


84 

(Mr.    Peters'  Argument.) 

yatneofvesud.            Calch  per  day.  Catrh  ptr  day  per  boat. 

"Ada" 41)187(i(45  7)45 

1845  

6.42  per  day  per  canoe. 

"Triumph" 18)426(23  4)23 

10  414  

Warned.                        5.75  per  day  per  canoe. 

'  Black  Diamond  ".  .  .15)1000(66  8)66 

990  

8.22  per  day  per  canoe. 

"  Vanderbiit" 56)1250(22  5)22 

112  — 

4.4  per  day  per  boat. 

130 

20  112 

"Alfred  Adams". ..  .Outfit  not  given,  but  large  catch.     1,382 
catch  10th  July  to  0th  August. 

1888. 

"  Viva  " 55)1568(28  5(28 

1540  

5.60  per  day  per  boat. 

„f,  "  Favorite  " 50)1834(36  13)36 

1800  — 

2.7  per  day  per  canoe. 

"Annie  C.  Moore"..   41)8{)0(19  0)19 

779  

3.16  per  day  per  boat. 

"Mountain  Chief"   .     37)900(24  5)24 

888  

4.80  per  day  per  canoe. 

■*^  "Triumph" 44)1802(41  12)41 

170  

3.41  per  canoe. 

42 

44  (I  boat,  11  canoe.s.) 

"Juanita" 41)1018(24  6)24 

984  

4  per  day  per  boat. 

50  1889. 

'■  Marv  Ellen  " 51)125.'?(24  0)24 

1224  — 

4  per  day  per  boat. 

"Annie  C.  Moore"  ..41)1316(32  6)32 

1312  

5.33  per  day  per  boat. 

"Minnie" 43)753(13  9)17 

00  731  

1.79  per  canoe. 

(8  canoes  and  1  boat.) 
•She  was  seized  15th  July  and  spears  taken,  and  had  to  leave 
early. 


ii 


boat. 


85 

(Mr.    Peter.s'    Argument.) 

Name  of  reasel,  Caieh  per  ilay  daieh  pe.r  day  per  boat, 

"  Maggie  Mac" 55)1290(23  6)23 

1265  

3.83  per  day  per  boat. 

"Beatrice"    40)630(16  6)16 

^"  640  

2.66  per  day  per  boat. 

Green  Hunters  lost  three  canoes  at  best  of  season. 

"  Say  ward  " .  .42)1812(43  13)43 

1 80(i  

3.33  per  day  per  canoe. 

"  Viva  " 46)2180(48  6)48 

20  ^'^^^  — 

8  per  day  per  boat, 

"Favorite" 43)130.X30  11(30 

1290  

2.72  per  day  per  canoe. 

"  Sapphire  " 26)1641(63  15)63 

lfi38  

— —  4.20  per  day  per  canoe. 

3f,  "  Penelope  " No  data.  1600.    Left  26th  August. 

"  Junnita  " 28)620(22  7)22 

610  

3.14  per  day  per  canoe. 

"  Ariel  " 35)844(24  6)24 

840  — 

4  per  day  per  boat. 

Warned  on  July  30. 

40  "  Pathhnder  " 28)854(30  5)30 

840  — 
6  per  day  per  boat. 

■  Theresa  " No  data.  600  skin,s. 

"  Kate  " 1 6)700(44  8)44 

704  — 
5.5  per  day  per  canoe. 

'Triumph" 7)72(10  8)10 

''^  70  — 

—  1.2  per  day  per  boat, 

I  took  each  one  of  the.se  .ships,  beginidng  with  the  "  C-iro- 
lena,"  and  I  6nd  that  by  reference  to  the  schedule  which  is 
already  in  our  argument,  that  the  "  Carolena  "  was  in  Behiing 
Sea  for  31  days  in  the  year  1886.  I  find  that  she  caught  680 
.seals. 

Mr.  Lansing  : — She  ent'ired  June  6th. 

60  Mr.  Peters  :— My  learned  f.iend  says  .she  entered  June  6th. 
There  is  one  piece  of  evidence  made  clear  by  witness  after  wit- 
ness and  that  is,  that  so  far  as  seal  fishing  in  Behring  Sea  in 
June  was  concerned,  theie  was  almost  no  seals  caught.  The 
evidence  upon  that  point,  which  I  .shall  refer  to  in  more  detail 


M 


tm 


!^mi»mn 


nmtrnimnmm 


*■  I' 


36 

(Mr.    Peters'  Argument.) 

afterwards,  is  very  clear.  The  catch  of  seals  commenced  in  the 
early  part  of  July  ;  very  few  were  caught  until  about  the  6th 
July  ;  some  were  caught  on  the  2nd  or  3rd  of  that  month,  but 
in  the  month  of  June  you  could  catch  no  seals  in  the  Behring 
Sea.  The  seals  were  then  going  towards  the  islands,  and  the 
evidence  is  that  there  were  no  seals  caught  in  June  in  the 
10  Behring  Sea.  There  were  seals  caugiit  outside  the  Behring  Soa 
on  the  "  Fairweather  "  grounds  in  that  month,  but  they  were  on 
their  way  up  to  Behrin;;  Sea,  and  as  a  matter  of  fact  there  is  no 
evidence  that  in  the  Behring  Sea  itself  any  seals  were  caught  in 
June.  For  the  purpose  of  this  calculation  I  give  the  "  Carolena" 
the  whole  month  of  June  fishing,  which  is  all  the  fishing  season 
she  had  in  the  Behring  Sea.  Now,  what  do  we  find  from  that? 
I  find  that  by  making  that  calculation  with  regard  to  the 
"  Curolentt,"  that  taking  her  catch  it  would  give  1  "v  22  seals  per 
day.  I  find  that  she  had  four  canoes  and  that  would  give  her 
20  5.50  .seals  per  day  per  canoe.  I  took  all  the  vessels  in  the  same 
way,  and  if  your  honors  look  over  the  list  you  will  find  that  it 
is  surprising  how  closely  the  average  for  each  vessel  comes  out. 
It  is  perfectly  surprising  how  close  the  catch  per  boat  or  per 
canoe  per  day  is.  The  "  Carolena  "  averaged  5.50  seals  per  canoe 
per  day.  That,  I  think,  is  the  largest  catch  per  canoe  of  any  of 
the  vessels  in  1886,  and  the  reason  for  that,  in  the  case  of  the 
"  Carolena  "  is  very  apparent.  Your  honors  will  remember  that 
thp  "  Carolena "  was  provided  with  canoes  manned  by  white 
men  armed  with  guns,  and  you  will  remember  that  she  happened 
30  to  have  particularly  good  sealers  and  excellent  shots.  She  was 
therefore  armed  a  little  better  than  a  vessel  which  simply 
carried  Indians  and  canoes.  Now  let  me  follow  the  calculation 
out  further.  The  "  Mai y  Ellen  "  caught  8.40  seals  per  day  per 
boat.  The  "Say wan!"  caught  4.2.i  suals  per  day  per  canoe. 
The  "Dolphin"  caught  4.15  seals  per  day  per  canoe.  The 
"Pathfinder"  caught  8.40  seals  per  ilay  per  boat,  which  your 
honors  will  see  is  exactly  the  same  as  the  catch  of  the  "  Mary 
Ellen." 

Mr.  Lansing: — Is  that  calculation  based  on  every  "  lowering" 
40  day? 

Mr.  Peters: — No.  This  is  for  the  time  they  were  in  the 
Behring  Sea,  irrespective  of  whether  the  days  werj  good,  bad 
or  indifferent.  This  is  for  the  time  thej'  were  sealing  or  trying 
to  seal,  whether  they  were  prevented  by  bad  weather  or  not. 

The  Commissioner  on  the  part  of  Her  Majesty : — You 
are  counting  from  the  first  week  in  July  as  I  understand  ? 

Mr.  Peters : — I  count  from  the  first  day  of  July  in  the  case 
of  the  "  Carolena."  I  am  not  now  for  a  moment,  as  your  Honors 
will  understand,  giving  up  the  calculation  which  we  made  in  our 
50  original  argument.  Your  honor  will  remember  that  the  calcula- 
tion we  uuide  in  the  original  argument  was  based  on  the  catch 
of  the  "  Mary  Ellen."  The  answer  put  in  by  the  United  States 
in  regard  to  that  was,  trnxt,  the  catch  of  the  "  Mary  Ellen  "  was 
exceptional;  that  she  was  particularly  lucky.  I  bring  this  cal- 
culation forward  to  sliowthat  apart  from  her  luck  altogether  the 
"  Mary  Ellen  "  only  sliowt>d  tbo  same  average  catch  as  the  other 
vessels.  The  '■  Mary  Ellen  "  was  carrying  boats  and  she  caught 
8.''0  seats  per  day  per  boat.  The  "  Pathfinder,"  carrying  boats, 
caught  exactly  the  same  number.  The  "Theresa,"'  carrying  boats, 
60  caught  7  seals  per  ilay  per  boat.  The  "  Adele,"  carrying  Vioats, 
caught  9  seals  per  day  per  Imat.  Now  in  the  case  of  the  ''  Van- 
derhilt,"  which  also  carried  boats,  she  only  caught  .5  seals  per 
day  per  boat.  Your  Honors  will  remember  that  the  gentlemati 
who  gave  evidence  with  regard  to  the  "  Vanderbilt"  was  a  captain 


37 


iced  in  the 
)ut  the  6  th 
month,  but 
he  Behring 
ds,  and  the 
ine  in  the 
Jehring  Sea 
ey  were  on 

there  is  no 
e  caught  in 
'  Carolena  " 
ling  season 

from  that? 
ird  to  the 
22  seals  per 
d  give  her 
n  the  same 
find  chat  it 

comes  out. 
boat  or  per 
Is  per  canoe 
e  of  any  of 
case  of  the 
jember  that 
i  by  white 
ie  happened 
).  She  was 
hicl)  simply 

calculation 
per  day  per 

per  canoe, 
canoe.  The 
which  your 
'  the  "  Mary 


'lowering 


vere  in  the 
good,  bad 
tig  or  trying 
r  or  not. 
esty : — You 
tand  ? 

^  in  the  case 
vour  Honors 
made  in  our 
the  calcula- 
pn  the  catch 
nited  States 

Ellen  "  was 
ing  tliis  cal- 
together  the 
as  the  other 
d  she  caught 
rying  boats, 
rryiiig  bouts, 
rrvin;^  boats, 
)f  "the  '  Van- 

r>  seals  per 
le  gentlemiui 
wasu  captain 


10 


20 


80 


40 


50 


60 


(Mr.    Peters'    Argument.) 

named  Meyer,  a  witness  called  by  the  Utnu-d  Stales,  and  rclif-d 
upon  to  a  certain  extent  by  them.  His  evidence  went  to  prove 
to  my  mind  the  assertion  made  by  .several  of  our  witnesses,  that 
there  coulil  be  better  hunters  obtained  in  Victoria  than  in  San 
Francisco.  The  "  Vanderbilt"  came  from  San  Fraiicisc) .and  liHr 
catch  per  boat  was  not  so  iarj^e.  New  let  us  take  the  vessels  that 
carried  boats  in  18X7.  We  have  the  "  Pathfinder,"  and  she  carried 
boats,  and  her  catch  was  7.33  seals  per  day  per  boat.  You  have 
the"  Mary  Ellen,"  with  boats,  and  she  caiigl'.t  7.S3  seals  per  day 
per  boat.  Then  in  the  year  1888  you  have  the  "  Viva"  and  she 
caught  .5.00  seals  per  day  per  boat.  You  have  the  "  Annie  C. 
Moore,"  and  she  caught  the  very  small  catch  of  3.IG  seals  porday 
per  boat;  but  it  will  bo  remembered,  that  for  certain  reasons,  she 
went  out  of  the  sea.  Tlieyear  1888,  as  your  Honors  will  remem- 
ber, seems  to  have  been  a  poor  year  ail  arournl,  and  not  very  suc- 
cessful, and  the  average  catch  per  boat  or  per  canoe  per  day  seems 
to  have  been  lower.  Then  we  follow  on  for  the  year  1880,  and 
you  will  find  that  the  "  Mary  Ellen  "  had  four  seals  per  day  per 
boat;  the  "  Annie  C.  Moore"  5.33  seals  per  day  per  boat;  the  "  .Mag- 
gie Mac"  had  3.83  seals  per  day  per  boat.  In  this  year  188!),  your 
honors  will  notice,  that  the  average  catch  is  smaller;  but  you 
will  also  remember,  that  in  that  year  a  great  nutnl)er  of  tiie  ves- 
sels were  interfered  with  by  tlie  American  Cruisers,  and  that  they 
kept  out  of  the  proper  hunting  grounds  and  the  best  hunting 
grounds  for  fear  of  seizure  In  that  year  the  "  Viva  "  had  eight 
seals  per  day  per  boat.  A  good  many  vessels  in  that  year  were 
se"'ed,  ami  also  a  good  many  of  them  carried  canoes.  Let  us 
take  the  catch  of  the  vessels  carrying  canoes  in  the  same  way.  In 
1880  the  "  Carolena  "  carried  canoes  and  her  average  was  .5. .50 
seals  per  day  per  canoe  ;  the  "  Sayward's  "  average  was  4.2.3  per 
day  per  canoe;  the  "  Dolphin's  "  average  was  4.1.5  per  day  per 
canoe ;  the  "  Grace's  "  average  was  4  seals  per  day  per  canoe. 
Tne  "  Favourite"  was  commanded  by  Captain  AlexancJer  McLean, 
and  no  doubt  his  great  capacity  as  a  sealer,  as.  my  learned  friend 
Mr.  Dickinson  will  contend,  gave  liim  a  larger  average.  His 
average  was  (J.Ol  seals  per  day  per  canoe. 

The  Commissioner  on  the  part  of  Her  Majesty: — What 
proportion  do  you  allow  for  tlie  stern  boat  catch  ? 

Mr.  Peters: — I  have  not  taken  the  stern  boat  catch  into  con- 
sideration, because  in  the  list  we  have  made  we  have  put  them 
down  when  we  could  get  them.     So  much  for  the  stern  boat. 

The  Commissioner  on  the  part  of  the  United  States : — • 
I  do  not  quite  understand  you,  Mr.  Peters  ? 

Mr.  Peters  : — I  have  not  taken  any  account  of  the  stern  boat 
catch  at  ail. 

The  Commissioner  on  the  part  of  the  United  States : — 
You  have  not  counted  the  stern  boat  as  a  sealing  boat  ? 

Mr.  Peters : — I  have  not  done  so  in  any  case,  so  that  it  is  the 
same  thing  all  around. 

The  Commissioner  on  the  part  of  Her  Majesty: — Still  the 
ca^ch  is  in  the  total. 

Mr.  Peters : — Yes  ;  but  it  is  very  diificult  to  make  it  up. 

The  Commissioner  on  the  part  of  Her  Majesty  : — Of  course 
it  was. 

Mr.  Peters  : — There  were  a  tew  cases  where  we  could  separ- 
ate the  stern  boat  catch,  but  we  could  not  do  it  in  every  case. 

The  Commissioner  on  the  part  of  the  United  States  : — 
That  catch  has  gone  into  the  total  ? 

The  Commissioner  on  the  part  of  Her  Majesty : — Your 
totals  will  show  to  some  extent  a  larger  catch  per  boat  per  day 
than  if  you  had  counted  in  the  stern  boat  catch. 


n 


^ip' 


■1  .  i<!J|if;:| 

!      I  i 

I         ! 


m 


m 


38 

(Mr.  Peters'  Argument.) 

Mr.  Peters ; — That  is  equalized  l)y  the  fact  tliat  every  vessel 
had  a  stern  boat,  so  it  is  the  same  tiling  with  refjard  to  every 
one  of  them.  There  were  very  few  of  them  that  liad  irot  stern 
hoats.  There  wore  one  or  tw  that  had  a  canoe  in.steiid  of  a  .stern 
boat,  and,  for  instance,  the  "  Carolena  "  lost  her  stern  boat. 

There  is   one  cn.se  ^iveii  on   Pa<;e    77,  the    "Viva,"   where  the 

10  catch  was  1,5GS — 0.")  for  the  stern  boat.  The  "Viva,"  a.s  we  are  all 
aware,  was  perhaps  one  of  the  most  successful  sealers  that  sailed 
the  Behring  Sea.  She  was  commanded  by  Captain  NVentworth  E. 
Baker,  and,  if  the  Commissioners  remember,  he  was  the  most  suc- 
cessful man  in  that  year  w  ho  went  out,  and  her  catch  by  her  stern 
boat  would  be  about  asnjood  acatch  as  an}"  stern  boat  of  anj'  vessel, 
and  this  just  gives  you  an  idea  what  a  small  proportion  of  seal  ■ 
were  really  caught  by  the  stern  boat,  and  it  i.s  evidently  fair  all 
round  to  leave  the  question  of  the  stern  boat  out  of  considera- 
tion altogether,  liecause  there    was  a  stern    boat  in  nearly  every 

20  case  I  think  if  j'ou  will  loiik  over  the  list  that  we  have  given 
here  you  will  find  very  few  vessels  that  have  the  stern  boat 
actually  proved,  and  I  have  no  doubt  some  stern  boats  could  not 
be  proved.  Now  following  ot\  with  what  I  was  saying  to  show 
how  close  together  these  figures  come:  In  l!S8(>  the  "  Sayward" 
had  4.25  per  canue,  the  "]>(jlphln"  had  4.15,  the  'Grace"  had  4 
per  canoe,  the  "  Favorite"  had  G.l  per  canoe,  the  "  Anna  Beck" 
ha<l  3  per  canoe,  the  "  Onward"  had  4.3G  per  daj'  per  canoe,  the 
"Thornton"  nearlj-  4  per  day,  and  the  ''  Black  ])ianiond",  which 
was  the  ve.s.sel  that  was    warned,  if  you    remendier,  and  which 

30  kept  out  of  the  way  and  went  out  of  the  sea  at  a  certain  time, 
had  the  smallest  average  of  any — 2.44  per  canoe.  Following 
out  the  same  with  regard  to  1887,  you  will  find  the  "Mountain 
Chief"  got  8.75  per  day  per  canoe.  There  is  a  rea.son  why.  her 
average  should  be  so  large.  She  seems  to  have  been  well 
handled  and  in  addition  sht*  seems  to  have  been  only  a 
few  da3's  in  the  Sea,  20  days  of  the  best  part  of  the  hunting, 
so  that  would  naturally  give  her  the  largest  catch  for 
the  time  she  was  there.  The  "Idell  "  got  G.l  1  per  canoe,  the 
"  Ada"  5.02  per  canoe,  and  the  "  Mary  Taylor"  4.20  per  boat,  and 

to  the  "  Kate  "  4  per  canoe,  the  "  Favorite,  "  4  per  canoe,  the 
"  Triumjth  "  5.72  per  canoe,  and  so  on  all  through.  So  with  re- 
gard to  1889.  Therefore,  in  answer  to  the  .statement  made  by 
my  learned  friend,  that  there  are  a  great  many  contingencies 
which  make  it  difficult  to  hunt  seals,  and  that  there  are  a  great 
many  probaliilities  against  getting  a  good  catch.  I  take  the 
years  188(),  1887,  18S8  and  188!),  the  very  period  we  are  talking 
about,  and  I  say  I  agree  in  what  tliffieulties  surround  seal  hunt- 
ing. I  agree  tliat  seals  sometimes  sink  when  shf  t,  or  that  there 
was  .some  fog  there,   or  some  storms  in    August,  or  that  the  rain 

50  interfered  with  sealing,  ami  taking  all  these  into  consideration,  I 
haveproved  as  a  fact  thatevery  vessel  properly  ecpiipped  inBehring 
Sea  (luring  tlio.se  years,  per  bout  or  per  canoe,  obtained  about  an 
average  lunnber  of  seals  per  boat,  they  got  somewhere  between 
9  and  7,  per  canoe  they  got  somewhere  about  4  during  those 
times,  less  in  1888,  because  all  tiie  evidence  shows  there  were 
more  difficulties  to  contend  with  that  year.  Wo  are  not  now 
looking  forward  and  asking  to  get  damages  for  a  number  of 
seal.s  we  might  catch  in  this  year,  but  we  are  looking  backward 
to  facts  before  us  of  what  those  vessels  did  get.  We  are  taking 
60  things  as  they  have  actually  happened,  not  as  they  are  going  to 
happen.  We  are  looking  back  and  .saying :  Here  is  a  fact  now 
made  apparent  to  the  Court,  that  all  these  vessel.*  got  an  average 
number  per  boat  or  canoe  during  all  these  .seasons,  notwithstand- 
ing all  tlie  difficulties,  and  we  simply  ask  the  Court  to  draw  its 


39 


Bvery  vessel 
rd  to  every 
1(1  not  stern 
1(1  of  a  stern 

I   llOHt. 

where  the 
as  wc  are  all 
s  that  sailed 
'eiitwortli  E. 
he  most  snc- 
liy  lier  stern 
if  an}'  vessel, 
•tion  of  seal  ■ 
■ntly  fair  all 
if  considera- 
nearly  every 
i  have  fiiven 
e  stern  boat 
its  could  n(»t 
ring  to  show 
i  "  Say  ward" 
jlrace"  had  4 
Anna  Beck" 
er  canoe,  the 
nond",  which 
r,  and  which 
certain  time, 
.  Following 
le  "Mountain 
son  why.  her 
e  lieen  well 
lieen  only  a 
he  hunting, 
it    catch    for 

canoe,  the 
per  lioat.  and 

canoe,  the 
So  with  re- 
eiit  made  by 
;()ntingencies 
e  ai'e  a  great 
I  take  the 
p  are  talking 
1(1  sea!  hunt- 
or  that  there 
that  the  rain 
i.sideration,  I 
B(l  inBehring 
lied  about  an 
lere  between 
luring   tho.se 

there  were 
are  not  now 

number  of 
iig  backward 
'e  are  taking 
are  going  to 
is  a  fact  now 
(t  an  average 
otwithstand- 
t  to  draw  its 


(Mr.  Peters'  Argument.) 

conclusion.  Take  for  instance  the  "  Carolina"  in  the  -^O  days  of 
Jul}'  .she  was  there,  or  .'H  days;  she  got  (JGO  .seals.  What  reason  is 
there,  admitting  that  the  seals  were  therein  large  quantities,  that 
she  would  be  less  successful  in  the  month  of  August  than  other 
vessels  there  during  that  same  time  and  at  that  same  place.  She 
had  made   a  good   catch    in   July,  she   had   every  appliance  for 

10  making  a  good  catch  in  Augu.st,  and  when  this  thing  comes  out 
as  it  does,  I  say  as  a  matter  of  fact  it  answers  the  cor.tention 
made  by  my  learm-d  friend  that  there  is  so  much  uncertainty  about 
seal  hunting  that  you  cannot  make  a  basis  for  calculation.  This 
argument  I  am  now  using  is  in  addition  to  our  main  argument, 
which  I  do  not  propo.se  to  read  to  your  Honors  becau.se  it  is  here. 
We  have  already  pointed  that  out,  .shewing  our  original  con- 
tention, and  wc  only  bring  in  this  statement  in  order  that  the 
Court  may  thoroughly  understand  our  position.  Rightfully 
we  put  forwaid  the  claim  for  the   prospective  catch   based  upon 

20  the  catch  of  the  "  Mary  Ellen. '  We  base  that  calculation  on 
the  ground  stated  in  our  argument,  that  the  "  Mary  Ellen  "  was 
perhaps  the  only  one  of  the  vessels  shewn  not  to  have  been  inter- 
ferred  Nvith  in  ]88().  My  learned  friend  on  the  other  side  comes 
in  and  says :  You  have  no  right  to  take  the  catch  of  the 
"  Mary  Ellen  "  into  consideration  at  all,  because  it  is  an 
exceptional  case,  and  then  my  learnetJ  friend  with  ntuch  ingenuity 
picks  out  one  or  two  of  the  cases  I  have  mentioned  here  and 
shews  that  they  would  have  made  n  smaller  average  than  the 
"  Mary  Ellen."     In  answer  to  that  argument,  for  the  purpose  of 

30  al. owing  the  Court  to  see  to  what  extent  this  matter  really  goes, 
I  take  every  one  of  these  ships  and  I  make  a  very  simple  calcu- 
lation in  regard  to  them,  and  I  shew  that  the  catch  comes  out 
almost  even.  Here  and  there  there  is  u  ditt'erence.  Here  and 
there  some  man  fell  short,  but  in  every  such  case  you  will  find 
tliere  was  some  interference  preventing  him  making  his  catch. 
For  instance,  Victor  Jacobson  tells  us  that  when  he  was  seized  he 
lost  his  guns  and  .started  his  men  out  with  spoars  that  they  mana- 
factured  on  board  the  ship,  and  he  goes  out  after  having  been 
seized  and  of   course  makes    a    smaller    catch  than    with    the 

40  proper  equipment,  and  there  was  a  deticiency  in  that  case,  but, 
putting  aside  special  cases,  you  will  find  on  examining  the 
evidence  on  this  record  that  it  comes  out  wonderfully  close,  and 
facts  are  stronger  than  words.  It  is  all  very  well  for  my  learned 
friend  to  argue  :  "  You  ought  not  to  have  got  so  many  seals,  that 
the  chances  are  you  woukl  not  catch  .so  many.  My  answer  i.s, 
taking  everything  you  .say  for  granted,  admitting  all  the  diffi- 
culties and  hardships  you  .say  existed,  notwithstanding  all  that 
in  lhS(J,  1887,  1888,  1881)  we  have  .hewn  that  every  boat  that 
went  out  made  an  average  catch  if  it  was  equally  well  equiped. 

50  Therefore  there  is  no  reason  to  suppo.ic  that  we  would  not  have 
made  as  good  an  average  as  these  men  made.  That  is  oa  the 
question  of  fact. 

To  the  present  time,  so  far  as  the  law  is  concerned,  I  have 
confined  myself  to  examining  the  position  my  learned  friend 
takes.  What  is  our  position  ?  It  is  very  clear  and  very  plain. 
We  say  tts  a  matter  of  law  that  we  are  entitled  to  recover  for 
prospective  catch  the  gross  value  of  the  number  of  .seals  that  we 
would  probably  have  caught  on  the  ground  that  the  United 
States  intentionally  prevented  us  from  carrying  on  that  which 

60  was  a  legitimate  business.  Now  take  that  proposition  in  pieces, 
as  it  were.  In  the  tirst  place  was  it  a  legitimite  business?  The 
United  States  cannot  now  argue  it  was  not.  Whatever  their 
contention  in  1886,  1887,  1888  and  1889  was,  they  are 
now    forever     precluded     from   arguing     that     wo     had     no 


I 


^ 


'1  Jt 


^i 


i 


i 


m 


ir,f 


40 

(Mr.    Peters'  AiMruiiieiit.) 

risi;bt  to  catcli  seals  in  «ri\'  part  oF  tlie  Belirini;  Sea. 
We  sny  as  a  inattiM'  of  fact  t!'at  tliey  seizeil  these 
vessels  with  the  intention  of  preveiitinj^  us  from  eairyinu 
on  that  business,  So  faf  we  have  stati'il  the  facts  Now,  leiw 
does  the  law  stand  on  the  matter  ?  I  nnliniit  that  there  is  p.^i- 
tiVe  authority  l>  tli  in  International  cases  anil  als..  in  Civil  cases 

10  to  the  effect  that  wi;  arc  entitled  to  recover  these  dariiaj^es,  and 
I  propose  now  to  refer  to  some  of  those  authorities.  As  it  i- 
weil  to  beijfin  at  the  very  latest  point,  I  ))ri)piise  to  refer  t"  p'^r- 
haps  the  latest  authority  tliat  can  be  found  on  tliis  suiiject  first, 
that  is,  the  "(Josta  Rica  Packet"  case  deeiiied  by  that  widl 
known  international  lawj'er.  Professor  Martens.  In  oi-dci-  to 
facilitate  reference  to  this  e;ise,  we  have  set  out  a  iruod  part  f  it. 
Mr.  Dickinson: — Does  this  bear  on  the  (juestion  of  pros|)i'etiv(> 
catch  ? 

Mr.  Pet(>rs  : — Most  decidedly. 

20  M'".  Dickinson  ; — This  case  is  not  cited  in  the  briefs,  which  is 
the  reason  for  luy  enijuiry. 

Mr.  Peters  : — It  is  not  cited  in  my  brief  oi'iyinally  for  the 
reason  that  I  drew  the  ori^dnal  brief  Ixd'ore  I  had  it,  but  I  fur- 
nished my  learned  friend  with  a  copy  of  the  case  as  .soon  as  I 
got  it.  It  was  decided  (piite  lately.  As  a  matter  of  fact  it  was 
laid  on  the  table  of  Parliament  in  lMi;^land  in  Maj-  1S!)7.  I 
heard  of  the  case  and  ijot  an  advance  copy  sent  to  me  before  it 
was  actually  laid  on  the  table  there,  and,  as  >o()n  as  I  ii;ot  it  ;ind 
made  my  i-eference  to  it  I  sent   it  to  my  learned    friend.     As  a 

30  liiatter  of  fact  the  "  Costa  Rice"  case  ijoes  even  further  tlian  it 
is  necessar\-  for  me  to  contend  for  here.  It  allows  the  pros- 
pective earniriLjs  that  have    1 n    made  durin;,'  a  cert.iin    time, 

even  althonL,di  the  cpiestion  of  intention  did  not  come  up.  The 
facts  of  this  case  as  set  out  in  the  appendi.\  to  my  reply,  ])aL;i.' 
13,  I  want  to  draw  particular  attention  to,  iind  they  are  as 
follows  : — 

The  "Costa  Rica"  was  a  Bi'itish  ship,  re^istei'ccl  at  the  poi-t  of 
Sydne}';  she  was  registered  as  owneci  by  a  Hritish  (Jom[)any 
named  IJurns  k,  Co.     The  ship  was  fitted  out  as  a  whalt^"  under 

40  the  British  Hag  in  the  .Moluccas  Seas  on  a  series  of  voyages 
covered  by  the  years  1S,S7  to  iSi)l.  on  wliieh  voyage  she  >  .^ 
commanded  by  Mr.  C'arpenter,  u  naturalizeil  British  subject,  who 
had  a  spijcial  knowlcilge  of  the  sea  currents  thei-e  prevalent,  the 
habits  of  the  whales  and  where  found  at  particular  tiue's.  T'^'s 
fact  led  to  just  anticipations  of  the  profit  to  be  derived  from 
any  whaling  cruise  by  a  vessid  of  which  he  was  master,  and  was 
the  chief  inducemi;nt  to  undei'take  the  eiit'-rprise.  There  was 
the  first  proposition  laid  down.  The  whaling  season  is  alle^fed 
to  be  from    the  1st   Noveivbcr  to    10th   .lanuarj'.     In   Jamiary 

50  1888  the  •' Cosa  Rica"  sighted  a  tlerelict  prauw.  I  need  not  fol- 
low on  through  all  the  facts  This  jirauw  was  found  floating 
and  the  "  Costa  Rica  Packet"  picked  it  up  and  ajipropri'it'-d 
certain  of  the  goods  on  board,  chi(>fly  consisting  of  gin,  whiskey, 
brandy  and  things  of  that  kind.  It  was  on  the  high  seas,  out- 
.side  the  jurisdiction  of  any  country  except  the  country  tl.at 
owned  the  ship.  She  took  these  goods  After  a  while  the 
sailors  got  drunk  on  the  brandy  and  whiskey,  agreed  that  it  was 
not  very  good  in  any  case,  and  they  pitchetl  it  overboard  except 
.some  small  amount  of  stuff".     Some  time  after  Carpenter  landed 

60  in  the  territory  of  the  Netherlands  and  was  arresti;d  on 
the  charge  of  improperly  taking  charge  of  this  prauw 
and  taking  goods  belonging  to  a  subject  of  the  Netherlands, 
alleging  that  this  was  done  within  their  waters,  within  three 
^nilcs  of  the  shore.     He  suffered  a  very  considerable  amount  of 


li 


41 

(Mr.  Peters'  Argument.) 


rinjf  Sou. 
jied  tlit'st! 
I    ciiiTyiny; 

Now,  ll'lW 

iTc  is  piisi- 
Civil  oases 
imi^'cs.  lunl 
As  it  is 
t'cr  t'l  |)'T- 
liiji'ct  tii'st, 

t'imt  well 
1    iinlci-  ti) 

pMft  f  it. 
ji'dspii'tivn 


<,  wliicli   is 

ly  foi'  tlie 
,  hut  I  lur- 
;  soon  lis  I 
tact  it  was 
•  lWt7.  I 
I'  licfori'  it 
ijot  it  ami 
'tul.  As  it 
lifP  tliaii  it 

tlie     JH'ils- 

tiiiii    time, 

up.       TIh^ 

ivply,  pM-x' 

icy    aru  as 

tile  poi't  of 
(>)uipaMy 

rtllT  UtlillT 

)t'  vovaLCi's 

,■  s!,;. .;  ,s 

lijoct,  wlio 
vali.'iit,  tlic 
m-s.  T'-'s 
ivcil  from 
r,  ami  was 
riicTL'   wai 

is  alli"ri''l 
1  .Fanuary 
0(1  not  t'ol- 
(1  floating 
propri'it'"! 
1,  whiskey, 

seas,  out- 
iiitiy  t!.at 
wliilo  the 
;hat  it  was 
inl  L-xci'pt 
tor  latidud 
:Test(.'(l  on 
lis  pruuw 
•tlierlands, 
thin  three 
amount  of 


20 


30 


hardship,  wa.s  kept  under  arrest  for  a  considerable  time  under  a 
prelimenary  process  and  never  was  tried.  It  was  simply  a 
warrant  of  arrest,  as  they  call  it,  a  ''  precautionery  warrant," 
that  is  a  warrant  necessary  to  make  liim  attend  at  the  trial  of 
the  matter.  He  was  imprisoned  .some  considerable  time,  15  or 
20  days,  and  it  is  quite  clear  during  that  time  he  was  not 
10  detained  because  they  wanted  to  prevent  him  from  whaling,  but 
for  the  purpose  of  this  prosecution.  The  prosecution  was  never 
carried  on.  He  was  discharged  after  some  considerable  delay, 
and  it  was  alleged  that  ho  suffered  a  good  deal  of  hardship,  and 
was  very  harshly  dealt  with  when  he  was  in  prison.  The  matter 
came  up  for  consideration  before  an  arbitrator  anil  one  of  the 
items  claimed  was  for  loss  of  amount  the  ship  would  have  earned 
if  she  had  been  allowed  to  go  on  her  whole  voyage.  During  the 
time  he  was  impri.sone<l  his  vessel  did  not  go  whaling  and  the 
voyage  to  a  certain  extent  was  interfered  with,  and  Mr.  Martens 
hail  to  give  an  award  under  these  circumstances.  Now  I  would 
call  the  attention  of  the  Court  to  how  he  gives  that  judgment. 

The  Commissioner  on  the  part  of  the  United  States : — Who 
were  the  parties  to  the  arbit'-ation  ? 

Mr.  Peters : — Great  Britain  and  the  Government  of  the 
Netherlands,  Great  Britain  acting  for  these  parties.  At  page  17 
his  award  is  given,  and  I  need  hardly  say  that  the  award  of  a 
man  like  Martens  ought  to  carry  with  it  a  verj'  considerable 
amount  of  weight.  He  is  an  authority  recognized  everywhere 
on  matters  of  intcrnatianal  law. 

Now  what  does  he  say  :— "  I  pronounce  the  following  award 
on  arbitration. 

Consiilering  that  the  right  of  .sovereignty  of  the  State  over 
territorial  waters  is  determined  by  the  range  of  cannon  measur- 
ing from  the  low  water  mark; 

That  on  the  high  seas  even  merchant  ve.ssel."j  constitute  de- 
tached portions  of  the  territorj'  of  the  State  who.oe  Hag  they 
bear,  and,  consequently,  only  Justifiable  by  their  respective 
national  authorities  for  acts  committed  on  the  high  seas; 

That  the  State  has  not  only  the  right,  but  even  the  duty  of 

40    protecting  and  defending  its  nationals  abroad  by  every  means 

authorized    by    international    law    when   they  are  subject  to 

arbitrary  proceedings  for  injuries  comuutted  to  their  prejudices." 

♦         *         *         »         «         ♦»         ♦♦ 

"  Whereas,  the  appropriation  of  the  cargo  of  the  aforesaid 
prauw  by  Mr.  Carpentei-,  having  taken  place  on  the  high  seas, 
was  oniy  justiciable  by  Engli.«<h  tribunals  and  in  no  wise  by 
Dutch  tribunals; 

Whereas,  even  the  identitj-  of  the  above  mentioned  derelict 
with  the  lost  prauw  belonging  to  Mr.  Frie.ser  is  in  no  wise 
50   proved; 

Whereas,  the  authorities  of  the  Netherland  Indies  who  had 
arrested  Mr.  Carpenter  in  November  1891,  on  the  chai'ge  of  his 
having  committed  the  act  in  1888,  outside  the  territorial  waters 
of  the  Netherland  Indies,  abandoned  of  their  own  accord,  bj' 
the  decision  of  the  Macaser  Council  of  Justice,  datetl  the  28tli 
November,  ]8!H,  the  prosecution  of  the  accused  was  irrefutably 
established  by  this  action  the  illegality  of  his  detention  as  well 
as  of  his  forced  transference  from  Ternate  to  Macaser; 

And  whereas,  all  the  papers  and  deeds  produced  go  to  prove 
the  absence  of  an)-  real  cause  for  arresting  Mr.  Carpenter  and 
confirm  his  i-ight  to  be  idemnified  for  the  losses  sustaineil  by 
him  ; 

Whereas,  the  treatment  to  which  Mr.  Carpenter  was  subjected 
to  in  prison  at  Macaser,  appears  to  be  unjustifiable  in  view  of  his 


GO 


itm 


I     I 


t' 


(Mr.   Peters'    Argument.) 

being  a  aubjeet  of  a  civilized  State,  wliose  detention  was  only  a 
precautionery  measure,  and  tiiat  consequently  this  treatment 
entitles  him  to  a  fair  compensation  ; 

Whereas  thr  unjustifiable  detention  of  Capt.  Carpenter  caused 
hhn  to  miss  the  best  part  of  the  whale  Jishinii  season. 

I  call  3-our  attention  particularly  to  the  formal  recital  there. 
10  If  my  learned  friend's  contention  be  correct,  that  the 
supposed  piotit  of  the  earnings  of  a  whaling  season  are  .so 
uncertain,  why  ilo  we  find  this  great  international  lawyer  in 
giving  a  decision  between  (Jreat  Britain  and  the  Netherlands 
reciting : 

"  And  whereas,  the  unjustifiable  detention  of  Captain 
Carpenter  eau.sed  him  to  misH  the  be.st  part  of  the  whale  fi.shing 
season :  and 

"  Whereas,  on  the  other  hand.  Mi'.  Carpenter,  on  being  set  free 
was  in  a  position  to  have  returned  on  Ijoanl  the  ship  "Costa  Rica 
20  Packet"  in  January  1892  at  the  late.st,  and  whereas,  no  con- 
elusive  proof  has  been  ])roduced  by  him  to  show  that  he  was 
obliged  to  leave  his  ship  untril  April  1802  in  the  port  of  Ternate 
without  a  master,  or,  still  less  to  sell  her  at  a  reduccul  price ;  and 

"  Whereas,  the  owners  or  the  ('aptain  of  the  ship  being  under 
an  obligation  as  a  precaution  against  tln^  occurrence  of  some 
aeciilent  to  the  Captain,  to  make  pi'ovision  for  his  being  replaced, 
the  mate  of  the  "C^osta  Rica  Packet"  ought  to  have  been  fit  to 
take  command  and  to  carry  on  the  whale  fishing  industry;  and 
"  U'hereas,  thus,  the  hxs  is  sustained  by  the  proprietors  of 
30  the  vessel  "  Costa  Rica  Pitcket,"  the  oHicers  and  the  crew,  in 
consecpience  of  the  detention  of  Mr.  Curpi-iiter,  is  not  entirely 
the  necessary  consecjuence  of  thin  preoaution'iry  detention." 

Your  Honors  will  see  that  in  coming  to  this  coMclnsinn  he  was 

careful.     In  the   first  place   h(>  says: — "  Tin'    Ijest   part    of   the 

"  whnling  season  has  been  lost."      On  the  other  band  he  savs  : — 

"  The  los.s  need  not  have  been  so  great  a><  a  matter  of  face  it 

"  has  been,  because  Mr.  ('arpenter  could  have  yone  back  sooner 

"  than  he  did  go  back.     He  was  compelled  ti  lose  so  many  days 

"  of  the  whnling  season,  but  he  did  not  lose  it  all,  and  in  making 

40  "  ln>  award  Mr.  Martens  takes  into  consideration  on  the  one  hand 

"  that  the  best  part  of  the  whaling  season  is  lost,  and  on  the  other 

"  hand  that  he  need  not  have  lost  so  much  time  as  he  actually  did, 

"  and  he   takes  further  into  consideration   that  they   themselves 

"  were  a  little  negligent  in  not  having  placed  on  boaril   the  ship 

"  a  mate  who  could  have  taketi  charge  in  case  the  captain   was 

■  interfered   with,  but  with   all   that,  be  makes  his  award." 

He  sa^'s  : — "  Whuieas,  in  so  far  as  tlie  indemnity  to  be  paid 

,  "  to  Captain  Carpenter,  tli(,'  officers,  crew  and  owners  of  the  ves- 

"  sel,  "  Costa  Rica  Packet,"  is  concerned,  the  documents  produced 

50   "and,  in  particular,  the  expert  opinion   to   which   reco\irse  has 

"  been  had  at  Brussels,  do  not  furnish  the  necessary  elements  for 

"  fixing  the  amount,  and  whereas  a  sufficient  iniienndty  will  have 

'  been  given  by  granting  the  sum  of  .£3,150  to   Capt.  Carpenter, 

"the  sum  of  £1,(JU0  to  the  ofiicers  and  crew,  and   the  sum  of 

"  £3,800  to  the  owners  of  the  ves.sel,  '  Costa  Rica  Packet.'  " 

For  these  reasons  I  declare,  and  he  gives  judgment  for  these 
sums  and  for  £250  cost.'.  It  may  lie  noted  in  this  matter  the 
award  given  was  much  lai-ger  than  the  amount  origitiallj'  pre- 
sented, that  will  appear  by  reference  to  the  full  claim.  In  the 
CO  case  of  the  "  Alabama,"  where  it  is  argued  that  you  should  not 
get  these  prospective  profits  or  prospective  catch,  or  whatever 
you  chance  to  call  it,  I  say  they  may  be  all  right  under  the  cir- 
cumstances of  that  particular  case,  and  with  the  explanation  that 
the  "  Alabama  "  case  was  not  the  direct  consequence  of  the  act  of 


43 


(Mr.    Peters'   Argument) 

Great  Britain.  .Great  Britain  did  no  act,  it  simply  omitteil  to 
do  something,  but  here  in  thi.s  case  is  the  distinct  authority  of 
one  .of  the  ablest  international  lawyers  of  the  day,  and  his 
authority  is  to  this  efiect : — You  shall  have  damages  for  losing 
the  best  part  of  the  whaling  season.  You  shall  have  damages 
for  that  because  here  is  the  law  which  says  the  direct  conse- 
10  quences  of  your  act  must  be  compensated  for,  the  captain  was 
necessary  to  carry  on  that  voyage  successfully  ;  you  prevented 
him  from  going,  the  conse(]uence  is  that  certain  part  of  the  whal- 
ing season  is  lost,  and  you  are  to  be  compensace<l  on  the  basis  of 
finding  out  what  would  be  the  probable  amount  he  would  have 
caught  during  the  best  part  of  the  whaling  sea.son,  So  far  in 
regard  to  that  ca.se,  I  contend  that  that  case  is  a  distinct 
authority.  The  position  taken  by  my  learned  friend  may  apply 
to  many  cases,  but  it  does  not  apply  to  all  cases,  and  in  this  ca.se 
you  have  standing  over  above  and  far  beyond  every  consideration 
20  that  the  lo.ss  of  the  pros()ective  catch  is  the  very  thing  which  was 
intended  which  was  an  element  which  did  not  exist  in  the 
"Costa  Rica  Packet"  case,  and  the  fact  that  it  does  not  exist 
makes  the  case  still  stronger  authority  in  our  favor. 

Tile  facts  on  both  sides  of  the  case  are  .set  out  fully  in  our 
reply,  and  I  would  like  the  Court  to  glance  at  them.  At  page 
15  of  the  Appendix  is  the  contention  that  the  counsel  for  Great 
Britain  made  :— 

"  It  is  submitted  that  the  airest  and  removal  of  Captain 
"  Carpenter,  whose  presence  and  activity  were  necessary  to  the 
30  "  adventure,  under  the  above  circumstances  put  an  end  to  the 
"  adventure  and  to  the  possibility  of  profit  being  obtained  from 
''  the  adventure  of  the  owners,  master  or  crew.  It  was,  therefore, 
"  in  the  circumstances,  a  necessary  consequence  (construing  the 
"  word  '  neeessar}'  '  reasonably  and  with  due  regard  to  the  nature 
"  of  the  case)  to  the  arrest  and  tlie  preventive  detention  of  Mr. 
"  Carpenter,  that  the  owners  lost  their  outlay  and  hope  of  profit, 
"  and  the  loss  on  the  .sale  of  the  ship,  and  that  the  crew  lost  their 
"  hope  of  profit  from  the  adventure." 

"  The  damages  claimed  are  therefore  the  necessary  con- 
40  "  sequence  of  the  wrongful  act  of  the  Netherland  ofHcial.s  in 
"arresting  Mr.  Carpenter,  and  are  not  too  remote,  particulary  as 
"  the  Netherland  authorities  might  reasonably  have  expected, 
"  and  in  fact  were  warned  (as  hereinbefore  shown),  that  their 
"  conduct  in  arresting  Captain  Carpenter  and  dealing  with  him  in 
"  the  manner  they  did  would  probably  occasion  loss  or  damage 
"siuiilar  to  that  which  was  actually  sustained  and  in  respect  of 
"  wliicii  comfiensation  is  claimed." 

There  did  exist  in  that  case   the   fact  that  the  parties  were 

warned.     The  contention  of  the  other  side  is  cited   on  page  16. 

50   We  reply  upon  that  case  as  a  direct  authorit}'  ;  and  an  authority 

of  great  weight  in  international  disputes  to  show  that  damage 

of  this  kind  can  bo  recove'-jd. 

I  shall  now  refer  to  another  authorit}'  which  my  learned 
friend  does  not  seem  to  regard  as  entitled  to  any  weight.  Some 
years  ago  a  dispute  arose  between  Great  Britain  mid  the  United 
States  with  regard  to  what  are  called  the  Bay  of  Fortune 
claims.  The  facts  in  the  case  are  perfectly  familiar  to  your 
Honors.  Somethi'ig  like  twenty  United  States  fishermen  went 
to  Bay  of  Fortune  for  the  purpose  of  catching  herring,  and  on 
60  a  Sunday  went  into  a  certain  bay,  threw  some  of  their  .seines  and 
began  to  catch  herring.  There  were  interfered  with  by  the 
natives  of  Newfoundland,  who  by  their  own  law  were  not  per- 
mitted to  fish  on  Sunday.  A  large  number  of  these  vessels 
were   prevented   from   seining,  and    after   some    trouble    their 


44 


r     ? 


(Mr.   Peters'   Argument.) 

clttims  were  fortnulateil  and  placed  bef  jre  the  Government  oi 
.  Great  Britain,  and  finally  were  compromised. 

1  NJiall  call  attention  to  tlu'sc  claims  to  show  tiiuir  nature. 
The  United  States  now   arj^ue  that   prospective  damage  caii- 
not  be  granted,  but  it  ought  to  be  remarked,  that  in  every  case 
where  their  own  interests  arr"  concornod,  and    where  they  were 

10  what  miglit  be  called  plaintitls,  you  will  find  them  claiming 
that  prospective  damage  should  be  granted,  and  accepting  com- 
pensatioti  basL-d  upon  such  claim,  wlii're  they  can  get  it.  Now, 
how  were  the  claims  in  the  Bay  of  Fortune  case  made  up  ? 

The  (Commissioner  on  the  part  of  the  United  States: — Where 
is  that  case  referred  to  in  your  argument  ? 
Mr.  Peters  :— At  page  32,  ,'};}  and  34. 

There  are  several  of  these  cases  set  out.     I  wish  now  to  call 
attention  to  the  actual  claims  themselves; — 

111  our  printed  argument  we  only  took    two  or    three  cases, 

20  but  when  an  actual  reference  is  matle  to  the  papers  in  all  these 
cases  the  point  becomes  strong.  Furthermore,  as  I  understand 
my  learned  friend's  answer,  lie  contends  that  these  claims  were 
not  claims  for  prospective  profits,  but  that  tlie  herring,  as  a 
matter  of  fact,  wei'e  caught  in  the  seine  and  were  reduced  into 
possession.  1  think  a  glance  at  the  cases  themselves  will  disprove 
this  contention.  I  find  in  the  foreign  and  State  papers  for 
l.SSO,  Volume,  78,  that  the  matter  is  fidi}'  tcone  into.  The  cases 
are  all  the  same,  except  one  or  two,  whore  herring  were  act\ially 
in  the  seine  ;  and  in  these  one  or  two  cases  a  special  particular 

30  claim  was  nuide,  but  in  all  the  other  cases  they  make  a  claim  of 
loss  of  profit.  Take  the  case  of  the  schooner  "  Lizzie  and  Mary." 
The  claimants  claimeil  certain  expe!is-es  that  they  were  put  to, 
and  then  make  a  claim  for  profits,  compared  with  the  previous 
year's,  and  then  they  de<luct  certain  returns  of  merchandise,  etc. 
So  in  the  case  of  the  "  Edward  E.  Webster."  The  claim  is  made 
up  in  the  following  way:  The  preceding  trip  netted  fifty-four 
hundred  dollars  ;  the  expenses  were  twenty-five  hundred  dollars, 
leaving  a  profit  of  twenty-nine  hundred  dollars,  which  they 
accordingl}'  claimeil.     The  case  of  the  "  William  E.  MacDonald  " 

40  is  made  up  in  the  same  way  :  a  claim  being  made  for  the  probable 
profit  calculated  on  the  voyage  of  the  preceding  year.  So  with 
the  schooners  "  Grace,"  and  "  Smith,"  and  "  Hereward,"  and  other 
claims.  I  need  not  read  them,  but  thcj"  all  go  upon  the  same 
basis,  except  in  one  or  two  instances  where  they  make  up  a 
claim  in  a  verj-  special  manner.  Take  the  case  of  the  ''  Maud  B. 
Wetheiall,"  page  19.  This  vessel  was  capable  of  carrying  twelve 
hundred  barrels,  and  she  was  able  to  obtain  only  eight  hundred. 
The  actual  expenses  incurred  were  §20.18,  and  a  claim  is  made 
on  the  basis  of  prospective  profits,  it  being  (juite  apparent  that 

50  she  calculated  that  the  chances  were  that  she  would  have  got  a 
full  cargo.  Now  here  was  a  case  where  the  United  States 
was  making  a  claim  upon  Great  Britain  for  what?  "For 
compensation."  Why  ?  Because  certain  of  her  fisheries  had 
been  prevented  from  carrying  on  their  lawful  occupation,  not  by 
Great  Britain,  or  by  the  revernie  cutters  of  Great  Britain,  but  by 
what  is  described  in  some  places  as  a  "  mob,"  and  at  all  event.s 
by  private  individuals.  The  case  is  similiar  to  our  own  case  in 
this  way,  that  in  both  cases  the  intention  was  to  prevent  men 
carrying  on  the    fisherj%  antl  in   both    cases    the    intention  was 

CO  successfully  carrieil  out.  It  must  be  assumed  that  the  claim  was 
propel ly  audited  by  the  United  States,  and  if  the  claim  had 
been  properlj-  audited,  tlie  United  States  were  claiming  to  he 
paid  an  item  of  damage  which  they  now  say  never  could  be 
claimed,  accordinir  to  the  rules  of  International   law.     If  it  was 


43 


ernment  of 

r  nature, 
lainatre  caii- 
i  every  case 
e  they  were 
•in  claiming 
epliny  coni- 
>t  it.  Now, 
le  up  ? 
,es: — Wlieic 


now  to  call 

three  cases, 
in  nil  these 
nnder.stanil 
claims  were 
errinj;,  as  a 
•educed  into 
,vili  disprove 
papers    for 
The  cases 
'ere  actually 
il  particular 
;e  a  claim  of 
i  and  Mary." 
were  put  to, 
the  previous 
:liandise,  etc. 
hvim  is  made 
L'd   til'ty-four 
divd  dollars, 
which  they 
MacDonald  " 
the  probable 
r.     So  with 
and  other 
)n    the  same 
make    up    a 
le  '•  Maud  B. 
ryin^  twelve 
i»ht  hundred, 
aim   is  mai'e 
jparent  tliat 
1  have  ^ot  a 
nited  States 
hat  ?     "  For 
isheries  had 
ation,  not  by 
•itain,  hut  by 
,t  al!   events 
own  case  in 
prevent  men 
itention  was 
he  claim  was 
e   claim   had 
liming  to  lie 
ver  could    be 
If  il  was 


(Mr.    Peters'    Arf,'ument.) 

rifj;ht  for  them  to  make  that  claim  in  1887  or  1888,  is  it  not 
right  for  us  to  make  a  similar  claim  now,  or  does  my  learned 
friends  say  that,  the  United  States  not  oidy  made  but  obtained 
payment  of  a  claim  which  could  not  bo  made  or  obtained  under- 
the  International  law.  That  is  the  position  in  which  my  learned 
friend  puts  himself  in    his   present  contention.     How    does  he 

10  answer  tliat  ?  The  total  claim  made  in  the  "  Bay  of  Fortune" 
case  was  810.").000.  The  matter  went  on  for  a  considerable  time 
in  the  way  of  diplomatic  ct)rrespondence,  and  it  was  finally 
couipronused  and  an  amount  paid  which  was  between  seventy- 
five  and  eii,dity  thousand  dollars,  or  about  two-thirds  of  the  whole 
claim  ;  and  as  a  ycry  lari,'e  portion  of  the  whole  claim  consisteil 
of  a  claim  for  prospective  profits,  it  is  jierfectly  plain  that  the 
United  States  not  only  asked,  but  obtained  i)ayment  of  a  large 
claim  for  prospective  profits.  In  the  face  of  that,  how  can  they 
now  argue  tliat  it  is  improper   for   one    nation  to   claim   from 

20  another,  on  behalf  of  subj'  is  whom  they  are  protecting,  that 
prospective!  profits  should  I  e  paid  ? 

My  learned  friend's  answer  to  this  point  is  found  at  page  IIS 
of  the  argument  of  the  (Tnited  States'  counsel  : — 

"  There  are  .some  unfortunate  omission  in  the  statement  of 
"  facts  in  this  citation  which  will  be  supplied.  The  claim  was 
"for  §120,000 — while  as  stated— '  there  were  but  four  ve.sscls 
"  out  of  the  fleet  of  twetity-two  actually  fi>hing' — it  appeared 
"  that  those  four  vessels  were  handling  the  seini's  in  ■  liehalf  of, 
"and  for  the  benefit  of  the  entire  fleet  of  twenty-two." 

DO  It  further  appeared,  anil   was   proved    uncontestably  that  in 

the  seines  at  the  time  of  the  tort  ami  therefore  in  possession, 
there  were  sufficient  fish  to  give  a  full  cargo  to  every  one  of  the 
•22  vessels,  and  that  by  the  act  of  the  tort  fea.sois  the  property 
in  fish  so  actually  at  the  timi?  in  possession  of  the  Heet  was  lost 
to  them.  The  claim,  therefore,  was  not  for- prospective  jtrofits — 
but  for  property  actually  t  ken  from  the  fleet.  There  was  no 
agreement  or  decision  gis.ng  estimated  profits,  or  average 
profits,  or  prospective  catch,  or  prohaljle  catch.  The  result  was 
the  payment  of  §75,000  on  the  claim  thus  made  for  §120,000. 

40  'i'his  authority  is  adverse  to  the  British  conl-ntion.  There  was 
absolute  certaint}'  as  to  amount  on  the  e\idence.  Of  course 
none  of  the  vessels  were  lost  to  the  owners.  The  statemei't  in 
the  Uritisli  argument  as  compareil  with  the  record  of  the  cases 
appearing  in  Vol.  72  British  State  papers,  1880,  1881,  particu- 
larly at  pages  1282,  1289,  1307,  and  with  the  following  quoted 
from  that  record  : — 

"  The  evidence  in  this  case  shows  that  the  catch  which  the 
"  United  States  fishing  fleet  on  this  occasion  actually  realized 
"  was  exceptionallj'  large,  and  would  have  supplied    protitai)le 

'){)  "  cargoes  for  all  of  them  "  (page  128!).) 

Now,  I  look  at  these  claims,  and  I  find  at  pages  22  and  23 
of  these  claims  in  Stat(>  Papers,  a  couple  of  claims  put  iri  f;)r 
vessels  catching  herring  which  they  had  actually  in  their  seines. 
What  ilo  they  amount  to  ? 

Ill  tlie  case  of  the  .schooner  "  New  England,"  they  put  in  a 
claim  of  two  thousand  pounds,  which  eviderrtly  must  have  been 
intended  for  barrels,  two  thousand  dodars  ;  and  in  the  case  of 
the  next  vessel  metioned,  a  similar  claim  is  made. 

Mr.    Dickinson  ; — There    appear    to  liave    been  two    vessels 

CO  outsid(?  of  the  twenty-four — which  also  had  seines,  and  their  own 
nets  outside,  in  addition  to  the  full  nets  in  the  four. 

Mr-.  Peters; — I  can  only  read  the  claims  as  they  were  put  irr. 
There  were  oidy  two  claims  put  in  where  it  was  alleged 
that  they  actually  had    herring    in    their    seines.     The    othci-i 


!  ill 


40 

(Mr.    Peters'    Ai^'Uiiient.) 

Hi'i'  all  put.  ill  (III  tli(>  ;rt()iii)il  of  fstiiiiateil  catch,  and  eHtiiiiatud 
pro'it. 

Ml.  Dickinson  :- It  should  ho  stated  in  that  connection  that 
the  net  ol'  violi'nco  destroyeil  the  iiots,  and  thu  Hsh  in  tho  m-ts 
c'scnpiMl. 

Sir.  Pi'ti'is  : — Thcro  is  no  iloulit  that  is  tlm  case,  with  regard 

10  to  soini'  of  tlu'iii,  tint  I  am  jinttin^j  tlin  clniiiis  as  they  were 
Hctiiully  prefi'ircd,  ami  I  ictVr  to  the  chiinis  of  the  vessels  whieh 
(lid  not  have  liny  Hsh.  There  were  oiil_v  two  cases  where  Hsh 
were  tictiially  in  the  .seines,  and  all  the  other  claims  were  for  fish 
ihiit  they  would  have  can^dit..  'i'liey  have  to  stand  hytherlaiiim 
as  they  put  them  in,  and  they  have  put  them  in,  in  the  very 
wiinis  iiM'il  liy  themselves — "  jiroHts  ciimpared  with  previous 
years"-  or  the  "profit,  calculated  upon  the  voyaj^es  of  previous 
years."  In  these  cases  it  is  not  aile^ecl  that  there  were  many 
herriiiy;s  in  the  scenes,  hut  simply  "  that  they  would  havecauf^lit 

20  a  full  cai;;o  if  they  had  heen  let  alone."  Therefore  I  contend 
that  We  have,  as  a^'ainst  tlu!  (ieneva  case,  first  the  "Costa  llica  " 
case,  a  distinct,  authority  lioldinit  we  are  eiilitleil  to  recover  for 
piiispective  catch  ;  and  in  the  Itay  of  Fortune  case,  an  instance 
wheie  the  I'niled  Slates  claiine.l,  and  successfnlly  pressed  the 
claim,  for  prospective  profits  The  result  of  the  elaiiiis  hein^f  the 
payment  of  a  lari,'e  amount,  which  sum  was  doulilless  paid  under 
the  very  heading  of  prospi'ctive  catch.  Now,  while  !  am  refer- 
lii)!,'  to  the  liay  of  I'"ortiine  claims,  I  would  like  also  to  mentinn 
a  matter  which  co s  up  also   indiiectly.  and  I    will   mention   it 

30  now  in  order  to  closi'  my  reference  to  tht'  Buy  of  Fortune  claims, 
It  will  lie  fiiun<l  in  the  former  part  <;i  my  liained  friuml's  arj^'U- 
nieiit.  At  lia;,'e  ■i  of  his  arj,'ument  he  refers  to  our  reference  to 
the  Hay  of  Foitune  elailns  us   follows:  — 

"  In  the  hiiy  of  i""orlune  claims,  leferii'd  to  in  the  Hrifish 
"  iirief.  Ml.  Kvarts  sulimitted  to  (ireat  ISiitaiii  the  claims  of  the 
"  Ihiiteil  States  for  attacks  upon  and  damatjes  to  '2'2  vessels 
"  under  the  American  thi),'  on  Au^rust  1st,  1.S7!».  He  received  a 
"reply  from  (ireat  Britain  on  April  .'hd,  I.S80.— '  Foreii,'n  Kela- 
••  lions,'  (Jreat  Hritaiii,  ISHO,  vol.  72  (pa;,'e  1277  et  secj.) 

40  At   this  point  of  his   aiMjuinent   my   learned    friend   was  on 

another  point,  in   contendini,'  that  in  the  present  case  there  had 
been  no  delay. 

.Ml.  Dickinson  ; — No  culpalile  delay. 

Mr.  Peters: — My  learned  friend  did  not  use  the  word 
"culpalile."  My  learned  friend,  in  eH'ect,  said:  "You  cannot 
plead  there  was  delay,  liecause,  in  every  case  of  inteinatiooal 
dispute,  delays  have  occurred  and  must  occur  in  tlie  natural 
course  of  affairs."  And,  in  order  to  prove  that,  lie  refers  to  the 
very  case  we  are  now    considering,' — the    I5ay  of   Fortune    case; 

50  and  he  slates  that  that  dispute  aiosi?  in  lH7!t,  and  that  claims 
were  sulmiitted  in  1IS7!);  and  that  no  reply  was  c^iveii  until 
April,  IH.SO.  We  answered  that  point,  ainl  we  showed,  as  a 
matter  of  fact,  tlic^  reason  for  that  delay  ;  and  we  showed  that 
the  arj,'ument  that  my  learned  friend  attempts  to  make  there, 
is  one  that  he  cannot  successfully  make 

At  pa^re  1  of  our  reply  we  tiay  :  "  It  is  claimed  that  the 
Fortune  Bay  case  of  claims  were  submitted  in  Aui,'ust,  IS7f),' 
whereas,  the  reply  from  (ireat  Hntain  was  on  the  Srd  day  of 
April,  1.S80.  In  point  of  fact,  as  the  record  in  that  case  shows, 
(iO  oh  the  inth  of  March,  l,S7H,  the  United  States  representative  in 
London  broujrht  the  matter  to  'he  attention  of  Her  Majesty's 
Government  for  the  Hrst  time,  with  a  recpiest  to  cause  investi;,'a- 
tion  to  be  i.'iade  into  the  all(!(»ed  facts  of  the  case,  intimating  at 
the  same  tii.ie  that   uiller   inforni.ition    would    be    transmitted. 


4T 


(Mr.    Peters'    Aigiiment.) 

On  tlin  2.'{ril  Aiij{ust,  Lord  Siilisljmy  forwanl'il  ii  tin-  (TnitoJ 
Strttcs  itinro-toiitative  (vrt'iiort  of  tliti  naval  ottieiT  vlio  had  hern 
fiitnisteii  witli  tlio  duty  of  iMstiluliii^,'  on»iniry  int(  tln' iimttor 
on  tlm  spot.  T\u'  (Tniti'd  Stiitfs  Hcfit-tiirj'  of  State,  mi  tli"  2Mtli 
Scptfuiln'r,  1H7M,  sent  a  dt^splltt•l1  (!i>nniiriitiri;;  on  tld.H  riiport, 
wldcli  was  coninjiinicatcd  liy  'Aw.  United  State.s  Minister  to  liOi<) 
10  Sulisluiry  on  tiie  12tli  Oftolier,  an<l  nnswered  hy  Lord  SaliHluiiy 
on  tile  7tli  Novendier.  'I'lie  de.spateli  of  1st  Au^jnst,  1 871), 
referrerj  to  in  tlie  opposing'  iir^'iiinent.  was  roniniiinicated  to 
liord  Salislmry  on  the  I'Hh  of  that  month.  This  dt(s|)atch  was 
a  len;,'thy  review  of  the  ipiestioii  involved,  and  it  refernMl  to  a 
roinnninieation  of  the  lith  Fehniary,  I  MHO,  which  e.xplained 
the  ren.soiis  "  why  a  certain  time  has  iinavoidahly  cdapsed." 

I  simply  refer  to  this  point  now,  hecaiisi'  I  do  not  wi.sli  to 
come  hack  aLfain  to  the  Fortune  Hay  case  at  all.  There  is  a  lonj^ 
correspondence,  and  Ion;,'  dispute  with  rei,'anl  to  lluit  mattiM'.      I 

20  do  not  think  that  it  will  lie  lu^cessary  for  mi^  to  draw  your 
attention  to  any  other  part  of  it — that  which  I  have  read. 
There  is  another  (piestion,  which  comes  up  in  this  connection. 
My  learned  friend  makes  this  statement,  and  to  a  ;L,'ieat  I'Xtent  I 
Hi;ree  with  him — "  that  we  are  hound  hy  the  iiiles  of  Interna- 
tional law,  and  that  you  are  to  he  hound  by  those  rules  in 
settling'  compensation."  Hut  he  contemis  that  Municipal 
decisions  really  have  no  weijfht  at  all,  exc(>pt  where  they  are 
taken  a;,'ainst  the  nation  of  the  court  which  decides  them. 
Now,    I    say,    that    there    are     many    cases    win  re     Municipal 

30  decisions,  and  decisions  of  civil  courts  should  he  looke(l  at, — 
especially  where  the  law  in  these  Municipal  courts  does  not 
diiler  in  th(!  two  cotintries.  If,  for  instance,  tlie  law  upon  the 
(|Ui'sti()n  of  com|)ensation  is  one  way  in  the  United  States  and 
another  way  in  Cireat  iiritain.  and  a  disputi-  arises  hetween  the 
two  nations,  it  is  apparent  that  the  Municipal  decisions  of 
neither  party  co\ild  hav(!  any  heaiin^',  liecause  they  hein<j 
opposed.  You  cannot  jjet  them  to  a<,n'ee,  and  you  must  appeal  to 
to  the  rules  of  International  law.  Hut,  in  the  absence  of 
'     direct    authority   in     International    law,     anil   where   tin;    leyal 

40  decisions  of  both  countries  ayree,  I  submit  that  you  have  the 
rij,dit  to  refer  to  these  decisions.  Let  me  refer  to  u  very  old  case 
decided  by  an  eminent  jud^e.  Lord  Kenyon,  to  establish  a  prin- 
ciple in  dispute  here.  My  learned  friend  says  that  you  cannot 
recover  any  dan)ae;e  for  prospecsive  profits,  as  the  claim  is  too 
remote.  But  take  the  case  of  Tarlcton  v.  McCawley,  Peak's 
Nisi  Prius,  pa;,'e  !270.  I  would  not  citt;  a  iiini  prius  case  here 
uidess  it  were  a  Jiidi,'ment  of  such  an  emiruuit  jud^'e  as  Lord 
Kenyon.  We  have  referreil  to  it  in  our  argument  at  pa^e  3L 
That  case  brings  up  the  very  point  we  are  at  issue  upon  in  t'lis 

50  case.  The  facts  of  the  case  are  very  short.  The  owner  ot'  a 
ship  was  tradini;  on  some  p.irt  of  the  coast  of  Afiica.  Anoth'f 
owner  of  another  ship  did  not  wish  him  to  t!a<le  upon  that 
coast,  and  in  order  to  prevent  him  he  took  a  certain  step,  and 
this  was  the  step.  A  canoe  full  of  natives  was  cominij;  out  from 
the  shore,  not  in  any  way  connected  with  the  plainliti'  in  the 
.suit,  that  canoe  full  of  native.s  was  cominj;  out  from  the  shore 
for  the  purpose  of  tradinff  with  the  plaintitt',  and  whilst  on  their 
way  out  from  the  shore,  the  othei'  ship  fired  upon  the  natives 
with    cannon    and  killed  several  of  them,  and  thus   prevented 

GO  them  from  carrying  on  trade  with  the  plaintiff.  It  was  apparent 
under  tlds  state  of  facts  that  there  was  no  direct  cause  of 
action  by  the  plaintiff,  who  was  prevented  from  trailing  against 
the  man  who  had  fired  the  shot,  not  at  him,  but  at  some  other 
person.     Nevertheless,  an    action  was  brought,  and  the  action 


^!-   \  ■ 


48 

(Mr.    Peters'    Arjjmnent.) 

alleged  tlmt  this  was  dont!  by  the  (lefemlant  for  the  purpose  of 
prcvontinij  the.  piaintitl'  carryinij  dii  his  husiness.  I  will  road  so 
much  of  the  (loclarntioii  as  is  lu-ci'ssury  to  show  the  exact  cause 
of  action. 

"The  declaration  charjjed  the  defendant  contrivirifj  and 
"  nialieiously  intentlinjj  to  hinder  and  deter  certain  natives  from 

10  "  tradinij;  with  the  plaintiff's  ship,  with  forcn  and  arms,  tired 
"from  a  certain  other  ship  at  a  canoe  tilled  with  natives  and 
"  kifled  one,  whendiy  the  saiil  natives  of  the  snid  coast  were 
"deterred  and  hindei'ed  from  tradiiii,'  with  the  plaintiff 's  ship 
"and  the  plaintifl"  lost  their  trade." 

Xi)w,  in  fhat  particular  case  what  was  the  cause  of  action? 
It  was  not  the  firiiiif,  liecause  that  did  not  injure  the  plaintiff. 
It  was  not  the  ir.jui'y  the  deftndunt  did  to  the  natives,  hecause 
that  did  not  injure  the  plaintifl',  but  it  was  the  fact  that  the  act 
was  cloue  liy  the    plaintifl     with    the  intention    of    preventinii; 

20  those  natives  from  trailini;  with  the  plaintiff  That  it  was  <lono 
with  that  intention  and  that  the  intention  was  successful  and 
the  trade  prevented  that  j^'iive  the  plaintiff  the  cause  of  action. 
What  was  the  tfist  of  the  eau-<(!  of  action  ?  The  i.jist  of  the 
action  was  that  the  plaintiff  had  been  prevented  from  carryiu}^ 
on  the  trade,  and  apparently  from  makin<;  certain  profits,  this, 
acpordini^  to  my  friend's  contention  never  could  be  the  basis  of 
any  (ianiMLies  whatever  beeaU'<e  the  jirotits  were  so  tuicertain. 
How  ccuilcl  the  plaintiff  tell  to  wluit  extent  these  luitives  would 
have   traded    with   him,  if   ihev    had    come    to    his    ship  f      How 

30  could  be  have  told  whether  if  tbr\'  eamt'  to  his  slii|)  he  would 
have  made  a  profitable  or  an  unp)'ofitalile  trade?  All  these 
thinus  bavi-  a  certain  amount  of  uncertainty  and  a  certain 
amount  of  doubt  ;  but  Lord  Kenyonsays; 

"  This  action  is  broUL;bt  by  the  plaintiffs  to  recover  a  satis- 
"  faction  for  a  civil  injury  which  they  have  sustained.  The 
"injury  complained  nf  is,  that  by  the  improper-  conduct  of  the 
"  defendant  the  natives  were  prevented  from  tradirii;  with  the 
"  plaintiffs.  The  whole  of  the  case  is  stated  on  t\w.  record,  and, 
"  if  the  ])arties  desir'e  it,  the  opinion  of  the  court  may  hereafter 

40  "  be  taken  whether  it  will  sujjport  an  action.  I  am  of  opinion 
"  it  will,  'i'he  case  has  been  likene(l  to  cases  which  it  iloes  not 
"at  all  reseirrble.  It  has  been  said  that  a  person  en;,'afjeil  in  a 
"  trade  violatin<:f  the  law  of  the  country  cannot  suppoitan  action 
"  ajjainst  anofhet  for  hiirderinf»  him  in  that  illei,'al  ttaflic.  That 
"  I  etrtirely  accede  to,  but  it  iloes  not  apply  to  this  case.  This  is 
"  foreijfu  law  ;  the  act  of  trading,'  is  irot  itself  imtru)ral,  and  a 
"_;i(.s  2)<'.s(7/(n/»((.  is  not  binding' on  fcu'eirjners.  The  kinj^  of  the 
"county,  aird  not  the  defeinlanf,  shinild  have  executed  that 
"  law.      Had  this  been  nr.  accidental  thin;;  lu)  action    could  have 

50  "  been  maintained,  but  it.  is  proird  tlmt  the  defendant  Ixul 
"  cxjursned  av  intention  not  to  permit  ani/  to  trade  until  a  debt 
"  due  from  the  mttiven  to  hiviself  va"  satit/led.  If  theri^  was 
"any  court  in  that  country  to  which  he  could  have  appliecl  for 
"justice,  he  mij;ht  have  done  -^o,  but  he  had  no  riLjht  to  take  the 
"  law  in  his  own  hands. " 

Ther.'  in  that  old  ciise  iiord  Kenyon  draws  a  distitrction.  He 
says  that  if  this  shooting;  bad  been  accidental — just  as  iti  the 
case  of  a  collision  which  is  accideirtal — ^lu)  action  would  have 
lain.      Hut    it    was  proven   that   this   aetien    was    clone    by    the 

GO  <li'fi'irilairt  with  the  intentiort  A'  preventirrjf  any  person  tiadiiifX 
with  the  natives  for  a  eertaiti  lirrre,  and  that  beirijj  the  case  it 
j,'ave  a  siaind  basis  for  an  actiorr  aj,'ainst  the  ilefi'tidant. 

It  was  the  intentional  part  of  the  act  of  the  defendant  that 
^ave  the  cause  of  actiorr  to  the  plaiittiff 


X-.' 


ctioii.  Ho 
lis  ill  tlie 
)iil(l  liavo 
.'  hy  tlu" 
III  tiiidiii!:; 
no    e&!^ti  it 


49 

(Mf.    Peters'    Argument.) 

Mr.  DiciiiiiKon  :— It  cnino  np  on  (ieinurrer  in  Uie  case. 
Mr.  Peters:— Yes. 

Mr.  Dickiiisnii  : — Tliiit  question  came  up  cm  (ieinurrer  in  tlu; 
case  tlecided  liy  Ijoni  Kenyoii,  and  wns  referretl,  mid  there  is  no 
evidence  of  wlmfc  tlie  daii  nge  awarded  was. 

Mr.  Peters: — My  poini  is  this,  that  tliat  action  could  not  bo 

10  maintained  at  all  unless  daniaije,  which  in  itself  was  a  sntficient 
dnmaife,  was  piopeily  alleged,  the  damage  was  the  gist  of  tiie 
action  and  that  if  it  lu;  true  that  you  cannot  recover  for  protits 
liecause  they  are  uncertain,  tlu?  allegation  of  the  loss  of  future 
profits  in  the  case  decided  by  Lord  Kenyon  would  liave  been 
uncertain  and  tlie  declaration  would  liave  been  defective.  Hut 
Jjord  Kenyon  was  of  o|iinion  that  because  the  injury  was  inten- 
tional that  it  was  a  good  allegation  of  daninge.  I  will  presently 
show  your  honors  that  there  ar(^  otlier  cases  which  support  that 
sMiie  ilistinction. 

20  The  Couiirissioner  on   the  part  of  the  United  States: — My 

leaTiied  assov  ,ite  and  myself,  both  understand  that  we  will  sit 
four  hours  to-nioriow,  Saturday,  the  same  as  on  otlier  days  of 
the  week. 

At  ■t.40  p.  III.  the  C'oiiimi.ssioners  ro.se. 


^ 


Commissioners    under    the    Convention    of    February  8th, 

1896,  between  Great   Britain  and  the   United 

States  of  America- 


im 


I 


20 


Leirislativi'  ConiR-il  Clminber  of  tlif  Prnviiipial  Piiililiii<i;, 

At  Halifax,  N.  S.,  Am^nist  2,stli,  lSi)7. 

At  11  A.  M.  till'  ('oMiiiii.ssiiMii'rs  took  1  heir  seats. 


Mr.  IVtors : — Yoiif  Honors,  bcfoie  pi(  cfCilinji;  with  lln^  line  of 
arHiiiiiont  that  I  was  pursuiiiL,'  yesti'fday  wlien  tlio  court 
acljourncil,  1  wish  to  adil  one  or  two  ri'iniii<s  with  rejiard  to  the 
Hay  of  Fortune  cases,  witli  reference  to  liie  point  taken  by  my 
leartieil  friend  in  his  iirief  ;  tiiat  the  United  Stutes  scliooners 
had  actiialiy  encioseil  in  their  seines  sutlicient  iierrinj,'  to  h'ad  all 
their  vessels  at  the  time  they  were  inteil'eied  with.  1  diiiw  your 
honors'  attention  ton  h'tter  written  hy  Mi.   I"]varts  to  Mr.  Welsh, 

SO  who  was  then  the  Minister  of  the  linited  States  in  liOndon, 
dated  the  1st  Aujfust.  ISTil.  which  will  i  found  in  the  State 
Papers,  \dliime  7)S,  pajj;e  1,  in  if.  Mr.  Ev  i-  :.  ■ 'e.s  a  statement  of 
the  whole  tiansiiction  from  his  jioint  (;f  \  it  .v.  in  one  |i:irt  of 
that  statement,  at  pa^e  4,  he  savs  :  "  After  a  carefid  comparison 
of  all  the  de|iositions  furnished  to  both  j^overnmenls,  the  (Tnited 
States  is  of  opinion  that  the  followini;  facts  will  not  lie  disputeil : 
"  Twent_v-two  vessels  lielonyiinjf  to  citizens  of  the  [Jnited  States 
(he  ;;i\es  tlieir  names)  went  fi'om  (iloucester,  Massachusetts,  to 
Fortune  Pay,  Newfoiindhind,  in  the  winter  of   l.S7<S  foi-  the  pur- 

40  pose  of  proeui'iiiL;  herriiii;."  He  then  makes  other  statements 
that  they  had  waited  for  aceitain  time — statements  which  it  is 
not  necessary  to  read,  and  he  continues,  "  that  on  Sunday,  Janu- 
ary Otli,  the  hcrrinij  entered  the  bay  in  ;,'reat  nnndiers,  and  that 
four  vessels  sent  their  boats  with  seines  to  commence  tishinjjr 
operations  and  the  (ieet  were  proceeditii,'  to  follow."  Tliend'ore, 
your  honors,  in-.tiail  of  havim;  completed  their  tishin;,'  operations, 
and  liaviii;;  alieady  enclo--ed  in  their  seines  sutlicient  heniiii,'  to 
load  all  lh('  vessels,  the  statement  ot  fact  made  in  the  most  formal 
manner  by  .Mr.  i'Aarts  w,  "  that  some  of   iheir   Imats   had    bei^iin 

.')()  their  seining-  o|ieialions  and  the  otheis  were  proceedin:.;  to 
foliow.  "  Tlieii  Mr.  I']varts  ;,'oes  on  to  slate  that  the  parties  then 
seiniiiif  were  coni|)eHed  by  a  liir^'c  and  violent  mob  of  the  inhabi- 
tants of  Newfoundland  to  take  up  their  seines,  dischari,'e  the  tish 
already  enclosed  and  aliandon  their  lishery,  and  in  one  case  at 
least,  the  s<'ine  was  destroyed."  Kiirther  on  he  states,  that  these 
seines  were  beini;  used  in  the  interests  of  all  the  I  nitcd  States 
ves.sc'ls  wiiitinj,'  for  carj,'oes  in  the  iiarbour,  and  that  the  catch 
undistiirbiMl  Would  have  been  surticicnt  to  load  all  of  them  with 
protitable  carmies." 

00  1  call  your  Honor's  attention  to  the  words  "  the  catch  undis- 

turbed." 'i'he  eatch  h,id  not  been  made,  init  it  they  Wire 
uiidistuibcd  in  makiiii;  it  a  jfieat  (piaiitity  of  the  tish  would 
lia\e  been  taken.  All  this  is  contrary  to  the  idea  put  forward 
in  my  leurnud  friend's  brief,  that,  as  a  matte-  of  fact,  when  thi.s 


51 


jruary  8th, 
lited 


'.iiililiiifi;, 
,  2Sth,  1S!)7. 


li  till'  liiR'  of 
tlin    court 

'Jjlllll    to    tlu! 

vUi'.ii  by  mv 
>,s  .scliooilers 
n  to  load  all 
1  iliiiw  xom- 
ii  Mr.  WVlsli, 

in  Lomlon, 
n  tlio  8tato 
^tuti'iiicnt,  of 
Dill-   iKirt   iif 

c'oinparisori 
,  tli(>  fTiiitcil 
lie  (liNimtcil : 
liitcil  States 
It'll usi'tts,  to 
for  tlu^  jiiir- 
r  stati'iiii'iits 

wliicli  it  is 
unlay,  .laiiu- 
:'rs,  anil  that 
tMici'  tisliiiii; 
'I'lii'rct'orc, 
1^  opi'iaiioii-:, 
it  lu'i-iiti,'  to 
most  furiiial 
1  hail  lii';4Uii 
■occi'iliii;,'  111 
parties  tlu'u 
f  tilt!  iiiliiilii- 
ar;;('  tin'  tish 
I  one.  case  at 
's,  that  these 
iiiteil  States 
at  till!  catch 
f  tiu'Mi  with 

catch  uinlis- 
they  Were 
■  tish  woiilil 
)Mit  forwaiil 
•A,  when  this 


(Mr.    Peters'    Ar;;ument.) 

(listnrhance  did  take  phico  they  l>ad  actually  enclosed  the  tish. 
Such  was  not  the  case,  Tlieii  njiain  Mr.  Kvarts  says  :  "  None  of 
"  tlie  United  States  vessels  made  any  further  attempt  to  tisli,  hut 
"  tiireo  <ir  four  which  were  in  the  neijj;lihoiirhood  purchased 
"some  siuall  supplies  of  herrin<jf."  All  the  United  States  affi- 
davits show  that  the  iMiited    States  vessels   were   afraid  ton.se 

10  their  seines,  and  that  after  this  they  left  for  home,  miist  of  them 
ciiiiiini,'  home  in  hallast.  I  wish  tii  call  your  HotKir's  attention 
to  this  statement,  to  show  that  whereas  a  certain  (iiiaiitit}-  of 
herring  had  hceii  enclosed  in  the  seines,  at  the  same  time  tlie 
real  fomplaint  was  that  they  were  prevented  from  carryirifj  on 
their  seiniii;;  operations.  The  same  poin.  is  made  more  clear  by 
lookiiii^  at  some  of  the  ai1iii<.vits  used  in  the  case. 

Mr  Dickinson: — In  th"  same  communicatiiui  you  will  find 
the  summiii!.;'  U{)  of  all  the  evidence:  "The  evidence  in  this 
•' case  shows  that  the  catch  the    Unitei     States  tishiiiLf   th^et  liad 

20  "  on  this  occasir.n  actually  realized  was  exceptinnally  lai^^'e,  and 
"could  have  supplied  prolitahle  carjjnes  .'or  all  of  the  vessels." 

.Mr-.  Peters: — That  is  provided  tliey  'iH're  not  disturbed.  We 
must  take  that  statement  in  connectioM  witli  tlie  statement  here- 
tofore made.  And  to  put  that  matttir  beyonil  all  donbt.  let  iiu; 
refer  to  the  very  (daiiiis  [uit  in  and  to  the-  atlidavits  on  which 
they  are  based.  I  have  heie  in  one  ease  the  atiiilavit  upon  wiiich 
the  claim  is  based.  It  ap])ears  at  pane  '21  of  this  same  doeu- 
nieiit,  and  is  the  iitlidasit  of  one  Peter  Smith,  who  was  the  mas- 
ter of  an   American    schooner  called    the   "('harles   ( '.  Wairen." 

',]{)   'J'liis  is  his  atiidavit: 

"  Oti  the  morriiiii;- of  the  (!th  .ranuiiry,  heitinj;-  made  tlieir 
"  ap[)earance  in  close  jiroxiiiiity  to  the  shore,  in  yicat  abiiiiilaii'_'e. 
'  I  was  provided  with  two  seines  with  which  to  take  hei  rinij, 
"and  should  have  loaded  my  ves.sel  and  others  on  that  day.  I 
'had  my  seine  in  the  boat.  1  was  pre|)arin;.f  to  use  it  wlien  an 
'attack  was  muilc  on  the  oth"r  American  seines  and  I  saw  them 
"destroyed,  i  found  that  a  nioti  of  '200  or-  DOlt  ISritish  men  were 
"determined  to  ilestroy  every  seine  in   the  water.  " 

The  claim  this  man  makes  is  that  he  wiis  ready  with  his  seines, 

40  iHid  had  he  been  allowed  to  use  them,  would  have  yiit  many 
herriui;,  but  the  moli  prevented  hiii!  from  usinij;  them;  and  that  is 
his  claim.  1  do  not  think  that  my  eiiined  friend,  .Mi'.  Dickinson, 
should  lake  a  simple  statement  made  by  Mr.  Ev.irts  and  say 
that  ihat  is  the  coiiclusion  that  was  readied  in  the  case.  He 
should  lake  the  wholi-  matter-  fr-oiii  the  be^innine;  to  tiie  end, 
paiiicularly  the  piii  I  where  .Mr.  Kvarts  cites  the  details  and  says  : 
"  these  are  facts  which  will  not  be  disputed.  "  .My  learned  friend 
should  take  the  whole  thitiL;- in  connection  with  the  actual  claims. 
I  have  already  pointed  out  the  distinction  between  th'  survey  of 

'){)  the  claims,  where  in  some  cases  they  were  put  for  the  loss  of 
catch  and  in  the  other  cases  for  the  .ictual  heriin;;  that  were 
enclosed  at  the  time  the  seizin es  took  jdace.  So  far  with  le^aid 
to  that  matter. 

I  wish  also  to  make  a  few  remaiks  with  reifjiid  to  the  case  of 
the  "  Canada,"  so  as  to  point  out  more  clearly  than  perhaps  I 
did  yesterday,  the  distinction  that  exists  between  that  ease  luid 
the  present.  The  distinction  is,  that  in  tlie  jiresent  ca.ses  (iiere 
w as  an  intention  to  |)ievent  us  carrying,'  on  a  lei^itimale  Imsiness, 
and    in    the    "Canada"    case    tliere    was   not  only   tiie  lack   of 

(iO  evidence  of  any  such  intention,  hut  there  was  also  a  circumstance 
in  rhe  case  which  showed  positively  that  no  such  intention 
existed,  but  that  the  seizui'e  in  that  case  was  nuide  with  a  very 
dillei-ent  oliject  J  lefer  your  Honors  to  the  aw'iird  of  Sir 
Edward  Thornton,  wliicli  1  read  yesterday,  and  particularly  to 


M 


'il'!^ 


52 


(Mr.    Poters'    Arj^urnent.) 


1 


tlie  part  of  it  wliich  is  to  be  foutifl  at  paije  2()G  of  tliis  volume  of 
the  British  ami  B'oreign  State  papers,  to  which  I  did  not  call 
your  Honors'  attention  yesterday: — 

•'  It  is  possible  that  the  officer  th(m;^ht  the  ship  woiiM  run  the 
"  risk  of  sinkinij;  in  deep  water,  and,  in  the  interest  of  the 
"  Brazilian  Customs,  deemed  it  his  duty  to  avoid  exposini;  it  to 

10  "  such  dani^er  ;  but  he  cerlaitdy  exceedeil  what  was  reipured  of 
"  him,  for  on  board  his  own  ship  the  captain  is  responsible  for 
"  its  nnvisi;ation  and  safety,  and  siiould  be  supreme." 

He  points  out  in  that  sentence  that  the  reason  ailei^ed  by  the 
Brazdian  oflicers  for  making;  the  seizure  is  a  reason  which 
excludes  th(>  idea  that  the}-  had  any  intention  of  prevontiny  him 
carrying  on  his  business.  It  was  a  reason  connected  with  the 
supposed  duty  or  I'iLjht  they  had  to  ])rotect  that  vessel  from 
beiiiL;  taken  off  in  perhaps  a  leaky  condition  into  deep  water 
where  she  would  be  lost,  so  that  they  inifjht  protect  their  own 

20  customs.  That  mie  sentence  makes  clear  the  distinction  be- 
tween the  case  of  the  "Canada"'  and  the  cases  we  are  now 
eonsiderinj,',  more  so  than  perhaps  any  other  part  of  the 
award. 

Now,  after  having'  made  these  few  remarks  with  rcifard  to 
the  cases  that  I  have  mentioned.  I  propose  to  call  your  Honors' 
attention  a  little  more  in  detail  to  some  of  the  arguments  which 
we  have  advanceil  in  our  main  argument,  on  the  (piestiou  of  the 
loss  of  the  catch.  In  the  first  place,  at  page  25  of  our  argument, 
a  nd'erence  is  made  to  the  argument  of  Mr.  Blod;,'ett   befori'   the 

30  Paris  tribuiud.  That  argument,  as  your  Honors  will  lemi'udier. 
was  a  printed  argument,  and  puts  forward  his  views  upon  this 
point.  He  relied  to  a  very  great  extent  upon  the  Geneva  cases. 
It  should  be  noted  on  this  point  that  Mr.  Blodgett  was  put 
forward  by  the  T^uiteil  States  as  the  coiuisel,  wdiose  special  duty 
it  was  to  deal  with  thecjuestion  of  dauuiges.  Apparently  in  that 
argument,  one  (counsel  made  himself  I'espotisible  for  one  l)ranch 
of  tlie  case,  and  another  counsel  made  himself  responsible  for 
another  branch  of  the  case  ;  and  with  regard  to  the  (juestion  of 
damages,  Mr.  Blodgett  seems  to  be  entirely   responsible  ft)r  the 

40  line  taken  b)-  the  United  States.  This  point  I  think  should  be 
considered  in  this  connection. 

The  line  that  the  Ameiican  counsel  took  then,  is  the  line 
that  they  nnist  stand  by  now.  They  deliberately  took  a  certain 
course  at  that  time,  ami  we  propose  to  show  that  there  are 
reasons  vvhy  the  line  that  they  then  took  cannot  be  sustained. 
I  have  dealt  with  this  nuitter  at  the  bottom  of  page  25  of  the 
Argument,  and  at  the  beginning  of  page  20.  I  have  ventured  to 
state  that  the  claim  of  tlu;  IJniteii  States  at  the  present  time, 
and  now  put  for\var<l,  can   be  reduced  ml  (ibsarduDL     I  direct 

50   your  Honors'  attention  to  this  statement: — 

"The  argument  against  giving  damages  for  tlu  prospective 
"catch  is  capable  of  being  reduced  <ul  (ihnardu.n.  'I'ake  the 
"  casi'  of  n,  vessel  found  on  sealing  grounds  with  every  appliance 
"  for  catching  seals  ;  the  seals  are  there  to  be  caught;  it  must  be 
"an  incoirect  profiositiou  to  assert  that  the  person  who  illegally 
"prevents  the  ship's  erew  from  catching  seals  should  not  pay 
"  damages 

"  The  United  States  have  contends  1  that  the  tribunal  slmuM 
"  yive  o?dy   the  valui;  of  the  ship  am     (Miinpinent,  and   pos^ilily 

(JO  "  interest  on  that  value.  Assume  then  a  case  ipiite  p()s-,ible 
"  where  a  United  .Stales  sinp  illegally  takes  charge  of  a  sealer, 
"  tows  her  to  n  safe  harbor,  and  ihire  kee|)s  her  without  injury 
"  until  the  sealing  season  is  over.  According  to  the  atgumeiit 
"  put  forward  no  damnges  for    loss    of  catch  could  be  reeovereil 


* 
* 


53 


volume  of 
1  not    ptiU 

111  rnii  tho 
est  of  the 
psiriij  it  to 
i><|nirt'(l  of 
)Tisilile  for 

jfeil  liy  tlie 
son  whieli 
jiitiny;  him 
I  Willi  the 
esse!  fiom 
t't.'p  wilier 
their  own 
iietioii  he- 
e  are  now 
rt    of    the 

ie<j;ar(i  to 
ur  Honors' 
■Ills  whie.h 
tion  of  the 
•  iir^niineiit , 
liefori'  the 
lemeuiiier. 
!  ii[)on  this 
[leva  cjisfs. 
t  was  put 
peeial  thity 
iitly  in  that 
me  l)ranch 
onsihle  for 
]uestion  of 
lile  for  tlie 

shoniil   be 

is   tho   line 

a  certain 

there    aie 

sustained. 

25  of  the 

centure<l  to 

esent  time, 

I   direct 

prospective 
Pake  the 
y  appliance 

it  must  lie 
ho  illegally 

hi  not  pay 

iiial  slidiiM 

id    lios^ilily 

tc  pos-ilile 
if  a  sealer, 
unit  injuiy 
ai  i^iiiiuni 
e  recovi'red 


(Mr.    Peters'   At|rument.) 

"  because  it  may  be  uncertain  how  many  .seals  the  vessel  would 
"have  Cftuj,'lit  during'  the  period  of  detention." 

1  shall  ]K)int  out  a  little  later  on  the  distinction  which  my 
leained  friend  lakes  l)etween  cases  where  there  lias  been  an 
actual  .-eiziiro  of  the  vessel,  and  cases  where  there  has  been 
simply  a  \varnin;(.  My  learned  friend,  Mr.  Dickinson,  in  hi.«  aif^ti- 
10  meiit  states,  that  in  cases  where  the  ship  is  actu.ally  taken,  you  can 
<,'et  no  compensation  for  prospective  catch.  He  says  that  th(>ie 
is  a  diH'eretice  between  these  cases  anil  the  cases  of  vessels 
warned,  fie  savs,  tlirt  even  in  the  cases  of  wnrnini;  you  can- 
not 1,'et  prospective  ca  ch,  but  you  can  |,'et  damaiji .  in  the  iiiitun,' 
of  demurrage,  or  damaifes  in  some  way  calciiluted  upon  that 
basis;  hiyh  or  low  aceordinjr  to  the  circumstances  of  the  case. 
But,  if  I  am  correct  in  the  proposition  that  we  are  arjruinj:;  for 
now,  namely,  that  we  are  entitled  to  damai,'i's  for  this  prospective 
catch,  the  diti'i'ieiice  in  the  casi^  of  a  vessel  that  is  seiztii  and  tlie 
"20  case  of  a  vesscd  that  is  warned  ahsoluti-ly  disappears,  because 
the  loss  of  catch  would  bi;  the  same  in  both  cases  and  no 
ditl'eiiMice  could  i'xist  At  pai,'e  '2G  of  our  argument  we  setfoiih 
the  followiii;^  in  continuation  of  the  last  extract  which  i  have 
lead  : — 

"  This  proposition  is  laiil  down  by  Mr.  Blodj,'ett,  but  lu^  nfter- 
"  wards  conCiites  it  by  saying: — While  it  is  conceded  that  there 
"  has  been  some  relaxation  of  the  rii,dd  ruh-  of  the  early  ciises 
"  in  Kiii^laiiil  and  the  f^nited  .States,  in  regard  to  the  allowance 
'■  of  profits  as  an  element  for  the  award  of  damages  or  com- 
:{()  "  peiisation,  it  is  undoubtedly  still  the  rule  in  both  countries,  that 
"  profits  can  onlj-  be  allowed  as  damages  wheie  they  are  in  the 
"  contemplation  of  the  parties,  in  cases  arising  on  contract,  and 
"  where  they  are  tin;  necessary  ami  piciximate  result  of  the 
"  injury  in  cases  of  tort,  and  in  those  latter  cases  only  where 
"  they  can  be  proven  or  estalilished    with  substantial   certainty." 

'i'liat     is    ^lr.    BIddgelt's    statement      i>\     that    statement    he 
admits  that  the  old  lule  with  regard  to  not  allowing  any  allow- 
atices  for  profits  has  to  a  certain  extent  been  relaxed.     And  he 
says  fiirtlier  : — 
40  "  I'rofits  can   only    be  allowed  as   damage   where  they   are  in 

"  the  contemplation  of  the  parties,  in  cases  arising  on  contract, 
"and  where  they  are  the  necessary  and  a]ipi(iximati>  result  of 
"  the  injury  in  cases  of  tort,  and  in  those  latter  cases  oidy  where 
"  they  can  be  proved  and  established  with  substantial  certainty." 

If  1  am  right  in  the  point  I  iiave  already  taken,  namely 
that  the  damage  which  was  actually  intended  must  always  be 
looked  upon  as  proximate,  then  his  jiroposition  and  ours  would 
agree. 

I  now  propose  to  call  your  attentimi  to  eer'ain  statements  by 
50  some  of  the  text  writers  upon  this  matter.  I  do  not  intend  to 
read  all  we  have  set  forth  in  our  brief,  but  I  iirojiose  to  call  your 
attention  to  one  or  twn  of  the  most  .salient  points  that  the  para- 
giaphs  there  set  out  contain.  In  the  fiist  placi;  you  have  the 
citation  of  ••  Sedgwick  on  Damages,"  where  he  says  : 

"  Com|K-nsation  may  be  recovered  for  such  proximate  los-.es 
"as  are  also  the  natural  result  of  the  wrongful  act  either  in  the 
"  nature  of  things,  or  in  the  light  of  special  circumstances  of 
"  which  the  wroiig-doi^r  had  notice." 

1  dntw  ;«ttention  especially  to  the  words  'in  the  light  of 
CO  special  circumstances  of  which  the  wrong-doer  had  notice" 
The  giMieral  rule,  as  my  learned  friend  contends  f(ir.  is  like 
e^  I  ry  other  general  rule,  subject  to  exceptions  ;  and  the  viuy 
!iist  general  statement  made  by  Sedgwick  is:  '  or  in  the  light 
of  spi'cial  circumstances   of    which   the   wrong-doer  had   notice." 


« 


m 


m 


64 

(Mr.    Petuis'    Ari^uiiient.) 

In  the  pivseiit  ease  Ijcforo  us  we  have  the  fact  that  tliese  vessels 
were  out  at  sea  in  a  place  where  seals  were  plentiful,  anil  where 
they  coiilil  catch  seals;  ami  we  have  also  the  fact  set  forth 
plainly  that  the  seizure  was  made,  for  the  purpose  of  preventinjij 
them  eatchinj,'  seals.  Are  not  these  .special  circumstances  which 
must  lie  consiilered  in  a  ipiestion  of  this   kiml  ?     Sed^'wick  (,'oes 

10  on  to  state:  "In  order  to  be  compensateil  a  consecpiential  injury 
"must  he  such  a  result  of  this  injury,  as.  aceordini;  to  coininon 
"  e.\perieiice  i.i.j  the  usual  course  of  events,  mij^ht  reasnnalily 
"  have  Keen  (  nticipateil." 

All  that  c,)m[ili(!s  with  (he  tacts  in  this  cise.  .Attain,  as  set 
foilli  in  our  'irief,  Sedmvick  cjiiotes  from  an  authority,  which 
my  learned  frieinl,  Mr.  Dickinson,  will  nodoulit  consider  of  very 
i^rent  weight.  He  qunres  from  the  Supreme  Court  of  Miphi<ran, 
and  says  this  : — 

"  Al'solute  certainty   is  not  retjuired.     The   Hue   lule  mi  the 

2t  "  suhji'ct  is  annoiMiced  hy  the  Supreuii.'  tlmir.  of  Michii^an  in  a 
"  well-reasiitied  case  .Shall  the  injiired  pnitv  ....  he  allowed 
"to  recover  no  dan  iires  (or  merely  nominal)  liecaiise  he  cannot 
"  shnw  tlu!  exact  ai  lonnt  with  certainty,  fli()Ui,di  he  is  read\'  to 
"  shnw  lo  tlie  sati'  action  of  the  jUiy,  that  he  has  suH'ered  ]ar<,'e 
"  damaj^es  liy  the  injuiy  ?     Ortainty.   it  is  true,  would   he  thus 

"  attained  ;  lint  it  wotdd  lie  the  certainly  of  injustice 

"  Juiies  au>  allciwed  to  act  upon  proiialiie  and  infentntial,  as 
"  well  as  direct  and  pnsitive  proof.  And  when,  from  the  nature 
"  of  the  case,  the  amount  of  the   dama^fes   caiuiot  he  estimated 

30  "  with  certainty,  or  oidy  a  part  of  them  can  he  so  estimated,  we 
"  can  see  no  ohjectioii  to  piacinj^  hefore  tl."  jury  all  the  facts  and 
"  circumstances  of  the  ease  havinii;any  tendency  to  show  damae;es, 
"or  lluir  piohalile  amount,  so  as  to  enalile  ihem  to  make  the 
"  most  inteliiuilile  aiiH  prohahle  estimate  which  the  nature  of  the 
"  ca.^e  will  |iermit.  In  Sali'liivrll  \.  Willidoin,  Pliidps,  J.,  said 
"  that  it  was  no  olijeelion  tiiat  the  defemiant  could  (  idy  sfaLe  his 
"  ilaimii,'!' appro.ximately,  thou<jh  it  would  ho  to  sh  )W  that  his 
"  evidence  was  so  vajrue  and  uncertain,  that  the  court  could  not 
'  deduce  from  it  liiat  the  defendant  had  sustained  anj-  particular 

♦0  "  amount  of  dainaij;e."  "  The  chief  ditheulty  experienced  is  in 
"  cases  of  pmsiieetive  loss  " 

That  is,  where  damaffes  have  not  hap|H'iic(l,  hut  ai-e  antiei- 
j)ateil.  Siippose  a  man  is  injured  in  a  railway  accident  to  day, 
and  he  says  that  tin-  etlects  of  the  injury  is  ;joini^  to  la^t  for  t"n 
years,  or  forliis  life,  and  he  (?!aimsprosp.  ctiv(;  damai^es  for  what 
he  is  here.ifler  to  sutler,  of  cour.se  there  would  come  in  another 
element  of  difficulty,  hut  the  tact  that  that  element  of  ditfienlty 
comes  in.  has  never  yet  prevented  jirdifcs  from  charnim,' juries, 
thai  the  jury   was  entitled   to   compensate   the'  person  who   was 

'■>()  injured  for  injiii-ies  he  rtuilly  did  not  suH'er  at  that  time,  hut 
wliich  he  was  uoiiii,'  to  suffer  in  the  future  The  stron<fest  case 
on  that  point  is  I'/dlHii.--  v.  T/n:  Great  North- \V<'i'f<'i-n  littUnKiji 
('(iiniiii  II  I/,  where  a  lar;4;e  amount  of  moire\'  was  i_riveti  for'  dam- 
a;,'es  siisiaitii'd  hy  a  cehhrated   doctor   in  a  railway  accident, 

The  ( 'ommissioner  on  the  part  of  the  rnited  States: — lie 
soon  after  recovered  and  went  on  practicino  Ins  profession. 

.Mr.  I'ettus: — Vis;  hut  that  is  one  (»f  the  leadin;f  cases  on 
the  |)oint  of  ohlainiui,'  damaif(!s  for  somethin;,'  that  is  to  happen. 
A  fjood  many  of  the  authorities  that  are  cited  here  relate  to  that. 

(1(1  I  cannot  help  poiiitiu;;  out,  that,  with  le^^aitl  to  that  class  of 
darna;.':es,  you  have  anothei'  (dement  of  uncertainty  winch  does 
not  at  all  exi-,t  in  th  ■  eases  now  hefore  us.  In  the  present  cases 
we  can  take  a  i'etio|iix'tive  view  atrd  look  at  the  seasotis  of  l.Sliti, 
1H1S7,  ISS.Sand  Issil.      We  can   lind   out   what  did   happen,  and 


65 


(Mr.    Peters'   Argument.) 

wo  are  not  all  in  the  dark  as  to  what  would  happen.  It'  such  a 
thing  were  possible  as  to  bring  'his  aetion  liefore  tlie  close  of  one 
of  these  seasons,  even  tlien  tlu  re  woidd  he  nothing  to  stop  you 
from  giving  damages  as  to  tli(.'  future  ;  hut  you  would,  in  such  a 
case,  hav"  an  element  of  uncer  ainty  nhich  does  not  e.xist  here, 
iieeiuise  you  know  now  what  did  happen  in  succeediTig  years. 
10  We  know  now  what  happi'Mi'd  in  the  Beliring  Sea  in  these  years. 
We  know  from  the  evidence  whether  the  fishing  was  a  failure  or 
whether  it  was  a  success,  iind  the  element  of  uncertainty  is  to  a 
great  e.xtent  eliminated. 

At  page  27,  line  -J.'),  Sedgwick  again  says: — 

"This  •  reasDiijilile  cei  tainty  '  does  not  mean  absolute  cer- 
"  tainty,  but  reusonalile  probability." 

And  further  : 

'■  Hut  the  fact  and  amount  of  fiiture  loss  is  a  question  for  the 
"jury,  which  has  discri'tion  in  estiiniting  if." 
20  Again  he  says  : 

"The  allowance  of  ])roHts,  when  not  exchiiled  as  unnatural 
"  oi-  remoti;,  is  wholly  a  ipiestion  of  the  ceitainty  of  proof. 
"  Wherever  th(^re  is  an  interference  with,  or  withholding  of  pro- 
'  pertv,  ."r  breach  of  contract,  or  (ommission  of  a  toit,  the  gain 
"  preven.'.'d,  if  provable,  may  lie  recovered." 

There  is  a  general  proposition  :  "  Wherever  there  is  ...  . 
"commission  of  a  tort,  the  gain  pievet>te(l,  if  n''ovabie,  niay  he 
"  recovereil." 

Again  he  says: 
30  "  The  geneial  rule  is,  then,  that  a  plaintiff'  may  recover  coni- 

"pensation  for  any  gain  which  he  can  makt^  it  appear  with 
"reasonable  ceitainty  the  defendant's  wrongful  act  prevented 
"  him  fr-oni  acipiirini,',  subject  of  course,  to  the  general  principles 
"  as  to  remoteni  ss,  compensation,  &c.,  already  stated.  His  eoni- 
"p^nsatiiin  will  he  measured  by  the  most  liberal  >.ealt'  which  he 
"  can  show  to  be  a  proper  one.  Damages  for  interru|)tion  of  the 
"  business  of  a  mantifacturer,  for  instance,  niay  be  measured 
"either  by  the  rental  \alue  of  the  property  kept  nnpif)ductive, 
"or  by  the  profits  of  maiiufiicture  lost,  if  the  plaintiff' can  show 
40  "that  they  would  have  been  greater  than  the  rental  value. 
"  The  ("inestions  that  arise  in  the  cases  are,  therefore,  questions  of 
"the  sufficiency  of  pioof,  and  it  is  to  he  expected  that  the  courts 
"  will  not  in  all  cases  agree  in  their  interpretation  fif  facts;  but 
"  the  decisions  show,  under  the  ciicunistances,  a  surprisinu'  degree 
"  of  harmony." 

I  have  made  this  note  on  this  (luthoi'ity,  which  seems  to  me 
to  be  peitineiit. 

Tlie  text  says  that  the  general  rule  is  that  you  can  lecovcr 
thesi'  damages,  subject  to  the  geneial  rule  as  to  remoteness.  1 
50  say  that  if  the  damage  was  "  intended  "  it  cannot  be  too  remote, 
and  that  if  it  were  intendeil  remoteness  is  out  of  the  (piestion 
altogetlier.  '{'he  author  then  proceeds  to  draw  a  distinction 
between  damages  recoverable  in  the  case  of  the  immediate 
destiuction  of  pidjierty  and  cnse.s  where  property  is  siinply 
improperl}'  detained.  This  is  flie  distinction  thau  my  learned 
fr-end,  Mr.  Dickinson,  puts  in,  in  the  veiy  commencement  of  his 
aigument,  in  i(d'erence  to  damages.  If  your  Honors  will  note  at 
tie  very  first  of  his  argument,  my  learned  friend  lays  down  on 
pa  •('  il;{  this  jieneral  rule  : 
♦iO  The  theory  of  all  law  on  the  sul)ject  of  the  loss  of  personal 

"  pn  oeity,  is,  that  the  party  d(  /irive<l  of  it  or  abdndoning  it  to 
'"the  I  onverter  may  immediately  supply  its  place  in  the  market 
"  with  ^s  money  value  if  im  sees  tit  ;  and  therefore  his  measure 
"  of  YGC     ery  is  liuuted  to  the  vulue  of  the  property  lost." 


(Mr.    I'eters'    Arji[uinent.) 

Tliat  is  the  general  proposition  lie  lay^  down.  It  i.s  a  propo- 
.sition  tliat  tlie  rule,  that  yoii  arc*  only  to  j,'ive  the  value  of 
{iroperty  is  based  upon  the  fact,  that  a  person  wlm  loses  his  ship, 
or  a  book,  or  an  article  of  personal  property,  which  is  taken 
from  him  impi'operly,  can  plaee  liiinself  in  the  same  position  l)V 
,1,'oini;  to  the  market  and  buyini;  that  book,  or  shi|),    iiid,  tliere- 

10  fore,  that  the  proper  mcasiiie  of  (hima;,'es  is  the  viilue  of  the 
article,  the  amount  for  which  he  could  replace  it  at  that  tiTue. 
My  leaMU'd  friend  s.iy-;  that,  the  whole  rule  is  based  on  that. 
But  your  honors  will  see  that  the  reason  of  the  rule,  upon  which 
he  .says  the  rule  is  founded,  does  not  apply  in  this  case;  and  if 
the  reasoti  of  the  rule  disai)|)ears,  and  if  the  basis  of  the  rule  is 
not  i\\istent  here,  then  tlie  rule  itself  disaiipears  Let  us  applv 
my  learned  friend's  tiieory  to  the  cases  now  before  us.  A  sliijjis 
seized  in  the  ndddie  of  JSehrinj^f  Sea,  hundreds  of  nnles  from  any 
place  wli'jre  the  shi|)  could  lie  replaced.      My  learneci  friend,  Mi-. 

20  Dickinson,  says  thai  the  rea'-on  of  the  rule  is  that  you  can  ^'o  to 
the  market  and  replace  the  article  taken.  Now,  the  fact  is  here 
that  \  ()U  could  not  rejjlace  the  article  seized  or  destroye(l.  The 
ship  was  out  in  the  J!eh?in;j;  Sea,  the  time  was  in  the  middle  of 
the  si'alini,'  season.  As  a  mer(^  matter  of  time,  it  woidd  he 
impossible  for  any  one  of  tin;  owners  of  the  e  ships  to  replace  the 
ship  in  that  place,  or  to  buy  another  ship  so  that  the  seal  fishinij; 
could  be  carried  on.  Accoi'diiiLj  to  all  the  evidence  here,  it 
would  take  at  least  ten  days  to  send  from  the  place  of  seizure  to 
Victoria  :  yes.  it  would  taki^  more,  li.'caiise  the  fact-;  are  that  the 

30  shi])s  wei'e  taken  to  Sitkii,  ami  in  that  ease  a  me--sa),'e  wnnld  have 
to  be  sent  from  Sitka  down  to  Victoiia,  then  a  new  shi])  juii- 
chased,  then  all  the  supplies  put  in,  ;in  I  then  you  would  meet 
with  the  ditliculty  which  we  know  e.\ists  in  this  ease,  that  uidess 
you  yet  your  hunters  at  the  couniienctnient  of  the  season  you 
could  not  get  them  at  all.  My  lenined  friend,  Mr.  Dickinson, 
says  that  his  rule  is  based  on  the  idea  that  you  nnnht 
immediately  supply  the  place  of  the  article  in  the  nuirket.  Now, 
your  Honors,  in  this  ease  that  was  impossii)le.  I  submit,  your 
Honors,  that  the  reason  for  th(^  rule  havintj  failed,  the  iide  itself 

40  completely  fails  also.  One  more  (pu)tation  from  Sedge  wick  will 
serve  to  exerrrplify  the  point  that  the  general  rule  r'eliud  on  by 
the  other  side  is  subject  to  exceptioirs  within  which  these  cases 
fall.  The  learired  author  draws  a  liistirrctioit  between  cases  of 
the  innrrediate  destr'Uetion  of  pi'operty,  aird  cases  of  nrere 
irrrpiopei'  detention  of  property,  and  adds: — 

"  liui  although  in  this  class  of  actions  (trairrely,  cases  of 
'■destruction)  the  value  of  property  destroyi'd  with  interest  for 
'  the  time  the  owner  was  deprived  of  it,  will  compensate  him  for 
"  the  loss  if  no  special  or-  extraoidinary   darrrage  oecurrt'd,  yet,  ii 

oO  "  th(!  injury  irf)t  ordy  caused  a  loss  of  property,  but  also  other' 
"  proximati'  loss,  further  compensation  should  be  given  to  that 
"  extent." 

Is  not  that  a  very  clear'  statement  liy  this  very  learrK.'d  author 
that  the  gi-neral  ruh'  is  sirbject  to  exceptions,  atfd  that  the 
exceptions  are,  if  there  (-re  sjiecial  circtrmstances  which  catise 
s|iecial  dairrage,  tile  damage  caused  by  these  eircurrrstance  should 
be  taken  into  consjdenitiorr,  even  in  eases  of  total  loss, ami  added 
to  the  amount  to  I  e  awanled. 

Iir  this  case  we  claim   that  having  regard  to  the  place  whei'o 

00  the  seizures  occiriied,  having  regard  (o  the  circrrrrrslances  uridei' 
which  thej"  took  place,  to  the  place  where  vessels  were  taken 
after-  seizure,  to  lire  iirrpossibility  of  replacing  therrr,  to  the  fact 
which  is  apparent  to  this  court,  win  ther'  as  a  mailer'  of  law  or 
irot,  \ouare  conrpelled  to  say  we    would   not   have   caught  airy 


57 
(Mr.    Peters'    Argntiuint.) 


10 


20 


30 


40 


50 


60 


seals  at  all,  as  a  matter  of  fact  any  porson  wlio  lias  listened  to 
the  evidence  in  tills  case  must  come  to  tlu-  conclusion  that 
althouf^li  you  may  not  perhaps  agree  exactly  us  to  the  tinnihcr 
of  seals  that  were  j,'oin!,'  to  be  cau<:flit,  it  is  perfectly  plain  that 
in  each  one  of  these  years  these  vessids  would  have  caught  a 
cnnsiderahle  miinlter  f)f  seals  if  allowed  to  gn  on.  Add  that  to 
the  fact  tl'.at  this  was  done  intentionally  for  the  purpose  of  pre- 
ventint,'  us  from  takinji;  them,  do  you  not  com(>  within  the 
exception  laid  down  hy  Sedjjewick,  in  which  he  says  : — 

"  If  the  injury  not  only  caused  a  loss  of  |)io[)erty,  hut  also 
"other  pi'oximate  loss,  further  compensatiini  should  he  ;,'ivnn  to 
"  that  extent." 

My  learned  friend  says  that  you  are  hound,  where  a  vessel 
has  actually  been  seized,  to  i;uide  yourselves  in  these  cases  bj' 
the  ordinary  rule  in  an  action  of  trovei'  or  mi  action  of  conver- 
sion for  the  taUinjr  of  a  hor>(^  for  instance.  I  join  issue  with  him 
there,  and  1  say  W(^  have  a  rij^ht  to  look  at  all  the  facts  and  cir- 
cumstances. We  cannot  shut  ou?'  eyes  to  the  fact  that  in  addition 
to  the  loss  of  the  vessels  there  were  other  ijieal  losses  ;  theie  was 
a  direct  loss,  much  laif^er  perhaps  than  the  loss  of  the  vessel 
itself.  Let  me  exemplify  this  by  referrinj,'  to  some  other  Kshet  ies. 
For  example,  we  know  very  well  when  a  person  is  successful  in 
some  lines  </f  Hshint;  that  the  catch  is  sometimes  far  more  valu- 
able than  the  whole  outfit.  Take,  for  in^tanci-,  a  person  enifML,'ed 
in  the  nuickerel  Hshei'y  ;  we  know  that  in  cei'tain  years  inackiTel 
briuf,'  an  exhorbitant  price;  we  know  if  a  person  happens  to  be 
lucky  and  i,'ets  a  larire  s"ine  full  of  mackerel,  he  makes  jierhaps 
in  one  day  a  larfje  sum  of  money,  perhaps  lar;,'er  than  tlie  value 
of  his  whole  vessel  an<l  outfit.  Take  a  ease  of  that  description  : 
a  schooner  is  (jut  mackerel  tishintf,  slie  has  her  seines  all  ready  ; 
another  schoont'r  is  out,  and  just  when  the  seines  are  tujiiij,'  put 
out  that  other  pel  son  takes  charjje  of  those  seines  and  destroys 
them  ;  she  may  do  iinthinif  but  take  the  net  itself  ami  destroy  it. 
Now,  wdiat  is  your  judgment  ?  Is  it  the  value  of  the  net  phis, 
perhaps  interest,  accordine;  to  my  learned  friend  ?  Would  that 
he  the  real  damage  ?  Would  there  not  be  special  circumstances  ? 
The  seine  was  all  ready,  the  boats  all  out,  and  you  simply  have 
taken  the  seine,  which  perhaps  is  worth  one  thousand  dollars, 
and  perhaps  you  have  prevented  that  man  from  catching  four  or 
five  thousand  dollars  worth  of  irackerel  at  one  scoop.  Hut  my 
learned  friend  sa\s  there  is  a  hard  and  fast  rule  laid  down  in 
cases  of  trover  and  in  cases  of  conversion,  and  that  that  hard  and 
fast  rule  must  he  followed,  I  say  tliat  the  very  hooks  that  lay 
down  that  rule  also  lays  down  an  exception,  and  that  exception 
I  say  this  case  comes  within.  A<;ain,  I  cite  a  short  portion  of 
tl'L  same  page,  wdieio  it  says  : — 

"  It  has  lon<j  been  well  recognized  law,  that  when  deprived  of 
"such  business  \>y  slander,  compensation  for  its  loss  may  be 
"  recovered  in  this  form  of  action.  And  why  not  for  its  loss  by 
"  this  more  direct  means  ?  And  of  what  iloes  this  loss  consist 
"  but  the  profits  that  would  have  been  made  had  the  act  not 
"  been  performed  by  afipellants  ?  And  to  measure  such  damages 
■  the  jury  must  have  some  basis  for  an  estimate,  and  what  more 
"  reasonable  than  to  take  the  profits  for  a  reasonable  period  next 
"  preceding  the  time  when  the  injury  was  intlieted,  leaving  the 
"  other  party  to  show  that  by  depression  in  trade,  or  of  lier  causes, 
"  they  would  have  been  less  (  Nor  can  we  expect  that  in  actions 
"  of  this  character,  the  precise  extent  of  the  damages  can  he 
"  shown  by  ilemonstration.  By  this  means  they  can  be  ascer- 
"  taineil  witli  a  reasoiialile  degree  of  certainty." 

We  say  that  in   this  case  in  claiming  for" loss  of   business,  or 


JJS 


i'll 


SI 


■iff 


M 


(Mr     Fetors'    Arj^uiiient.) 

loss  of  tt  vi'iUurc  of  any  kind,  yon  aiu  not  pci  Imps,  in  I'stinmtiiii,' 
ilnni(i<{i>.s,  to  suppdsi'  tliiit  tlii^  Vfi-y  lu^st  was  ^'oinj,'  tolmppi-n,  tiiiit 
it  was  f^oint;  to  ln'  alisolutely  sncci'ssful.  We  conic  in  and  sliow 
wiiat  \vt'  C'iin;;lit  in  other  years,  what  vessels  cau^^lit  in  that  year, 
the  av<'raj,'e  of  what  were  tai<en.  It  is  open  for  tny  h'arned 
friend,  of  e()Urse,()ii  tiiat  ijuestion  to  show  that  there  were  leasoiis 
10  why  we  would  not  perhaps  have  cau^^dit  as  many  seals  as  we 
elainied  we  would  have  eanj^ht.  That  is  fair.  That  roiitention 
lias  to  lie  Weighed  on  the  one  side  and  on  the  other.     Hnt  wdien 

he  ^(les  to  the  extent  of  sa\  in;;  liecause  some  little  elellient  of 
uncertainty  exist--  in  the  niatler  it  is  to  lie  excluded  alto^'ether,  I 
say  the  leading;  nf  those  anilioiities  shows  that  tliat  contention 
cantiiit  lie  upheld.  A;;ain  at  )iiii,'e  20  of  my  ar^'unieiit,  the  same 
author,  in  dealiiiif  with  the  (piestion  of  what  should  be  alhiwed 
for  mental  suH'eriii^'  in  certain  actions  wlii(di  can  he  lirou^ht, 
states  thus  ; — 

'20  '■  That  the  iinioiint  of  dama^'es   allnwuhle  in   such   a  ca-e   as 

'  this  is  not  cMpalile  of  easy  and  accurate  iiiatliematical  coinputa- 
"  tioii  is  fu'ely  ciineeiled,  liiit  that  should  not  I'c  a  siitlicicnt 
"  leasiin  for  refusing;  or  defeatin;f  the  ri^dit  nf  action  alto|,'ether, 
"  for  the  same  ohjection  may  he  ur^'ed  with  the  same  foice  in  all 
"  cases  where  mental  and  Imdily  sutleiiiiL;  are  treated  as  proper 
"  elements  of  dania^i'. ' 

Yiiiir  HiiiKiis  will  see  this  position;  I  do  not  know  that  I 
have  ]iiit  it  in  so  many  words,  Init  the  uljection  to  allowing'  the 
piotits  for  jiidspective  catch  or  the  value  is  two-fold  :  —  First  it  is 

30  allcLjed  that  it  is  ton  reiuote  ;  secondly,  that  whether  remote  or 
not  it  is  too  uncertain.  With  re^'ard  to  the  (|uestion  of  reiuote- 
fie-s  We  eliininnte  it  altci;.;etli(r  liy  saxiii;;  that  tlieie  was  an 
intention  to  do  it.  With  le^jard  to  the  (piestion  of  iinceiiainty, 
these  cases  show  that  ilaniaLjes  are  coiistiuilly  :,'iven  i:i  actinns 
jvhere  the  (|Uestioiis  of  nncerlainty  is  dmilily  njcire  tliiiu  here. 
I'like  the  ease  of  a  peisnii  seeking'  to  recover  for  mental  sud'eiin^'. 
liy  what  ninde  of  calculation  a  juil;j;e  or  Jury  can  find  out  how 
iimeli  a  man  should  he  pai<l  on  account  of  metital  siitlerinLf  it  is 
ditliiMilt  to  say,  lint  at  the  same  time   we  do  not  allow  for  it  and 

40  for  liodity  sutieiin^f  also.  This  is  all  unciMtain.  One  cannot  say 
tiiai  it  is  tlfiy,  one  hundred,  or  live  liundreil  dullais.  One  jm\' 
iiiiuht  ;,five  five  tlniusaiid  dollars  in  a  case,  and  another  jury 
iiiiulit  ;,'ive  tive  hundred  dollars,  and  llociuit,  tinless  the  amount 
awarded  was  very  outrat^eoiis,  would  interfere  with  the  verdict 
of  either.  The  (dement  of  uncertainty  exists  there  to  the  greatest 
extent,  I'Ut  the  answer  is  thatoti^dit  not  to  he  a  sutlicient  reason 
for  lefusin^'  or  (iefiatin^'  the  ri^'ht  of  action  alto^'ether,  for  tin; 
same  olijectimi  may  lie  uref(id  with  thi^  same  force  in  all  cases 
where  mental  and  hodily  sutl'eiin!,;  are  treated  as  proper  elements 

50   of  daiiia^'e. 

Then  aeain,  I  wmild  lefer  to  some  statement,  made  hy  Mr. 
Sutlierlaii(|  on  daniayes,  and  I  may  fioint  out  that  "  Sutherland 


•'"•"•■ '■■;  ■'■ .-     '   •'    *■"•••"  y"   """"     •'"'■ 

on    Damages"  is  nd'erred   to  hy    HlodLjett  in   his  aide  ar^'umen 
hefiire  the  i'aris  Triliunal  as  a  slandanl  authority  in   the  Wriitei. 
States,  whieli  we  wcnild   have    known  without  his  sayinf,'  it,  hut 
it  is  referred  to  hy  Mr.  IJIod^ett  as   heintf  the  standard  work   on 
the  suliject.     At  pa^'e  "J!>  he  says  as  follows  : 

"The  liahility  for  the  profits  wdiich  would  have  lesulteil  from 
'  the  performance  of  a  contract  is  co-extensive  with  the  jiower 
(iO  "  to  ctintiact  ;  and  tin;  i,'overnnient  is  liable  therefor  t(>  the;  same 
"  extent  as  an  individual.  The  rii^dit  of  a  party  to  recover  the 
•'  piuHts  he  would  have  made  in  fultillin^'  a  contract  depends 
'•  solely  upon  the  fault  of  the  other  party  to  it,  and  plaintitl's 
"ability  to  show  that  the  profits  claimed  were  leasonabl}'  certain 


b  -l; 


'I*: 


AO 


I'stiriiiitinij 
a|)()i>ii,  tliat 
1  nrul  sliow 
1  that  yciii', 
my  leiiiiiLMl 
ere  it'ii.suii.s 
ii!als  as  wo 
ponti'iitioii 
lint  when 
t'li'int'iit  of 
lt,(ii,'('tlu'r,  I 
conti'iitioti 
t,  tlie  saiiio 
be  allowed 
lie  liroiii;lit, 

I  11  ca-e   as 

II  coinpiita- 
i  sufHeifiit 
altoc,'ctlicr-, 
fiiico  ill  nil 
I  as  proper 


(Mr.   Peters'   Arijiimenfc.) 

"  to  have  been  realized  hut  for  the  wrotii,'fnl  act  ooinphiined  of. 
"It  is  not  an  insnpi-nihle   objection  to  their   recovery  that  they 
"  cannot  be  directly  and  absolutely  proved;" 
He  j;oes  on  fuithcr: — 

"The   j,'enerHl    tnicertainty   attendini,'    human    life,   and   the 

"special    contiii^'encies   as    to    its    duration    on  accoiint    of  the 

10   "  physical  condition  of  an   individual    whose  rii,dits  are  involved 

"  doiKit  prevent  the  recovery  of  daniajfes  for  causing  his  death 

"  iiijuriiii,'  or  his  person." 

Then  he  goes  on  further: — • 

"  In  the  nature  of  things,  where  performances  has  Ikmmi  pru- 
"  vented,  the  proof  of  profits  cannot  be  direct  and  absolute. 
"  The  injured  party  must,  however,  introduce  evidence  legally 
"  tending  to  estal)lish  and  siillicieiit  to  warrant  a  jury  in  coiiihig 
"  to  the  conclusion  that  the  damage.s  they  find  have  been 
"sustained;  but  no  greater  degree  of  certainty  in  this  proof  is 
20  "  required  than  of  any  other  fact  which  is  essential  to  be 
"  established  in  a  civil  action." 

And,  I  must  point  out  to  your  honors  that  there  is  his 
decision,  "  but  no  greater  degree  of  certainty  in  this  proof  is 
re(|uired  than  of  any  otluM-  fact  which  is  essential  to  be 
established  in  a  civil  action." 

Kven  if  you  were  looking  ahead  to  .see  how  many  seals  we 
might  have  caught  next  year,  you  might  make  an  estimate,  hut 
as  a  fact  you  now  have  the  benetit  of  hxd^ing  back  and  seeing 
what  was  actually  done  in  those  years,  and  with  those  facts 
MO  before  you,  it  W(juld  lie  almost  ab.surd  to  say  that  you  are 
ilebarred  by  a  rule  which  says  because  there  is  some  little 
unceitainty  about  these  things  and  therefor  you  cannot  enquire 
into  them  at  all. 

Again  under  the  head  of  "  Tortious  Interference  with  P>usi-. 
iiess,"  he  says : 

"  In  actions  for  torts,  injurious  to  business,  tlie  extent  of  the 
"  loss  is  provable  by  the  same  testimony,  and  recovery  may  be 
"  had  for  such  as  is  proved  with  reasonable  certainty ;  it  is 
"  enough  to  show  what  ttie  profits  would  prolmbly  have  been. 
40  "t'ertainty  is  very  desirable  in  estimating  damages  in  all  cases  ; 
"and  where,  from  the  nature  and  circumstances  of  the  case,  a 
"  rule  can  be  discovered  by  which  aiiequate  compensation  can  be 
"  Hccuiatelj'  measured,  it  should  be  applied  to  actions  of  tort  as 
"  well  as  to  those  upon  contract.  The  law,  however,  does  not 
"  lequiie  impossibilities,  and  cannot,  tlierefoie,  demand  a  higher 
"  degree  of  certainty  than  the  nature  of  the  ease  ahniits.  If  a 
"  MMiiilar  and  establisheil  business  is  wrongfully  interrupted  the 
"  dai!iiig(>  thereto  can  be  shown  by  proving  usual  profits,  for  a 
"  reasonable  time  anterior  to  the  wrong  coinplaiueil  of.  But  it  is 
'lO  "otherwise  where  the  business  is  subject  to  the  contingencies  of 
"  weather,  breakages,  delays,  etc.  There  is  no  good  reason  for 
"requiring  any  higher  degree  of  certainty  in  respect  to  the 
"  amount  of  daiiiages  than  in  respect  to  any  other  branch  of  the 
"  cause.  Juri(>s  are  allowed  to  act  upon  probable  and  inferential 
"  as  well  as  dii-ect  and  positive  proof.  And  when,  from  the 
"  nature  of  the  case,  the  amount  of  the  tlaniages  caiuiot  be 
"  estimated  with  certainty,  or  otdy  a  part  of  them  can  be  so 
"  estimated,  no  objection  is  perceived  to  placing  before  the  jurj* 
"  all  the  facts  and  circumstances  of  the  case  having  an}'  tendency 
GO  "  to  show  damages,  or  their  probable  amount,  so  as  to  enable 
"  them  to  make  the  most  intelligible  and  accurate  estimate 
"  wiiich  the  nature  of  the  case  w-ill  permit." 

Then  again,  on  page  HI,  he  .says  as  follows  : — "  The  chance, 
"  so  to  speak,  of  obtaining  that  advantage  by  performance  ot  the 


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(Mr.    Pctfis'    ArtjiimL'nt.) 

"  contract,  ami  the  conjiinctinii  nf  tin-  noct'ssftry  Hul>se(|upnt  fiicts, 
"  nmv  tif  viilimlilc  Tlu;  nature  of  the  continj^i-ncy  must  Ik^ 
"  c<)n>i(lt'rt'(l.  If  it  is  piiifly  coiijcctuinl,  luiil  cannot  ln!  reiison- 
"  iiiily  Hnticiputcil  to  luippcn  in  tiii'  iisiml  coiirNi;  of  tliin>;s,  it  is 
"  too  unci'i-tiiiti.  'I'iuTf  iiHist  lie  proof  Icijiiily  tt'iulin"^  (osliow  niui 
"  sufticit-nt  to  satisfy  lilt'  jury  tlmt  i'.  woulii  liiipp»;n."     Tlien  iio 

10  cites  llif  cast!  of  till'  cimnct!  tlmt  a  fullier  would  pay  a  son's  dclit 
to  sociirc  his  rcli'asc  from  custody,  lins  Itei-n  licld  capalile  of 
•■stiniation,  iil'!i(Pii;,'U  I  must  say  it  mii^t  have  lu-i'ii  a  prctt)'  liard 
thin;;  to  cstimat)'.  Kollowin;;  on  that  is  tin;  statement  laid  down 
liy  these  two  text  .vriters,  aii<l  I  think  we  proiiahly  liave  somi; 
more.  The  coiu'hision  that  we  draw  from  the  statemeni,s  of 
these  text  writers  is,  that  whilst  it  is  tiiie,  as  a  ;,;eneral  rule,  that, 
ill  an  ordinary  action  of  coiiversioTi  or  trover  tlu^  dama;;es  to  In- 
reeiAii eel  are.  for  the  value  of  the  propeitv  at  tlit  time  takeii, 
ano  mill  1  St  peih.ips  until  the  matter  is  settled,  thai  whilst  that  is 

20  true  as  a  ^.'eiieinl  rule,  like  all  other  ^reneral  rules  it  is  suliject  to 
many  except  ion-;,  and  out-  exception  is  that  wheri;  there  are 
special  ciiciimstaiices  which  make  the  takini;  of  the  artich; 
speciallv  iiiiini(>ii>.  and  which  special  circumstance  is  hefore  thi^ 
miml  iif  ihe  person  iloini;  the  injury. and  more  particularly  when 
it  is  dmie  inientiomilly  for  the  purpose  of  causing;  that  injury, 
that  that  is  an  exciption,  and  the  rule  that  you  can  simply  re(M\iT 
for  the  valiu-  of  the  article  does  noi  apply  at  all.  I  would  now 
like  to  lefer  to  one  ov  two  eases  meniionecl  in  my  lirief,  to  show 
that  there  is  positive  authority  that  this  class  of  ilama^esc'in  he 

.SO  recovered  in  eel  iiiin  cases.  NVithoiit  actually  lakiiiL;  lie'  hook 
and  refeirilii.'  In  it.  1  will  cite  to  your  Honors  the  case  of  the 
"  llisiiliito,"  eited  on  )iii_'e  :tl  of  u\\  luief.  'I'he  note  liiere  is,  and 
it  i-.  a  very  full  one,  as  follows  :  — 

"  In  this  casf  !i  Kreiicli  fishing;  hrii;  of  1+2  tons,  employed  in 
"  the  cod  fishery  oil"  the  hanks  of  Newfoundland,  came  into 
"collision  on  lie  liih  of  .luly.  IHSI,  with  an  Italiai',  tianpu'.  and 
"  in  consei|Uence  nf  the  collision  was  compelled  lo  put  into  port 
"  foriepaiis.  hut  her  re|iairs  having;  heen  completed,  returned  to 
"  the  tisliiiij;  i,'rounil    hefore  the  close  of  the   tishin;;    season.      In 

40  "an  action  for  damayi's  instituted  on  helialf  of  the  ini;;  aifainsf, 
"  the  hnnpie,  the  ( 'ourt  pronounced  the  hartpic  suleiy  to  hlame 
"  for  the  collision,  and  referred  the  ipiestion  of  damages  to  the 
"  l!e;,'istiar  and  merchants." 

In  ei\  iii^r  liis  decision  the  |{e;,'istrar  said  : — 
"  A  sum  of  •i'jnuo  francs  was  allowed  for  loss  of  Hsliin;;. 
'  The  vessel  had  a  clew  of  twenty  men  ami  eii^lit  small  hoats, 
"it  liein^  llie  practict!  for  the  hoats,  with  two  men  in  eaci)  and 
"  lony  lines,  to  surround  the  vessel  whilst  tishiii;;.  An  immense 
"  numher  of  h'reiich,  us   well  as   nativi-  and    somewhat    smaller 

50  "  vessels  are  eii^iiijeil  ill  the  trade,  some  of  them  lamliiii;  their 
"fishing;  from  lime  to  time,  and  others,  includiii;;  the  "Emma,' 
"  lakiiie  every Ihin;;  they  catch  to  lioideaux,  receivin;.;  a  licunty 
"  for  so  doin;;  from  the  French  ^'overnment.  The  codHshery 
"reopens  laie  in  April  and  ends  in  Novemher.  The  "  Kmnia" 
"  had  left  Dieppe  as  Usual  al  out  the  middle  of  March,  with  the 
"  necessiiiy  salt,  to  pieserve  the  tish  to  lie  cau^^ht  hy  her,  t;oiii;; 
■'strai;;hi  to  St.  I'ierre  to  procure  lierriii^js  as  hait  for  the  ^aily 
"  Hshin^.  arid  afterwaids,  having;  daiiia^ied   her  windlass,  she  had 

•  returned  to  St.  \''  'rie,  ami  liavini;   i.'ot  a  supply  of   hait   for  the 
00    '  later  Hsiiiii;;,  had  oidy  just  resumed   tishiiii;  when  the  collision 

"  in  ipieslion  occurred.      At  the  close  of  the  season  she  (irucei'ded 

•  to  lioidiaiix  and  laiuled  an>i  sold  ."111, 474  cod,  which  realizd 
"  .'17, >*•'>■'>  francs  |r  was  proved  that  the  average  numher  of  fish 
"caught  liy  other  vessi  Is  in   those   Hcas    j^reatly    exceeded   that 


ih.n 


CI 


e(|iipnt  fiict.s, 
»cy  must.  h« 
it  III!  rivisoii- 
tliinj^s.  it  is 
toslidw  iiiid 
."  Then  1.0 
a  son's  (ic'iit 
1  ciipaliitt  of 
I  pit'tt)'  lianl 
tit  laid  iliiwii 

,•     liaVl-    SOIMH 

tatonifnis  of 
■rai  ruli',  that, 
inia;;cs  to   hi) 

time  taken, 
whilst  tlial  is 

is  stltijcct  to 
(•  iheit!  are 
the  artiele 
s  hefore  the 
•iilaily  when 
that  in  jury, 
mply  n-ciiver 

woulil  now 
rief,  to  siiuw 
liases  (Mil  he 
\i^  till'  liiMik 
■  ease  of  the 

iliere  is,  and 

i'ni|iloyed   ill 

came    into 

l>ar(|iie.   and 

lilt  into  port 
returned  to 
season.  In 
)rii;  iiLjainst 
Iv  til  lilaine 

lac'c^    to   the 


of  Hsliin^r. 
small  hoais, 
ill  I'lieh  and 
\ll   iliimeiise 

lat  siiialler 
indinir  their 
le  "  Kniiiia," 
iiLj  a  iM.uiity 
eodfisliery 
le  "  iMiinia  " 

h,  with   the 

her,  ;;oin;; 

ir  the  faily 

ass,  Hhe  liad 

liait  for  the 
the  eollision 
le  proeeedecl 

icil  reali/'il 
mlier  of  lish 
ueeded   that 


■4 


(.Mr.    Peters'   Argument.) 

"  quantity,  and  unless  that  was  tlie  case,  the  proceeds  would  not 
"cover  the  expenses.  'I'lie  lle;4istrar  and  meiriianis  therefore 
"  cRiiie  to  tlie  eoncliisitJii,  on  the  information  fmnislied  especially 
"  l>v  tlie  defendants,  that  22,000  francs  shouhl  he  allowed  as  the 
"  hiss  siisiaineil  hy  the  interru|ition  to  the  fishin;;  occasioned  hy 
'■  the  collision,  an  allowance  for  dijiiiiiriaj^e  in  the  usual  way 
10   "  lieiiijL'  inappiicahle  to  this  ease." 

I  I'raw  your  Honors'  attention  particularly  to  these  few 
Wolds  at  the  close,  '•  an  allowance  fur  deiiu.rrM;,'e  in  the  usual 
wav  l"'in^  inappiicahle  to  this  case."  I'ut  n>'u\>'  fur  the  moiih'iit 
the  case  of  seizure,  and  takt?  the  case  where  my  learned  friend 
ailmits  there  is  to  he  an  allowance  for  demiirraj;e — the  case  of 
warniiiif — does  not  that  remark  exactly  apply  to  it,  "  that  an 
allowance  for  demiirraj,'e  in  the  usual  wav  lieiny;  inapplicihle  to 
this  case" — utterly  iniiplicahle  to  it,  and  why  '  'I'ake  the  casi- 
of  til"  "  Carolina,"  for  instaiiee,  according;  to  the  arL^iimeiit  put 
20  forward  on  the  other  side,  which  i  do  not  admit  as  a  matter  of 
fact,  hut  from  their  point  of  view,  that  the  season  end"  on  the 
20th  Aiitfiist.  Then  the  "t'arolimi"  had  hut  twenty  <lays  to 
make  what  she  was  yoiii<{  to  make,  she  niijjht  i;i  that  time  make 
thousands  of  dollars,  just  as  this  vessel  on  the  Hanks  of  New- 
foundland, or  wherever  she  was  tishinj^.  had  hut  a  short  time  to 
make  hi-r  cartro  of  codlisli,  wiiich,  when  iii.nle,  would  he  of  very 
ciinsideiahle  value,  ill  the  case  ,)f  the  "  llesohite, "  till-  Ki'j,'istrar 
said,  "the  ordinary  rule  of  Admiralty  <loes  not  apply."  and  in  this 
case  that  would  he  douhly  true,  for  hut  twenty  days  were  left  to 
'Ai)  make  the  venture  a  succes.s. 

I'lie  L'oinniissioiicr  on  the  part  of  the  United    States; — Was 
that  ca.se  ilppcaled  from  the  Admiralty  Division  i" 

.Mr.  I'eteis  :— I  will  ;;ive  it  to  you  here,  y.iur  Honor. 

Mr.  Dickinson  : — It  was  not  your  lionoi,  it  was  a  decision  of 
I'hillimore  on  the  ie|)ort  of  the  Ueiristrar  only. 

Mr.  I'eters  : — -Dr.  Philliiiioie  is  certainly  a  ^ood  aiiihoiity  for 
matters  pertainin<;  to  Admiralty. 

Mr.  Dickinson  : — .See  what  he  .says  on  that  jioint  of  prospec- 
tive catch. 
40  .Mr.  I'eters  : — The  citation  I  read  was  from  the  report  of  the 

lle<;istrar.      I  rend  what  follows: 

"  On  the  ittli  of  .\iiirust,  l!SS2,  the  solicitor  for  the  defendants 
"tiled  in  the  rei;islry  a  notice  of  ohjectioii  to  the  report,  and 
"liavin;;  ohtained  the  consent  of  the  plaintitl's  to  the  ohjec- 
"  tioiis  lii'iiiy  taken  on  motion,  siih,sei|Ueiitly  ^'iive  notice  that  the 
"  juiljfe  in  court  would  he  moved  to  diiect  the  Re;jistnr's  report 
"to  he  amended  hy  reducing  the  allowance  in  the  matter  of 
"  deiiiurrii^fe,  on  the  i^rniund  that  the  amount  allowed  was  uiirea- 
"soiiahle,  ami  such  a>  was  not  usually  allowed  hy  the  Re^dstrar, 
50  "anil  that  the  rate  per  ton  allowed  for  demuiraiie  was  excessive, 
"and  that  the  evidence  did  not  warrant  the  sum  allowed  in 
"  respect  to  the  snid  item."     •     •     • 

It  was  said  counsel  for  defendant  aryued  : 

'  In  action  for  damaj,'e  where  compensation  for  detention 
"  diliili;,'  repairs  has  heeli  successfully  claimed  in  the  re;;i>«try,  the 
"Usual  practice  of  late  years  has  lieeii  to  allow  demurraj^'e  iiecord- 
"  iiij;  to  her  ciistoumry  rate  per  ton  per  diem,  and  in  cases  where 
"this  course  has  i.ot  heeii  adopted  the  praeiice  has  heeii  to 
"estimate  what  profits  would  most  prohahly  have  heeii  ohtitined 
€0  "  if  tln're  had  heeii  nocollision.  In  order  to  I'liahletlie  Reiristrar 
"and  merchant"  to  estimate  what  such  prolits  should  have  heeii 
"  in  the  present  case,  the  plaintiff's  oii;,dit  to  have  shown  on  the 
"  refiMeiice  what  net  piofits  had  heen  earned  hy  the  "Knima" 
"  herself  whilst  en;,'ftrred  in  codtishin;,'  durinir  .liily  and  August, 


rr 


i         . 

68 

(Mr.    PetiTs"    Ar;;UiiuMit ') 

"  ill  yeiiiN  prior  to  ISHI.  This  tlit-y  <li(i  nut  di).  Imt  nicivly  pro- 
"  iliict'd  (in  liii;  rcfiTcmv  cviilciu'c  us  to  tiu' hvithlJi'  niimlicr  of 
'■  coil  tiikfii  tiurinj;  tin- sciiMon  of  ISSl  liy  various  otiirr  vessels, 
'■  not  of  till'  sniiii'  loniiiiijt'  or  fvcii  iniiniu'ii  liy  tlu'  simii'  niiinluM' 
"of  nicti  On  tliis  siM'iMiliitivtM'viiit'iu'i'  tiif  l{fj,'istriir  iippt-iirs  to 
'  linvi-  liiisi'il  liis  clccisiiiii,  ami  on  tliis  ^rroinxl  hIoih-.  even  iissiim- 
10  "  irii;  tliiit  (lie  rati'  of  (Ifiimi  rajrc  to  In-  iillowcil  in  I'liscs  of 
■■  ti-^liiii;;  vi'ssi'ls  is  to  lif  ijill'i'i-t'iit  from  tlic  nili'  bIIowim!  in 
"  otliii-  ciisc*  it  is  suliniitti'il  that  tin-  report  oiii,'iif  to  he 
■'  aiiien<li'i|  " 

I  iia.l  tiist  the  point  taken  hy  (lie  (•ounsel  wiio  is  oiijeetini^ 
to  liie  report  anil  then  tie  answer  to  that,  'i'lien-  they  said  as 
follows:  "The  I'ijjht  of  the  persons  intefi'sled  ill  a  tishiinr  vessel, 
"  ilaiiiai;ed  ii\'  a  wroiiL.'  doer,  to  recoviM'  in  an  aetion  of  ih'niin'rni,'t', 
"  coiisecpieiitial  daniaiies,  where,  in  conseipienfe  of  the  collision, 
"  a  tishiiii;  ad\entiiie  has  hcen  inti'i  riipted,  has  heeii  reco:,'Tiiz.-d 
20  "in  many  clecidi'il  cases,  of  which  the  ease  of  the  ■  ( 'lareiici'," 
"which  came  lud'ore  Dr.  liUshin;,'lon  in  l^.")0.  is  one.  The  Heijis- 
"  trar  ntid  nieichaiits  have  acted  in  accordance  with  the  ))rinciples 
"of  these  cases,  and  have  allowed  a  fair  and  leiisdiialdi'  snin  in 
"  respect  of  tlie  detention  of  the  '  Kiiinia." 

Now  then,  says  Sir  Rohcri  I'lnllimore  :  I  do  not  think  I  need 
■    fllllhel    ll'ollhle  the  counsel  for  liie  plaint iti's." 

There  is  a  distinct  and  cleat  decision  hy  Sir  U.dieit  I'hillimore 
for  whatever  it  is  wurtii.  I  am  lU't  here  to  contend  that  this 
court  is  I  onnd  l.y  tie'  ridiiijr  of  any  jndije  in  admiralty  in  Kn;,'- 
.'!()  land  any  nioie  than  of  a  jiid;,'e  in  inlniiialty  in  the  I'nited  States, 
but  Sir  K'diert  I'hilliniore  is  iindoiihtedly  a  man  id'  veiy  lar^e 
»'X|  erieiice.  es|iecially  in  adinirally  ca»e-.  tn  wliiidi  I  think  ho 
contines  lu^ailv   the  whole  of  his  attention,  and  the  opinion   (>f  a 

imill  of  his  I  xpi  lielice  is    entitled  to  sone-    weight  aid  roli-idera- 

tioii  ;  mill  when  it  is  only  followini,'  mit  ili'  exception  to  the  rule, 
which  a  can  fill  leadili;,'  of  tllese  te.vtdiooks  shews  to  exist,  then- 
is  no  reason  why  it  should  not  he  adopted. 

I  would  like  to  refer  your  Honors  now  to  another  a  Imiraltv 
case  cited  at  pH;,fc  .'12  of  my  ari;iiinciit,  hnt  which  is  not  ipioted  at 

40  any  leiii^ih,  the  ca-e  of  the  "  (ilennei,"  :{  .\sp.  This  is  an  action 
liMini;lii  a;.'ainst  the  trawl  "(ileaner"  hy  the  uwie  rs  of  a  smack 
called  the  ■  .Maud  and  Kloreiice,"  to  lecover  ilaiiiiii;es  in  re-pec t  of 
tlic  collision  lietwoeii  the  vessels,  wliereh\  the  ti-hilii;  !,'car  of  the 
'■  .Maud  and  Kloreiice"  was  lost.  That  i-all  that  was  lost.  The 
"  .Maud  and  Klureiice."  on  the  lOth  Octolier,  1.S77,  was  drif;  Hsh- 
in;^.  Iiiid  aliiiiit  sixty  nets  out.  While  so  enijam'd.  the  "(ileaner." 
which  \va-  trawline.  ran  into  and  fouled  her  iiei>.  These  nets, 
with  Certain  nther  parts  of  iter  •n-iw,  they  were  ol.li;,'ed  to  cut 
adrift,  and  only  ten  of  ilie  sixty  nets  were  saved.      The  plainlilis 

TiO  diirinj;  ne;,'otiations  hefoie  action  claimed  .Clo")  foi  value  of  nets 
and  eear,  and  aUo  compensation  for  tiie  loss  of  tisJiiiiL,',  hut  the 
dtd'eiidant  not  paying  tlie  amount  clainn'd.  tlie  plaintitl's  applied 
for  leave  to  coniiiieiiee  action  in  the  lli;;li  Court  u|inii  an  atlidavit 
setliiii,' out  the  ciiciinistances  of  collision,  aim  alle^diij,'  that  the 
value  i)f  the  nets  lost  weie  .C I ")."),  and  that  in  addition  theleto 
the  plaintiir  had  a  claim  for  ooiiseipieiitial  dama;;es  for  loss  of 
tishiiii,'.  The  amount  recovcrahle  was  uncertain,  and  it  was 
di'sirahle  to  ;;o  to  the  Hiuli  C  ".irt,  The  iictinn  was  nroui^lit. 
'{"he  defendants  admitted  lialtility  for  .t I. ").■).     The  claim  was  put 

f)l)   in  liefoie  the  registrar  and  merchants  as  follows  :— 

"  l,.iss  of  4  weeks  lishiiif,'  from  lOth  Octoiier,  lh77  -£200. 
"  At    the    reference    the   defendants  alto^'etiier   disputed    the 
"  plnintitis  rij,dit  to  recover  for  loss  of  tishin^'  upon  two  i.Tioiind." — 
"  (irst.  Iiecau.se  the  dainnjjfes  wert;  too  remote  ;  secondly,  hccaiise,  as 


t  tliiiik  I  Mci'il 


68 

(Mr.   IVters'    Arfjument.) 

"  tlicycontiMiiliMl.tlic  plaiiitiHs  mij{ht  liiivo  procured  more  nets  and 
'■  linvi-  iMintiriiicd  tin-  fishiii);." 

Tlmt  i-i  tlic  very  contention  innde  licrt'. 

'I'lu-  followiiii,'  iillowanct's  witi'  iniidc  : — Tlfy  iillowed  for  loss 
.^f  Wsliin;;  four  week •*  from  tlic  lOtli  of  Octohi-r  to  the  7tli  of 
Novcniln'r.  C72  wit  i  interest.  The  Hej^istnir  ;;ives  lii.s  reasons 
10   in  full,  luid  with  retjard  to  thiit  .C72  he  .says  : — 

"  With  reyiird  to  the  iilnolltit  alhiwed  UTider  this  head.  £72, 
"  we  fiiinii'd  our  estimate  from  the  evidenee-  lud'ore  us  of  what. 
■'  tlie  i^ross  earnini,'s  of  tlie  smack  woidcl  iiave  heen  if  siie  liad 
"  coniiiiiieil  Hshiiij;  for  four  wi'cks  on    her  nsunl   >;round.     Kroiii 

"  tiiat    esiimati'    we  have  maije  di'ihiclions    fo|-  tlie    ex|)enses  'hat 

■'  woulrj  ii.'ive  heen  incurred   l)y  tliem,  also  for  wear  and   ti'ar  of 
'  tlie  smack  and  of  lier  nets  and   warps,  etc.,  and  fortiiei'  for  the 
'■  amoiMit  the  iilaintitl's  did  actually  earn  in  the  sulistitiitcd  occii- 
"  patioii  tlicv  had  recourse  to." 
20  The  m.itier  was  afterwards  lirou^jht   u|)  hefori'  the  court   and 

the  linditi^  was  not  intorfcied  with.  My  learned  frieii.l  comments 
lljioti  that   case. 

'i'lie  Commissioner  for  the  United  Stiites  : — ^It  was  lejieil  on 
hv  till'  Italian  counsel  in  the  case  you  have  leferre  I  to.  It  was 
the  onl\-  case  cited  hy  him. 

Ml-.  Dickinson  :  — Wa?,  not  there  a  (jucstioii  of  cost  in  thecase  ? 
Mr   I'l'teis: — Yes,  hut  this  also  ap])ears  : 

' 'I'he  ilefend'inis  ilid  not  oliject  to  the  report  which  was 
"  taken  up  hy  the  plaintills,  ami  the  Heiristrar  havini;  made  no 
;!(•  "  rrcoMimeielatinii  as  to  cost~,  the  plainlitrs  ;;ave  notice  that  they 
"  should  mcivi'  the  judiri'  to  Certify  that  they  were  entitled  to 
"  their  co-its  of  action,  and  to  condemn  the  defeiulants  and  their 
"  hail  therein,  and  in  the  costs  of  the  reference." 

lint  this  |)oint  stands  nur  prominently,  that  in  thecase  tried, 
after  proper  reference,  it  is  taken  for  u'ranieil  that  that  was  the 
pro|)ei  way  of  estimatine;  dauui^^es,  ami  this  view  w:s  not  even 
ohjected  ti'.  Till  ipie-tion  as  to  whether  the  claimant  could  j,'et 
costs  iif  suit  cjime  up,  and  indirectly  the  main  claim  was  aj^uin 
Coll-ideied. 
40  Sir  Uiilurt  I'idllimore   said  ; — "  As   to   the  cost  of    reference, 

"  the  plaintifis  ask  for  the  costs  upon  the  :,n-oiind  of  the  peculiarity 
"  ot  tlieii'  claim  'i'heir  claims  consisted  of  claims  for  loss  of  irear 
"  aod  for  hws  of  the  season's  tisliiiiir.  The  defeiulants  tendercil 
"  the  amount  claimed  foi-  loss  of  eeai,  hut  icsisted  altogether  the 
"  claim  fur  loss  of  tishiiiLT  This  course  of  action  on  the  part  of 
"  the  •lefeiiiiants  Iris  iindoiiliteilly  occasioned  costs,  an>i  1  am  of 
"opinion  that,  corisiderine;  the  pecolidrity  and  natiiie  of  the 
•claim  of  the  jilaiiuitts,  they  are  entitle  I  to  some  costs.' 

I'lierc  is  not  a  word  of  ohjeetion  hy  Sir  Robert  PIdllimore  as 
50   tti  the  nature  of  the  claim.     As  a  matter  of  fact,  it  was    in  lino 
with  this  verv  case. 

Mr.  Dickinson  .--The  other  side  never  raised  the  ])oint. 
Mr.  i'eters: — That  circumstance  is  one  of  the  very  siron;,'est 
thiiies  in  our  favor  It  seemed  to  he  taken  for  granted  that  this 
clas-.  of  claim  for  (laniai;c  can  he  reco^ni/.ed.  Indeed  it  was  so 
ileciiled  ill  the  "  {{esohite  '  case.  In  this  earlier  case  it  was 
taken  for  jTi-anted,  the  Hcgistiar  was  a  man  rf  cousidcrahic 
experience  and  his  report  was  not  ohjected  to.  I  will  also  refer 
to  the  case  of  the  '  Aryeiitinn, "  14  Appeal  Cases,  .")1!),  cited  on 
(iO  pai,'e  42,  hut  not  at  lenj,'th.  This  case  was  hefore  the  House  of 
Lords  in  Kni^dand  ;  it  was  a  case  of  a  collision  hetwecn  two 
vessels,  the  "  A  "  and  the  "  CJ,"  shortly  after  a  contract  iiad  been 
made  hy  the  owners  of  the  "  A  "  that,  upon  the  completion  of  her 
then  voyajje,  she    should    proceed    upon   another    voyage.     The 


«p*n«pn 


*: ' 


;.!-• 


64 

(Mr.    I'etcis'    Arjfiiiiieiit.) 

ri'imir.x  to  tlie  "  A,"  iiiailf  m-ct'^^ar}'  liy  tin'  colliMion,  could  not  lie 
coin|ilctril  in  tiino  to  I'lialili'  licr  to  fiillil  tlic  coiitnift.  In  im  action 
liy  till'  ownciN  of  tile  "A"  a^'iiiiiHt  tin*  owm-rs  of  tin-  "(J,"  (lie  for- 
nicr  I'IftiiiH'il  clanifitjo  in  ri'spcct  of  tlic  loss  ;if  tlic  t-arnin^s  wliicli 
v.'oulil  liiivi'  liiTii  ili'i  ivi'il  from  (In- fni|iloyini'iit  contractrd  for: — 

"  //(■/</,  atlirniini;  tin-  ilfiision  of  llic  ('ourt  of  A|)|>*>al  (!;}  1*. 
10  '■  ]).  I!M )  tliat  till' ilaiiia^i's  clainit'il  wi-rc  not  too  ri'niotc,  Imt 
"  fiillo\v(.'il  ijiri-ctiy  and  naturally  frnui  tlit>  colliHion,  and  that 
"  Hiicli  cl;iniM;;i'  sin  nld  I  <•  alhiNVt'd  as  Wdllid  icpri'si'iit  tllf  loss  of 
"ordinary  and  fair  earnings  of  sucli  a  .slii|i  as  tliu  "  A,"  having 
"  ri'ijaid  to  till-  fact  lliat  tlii'  Cdntract  had  lii'cn  i-ntt'n-d  intii." 

In  that  case  llu'V  si'itlcd  on  the  aiudunt  of  di-niurriii;<'.  and  I 
Nini|ily  refer  to  the  case  to  show  that  that  class  of  daiua;^ri's  can 
lie  consideriMJ.  I  do  no'  |>ro|iose  tocit"'  I'liilifix  V.  Till'  l.uiiiliin  il'' 
Aoi  ll'i' islirii  /ii'i(//(''((7  ( '() ,  hecause  the  facts  of  that  ca>e  are  so 
well  know  n  li>  i\  I'rylMnly  that  it  is  uniu'cessarv  to  refer  to  it  here. 
20  Mr.  Dickins.m  :  -'riiai  was  (he  "  Sinx'eon  "  case  .' 

Mr.  I'eter.s: — Ves  Now  tlieie  me  two  cases  referrecj  to  liy 
my  le'iried  f  I  lend,  under  (his  head,  at  |ia;.'e  ION  of  his  ar<.>umeMt. 
One  is  tile  case  of  the  " \Vashin;;ton,"  which  I  onnnitteil  to  nicniioii 
yesteiilay.      lie  refers   to  the  "  \Vashini;iiiii  "   in   thesi-  wonls:  — 

'  The  case  (if  tiie  ' \\*i\shin','ion,"  li.fore  the  .Mixeil  ( 'ommissioM 
"in  I.S.");!.  was  in  eveiy  resjiect  analoi^'otis  to  the  jiiesent  case, 
"(ireai  I'lriiain  claimeil  a  juriscjiction  over  the  liay  of  Kundy  as 
"  (eriitoriai  waters,  'i'he  '  Washin^jton"  was  seized  (en  miles  fioni 
"  shoie.  It  was  held  tha(  the  water>  wer<'  not  tei  ritorial,  and  thut 
30  '■  the  seizme  of  the  '  Washilij^ton  "  wn>  Miad>'  on  the  hiffli  seas. 
■' 'I'he  ship  was  owned  I'V  .American  ciliz^'iis  and  was  under  the 
"Alneiican  lla;;.  It  was  thend'oif  a  c;ise  of  seizuM-  in  |irinci|de 
'■  |iri'eisely   like  the  case  leMe." 

Now.  iipt  I  til  It  piiint  my  leartiecl  fiieiid  ispnicticall\  coirect. 
My  learned  ffieii'l.  furthei  (in,  pKiceeds  to  say  : — "She  had  lieen 
"condemned  li\  a  Ihitish  cmnt,  and,  with  her 'ei|uipment  and 
"  stores,  sold  under  the  order  of  the  court.  At,  the  time  of  the 
"  seizure  she  was  eni^aued  in  tishinj,',  and  she  nuide  claim  for  all 
"  daina;^es  including  'mark  thesi'  words — "it  is  assumeil  her 
+0   ■■  prolialile  catch  and  inlerist." 

There  is  !i  most  important  udniission  made  li\-  my  learin-ij 
friend  here.  "  Includiii;;  it  is  assumed  her  prohalile  catch  and 
interest."  Who  assumes  it  ('  H"  does.  .My  iearneil  friend, 
represeiitiiiLj  (he  I'nited  States,  in  ell'ect  says,  that,  with  re;,'ai(l 
to  that  claim  which  was  nwele  in  l.S.'i;),  he  assumes  that  the 
I'n  tc'l  Slates  claimed  then,  as  they  always  have  claimed,  for 
pros|iielive  c.iteli,  and  for  hiss  of  profits,  lie  says  in  eH'ect  : — 
"  I  take  it  f<ir  ^'rallied  that  they  wnidd  not  omit  such  it  claim." 
He  assumes  that  tlu,'  I'nited  States  did  in  that  case  what  tliey 
•'lO  did  in  the  May  of  Koitnni'  case  ami  in  oilier  cases,  whilst  at  the 
sane'  time  he  says  that  'Ireat  liritain  lia^  no  ri<;ht  to  make  a 
similai  case. 

.Mr.  Dickinson: — rnforliinaiely  (hey  never  j;ot  anything; 
fmm  ( iieat  Hritain  for  it. 

.Mr.  I'eters:  Well,  (he  I'liited  States  j,'ot  (he  claim  rccoj;- 
nizi'd  in  the  Hay  of  Kortiiiie  case  and  aUo  I  contend  in  the 
(leiieva  case.      Now  li't   us  refei   to  this  case  itself. 

.Mr.  Uickiiison  :  —  There  is  no  detailed  statement  so  that  yon 
caniKit  tell  how  it  is  made  u|i. 
00         M  r.  I'eters  ;  —  Wei  I,  my  leai  lied  frieii(lcit(  s  the  case  is  amil(.;,'oiis. 

He  as-unies  at  one  moment  (hat  prospective  proMts  were  claii 1 

and  (hell  he  chancres  his  ^'roiind  and  assumes  that  that  claim 
was  not  allowed.  Tin'  case  is  icleired  to  at  pa;;e  170.  Now, 
ilieic  is  no  statement  here  as  (o  details  of  daimi;'e.     All  tha(  is 


£} 


■« 


.'(it,  iiiivtirni'' 


It  sii    tlllVt    VOll 


6S 

(Mr.    P»;t«'rs'    Ar;{iiiii('iit.) 

Slit  out  is,  Till'  Sclioiiiifr  "  \Viivliin;,'t<in,"  wliilo  fiiiployi'il  in  Ji-h- 
iii;;  in  tins  Iky  "f  Fiindv.  liii  niilis  <li>ttiint.  fmni  lin-  slioro,  was 
si'izcil  I'}'  luT  ISritaiinic  Miiji^tv '-  iTuisci ,  ini'l  tukiii  Id  Viki-nmuth, 
in  Ndvii  Si'iitifi,  anil  conilriiini'.l  nn  iIm-  yiMiui.l  of  liciii^^  iMi^ajjed 
ill  lisliirii,'  ill  lliitisli  walci'-,  in  vidlutiun  cif  tin-  |prc)vi>iiiiis  of  tlin 
ti(iit\-  nlalivc  til  tl)n  lisliiiii  s.  I'lit'ir.!  iiitn  ImIw.-cii  the  riiitiiil 
10  Stall's  ami  tlic  lirilisli  (liiviTiitnriit  in  Ortoiiir,  ISIS.  Claim  of 
ilaiiin;;!'-.  was  iiiaili'  lii't'ni'i'  tin'  <'iiiiiiiii-'4i>>n  on  l)ii>  •;roun<l  tliat 
llic  .si'i/iiit'  was  ill  viiilaiioii  ol  tlic  prox  i>iuiis  of  tjuil  li-ialN ,  and 
of  til.'  law  of  till'  iiitioiis  Tl..'  il.c  i>...ii  .^riv.'ii  l.y  tin-  riiili'd 
Stati's  ( 'oMiiiiissioiicP  was  one  way,  ainl  ly  tlic  ( 'oiiiiiii^-'ion  for 
(iri'iit  l!i  ilaiii  anotlii'l-  was ,  aiicl  (Ih'  ailiitral"i  s  liici.li'ij  aj;ain.st 
(iiiat,  Ulitaili.  All  timt  lie  sai'l  was  this,  -  Tlii-  owiuis  of  tliB 
'  \\'asliiii;,'t()n  ■  or  tlicir  Iri^al  rcpr' sfiitativc-,  arc  llit'ii'fore 
entitled  to  coiiiiM'tiNation,  ami  ai.'  Iicr  li\'  awanli'l  not  tlie 
iiiiinnnt  of  tlirir  <'laiiii,  (('///'cA  i!*  >.rc(s.<. C.  Iiiil  llic  sum  of  tliifU 
20   tlioii«aml  iliillais,  lint' on  llic  I  "illi  .laiuiary,  |S.'..")." 

I  caniiol  sii-  liow  my  frii-ml  i'mii  nil  any  ^ojaii-  fioiii  ii  t-atise 
of  tliis  dssci i|iiion  in  wliii'li  wc  ilon't  know  wlntliiT  iIhtc  wasa 
fiiiiin  for  |iii.  iH'ctivc  |irolit  or  not,  anl  wliirli  dealt  wit  li,  (list,  liy 
assuiiiini,'  that  .slicli  a  claiiii  wis  iii:iili>  ami  tln-n  a-siiiiiiii^  tliat  it 
was  ijisalliiwi'd.  Tlic  iiinjiiri'  in  tlii>  iiim-  was  u  ^I'litli'iiMii 
nanii'd  I'lalis,  wlin  was  not  an  Inli'matioiial  lawyer,  liiii  a  iiii>r- 
cliaiit  liriiu;;lit  in  for  llie  |iiir|>ii>e  of  ilei-i'iiii^  in  a  i-niiiiiioii  sense 
way,  npoii  ceitain  anioiints,  tliat  sjionlil  lie  |>a\alili'  to  this  VL's^el 
mill  thilefiire  the  ('Use  I'oes  not  ('nine  liefmeiis  with  thesaiiii! 
SO  wi'i<,;lil  to  whii'li  it  Would  lie  eiitii  1>  d  if  the  ('iiniiiiis-ioiier  had 
lieeii  an  intei  nat  ioiial  :iii(  horil y. 

.Mr.  Itickiiison : — lli-  was,  hmvevei-,  a  Hiilisli  umpire  and 
condiicted  the  ]iri)ci'i'diiii,'s  with  ilie  IIIII10--I  fairness  and  jiiohaiily 
with  leiral  advitu'. 

.Mr.  I'elii's:  —  I  ill)  not  dis|iute  the  fact  of  his  fairness.  ] 
merely  reinaik  tiiiit  he  was  iml  a  lawyi  r,  and  when  it  comuH 
diiwii  to  a  ijU'sliiin  of  alistriise  nji'iiion  ii|iiiii  iiiteiiiatioiial  law, 
lie  is  no  aiillinrity. 

Tlicrt!  is  aiini  her  case  lefenel   ti  liv  mv  le.irned  friend — the 
'10   case    of   the  "  Hiawatha,"    iiieiil  ioin  d    I'V    my    le.irned   friend    on 
|iai,'e     ION.      Whili   this    ease  ciiiiies   ti    he   louki-i   at   it   will     be 
i'oiiml  that  it  does  not  help  this   liiliiiiial. 

in  the  (irst  place,  it.  was  the  case  nf  an  ill.';,'al  ciiptiire  of  a 
vessel  alleged  ti  he  tiyilii;  to  run  the  lihiik.'ide.  |)ill'ere|it  peo- 
|)le  interested  in  that  ship  made  dillereiii  clainis.  One  of  tlie 
einims  was  a  chiiiii  for  indemnity  for  tie-  loss  of  coniiiii.ssinn 
which  I'lit  for  tin-  capture  would  have  lieeu  realixed.  Apart 
from  tlie  point  wiiieh  I  took  yesterday  in  regard  to  cases  of 
captui'e,  that  they  stand  on  a  dillnnt  I  iisis  altoj,'etl,er  from 
[50  other  cases  and  that  on  the  ^'lomid  of  piihlic  policy  they  sliould 
not  lie  followed  Up  to  the  extent  of  LjiviiiLj  a ;.,';; ravated  diimai't) 
there  is  also  the  otliui' iplestion  thatlliese  (laliia;;es  Welt-  never 
in  conteiiiplatidit  of  the  captnrer.  There  was  no  intention  to 
prevent  tliese  pai ties  f,'eltin;,' their  hoped  for  ciinimission  which 
they  iiiij;lit  have  made  if  the  vessel  Imd  lieeii  allowed  to  yo  it.s 
course.  That  case  really  lias  very  little  to  do  with  this  mutter. 
My  learned  friend  cites  s«veial  other  cases  at  pa;{e  10!)  of  his 
ar;,{ument.  I  referred  to  the  "  Appollen  "  case  yesterday  and  I 
do  not  think  it  is  nece.s.sary  to  refer  to  tln^  other  cases  at  all. 
[60  But  on  pB{,'c  109  he  refers  to  "Sutherland  on  Damages,"  and  1 
would  like  to  make  a  reference  to  the  very  (juotation  which  he 
makes  : — 

"  The  value  of  the  property  constitutes  the  measure  or  an 
"  element  of  damages  in  a  great  varie'i  of  cases  both  of  tort  and 


Ilf 


i 


s 


I- 


66 

(Mr.    I'i'tcis'    Arjjuini'iit.) 

"  ciinti'Hct ;  iinil  wlicic  tluTi'  (in-  no  sucli  a;;i;i'iiv«ti()ris  ii"*  calli-il 
"  for  or  jtistiticil  cxi'iniiliiry  clniiini,'i's  in  actions  in  wliicli  siicli 
"  iliinia^'t's  arc  rccovciiililc,  tlu'  vii'iuc  is  u-oi'itnini'il  iinil  ixinpti'il 
"  as  till-  niuasurc  oi'  uompi'iisati'in  for  lu'in;;  (Icpi'lvod  of  ilio 
'■property,  the  snini'  in  actioiis  of  luitas  in  aciions  upon  ronlnict. 
"  In  liotli  t'a.ses  the  value  is  tlie  le'^'i;!  anil  Hxeil  measure  of  tiani- 

10  "  a^'t'M  anil  not  discielinnary  witli  lliejury." 

I  couhi  admit  that  i,'enir  il  proposition  wliicli  runs  tlirttiiiili 
all  tlie  lii))ks  and  wliicli  i--  I'f  cnurse  siiliject  to  exci-ptions.  My 
friend  closes  liis  aiu'innenl  on  that  pari  of  the  case  at  l)ai,'c  ll((, 
und  lit?  there  says  : — 

"  It  results  that  the  decisions  of  International  courts  and  of 
"courts  of  hoili  coiinti  ie^  aii'  wit  hunt  i-xceptioii  in  direct  conllict 
'  with  the  position  taken  in  lie'  openitii,'  iii';;nment,  in  every  case 
"  wlu'ie  the  ship  of  the  clainniiit  is  lost  lo  him  \>y  tnit,  either  \<y 
"  desirnctiiin,  capture,  or  tin-  aliiindonnieiit  I'V  the  owner  to  coii- 

20  "  deninatiiin  pioceediiiL;s,  <ii  to  ih"  captor,  or  in  any  other  case;  of 
"  nclual  loss  of  the  propel  ty.  I 'ases  of  detention  and  possihly 
"  of  warninj,'s  stand  upon  a  dilferent  fo  itiiii;,  and  in  such  cases 
"  liotli  of  contract  ami  tori,  daiiia;jes  in  the  natun-  of  demnrraue 
"aie  always  allowed,  and  in  >cime  cases  where  a  loss  liy  the 
''detention  can  he  shown  iininul  ifxiii iituiii  with  certainty  some- 
"  tliin<;  more  than  ilie  unliniiry  clt'murra<re  may  he  allowe<l  ; 
"  never,  even  in  such  cases  on  sprfiilative  evidence,  where  there 
'■  are  contiii;,'rncits  oi  chunei  s." 

lie  lays  down  thai  piopu^iiion,  ami  then  at  pai;e  1  1(1  he  deals 

30  with  till'  i|iKsli(in  a--  to  w  Iml.  daiiiii;;e  shoiiM  lie  ohliiilied  in  cases 
where  theie  was  ijieiily  a  wai  ninj,',  and  he  finds  liiiiiself  in  a 
position  that  is  u  lilih-  pi'(  nliar.  It  is  a  fact  admitted  hy  the 
authoiities  thai  th.  re  may  I  i-  cases  where  a  vessel  may  actually 
yet  mole  daiua^es  when  simply  detained  than  if  it  had  heeii 
.seized  and  enntisealed.  My  haiiied  friend  draws  this  distinction 
at  pa;.4e  1 1.1  (jf  hi-.  aii,'iim<'iii ,  "  it  will  he  seen  liy  the  record  that, 
with  the  (Xctptioii  of  scho(i|i"is  owiiecl  in  whole  or  in  part  hy 
American  citizens,  there  are  l>ul  two  cases  mi  which  any  suh- 
stantial  recoveiy  can    he    lanl,  as  for  "  warniiij^s  oiil,"  or  as  to 

40  which  the  i|Uestion  of  damages  is  wortliy  of  consideration."  1 
think  that  I'y  the  time  iny  tin  lel  Mr.  |!'  iipie  ha-  dealt  with  the 
case  of  the  "  Favorite,"  my  learned  friend  for  the  I'ldteil  States 
will  concede  that  theie  is  a  third  such  case,  and  when  another 
counsel  a>sociated  with  nie  deal<  with  the  "  !$h'cl:  ])iamend" 
case,  it  will  he  conceded  that  ihere  isafoutth  such  case.  My 
learned  friencl  also  says  :  "  J  i  the  other  cases  of  warnin<,'s  it 
"appears  by  tin.'  evidence  eithi>'  that  there  was  found  to  hr  no 
"warning;  hy  the  I'aiis  TiiKiinai  or  the  wariiin;^  so  found  was 
"  not  heeilcd,  so  far  as  to  mater.ally  aliect  the   voyaj;c.       It  is 

50  "  conceived  that  on  principal  cases  of  warninj{  should  he  treated 
"  as  are  ca.ses  of  marine  tot  I,  resiilii,irr  not  of  course  in  loss  of  tl;,. 
"  Resolute'  or  any  part  of  it,  hut  in  (letention  or  interniptioii  rif 
"the  voyajje,  univeiHally  considered  under  the  head  of  'partial 
"  los.s." 

In  such  cases  the  doctrine  heretofore  discussed,  as  has  heeii 
seen,  applies  with  etjual  force  a<^ainst  prospective  profits  as  such 
—the  rule  against  contingencies  being  equally  strong.  This  di.s- 
inction  in  the  rule  of  damages  in  cases  of  partial  lo.s.s  or  detesj- 
tion  from  earning  is  nowhere  more  clearly  drawn  than  hy  Dr. 

60  Lu.shington  in  the  ca.se  of  the  "  Columbus."  Later  on  my 
learned  friend  states  the  conclusion  that  he  arrives  at  frotn  these 
authorities,  and  the  distinction  tliat  he  draws  is  that  in  these 
cases  of  warning  the  claimants  were  entitled  to  something  in 
the  nature  of  demurrage.    At  page  124>  of  his  argument  he  says : — 


8T 


10 


2(» 


30 


(Mr.    IVUth'  At-^iiinfiit.) 

'  What  nhoul(l  Im  tlio  riiUi  then  in  the  l-hm-  of  wiirnitii,'  nnd 
"  tlie  lirts  of  iho  seiiMoii's  hnsincHs  ?  Is  shouM  Im  lioini'  in  niiml 
•'  that  iht!  coiii|)t'nsiitioii  to  lio  n-eovcroil  <:an  only  Im  applii'd  to 
"to  thu  h)S'<  of  a  senMon  in  Heliiin^'  Sni." 

That  is  right.     Wo  do  not  ch»ini  any  niort'  tlian  that. 

"On  thfl  otlitir,  nnlikti  thf  cases  of  drtt-ntion  whcri^  hn-iincsS 
is  h)-.t  tluTu  is  no  WKur  and  tear  to  lie  cNtiinatrd  as  tiic  ship  did 
not  cntt'i'  Upon  thu  v^tyn^^'  for  dt'ti-ntinn  from  which  cunipcnsii- 
tion  isciairniMl.  Qainid  thii  t<irt  cviTy  ship  and  i-i|iiipnii'iit  was  as 
ijood  as  tsvi'r  aftt-r  the  period  of  delay.  A  fair  cliai  ter  value  in 
niich  eases  woulil  he  the  rule.  Hut  on  (he  whole  it  is  sulMui'ted 
that  hy  International  law  hetweeii  nations  there  is  no  rule  as  to 
inti'rest  or  the  rate  of  interest,  something  in  the  nature  of  a 
■uhstnntial  return  on  the  amount  investeil  shniild  he  awnrded  to 
the  owner  of  the  ships  of  Hritish  suljects  for  the  season's  sealinir 
voyage  for  which  thu  vesscd  was  eipiipped  and  from  realising  on 
which  she  was  |irevente(l  hy  the  wurrniig.  The  principle  uilopted 
hy  the  Hoard  c)i'  Trade  in  their  report  on  iho  claim  (d'the  whalers 
in  the  case  l)efore  the  (jeneva  Tiihunal  is  a  reasonahle  one." 

Now  there  is  a  proposition  that  he  lays  down  as  a  general 
rule.  He  says  tiie  general  rule  is  that  in  casi!  of  a  shij)  taken  f)r 
seized  you  can  get  no  damage  for  prospective  catch  ami  nothing 
in  lieu  of  prospective  catch,  Imtin  the  case  where  a  ship  is  sini|)ly 
warned  although  you  still  cannot  get  damage  for  prospective 
catch,  the  couri  ought  to  allow  what  he  calls  a  fair  charter  value, 
or  some  large  rate  of  interest  that  will  give  some  srdistan'ial 
reinrn  on  the  investment  the  sealer  has  made.  If  the  \\\\{>,  that 
we  attempt  to  lay  down  is  uhcertain,  is  not  the  ride  that  he  gives 
diiuhly  uncei'tain  '.  What  is  the  u.se  of  telling  a  cnurf  or  a  jury 
that  they  should  allow  something  suhstantial  ?  What  is  suh- 
stantial  (  is  not  that  term  uncertain  >.  One  man  ndght  say 
twmty-Hvt!  per  cent,  would  he  a  suhstantial  return,  an  1  another 
man  ndght  .say  twtdve  percent.,  and  still  another  man  might  say 
six  per  cent.  With  regard  to  the  uncertainty  of  this  rule  that 
you  should  award  a  siilistantial  return,  meaning  from  four  up  to 
fifty  per  cent;  tinder  oiu'  rule,  it  is  true,  there  might  he  uiu-er- 
tainty,  hut  it  is  an  unci-rtainty  made  almost  certain  hy  tht> 
evidence  we  have  shown  as  to  the  earnings  of  these  vessels  that 
hav(!  tished  in  that  locality  during  the  very  years  in  qm-stion. 
Under  his  proposition  you  have  no  means  of  getting  over  the 
uncertainty  involved  in  it,  hut  under  our  proposition  the  uncer- 
tainty can  he  an<l  has  heen  renu)ved   hy  evidence. 

Hut  the  point  I  take  with  regard  to  this  whole  matter  is  this. 
There  is  no  diti'ereiu'e  whatever  in  the  damages  that  should  ho 
alloweil  for  the  loss  of  catch  whether  the  vessel  is  seized  or 
50  whether  the  vessel  is  warned.  The  loss  is  the  same  in  hoth  cn.ses. 
We  say  this,  when  a  vessel  is  seized  her  voyage  is  Jiroken  up  and 
she  is  stopped  in  her  sealing,  and  we  are  entitled  to  ilamages  for 
that :  when  she  is  warneil  out  of  the  sea  she  is  deprived  of  the 
sea.son's  fishing  in  the  same  nmnner.  In  the  one  case  yoti  liave 
the  loss  of  tlie  property,  plus  the  prospective  catch,  and  in  the 
other  you  have  the  catih  without  the  value  of  prf)perty  taken. 
The  two  coses  we  submit  stand  in  exactly  the  same  position. 

My  friend  has  taken  the  trouble  to  cite  a  large  number  of 
authorities  to  elucidate  this  point — what  is  tlie  proper  measure 
60  of  dauuiges  in  a  case  of  partial  loss,  or,  the  measure  of  damages 
wdiere  a  vessel  Idis  not  been  seized,  bul,  simply  detained.  I  am 
not  going  throujjli  these  authorities  to  any  great  extent  because 
they  are  all  subject  to  the  same  defect,  so  far  a»  this  case  is  con- 
cerned.     There  is  not  one  of  them  which  he  can  cite  that  has 


40 


^v 


08 


(Mr.   h'ti'is'  Aryniiu-nt.) 
tl Iciiiciil  111"  ind'iilii!  I  to  caiisr  tin-  actiml    injury    timt  wan 

t'illlM'll. 

'I'lii'ii-  is  iiiH'  CISC  I  wiMiM  like  (i)  citll  viiiir  atti'iitiiin  purticu- 
larlv  tl'  liccaiiM'  it  nuiics  ilic  iicari-st  (u  liaviii;^  tin-  iiiti'iilion  in 
it  than  any  case  tliat  has  liccn  ritcil.  That  is  Urown  iij^aiust 
Smith,  cilcil  un  |>a;;i'  1'2+  iif  my  iVirnil's  ai'^^nnn'iit,  ami  it  is 
10  ii|Miilcc|  in  l*J  Cii-hin;;,  .'tiKI,  .\i  (iist  si^hl  it  appiand  |o  mo 
that  this  ra>i>  canir  vriy  ni'arthf  |Miihl  as  hrin;;  a  casi'  whrrcthi' 
man    haij     the   intention  nf  cutumit  in;;     thr   injnry     which    was 

"jniii'.      I'lir     I'.iitsiir     tl asc     wiTc     tlicsc:      A     master  was 

i'm|i|ciyfii  as  cajiLiin  <it'  a  whalin;;  Vessel,  unij  while  lie 
was  iiut  iin  ihe  viiya;;;e,  after  he  hail  Keen  some  time 
at  sr.i.  lie  ;;iil  tireil  ul'  whalin;,',  ahanilnneij  the  vuya;;e 
aii'i  an  ariinu  was  linai;,'!ii  ehiimin;.;  IVum  him  <lama;;e.s  for 
the  loss  111'  the  \nya;;e  aii'l  i'lir  the  liiss  III'  the  tishiii;;  ami  all 
tiiat  suit  tl!"  ihiii;;.  They  ln'M  in  that  case  that  reasimalile 
0()  i|.iiii,i;;es  I'ur  IneaUin;;'  tljillie  \  iiya^Je  <'i  illjil  he  ulilaineil,  hut  that 
ciiiijeetiiiai  or  ["'■'•-ilile  |iiiilils  III"  11  whaling;  \iiya;;e  caninit  lie 
taken  intii  ciiiisi'leiation  in  estimatin;;  the  (lania;;es.  It  struck 
meat  liisi  si^ht  that  that  a|i|)eareil  tn  lie  a  case  rather  a;,'ains( 
(iiir  ciinteiitii'ii,  I  r  miu'hl  he  tiseil  as  slmwin;;  that  there  was 
siinietliiii;^  like  ail  intentiiin  tn  cause  the  llama;,'!'  that  was 
caiiseil.  However,  w  lu'ii  We  coiiie  to  look  at  the  matter  ami  sec 
liow  the  case  came  n]!.  it  really  a|i|pearei|  that  t  he  decision  iliil 
not  amount  to  th.il.  Tin  jury  i'oiniil  a  verilict  for  the  plaintill 
aii'l  the  ilefemlant  tonk  the  case  up  on  motion  to  .set  it  asiilc  on 
Hi)  the  ;;rounil  of  misilirei'tion  hy  the  court.  The  Jtify  were  in- 
siriuleil  lliat  the  plaiiilitr  was  ako  entitleil  to  reasoiiahlc 
il,pma;;es  for  tlie  lireakin;;-  up  of  the  voya;.'e,  hut  thai  no  con- 
jiiiural  or  possilile  profits  of  a  wlialin;.;  voya;;e  couM  he  taken 
'  into  eoiisideialion  liy  the  Jui'y  in  est  imat  in;,' such  ilama;;es.   'I'he 

(iefeiidaiil  eouM  Hot  oliject  to  that  part  of  the  cliarp'  that  tolil 
the  jur\  ihi-y  uiusi  not  timl  conjectural  ilama^je.s.  He  ohjecteil 
to  ilial  part  of  the  ehar;;e  which  ;;a\e  the  plaintill'  any  ilama;,'es 
at  all  for  the  tu'eakiii;;  up  of  the  voya;,'e.  The  jui|;,'ment  was 
;;i\eii  ami  the  ilei'eniianl  s  oliject  ion  was  not  reeii;,fni/ei|  ami  the 
4(1  juilnineiit  had  to  slaiiil.  They  saiil  that  the  rulin;;  on  t  he  ipies- 
t ion  of  llama;;!  s  was  correct.  ( )f  course,  the  defendant  could 
have  no  olijection  to  that  part  of  the  char;;e  that  tlu'  plaintill" 
could  mil  recover  conjectural  dama;;es.  All  the  other  ciises  arc 
suhjiit  III  the  very  oliji'dion  I  lia\e  stated  with  re;;ard  to  other 
matters  thai  none  of  them  come  u|i  to  the  point  of  sliowin;; 
that  there  was  any  intention  to  causi>  the  actual  injury  which 
was  causi'd.  \\\  can  he  explained,  or  all  can  lie  shown  to  he 
ditt'ei'i'iit.  i)n  that  >^i'ound.  Mill  I  do  not  intend  to  take  up 
the  lime  of  yunr  Honors  hy  e;oiu;;  thrnu;;h  these 
,j()  authorities,  Ui'CiUisi'  one  Inoad  distinction  covers  them 
all,  and,  if  \  ttni  ri;;lil  in  my  contention,  ii<>  distinction 
lielween  a  wvvv\u>»;i  and  actual  .seizure,  and  therefore  1  think  I 
can  leave  tlial  \ioint  wheri'  it  is.  If  my  learned  fiiond  after- 
wards makes  mil  that  a  distinction  does  exist,  I  will  have  an 
opiMirtuiiity  to  answer  iiim  in  my  reply.  At  the  present  time  it 
a|ipears  to  us  that  there  is  no  distinction  wlmtevt'r,  and  that 
therefore  we  are  entitled  to  dama;;cs  in  liotli  cases  for 
jirospecti  ve  catch. 

Now,  that  is  what  I  jirojiose  to  say  to  jour  Honors  upon  this 
(iO  (piestion  of  jirospcctive  catch.  We  claim  it  is  tho  direct  con.so- 
queiice  of  the  act  that  was  done  hy  tho  ofticers  of  the  United 
States.  We  claim  that  the  act  was  done  with  an  intention  and 
purpiwe  to  cause  that  injury,  and  that  being  the  cn.se  we  are 
entitled  to  damages.     We  claim  the  authorities  show  that  where 


(Mr.  I'l'tcrM'  Ar^uiiwMit.) 


(lie  ii"t  wiiH  intent ioiml  ami  wilful,  us  it  was  in  tliiH  case, — I  tlo 
iii)t  UNI' tli*-.si-  wtM'ils  in  any  Iiiii'hIi  sense  hut  the  act  was  in- 
tenliiinal,  the  aet  was  wilful,  ami  whei-t>  that  is  the  case  the 
authorities  that  I  have  rea<l  say  that  the  ciuestinn  is  tint  thcsanio 
as  it  wouM  he  whei'e  the  wi'on^  was  not  inlenilvd. 

Mr.  Uickinson  :   -Tponlhat  i|Uestion  I  a.ssuuie  that  u\y  learned 
10   fi'iend  will  eite  any  authorities  on  the  doctrine  of  intention  that 
III'  may  have  at  this  time. 

.Mr.  I'eters:  -I  do  not  j)ro|)ose  to  cite  any  authority  without 
;,'i>iii;,'  my  leai'ned  friend  full  notice  of  it.  If  I  should  discover 
any  new  authority  which  [  ])ro|)ose  to  cite  I  shall  certainly  n\y*> 
him  ample  opportunity  to  see  the  authority  and  to  comment  u[>oii 
it. 

Now,  there  is  one  remark  which  I  wish  to  make,  (n  the 
hrief  Nuhmitleil  hy  n»y.self  and  my  a.s.sociates,  we  cite  certain 
authorities    from     writers  upon    Civil    Law.       These    will     Ihj 

20  found  in  the  chapter  on  the  Measure  of  Dama^^es,  pa<;es 
22  to  24.  Now,  I  think  there  is  a  misapprehension.  My 
learned  friend  comments  upon  this  at  pa^i^  I'Xi  of  his  ar);ti- 
nient.  You  will  notice  lliat  Pothier  says:  "The  principles 
which  we  have  hitherto  estahlished,  do  not  fail  when  it  is  the 
fraud  of  my  ilchtor,  etc."  Now,  the  word  "  fraud  "  is  used  in 
many  instances  through  that  passaj^e,  and  it  is  al.so  u.sed  in  the 
passai,'es  cited  from  the  ("ode  Napoleon.  My  learned  friend  com- 
ments u])on  this  at  pa<;e  1H:{.  lie  .says:  ': The  ipiotations  from 
i'otliier.  Laurent,  and  from  Memolhe  reijuire  hut  two  comments : 

no  Kirst,  these  arc  cases  of  fi'aud  ;  and,  Hect)nd,  it  need  hai'dlv  Iw 
saiil  that  the  rule  of  ilama;;es  under  the  civil  law  ditl'ers  from 
that  of  the  connnon  law,  and  has  no  ap|>lication  here,  neither 
has  any  code  which  has  the  civil  law  fta*  a  pai'eiit.  " 

I  think  my  leained  friend  will  find  that  in  niatters  inter- 
national if  there  is  a  ditlei-ence  lietween  the  civil  law  and  tlio 
common  law  the  civil  law  will  he  adopteil.  Hut  with  re;;ard  to 
the  woril  "  fraud  "  that  he  vises  there,  it  does  not  mean  fraud  in 
the  sense  used  hy  our  Kn;;lish  writers  upon  common  law.  It 
means  .somethin;^ — for  instance,  culpahle  nei^lijrence  is  fraud.     It 

40  is  the  rlislinction  hctweeii  a  tortious  act  and  one  that  is  not  ft 
t'li'tioiH  a-'t.  It  has  a  murh  hroader  meanin<;  in  the  civil  law 
than  it  does  at  connnon  law.  The  author  is  drawing  a  dis- 
tinction not  hetween  fraud  as  we  understand  it,  hut  Himi)ly  a 
tortious  act.  adiHerent  thing  altoi,'ether.  My  learned  friend  com- 
ments upon  that  as  if  fraud  was  construed  as  it  is  hy  our  Knjjiisli 
authors  wheie  it  is  u.sed  in  the  contractefl  .sense,  as  something;  of 
a  dero^ratory  natun.':  whereas  Pothier  uses  it  in  a  nujch  hroader 
sense.     .So  nuich  with  re;;ardto  that. 

Now,  your  Honors  will  excu.se  me  for  takinjj  up  ho  much  time 

50  upon  this  ipiestion  of  prospective  catch,  but  tlie  amount  of  dol- 
lars au'l  cents  involved,  which  depend  upon  the  decision 
of  this  (piestion,  is  so  large  that  I  deemed  it  my  duty 
to  ff)  pretty  fully  into  the  matter  and  bring  before  your 
Honors  as  clearly  and  as  forcibly  as  I  could  the  authorities  that 
bear  upon  the  matter.  The  conclusion  to  wliich  we  come  from 
these  authorities,  so  far  lus  we  make  them  out,  is  this.  In  mat- 
ters of  international  dispute,  claims  of  this  kind  have  heretofore 
been  allowed,  notably  in  the  '  Geneva"  case  and  other  cases  that 
I  have  cited.     They  have  also  been  allowed  in  collision  cases  iu 

60  the  Admiralty  Court.  In  collision  cases  where  they  have  not 
been  allowed  there  has  been  the  v.-ant  of  element  of  intention. 
The  cases  in  Prize  Courts  have  no  application  whatever  to  this 
case  for  the  element  of  intention  does  not  arise.  These  are  the 
principles  upon  which  we  place  this  claim. 


o 


1 . 


I 


70 

(Mr.  I'l'tfTN'  Arjfiimi'iit.) 
Niiw,  I  Imvf  nil.'  wiinl  iiKirc  to  niiv.     Wf  Miihniit  tliiit  in  «|U«'h- 

(iiillM  iif    tllin  kiml    lirtwrcll    two  ^I't'llt    llllliulis    wlict'f    u   (liN|illttt 

liiiH  iiriNi'ii  will)  I'l'^riii'il  to  till'  I'laiin  nl'  our  ii|iiiii  aiintlifi',  tliat 
wlirii  ill  till*  ciiiii'M'  III'  tliiit  iliNpiiti-,  i'lir  thf  |iiir|)<iMt'  of  l)riii|;iti^ 
till'  ilispiili'  til  a  III  nil,  till'  ri^lits  nf  jirivatc  imiiviihialH  who  liavi- 
liiM'ti  iiijiiri'ij  ail'    Niiliiiiilli'ii   In  iirliitratinii.   tli<-    iiatiuii   wlio  in 

10  a^ki'il  In  rii|ii|ii'tiNiit<'  tlii'lil,  ><liiillli|  lir  anki'il  tii  ilii  so  witll  II 
iilii'iiil  liiiinl.  ami.  iii^ti'inl  i>f  i-anl'iilly  Ncaiiiiiii;;  i-vri-y  ili'iii, 
wlii'iii-vi'i'  it  is  |iiis.silili'  til  ilii  s<i,  tlii-y  mIiiiiiIiI  \»'  di'iilt  with  in  tin' 
tiiii.st  liltrral  iiiaiiiifr.  I''ni'  iiiHtaiici*,  iimli'i'  tlii.s  iiriul  nf 
|iriis|)rctivi>  catcli,  if  tlir  ciiiirt  nIhuiIiI  coiiit'  to  tli<'  ctiiii'lusiiin 
iliat  \\r  arc  nititliil  to  tlint  itiiii.  tiny  hIihuIiI  a])|ily  tn  tliiiii  tlio 
innf<t  |;i'iii'i'iiiiH  nili' ;  tn  ii^r  till'  wnnls  that  \vi'  havr  put  in  niir 
hriff  "till'  <l«iiia;;i'H  hIhiuIiI  lir  ushcnm'iI  in  such  a  way  as  tn  Iriivi' 
iinilnulit  that  I'Mrli  iiuli viiliial  who  waM  injui'rii  liy  thr  action  of 
till'  I'liiti'il   Stall's    sliniilil   III'   ('nni|ii'iiMati  il    in    thr    fiillt'st    antl 

20  aiiipli'Mt  iiianni'i'."  That  in  thr  iiriiii'ipli'  wr  claiiii  Nhntihl  liu 
ai|i>|i|i'i|  with  rt'frri'iK'f  tn  jiriispirtivi'  ratch.  It  is  thr  iniiiciplo 
that  has  lirrn  ai|npt«>il  hy  ail  trilmnals  that  have  litnl  tliis  (pirH- 
tiiin  lii-fni'i-  thciii.  Taki'  tin-  inaiiiiri'  in  which  the  (icncvii 
nwanJH  were  iiiaih-.  Whiit  <liil  they  iln  :•  The  iiiimite  ( irent 
Uritain  was  fniiml  In  lie  wiiin<^  the  Arhitratinn  tnnk  very  little 
time  iipnii  the  ijiieNtinii  nf  (laiiiap's,  hut  Ncttleil  tliein  on  a  scale 
(if  the  iiinst  liheral  kiln).  I.iink  at  the  i|lleNtinll  nf  the  ilailinp'H 
claiiiieil  in  the  'Cnsta  Uica'case.  Theaiiinimt  nf  <laiiia;;es  nctiially 
pi  veil  wusiiinch  lar^jer  than  theaiiiniiiit  claimed.    I  say  that  wlieii 

I'lO    the  en:  e  cnlllesilnwil  tn  a  i|l|i'stinil  nf  cnliipelisat  inn  there  siinillil  be 

no  ijiiuht  left  in  the  minil  nf  any  persnn  that  the  compcn- 
Hatinii  allnweil  is  as  full  ami  amjile  as  pnssihie.  I  feel  satistieil 
that  my  learneil  frieinl  takes  the  same  view  nf  it,  liuiL  when 
the  ciise  comes  ilowii  to  a  i|Uestinn  nf  ilnllars  Mini  rents  he  docs 
not  want  any  item  nf  iiama;;e  which  this  Trihunal  tliinks  to  be 
n  prnper  item  tn  he  <,nveii  in  auythin;;  hut  the  nin.st  ample  nil  full 
inanncr.  In  the  "("nsta  Rica"  ca.se  the  claim  tileil  hy  the 
claimants  ainnunted  tn  .C-.'iOO  and  the  damape.''i  allnwcd  were 
£.'J,l."iO.     That  was  fnr  dainafjes  tn  the  master. 

4  There  is  another  i|iiest ion  upon    which    we  are  at    i.s.sue.     We 

claim  that  the  proper  cniirse  tn  he  |iui'sui'd  hy  this  'I'l'ihunal  is  to 
a.sMcss  all  the  dania^jes  under  all  the  heads—  damages  fnr  value 
tn  the  ship,  the  prnspective  catch  and  all  other  daiiiap'M,  add  them 
nil  iipaiid  then  coiiipiite  upon  this  amount  interest  at  a  certain 
rate  from  the  time  the  injury  was  done  until  the  present  time.  My 
learned  friend  Joins  issue  >\ith  me  to  a  certain  extent.  He  dncH 
not  altn;,'ether  claim  that  we  are  not  entitled  tn  interest,  but  he 
claims  that  we  are  only  entitled  tn  interest  iipnn  certain  specific 
items.      lie  says  if  you  are  tn  ;;et  deiiiurra;;!',  or  if  you  are   to 

50  pet  prospective  catch,  or  anything  of  that  kind,  you  arc  not  to 
pet  interest  upon  it  :  3011  may  pnssihiy  he  entitled  tn  interest 
upon  the  value  of  the  ship,  upon  the  irxt  the  thiiip  that  was 
tnkeii,  hut  no  further.  I  join  issue  with  him  entirely,  and  we 
Htnmi  iijKin  this  proposition,  that  intereHt  is  a  proper  item  to  ho 
taken  into  considerntion  in  all  matters  betwe«'n  nutioiiH  where 
questions  of  conipensation  roiiie  up.  It  fornm  a  pnrt  of  the 
coinpensntioii,  and  we  take  the  prniiiid  further,  tlint  there  is  no 
diH'erence  wimtever  whether  it  is  upon  the  property  taken  or 
what  tlie  nature  of  it  is. 

60       I  will  cite  now  at  the  very  outset,  this  case  of  tlie  "Costa 
Rica,'  where  thin  i|ueHtion  amo  came  up.     You  will   find   the 
judpment  on  the  very  last  page  of  our  reply,  page  18. 
tor  these  reasons : 
"  I  declare  the  Government  of  Her  Majesty  the  Queen  of  the 


71 


(Mr.   IN'tiTu'  Arpmudit.) 

NitlicrlaiulM  ri'Hjxiiisililc,  iiiid  I,  c(inHfi|ueiitly,  fix  tho  itidcinnity 
Ui  Ih'  |iaiil,  at 

"Till'  Hiiin  liital  i>f  £:»,!;■>()  tn  Captain  C'ar|i<iitt'r. 

"Till'  Hiiiii  liital  III'   1 1. (»(>(>  ti)  lilt'  iiHiffi-ii  ami  crow. 

"  Till'  Slim  li'til  of  .i;:i,S(K)  ti>  tlif  uwiiiTM  of  till'  vi'Hm'l   "  ('onta 

Hii-a  I'ai'ki't." 

'  With  iiitiifst  nil  all  tlii'.><r  i'liarj,'i'.s  at  tin-  rati-  of  5  por  font. 
"  MIT  Miiiiiiiii.  Iriiiii  till'  -ml  Nnvi'iiiliri',  JHIH,  till'  ilati;  i)f  the 
"  illc';;al  airist  nl'  Cniitaiii  ('Mrpi'iil"'!',  ami  I  put  tin-  rxpi'iisi-.s  at 
"till'  tntiil  sum  i>f  .t2."iO,  tu  lie  paiil  liy  tlio  <  liiviTiuiu'iit  ol"  Her 
"  .Maji'Mty  till' <7ii>'i'ii  uf  till'  Ni'tlirrlaiid.s.  ' 

Sii  lii'i'i'  Ih  a  lii.Hlimt  lii'cisiun,  tlif  viry  lati.st,  iiiiuli'  liy  an  in- 
tiTimtinnal  lawyiT  nl'  ;,'roat  ropiito,  tliat  in  making;  up  liiH  coni- 
pi'iisjitinri  111'  wiiulil  allitw  inliTiNt  fniiu  tlio  tiiiii' nl'  tli"  ni'i/uri' 
(ir  till'  anrsi  in  tlial  partii'ulai'  ra.Ho.  Tlii'ii,  wo  I'liiiii'  tu  another 
iiiitliiii'ity,  I  rrfiT  yiiii  also  to  a  casi'  wliirh  1  dn  not  think  is  oiti-d 
20  in  my  i)ri;;iniil  lirii'i',  liut  is  roliid  upmi  \>y  n»y  loarni'd  friond, — 
till'  .'aNi'  III"  till'  Canada  '  In  that  award  hy  Sir  Hicluird 
Thornton,  ho  niakoH  up  at  tho  ond  of  it  a  dotailod  Ntatoniont  of 
till'  diU'oront  itonis  wlnoli  li<'  I'uvo.  I  want  to  oall  thi;  attontiun 
of  tho  oourt  to  till'  naturo  of  tin'  ■  itom.s.  In  tho  first  plaoo  he 
allows  tiio  ship  !<l(>,()()();  tlion.  Im  propnration  !:<:i*J,()()U ;  thon.  a 
oortain  amount  for  oil,  and  a  oi  rt.iin  amount  for  food  and  cloth- 
ing;, and  for  tho  passajjo  of  'id  moii  to  tho  I'liitid  States;  throe 
inontlis'  |iay  of  tho  inato  "i  crow,  iind  tlu'  wiiolo  tiling  aniountH 
to  ?<.").'i,l)(i:<.  And  thon  ho  addsthi.'  itoii,  ,  '  Intorost  at  (!  percent. 
30  for  I'ih  years  from  Doconilior  1st,  iSoti,  to  .June  Ist,  1K70,  making; 
8-l-">,OI)0  iii'iro."  So,  in  that  emo.  In  ijavo  iiitorost  upon  ail  the 
items  claiiiiod.  Tiiat  is  a  dooisimi  which  appears  to  he  a^aiaift 
tlioiii  on  that  {..lint. 

1  mi;;lit  also  rofor  a;,'ain  tu  another  case  not  roferriHl 
to  in  my  liriof  upon  that  point,  and  that  is  a  ca.so  cited 
liy  mv  frii'iid  tho  '  .-Vmialilo  Nancy,"  wliidi  is  re- 
ported in  I{  Whoaton,  •")<••■<.  'I'ho  judgment  jjivo.s  tlie  items 
on  paj;e  .'>.')(!,  so  mucii  for  tlio  loss  of  tlie  owner  of  the 
sciiooiior,  oxpon.sos  duriiij;  iior  dotoiition,  etc.,  and  tiion  intore.st 
is  addod  on  tlioso  sums  at  tho  nito  of  10  per  cent,  from  tlio  Ist 
of  .lanuary,  LSI."),  to  tho  Ist  of  Siptonihor,  1SI7,  two  years  and 
oi;,'i;t  months. 

riioro  is  another  case  I  will  refer  your  Honors  to  in  1  Ung- 
pirt,  l)a;;o  MO.'),  'i'liis  was  an  applic.ition  to  lirin;;  certain  prize 
money  into  coin-t,  and  it  was  ordered  that  it  siiould  bo  hroujfiit 
in  and  application  was  made  for  one  per  cent,  interest  a  laontii, 
ami  tiiat  order  was  al.so  made. 

Now,  passini;  from  tlio  cases  liotwoon  parties  to  otiier  caaeH 
between  nations  it  will  lie  found  tiiat  interest  is  allowed  in 
60  almost  every  ca.so.  In  some  cases  interest  lias  not  Ix'on  allowed. 
In  tiio  ca.so  when"  Mr.  Mates  was  tiio  Aliitrator,  wliicli  I  liave 
already  referred  to,  lie  did  not  jjivi-  interest,  but  that  case  cuiues 
before  us  witii  no  standing;  of  tlio  Arbitrator,  as  an  inter- 
national lawyer. 

At  one  o'cloclc  tlie  Coninii.ssionors  took  recess. 


40 


jueen  of  the 


At  half-past  two  o"cliM>k  tiie  ClommiHaiimorH  resumed  their  aeattt. 

Mr.  Peter.s: — Your  Honors,  when  the  adjouninient  took  place 
I  was  pr(Kreedi"v'  to  make  some  remarks  with  regard  to  the  case 
60  of  the  "  Canada  .  Tliat  case  is  commented  upon  by  my  learned 
friend,  Mr.  Dickinson,  in  paije  1411  of  his  nrfjument.  He  com- 
ments on  the  quotation  thai  was  made  from  the  "  Canada"  case 
in  our  brief  in  the  following  manner :  . 

"  Ihe  award  of  Sir  Edward  TUomton  as  umpire  in  the  case 


M 


t    I 


■fvispvv^^WMrnr  tmj]f9  i|^.i 


i 


■' 


72 

(Mr    Pi'tors"  Ar>j;unu>iit/) 

"  of  tlir  Uiiitfif  Stiitfn  aijiiiiisf  HiukU  is  cltvil.  Tliis  ciisc  lias 
"  U't'ii  lumly/.t'tl  ill  this  Krjjuim'iit,  ami  it  iij^poars,  an  Sir  Houiult'll 
"  I'lilinor  Mtatos,  that  the  tltrisioii  |iroci'('(liMi  u|>(>n  '  ordiiiarv 
"judicial  jiriiu'iplcs',  and  he  rccitt'.s  tlic  t'sju'cially  rockli'ss  ami 
■■  wilful  character  of  the  wronjj  in  this  sci/.nrc  ci>iimiittc<l  hy  the 
"military    forces     of   Hra/.il,    the    ship   heinj;   then    under   that 

10  "  nation's  jn-otect ion.  He  further  shows  (as  does  the  Record) 
"that  'the  jiayment  of  the  couiptMisation  and  indenniity,  thoujjh 
•'  promptly  claimed  at  the  time,  was  for  many  years  delayed  '  ". 
I  think,  your  Honors,  this  .same  remark  niii;ht  he  math'  with 
rei;ard  to  the  cases  hefore  us,  my  learned  friend,  Mr.  |)ickii».si)n, 
continues  in  his  written  ar;;timent  to  say  : 

"  I'he  '  ordinary  judicial  principle'  to  which  Sir  Uoundell 
'.'  Palmer  adverted,  demonstrates,  as  he  .shi>ws,  that  that  ca.se 
"  came  within  the  rules  where  iiitt'rest  should  he  ;;iven  in  tlie 
"way  of    damaijes    as  for  a    reckless    or    malicious  tort,    and 

20  "also  irhfi-f  thrir  has  hem  '  inireusoimhlii  ii<lity'  in  the  payment 
"of  the  compensation,  when  promptly  claimed,  and  withaniin- 
•' tlis|)uted  hasis  for  it,  .set  forth  in  the  claim". 

Now  hearinij  in  mind  these  remarks,  let  me  refer  a>;ain  to  the 
award  of  Sir  Kdward  Thornton,  as  we  (ind  it  at  l>a}je  2()!>  of  tho 
British  and  Korei;jn  State  Papers,  Volume  2(i().  This  is  what 
Sir  Kilward  Thornton  says  with  rej^ard  to  interest  : 

"  In  the  ]>resent  case  tliis  ohjection  (that  was  the  objection  a8 
"  to  prospective  catcti)  has  more  force,  inasmuch  as  the  "  Canada  " 
"  was  comm.inded  hy  a  captain  who  very  little  after  sunset  and 

no  "before  it  was  dark  ran  his  shiji  a;^roinid  on  a  reef  of  whose 
"  existence  and  position  he  oujjht  to  be  aware,  still  the  inider- 
"  sij^ned  cainuit  admit  the  validity  of  any  ar;jument  that  woulil 
"exempt  the  Imperial  (lovernnient  from  the  ]>ayment  of  in- 
"terest.  If  the  claim  itself  can  be  maintained,  of  which  the 
"arbitrator  has  no  doubt,  the  claimants  have  a  ri>^ht  to  interi'st.' 
Sir  I'idward  Thornton  does  luit  j)Ut  the  claim  for  interest  on 
any  ipiestion  as  to  whether  the  wroii};  was  a  wilful  or  nialieious 
wroiii^.  or  as  to  how  the  delay  was  cau.sed  in  the  settlement  of 
the  claim,      lie    puts  it  on  a  dearer  and    more    understandable 

40  tjrounil.  namely,  that  if  the  claim  it.self  was  a  proper  claim,  aluiut 
which  he  had  no  doubt,  it  followeii  as  a  matter  of  course  that 
interest  shiiiild  ;;o  with  it.  The  remarks  made  by  opposinj; 
counsel  in  thiseoniiection  appear  to  me  to  be  without  any  weie;ht. 
In  the  "  Canadu  "  case,  as  1  have  stated,  they  allowed  the  interest 
from  the  timeof  the  seizure  until  the  time  of  the  award,  a  period 
of  \',i  years.  We  have  in  our  brief,  your  Honors,  set  out  several 
other  international  cases  at  pai;e  'i'>.  \Vt>  first  cite  from  the 
arj^ument  at  (ieneva.  and  we  say  "so  in  the  ca.se  of  an  award  for 
"  daniajjes  by  the   Kinperor  of   liussia.   in  a  (>laim  of  the    l'nite«l 

."iO  "States  apiinst  (ireat  Ih'itain,  under  the  Ti-eaty  of  tJhent,  ad- 
"ditional  damaj^es  were  awarde(l  in  the  nature  of  dama>;e8 
"(interest  M  from  the  time  when  the  indemnity  was  due.  In 
"that  ca.se  Mr.  Wirt  holds  that,  accordinj;  to  the  usaj;eof  nations, 
"interest  is  due  on  international  transact ion.s.  " 

We  cite  hei'o  on  this  .same  paije  ',\!\,  all  these  statements  from 
the  ar^junient  of  the  Tnited  States  at  tJeneva,  and  that  arjju- 
nient  comes  Itefore  us  in  this  nuinner.  Not  only  did  the  I'nitcd 
Strttes  argue  that  they  were  entitled  to  interest,  but  they  suc- 
ceeded in  gettitifj  it,  and   the   wliole  tribunal  were  uimiiinivnis — 

00  I  think  1  am  rijjht  in  saying  this  I — that  interest  was  a  j)rop«>r 
subject  to  be  obtained.  Then  again  we  cite  in  our  argument,  the 
argument  for  the  Ignited  States  as  placed  before  the  Ueneva 
tribunal ;  and  we  cite  the  argument  of  Sir  Koundall  Palmer  in 
answer  to  that,  so  that  the  positigii  of  the  two  nations  can  i.iirly 


It   wa.s  II  jiroper 


73 

(Mr.  IMiTs'  Arjjuiiu'iit.) 


bo  jiitlijt'il  of  hy  l<M)kiii;;a(  tltf  ojiposinj;  iirfjimu'uts  iis  tlicn  pre- 
HciittMl.     lirn't'crrinj;  to  tliost-  ai'<;uiiifiits  we  say  in  i>ur  brit'f : — 

•'  III  iiii.swcriiii;  tliism-jjiiiiH'iit,  Sir  Koumlfll  Paiiiicr,  (or  (Jrotit. 
"  Britain.  rcfiTrin;;  to  tlic  ca.scs  inidtT  tlif  .lay  Treaty,  citi'd  by 
"  the  I'liitcil  States  (."tmn.st'l.  says  : 

"This  apiin,  was  a  ease  ot"  thcawarii  of  interest  on  a  priiieipjil 
10  "  value,  aetiially  ascertained  ami  jirovi-d  to  be  reooverabie  by 
"  ai)|>ro|iri;iti'  evideiiee,  in  re.sjiect  of  property  lieloii^jin;;  to  eiti/eiiH 
"  ot  the  I'liited  Stati's,  wiiieh  bad  iieeii  sei/eil  and  iqipropriateil, 
"and  unjustly  detaiiuMJ,  and  (in  some  eases)  sold  or  ollierwim- 
"  disjiosed  of  for  their  own  beiielit,  by  |ieisons  aelinj^  iliiiler  the 
"  jiulilie  authority  of  the  Crown  of  (ireat  I5i-itain.  In  Indli 
"  these  es.s.sentiai  points  this  ])reeedent  of  I"!I4  stands  in  direet 
"opposition  and  eontrast  to  the  elainis  now  hefore  the  present 
"  triiiunal." 

That  was  the  nrfjuiiient  then  presented  for  (Jreat  Ifritain, 
20  namely,  that  the  amount  was  not  aseeitained.  and  that  they 
eould  not  allow  interest  on  it  ;  liiit  notwithstanding  that  ar<;u- 
iiieiil  interest  was  allowed.  We  have  therefore  the  faet.that  the 
I'laiiii  was  iiiaile  by  the  I'nited  States,  we  have  the  ^^round  upon 
whieh  it  wa.s  made,  we  have  the  opjiosin;;  i;rounds  of  ( ireat  Mritain 
and  wf  tinally  have  the  uiianiinous  award  of  the  Tribunal  hoKi- 
ini;  that  interest  shoulii  be  allowed.  'Ihat  (ieiieva  ease  is  a  direct 
authority  upon  the  tiuestion  of  interest. 

If  your  Ho!u>rs  will  follow  on  with  the  brief  as  \vt'  have  pre- 
sented it,  you  will  find  that  we  make  a  i-eference  to  the  opinion 
30  of  the  I'liitecl  .States  Attorney-* ieneral  Wirt  in  a  case  in  whieli 
the  Kinperor  of  Ku.ssia  was  arbitrator  between  the  I'liitiMJ  States 
and  Hra/il.  Mr.  Wirt's  ar;;ument  upt>ii  that  point  appears  to  iim' 
to  be  very  stronj;,  and  I  have  stated  it  at  pa<;e  ,'U).      Mr.  Wirt  says: 

"  1st:  Is  interest  a  part  of  the  indemnity  awarded  by  tlie 
Emperor  ?" 

Anil  a  little  further  down  on  the  same  Jtap' :  — 

"  After  the  most  th'lilu'rate  consiileration  of  all  the  ar^jumeuts 
"  which    have    been    uifjed,  pro    and  eon,    1   am  clearly    of  the 
"  opiiiitm  that  iniei'e.st  at  least  is  a  netvssary  part  of  the  indeni- 
4(*   "  nity  awanled  by  the   Kmperor." 

.\iiil  at  pH;;e  ;{|   lie  makes  the  followinj^  remarks: — 

"  .\iid  then  the  only  remaining;  eiujuiry  is,  what  is  the  awards 
"  It  is,  that  the  I'niti'd  .States  are  entitled  to  a  just  indemnifi- 
"  cation  for  the  slaves  and  other  jtrouerty  carried  away  by  llu' 
"  British  forces,  in  violation  of  the  iir.st  articles  of  thi' 
■  treaty  of  (ihent.  What  is  just  indemniticatioii  for  a  wron^  i* 
"  Is  it  the  reparation  of  the  one  half  or  two-thirds  of  that 
'•  wrone;  I*  Is  it  anythinj,'  less  than  a  reparation  of  the  whole 
'•  wrone;  /  On  these  few  simple  ideas  the  whole  i|Uestion  turn.s. 
60  "  If  an  injury  is  ju.stly  reel. es.sed  which  is  only  half  redre.s.sed. 
"  then  the  British  Commissioner  is  riijht  ;  but  if  an  injury  isonlv 
"redressed  when  the  redress  is  coiiieiisurnte  with  the  whole  ex- 
"  tent  of  the  injury,  then  he  is  wroiij;.  Let  us  put  asiile  the 
•  emphatic  and  strikiiij;  word  just,  and  take  the  word  iiidenmi- 
"ticat ion  alone.      What  does  the   word   '  iiidemniticat ion'  mean  (• 

I  think  that  the  word  'compensation',  and  "  indeuinitication" 
arc  synonoinous  a.s  far  as  we  are  conoenied  in  this  cttsc.  Attor- 
ncy-(ieneral  Wirt  ^oes  on  to  sav  : 

"  The  .saviiifj  harmless  from  daiij;er.  Is  that  man  .saved  harni- 
t60  "  less  from  .ii.iifjer  who  is  left  to  bear  one-half  of  the  dnnmjre 
"  him.self  '  The  ipiestioii  seems  to  nic  tiK)  plain  for  di.scussiou. 
"  Tlie  British  Commissioner  (Sir  .lohn  Nicholl),  who  composed 
"part  of  the  boftrd  under  the  seveutli  article  of  the  treaty 
"of  1794,  BoeniH  to  have  eiiterUiined  a  very  ditl'ereiit  opinion  on 


1  ^  '^f 

r^n 

1            J  ilM 

i 

•1      ll'lli 

10 


20 


30 


40 


50 


60 


u 

(Mr.  Peters'  Argument) 

"  this  aubject  from  Ihh  coHntryman  who  is  now  Hitting  to  execute 
"  the  Emperor's  nwaitl.  His  words  are :  '  To  reimburse  to  chiim- 
"  ants  the  original  cost  of  their  property,  and  all  the  expenses 
"  tliey  have  actually  incurred,  together  witli  interest  on  the 
"  Avhole  amount,  would  I  think,  be  a  just  and  adequate 
"  compensation. ' " 

I  ask  your  Honors  to  note  the  words  "  upon  the  whole 
Amount;"  not  upon  simply  the  value  of  the  property,  but  upon 
the  whole  amount  of  the  damjiges  which  should  originally  have 
been  paid.     Attorney-Oeneral  VV'irt  continues , 

"  This,  I  believe,  is  the  measure  of  compensation  usually  mad* 
"  by  all  belligerent  nations  for  losses,  costs  and  damages 
•'occasioned  by  illegal  captures.  Now, at  the  time  of  the  wrongs 
'*  now  under  consideration,  we  were,  as  to  Great  Britain,  neutrals 
•'  and  friends ;  and  stood  protected  by  the  most  sacred  of  all  in- 
■'  struments — a  treaty  of  peace: 

"  In  violation  of  this  treaty,  the  slaves  and  other  property  of 
"  American  citizens  were  carried  away  in  the  year  1815,  and 
"  have  been  detained  from  them  ever  since.  They  have  thus 
"  lost  the  use  of  this  property  for  eleven  years.  Is  the  meagre 
"return  of  the  average  value,  at  the  time  the  slaves  and 
"  property  were  thus  taken  from  them,  a  just  indemnification 
"  of  the  whole  wrong  ?  That  the  act  of  taking  away  the 
"  property  was  a  wrong,  is  no  longer  a  question.  Whatever  dis- 
"  position  there  may  b<»to  make  it  a  (juestion,  it  has  been  settled 
"  by  the  tribunal  of  the  party's  own  choice,  and  can  no  longer 
"  hp  made  a  (juestion.  The  first  act  of  disjMSsession  being  thus 
•*  established  to  be  a  wrong,  is  the  continuance  of  that  dispos- 
"  session  for  eleven  years  no  wrong  at  all  ?  Is  it  consistent  with 
"  that  usage  of  nations  which  Sir  John  NichoU  recognizes,  to 
'•  redress  an  act  of  wrongful  violence  by  the  return,  at  any  dis- 
"  tance  of  time,  of  the  naked  value  of  the  article  at  the  date  of 
•'  the  injury  ?" 

That  is  the  rule  which  the  Attorney  General  of  the  United 
States  lays  down. 

Mr.  Dickinson  : — Did  he  successfully  lay  it  down  ? 

Mr.  Peters : — He  successfully  laid  it  down. 

Mr.  Dickinson  : — Mr.  Wirt  made  the  argument  for  interest,  but 
it  never  was  yielded. 

Mr.  Peters: — I  nm  not  prepared  to  state  at  this  moment 
whether  in  that  particular  case  it  was  ceded  or  not — I  am  rather 
under  the  impression  it  was.  I  am  not  going  to  contradict  my 
learned  friend  on  that  point,  but  I  will  say  this  :  that  that  very 
same  argument  was  used  as  part  of  the  United  States  case  at 
Geneva  and  was  successfully  used.  To  show  that  I  am  correct 
in  that  contention,  I  will  quote  from  Hackett  on  the  Geneva 
Award  Case,  page  120,  In  a  note  he  says:  "The  language  of 
"  our  coun.sel  at  Geneva  in  the  supj)lementary  argument  on  the 
"  subject  of  interest  ought  not  to  nave  been  overlooked.  It  is  a 
"  matter  of  the  greatest  interest  to  both  nations,  that  the  actual 
"  injury  to  private  sufferers  from  the  depredation  of  cruisers  for 
"  which  Great  Britain  shall  be  responsible,  shall  be  fairly  covered 
"  and  satisfied  by  the  portion  of  the  award  which  shall  be  ap- 
"  applicable  to  and  ba^cd  upon  it ;  that  this  cannot  be  expected 
"  without  the  allowance  of  interest  is  obvious. " 

Let  me  put  this  question,  outside  of  the  ({notations  from  au- 
thorities. My  learned  friend,  Mr.  Dickinson,  admits,  practically 
admits,  in  fact  he  cannot  help  admitting  that  if  you  take  the 
GMe  of  the  mere  seizure  of  a  vessel,  a  vessel  taken  in  the  year 


ing  to  execute 

M 

)ur8e  to  claim- 

tlie  expenses 
.erest  on   the 

ud     adequate 

»n   the    whole 

^^is^^l 

rty,  but  upon 
riginally  have 

i^^^^l 

usually  mad* 
and    damages 

of  the  wrongs 
•itain,  neutrals 
red  of  all  in- 

%^^^^H 

L'r  property  of 
ear  1815,  and 

'S^^^^^m 

ley  have  thus 

Is  the  meagre 
le   slaves  and 

idemnification 

''Wm 

ng    away  the 
Whatever  dis- 

ns  been  settled 

can  no  longer 
on  being  thus 
f  that  dispos- 

'^^B 

.onsiHtent  with 

recognizes,  to 

■■^Ij^^^^M 

rn,  at  any  dis- 
at  the  date  of 

'^^m 

of  the  United 

;m/m 

or  interest,  but 


(Mr.  Peters'  Argument.) 

1886,  and  compensiition  is  paid  in  the  year  1897,  the  value  of 
the  ship  and  interest  ought  to  be  given.  He  cannot  dispute  that 
proposition.  Practically  speaking,  he  does  not  dispute  it.  But 
he  says  there  is  a  diH'erenee  with  regard  to  the  claim  of  pros- 
pective profits.  Let  me  ask  your  Honora,  wliy  should  there  be 
any  difference  >.     If  we  are  entitled   to  prospective  profits,   then 

10  we  should  be  entitled  to  interest  on  these  profits,  We  were 
entitled  in  the  Autumn  of  1886  to  compensation  for  seizures 
made  during  the  season  of  1886.  We  were  entitled 
in  the  Autumn  of  1886  to  full  compensation,  being  the  value  of 
the  vessel  seized  plus  prospective  catch.  The  amount  of  the 
compensation  was  uncertain,  but  id  cerium  est  quod  certum 
riddi  potest,  and  now  we,  for  the  first  time,  obtain  accurately 
what  that  amount  was.  We  have  evidence  to  show  now  what 
amount  we  were  entitled  to  recjive  in  1886,  and  using  the 
argument  of  Mr.  Wirt,  in  order  to  indemnify  those  people,  and 

02  to  compensate  them,  you  are  obliged  to  put  them  as  nearly  as 
you  can  in  the  same  position  as  if  no  injury  had  been  done  to 
them.  Now  then,  what  should  the  United  States  have  done  if 
this  dispute  had  not  ari.sen,  and  if  all  these  negotiations  had  not 
taken  place  ?  In  the  year  1886,  if  we  are  correct  in  our  argu- 
ment, they  would  have  paid  us  the  value  of  the  ship  seized,  plus 
the  amount  that  should  be  coming  to  the  owners  for  the  pro- 
spective profits.  If  that  amount  had  been  paid  by  the  Umted 
States  in  1886,  and  if  the  owners  had  simply  taken  the  money 
and  invested  it  from  that  time  forward  until  now,  at  such  a 

30  rate  of  interest  as  tliey  could  have  obtained,  then  in  this  year 
1897,  they  would  have  been  possessed  not  only  of  the  original 
amount  of  prospective  damages  but  they  would  be  in  possession 
of  that  amount  plus  the  interest  up  to  this  date.  According  to 
Mr.  Wirt's  argument,  you  should  place  the  person  in  the  same 
position  as  if  the  injury  had  not  been  done  him,  and  in  order  to 
do  that  it  is  necessary  that  you  should  allow  him  compen- 
.sation  for  the  injury  done  him,  as  well  as  the  interest  on  the 
amount  of  that  compensation.  I  submit  your  Honors,  that  on 
the  simple  ground  of  fair  play  alone   )'ou  should  grant  interest. 

40  If  a  man  owes*  me  i^lOO  and  he  pays  it  when  it  is  due  I  take  it ; 
but  if  he  says  I  will  not  pay  it  to  you  until  ten  years  after- 
wards, and  he  granted  me  no  interest,  the  amount  I  would  lose 
on  the  interest  would  be  larger  perhaps  than  the  original  sum. 
And  when  we  come  down  to  questions  between  nations ;  one 
nation  standing  in  the  po.sition  of  a  wrong  doer ;  one  nation 
putting  forward  a  claim,  the  putting  forward  of  which 
caused  injury,  and  that  nation  comes  to  court  and  asks  what  the 
amount  of  that  injury  is,  I  submit  that  the  duty  of  the  Commis- 
sioners docs  not  confine  them  to  .say:  we  will  determine  what 

SO  the  injury  was  in  1886.  I  submit  that  your  Honors  duty  is,  to 
see  that  at  the  time  the  compensation  is  going  to  be  paid  that 
the  amount  of  money  payable  to  the  person  injured  should  place 
him  in  the  same  position  as  if  the  injury  had  not  been  done. 
You  cannot  place  him  in  the  same  position  without  allowing  in- 
terest. That  line  of  argument,  as  I  have  pointed  out,  was  the 
line  of  argument  followed  by  Attorney  General  Wirt,  was  the 
line  of  argument  followed  by  the  Uuited  States  counsel  at 
Qeneva,  and  was  the  line  of  argument  that  led  the  arbitrators  at 
Geneva  to  give  the  award  in  these  words :  "  It  is  just  and  reason- 

€0  "able  that  interest  "hould  be  allowed  at  a  reasonable  rate." 

My  learned  friend,   Mr.  Dickinson,  in  his  argument  at  page 
145,  then  refers  to  the  citation  I  hare  made  from  Mr.  Wirt's 
opinion : — 
"  The  ai-gument  of  the  Attomey-OeiUfal  of  th«  United  States 


II!"  .!  ->•"•  'fi. 


76 


I  : 


(Mr.  Peters'  Argument.) 

"(Wirt)  under  the  (indiiif/  of  the  Emperor  of  Germany  ia  cited. 
"  It  is  true  that  that  advocate  argued  that  the  United  States 
"  should  have  interest  in  that  case  as  part  of  the  indenintiy 
"  claimed  by  that  government ;  but  the  case  is  not  an  authority 
"  for  Great  Britain,  for  the  rea.son  that  the  Coniniissicners  did 
"  not  agree  upon  a  decision  an<l  tlic  result  was  anotiier  suppie- 
10  "  mentary  convention  between  the  two  coui  tries.  " 

That  may  be  true,  and  no  doubt  is  true,  but  it  does  not  detract 
from  this  fact :  that  the  eliief  law  officer  of  the  Uniteil  States  in 
a  verj-  carefuiij"  jirepared  and  argued  out  opinion,  not  only  stiites 
the  principles  that  interest  should  be  allowed  in  these  inter- 
national disputes,  but  gives  strong  reasons  why  it  should 
be  alloweil.  The  fact  that  there  had  to  be  a  supplementary 
convention  to  settle  the  dispute  does  not  in  the  slightest  degree 
detract  from  the  weight  of  the  authority  holding  this  position  ; 
an  authoritj'  which  I  frankly  ailmit  would  not  be  an  authority 
20  against  (Jrent  Britain  but  which  certainly  is  an  authority  as 
against  tlie  United  States  when  we  tind  thum  in  a  dispute  some- 
what similar  to  this,  putting  forward  as  the  ground  upon  which 
thej-  stand,  aground  which  tliey  contended  was  the  right  rrronnd 
and  when  afterwards  we  find  them  pressing  that  before  the 
Geneva  arbitration  and  pressing  it  to  a  successful  issue.  Wo 
refer  again  in  our  brief  to  the  case  of  Ekins  vs.  The  East  India 
Company — and  I  wish  to  call  your  Honors  attention  to  this 
point: 

"  In  the  case  of  Ekins  vs.  East  India  Company,  it  was  decided 

30   "that  interest  should    be  allowed  for  a  ship's  cargo  taken  by  the 

"  tlefendant ;  and  this  being  done  in  the  Indies,  Indian   interest 

'  was  alloweil,  (al)out  12  per  cent.)  deducting  the  charge  of  return 

"  from  the  Indies. 

It  was  objected  : 

"  1.  That  the  value  of  the  ship  and  cargo  being  uncertain,  it 
"  could  not,  in  the  nature  of  it,  carry  interest,  but  from  the  time 
"  it  was  ascertained  by  the  jury. 

"  2.     That  the  plaintiH'had,  at  this  time,  rested  thirteen  years 
"  upon  his  own  bill,  and   therefore  to  allow  him   Indian  interest 
40  "  would  be  to  mkke  him  a  gainer  by  his  own  delay. 

But  the  court  decided  : 

"  If  a  man  has  my  money  by  way  of  loan,  he  ought  to  answer 
"interest;  but  if  he  detains  my  money  from  me  wrongfully,  he 
"  ought,  a  fortiori,  to  answer  interest.  And  it  is  still  stronger 
"  where  one  by  wrong  takes  from  me  either  my  money  or  my 
"  goods  which  I  am  trading  with,  in  order  to  turn  them  into 
"  money. 

"Therefore,  let  the  defendants  pay  interest ;  and  this  being 

'•  transacted    in    the   lu'lies,  where  the   person    who    acted    by 

50  "  authoritj-  umler  tliem,  and  for  their  use,  must  be  presumed  to 

"  have  nuide  the  common  advantage  that  money  yields  ♦  .         the 

"  companj'  must  answer  the  interest  of  that  country." 

I  think  that  note  gives  all  the  information  there  is  in  the 
case.  There  isi  a  note  to  this  case  at  page  390  which  saj's: 
"  This  decree  was  affirmed  on  appeal  to  the  House  of  Lords." 
That  decision  therefore,  conies  before  your  Honors  as  the 
decision  of  the  highest  court  of  appeal  in  Great  Britain. 
Again  I  would  refer  your  Honors  to  a  very  valuable  book  entitled 
'  Notes  to  Treaties,"  by  Mr.  Davis,  who,  I  think  I  am  correct 
CO  in  saying,  was  the  agent  for  the  United  States  at  the  Geneva 
Convention. 

Mr.  Dickinson  : — Mr.  Bancroft  Davis.  He  is  now  the  reporter 
of  the  Supreme  Court. 

Mr.  Peters : — Yes  ;  he  is  a  man  who  speaks  with  a  good  deal 


nauy  is  cited. 
United  States 
10  inileiiiiitiy 
.  an  authority 
lissicners  ilid 
lotiiur  supple- 

es  not  detract 
ited  States  in 
lot  only  states 
»  tlu'sc  inter- 
hy  it  should 
upplenu-ntary 
ij^iitest  dt;<;ree 
this  position  ; 
!  an  authority 

authority  as 
dispute  soinc- 
id  upon  whicli 

rij^iit  (Tronnd 
at  before   the 
ul  issue.     Wo 
'he  East  India 
;ntion  to  this 

it  was  decided 
I  talvcn  by  tlie 
idian  interest 
arjie  of  return 


;  uncertain,  it 
from  tlie  tiino 

tiiirtoon  yoars 
ndian  interest 


'j\\t  to  answer 
ron!j;fuily,  he 
still  stronpfcr 
money  or  my 
rn   them   into 

rid  this  being 
10  acted  by 
presumed  to 
Ids  t  .         the 

ere  is  in  the 

which  says: 

se  of  Lords." 

onors    as  the 

roat    Britain. 

book  entitled 

I  am  correct 

i  the  Geneva 

V  the  reporter 

h  a  good  deal 


77 

,  (Mr.  Peters'  Argument.) 

of  authority  on  these  matters.  Referring  to  interest  Mr.  Davis 
in  his  "  Notes  to  Treaties  "  says:  "According  to  the  usage  of 
"  nations  it  is  a  necessary  part  of  ajust  national  indemnification." 

Now  taking  these  treaties,  let  us  examine  the  proposition  as  ]ai() 
down  by  my  learned  friend,  Mi.  Dickinson;  at  page  143  of  his 
argument,  and  lot  us  see  whether  there  is  any  ground  for  the 
flO  distinction  he  attempts  to  draw.  He  says  :  "  In  limine,  it  may 
"  be  said  that  interest  was  never  before  claimed  upon  prospective 
"  profits,  or  upon  anything  given  in  lieu  of  prospective  profits. 
"  The  only  reason  ever  given  for  the  allowance  of  interest  at 
"  connnon  law,  or  by  the  civil  law  is,  that  as  prospective  profits 
"or  future  earnings  cannot  be  given,  interest  shall  be  allowed  to 
"  represent  future  earnings,  or  future  profits,  as  the  near«st 
"  approach  to  a  just  rule  that  the  law  can  attain. 

"  But  here  is  presented  a  claiiu  for  future  earnings,  as  well  as 
"for  the  actual  values,  all,  too, embracing  the  theory  of  punitory 
[20  "damages,  and  withal,  a  claim  for  interest  superadded  to  the  sum 
"  of  all  these." 

1  doubt  very  much  whether  that  statement  is  absolutely 
correct. 

Mr.  Dickinson  : — "  Or  upon  anything  given  in  lieu  of  prospective 
"  profits." 

Mr.  Peters : — I  take  the  Costa  Rica  Packet  case,  and  I  find 
that  interest  was  claimed  and  granted.  That  is  one  instance  at 
all  events — and  I  think  also,  that  a  proper  reference  to  the 
Geneva  Arbitrati(m  will  show  that  interest  was  claimed  and 
30  granted.  It  must  have  been  granted  because  the  amount  given 
for  interest  in  the  Geneva  Arbitration  case  must  be  a  very  large 
sum.  We  can  never  get  at  the  exact  amount,  because  the  amount 
of  the  award  that  was  given  was  far  larger  than  the  tables  put 
in  by  Mr.  Staemphli,  and  it  was  difficult  to  say  what  interest 
was  granted. 

Mr.  Dickinson  : — It  was  far  less  than  the  Staemphli  table. 

Mr.  Peters: — Well,  I  will  not  make  a  statement  that  my 
learned  friend  says  is  not  quite  correct.  I  say  that  with  regard 
to  the  Geneva  Arbitration,  we  cannot  get  at  the  exact  amount  ot 
140  interest  they  did  allow,  but  there  is  noiloubt  they  allowed  a  lump 
sum,  taking  interest  into  consideration.  M}*  learned  friend,  Mr. 
Dickinson,  in  his  brief  states  the  following  : — 

"  In  limine,  it  may  be  said  that  interest  was  never  before 
"  claimed  upon  prospective  profits,  or  upon  anything  given  in  lieu 
"of  prospective  profits."  The  only  reason  ever  given  for  the 
"  allowance  of  interest  at  common  law,  or  by  the  civil  law,  is,  that 
"  as  prospective  profits  or  future  earnings  cannot  be  given,  in- 
"  terest  shall  be  allowed  to  represent  future  earnings,  or  future 
"profits,  as  the  nearest  approach  to  a  just  rule  that  the  law  can 
"  attain. 

"  But  here  is  presented  a  claim  for  future  earnings  as  well  as 
"  for  the  actual  values,  all  too,  embracing  the  theory  of  punitory 
"  damages,  and  withal,  a  claim  for  interest  superadded  to  the  sum 
"of  all  these." 

Now,  your  Honors,  I  submit  this  proposition.  Admit  for  the 
sake  of  argument — which  I  do  not  need  to  admit,  and  which  I 
only  admit  for  the  sake  of  argument — admit  for  the  sake  of 
argument,  that  there  is  no  case  where  interest  has  been  given 
upon  prospective  profits.  -Supposing  interest  has  not  been  given 
in  the  past  or  has  not  been  claimed  ;  is  that  any  reason  why  in 
a  case  where  it  is  shown  that  ju.stice  requires  interest  to  be  given, 
that  you  should  refuse  it.  It  is  no  reason  whatever.  But  let  us 
go  further  in  that  matter.  The  position  that  my  learned  friend 
takes  is  a  little  inconsistent.    His  position  is,  that  proipee- 


mm  ifwrjijrr  ■ 


78 


(Mr.  Petoi-H'  Aifjuiiu'iit.) 

tive  profits  or  prospdctivi*  catcli  liavo  no-,  or  been  allowed 
in  matters  ititcrnatioiml.  It  followN  as  a  matter  uf 
course  tliat  if  prospective'  profits  or  prospective  Caitcli  have  not 
heretofore  fiecn  allowoil  in  niattors  of  international  dispute 
that  interest  upon  that  prospective  profits  or  prospective  catch 
coulii  not  he  allowed      That  ;^oes  without  sayin;;.     if  this  claim 

10  has  alwa3'a  heeii  disallowed,  then  a  fiirtinri  the  interest  has 
alwayn  heen  disallowed.  But  is  the  statement  of  m^-  learned 
friend,  Mr.  Dickinson,  correct  that  interest  has  not  heen  allowed 
or  that  it  should  not  he  allowed.  Sir  Kdward  Thornton  sayn  : 
"If  the  claim  is  j,'ood  it  follows  as  a  matter  of  coui'se  that  the 
claim  for  interest  is  also  f^ood."  I  douht  very  much  that  my 
learned  friend  can  carry  out  his  proposition  that  interest  has 
never  l)een  allowed  on  prospectivt;  profits.  If  it  he  aihnitted 
that  we  arc  entitled  to  ohtain  such  an  amount  of  money  for 
prospective  profits  in    1S(S(I,  there  is  no  sound  reason   wh}'  we 

20  cainiot  LTct  inten.'st  on  that  just  as  much  upon  the  value  of  the 
.ship  which  we  lost  in  IMSfi.  And  your  Honors,  as  has  heen 
sufjgested  to  me,  the  very  same  prinei])le  that  I  have  heen 
attemptin}^  to  arirue  in  re;,'ard  to  tlio  allowance  of  prospective 
pr(<fits  at  all  applies  to  this  ver)-  samt^  case.  In  the  inter- 
national disputes  up  to  the  pri'Sent  time,  where  this  question 
has  fieen  decided,  yuu  do  not  find  the  (luestion  of  "intention" 
comin;.;  in  at  all.  That  al.so  a|)plies  to  the  ipiestion  of  interest  as 
much  as  it  does  to  tlie  (piestion  of  the  valu>  of  the  prosjteetive 
catch."     The  two  things  are  interniinLtlod  to;^ether,  and  it  one  is 

30  a,Ilowed  the  other  should  he  allowc(l.  The  arLfuiiient  that  my 
leariKMl  friend  jints  forward  with  ri';;nrd  to  the  disallowanei,'  of 
interest  is  as  follows.  He  takes  our  I'l'ferencc  to  "Sedgwick  on 
Diimaj,'es  "  and  he  says  : 

"  Where  money  is  due  without  an}'  definite  time  of  payment, 
"and  there  is  no  conti-act,  express  or  im])lied,  that  intei'est  shall 
"  he  paid,  the  Kniflish  rule,  independent  of  statute,  is  that  it  can 
"not  bi!  claimed." 

That  is  applying  to  nnuiicipul  matters  altogether  and  it  stec'rs 
clear  of  the  point  that  is  clearly  laid  down   in  ordinary  actions 

40  of  prohate,  namely,  that  interest  is  recover  ihle  as  part  of  the 
damages.  That  ;s  coiii...oiily  tlio  c ;  ;■.  My  learue  I  frimd 
(juotes  the  rule  of  the  New  York  pidgment  as  to  interest,  as 
follows : — 

"  In  two  actions  against  the  ma-tcr  of  a  ship  foi-  non-delivery 
"of  goods,  it  was  held  in  New  \nyk  that  the  jury  ndglit  give 
"Uanuiges  if  the  conduct  of  the  ilefendaiit  was  improper,  i.  e., 
"where  fraud  or  gross  misconiluct  could  he  imputeil  to  him  ;  hut, 
"  it  appearing  that  such  was  not  the  f^et,  it  was  not  allowed  ;  and 
"that  interest  nuij'  he  given   hy  way  of  pTuiishment   for    any 

50   "  illegal  conversion  or  use  of  another's  property  " 

Well,  your  Honors,  it  is  not  altogether  punishment.  There 
are  two  sides  to  that  st(jry.  "  Interest  may  lie  given  liy  way  of 
"  punishment  for  any  illegal  conversion  or  use  of  another's 
"property," — hut  it  is  not  necessary  that  it  should  he  given  as 
punishment.  I  submit,  your  Honors,  that  if  one  man  takes 
another  man's  property  for,  say  ten  years,  and  gives  him  the 
value  of  his  property  without  interst  ten  jears  afterwards, 
.someone  undoubtedly  would  be  punished,  but  it  would  not  ho 
the  person  who  took  the  property,  hut  the  person  whose  property 

t>0  was  taken.  It  would  coiie  clearly  with  the  "  intention  "  here 
and  the  rule  as  I  have  laid  down  before. 

Tiien  he  cites  some  other  cattes  which  I  do  not  see  support  the 
position,  and  refers  to  the  opinion  of  Attorney-General  Wirt. 
All  I  have  to  say  in  regard  to  that  is  that  that  same  gentleman. 


79 

(Mr.  Petera'  Aryuinciit.) 

Attoriiey-OeiHM-ftl  Wirt,  liiy.s  down  tlic  yciii-ral  proposition  that 
intcrcHt  is  a  propt-r  itfin  to  Ite  coiiHiilcrcd  in  a  jiiHt  iiulrnniitica- 
tion  in  rt-jjanl  to  international  wron;;.-;,  mh  I  liavo  alrt-ady  Htati'd, 
and  ln'  cites  tlu-  casr  of  tlic  "  Mont ijo,'  i|notinj;  from  tin-  opinion 
of  tin'  nnipire.     Tlic  riili'  is  <;ivcn  I  litre  as  follows: 

First,  lit'cansc   tlicrc  is  no  settled  rnio  as  to  tlie  payment  of 

10  interest  on  claims  on  countries  and  j;overiiments; 

•Secondly,  liecausc  it  seems  open  to  ijuestion  whether  interest 
should  accrue  during'  the  pro>,'ress  of  diplomatic  ne;;otiations, 
which  are  often  protracted  in  their  character  : 

Thirdly,  Tlii/i  leatiiin.  (titpUfx  irilli  Sjieriid  finri'  to  nt'i/oliations 
uliick  result  in  an  arhitration  or  friendly  arran;;ement : 

Fourthly,  That  whilst  doin;,' what  he  considi'i-s  strict  justice 
to  the  t'laimants  hy  ;;ivin;^  to  them  the  full  value  of  the  use  of 
their  vessel  durin;;  her  detention,  In-  desires  to  avoid  any  appear- 
ance of  fill nixlii III)  t\ii'   Columhian   peoph;  at   larj;e  for  an   act 

20  with  which  veiy  few  of  them  had  anything;  to  do,  and  which 
attected  no  ('olumhian  interests  heyond  those  of  a  few  speculntofH 
in  revolutions  in  I'lmama. 

All  tlii'se  ar;;uments  useil  there  would  ec|ually  well  have, 
applied  to  the  (ieiieva  award  case — every  one  of  them,  if  it  was 
the  case  that  there  was  no  settled  rule,  hut  I  do  not  admit  that 
proposition.  I  say  thoauthorititss  show  there  isa  settled  rule  with 
re;(ard  to  the  jiayiiieiit  of  interest ;  and  ho  says  it  seems  open  to 
fpiestion  whether  the  interest  would  accrue  durin;;  the  projfress 
of  diplomatic.  ne;,foliation.s.     The  diplomatic    ne;,'otiatioiis  went 

30  on  for  a  lonj;  time  hefoi'e  the  (ieiieva  arhitration  was  made  an 
actual  fact,  hut  notwithstanilin^  that,  interest  was  allowed.  It 
does  not  matter  now  whether  allowed  on  IIk-  value  of  ve.s.sels  or 
what  ;  hilt  if  tln'  ar;;ument  used  hy  the  arbitrator  in  the  case  of 
the  "  .Moiitijo"  was  correct  it  would  have  a|iplie<|  also  to  the 
tieiieva  arhitration  ami  more  than  that,  under  what  he  says,  it 
seems  open  to  (juestion.  It  mi;;hl  have  so  seemed  to  him  at  that 
time,  hut  it  is  not  open  to  ipiestion  at  tlu'  present  time  when  we 
have  .so  maii3'  authorities  upon  the  point.  The  umpire  jfives  a 
reason   thei'e    and   it   is  as   I    have    alreaily    read ;  and  there  is 

40  another  reason — "that  he-  desires  to  avoi<l  any  appciranoe  of 
puiiishin;f  the  C'olumhian  people  at  lar^e  for  an  act  with  which 
very  few  of  them  had  anything;  to  do."  Mow  <Ioes  that  rea.son 
niiply  here  #  The  act  done?  here  was  rlone  hy  the  act  of  tlio 
United  States  (Jovernment  directly,  and  the  United  States  is 
ahsolutely  accountabh^  for  everything;  done.  In  the  other  case  it 
was  done  hy  certain  people  actinij  independently  of  the  govern- 
ment— r.ctinij  on  their  own  i-esponsihility.  The  umpire  who 
decided  the  ca.se  sayiii}.;  that,  lookinj;  at  the  facts  ami  circum- 
stance.!, he  desires    to   avoid    punishin<;   the    whole    people    of 

60  Columhia  for  the  act  of  a  few  of  thorn,  for  which  they  were  not 
responsible.  Therefore  there  was  a  particular  reason  there 
which  has  no  application  to  the  present  case.  That  decision  was 
made  a  long  while  ago,  I  think  in  the  year  1871.  He  cito.s 
tinally  Sir  Christopher  Rol)inHon,  wlio  was  the  reporter  of  Lord 
Stowell,  the  great  English  authority  on  public  and  private  inter- 
national law,  on  the  t|ue.stion  as  to  whether  interest  should  be 
allowed  to  the  United  States  on  the  award  of  tlie  Emperor  of 
Ru8.sia  against  Great  Britain.  The  following  is  the  opinion : 
"  The  question  of  interest  presents  a  (piestion  of  considerable 

60  "  importance  and  delicacy,  and  to  which  it  will  be  difficult  to 
"  apply  the  analogy  of  rules  derived  from  legal  proceedings,  in- 
"  dependent  of  the  political  considerations,  which  may  have 
"  regulated  the  conduct  of  the  power  making  compensation  in 
•'  the  particular  case.     lu   that  view  it  seems  to  be  a  reasonable 


ir 


■ww^lPiipp"' 


f 


80 

(Mr.  PfU-rs'  Aij,'»nu'nt.) 

"  distiiictiun   wliich   w   raisod,   tlmt   soveri'ijjn  poworH   «lo  not 
"  umially  pay  intfit-Mt  unless  tlicy  stiuuliiti'  so  to  <lo. 

"  TIh' <)l)lij^iitit)ns  of  fjovernnicnts  lor  civil  injiirit's  are  inatteis 
"of  niro  (K-currt-ni'i',  and  dcj)ond,  in  I'onM  and  Huhstanei-,  nsnnifh 
"on  liberal  coni'fssions,  or  on  reciprocal  en}^a;;eiiients,  as  on  the 
"  intrinsic  justice   or   eipiity   of  the   claim.     Tliei/   are  usually 

10  "  eonipen.sations  niiulf  on  tjuextiouH  in  diiuht,  nfler  conaidcrahle 
"  iiiti'fviili*  of  time,  }»j  wliivli  intvrial  in  luui-h  cnlinnccil.  'I'liey 
"are  al.so  coiupen.sations  for  the  acts  of  othei's:  for  tlie  conse- 
"  (lUences  of  error  or  niisumlerstandin;;,  rather  than  of  inten- 
"tional  injury, anil  for  cases  in  which  no  ])r()tit  or  advantap*  has 
"accrued  to  the  parly  liy  whom  .such  compensation  is  madt!." 
Mark  n>;ain  the  tlistinction — you  can  hai'dly  take  up  an  author- 
ity that  does  not  ;;ive  it.  He  says,  " 'I'hey  are  al.so  compensa- 
tions for  the  acts  of  otiu'rs."  In  this  ca.se  the  compensation  is 
claimed    for  the  direct  act  of  tlw  United   Slates  (iovernment 

20  it.self:  "for  the  consei|Uences  of  error  or  misunderstandin;r 
rather  than  of  international  injury."  Thert!  was  no  nnsunder- 
standinir  here.  It  was  the  intentional  act  of  the  Unite<l  .States 
(iovei-nment  to  .stop  that  .soalin<;.  The  intentional  act  has 
turned  out  to  he  wron;; — wrony  from  the  point  of  international 
law,  and  I  take  it  that  the  rule  that  applies  with  rejjard  to  com- 
mon law  applit's  also  to  nations  with  rejjard  to  international 
law:  As  to  the  connnon  law,  every  man  is  supposed  to  know 
what  that  is,  and  he  cannot  ccjinc;  into  court  and  char;;e  that  iic 
has  done  this  or  that  inider  a  misapprehension  of   what  that  law 

30  is.  'I'he  same  I  suhmit  should  a])ply  as  between  nations.  A 
nation  makes  a  certain  claim,  as  the  I'nited  States  did  in  this 
case,  that  it  had  absolute  jurisdiction  over  Behrinfj  Sea.  The 
United  States  I  submit,  and  their  officers  were  boinid  to  know 
what  the  international  law  on  that  ])oint  was.  and  if  they  put 
forward  a  claim  which  an  international  tribunal  afterwards 
decides  to  be  an  impro])ei'  claim,  they  cainiot  when  the  (piestion 
of  compensation  arises  turn  round  and  say:  We  made  a  mistake 
alx)ut  the  law.  Tlh\'  are  lM)und  to  know  wdiat  the  international 
law  is  just  aH  much  as   ])rivate  individuals  are  Iniund  to  know 

40  what  the  common  law  is.  So  there  is  this  distinction  on  the 
the  face  of  the  authorities.  The  claim  of  the  United  States 
(iovernment  was  not  oidy  to  ja-event  the  killin>r  of  seals,  but  to 
prevent  it  for  a  cei'tain  specific  reason — in  order  that  they  and 
their  subjects  mi<;ht  for  their  own  exchisive  use  and  benefit  kill 
tho.se  si'als,  only  killin<j  them  in  a  different  way  from  the  way 
we  claim  to  kill  them,  so  that  they  not  only  did  this  intention- 
ally, but  w  itii  the  object  and  intent  of  ;jettinj4  back  a  diri-et 
pecuniary  benetit  to  the  {government  and  subjects  of  the  United 
States.     The  case  that  my  learned  friend  cites  here  is  therefore 

50  utterly  inap])licable  as  an  authority  in  his  favor.  an<l,  if  any- 
thiiiff,  tends  to  assist  our  case.     What  does  he  .sa^'  further: 

"  Considerations  of  this  kind  seem  to  require  that,  if  interest 
is  to  be  paid  as  j)art  of  the  compensation  bj'  treaty,  it  should  be 
a  matter  of  special  arran<^enient  as  to  amount  and  particu- 
lars.'' What  are  the  facts  here  your  Honors  ?  In  every  .sin^jle 
claim  presented  and  contained  between  pages  1  and  GO, 
about  which  my  learned  friend  i.s  8o  particular,  except  I  think 
the  claim  of  the  '  Say  ward  Costn  "  case,  in  which  we  do  not  claim 
interest,  wa.s  fixed  at  a  certain  specific  rate  and  the  United  States 

60  Government  and  the  Government  of  Great  Britain,  according  to 
my  learned  friend's  own  argument  submitteil  to  this  tribunal, 
that  question  of  interest  as  well  as  every  other  question,  and  if 
an  agreement  was  required  that  this  question  of  interest  should 
be  submitted  to  this  tribunal,  we  have  the  agreement  on  the  face 


iW'tTH   do   not 

[•H  lire  iniittiTH 
.iiiici',  UN  much 
iitN,  UN  on  the 
I  me  u»ii(illy 
;•  coiwiilcriilde 
(iiki'cil.  'I'lit-y 
for  tho  oonHf- 
liiui  of  Miti-n- 
lulvantiijjc  hiiH 
tioii  is  niiuh;." 
up  im  MUtlior- 
Iso  ponijM'nHa- 
>ni|K'iisalion  ih 
4  (iovi'rnnii'nt 
uiiil('i'.stanilin>; 

no  niiNumli'i-- 
Unitt'd  Stall's 
ional    act    lias 

international 

[•cjfard  to  coin- 

■  1 

)  uitornationai 

posed  to  know 
charge  that  iie 
what  that  law 
•n   nations.     A 
t's    did  in  this 
inj;  Sea.     The 
tM)und  to  know 
nd  if  they  put 
lal    afterwards 
•n  the  (piestion 
lade  a  ini.stake 
iternational 
H)un<l  to  know 
inction  on  the 
United    States 
)f  seals,  but  to 
that  they  and 
nd  henetit  kill 
from  the  way 
this  intention- 
hack   a  direct 
of  the  United 
■re  is  therefore 
I',   and,  if  any- 
further  : 
hut,  if  interest 
y,  it  should  be 
an<l    particu- 
n  every  sinj^le 
1     and    GO, 
except  I  think 
e  do  not  claim 
United  States 
I,  acconlin^r  to 
this  tribunal, 
(uestion,  and  if 
nterest  should 
ent  on  the  fac  e 


81 


(Mr.  Peters'  Argument.) 


'.m 


of  tlie  docunii'iit  itself.  "  And  the  reasonuhhrness  of  that  c.\- 
I)ectation  .supports  the  distinction  ••Uj^j^ested,  that,  where  no  such 
«tii)ulati<in  is  made  betsvecn  Soverei^^n  Powers,  inti-rest  shall  not 
be  ciinsidereil  as  due. " 

1  would  like  to  .say  one  more  word  with  rejjnrd  to  a  case  I 
have  already  referred  to,  the  "  Montijo, "  which  is  cited  by  my 
10  learned  friend,  ami  to  point  out  that  on  the  rpiestion  of  interest 
tlint  case  should  not  be  considered  as  an  authority.  He  says  here 
•  It  was  a  special  treaty,  and  the  treaty  was  this  way."  It  is 
clinr  on  cvimt  piinciple  of  the  plainest  justice,  that  'some  one' 
oU'dit  to  |)ay  fur  this  act  anil  itsconse(piences.  That '  some  one  ' 
could  not  be  llerrera  and  Diax  because  their  responsibility  was 
siived  by  the  treaty  of  peace  and  its  accianpanyin;;  amnesty. 
We  liavi!  then  to  fall  back  upon  the  State  of  Panama,  which 
j^ranted  the  amnesty  and  stipulated,  moreover,  as  one  of  the  con- 
ditions of  the  treaty  of  peace,  that  it  wotild  pay  for  the  tise  of 
10  the  "  Ab)ntijo;"  but  that  State  has,  for  its  own  reasons,  failed  to 
do  so."  So  it  was  a  spi'cial  contract,  and  all  they  were  to  pay  for 
wa»  tho  us(!  of  the  "  Montijo".  He  contends  fiu'ther,  citing  from 
the  samt!  authority  tliat  "'I'he  rules  of  law,  so  far  as  they  maybe 
applicable  to  this  (piestion,  do  \\u{  favor  claims  of  interest  except 
under  special  circumstances,  as  in  tin;  cases  of  af{reement,  ex- 
pressed or  implied,  or  of  the  possession  or  enjoyment  of  inter- 
mediate profits  or  of  injury,  |)roperly  .io  termed,  in  respect  to  the 
tortious  nature  of  the  act  for  which  the  compensation  is  to  be 
made. " 
jo  Kvcry  one  of  these  authorities  when  looked  at  carefully  put  in 
the  very  exception  as  in  this  case.  There  you  have  got  the  man- 
ner in  which  the  act  was  done,  the  tortious  manner  in  which  done 
for  their  own  benefit,  tor  the  purpose  of  nntkin^  so  many  more 
dollars  .so  far  as  the  United  States  was  concerned.  In  the  Geneva 
case,  he  said,  certain  interests  were  allowed,  wdiolly  in  the 
discretion  of  the  arbitrators,  in  lieu  of  certain  earnings,  where 
it  appeared  that  the  Anu-rican  government  had  presented  the 
claims,  which  were  passed  upon  by  the  arbitrators,  immediately 
at  the  close  of  the  war  in  18(j(i. 

Interest  seems  to  have  been  allowed  at  the  lowest  rate  from 
the  date  of  the  filing  of  the  claims  and  not  from  the  date  of  the 
capture  of  the  ships. 

I  do  not  know  whether  they  allowed  it  from  the  date  of  the 
filing  of  the  claims. 

You  will  remendier  that  I  pointed  out  at  the  beginning  of  my 
argument  at  a  certain  time,  1888  I  think  it  was,  the  British 
government  made  known  to  the  United  States  government  that 
the  claims  hr.d  been  presented  to  them,  and  they  wanted  to  have 
a  counuisston  appointed  for  the  purpose  of  having  these  claims 
settled  and  adjusted.  The  answer  was  that  the  amount  to  be 
paid  in  damages  was  a  .subsidiary  question — not  the  main  ques- 
tion— that  the  amount  of  compensation  to  be  paid  could  not  be 
settled  until  the  main  question  was  settled.  On  page  15  of  my 
argument  appears  the  following : — "  A  number  of  the  claims  in 
question  having  been  filed  by  the  parties  intere.sted  with  the 
British  government  the  following  notes  verbaies  were  exchanged 
between  the  two  governments: — 

"  Her  Majesty's  Government  have  just  received  the  particulars 
"of  the  claim  for  compen.sation  on  account  of  British  sealers 
"  seized  and  warned  off  by  the  United  States  authorities  in 
"  Behring  Sea. 

"A just  assessment  of  these  claims  appears  to  them  difficult 
"  without  investigation  an  d verification,  and  they  therefore  wirfi 
"  to  ascertain  whether  the  United  States  Government  would  be 


,  '.,("[£. 


f  f 


8S 


"       [ 


(Mr.   I'ttciH'  Ar;;iiiiii'iit,) 

"disposcil  ti>  ai(rn>  t"  a  mixi'il  <M>iiimissi()ii,  to  Ik-  rfntrictfil  to 
"  fni|uii'in;r  in  i-acli  casi-  wlii'tln'r  ('i)iii|i(-n>*nti<in  is  1 1  no  ami  tlio 
"  MiiiDiiiit  (if  .siicli  (■iiiii|ii'n''atii>ii." 

Tliat  was  tiii'ir  prupcisitioii.  Tlic  aiis\vt>r  to  that  is;  — 
'•  llcs|ioii(lin;;  to  (111-  iiiilr  irrlniff  id'  Sir  liinncl  West,  datrd  tlio 
"  IStli  iiiNtiint.  it  is  sn;,'L;t'Hti'ii  <iii  lichnll'  nf  tlic  I'liitril  States 
10  '■  tliat,  as  till' cases  of  seizure  of  Uritisii  v(>ssi'ls  in  IJeliriiin  Sea, 
"tlierein  refeiTe'l  to,  are  now  in  eonrt  |ien:lin;{an  a|i|>('al  from  a 
"jnilicinl  deeision,  it  is  preferalile  to  await  the  jiiil;{nii'iit  of  the 
"Appellate  Conrt  in  the  premises" 

The  first   answer  was:     "  No,  we    will   not   liave   any   com- 
"  mission    to  settle  these    elaims ;  wait    until    oiu'    courts    have 
"  ileeided  the  a])peal  peiiiiiiii;,"  no  douht  refi-rrin^'  to  the  appi'al 
in  what  was  known  as  the  "  Saywarii  "  ease.     Afterwanis,  when 
tlie  eorresponcienee  went  on  further,  and   from  tlie  treaty  itself, 
it  appears  elearl}' and  plainly  that  the   Ih'itish  (ioveininent  ail 
20  aloii;;  wanted   to  have  tliesc  elaiiiis    jiaid   in  the    first  instance. 
On  the  otiier  side  the  United  States  ;;overnment  contended  that 
the  main  (piestion  shonhl  Ix    scttleil    first,  anil  ahove   all   tldn^s, 
that  the  (pivstion  of  re;^rulatioiis  shoiilil  lie  di'alt  with  liefore  tlu; 
matter  of  eouipensation  was  actually  settled.     I    only  point  this 
«)Ut    to    sliow    the    delay    in    this    ease,     tlip    delay,    for    which 
wo    claim    interest,    and    for     which     we    have    a    rii^lit    to 
claim    interest,    has    iieeii    caused    iiy    the    Uniteii    States    tak- 
ing    a    position     which      has     turned     out    to    lie      nntenalile, 
and   while  they   nii^lit   have  settled  those  claims  hy    havini;  a 
'to  commission  at  an  early  <late.  tln-y   inttMitionully    put   It  off  as  a 
sulisidiary  matter  altogether  and  as  a  matter  of  less  importance 
than   matters  to   he  settled   liy   arhitration.     The  delay  in  this 
matter  wi-sulimit  lias  heen  cansi'd  hy  the  United  States  ijovern- 
ment  and  we  sniimit  that  interest  sliouM  most  clearly  h'  allowed 
to  these  claimants.     The  pe<ipleon  whose  liehaif  Cii'eat  Britain  is 
claimin;r  here   had   no  power  whatever    to  press  these    claims. 
They  could  not  take  one  sini,'le  step  except   it  was   done  hy  the 
governnii'iit  of  tireat  Ih'i tain  for   them.     They  eould  not  act  on 
their  own  hehalf  as  in  an    ordinary  case    iii'tween    individuals 
40   where  laches   can    lie  charifi-d  or  anythiie^  of  that    kind.     The 
imlividual  himself  is  resp msihle  for  ia^'hes,  is  responsihle  for  his 
m'i;lect  and  his  carelessness  in  carryin;^  his  case  on  ;  hut  in  a  case 
of  this  kind  he  can  take  no  step  unless  the  i^overiimeiit  takes  it 
for  him  :  and  not  tlien  uidess  the  opposin;^  ;4overnment  consents, 
a,iid  I  sulanit  that  when  a  private  individual  is  put  in  that  p<isi. 
tion  and  delay  is  caused  hy  reas<in  of  ailis])uto  hutween  the  two 
nutions  in   which   he  cannot  interfere,  and   which   he   cannot  in 
any  way  deal  with,  that  he  is  in  no  way   responsihle    for  tlu; 
delay,  and  after  these  internatioiuil  disputes  have   heen  ,setth;d, 
50  antl  settled  aiiversely  to  <ine  jiarty,  that  one  party  must  admit, 
we   think,  that    they   are  entitled    to  compensation,    and  their 
i^dniission  means  this;  that  they  were  wronj;  in  ISSti  when  they 
took  tho.se  vessels  and  that  then  and  there  they  should  have  paid 
us  the  compensation.     They  have  iiot  paid  the  compensation  for 
eleven  years  afterwards,  ami  we  .say  it  would  he  a  case  of  very 
great  hardship  if  interest  claimed  should  not  be  allowed. 

So  much  for  the  (piestion  of  interest.  1  am  not  goinfj  to 
weary  the  court  hy  taking  any  further  time  on  that  nnitter. 
We  simply  contend  that  interest  is  allowable  on  every  item  "f 
(iO  damage  which  is  found  to  be  due.  We  claim  damages  whatever 
they  were  in  the  first  instance  should  be  assessed  as  if  they  were 
being  as.sessed  in  lS«(i,  l««7,  IHHH  or  ISM),  as  the  case  may  be, 
having  regard  to  the  fact  whether  ve.s.sel  was  seized  188G,  '87, 
'88  or  '89.     We  claim    the  proper   course  would  be  to   make  up 


8a 

(Mr.  I'cfcrs'  Ar;;iiiii('iit.) 

till'  (liiiiiii;,'iM  wliich  yon  wnnld  Imvo  nssi-Hscd  if  siuinj^  nt  timt 
tiiiMi,  himI  in  nnlurti)  ^ivi*  tlioroii^li  iiiul  cixiiiili'tt'  ii)<lt>iiiiiiticatii>ii 
ti>  iiii'l  ti>  tlit'sit  iiiiniiii{i"4  tin*  amount  of  inti-i'fflt  that  woiiiil  |iiit 
MS  in  till'  Niinii'  position  iis  wo  would  then  have  Ikm'U. 

'I'l'tTi'  ii  oni^  word  I  would  iikt>  to  sny  with  it';,'ard  to  tlie  rate 
of  interest,   and  I  snlmiit  that  the   case  I    have  citi-d,    the    "  1'. 
10   Williaiiis"  is  an  authority  that  such  a  rate  of  interest  should    lie 
allowed  that  the  |iarties,  situated  a^they  were,  livin^j  where  tiiey 
Were  in  Hritish  Colnntliia,  conld  reasonalily  havo  heon  supposed 
to  have  l:een    ahle  to    horrow  money   at  that  time.       We  have  n 
eonsideralile  amount  of  evidencrt*    on  that  point ;    the  evidence  of 
hankers  shewin;;  the  ordinary  rate  of  mercantile  men  who  lior- 
row  money  on  paper.      We  have  also  the  ordinary  rate  of  interest 
paid  liy  men    who  lK)rrowei|   money  for  hin^  terms.      All  these 
rates  are  much  hii^her  than  the  .tmoiint  we  claim.     We  ^jave  somo 
j;eni!ral  evidence  that  inten-st  in  Hritisii  ('o'umliia  wont  as  hi;L,'h 
20  as  12  per  cent. ;  that  S  per  cent,  was  a  low  .atp.     We  claim  only 
7  per  cent.     The  law  of  Mritish  Colnmliia  wms  also  put  in   evi- 
dence as  a  stiitiitary  ri^ht  toolitain  intere-'t  and  the  rate  ut  which 
it  should  lie  chnr;,'eci  accordin.;  to  the  laws  of  Mritish  L'olnmliia, 
and    I    think   I    am  correct     in      saying    that    hy    ])roof    put 
iti    hy    .Mr.     Hodwcdl,     in     which     .Sir.    Dickinsnn     (loncnrred, 
and  which    he  n<lmitted  to  he  a  correct  staUMiient  of  thu  law  of 
Hritish  t'olumiiia,  that  the  ordinary  rate  of  interest  allowahle 
liy  law  of   Hritish  ("olinuliia    was  (i   j)er  cent.       So    you  have  to 
choose  lietween  these,  and  I  sulimit  that  the  weight  of  ••videiicD 
;{0   shows  that  till'  rate  we  claim,  7  per  cent,  will  no  iiiore  than  in- 
demnify   these    men   for  the   want  of  use  of  the  money  which 
sliiiuM  have  lieen  paid  to  them  at  these  distant  times.     Of  course 
the  rate  of  interest  to  he  paid  is  a  matter  which   lies  in  the  dis- 
creti  n  of  your    Honors,  hut   I  do  .suhmit  that,   lo'ikin^  at  the 
ipu-stion   of    interest,  as    with    re^anl    t  >   every    other  item  of 
damai;e    that  you   are  called   upon    to  deal    witli,   in  a    matter 
lietwei;n  nations  you  ouiji't  not  to    weii^li  that  with  line  scales ; 
that  thy  teinleticy  should    he  to  pay  full  iiiilemnity,  so  as  to  put 
parties  aN  nearly  as  you  can  where  tliej-  were  hefore      No  award 
4-0   that  you  can  reasonahly    give    will  put  some  of  these  parties  in 
the. position  they  were  in  hefore  these  seizures  took  place,  hut  I 
say  that  the  amount  slraild  he  quite    liheral   with   rt'i^ard  to  iii- 
tei'est.     Any  case  of  douht  after    this   leii'.^th  of  time  sjiould  lie 
decided  in  favor  of  the  person  L'laimin<^.     So  much  with  re;;ard 
to  th(>  (juestion  of  interest. 

There  are  one  or  two  other  points  to  whicli  I  wish  to  refer  on 
the  ijuestion  of  danin;^es. 

In  the  tirst  place,  havin;;  left  the  question  of  interest,  I  would 
like  now  to  ;^o  hack  to  the  h.'jrinnin;^  of  the  ar<j^umunt  on  the 
question  of  damaijes,  aiut  call  your  Honors'  attention  to  the 
citation  I  was  ahout  to  make  from  Sutherland  on  Daina<^es  on 
the  question  of  a^f^jravation. 

1  here  seems  to  run  throufjh  my  learned  friend's  argument  a 
contention  that  in  nieasurinij  the  damB<»es  as  a^rainst  a  (lovern- 
ment,  anytliin;,'  that  is  called  a<^i,'ravateil  damaires,  or  vindictive 
(iaiiiaires,  should  not  he  consideieil  at  all.  I  suhmit  that  that  i.s 
not  the  true  rule  of  law,  and  that  his  idea  springs  from  a 
misconception  of  the  position  of  the  matter. 

The  Commissioner  on  the  part,  of  the  United  States  : — 
You  use  hotli  expressions,  "  aggravated "  and  "  vindictive " 
damages.     Which  do  you  mean  ? 

Mr.  Peter.-: — I  .say  that  we  are  entitled  to  receive  here 
aggravated  I'ainages,  aiid  that  there  is  no  difference  between  the 
claim  againi^t  a  nation  and  against  an  individual.     Sutherland 


."lO 


(iO 


"ym 


n 


T^ 


(Mr.    Petern'   Argument,) 

layn  down  the  rule  aa  to  what  aggravated   danmgeH   uieann   at 
page  728  ;— 

"  It  is  frequently  naid  that  in  actinnx  f.'-  deliiln  evidence  in 
"  admittable  in  aggravation  of,  or  in  mitigation  of  the  damngeH, 
"  but  thif*,  it  In  conceived,  iiioanH  nothing  more  than  that  evidence 
"  ia  adinixHable  of  factH  and  circiimNtnnceH  which  go  in  aggravation 

10  "  or  mitigation  of  the  injury  itNelf.  The  circumstanceH  tliUH 
"  proved  ought  to  l)e  thoau  only  which  belong  to  the  act  com- 
"  plained  uf.  The  plaintiH  iit  not  juntly  entitled  to  receive 
"  compennation  beyond  the  extent  of  Ium  injury,  nor  ought  the 
"  defendant  \m  coripelled  to  pny  to  the  pluintiti'  more  than  the 
"  plaintitf  ih  entitled  to  receive, ' 

JuHt  in  thix  case  w«  Hay  that  the  fact  that  in  lH8(i  there  waa 
no  warning,  Ih  a  circumatance  to  I  u  taken  into  connideralion,  and 
aUo  that  in  1887,  nftt  rour  vessels  had  almost  been  told  thnt  they 
would  not  be  seized,  they  were  seized,  and  again   in    188!(  the 

20  same  circumstance  transpired.  The  manner  of  the  soi/.ure,  the 
treatment  of  the  men,  and  all  the  circumstances  which  took  place, 
and  which,  as  the  author  ways,  "  ought  to  be  tliosu  only  wliich 
belong  to  the  act  complained  of,"  should  be  taken  into  con- 
siderati(m  just  in  the  same  way  ns  if  they  were  the  act  of  a 
private  individual.  In  the  argument  liefore  the  Paris  tribunal, 
Mr.  Blodgett,  in  connection  with  the  contention  of  the  United 
States  on  tliis  point,  actuall}*  cited  the  maxim,  "  the  king  can  do 
no  wrong  "  and  stated  that  that  applied  to  this  case.  I  humbly 
submit  that  that  principle  does  not  come  in  here  at  all,  and  that 

30  if  that  principle  applied  as  between  nations  it  would  be  an 
answer,  not  only  to  the  ((ue<iti'>?i  of  prospective  catch,  or  any 
item  of  damage,  l>nt  it  wool  ne  an  answer  to  the  whole  cluim, 
and  I  submit  in  view  of  tlf  irds  used  by  Mr.  Sutherland,  that 
this  is  one  of  the  cases  w  .re  we  have  the  right  to  claim 
aggravated  damages,  and  that  the  circumstances  of  the  case 
should  be  taken  into  consideration.  Take  the  word  "  aggravated  ' 
damages — something  that  goes  to  increase,  enlarge,  or  make  the 
injury  wor.se  than  it  otherwise  would  be. 

Now  let  me  turn  to  page  133  of  my  learned  friendV  argument, 

40  where  there  is  a  cliapter  on  "  Legitimate  (Compensation  and 
herein  of  Extravagant  Claims."  "  Hereafter,  under  the  proper 
"  heads,  the  testimony  of  the  .several  owners  of  the  respective 
"  vessels,  and  the  other  evidence,  will  be  analyzed  so  that  what 
"  may  be  deemed  the  highest  limit  of  fair  valuation  and  fair 
"  compensation  for  injuries  may  be  arrived  at  from  the  testimony." 
I  call  attention  to  these  words  as  indicating  that  the  Uniterl 
States  want  to  pay  "  the  highe-it  limit  of  fair  valuation  and  fair 
compens'tion  for  injuries."  That  is  a  proposition  which  I  agree 
with.     My  learned  friend  wants  to  arrive  at  the  highest  limit  of 

50  fair  valuation  and  fair  compensation  for  injurie.s,  but  I  do  not 
see  that  in  his  analysis  of  the  evidence  he  has  gone  altogether 
on  the  same  line  as  I  wouhi  in  order  to  tind  the  highest  limit  of 
fair  valuation.  My  learned  friend  has  a  way  of  laying  down 
propositions  which  .seem  remarkably  clear,  and  if  he  will  only 
follow  up  these  propo.sitions  when  ho  comes  to  deal  with  the 
facts,  and  apply  these  propositions  to  the  facts,  we  si.n  cut  this 
argument  short,  but  he  proceeds  to  put  forward  an  argument  in 
regard  to  which,  to  adopt  his  own  expie.ssion  in  relation  to  .some 
of  our  arguments,  if  it  were  not  for  the  respect  I   have  for  my 

60  learned  friend  I  am  not  sure  that  I  would  reply  to  it.  He  says : 
"  The  tendency  to  preposterous  exaggeration  by  claimants  against 
"  nations,  and  especially  under  Claims  Commission.s,  has  been 
"  universally  observed  and  is  authoritatively  tet  down  in  the 
"  books  as  a  matter  to  be  treated  as  a  general  rule  in  arriving  at 


(I   iiieanH   at 

evidence  in 
ht!  <iHiiini;oii, 
lal  evidence 
BVh'ravation 
HtiineeH  tliim 
u>  act  coni- 
to  rec«'i  ve 
r  oii^'lit  the 
tru  than  the 

0  there  wa» 
elation,  and 
)ld  that  they 
n  ISN!)  the 
Hci/.iii'e,  tiie 

1  took  llJHCf , 

only  which 
■n  into  con- 
he   act  of  a 
lis  trihiinal, 
tlie  United 
i^inj;  can  do 
I  huniltly 
all.  and  that 
i'oidd  he    an 
tch,  or   any 
^hole  chiini, 
leiland,  that 
ht  to   claiiii 
of   the  ca-**' 
aicjjravated 
or  make  the 

V  arifuniont, 

nsntion   and 

the  proper 

e  respective 

0  that  what 
on  and  fair 

1  testimony." 
the  United 
ion  and  fair 
hich  I  agrfe 
hest  limit  of 
)Ut  I  do  not 
3  altogether 
ie.st  limit  of 
aying  down 
e  will  only 
al  with  tlie 
!£n  cut  this 
ki'gument  in 
tion  to  .some 
ave  for  my 

He  says : 
ants  against 
i,  has  been 
)wn  in  the 
arriving  at 


(.Mr     I'lterV    Argument.) 

"  valiialioKj."  'riieii  he  citex  <«eviral  canes  in  which  healh'ges that 
(•.\ni;;;rrnti'cl  cliiiiiit  hiivi-  ln'i-n  iiindf.  Ilnw  ciin  that  !»•  Ipmu^ht 
Id  lii'iir  nil  IiIh  iii'guiiii'iit  ill  this  cum-  '  W'liiit  is  liui  at'i>iii|ili'd 
aii,'iimi'iil  '  Kivf  nr  mLx  cases  timk  pliice  ten  or  twenty,  or  iimri'. 
veiirs  Hj,'ii,  and  in  some  id'  these  <!ttses  exti'ava).;aiit  claims  were 
iiimie,  and  Itecaiise  extiaviigant  claims  were  then  made  he  atgiicN 
|lO  timt  tlieclaiiiis  that  .ve  make  here  are  ex«;.'gerated.  I  CMiiniit  see 
where  tile  coniieciion  cdmes  in.  Kvery  case  is  to  hi'  weii,dieil  in 
reference  til  its  own  cii'dimstaiiees,  nd  it  does  imt  fnlluw  that 
lieeiiiise  ii  elaimiiiit  snine  years  ago  made  \  claim  tliiit  was 
esiigdeniterl,  tlierefiire  this  claim  is   exa;,".,'eiateil.       lie   saVs    that. 

miller  the  Mrilish  and  Aiuerican  Claims  ( 'onveiitiuM  of  IS7  I, 
lifter  lifty-livo  thnusand  [irinted  pages  of  testimony  were  taken, 
and  the  MggreL;ate  nf  claims  pieseiited  hy  Mritish  siilijects  iiHiiiiist 
the  I'liiied  States  was  ninety-six  million  dollars,  and  the  lotiil 
award  of  the  ("oinmjssion  on   these  claims  ngi,'regnled    iitily  one 

I  20  million  nine  htiiidieil  and  twenty-nine  lliousiind  eii;lit,  hiimlrod 
and  nineteen  dollai's.  and  then  I  inesiiiiie  that  he  wishes  lo  iiigiie 
that  yoii  ought  to  reduce  the  award  tliut  we  claim,  which  is 
something  over  a  million  dollars,  in  the  same  proportian.  lie 
makes  this  statement,  ahoiit  the  Claims  ('onvention  of  I.S7I 
witliiMit  mentioning  the  leasons  for  the  lediietioii  of  tlrs  claims 
ill  that  I'M-e.  lie  cites  several  other  claims,  and  he  draws  the 
assiimpliiin  or  asks  soiiieiioijy  to  draw  tlie  conclusion  that  liecaiise 
these  claims  were  exaggeialed.  therefore  our  claim  is  also 
exa;,'gerateil.     1  answered    that    contention    at   page   iA    of  our 

tiO  reply  in  this  way  :  — 

"  A  good  deal  of  ingenuity  iind  lahor  is  disjilayed  in  the 
'■  United  States  Arguments  (|(.  I.'iS  and  followini.'!  for  the  pui- 
"  pose  nf  showing  that  with  regard  to  claims  in  years  gone  hy^ 
•'  presented   liy  persons  aileniu^r  themselves  to  he    injured  hy    the 

"  act  of  II  foreign  nation,  the  anioiint  of  such  claims  were  often 
"  greatly  exaggerated,  and  piirticuhir  reference  is  made  to  claims 
"  presented  under  t he  C'laiiiis  Conventions  of  iS.VJaiid  IM7I  ;  also 
"  to  the  ( 'laims  Convention  hetween  the  Ciiited  States  and  Mexico 
"  of    INT.S,  and  lo  the  chiini-  hefoie   the  ai  hitratois  at  (ieiieva. 

40  "  What  argument  can  he  drawn  from  the  fact  that  exaLjgerated 

':  claims  were  presented  in  other  cases,  unless  it  is  contended 
"  that  liecausu  there  was  exaggeration  in  previous  cases,  a 
presumption  arises  that  there  is  in  this  case." 

That  seems  lo  me  to  he  a  complete  answer  to  what  my  friend 
1ms  ])ut  forward  under  this  head,  and  in  the  same  chapter  fol- 
lowing up  this  idea  of  exaggerated  claims,  hi;  makes  up  a  tahle 
and  he  says  that  'vlion  we  |)resented  our  claims  originally  they 
weie  so  much,  and  again  at  Victoria  they  were  so  much  more. 
Hut  the  reason  forthis  increase  must  he  very  apparent  to  the  Coin- 

50  missioners.  In  the  first  place,  wdien  the  claims  were  presented,  a 
considerahli!  mistake  was  made  upon  one  very  important  item  — 
an  item  that  my  learned  friend  does  not  dispute  wi;  are  entitled 
to  recover  for.  In  the  claim  hefoie  the  Paris  trihunal  a  claim 
was  put  in  for  a  large  amount  for  the  skins  actually  taken  and 
the  skins  thev  were  going  to  take.  When  we  c-ime  to  i,'ive  the 
evidence  at  Victoria  -ve  found  out  that  with  regard  to  some  of  the 
years  at  all  events  for  which  we  claimed  for  compensation  the  value 
of  the  skins  had  lieen  put  entirely  too  low.  I  simply  point  out 
that  as  a  reason  why  a  dirt'erence  should  exist  hetween  the  claims 

€0  as  proved  in  the  evidence  and  the  claims  as  presented  at  Paris. 

There   is  enother   point  al.so  for  consideration.     When  the 

claim  was  originally  presented  hefore  the  Paris  trihunal,  I  admit 

that  theie  was  no  claim  put  in  for  the  personal  hardship  to  the 

crew.s,  hut  when  we  came  to  give  evidence,  and  it  was  disclosed 


Tr 


■wfpr 


S(i 


(Mr.    IVtiT.s'    Ai-Ljr-mMit.) 


linw  inudi  tlii'so  ci'fws  lind  siitr.-rcil,  wo  dtM-iiu'il  it  ounliity  d)  pvt 
in  a  spfciiil  claim  od  account,  of  tlic  Imidsliips  intlictfi)  on  tlu'in. 
Tilt'  ("omiiiissioncr  on  tlic  part  of  tlu'  ITnitfl  States; — WluM'o 


do  vou  inn 


kf  til 


for  per; 


sonni  nniiiv  : 


Mr.  IVters: — 1  will  rcfi-r  to  it  ut.  UMi<j;tli  later  on.  I  am 
poin'in^'  out  now  Imw  it  is  that  tlie  claim  a.s  proved  in  cvidcneo 

10  cxcirds  till'  amotMit  tliat  was  ()ri;;inally  put  in  iit  I'aris.  1  have 
refeiit'd  to  the  increase  in  tlie  value  of  the  skills,  and  the 
oinissi'in  of  nnv  claim  for  the  hai'dshi|)s  of  tiie  crow.  'l"ho 
aililitii'.n  of  these  items  of  eonr>.'  adds  very  materially  to  the 
amount  of  the  claims,  hut  if  we  are  rij;lit  in  our  contention  tliat 
we  are  entitled  to  recover  upon  these  specific  items,  we  cannot 
he  char^'ed  with  makin;.;  e.xtravnjjant  claims,  nor  can  any  ar<»u- 
nieiit  lie  drawn  from  ihe  fact  tliat  we  did  not  originally  put 
these  items  in.  We  may  be  riejht  or  wronj;  with  regard  to 
claimiiii;    allowance    under   anj-    particular  item.     We   may   be 

20  rijiht  or  wron;,'  in  claiiiiini,'  dnnuijjje  for  hardsliips  of  the  crew, 
but  if  we  are  rii,dit  in  principle  in  claiminij;  daniafies  for  these 
hardships,  which  in  souk!  instances  were  worse  than  arrest,  I 
submit  that  no  jiidejes,  sitting  as  you  do,  can  say  tliat  the  amount 
of  five  hundred  dollars  is  too  larj^e  an  amount  to  award  in  such 
cases.  I  do  not  think  that  my  learned  friend,  if  the  court  were 
to  come  to  the  conclusion  that  we  are  entitled  as  a  matter  of 
law  to  have  the  ])rinciple  of  the  item  allowed,  woulil  dispute 
much  as  to  the  amount  it  should  be.  I  do  not  propose  to  discuss 
these  cases  at  the  present   time,  because  we    propose   takini;  tip 

30  each  one  of  these  cases  in  a  sliort  manner,  pointiiiir  out  concisely 
any  particulars  which  W(^  think  oui;ht  to  be  brouglit  to  the 
notice  of  the  Court,  ami  then^fore  when  we  come  to  consider 
any  one  of  these  cases  it  will  be  the  best  time  to  lay  before  the 
Court  the  reason  a  certain  amount  should  bo  allowed  or  dis- 
allowed, and  therefore  I  will  say  nothintj  more  about  those 
allorjed  exaj:fi:;erated  claims  at  the  present  time. 

The  last  and  third  claim  whicli  worries  my  learncnl  friend, 
and  which  he  .says  is  larj^e,  comes  before  the  ("onimissioners  in  a 
ililferent  form.     The  original  statement  of  the  claim  was  ex  purtc. 

40  'I'he  present  statement  is  an  estimate  sworn  to  by  witnesses  who 
were  subject  to  severe  cross-examination,  and  at  this  point  I  am 
doinf;  no  harm  in  sayinj;;  that  the  United  States  has  done  itself 
ample  Justice  in  appointing  Mr.  Dickinson  to  represent  it  in  this 
e!ii|uiiy,  as  \w.  has  taken  pains  to  si^e  that  if  Great  Hrifain 
obtains  a  large  amount  of  compensation,  there  will  bo  one  tiling 
sure,  there  will  be  no  item  obtained  which  has  not  been  carefully 
scrutinized  by  the  counsel  for  the  Ignited  States.  Kvery  item 
has  been  examined  down  to  the  smallest  details,  and  I  am  glad 
of  it,  for  I  hope  that  when   this  award  is   made   it    will   be  an 

.lO  award  which  can  be  justitied  by  any  person  wlio  takes  the 
trouble  to  road  the  main  |)oints  of  this  record.  Wo  want  on 
our  side  a  fair  awai<l,  an  honest  award,  which  will  stand  the  test 
of  any  person  who  chooses  to  examine  tiio  evidence  upon  which 
the  award  is  based. 

There  is  another  point  my  learned  friend  brings  before  this 
tribunal,  that  is  to  bo  found  at  page  l;5S,  under  the  heading, 
"  Personal  Damages  for  False  Imprisonment  and  Fain  and 
Sutiering."  What  is  the  line  of  argument  that  he  takes  witli 
regard  to  this  point  '.      The  facts  are  that  in    the  \'ear    IS.Sti   the 

fiO  cajitains  and  mates  of  tliret;  vessels  were  arrested,  ami  taken 
before  tiie  court,  and  wore  cliargod  with  having  violated  tlie 
laws  of  the  Unitc<l  States,  and  were  put  on  trial  and  convicted 
and  imprisoned  and  fined,  except  in  the  case  of  one  of  tiiem  who 
dies  during  the  course  of  the   proceeilings.     Tiiey  were  inipris- 


87 


10 


20 


(Mr.    Peters'    Arf^iiment.) 

oned  lit  Sitkn,  nnd  were  put  toother  hanlsliips,  which  have  heeii 
ilescrihed  in  tlie  evidence.  I  nil)  not  1,'oiiii;  to  refer  to  these  cnsos 
now,  lint  your  honors  will  tind  them  in  the  evidence  of  Mari,foticli 
nnd  other  witnesses.  What  is  the  answer  of  my  learned  friend  ? 
|{es(iys: — 

'■  As  to  these  a  tnl)li>  is  snhniitted  showinij  their  <,rrowth  in 
■'  iimoiiiit.  'I'he  testimony  in  support  of  tliem  is  hereinafter  nn- 
'  alvzed  under  the  jiroper  heads,  The  Mar^otich  story,  which 
"seems  still  to  he  >;iven  ciedence  in  the  Ihitish  arjjnment,  is  a 
"  .story  of  hnrdsldp,  hut  it  is  not  helievjd  after  the  investi^'ation 
'•  at  Victoria,  that  the  I'omnii.ssioiiers  will  {,dve  it  any  credit. 

"  The  si,i|lerint;s  nnd  losses,'  naviiratinij  four  ves.sels  from 
'■  Unalaska  to  Sitka,  of  (."ai)tain  Warren,  John  lleilly,  Captnin 
"  Kerey,  A.  15.  Laino;,  Louis  Olson,  Michael  Keefe  and  (.'aptain 
"  Petit,  of  the  Warren-Cooper  fleet,  mif,'ht  possil.ly  ho  considered 
"  irrespective  of  the  actual  American  ownership  of  the  vessels 
"  on  whicli  they  saili-d,  with  the  exception  of  Warren  and  Laing, 
"  who  hail  full  knowled>,'e  that  tlie  nati<mnl  character  of  the  .ships 
"  on  which  they  .sailed  was  not  Britisli,  hut  American.  In  any 
"  case,  the  amounts  charj^'ed  for  the  hardships  all  appear  by  the 
"  tahle  presented. 

"  What  these  Hntl'erinj;;s  and  los.ses  were  did  not  appear  at  the 
"  liearinjT  at  Victoiia,  hut  it  did  appear  for  the  first  time  at  that 
•'  hearinji  that  Warren,  Petit,  and  Keefe  wero  occnpied  during 
"  their  '  detention  '  in  Alaska  at  a  very  hijjh  price  of  compen.sa- 
"tion  paid  by  the  authorities  of  the  United  States  government, 
30  "  for  their  .services  tinder  voluntary  contract. 

"  It  did  appear  that  while  (\iptaiii  Petit  and  Keefe  were  otV 
"  on  a  v<)3'a<je  in  that  behalf,  all  the  other.s  named,  who  were  not 
"  sutferinji;  like  themselve.s,  and  Captain  Warren,  had  departed 
"  for  home. 

"Among  the  prisoners  of  .188(3,  aside  from  Margotich,  are 
"  Guttormsen,  Monroe,  Norman,  Ogilvie  and  Black,  all  of  the 
"  Onward,"  "  Thornton  "nnd  the"  Carolena."  Setting  Margotich 
"aside,  the  tale  of  suffering  of  these  men  is  related  by  the  witnes.s 
'  Dillon,  who,  as  it  turned  out  on  cross-examination,  actually 
40  "  remained  about  the  jnil,  not  as  a  prisoner,  hut  as  a  deputy  of 
"  tlie  sheriff,  and  remained  becaii.se  he  got  better  wa^es  in  that 
"  employment  than  in  following  the  sea.  There  i.s  no  claim  for 
"  wages  in  these  personal  claims,  and  not  a  word  of  testimony 
"  except  that  of  Margotich  and  the  witnes.s  juHt  mentioned  as  to 
"  any  actual  damage  suffered. 

"  The  testimony  of  Captain  Raynor  dispose.s  of  the  Ogilvie 
"claim,  and  it  is  not  thought  necessary  to  argue  the  question  a.s 
"  to  whether  the  item  which  Mr.  Munsie  cliarges  for  cash  lost 
"  through  liim  is  a  proper  charge  against  the  United  States. 

"  The  personal  claims  are  of  a  character  in  any  case  which 
"  linve  neviM'  been  allowed  in  a  case  of  unlawful  capture  at  sea. 
"  They  are  claims  for  punitory  dnmages,  which,  as  we  have  seen, 
"  can  not  furnish  the  rule  of  damages  here. 

"  It  appears  through  all  prior  commissions,  and  notably  under 
"  the  Commission  of  1S71,  tJiat  all  personal  claims  of  masters  or 
"  members  of  crews  of 


50 


ips 


ip 


ips. 


"  otherwise,  wero  presented   separately  from   the  ships,  by  indi- 
"  vidiials,  because  a  Hiiding  was  recpiired  on  'each  '  claim,  as  in 
"  this  case.     It  follows,  on  this  ground   also,  that  no  claims  can 
60   "  he  entertained  tliiit  are  not  scheduled." 

Now  the  position  we  take  is  this  : — In  ISSfi  these  six  men 
were  arrested  and  falsely  impri.soi>"d  My  learned  friend  says 
that  that  is  punitory  damages,  dnd  you  cannot  give  any  sucii 
diiiiinges.     Again  I  full  back  on  my  late  discovery,  the  case  of 


Ul 


,|      -   m  I    ipiiiiiipiii  iiini 


i   ^^t|j 


ss 

{\\r.     I'lMi'is'    Aii^imu'iit /I 

till- "  ( \<st;i  IJu'.'i."  iiiiil  1  .'i^k    \vli;it   il.'unn^^i's  wi'i  i>  i;i\  I'li  lliiMi-    if 
till'  i1;\iii;1l;i's  Wi-ii"  iiiit    I'lH   t'(ils(>  uiic-.!    tilitl  iii>li|'iMii\iiii'iil   '       I'lu" 
i-ilpliUli  1,11    lli.'it  m't   .l"i>.l.'<0  fiir  lii'in:;  inniiisiiiinl  IWi'Uly  iliiV'- 
Mr,  nii'UinsvMi        1  thou^'lit  tli.-il  w.w  for  |>i<is|n'cuvi>  i-uti-li, 
Mr    I'l'ti'V--        Wi'll    11  is  p.'ii'!    fur  iiiii>  nnil  piiri  for  ilu'  iiitu-r 
I'lU  I  Ills  IS  oli'jir  ili.'U  lu'  w.'is  iiiipiisoiu',!  fi>i  t«i'iiiv  >ln\  s,  iiiul  III- 

10  iiuiili'  lli.'U  11  ciiusi'  of  I'oiiiiWiiini,  Hill!  Ill'  w.is  p.'iiil  for  h  I'lii'ii' 
w.'is  no  ii';»soii  \vli\  111'  shoulil  iiol  ln'  |>.Uil  for  it  It  is  not  piiiii 
ti\<'  ilniiin  ',.'-.  lilt  .lMiii:ii;i's  in  tlii>  iiaiuri'  of  ji^i^riiv  ati'ii  lirtiiui^^i's. 
Till'  lU'fi'iH't'  llwit  I'iiii  all  tluou^li  iii\  li'.'inii'il  frii'iiil  s  i-iiss 
>'\'>iiiiiitUioii  in  ii'i;.'U'<l  to  till'  imprisoiuiii'iii  of  ilir  nirn  in  ISSi; 
was  trill',  wi'  iiiii'iisoiu'il  von  at  Siika,  inii',  wi'  iinlawfnilv 
arrrsti'ii  \  oil  an. I  look  awax  vour  pi'isonal  liln'iix-  for  a  I'l'ilain 
tiiui'  lull  \vi'  iniprisoni'.l  \  on  in  latlu'r  a  I'oiiifortal'li'  sort  of  a  l;,!.'!. 
wi'iiil  not  actiiallv  put  von  in  oon  vii-l  I'Kitlu's,  an. I  w  i'  .ii.i  not 
iiiipii^.'ii    \  .Ml    iM    wliat    lu'ro    wonl.l    Li-    I'alli'.l    a    ^^aol         What 

'20  answrr  liaxo  \  .'u  I.'  a  stati-iiii'lit  of  that  I'laiin  1  t.iok  avva\ 
voiir  libiTtv.  lait  I  liiii  noi  luu  t  yon  \  I'ly  niiu'h  afti'i  1  ooi  \o\\ 
If  lli.'ii'  is  oiii'  tliiiii;  upon  wliii'li  till'  Ann'iit-an  lawNi'iaiiil  tho 
i;iili--h  law  \  I'r  Mi;rri',  II  is  this  That  pi'isoiril  lilu'itv  isathliii,' 
to  hr  1  i's|ii'i'ti'.l  ahoxi'  i'\  I'lN  tiling  oKi'  It  is  a  iiilo  in  Kiilisli 
I'oiiriN  ^an.l  if  I  am  ii.'I  iiiistiiki'lO  it  i-  ihf  nih'  in  llir  I'oiiits  of 
til.'  t  luti'il  .''^ta'i's,  thai  wlii'ii  a  iiii-ii.'lu'r  .'f  t  lu'  hir.  In-  lu'  I'Vfr  so 
iniu.'r.  r, lull's  to  iimki'  applii-at  ion  for  a  writ  of  /ni''f'.(s  i\trj'iis  lir 
has  till'  ii^lit  t.>  -pi-ak  liisi.no  inaitrr  what  oKi'  is  ^oin^  on, 
\\  li\    '      rui'.'in-M'  iiiiili'r  till'  law   of  tiii-al   l>iit;iin.  an.l,   1  think,  of 

.'H>  llu'  I'nitril  Stall'-,  till'  pi'isonal  lihi'il^-  .'f  ovi'i  v  iii'in  is  a 
tiling  looki'.l  upon  Willi  thi'  hi.,^lii'st  r.'spi'i'i,  airl  wlii'ii  thai  p'l 
soiiiil  lilu-rlv  Is  iiiti'i  frri'.l  with,  .'iii'  \  on  to  Ih'  t.ihl  that  v.'ii  .'iri' 
to  liavi'  only  noiniiial  .Jaina^i's  hi't-aiisi-  ihi'  j^aol  at  Sitka  happ.  lu'.l 
to  111'  a  loom  ovii  wlu'ii'  tlu'  ju.'i^i'  -at  aiul  lii'lil  his  I'oiiii  '  I 
I'.'Ui'  II. 't  whi'tlii'i  \  ou  .ill  iiiipi  isoiii',1  ill  a  iliiiiiji'iiii  or  in  a  p'l'ai'i', 
if  vour  pi'isonal  hln'it\    is  laki'ii  fr.im  N.ni.  in  llii'  .laiihu 


.1  li 


■  l.'il    all  till'    i'iii'iiiii--l,'iiii'i's  t>(    ih 


an.l    if   ihi 
ai'ur.'iv  a(. 


.1  il 


(•lli'linisi.iiu'os    .'111'    ai;:M,'i\a 
lllll:^       ^ 


li'.l    hi'    shonl.i     ro 


40  In   l.sV 


I   I'l'iL'iiii  iiii'n  wi'ii'  also  aii'i'sti'. 


1 


,t.uiiit  that    111 


l,s>7  ilu'V  Will'  n.'t  prosi'i'iitiil  in  tho  s.uii'    w 


a\   that  ilu'X    w  1 


l.s.Si'i       Thi'    Inili'.!    Stall's  took    tlu'ni  \\\   tlu'ir   sliijvs  ai^aiiist 

(lu'ir  will,  fi.'iii  till'  plai'i'  w  lu'ii'   tlii'v  wi-io  si'i.'cl  t.>  ( >nn,'»l.'iska , 

llii'i  i',.'iL;.'iiiist  til   ii  will, in  tlu'ir  o\\  n  ships  siimo tun rs  an.l 


.'iiiil  I  r.ini 


to.ik  tlii'iii  to  Sitka,  ki'pt  thi'iu  aboaiil,  ai 


sonii'liiiii's  111  anot  hrr 

il  111  not  allow  ihi'iii  to  liavi'  inti'ioonrso  with  tlii'ii  ow  n  iiu'ii.      Tlu'N 


took 
lIu'ii 


.f  tl 


11'  nii'ii  tlu'iiisi'lvi's   p 


nit  thi'iii  niiiliT  oath  aiut  ma 


1  t;tvi'  ilrpositions  ai;a<li'-l  tlu'if  own   captain  aiiil  mati-s  w  h.i 
•  iin.ii'i  aiust,      Whiii  tlu'V  ;;ot  tlii'iii  to  .Sitka  what  ilnl  lIu'v 
\     pill    thi'iii    iiliili'r    till'    i-hai;;i'of    tin'    I'luli'il    ,S|,'»ti's 
111.1    whili'    lh;\     w  il't'    iiiiihr    arrrsi    ki'l't   tln'iii    iin.ii'r 


■n 


ii 


nia  siial 

tiiri    t  niitil  siii'li  linii'  as  tho  I'viili'iici'  wliu-li  tlii'V   lia.l  hoi'ii  f 

It'i'tiiii;  of  pi'isoni  who    Will'  to  oi\i>   rv  iilinco.  so   that  it    -lioiil 

iiiakf    It    ph'a-..int    f.  i    tlniii  to   I'onii'    to   Sitka  aiiil  sustain   tin 


i,'hiii'L;i 


;i^.'iins|    thi'in 


W 


It'll   till 


'lli< 


iliil 


anu.'   thi'v 


iliil 


til) 


not  ai'Uially  ijo  on  with  tho  prosi'i'iil  ion  I  say  thai  in  1  SsT 
allhoii:;li  thi'io  Wiio  no  i\i'tiial  prosoi'iit  ion  i  iiistitntiil.  an. 
altlioiii^h  llii"-i'  mill  Will'  nut  ('oiiili'iinnii  aiiil  tiiu'il  as  iIu'n  woi 
111  ISM'i.  at    till'  sann-  tiiiu'    tln'V  wi'io  iloprivi'ii  of   llnii    p 


tl 


lat   Is  sii  iha 


I  tiii'Xt'iv  I'lit'sh  aiiil  .Viiii'iii'an  snliii-i't 


iinjiistilialily  inli't  I'l'i'i-il  willi.anii  fir  thai  w  i'  t'lailn  iln 


W'l'  rlaiin  ilamauis   not  pnnitivi'  iiaiiia:;i's,  not  f.M  tin'  piiiposi'  of 

punishing  ihi 


ri.itiil    Stat 


I's  or    t  hi' 


nitrii    Stall 


lici'i  s    tor 


iliat   was  wioiii'-.  lull   for   tlio  inii 


pill  p.   s.'    ot     I'l    lllpi 


L;i\t'l>  tluMi-.   it" 
iimu'iil   '       Tlio 
\\  rut y  liny-i, 
[•rtivc  i'i\tfli. 

tor  I  111'  iilhi'W 
\  ilil\  -i.  iii\.l  lu' 
I'oi-  II  rii.'ii- 

ll  i-i  u.>I  piiiii 
V  ilti'ii  ilMllifliji'S, 
I I'U'iiil  -i    CI  1  -is 
r  nii'!i  ill    ISSii 
\  1'    niil.iwfiilly 

fill    !1     I'l'l  IMlll 

('  M>rl  iif  11  i^Mol. 
i\,l  \vi'  iliii   iioi 

-;U>1  \V!l;lI 

1    l.>.'lv  :i\\,'i\ 
I'l.'i    1  t;,>l   _\  .Ml 
:n\  \  I'l    .'Ul.l     I  lu> 
u'llN    Is  !\  I  lime 
I  ult>  ill    Hi  itisli 

llii>  fotirts   of 

•,  111'   111'  I'Vl'T  si> 

'itMs  i\>rj'us  lu- 
>!'  i-<  l;oiiil;  oh 
iiitl.  I  think,  of 

;'l\        IIIIU      I--      .'l 

vlu'ii  tluil    i<''i 
>1  iliiil  y.Mi   nri' 
■>illv;i  liJll'jHiir.l 
I   Ills  foiirl   '       I 
or  ill  II  iviiMi'i', 

.llUlllliJi's  1-1  I'l' 
'S  of  I  lit'  iMsi' 
tioul.i        I'l'l'l'lNf 


s!' 


Mr.  l'i'li-r>"  Arijiiiiioiii.'l 


IW 


liiii;  flii'M'  |ii'i'|ili'  for  llic  iiiiiifi't'ssiiry  itisiili,  for  Iim\  iiiij  miiioi'i's 
.-jirilx  mill  iiii|'ro|ioil\  iiili'iloroil  witli  tlu-ir  liln'rtv.  I  >.'i\  lliMl 
is  a  I'aso  lliMl  >lioiilil  111'  I'oiisiilori'il  l>y  llii>  rriliiiiial  in  tlic  >aiiu' 
\\:i\  llial  1  liaN  0  :i-l\i''l  il  to  In- ooiisiiloroil  in  oilu  r  iiiiitlois  aiiil 
ii  >lioiil.l  l>o  iloall  w  illi  lilii'rall\ . 

Wo  ail'  toKl  thai  thoii'  art'  no  cases  where  liiis  class  of  ilaiii 
a^i's  liaM'  heeii  j;i\eii,  that  iiiuler   the  same  ( "iiiiiinissinns  in  I. •so,'! 
iml  ISVI  the  personal  claims  w  ere  ilisalloweil.      I  take  this  report 
ol    the  "  Costa  IJica  Packet  "  ('ase,  aiiii  what  lio  I  liinl  '.        lleif  is 
a  iinlijiiient  j;i\eii  hy   Mr,  Marliii>.      It  ii'cites  that; 

■W'lien'as  the  treatment  to  w  Inch  Mr.  rarpenter  « as  .siih 
"  jectcil  ill  prison  at  Macassar  ap|>e.irs  to  he  iiiijiistitiaMe  in  \  iew 
••  oi  his  heiiii;  the  suhjei't  of  aei\ili.'eil  State,  whose  lieteiitioii 
••  was  only  a  precautionary  measure,  uiul  that,  coiiscipieiilly,  this 
•  lii'atmeni  entitles  him  ton  fair  comiieiisation." 

We  ask  iioihinj;  more  than  a  fair  compensation  l>iit  we 
ileiu  the  principle  that  these  men  can  turn  iiroiiiiil  ami  say  : 
I'me,  we  imprisoiieii  \oii,  interl'ereil  with  your  liherty,  hut  we 
iliil  not  hint  \oii  \er\  much;  we  iliil  not  treat  you  liarslilv  :  we 
iliil  not  actiialK  put  \  ou  to  any  \ery  i;reat  peisoiial  iiuiijjnitN  ; 
wt'  oiilv  took  voii  111'  in  a  enimpcil  m'sm'I.  intertereil  with  voiir 
personal  lihi'ity  ami  pl^•sceute^^  you  in  soiiu'  eases,  ami  were 
yniiit;'  to  in  others,  hut  tor  reasons  we  ilo  not  know  we  stoppoil 
there  with  the  pitoeeiitioiis.  If  these  pers'iiial  anx'sts  were  put 
hefoit'  any  onliiuiry  irilumal.  t!ie  :irirmiieiit  that  the  pnnishinent 
was  not  seveit',  that  the  trealmeiit  was  nut  very  harsli,  woiihl 
not  he  listeneii  to.  ami  still  less  slioiiM  it  he  listeiieil  to  in  a 
court  of  this  ilescription,  when  we  come  lu'fore  it  with  the  state 
meiil  of  ni\  learneil  frieiul  that  he  wants  to  ^el  at  the  hijihest 
limit  of  \aln.ition  So  much  with  rei^aiil  to  that  matter.  1  am 
not  tr»>iiij;  to  exaumie  the  e\  iiience  in  th.it  We  lia\i'  in  onr 
written  ais;iimcnt  put  forwaiil  a  nooil  ileal  ol  the  reconl  e\  i 
ileiice  on  tlial  point 

In  the  arraiii;:emenl  that  we  li.ive  maile  helween  counsel,  it 
has  heeii  alloitcil  to  me  to  open  the  ease  ii|>on  the  ipiestion  of 
ilamaiies.  In  the  iitlicr  \ery  import, iiit  ipiestioiis  that  will  he 
ilealt  with  it  is  the  intention  of  my  learneil  frieiuls  on  this  side 
to  iliviiie  up.  We  have  arraiiijeil  hetwcen  lis  so  fli;it  perhaps  not 
more  than  one  counsel  w  ill  ileal  with  Imt  one  i|Ue>lii>n  There 
are  some  'Jt'>  cises,  iml  the  course  wc  lia\e  taken  in  rejiai'il  to 
those  is  this:  it  is  app.ircnt  that  in  I'acli  .'lie  of  the  cases  M«me 
few  remarks  will  liaNc  to  he  iiiaile,  short  ii'inarks  in  some  cases 
ami  a  little  moix'  evteiuleil  in  others.  |!ui  1  think  time  will  he 
saveil,  so  tli.'it  not  aii\  oi  tliein  will  he  K'linlhy.  1  sui;i;est  that 
it  woiihl  he  hettcr  if  the  counsel  on  this  siile  slionhl  he  alhiwed 
to  ileal  lirst  with  lhej;eiier,il  in. liters  raiseil,  auil  after  that  anv 
remark.s  to  he  maile  on  the  special  cises  w  ill  he  iieiile  hv  the  eoiin 
sei,  who  ha\  e  hceii  selccteil  to  ari;ue  .iiiv  particular  case,  "riuii  w  ill 
not  leuirtheii  the  matter,  ami  if  \ our  (lonois  will  consent  to  that 
course  it  will  he  of  coiisiilerahle  coin  enicnee  to  the  counsel  on 
I'lir  siile,  aiiil,  1  think,  also  to  my  frieiuls  on  tlu'  other  side 

Till'  ( 'ommissioner  on   the   p.irl    ot    Her    MajesiN  :      If   it    is 
consented  to,  that  seems  to  us  a  reasonalile  course. 

Mr.  l>ickiiisou'  1  think  that  will  conduce  to  an  orderh 
hcariiii;  of  the  matter 

Mr    reteis;      M\  friends  will  follow   me  upon  the  particular 
it   points    they  are   to  speak  upon,  and    then  wi'  ;ir«'   to    lake  up    the 
pirliciilar  cases.      Now.  that  is  all    I   have   to  sjiy   at   the   pn'setil 
time    iii'on    the    piMsptn'tix  e  ealcli  and    the  inteii-sf   and  daniaift 


l-IO 


W 


e  piMpo,se  now  to  deal  with  the  other  i|Ueslions  in 


somewhat  the  same  line  that  we  have  denit  with  tlii 
.\t  half  past  tour  o'clock  the  ( 'ommissioneis  n 


^ 


Commissioners   Under  the  Convention  of  February  8th, 
1896,  between  Great  Britain  and  the  United 
States  of  America. 


Lc{i;isliitivo  Coiuicil  (^liaiuber  of  the  I'rovi  iciiil   nuildiiij;, 
At  Halifax,  N.  IS.,  Aufinst  :5(ttli,  IS!»7. 
20       At  lO.'M*  A.  M.  tlie  (\)iniiiis8i()iierK  took  tlieir  seats. 

Mr.  n(M(|UC : — In  rising  to  follow  my  learned  as.»oeiate,  1  am 
(loeply  impressed,  as  well  with  a  sense  of  tlie  duties  devolvinjr 
upon  eoiinsel  on  both  sides,  as  with  the  eonvietion  that  the  very 
important  (|uesti()ns  at  issue  will  he  finally  and  satist'aetoriiy 
disposed  of  hy  your  Honors.  In  agreeiufj  that  these  (piestions 
should,  in  the  first  instanee,  he  suhmitteii  to  two  Comndssioners. 
and  in  dealin>;  with  the  a|)pointment  of  an  umpire  as  a  merely 
eontiufrent  necessity,  each  t)f  the  Sovereifrn   i)owers  showed  a 

;}(>  strikin<i  eontidcnee  that  the  other  in  its  ai)|K)intment  of  a  ("om- 
mi.ssiouer  would  make  a  wise  and  judicious  seleetion,  which  would 
offer  every  tfuarantee  of  fairne>s,  impartiality  and  unl)ia.sed 
judjiment.  Ihat  this  contideiute  has  l)een  amply  justified  is  a 
matter  as  to  which  I  need  .scarcely  say  there  is  thoruUf^h  accord 
between  our  adversaries  and  ourselves.  For  the  discharjie  of 
these  duties,  you  are  entitled  ro  receive  from  counsel  on  both 
sides,  the  l)est  assistance  we  can  ijive  you,  and  to  commaiul  that 
we  ;;ppntach  and  carry  out  the  discussion  of  the  several  im|)or 
taut  (piestions  now  enfjaginj;  your  attention  with  the  courtesy 

40  and  the  wise  and  liberal  spirit,  which  alone  are  beconnnf;  to  the 
occasion  and  the  two  i;reat  branches  of  the  Anj^lo-Saxon  race  here 
represented. 

1  take  it,  and  have  taken  it  from  the  outset,  to  be  an  import 
ant  duty  of  the  coun.sel  for  Her  IJritannic  Majesty  to  see  on  the 
one  hand  that  ail  the  claims  fallini;  within  the  scope  of  tiie 
Convention  be  properly  presented,  and,  on  the  other  hand,  that 
none  but  legitimate  claims  be  preferred.  The  learned  counsel  on 
the  other  side  will  jtermit  me  to  add  that  wi'  had  expected,  and 
still  expect,  to  be  met  by  them  with  the  same  spirit,  as  otherwise. 

AO  to  use  the  very  expression  of  the  Claim's  Convention,  it  would 
render  it  extremely  ditlicult  for  the  liability  of  the  I'nited  States 
{j;overniiient  to  (ireat  Britain  to  be  definitely  settled  and  com 
nen.sation  made  for  any  injuries  for  which  compensation  is  due. 
The  High  ConnnissiiiU  would  then  fail  in  what  I  take  it  to  be 
its  princi|)al  object  — the  removal  of  all  causes  of  friction  ami  the 
increasing  of  the  fraternal  and  kindly  fei-iings  which  should  ever 
actuate  the  government  and  peojile  of  both  countries  in  their 
political  and  social  intercourse  with  each  othei'. 

Let   me  pause  here  for  an  instant  and  say  that,  ditlicult  as 

00  would  be  my  task  even  were  I  to  address  you  in  my  own 
langinige,  I  must  beg  the  favor  of  your  indulgence  under  the 
still  more  diflicidt  circumstan(-es  in  which  I  am  placed. 

After  the  very  able  argument  which  has  been  presented  by 
inv  learned  associate,  and  aware,  as  I  am,  that  whatever  remarks 


I* 


February  8th. 
United 


'iiil   Building;, 
*t  notli,  KS!t7. 

St'lltS. 

1  iiss(K'iatt>,  I  iini 
lutii's  (Icvolviiijr 
(11  that  tlio   viTv 
11(1  siitiHt'iU'torilv 
tlicso  (iiiestioiis 
Coiimiissioncrs, 
)irf  us  a   iiicrclv 
)\vers  showed  a 
inoiit  of  a  ("oni- 
on, which  would 
y    and    iinhiascd 
ily  justified    is  a 
tlioroufi;li  aecord 
lie  diseharfje  of 
counsel  on    lioth 
eoiiiinand   that 
several   iinpor 
til   the  coiii'tesv 
•econiinjr  to  the 
Saxon  raee  here 

to  he  an  ini|)ort- 
t_y  to  see  on  the 
e  scope  of  tiie 
ther  hand,  that 
led  counsel  on 
1  expected,  and 
it,  as  otherwise, 
ention.  it  would 
le  I'nited  States 
■ttled  and  com 
nsiition    is  due. 

I  take  it  to  he 
friction  and  the 

ich  should  ever 
miitries  in  their 

that,  ditlienlt  as 
nil  in  my  own 
cnce  under  the 
ilaci'd. 

II  presented   hy 
latever  remarks 


91 

(Mr.    Beique'.s   Aifjument.) 

I  may  otler  to  your  Honors  will  he  most  ably  and  keenly  reviewed 
and  criticised  by  the  learned  counsel  on  the  other  side,  I  can  but 
feel  that  I  will  be  deficient  in  the  task  which  I  have  undertaken. 

The  first  point  to  which  I  desire  to  call  your  attention  is  as 
to  the  scope  of  this  (Convention.  Thiour;hout  some  twenty  paijes 
of  the  brief  of  the  United.  States,  the  learned  counsel  have 
attempted  to  show  that  the  scope  of  the  Convention  is  to  be  limi- 
ted to  entpiirin^  into  claims  which  were  presented  at  Paris, 
included  in  paf^es  1  to  (iO  of  the  schedule  to  the  British  case  and 
to  the  additional  claims.  I  propose  to  .show  that  there  was  no 
such  limitation  and  that  your  Honors  are  not  only  entitled,  but 
that  it  is  the  duty  of  this  court,  to  enquire  into  all  claims  that 
have  been  presented  here.  It  will  be  necessary  for  your  Honors 
to  bear  with  me  and  follow  my  reading  of  the  principal  part,  and 
I  niav  say  of  almojrt  the  whole  of  the  Claims  Convention,  the 
Treaty,  and  the  Findings  of  Facts.  Before  doing  so,  however,  I 
think  it  would  be  proper  for  me  to  say  a  word  of  introduction  as 
to  what  has  brought  about  this  Claims  (.'onvention. 

That  in  188(;,  1>S.S7,  1>S8D,  1890,  1891  and  1892,  seizures  of 
British  vessels  while  fishing  on  the  high  seas  weie  mode  ;  that 
the  masters,  mates  and  crews  were  arrested,  imprisoned  and,  in 
several  cases,  submitted  to  other  hardships  ;  the  whole  by  the 
authority  of  the  United  States  and  for  alleged  breaches  of  tlicir 
municipal  laws,  is,  I  believe,  admitted. 

The  seizures  were  made  the  subject  of  a  long  diplomatic  cor- 
respondence, through  which  repeated  protests  were  made  on  the 
part  of  Great  Britain,  are  to  be  found  with  reserved  of  all  rights 
to  compensation.  This  correspondence  resulted  in  the  Treaty  of 
Washington  of  1892. 

The  main  investigation  under  that  Treaty  was  as  to  the 
assumed  exclusive  jurisdiction  of  the  United  States  in  Behring 
Sea,  and  the  right  of  protection  of  or  property  in  the  fur  seals 
fre(pienting  their  islands  in  Behring  Sea.  Either  party  was, 
however,  at  liberty  to  submit  any  questions  of  fact  to  the  Paris 
Tribunal,  and  to  ask  for  a  finding  thereoii,  the  question  of  liability 
upon  the  facts  thus  found  to  be  the  subject  of  further  negotiation. 

I  need  not  recall  the  fact  that  the  questions  involved  were 
decided  against  the  United  States.  First,  that  the  United  .States 
had  no  exclusive  jurisdiction  over  any  part  of  Behring  Sea,  or 
the  seal  fisheries  therein  outside  of  the  ordinary  teiritorial 
waters  ;  and,  second,  that  the  United  States  had  not  an)-  right 
of  protection  or  property  over  the  fur  seals  frequenting  the 
islands  of  the  United  States  in  Behring  Sea  when  such  seals 
were  found  outside  of  the  ordinary  three  mile  limit.  Certain 
facts  submitted  by  Great  Britain  w-ere  admitted  by  the  United 
States  and  found  accordingly  by  the  Paris  Tribunal.  The  nego- 
tiations liotvveen  the  governnients  were  resumed  and  resulted  in 
this  (Jlainis  Convention. 

Now,  taking  up  the  question  which  1  announced  a  moment 
ago,  and  referring  to  page  l.S  of  the  argument  of  the  United 
States,  I  find  the  following  proposition: 

"The  scope  of  the  convention  in  this  case  is  defined  and 
"  limited  by  the  language  of  the  convention  itself,  and  the  docu- 
"  ments,  which,  by  its  terms,  are  made  a  part  of  it  by  express 
"  reference  and  identification  in  its  body." 

That  tlu!  .scope  of  the  Convention  is  defined  and  limited 
by  its  language  is  not  ilenied.  I  am  likewise  ready  to  admit 
that  if  any  light  is  to  be  derived  from  the  Treaty  af  Washing- 
ton, the  Award,  or  the  Findings  of  Facts,  either  party  may  be 
at  liberty  to  refer  to  the  same  ;  but  I  take  issue  with  the  state- 
ment that  the  ,-cope  of  the  Convention  is  limited,  as  claimed  hy 


I  'V 


^ 


I- 


92 

(Mr.    Beique's    Argument.) 

the  (Jociinients  referred  to.     I  am  likewise  disposed  to  acquiesce 
in  the  other  propn.sition,  found  at  page  23  of  the  same  brief  : 

"  The  meaning  of  treaties  of  every  i<ind  is  to  he'ascertained  by 
"  tiie  same  rules  of  construction  and  reasoning  which  we  apply 
"to  the  interpretation  of  statutes  and  private  contracts." 

Now  turning  to  page  StS  I  read  this  :  "  Kor  the  ascertainment 
10  of  the  jurisdiction  of  the  (^omuiission  over  the  subject  matter 
the   Convention    of  Kehruarj'    8,   ]8!)(),   consists  of  three  docu- 
ments : — 

"(1)  The  Convention  standing  detached,  which  does  not  dis- 
"  close  what  claims  are  referred  to  the  Commission,  or  how  they 
"'arise,'  or  what  they  are,  and  is  unintelligible  on  the  (piestioii 
"  of  jurisdiction  without  reference  to  the  other  two  documents 
"  which  are  named  in  it." 

I  clo  not  admit  that  the   convention    is  in  itself  so  unintel- 
ligible  us   it  is   pretended  to    be,  which   I  shall    have   occasion 
20   presently  to  show. 

'  (2)  The  treaty  signed  at  Washington  on  Februar}-  2f», 
"  1892,  named  in  it ;  and  from  this  it  appears  that  the  claiinx 
"  referred  to  the  Commission  must  be  t'liinis  '  arising  '  under  tiiut 
"  treaty  :  that  is,  the  Commission  is  lim't'Ml  to  the  consideration 
"of  claims  for  injuries  that  arose  out  of  the  assertion  of  tliu 
"claim  of  the  TJnitccI  States  to  jurisdictional  rights  in  tlif 
"  waters  of  Behring  Sea  with  reference  to  seals,  which  is  the 
"  subject  matter  of  the  treaty." 

I  need  not  say  that  to  this  we  entirely  agree.  I  proceed  : — 
30  '■  Clearly,  he"'  is  a  limitation  which  prevents  this  Coiii- 
"  mission  taking  cognizance  of  any  claim  for  injuries  committcil 
"  by  the  I'nited  States,  generally,  as,  for  instance,  on  a  merchant, 
"  ship  or  a  whaler  on  the  high  seas,  which  would  have  liecii 
"cognizable  under  tlie  conventions  of   l.S.i3  and  1.S7I. 

"  (;{)  The  Awarcl  ami  the  Findings  of  the  Tribunal  of 
"  Arbitration  are  found  specitically  referred  to  in  this  conveii- 
"  tion  tiy  date,  and  especially  find  tiieie  specified  certain  Fndiii^^ 
'■■  of  Fact ;  and  so  tlie  '  claims  '  nitist  '  arise  '  as  well  by  tlii> 
"  Award  and  the  Findings  of  Fact  as  by  the  Treaty  :  and  in  this 
40  "award  -".id  tindings  of  fact  so  referred  to  as  defining  what  tlii^ 
"  Comiiiission  shall  take  cognizance  of  (a  limitation  in  addition 
"  to  that  which  wc  have  seen  attached  by  the  reference  to  tiic 
"  Treaty  of  1892),  we  find  our  way  to  the  carefidly  prepared 
"  scheilule  of  claims,  prepared  by  (Ireat  Britain,  and  sworn  to  by 
"the  claimants,  of  whicli  this  Commission  is  given  jurisdiction 
"  in  this  encjuiiy. 

"  The   sidject   matter  of  that   finding,  to  which  at  relativi' 
"  words  and  repetitions  refer  throughout  the  finding,  article  by 
"  articli',  is  stated  in  number  one  of  the  Findings  and  Facts,  and 
50  "  is  this  :— 

"  These  several  searches  and  seizure's,  whether  of  ships  nr 
"  goods,  and  the  seveial  arrests  of  masters  and  crews,  respect- 
"  ivelv,  mentioned  in  the  schedule  to  the  IJritish  case,  pp.  1  to 
"  GO.  inclusive,  etc." 

1  call  sjiecial  atterjtion  here  to  the  statement  made  that  tlie 
claims  "  must  arise  as  well  by  the  Award  and  the  Findings  of 
Fact  as  by  the  Treaty;"  and  that  therefore  the  Treat}',  the 
Award  and  The  Findings  .of  Fact  are  to  be  considered  as  two 
independent  limitation^  to  the  Claims  Convention.  This  is  tin' 
00  wholi?  contention  (d'  the  other  side.  The  words  used  in  Article 
1  of  the  Convention  are  these  : — 

"  The  high  contracting  parlies  agree  that  dli  rlnitiis  an 
"  (irvoiii)t  of  liijarlcs  xustidncd  hij  prrnoiis  in  whiise  be/ml f  (rirat 
"  liritiiiii  v'.-i  entitled  tti  claim  coinpenKiition   from   the    Cnilid 


o.setl  to  acquiesce 

0  sinne  brief  : 
lie' ascertained  by 
wbicii  we  apply 
or.tracts." 

lie  ascertaiiiineiit 

subject  matter, 

s  of  ibree  docu- 

cli  does  not  dis- 

ion,  or  bow  tliey 

on  till!  (luestioii 

r  two  (locun>en*> 

tself  so  iinintel- 
11    luive   occasion 

in    February    29. 

1  tbat  tbe  claiiiiM 
isinj; '  under  tliut 
tbe  consideration 

assertion  of  tliu 
il  ri^dits  in  tlic 
!als,  wbicli  is  tin' 

e.  I  proceeii  : — 
vents  tbis  Coin- 
juries  coniinitteil 
ce,  on  a  nierclmnt, 
,vould  bave  been 
1  1X71. 

tbe  Tribunal  of 
o  in  tbis  conveii- 
d  certain  Fndini,'s 
as  well  by  tlii' 
reaty  ;  arid  in  this 
efiniii^  wbat  tliis 
ation  in  addition 
!  reference  to  tlic 
arefiilly  prepared 
,  and  sworn  to  liy 
given  jurisdiction 

vbicb  at  relative 
inilinj;,  article  by 
f^s  and  Facts,  and 

ether  of  ships  or 
id  crews,  respect- 
isb  case,  pp.   1   to 

nt  iiiado  tbat  the 
the  Finding's  of 
tbe  Ticat}',  the 
oiisidered  as  two 
ion.  This  is  the 
s  used  in   Article 

it     ((//      cllliUlS    (III 

vluKsc  behalf  (hnit 
Crom   tlie    L' niii'd 


m 


20 


30 


40 


60 


93 

(Mr.    Bei(|ue's   Arp;ument.) 

"  Stidea,  and  arixinf]  In/  virtue  of  the  treati/  aforeniiid,  the  aw(a'd 
"  and  the  findinps  of  the  mild  tribuval  of  iir\iitration,&9  also  the 
"additional  claims  specified  in  tbe  fifth  paragraph  of  the 
"  preamble  here,  s/ta// 6c  ?v/cr)y;(/  to  two  rommissioners,  i)ni\  of 
'  whom  shall  be  appointeil  by  Her  Britannic  Majesty,  and  the 
"  other  by  the  President  of  the  United  States,  and  each  of  whom 
"  shall  be  learned  in  law. 

"  Appended  to  this  convention  is  a  list  of  claims  intemled  '  to 
"  be  referred.'  " 

The  words  •'  as  well  "  are  no  where  to  be  f'.unil  here,  or  any- 
where else,  and  their  introduction  is  an  attempt  to  alter  the 
nieaiiiiif^  of  tbe  Convention. 

I  have  just  stateil  that  the  Convention  taken  alone  is  not  as 
uriintelli<;ii)le  as  is  claimed  by  my  learned  friends.  Let  us  refer 
to  tbe  preamble  of  the  Convention  : 

"  Whereas,  by  a  treaty  between  H(.r  Majesty  the  (Jjueen  of 
"  the  United  Kini^dom  of  Great  Britain  anil  Ireland  and  tbe 
"  United  States  of  America,  si(,'ned  at  Washin^'ton  on  February 
"  20,  1<S92,  the  qaentiovn  which  hud  oriseii  between  their  I'espee- 
"  tive  ({overnments  covrervivij  the.  jurisdirtionol  riyhtu  of  tlie 
"  Uniti'il.  Htatci*  in  the  icotevn  of  Jiehiivf/  .SVk,  and  concerning; 
"  also  the  preservation  of  the  fur-.seal  in,  or  haliitually  resortinj^ 
"  to,  the  said  sea,  (uid  the  rii/hls  of  the  cilizenn  and  milijerln  of 
"  either  country  as  reijanh  the  tokiiuj  of  far  seal  in,  or  hahil- 
"  xudl;/  risortivg  to.  the  naid  watern,  ivere  sahinitted  to  a  trihunal 
"  of  arbitration  as  therein  constituted." 

Tbis  para^'raph  refers  to  all  the  questions  wdiicli  have  arisen 
between  (beat  Britain  and  the  United  States  in  connection  with 
the  subject  matter  in  question,  inclndin;,'  the  ri^^hts  of  British 
subjects,  as  expressly  stated  of  takinfj  fur-stalsin  Bebring  Sea, 
as  luiviiij;  been  su'.nnitted  to  the  Paris  tribunal. 

"  And  whereas,  the  lii;,'h  contract  in;,'  jiarties  have  founil 
"  themselves  unai'le  to  ai.;ree  upon  a  reference  which  should 
"  includi?  tbe  question  of  the  liability  of  each  for  tbe  injuries 
"  alle^jed  to  have  been  sustained  by  the  other,  or  by  its  citizens, 
"  in  connection  with  the  c'liiins  presented  aird  iirj,'ed  by  it,  ilid 
"by  articli!  VIII.  of  the  said  treaty,  ayree  that  either  party 
"  might  submit  to  the  arbitrators  any  questions  of  fact  invijlved 
"  in  said  claims  and  asked  for  a  finding  thereon,  the  question  of 
"  the  liability  of  either  government  on  the  facts  found  to  bo  the 
"  subject  of  further  negotiation." 

This  paragraph  is  also  perfectly  plain  in  itself,  and  is  verbally 
the  recital  of  article  8  of  the  Treaty  of  Washington.  I  read 
fiiither : — 

"  And  whereas,  the  agent  of  Great  Britain  did,  in  accordance 
"  with  the  pi-ovisions  of  said  article  VII I.,  submit  to  the  tribunal 
"  of  arbitration  certain  findings  of  fact  which  were  agreed  to, 
"  as  proveil  by  the  agent  of  the  United  States,  and  the  arbitra- 
"  tors  did  uiianinioii-ly  find  the  facts  so  set  forth  to  be  trui\  as 
"  appears  by  the  award  of  the  tribunal  rendered  on  the  loth 
"  day  of  August,  I8!»;{." 

A  reference  is  made  here  to  the  awanl,  evidently  for  the 
purpose  of  ascertaining  what  facts  ivlating  to  or  involving 
liability  have  already  been  established  between  tbe  two  govern- 
ments, and  limiting  the  enquiry  to  any  reiirairiing  facts  which 
m.iy  be  pertinent  to  the  claims  involved. 

Now  comes  the  leading  and  most  iiiiporlant  paragraph  of 
the  Convention  :  — 

"  And  whereas,  in  view  of  the  said  fin  din  (jn  of  fact  and  of 
"  the  decision  of  the  tril)nval  of  arbitration  eoncrrnln(j  the 
"  jurisdictiovul  rights  of  the  United  States  in  lieh ring  Sea,  &i\d 


1^1 

m 

H 

i 


jm^mfim 


94 

(Mr.    Beique'«   Argument.) 

"  the  ri(:jlit  of  protoction  or  property  of  the  ITnited  States  in  tlie 
"  fur-seals  frociuentinjj  the  islands  of  the  Uniteii  States  in 
"  Hehring  Sea,  the  yuveriiment  of  the  United  States  in  drsirotis 
"  that,  ill  nu  fai'  (IX  its  litibiliti/  in  vot  idreadii  fixed  and  deter- 
"  mined  by  the  findltii/s  of  fad  and  the  decixiun  of  milil  tribunal 
"  of  (trbitnition,  the  iiuextion  of  Huch  liability/  should  be  delin- 

10  "  itehi  and  full  1/  settled  aud  detenu ined  and,  covijiensation  made 
"  for  aui/  injuries  for  whieh,  in  the  eoutem.plation  of  the  treaty 
"  aforesaiil ,  ami  the  aivard  and  fiudiu(/s  of  the  tribunal  of 
"  arbitration,  couipensation  may  be  due  to  Great  Britain  from 
"  the  United  States." 

Witii  this  wordinjr  that  "  the  United  States  is  desirous  that, 
in  so  far  as  its  liahility  is  not  alreaijy  fixed  anil  deteiniined  hy 
the  Findings  of  Facts  and  the  decision  of  the  Trilninal  of 
Arliitnition,  the  (jiiestion  of  sudi  lialiility  should  ho  detinitely 
and  fully  siatled  and  di!terinined,"  how  can  it  he  pretended  that 

20  tlie  lialiility  is  to  he  limited  to  tliat  arising  from  the  Award  and 
the  Findings  of  facts  or  that  such  Award  ami  Findings  of  facts 
are  to  stand  or  to  he  taken  as  uhsolute  limitations  to  the  scope 
of  the  Convention  ? 

And  what  of  this  expressed  desire  that  "  compen.sation  he 
made  for  any  iiijui'ies  for  whicli,  in  the  contemplation  of  the 
treaty  and  the  Award  and  the  Findings  of  the  Trihunal  of 
Arliitration,  cowijionsation  may  he  due  ...."? 

In  plain  language,  is  it  not  a  declaration  that  compensation 
is  to  he  made  for  all  injuries,  whether  tiiey   were  in  contemplu- 

30   tion  of  the  Treaty,  of  the  Award  or  of  the  Findings  of  facts. 

The  words  used  "  its  liahility  "  arc  as  compreliensive  as  can 
he  and  evidently  inteinled  to  cover  any  lialiility  incurred  hy  the 
United  States  for  nets  ilom;  in  the  assertion  of  their  assumed 
exclu.sive  jurisdictional  rights  in  IJehring  Sea  and  wiiich  acts  as 
the  result  of  the  Paris  Award  were  illegal  and  unwarmnted. 

The  word  "  compensation  "  used  in  ti)c  same  paragraph,  is 
co-extensive  witli  the  w(/i  >1  "lialiility"  to  which  it  refers  and 
was  likewise  intendei',  I  respectful!}'  suhmit,  to  covei  comp3nsa- 
tion  for  all  injuiies  sutiered. 

40  The  portion  of  the  preamhie  f)f  the  Convention  I  have  read 
•••o  far,  heing  general  in  its  terms  and  comprehensive  enougli,  as 
I  have  said  to  cover  all  claims,  arising  from  acts  of  the  United 
States  in  the  assertion  of  their  assumed  exclusive  jurisdictional 
rights  in  liehiing  Sea,  the  next  paragraph  may  have  heen  more 
or  less  necessary. 

"  And  whereas,  it  is  claimed  hy  (Jreat  BritaiTi,  though  not 
"admitted  hy  the  United  States,  that  prior  to  the  saiil  award 
"  certain  other  cliiims  against  tiie  United  States  accrued  in  favor 
"of  Great  iJritain  oi.  account  of  seizures  of  or  interference  with 

50  "the     following    named     Bi'itish    sailing  vessels,    to    wit:    the 


'  '  WandiM'e 
and  Hatti 


the  '  Winnifred,"  the  '  Heiu'iettsi 


md   tlie  'Oscar 


and  it  is  for  the  mutual  interest  and  convenience 
"  of  hotli  the  high  contracting  parties  that  the  liability  of  the 
"  United  States,  if  any,  an<l  the  amount  of  compensation  to  he 
"  paid,  if  any,  in  ropeet  of  such  claims,  and  each  of  them 
"  should  also  he  determined  under  the  provisions  of  this  con- 
"  venti(jn." 

Apart  from  the  leason  which  I  will  give  later  on,  tins  para- 
graph may  he  explained  hy  i.  desire  on  the  partof  (ireat  Britain 
00  to  inform  the  United  States  as  fully  as  possihle  of  all  the  claims 
it,  had  in  mind  at  the  time.  And  the  fact  that  the  United  States 
though  not  admitting  its  liahility  in  connection  with  tlie  vessels 
mentioned  in  this  last  paragraph,  consented  to  the  claims  heing 
thus  specially  lefeired,  slujws  an   intention   and   a  desire  on  its 


9S 


(Mr.    Beique's    Argument.) 

F)art  to  avail  itself  uf  the  pre.sent  Coiiiiniasion  to  e.xhnust  all  its 
lability. 

The  only  limitation  to  be  found  as  to  liability  or  compensation 
is  that  resulting  from  the  follmvinj^  portion  of  the  preamble  of 
the  Convention,  "  all  claims  by  Great  Britain  nmier  Article  V 
"of  the  Modus  Vivendi  of  April  18th,  1892,  for  the  abstention 
ilO  "  from  Kshint;  of  British  sealers  diirinjj  the  pendcncj'  of  said 
"arbitration  having  l)oen  definitely  waived  before  the  Tribunal 
"  of  arbitration." 

Article  1,  of  the  Convention  is  in  accord  with  its  prean>ble: 
— "  All  claims  ....  arismg  by  virtue  of  the  treaty  aforesaid,  the 
"  award  and  the  finding  of  the  said  tribunal  of  arbitration  . .  .  ." 
L(^t  me  now  refer  to  the  Treaty,  the  Award  and  Findinjjs  in 
(jiii'stion  and  see  whether  a  limitation  of  liability  is  to  be  found 
in,  or  inferred  from  them. 

"  Her  .Majesty  the  Queen  of  the  ITnited  Kingdom  of  Great 
[20  "  Britain  and  Ireland,  and  the  United  States  of  America,  being 
"  deslroiix  to  pnivide  fur  (in.  (unicitble  nctt.emtnt  of  the  iiueationti 
"  witicli  Imce  (iriscn  hetiirev  their  rei*i>ertive governitientu  ronccrn- 
'  inij  the  JurindieJlonol  riijlifs  of  the  I'nited  Stdtea  in  the  icater 
"  of  liehrinij  Sea,  (ind  concerning  also  the  preservation  of  the  fur 
"  seal  in,  or  liabitiiall}'  resorting  to  the  said  sea,  <ivd  the  rights  of 
"  the  citizens  und  8u1)j<'etfi  of  either  coiintri/Kx  regardu  the  taking 
"  of  far  seal  in  or  hitbitaullg  resorting  to  the  snid  ivdters,  have 
"  resolved  to  submit  to  arbitration,  the  ijueMions  i nvulved,  a.nt\ 
"  to  the  end  of  concluding  a  convention  for  that  jjurpose,  have 
[30  "appointed  as  their  respective  plenipotentaries,  etc." 

Is  not  this  wording  as  ample  as  can  be  and  does  it  not  cover 
all  the  ipiestions  which  have  arisen  between  (ircat  Britain  and 
the  Fnited  States  concerning  the  subject-matter  mentioned  ? 

Take  again  Article  1  of  the  Treaty:  "The  questions  tchich 
"have  arisen  between  the  Government  of  Her  Britannic  Majesty 
"and  the  Government  of  the  United  States  concerning  the  juris- 
"  diclional  rights  of  the  United  States  in  the  u-aters  of  Beliri'  g 
"  Sea,  and  concerning  also  the  preservation  of  the  fur-seal  b.  or 
"habitually  re.sorting  to  the  said  sea,  ami  the  rights  of  the 
40  "  citizens  and  .mbjccts  of  cither  country  as  regards  the  taking  of 
"  fur-seal  in  or  habitually  resorting  to  said  waters,  shall  be  sub- 
"  mitteii  to  a  Tribunal  of  arbitration,"  &c.  What  was  to  be 
subndtted  ?     Was  it  not  all  the  questions  which  had  arisen  ? 

It  wil/  possibly  be  contended  bj-  my  learned  friends  on  the 
other  side,  that  a  restriction  is  to  be  found  in  Article  VIII  of  the 
Treaty  in  as  uiueh  as  the  liability  therein  mentioned  was  that 
"  in  connection  with  the  claims  presented  and  urged  and  it  will 
"  be  aigiied  that  the  claims  therein  referred  to  were  the  claims 
"appearing  in  the  schedule  to  the  British  case.— pp.  1  to  CO." 
|50  What,  however,  becomes  of  this  argument  if  it  be  true  as 
stated  on  p.  7  of  the  United  States  brief  that  "the  claims  were 
"  not  presented  in  any  form  until  the  Paris  Tribunal  came 
"  together  in  IcSO.I."  Does  it  not  follow  that  the  claims  referred 
to  in  Article  VIII  of  the  Treaty  of  the  29th  February,  1892, 
were  such  claims  generally,  as  ndght  arise  from  the  seizures  and 
other  acts  of  interference  complained  of  by  Great  Britain  in  the 
course  of  the  dip'omatic  correspondence  anterior  to  saiil  Ti-eatv 
and  on  account  of  which  all  rights  to  compensation  had  been 
repeatedly  reserved. 
BO  Article  VIII.  stated  that  the  contracting  parties  had  failed 
to  agree  upon  a  reference  including  the  liability  of  each  for  the 
injuries  alleged  to  have  been  sustained  by  the'  other,  or  by  its 
citizens,  in  connection  with  the  claims  presented  and  urged  by 
it;  but  that  they  had  agreed    that  either   might   submit  "to  the 


i« 


i 


!? 


1 


!■  lllj.mUJI.il 


I 


06 

(Mr.    Beiiiiios'    Ari;  iiii  nit.) 

arliitrators  any  (jiie.stion  of  fact  involved  in  said  claims  and  ask 
for  a  timlinj,'  tluMvon,  tlie  (lucstion  of  the  lialiility  of  eitluT 
govt'inini'iit  upon  the  liicts  found  to  \<v  the  sul>ject  of  further 
m-i^otintiun. 

Was  it  not  open  to  (iivat  Hritain  iimler  the  Tn^aty,  ami 
especially  under  Article  Vlll.  thereof,  to  ask  for  a  tindin<{  of 
10  facts  as  well  in  connection  with  one  class  of  claim  as  atiother  ^ 
Will  it  he  pretended  for  instance  that  there  could  have  heen 
nn  oliji't'tion  to  the  Mliick  Dianmnd  hein;,'  mentioned  in  the 
Hchedule  of  Mritish  claims  amongst  the  vessels  warned  in  KSfsO, 
or  to  tindin;;s  of  facts  heinj^  asked  foi  in  conm^ction  with  the 
arrests  or  suHerini,'s  of  Captain  Uauilin,  the  nuister  of  the  "  Ada  ?" 
Evidently  not. 

When  the  treaty  wassij^iii'd,  what  !•  now  known  and  referred 
to  a>  llie  sclu'dule  to  the  Ihitish  case,  pp.  1  to  GO  not  heiii;^  in 
existence,  or  at  least  not  havin;;  heen  communicated  to  the 
20  United  States,  it  could  not  have  heen  referred  to  in  said  Tii-aty. 
Now  let  us  take  the  award  and  the  lindin;,'  of  facts  and  see 
whether  there  is  in  the  award,  or  in  the  finding  of  facts,  any 
limitation  such  as  is  claimed  hy  the  other  side. 

"  Wheieas,  hy  a  treaty  hetween  the  Tinted  Slates  of  America 
"  and  ( ireat  Itritain,  sijjneil  at  Washiiic^ton  tlu^  21tth  February, 
•'  IMI:?  til"  ratifications  of  which  hy  the  ^oveinmeiits  (if  the 
"  two  countries  were  eAchan},'ed  at  London  on  the  7lh  May, 
'•  1MI2,  it  was.  amiiiij,'  other  thin<js,  a^^need  and  concluded  that 
"  the  (piestions  whicli  had  arisen  hetween  the  i,'overnments  of 
30  '•  the  United  States  of  Ameiica  and  the  government  of  Her 
"  Britannic  Majesty,  conceiniii}>  the  jurisdictional  riijhts  of  the 
"  Tnited  States  in  the  waters  of  llehrinLj  Sea,  and  conceinin;; 
"  also  the  jireservation  of  the  tor  seal  in  or  hahitually  resmtiii;; 
"  to  the  said  waters,  and  the  rij^hts  of  the  citizens  and  suhji'ct^ 
"  of  either  country  as  lejjards  the  takinj;  of  fur  seals  in  or 
"  hahitually  resortin<;  to  the  said  waters,  should  he  suhmitted  to 
"  a  triliunal  of  aihitration  to  he  compox'd  of  seven  arhitrators." 
Alwavs  the  sanie  lan;,'uaj,'e  and  reference  to  all  the  (piestions 
which  had  aiiseii  hetween  the  two  ^(Dvei  iiments. 
40  "  And    whereas,    liy    ArlJcle    Vlll.   of  the   said    treaty,  after 

"  recitini,'  that  the  hi;;li  contractinjr  jiarties  had  found  themselves 
"  nnahi(!  to  a^'rt;e  upon  a  reference  which  should  include  the 
"  (|Uestion  of  liahility  of  each  for  the  injuries  allejjed  to  liave 
"  heen  sustained  hy  the  other,  or  hy  its  citizens  in  connection 
"  with  the  ch  ims  presented  and  ur!.;fd  hy  it,  and  that  "  they 
"  were  solicitous  that  this  suhordinate  ijuestion  should  not  inter- 
"  rupt  or  loii<,'er  delay  the  suhmission  and  determination  of  the 
"  main  ipiestions,  the  hijjh  contractin;^  parties  ajjreed  that 
"  either  of  them  miij;lit  suhmit  to  the  arhitiators  any  ipiestion  of 
50  '•  fact  involved  in  said  claims  and  a-k  for  a  finding  thereon,  the 
"  (piestion  of  the  lialiility  of  either  f.'overnment  upon  the  facts 
"  found,  to  he  the  suhject  of  fuitlu-r  negotiation." 

This  is  a;,'ain  a  mere  recital  of  Article  S  of  the  treaty,  and 
no  limitation  can  he  inferred  from  that.  It  is  unnecessary  to 
read  what  follows.  I  now  take  the  la-^t  paratjraph  of  the  recital  : 
'•  And  whereas  the  |;overnment  of  H.-r  Britannic  Majesty  did 
"  suhndt  to  the  Trihunal  of  Arhitration,  hy  Article  VIII.  of  the 
"  said  tieaty,  certain  (piestions  of  fact  involved  in  the  claims 
"  rcfeiied  to  in  the  said  Article  VIII.,  and  did  also  suhmit  to  us, 
GO  "  the  said  'riihunal,  n  statement  of  said  facts,  iis  folhiws,  that  is 
"  to  say  :" — 

I  have  shown  that  article  S  of  tin;  tieaty  could  not  have 
referred  to  the  schedule  which  was  not  then  in  exislenci';  it 
referred  to   the   claims   which    Great  Britain   had  expressed   her 


97 


(Mr.    Beiqiie's    Arj^nment.) 

intention  of  preferrinj;  ajjainst  t'-.o  Uniterl  StntcH.  Tlif  nniteil 
Stntcs  linil  not  coniciitml  to  onqiiirt!  as  to  those  cliiinis,  ami  tlicrt'- 
foic  till'  occasion  hn,.l  not  y«t  proseiituil  itsi^lf  for  (Jreat  Hiitain 
to  formally  pre*";nt  tli(!ni. 

I  claim  tint  the  leference  which  in  niailc  tliroiij^hoiit  these 
(lociiincntv  is  not  a  reference  to  the  scliediile  to  tlu!  Hritisli  cnse, 
0  hnt  merely  to  the  claims  as  arisin^r  from  tin?  ille;,'nl  acts  of  the 
I'liiteil  Stntcs  and  for  which  (Jreat  Hritain  had  expressed  her 
intention  to  demand  c-mpeiisiition  on  lielialf  of  her  siilijects.  I 
now  take  the  tin(Iini,'s  of  the  facts  : — 

"  Kindin^'s  of  fact  j)roposed  l>y  thea;i;entof  (ireat  I'iritain  and 
"  ai,'ieed  to  as  proved  hy  the  aj,'pnt  for  the  United  States,  iiml 
"Milimitted  to  the  'l'i-iliunal  of  Arhitration  for  its  consideration." 
"  1.  That  the  several  searches  and  seizures,  wliethor  of  ships 
"  or  ;,'oods,  and  the  several  arrests  of  masters  and  crews,  respi!c- 
"  tively   mentioned  in  the  schedule  to  the  British   case,  pp.  1    to 

iO  "(H).  inclusive,  were  made  tiy  the  nnthority  of  the  United  States 
"  rjovernment.  The  (|Uestiors  as  to  tin?  value  of  the  said  vessels 
"  or  their  contents,  oi  either  of  them,  and  the  (piestion  as  ti 
"  whether  the  vessels  mentioned  in  the  schedule  to  the  Uritish 
"  case,  OI  any  of  them,  were  wholly  or  in  pait  the  actual  jiioperty 
"  of  citizens  of  the  United  States,  have  lieen  withdrawn  from, 
"  and  have  not  heen  considered  hy  the  Tiihunal,  it  lieiiiLj  iinder- 
"  stood  that  it  is  open  to  the  United  States  to  raise  these  (|Uentiotis, 
"  or  any  of  them,  if  they  think  tit,  in  any  future  nej,'f)tiations  as 
"  to  the   liahility  of  the  United    States  j^oveinment  to  pay   the 

80  '"amounts  nientioned  in  the  schedule  to  the  iiritish  case." 

Heference  is  made  liere  in  this  pararjraph  to  the  schedule  to 
the  liritish  case,  liecause  the  claims  therein  mentioned  were  the 
o?dy  claims  as  to  which  (Jreat  Britain  had  deemed  it  advisalih* 
to  ask  lor  findiuLts  of  facts  under  Aiticle  <S  of  the  treaty,  Imt 
(irent  Britain  nerer  waived  any  of  its  iif;hts  for  further  claims, 
especially  at  a  time  when  the  United  States  had  not  yet  ajfieud 
to  make  coiii|iensation  or  even  acknowled;;e  their  liahility.  (ireat 
Hiitniii  surely  never  waived  the  liyht  to  prefer  any  claims  to 
which  llrilish  snijeets  mijjlil  he  entitled  hy  reason  of  the  illej;al 

to   acts  of  the  United  States. 

"That  the  seizures  aforesaid,  with  the  exception  of  the 
"  Pathfinder,"  seized  at  Neah  Hay,  were  made  in  Behrin^j  Sea  at 
"  distances  from  shore  to  shore  mentioned  in  the  schedule  annexed 
"  hereto,  marked  (('.) 

"  That  the  said  several  searches  anil  seizures  of  vessels  were 
"  made  h\-  puhlic  armed  ve.ssels  of  the  Unitei'  States,  the  coni- 
"  mandeis  of  which  had,  at  the  several  times  when  thej'  were 
"  made,  from  the  executive  department  of  the  Government  of  the 
"  United  States,  instructions,  a  copy  of  one  of  which  is  annexed 

50  "  hereto,  {<()  and  that  the  others  were,  in  all  suhstantial  respects, 
"  the  same.  That  in  all  the  instances  in  which  proceed itiifs  were 
"  had  in  the  District  Courts  of  the  United  States  residtinjj  in  con- 
"  demnation,  such  proceedinnfs  were  hefjun  hy  Hlin;;  of  lihels,  a 
"  copy  of  one  of  which  is  annexed  hereto,  marked  (B),  and  that 
"  the  lihels  in  other  proceedinrfs  were  in  all  substantial  resjiects 
"  the  same ;  that  the  allejjed  acts  or  offences  for  wdiich  .said 
"  several  seaiches  and  seizures  were  made,  were  in  each  case  done 
"  or  committed  in  Behrin<j;  Sea  at  the  distances  from  shore  afore- 
"  said  ;  and  that  in  each  cnse  in  which  sentence  of  condemnation 
0  "  was  passed,  except  in  tho.se  ca.ses  when  the  ves.sels  were  leleased 
"  after  condemnation,  thest^izure  was  adopted  hy  the  government 
"  of  the  United  States:  and  in  those  cases  in  which  tlie  vesseh 
"  were  released  the  seizure  was  made  hy  the  authoiity  of  the 
"  United  States  ;  that  the  said  tines  an  1  imprisonments  were  for 


98 

(Mr    Ht'i(|UH's   Armiiiiptit.) 

"  alloj^oil  liipachoM  of  tliH  iniiiiici|ml  Ihwn  nf  llio  niiiti'tl  States. 
"  wliifli  all»'j,'fc|  lirciicln's  wtMc  wliolly  cominittt'il  in  Holiriii/,'  Sea 
"at  till'  ilistiiiiccH  from  slimt'  afort'sftid.  " 

" 'I'liat  tlic  Nfvi'iiil  oiili'iN  inrritioncil  in  tlic  scliciliili-  ntitifXi'i! 
"hfTt'to  iiikI  niari<('il  ((,'),  wiirnini,'  vessels  to  leave  or  imt  tii  enter 
"  lieliriii;;  Sea  weif  made  iiv  |iiililic  armed  vussels  of  the  Fiiited 
10  "  Stiites,  tlic  pumiiiaiiders  of  wliicli  lind,  at.  tlie  several  times  when 
"  tliey  wcrp  j;iven,  like  iii>tnu'tions  as  meiitioneil  in  limliny;  ."t, 
"and  that  the  v.isseis  sn  warneil  were  en;,'ai,'eil  in  sealini;  or  nro- 
•' secuiini;  vo\M;,'es  for  that  piiipose,  and  that  such  action  was 
"adopted  liy  the  !,'overniuetit  of  the  I'nitud  States." 

"  'I'liat  the  district  oints  of  the  I'niteil  States  in  wliir'i  any 
"  I)r()ceedinj,'s  were  had  or  taken  for  tlie  purpose  of  eondei,  ninj; 
"any  vessel  seized  as  mention.td  in  the  scheclidt!  to  the  i-aso  of 
"  (iieat  Ihitain,  pp.  1  to  (iO,  inclusive,  had  all  the  juris  lietion  and 
"  powers  (d'  courts  of  admiralty,  ineludiri;;  prize  jurisdiction,  Imt 
20  "  that  in  each  ease  the  sentence  pronounceil  liy  the  court  wns 
"  hiisrd  upon  the  ^-rounds  set  forth  in   the   lihel." 

Ainiex  A  is  a  letter  of  the  actinu'  Secretaiy  of  State  to  the 
comiuanilei'  of  the  revenue  steiinu'r  "  Hear,"  as  follows: — 

"  'I'riasuiy  Department,  ( >llice  of  the  Secretaiy. 

\VaHhin';ton,  April  'Jl,  INSd. 
'■  Sir,— 

"  lleferiinj;  to  .leparlnicTit  letter  of  this  date,  directing  you 
"  to  proceed  wiiii  revenue  steamer  '  Heiii ,'  un  ler  your  (MUimand, 
"  to  the  si'iil  islands,  etc.,  yon  are  herehy  clothed  with  full  po'ver 
.')()  ■  to  enforce  'he  law  cotitained  in  the  provisions  of  .section  IDofi 
"of  the  Tnited  States  revisecl  statutes,  and  directi'il  to  seize  all 
"  vessels,  anil  arrest  and  dtdiver  to  the  proper  authorities  any  or 
"  all  per-ons  whom  you  may  detect  violating,'  the  law  referred  to, 
after  due  notice  shall  lie  ^'iven." 

"  Vou  will  also  seize  any  liipiors  or  firearms  attempteil  to  ho 
"  introduceil  into  the  country  without  proper  peimit,  \inder  the 
"  provisions  of  section  l!l').')  of  the  revised  statutes,  and   the  pro- 
'  claniation  cd'  the  Piesiclcnt,  dati'd  tlie  4th  of  Fehruary,   l.S7(). 
"Ke.spectfullv  yours, 
40  (Signed)     ('.  S.  l-'airchil.l, 

Acting  Secretary. 
Captain  M.  A.  Healy, 

Commanding  revenue  steamer  Hear, 
San  Francisco,  California. 

Annex  U  is  a  lilud  of  information  showing  that  the  whole 
proceedings  were  done  liy  authority  of  the  Cnited  States  and 
shnwing  al-io  that  it  was  for  an  alleged  lireaeh  of  their  municipal 
law.      It  aKo  ciiiitains  these  allegations; 

"  That  Charles  A.  Ahliey,  an  olHcer  in  the  Revenue  Marine 
."iO  "Service  of  the  United  States,  and  on  special  duty  in  the  waters 
"  of  tile  district  of  Alaska,  heretofore,  to  wit,  on  tlie  1st  day  of 
"  August,  l.SSti,  within  the  limits  of  Alaska  Territory,  ami  in  the 
"  watert  thereof,  and  within  the  civil  and  jmlicial  district  of 
"  Alaska,  to  wit.  within  the  waters  of  that  poition  of  liehring 
"  Sea  lielonging  to  the  .-aiil  district,  on  waters  navigahle  from 
'  the  sea  1>3'  vts^els  of  10  or  more  tons  hurden  seized  the  ship  or 
"  vess(d,  commonly  called  a  schooner,  the  'Thornton,'  her  tackle, 
'■  a|)parid,  hoats,  cari;o,  and  furniture,  lieing  the  property  of  some 
"persons  or  persons  to  the  s.iid  attorney  unknown,  as  foifeited 
(10   "to  tlie  Cnited  States,  for  tlie  following  causes: 

"  That  the  said  vessel  or  schooner  was  found  engagecl  in 
"killing  fur->ed  within  the  limit  of  Alaska  territory,  and  in  the 
"  walfus  thereof,  in  violation  of  section  IDoG  of  the  revised 
'  statutes  of  tlie  United  States." 


M 


(Mr.    IU'ic|iie'M   Ar^jtiiiu-nt.) 

Annex  (!  shows  tlio  minies  of  llit*  MiiliHli  vcssuls  soizod  or 
will ni'cMiy  the  (Tniteil  rfVtdiiie  witters  from  1M.S(!  to  IMDOaiid 
the  (ipproxiniiite  distiince  fioni  liiml  whi'ii  seizoil.  The  tubh< 
eontiiins  tlie  foMowin^'  heails  :  tlie  naaie  of  the  vessel,  (hite  r" 
seizure,  till'  iipproximiite  distance  from  land  when  seized  and  tl 
United  States  vessid  makinL,'  tlu;  seizure.  And  the  award  doses 
(   with  these  piini;,'raphs  ; 

'  And  whereas  the  i,'overninent  of  her  Hritannic  Majesty  did 
•  ask  the  said  arhitrators  to  find  the  said  facts  as  set  forth  in  iIki 
"said  statements,  and  whereas  the  aj^ent  and  counsel  for  the 
'■  United  States  i;overnment  thereupon  in  our  presence  informed 
"  Us  that  the  said  statement  of  facts  was  sustained  hy  the  evi- 
"  dence,  and  that  they  had  a;,'iced  with  the  i.^'i^nt  and  eoiinse!  for 
"  hei'  Hritannic  Majesty,  that  we,  the  arliii:;itiirs,  if  we  should 
'■  think  lit  so  to  do,  mi;,dit  tiiul  the  said  statement  of  facts  to  ho 
"  true." 
20  "  Now,  we  the  said  arhitrators,  do  unanimously  liii>l  the  facts 
■'  as  set  forth  in  the  said  statement  to  Im-  true." 

[iCt  mi'  sum  up  hen;  the  jfround  \  have  covered. 

Tlu^  preaudile  to  the  convention,  e^|)ecially  lead  in  the  li^rlit 
of  uiidouhted  historical  facts,  in  etleet  provides — 

That  the  United  .States  has  asserted  and  exercised  curtain 
jurisdiction  over  Hehrin;^  Sea, 

That  (ireat  I'ritain,  had  not  oidy  protested  ajjainst  the  asser- 
tion and  e.xercise  of  such  jurisiliction,  hut  hail  presented  and 
urLjed  claiii's  occasioned  therehy  ;  always  using  these  words  in 
30  the  sense  of  annomicin;,'  its  intention  of  claiming;  on  hehalf  of 
Jh'itish  suhjects  and  urtjinj^  the  United  States  to  consent  to  the 
takin<j;  np  of  the  claims. 

'I'hat  the  (piestion  concerninij  the  alleged  juris'lictional  rij^hts 
of  the  United  States  has  heen  suhmittecj  to  arbitration. 

That  the  parties  had  found  themselves  unahle  to  a^rei^  upon 
a  reference  wliich  should  include  the  liahilit}'  of  each  for  the 
injuries  allejj;ed  to  have  heen  sustained  by  the  otiier  or  by  its 
citizens  in  connection  with  the  clai  us,  but  bad  aj^reed  that  any 
questions  of  fact  involved  in  said  chiinis  mii,dit  be  submitted  to 
[40  arbitrators;  the  liability  of  either  f^overnment  on  the  facts 
found  to  be  subject  to  further  nei^otiatioirs, 

That  an  awani  had  been  rendered,  whi'ih  nej^atived  the  exist- 
ence of  the  jurisdictional  rifjhts  asserted  and  exercised  by  the 
United  .States ;  and  also  made  Hndinj^s  of  fact  on  certain  ques- 
tions of   fact  submitted  to  liieru  as  aforesaid, 

"  'I'hat  in  view  of  .saiti  decision  on  the  juri.sdictional  question, 
"and  in  view  of  the  findinjjs  of  fact,"  here  I  am  ajjain  ([uotinj^ 
from  the  preamble  of  the  Convention,  "  tlie  gevernmeiit  of  the 
"  United  Stales  is  desirous  that  in  so  far  as  its  liability  is  i^vit 
[60  "  ahead}' fixed  and  di!termineii  ly  the  tinilini,'s  of  fact  and  the 
"  decision  of  saiil  tribvinal  of  arbitration,  the  question  of  such 
"  liabilit\'  should  Ik;  definitely  and  fully  settleil  and  determined, 
"  and  compensation  made  for  any  injiiri(!s,  for  which  in  the  con- 
"  templation  of  the  treaty  aforesaid  and  the  award  and  findings 
"  of  tlie  tribunal  of  arbitration,  compensation  may  be  due  to 
"  (jietit  Britain  from  the  United  States." 

Now,  what  was  meant  by  the  words  "such   liability'  ?"     Evi- 
dently, all   liability  caused   by  the  assertion  and  exereis(!  of  the 
jurisdictional  rights,  which    had  been  held   to  be  unfounded  and 
j60   unlawful. 

Any  narrower  meaning  would  be  in  conflict  with  the  text 
and,  under  the  circumstances,  most  improlialile.  One  gi  ~'it 
nation  had  admittedly  incurred  liability  towards  another,  and 
was  desirous  to  discharge  that  liability  by  compensation.     C'ln 


tHiP'"';    !■' 


ii? 


100 


I  t 


(Mr.  Beique's   Argument.) 

it  1)0  believed  that  the  United  State.s  would  liave  oH'eied,  or  Great 
Britain  .  -.-^epted,  iiiiy thing  short  of  full  compensation  ;  that  the 
former  would  liave  proposed  or  the  other  permitted  a  repudiation 
of  any  actual  liabilitj*  ? 

The  United  States  contention  amounts  to  an  athrmative 
answer  to  these  questions.     They  object  to  claims  which,  apart 

10  from  the  alleged  liu)ilations  in  the  convention,  ur.douht.edly  are 
in  every  respect  a.s  good  and  valid  claims  against  the  United 
States  as  thos»  which  are  admitted  to  come  within  its  scope. 
They  tlieret'ore  argui'  that  claims  on  behalf  of  persons  who  are 
entitled  of  right  to  the  protection  of  Oreat  Dritain,  claims  which 
it  was  not  only  the  right  but  the  bounden  duty  of  (Jreat 
Britain,  to  present  claims  which  she  had  actually  presented,  were, 
without  the  least  cause,  and  without  the  assignment  of  any 
reason,  at  the  last  moment  abandoned. 

'J'Ih'    United   States,  as  I   understaixl   it,  defend   this  extraor- 

20  dinary  conclusion  as  follows: — 

(1.)  That  the  word  "  liability  "  in  the  •'th  paragraph  of  the 
preandile  refers  to  the  "  liability  "  mentioneil  in  the  seeund  para- 
graph. 'I'hat  the  liabilit}'  last  referred  to  means  "  liability  in 
connection  with  tlieclnims  presciited  and  urged  by  (Jreat  Britain," 
which  they  say  means  the  claims  included  in  the  schedule  to  the 
British  case  at  Paris,  pp.  I-(iO; 

{'!.)  That  the  tirst  article  of  the  Convention  restricts  the 
claims  to  those  "arising  as  well  by  virtue  of  the  award  and  the 
tindings   of  facts  as   iiy  the   treaty  ;"    /.  c,  that   the  claims  must 

30   arise  uiidei'  each  and  all  of  these  categories. 

The  Treaty  of  l!S!)2  coidd  have  had  ni  reference  to  the 
schedule  to  the  British  case  at  Paris,  because  not  oidy  had  that 
schedule  not  yet  beiui  prepareil,  but  also  because,  as  T  said  before, 
if  we  are  to  balieve  our  ii'a!lie<l  friends,  no  claims  at  all  had  been 
presented  to  the  I Tnited  States.  Xor  eouhj  it  have  meant  that 
no  claims  should  th(0"after  be  entertaiiUMl  but  such  as  might 
thereafter-  lie  presented  to  the  arbitrators  at  Paris.  That  would 
have  lieen  a  ]ierfectly  senseless  stipulation. 

'i'he  arbitration  was  not  for  the  deterndmition  and  asst'ssuient 

40  of  cliiiuis  against  the  I'nited  States,  but  for  the  srttlcnient  of 
(piestions  of  law,  the  decision  of  wliicii  wo\dd  atl'ird  a  Imsis  for 
the  subsi'ijuont  and  final  adjustment  of  any  claims  thine  might 
be.  In  other  words,  the  arbitrators  were  not  a  court  f(U'  the 
settlement  of  claims  or  the  li.\ing  of  liabilities,  but  wi-re  rathera 
boaid  entiusteil  with  the  duty  of  declaring  what  was  the  law 
which  governed  the  claims.  'I'lu^  right  of  the  arbitrators  to 
deciee  liability  was  expivssly  lU'gatived.  Why  then  reipiire  the 
parties  to  present  to  the  arbitrators  claims  that  the  latter  had  no 
p(jwer  to  clecide  :*     There  wen;  lu)  reason   for  it,  and  it  ci'rtainly 

50  could  lu'ver  have  been  nu'ant.  It  is  true  that  'the  jiarties  wei-i? 
entitled  to  tile  claims,  and  to  ask  for  lindings  of  facts.  But  this 
was  a  mere  nuitter  of  convenience  ;  the  coid'ening  of  a  privilege, 
not  the  imposing  of  an  obligation.  Either  paity  was  at  bborty 
to  present  all  his  claims,  none  of  them,  or  as  many  as  it  pleased. 
To  suppose  that  the  piesentatiou  of  claims,  nnder  those  eiicum- 
stani..  s,  and  for  that  purpose,  should  debar  v  Jreat  Pritain  from 
presenting  other  claims,  is  to  suppose  that  tlu!  august  .i  's  to 
this  niost  important  treaty  acted  in  a  most  irrational  and  arbi- 
trary manner. 

(!0  I  theiifoieconlidently  submit  that  Article  VIII.  of  theTieaty 

of  1MI2  dill  not  ii'sirie'  (!real  Pritaiii's  right  of  ciuiipi-nsiitiou  to 
sMch  claims  ordy  as  it  might  present,  at  I'.iris  ;  that  the  woi'd 
"  liability  "  in  the  secmd  |iarngraph  of  the  preamble  to  the  t.'on- 
ventioii  is  there  used  in  no  sudi   restricliMl  sense:  an<l  that  the 


)Heie<l,  or  Groat 
fition  ;  that  the 
111  a  repiuliiitiix) 

an  atfiriiiativo 
ns  whicli,  apart 
I'.douhtt'dly  arc 
inst  the  United 
'ithin  its  scope, 
lersons  who  are 
n,  claims  which 
duty  of  tJreat 
presented,  were, 
i;niiient  of  any 

III   this  extiaor- 

irai,Ma!ili  of  the 
lie  sceoiid  piirn- 
u»  "  lial)ilitv  in 
( I  real  Britain," 
scheilule  to  the 

on  restrict-*  the 
award  and  tlie 
lie  claims  must 

•ference  to  the 
b  only  hud  that 
as  I  said  hefore, 
<  at  all  had  liecn 
ave  nieai;t  that 
such  as  niii^'ht 
<.      That  wiiuid 

and  assessment 
si'tflemi'llt  of 
I'li'il  a  iiiisis  for 
uis  there  mifjht 
I  court  for  the 
It  wi-re  rather  a 
at  was  the  law 
arbitrators  to 
hen  recpiire  the 
le  latter  had  no 
.nil  it  certainly 
le  parties  were 
facts.  Hut  this 
;  of  a  privilejje, 
was  at  I'lierty 
ly  as  it  pleased, 
r  those  circum- 
at  llritaiii   from 

11,'Ust       ,it        'S    to 

ioiial  and  arhi- 

I.  of  the  'i'leaty 
ompi-nsation  to 
that  the  word 
Me  to  the  (.'i)U- 
:  and  that  the 


m 


101 

(Mr.  Beique's  Argument.) 

word  "  liability  "  in  the  fourth  parai»rapli  of  the  preamble  of  th» 
Convention  refers  in  no  way  to  the  "  liability  "  mentioned  in  the 
second  paragraph. 

Article  1  of  the  Convention,  which  says  that  the  claims 
referred  to  are  those  arising  by  virtue  of  the  treaty  aforesaid, 
and  award  and  finding*  of  the  Tribinial  of  Arbitration  means, 
according  to  the  contention  of  my  learned  friend,  that  the  claims 
must  arise  not  only  by  virtue  of  the  treat}%  but  also  in  addition 
by  virtue  of  the  award  and  finding  of  facts.  Now,  if  I  have 
shown  (as  I  think  I  have)  that  any  such  limitation  would  have 
been  unreasonable,  the  learned  counsel  are  driven  to  rely  upon 
the  little  word  "nnd,"asthey  seenito  do  in  their  brief  to  sustain  their 
contention.  This,  with  all  respect,  I  submit  is  a  play  upon  words. 
Whether  the  treaty  is  strictly  grammatical  is  very  doubtful,  but 
it  is  eleiuentaiy  that  the  word  "  and  "  in  contract  or  statute  is 
read  as  meaning  "or"  and  vice  versa,  in  order  to  carry  out  the 
intention  of  the  parties  or  the  legislature.  It  will  be  sufficient 
for  me  to  refer  to  a  couple  of  authorities  on  this  point.  Max- 
well on  the  interpretation  of  statutes,  section  303,  says  :  "  To 
carry  out  the  intention  of  legislature  it  is  occasionally  found 
necessary  to  read  the  conjunctions  "or"  and  "and,"  one  for  the 
otiier.  Indeed,  these  words  are  conceded  to  be  CvUivertible  into 
each  other  as  the  sense  of  enactment  and  necessity  of  har- 
monizing its  provisions  require."  Numerous  authorities  in  sup- 
port of  this  are  found  in  this  and  the  following  section.  Then, 
in  Hardcastle's,  page  102,  it  is  said  : — 

"  Another  important  rule  as  to  the  meaning  which  is  to  bo  put 
upon  ordinary  words  or  expressions  when  used  in  Statutes  is  if 
the  words  are  susceptible  of  a  reasonable  and  an  unreasonable 
construction,  the  former  construction  must  prevail." 

But  it  may  be  contended  that  the  additional  claims  wore 
enumerated.  Why  was  this  done  if  the  scope  of  the  convention 
is  as  wide  as  claimed  by  Great  Hritain  ?  The  answer  is  that 
the  additional  claims  stand  on  a  ditl'ereiit  footing  from  the  others. 
The  liabilit}'  referred  to  in  the  second  and  the  fourth  paragraphs 
of  the  convention  might  reasonably  have  bnii  taken  to  mean  the 
liability  occasioned  bj-  the  unfouiidi'ij  aHsninptinn  or  jurisdiction 
in  liehriiig  Sea  and  the  admitted  exercise  of  such  jurisdietioii  by 
seizures  and  w/ir'dngs  at  the  time  when  sealing  in  that  sea  was 
open  to  all  persons,  whether  l!ritisli  subjei-tsur  Anierieaii  citizens. 
Tile  additii  iial  claims  accrued  diiriiig  the  modus  vivendi  at  a 
tini'  when  iii'ithi'r  Mritisli  subjects  imr  eitizciis  of  the  United 
S.,it''s  eruld  lawfully  seal  in  lieliriiiL;- Sea.  Tlii'iefore  to  e*,! 
ally  eiur.iierate  the  latti'r  class  of  el  lini 
ali;iiidoiim.^'iit  of  the  former,  as 
doiog   so. 

Now,  1  de-^iie  here  to  especially  end  vivu-  lloiuirs  iitleiition 
to  one  more  fact  which  of  itself  it  sei'ins  to  me  is  a  enuclusive 
solution  of  the  i|Ui'stioli.  The  best  |  roof  thul  the  scdji,'  of  the 
convention  was  never  intended  to  be  limited  to  the  cluims  as 
appearing  ill  the  schedule  of  the  Hritisli  ea-e  is  that  the  peiscmal 
claims  for  llSSii  mid  I.S>s7,  which  are  ailmiltcd  tu  form  a  jiart  of 
the  convention  and  to  fall  within  its  senpr,  do  not  apinsr  in  the 
ihitish  case,  or  the  schedule  of  the  I'.ritish  ease. 

The    ('ommii<siiiiier    oii    the    |)art    of    the    I'nited   States: I 

understand  it  is  distinctly  enumerated.     Ilnfortiiiiatelv  I  have 
lost  my   volume  wliieu  contains    the  British  ease,  but  in  looking 
at  the  re-print  which  you  furnished  1  find  them  named  th^re. 
Mr.  Dickinson: —Every  o..o  of  them   is  named  there. 
The  Coiiimi.ssioner  on  the  part  of  the  I'nili'd  States: I  do 


'-pcci- 


ijors   iifit   import    any 
thiTi-    was   a  clear   riason    for 


!  'r 


'^nppifpi 


W 


102 


!       i 


HI 


(Mr.   Beique's  Argument.) 

not  niL'iiM  to  say  tliiit  all  the  personal  claims,  but  cortnin  masters 
and  mates  were  nameil  aeeoriling  to  my  recollection  of  it. 

Mr.  Heiijue  :  —  Kvidcntly  I  have  overlooked  the  fact. 

It  will  he  hardly  necessarj-  for  me  to  an.swer  the  contention 
to  he  founil  in  the  opposing  hrief  on  page  'iG  that  the  word 
"  arise"  is  us(>d  in  the  sense  of  "  having  their  originals," 
10  "  presenting  themselves,"  "appearing  from."  The  phrase  is  too 
plani  to  yive  rise  to  any  di.seussion.  I  see  that  reference  is 
made  to  the  Dictiomuy.  Hut  it  seems  to  mc  that  it  is  not  neces- 
.sary  to  refer  any  dictionary.  The  claims  arise  from  the  treaty, 
the  award,  ami  the  rindingsof  the  trihunal  of  arhitration  in  the 
.same  .sense  as  an  ohligation  arise  from  contract.  It  is  claimed 
anil  has  now  to  he  ailmitted  that  the  United  States  have  com- 
mitted illegal  acts  in  this  assumed  jurisdiction  over  BeiuMng 
Sea.  In  the  assertion  of  these  acts  th«?y  liave  infringed  on  the 
rights  of  British  suhjects  ami  n  liability  has  arisen  from  that. 
20  Tlie  treaty  of  Washington  was  made  for  the  purpose  of  ascer- 
taining mainly  whether  those  acts  of  the  United  States  were 
warranted  or  not,  whether  the  United  States  were  entitled  to 
treat  Behring  Sea  as  a  tnnre  ddnsaia,  and  whether  United  States 
were  entitled  anj-  right  of  property  or  of  protection  in  fur  seal 
bearing  animals  in  Behring  Sea.  Undei  tli.  t  treaty  an  award 
was  rendered  negativing  the  assume  '  ri;.:*,    o*'  .,iie  United  States, 

1'    '  arisen  from  the 


frot;.  the   illegal   acts  re 


and    therefore   I  say  that  when   we 
treaty  of  Washington  it  means  ari'^e 
ferred  to- in  said  treaty. 
30  Now,  ri.'ferenci'  tr.  th(^  dillerent  drafts  of  this  claims  conven- 

tion exchanged  between  the  two  governments,  as  mentioned  on 
page  4  of  the  British  arguni-'iit  in  reply,  entirely  disproves  any 
intfutioii  on  the  \y,u't  of  (Ireat  liritain  to  waive  any  of  her 
rights,  or  for  the  riiitcd  Slntps  to  deny  or  esc.ipe  any  part  of  its 
lialiilil\'.  Here  is  wh.it  I  lind  on  page  -i  of  our  wiitten  i-i'ply  : — 
"In  the  first  draft  proposed  hyOri'at  liritain,  the  ui'tiele 
referring  to  the  assessment  of  compiMisation  simjily  stated 
that:  — 

"Tlie  two  ('omiiiis-.ioiiers  shall  assess  the  amouTit  of  eoinpen- 

40   saticin  ti)  he  paid  in  respect  toeaeheliiim "  v.'iHiuut  referring 

at  'ill  ti  the  n.:Ui"ii!ility  oi'    tlie  elaimrnt. 

In  the  counter  draft  jii-oposed  by  the  United  States,    .\rtiele 
1,  stated  ;  - 

■  Till'  high  eontraeting  [larties  agree  that  <///  rhis-  ,.■■: 
ish  fiiihjr('ls    fur  liijiii  ii'ff  Kii-ilitiiK'il  hij  lliciil  in     lit'  n  ur/ 
which  coinpensiition  is  claimed  to  be  due  fi-oiii  th'    I  iv  . 
under    the    award   of    the    tribunal  of  aibiti'ati.   i       i   i 
fern.l    -' 

In  the  next  dral't,  the  ^^•^biago  of    tlu'  as'i'ssin.>nt    el. 
•50  alteri'il  s'j  .'IS  to  : ead  ;  - 

iitr.ietiiig     p.'U'ties   agree    that    "//    chiiiiku     at 


60 


''■  •'  for 
States 
■   '   re- 

.e  V  i- 


lu-li 


Brilin'i    stilij'rls    fur  injuries  sustained  and  for    which  compmi 
sation  is  ehumed  to  le  due   from   the   United   States  under  tlir 
award  of  the  tribinial  of  arbitration  shall   be  rel'(>rred  — ' 

This  claUM-  was  aUu  m:idr  thr  subji^et  >>\'  ubjceliun  and  anothri 
draft  was  pr(i|)osei|  in  which  the  assessment  eliiusc  read  as 
follows: 

■  The  high  ('ontraeting  parties  agree  Unit  n' 
fiir'iiijuiiifxiiftiilitf'tl   and   IVr  which  coni|)i  i .^ 
to    be   due    I'lom    the    United    Sl.lti'S    inider    til 
be    referred. 

Subse(|uently  this   ehiuse   was  amended  and  tie    .  ianse  in  the 
present  Conventi        Article  I,  linally  ngreed  upon. 

It  is  therefore  .i  nareiit  tl'.i.^   in   the  negotiations  previous  to 


nrltisli    ('III  i Ills 
I'l    i;    claimed 

■  -■'■■.'  \-c  sii,-ii; 


103 


(Ml-.  Bei(iue'H  Argument.) 

the  final  settlement  of  the  present  Convention  tlie  Unitoil  States 
contenilcd  for  terms  which  would  strictl}-  limit  the  entiuiry  to 
the  claims  of  British  subjects,  whilst  Great  Britain  all  alon<r 
contendeil  fcr  a  broader  aKreoment,  and  has  finally  crystailizod 
into  Article  !),  aU  ddhnu  on  accoaiit  of  any  person,  it  nuitters 
not  of  what    nationality,    in    belialf  of  whom  Great  Britain  is 

10  entitled  to  claim  compensation  are  to  be  considered." 

The  chan<,'es  in  the  different  drafts  submitted  liad  reference 
only  to  the  question  of  nationality  and  in  no  way  to  the  acts 
out  of  which  the  claims  arose.  If  you  take  the  drafts  of  the 
Uniteil  States  as  well  as  the  drafts  presented  by  Great  Britain, 
you  will  not  find  any  intention  on  the  part  of  the  United  States 
to  avoid  any  liability  or  to  e.xcluile  any  of  the  claims  to  which 
the  alleged  assumption  of  tlie  United  States  had  given  rise. 

The  difierent  drafts  of  the  Claims  Convention  show  also  and 
as  otherwise   appears  from   the  wordi>ig  used   in  the  final  draft, 

10  that  the  words  "  a  list"  in  the  la.st  paragraph  of  Article  I,  which 
reads  as  follows:  "Appended  to  this  Convention  is  a  list  of 
claim.s  intended  to  be  referred,"  were  intended  to  be  illustrative 
and  not  limitative. 

Thus  the  first  three  drafts  of  the  Convention  do  not  refer  to 
any  list.  Article  I  of  the  fourth  draft,  which  was  agreed  upon 
at  "the  Ottawa  Conference,  October,  18t)."),  provides  for  submission 
of  "  all  Jiritish  chthnn.  for  injiirirs  siisliiine<l,  and  for  wliich 
compensation  is  claimed  to  bo  due  from  the  United  States, 
under  the  Award  of  the  Tribuna'  of  Arbitration  (ind  indtuUng 

Bo  tliosv  rfjerri'd  to  In  Appendix  A.  At  tlie  end  of  Artiei(>  111  of 
the  fiftii  and  sixth  drafts,  alternative  drafts,  of  which  the  first 
was  said  to  be  acceptable  to  the  I'rosident  if  the  United  States  as 
the  result  of  the  Washington  Conference.  October,  IcSDo,  and  the 
second  was  accepted  by  CaiiadM.  are  the  woi'ds:  "  Ajipendeil  to 
this  Convention  is  o  hd.  of  the  cloinix  intended  to  be  referred." 
The  same  words  also  are  found  at  the  end  of  Article  1  of  the 
.seventh  draft  which  was  proposed  by  the  Unit(>il  States  Secre- 
tary of  Stiite  after  Canada  had  agreed  to  the  sixth  draft,  and 
which  was  in  tui'n  agi-eed  to.  In  the  actual  Convention,  how- 
§40  ever,  thi;  word  "the"  was  struck  out  and  tl:  ■  Article  ends  : 
"  ,\ppended  to  tliiiv  ('on\'eiition  is  (f  lint  of  cloitns  inti'iided  to  lie 
I'efei'reil. '  This  oiiimission  of  the  definite  article  must  lie 
jiri'suiiied  to  have  been  intentional  and  its  signitieanee  is  self- 
evident. 

Again,  on  jaige  '.U>  of  the  opposing  brief  it  is  contiMuled 
that  the  claims  referred  by  the  Convention  are  not  ri,.\i.Ms 
QV  \'i;gsi;r.s,  but  eliiim-.  on  account  of  "  I'kusons."  Thry  art- 
neither  the  one  nor  the  other.  In  the  wni'cling  nf  Article  1  of 
the     convention     they    are  "all    clailiis    on    aeeotnit    of  injuries 

dO  sustiiihi'd  l)y  ]iersiins  in  w  hu^e  lu'lialf  Great  lii'itain  is  I'niilird 
t<i  elaini  eonijiensatioii  fniin  the  Iiiit  i-cl  States  .■imi  arising  t'ldin 
the  subject  matter  in    (|U<sti(iii. 

I  respectfully  submit  that  the  arginiients  1  have  thus  far 
ad<i need  are  e<inclusi\ c  as  to  the  scope  ni'  the  convention.  If, 
howe\er,  there  should  be  any  doubt  left  I  hope  it  will  at  h'ast 
be  c(aieeded  that  1  ha\'e  ojieni'd  the  door  In  my  referring  to  the 
diplomatic  eorresiioildeliee  between  the  t Wu  governments.  On 
this  point  the  following  i|Uotation  from  (ireenle.if  is  made  on 
page   '2'.]  of  the  brief  of  the    Uniteil  States    in  support   of  their 

10  contention  that  the  (|i])lotnatic  eori'espon<lenee  cannot  be  resorted 
to  ir  'he  interpretation  of  the  c(ai\ention  :  - 

"  \\'hi'ii  pai'ties  have  ileliberately  put  their  engagements  into 
writing  in  such  terms  as  import  a  legal  obligation,  witiiout  an\' 
uncertainty  as  to  the  object  or  extent    ot   such    engagement,  it 


i 


■  |— ■■pnpqpimiM 


104 


(Mr.  BeitiUf's  Arguinoiit.) 

i.s  conclHsivoly  pivsuiiifd  tlmt  tho  wliolo  ciijjn<;i'im'nt  of  the 
parties,  and  the  oxtcnt  ami  inaniier  ol"  tlu'ir  uiuliTtakiiiy,  was 
rcduci'd  to  writiiifj :  and  all  oral  testimony  of  a  previous  collo- 
quium between  the  parties,  or  of  conversation  or  declaration  at 
the  time  when  it  was  completed  or  afterwards,  as  it  would  tend 
in  many  instances  to  sulistitute  a  new  and  ditierent  contract  foi- 

10  the  one  which  was  really  a;j;reed  upon,  to  the  prejudice,  pcssibly, 
of  one  of  the  parties,  is  rejected." 

The  sentence  imnie(liately  following;  and  some  other  passages 
from  the  same  work  will  more  fully  explain  the  authors  mean- 
in;;.  — The  passage  (]Uoted  continues  as  follows  : — 

"  In  other  words,  as  ihe  rule  is  now    more   hriofly  expre.sised 
parol  contemporaneous  evidence,  is  inadmi.ssible  to  contradict  or 
vary  the  terms  of  a  valid  written  instrument." 
Ami  on  page  ;j.")2,  jmragragh  277,  tireenleaf  says: — 
"  It  is  to  he  observed  that  the  rule  is  directed  only  against  the 

20  admission  of  anj'  other  evidence  of  the  language  employed  by 
the  parties  in  making  the  contract,  than  that  which  is  furnished 
by  the  writing  it-^elf.  The  writ'niq,  it  ix  true,  may  be  read  bif 
the  lujld  of  fiu)  roll  lid  i  II  ij  ciicumtilitnci'n,  in  (,rder  more  per- 
fectly to  understand  the  intent  and  meaning  of  the  parties  ;  but 
a«i  thej'  have  constituted  the  writing  to  he  the  only  outward  ami 
visible  expression  of  their  meaning,  no  other  irords  are  to  '  ,• 
added  to  it,  or  substituted  in  its  stead.  *  *  •  It  is  mer.ly 
a  luty  of  interpretation ;  «'.  e.  to  tind  out  the  true  sense  of  the 
written  words  «.v  the  paities  Ufiedthcm;   and   of  construction, 

yO  i.e.  when  the  true  sense  is  ascertained,  to  subject  the  instrument 
in  its  operation  to  the  establisheti  rules  of  law.' 

Tile  claims  objected  to  by  the  United  States  as  not  coming 
within  the  scope  of  the  Connnission  ai't;  the  following  : — 

1.  For  expenses,  and  hardships  of  the  various  crews. 

2.  The  "  I'.lack  Diamond"  (18S()). 

.S.     I'aptain  IJaudin,  Master  of  the  "Ada." 

4.     Mate  of  the  "  (Jrace. ' 

;").     'I'he  costs  of  the  "  Say  ward"  case. 

Heb'rring  to  the  diplomatic  cori'espondence  in  connection 
40  with  the  Convention,  it  will  be  seen,  that  on  .lune  7th,  liS{)4,  the 
Miitish  Audmssadur  at  Washington  i^eiit  a  note  to  tln^  I'niteil 
States  Seci'etary  of    State  in  which  he  said: — 

".Sir:  .\d\  crting  ti)  the  verbal  ciimmunieations  which  have 
i)a.ssed  between  us,  respecting  the  mode  of  verifying  and  ad- 
ju^iling  the  Hritish  claims  for  compensation  fur  tiie  sei/.iu'e  of 
liiitish  sraling  vessels,  1  h.-ive  now  the  honour  to  transmit  here- 
with, ii\  diriitioii  of  Ibr  M.-iji'sty's  Principal  Seci'etary  of  Stat.' 
for  {'"iireigii  Mlliiirs.  a  cniiiiilrie  list  MiidMiiiimary  of  tlmse  eliiims. 
t(ii>i'tlii'i'  with  MeiHor.'iiid.'i  III'  llir  .'idditiiins  ami  anieiidineiits 
TjO  made  siiiir  ihrir  oiigin.-d  presentation.  I  .iiii  .'it  lhe.s,inie  time 
til  iii.iki'  the  I'nlliiw  ing  Miggi'stidii.  with  ji  \  iew  to  iidjiistmelit  of 
t  liiisr  cl.iitiis,  willi  till'  Icist    piissiiiji'  ixpcusr  mill  delay. 

The  wlicili'  111'  ihi'  el.liliis,  eseeptillg  lli.'lt  nf  the  'Henrietta" 
ami  that  of  tlic  '  I'llaik  I  Hiinioiid.  '  1. S.St  J,  were  iaiil  before  the 
Trii)un:il  of  .Vi'bili.itioii  at  Paris,  togctln  r  with  the  e\  ideiier  in 
Mlpiiiirt  nf  them.  The  filets  (111  which  they  lest  Were  found  by 
tlie  ,'ii'bitrators  as  pi'o\ided  by  .Vrtieie  \' II I  of  tin-  'i'realy  of 
Al'bitl'Mti<ili  and  foriiieil  part  of  the  award,  lu  view  of  the  de- 
cisinii  111'  till'  'riiliiiiial  on  tiie  <|iie.''tioii  of  law  sniimittecl  to  them, 
(in  it  (iiil\  now  reinaiiis  to  assess  the  damages,  lain  aeeordingly 
.lilt  lii>ii/ed  by  till'  Kill'!  of  Kiiiilni'ly  tn  ]iinpiise  that,  fur  the  pur- 
po,se  (if  such  asscssiiu'iit.  each  ( iovei'iiiiiciit  should  appdiiit  a  duly 
(liiiiiiticd  ( '(iiiimissidiicr,  wiiii  shdiild  be  ,i  lawyer,  ami,  if  possible, 
iiiisses.s  ,s(i|iic  InIkiW  ledge  of    the  edll(|it  ioiis  of    tile  seal  industry. 


105 


ijjeiiuMit  of  t)if 
iiih'rtakiii}^,  wh.s 
})ivvit)iis  collo- 
)!•  tici'liinitioii  at 
iiH  it  would  tt'iid 
ivnt  I'outriu't  for 
'j)i(lit'i',  possibly, 

e  other  pussnjjos 
e  authors  uicaii- 

n-iclly  cxpivsst'd 
to  contradict  oi- 

ijs:— 

Old}'  against  tlio 
ge  eniphjycd  hj' 
lich  i.s  furnished 
may  be  trad  by 
.rdor  more  per- 
the  parties  ;  but 
dy  outward  and 
fcurds  are  to  ?  j 
*  It  is  nier.lj- 
ue  .sense  of  the 
of  construction, 
;the  instrument 

s  as  not  condng 
owing  : — 
lis  crews. 


in    coiiiu'ctioii 
ic  7tli,  IS!)4,  till' 
to  the   I'nited 

t)iis  whii'h  have 
rifying  and  ad- 

tlic  seizure  of 
I  tr.Misiiiit  lierc- 
ntMiy  of  Stat.- 
(il  I  liiisi'  claiiiis, 

I    Mliiendnients 

the  same  time 
I  .idinstment  of 
delay, 

e  '  lleliliella  " 
Llid  liel'nrc  the 
till'  e\  idrliee  in 
Wi  li'  fuUlKl    l)y 

till'  'I'teaty  (if 
\  iiw  iif  tlie  de- 
iiMtled  to  them, 

II  aeeiirdiiigly 
iMl,  hir  the  pur- 

a|i|)iiiiit  a  duly 
imd,  if  |iii.ssi!)le, 
M'al  industry-.' 


(Mr.  Bei(iue'8  Argument.) 

I  shall  call  your  honors  attention  to  the  fact  that  not  only  iii 
this  letter  of  .the  7th  Jinie,  1«!»4,  from  Sir  Julian  Pauncefote  to 
the  Secretary  of  State,  Mr.  (iresham,  is  a  special  reference  made 
to  the  "  Hlaek  Diamond"  of  1S«(),  but  a  reference  is  also  made 
to  the  memorandum  ac<'omp'anying  the  despatch  ;  the  memoran- 
dum being  intended  to  enumerate  all  the  claims  for  which  (Jreat 
Britain  suggested  the  appointment  of  a  nnxed  Connuission.  In 
that  memoniMilum  we  tind  under  the  heading  of  "  Claims  for 
LS.ST"  the  following:  "  To  be  added  to  1H8(),  per.sonal  claims 
Captain  (iaudinof  the  "  Ada,  "  8:5000  :"  and  un(K-r  the  heading 
"Total  claim,  "  we  find  "  extra  for  .luanita"  8:{,002.(i().  Extra 
for  "Black  Dianuaid,"  (lH8(i)  !<7,r)00;  and  extra  for  |'Ada, " 
.?i;{,00t).  In  the  recapitulation  of  tlie  .special  claims  we  find  the 
following  item:  "  Costs  of  suit  lu'fore  the  Supreme  Court,  United 
States,  ni  re  seizure  of  "W.  P.  Say  ward,"  S(i2,H47.r2.  That  was 
the  very  amount  which  was  mentioned  at  Paris  to  and  wiiich 
exception  had  been  taken  there  by  the  United  States.  (I 
might  here  give  a  reference  to  pagi'  24  of  the  record  in  tliis  case, 
wlu're  this  matter  was  (piite  fully  argued  by  coun.sel  on  both 
sides).  This  I  say  was  the  occasion  for  raising  objectioii.s  to  the 
claims  if  it  was  tlie  intention  of  the  United  States  to  do  it.  They 
were  presented  with  a  list  of  the  claims,  which  list  comprised  the 
claims  to  which  I  liave  referied,  and  what  is  the  answer  given  ? 
The  answer  is  to  be  found  in  a  letter  of  the  2 1st  Augu.st, 
18!t4,  from  Secretary  of  State,  Mr.  CJresham,  to  the  British  Am- 
bassador, Sir  Julian  Pauncefote,  which  was  as  follows: — 

"  Heferring  to  our  verbal  eomnnniications  of  a  recent  date,  I 
"  have  now  the  honour  formally  to  acknowledge  the  receipt  of 
"your  note  of  the  7th  .Fune  last,  in  which  you  propose,  in  behalf 
"of  Her  Majesty's  (iovernment,  the  establishment  of  a  mixed 
"Commission  for  the  purpo.se  of  verifying  and  adjusting  the 
"British  claims  for  compen.sation  for  the  seizure  of  British 
"sealing  vessels  in  Hehring  Sea. 

"  While  no  serious  ditliculty  is  anticipated  in  .settling  aud 
"deteriiiiniiig  the  claims  by  means  of  a  mixed  conunission,  it  is 
"a  matter  of  iiitel'est  to  both  governments  that  they  should,  if 
"  possible,  be  dis[)osed  of  in  a  simpler  and  less  ex])ensive  way. 
'■  Proceedings  by  a  mixed  commission,  while  always  more  or  leas 
"  formal  and  cund)ersome,  are,  like  all  other  processes  of  litiga- 
"  tion,  necessarily  attended  with  expense,  not  infre(|UentIy 
"  coiisidei'.ible  ill  amount,  as  well  .as  with  delay. 

•  In  the  present  case,  the  award  and  tindiiigs  of  the  tribunal 
"of  arbitration  in  I'.iris  li;i\e,  to  a  great  extent,  deterniiiied  the 
"  facts  iiiidtlie  iniiu'i|)les  uii  which  the  claims  should  1h' adjusted  ; 
"and  ill  the  course  of  the  negotiations  for  a  mixed  commission, 
"tlitv  have  been  subjected  by  both  governments  to  a  thorough 
"  (Xaiiiiiiiition  both  u|>on  the  i)riiiciplea  and  facts  which  tliey 
"  involve." 

We  see  that  it  is  clearly  in  the  mind  of  the  United  States 
secretary  of  state,  that  there  was  to  be  no  such  limitation  as  is 
claimed  by  the  Cnited  .States  counsel  here.  The  Secret.'iry  of 
State  says  in  etleet.  that  the  facts  have  not  all  been  pa.s.sed  upon, 
but  they  have  been  to  a  great  extent  d.terniined  at  Paris; 
implying  that  .something  is  left  to  be  done  in  determining  the 
aiiioiiiit  of  the  liability  and  in  eni|uiiiiig  as  to  the  fact.s.  It  maj' 
be  added  that  the  parties  were  then,  as  appears  from  the  corres- 
poiideiice  considering  the  settlement  of  the  case  by  a  lump  sum 
— at  least  the  United  States  suggested  tlu'  settlement  by  a  lump 
sum.  As  your  Honors  are  well  aware,  (Ireat  Britain  aci|uiesced 
in  that  view  and  consented  to  negotiate  on  the  basis  of  a  lump 
sum,  liut  with  a  clear  miderstanding  that  if  the   lump  sum  was 


i'.% 


100 


(Mr.  Beit|ue'.s  AryiiiiR'iit.) 

not  iijjrced  to — as  it  wiis  not  into^idcd  to  roprcsent  the  full  com- 
pensntion  whieii  (iroiit  Hiitain  uiiiiiiu'd  her  Mubjocts  wt'iu  »'iititlcd 
to  tliat  it  would  ]k'  without  prcjudicL'. 

Mr.  Dickinson: — Wv  hardly  need  jiri^uc  that.     We  have  made 

no  contention  that  you  were  iMjund  to  anythinijyou  said  in  that 

correspondence. 

10  .Mr.   Heique  : — .Vfter  all,  our  contention  is  in   harniou}' with 

that  part  of  the  I'nited  Stutes  hrief,  pa;,'e  I.S,  where  it  is  stated  : 

"  .\s  to  compensation  the  United  States  hold  to  the  .same  atti- 

"  tude  now  that  was   atuiounced  hy  their  counsel  before  the  Paris 

"  Tribunal,  aiid  has  been  consistently  maintained  before  this  High 

"Commission,  namely,  that  their  lial)ility  having  been  tt.xed,  th(; 

"  (jovernment  desires  to  pay  compensation  to  (!reat  Britain  on 

"  account  of  all  iH')'i<onn  in  whose  behalf  (irent  Britain  is  entitled 

"to  claim  compensation  from  the  United  States,  and  to  pay  that 

"ct)mpen.sation  at  the  earliest  time   when  the  ])roper  amount  can 

20   "  be  a.scertaineil." 

It  may  be  .seen  from  this  that  there  was  no  intention  '^■'^  limiting 
any  poi-tion  of  the  claims,  or  limiting  the  power  of  the  'ommis- 
.sioners  to  a  <'ertain  number  of  the  claims,  btit  that  the  Uniti.'il 
States  should  pay  compen.sation  on  account  of  all  pevmins  in  who.se 
behalf  (Ireat  Britain  is  entitled  to  claim.  I  might  add  that  the 
position  taken  by  the  Uniterl  States  Counsel  at  the  present  timt! 
seems  to  be  in  contlict  with  the  jmsition  taken  by  the  Counsel 
for  the  United  States  at  Fai'is.  '  -  appears  from  the  United 
States  i-e-print,  page  77H,  Mr.  Blocjgett  in  his  argument  before 
30  the  Taris  TribuMa!  said  :  - 

"  We,  however,  preface  that  we  have  to  submit  on  this  featiu'e 
"  of  Ihe  ca.se  l)y  saying  that  if  it  shall  be  held  by  this  tribinial 
"  that  these  seizures  and  interferences  with  British  vessels  were 
"  wrong  and  uiijustitiable  under  laws  ami  treaties  a[)plicabl(* 
"  thi'reto,  then  it  would  not  be  becoming  in  our  nation  to  contest 
'■  these  claims,  in  so  far  as  they  are  just  and  within  a  fair  amount 
"  of  the  damages  actually  sustaineil  by  British  subjects." 

Mr.  Blndgett  does  not  say  :     So  far  as  the  claims  of  a  certain 
number  only   of   liritisli    sul)jects  are   concerned,    but    he   says: 
40   "  the  elaiiiis  of  :dl  Ihitish  subjects  "  who  may  have  suffered  by 
the  acts  uf  the   United  States. 

I  agi'ee  with  that  part  of  the  argument  of  the  Counsel  for  thi' 
Uniteil  .States  which  says,  that  claims  for  national  injuries  such 
as  may  tris"  from  acts  in  derogation  of  the  inviolability  of  the 
flag,  the  <lignity  of  the  sovei-eign,  the  respect  <lue  to  the  jui'isdic- 
tion  of  the  sovereign  ancl  the  like,  committed  on  the  high  seas  or 
on  that  sovereign's  territory,  ai'e  distinguishable  from  national 
clain"is  made  in  behalf  of  subjects  or  citizens,  and  are  not  before 
this  Connuission.  And  I  submit  that  there  has  been  no  attempt 
50   to  [)ref('r  any  such  claims  here. 

The  claiius  as  filed  inay  be  classified  as  follows: 
1st.      llleg.il  boarding,  search  and  arrest  of  ves.sela  ; 
2nd.      N'alue  of  vssels,  their  outfit  and    cargo,  or  in  certain 
cases  the  di-jjn.'ciation  in  value  only  ; 
;>rd.     I'rjiniums  of  insurance  paid  ; 
4th.     Time  ami  personal  e.\pense  of  owner  ; 
5th.      Legal  expenses : 

6th.     Balance  of  ewtimated  catch  for  the  season  ; 
7th.     Estimated  catch  for  the  following  season  ; 
60         8th.     Value  of  the  use  of   the  vessels  for  the  period  between 
the  two  fishing  seasons  ; 

!)th.  Kxpenses,  illegal  arrest,  detention,  imprisonment  and 
other  hardships  of  Masters  and  Mates,  and  in  certain  cases,  the 
value  of  their  time  ; 


107 


he  full  coin- 
vi'iu  entitled 

'('  have  made 
Haid  ill  that 

irinonj'  with 

it  irt  stated  : 

le  same  atti- 

)re  the  Paris 

)re  this  Hij^h 

vn  tixeil,  tht; 

t  Britain  on 

in  is  entitle(l 

to  pay  that 

amount  ean 

in  '  '^Mmitiiig 
tht  'ommis- 
t  the  United 
ons  in  whose 
add  tiiat  the 
present  timt; 
the  Counsel 
the  United 
iment  before 

1  tliis  fi'ature 
:his  trihunal 
vessels  were 
'S  applieable 
on  to  contest 

fair  amount 
ets." 

of  a  certain 

ut    he   says  : 

surt'ered  by 

unsel  for  the 
njiu'ies  such 

bi'lity  of  the 
the  jurisdic- 
hif^h  seas  or 

om  national 
e  not  before 

1  no  attempt 


L-ls : 

)r   in  certain 


riod  between 

lonmont  and 
ain  cases,  the 


(Mr.  Beiijue's  Ar<,'ument.) 

10th.  Expenses  and  hardships  of  other  members  of  the 
crew,  and  in  certain  cases  the  value  of  their  time ; 

lltli.     Interest  from  date  of  loss; 

1 2th.     Tl'.e  costs  in  the  "  W.  I*.  Say  ward"  case. 

I  proprose  to  take  these  seriatim,  but  very  briefl3^ 

Before   doinjj  so,  however,  I  desire  to  take  up  some  other 
10  branches  of  the  present  entjuiry. 

I  have  thus  far  shown  that  the  wording  of  the  Claims  Con- 
vention is  wi<le  enough  to  admit  of  jour  pa.ssing  ujjon  the 
merits  of  all  claims  pres(>nted. 

Let  us  see  now  whether,  as  pretended  by  the  other  side, 
Great  Britain  under  the  rules  of  international  law,  is  debarred 
bv  rea.son  of  the  nationality  or  residence  of  the  person  ag- 
grieved, from  urging  any  of  the  claims. 

( )ur  learned  friends,  the  counsel  for  theUnited  States  through- 
out their  written  argument  assume  that  the  nnniicipal  law  of  the 
02  United  States  as  embodied  in  section  l!».5()of  the  revised  .statutes 
has  an  extra  territorial  eti'ect  (pioad  their  own  citizens  and  foreign- 
ers domiciled  in  the  Uniteil  States  and  that  therefore  in  several 
in.stances,  (ireat  Britain  is  claiming  for  injuries  done  to  persons 
while  in  the  act  of  violating  a  municipal  law  of  tneir  country*  of 
allegiance  or  domicile. 

I  will  give  a  few  references  as  reganls  this  assumption,  and 
I  might  give  more.  (Jn  page  14  and  15  of  the  United  States 
brief  J  tind  the  following  : 

"  A  foreignei'  permanently  domiciled  in  the  United  States 
30  "like  the  claimant  Cooper,  although  unnaturalize(l,  owes  during 
"the  duration  of  his  domicileil  allegiance  to  their  government, 
"ol)edianc(!  to  their  nnniicipal  law.s.  an*!  especiall}'  to  their 
"  national  assertion  of  what  is  variously  teraied  dominion, 
".sovereignty,  or  jurisdiction. 

"  Son  constat  such  a  person  may  owe  original  allegiance  to 
"(ireat  Britain,  and  non  cr;;is^<<  he  puts  his  ships  under  a  British 
"  llag,  and  a  British  registry,  lu(  is  still  a  resident  of  the  United 
•'States,  and  so  amenable  to  their  laws  aiul  absolutely  bound  b}'^ 
"their  assertion  of  sovereignty. 
40  "  \Vliati'ver<iuestions  there  may  be  us  to  violations  of  national 
"  dignity,  of  the  flag,  and  the  shiji  (wholly  (|Uestions  of  dignity 
"  between  nations),  in  such  case  he  is  not  a  person  who  can  enter 
"  any  municipal  court,  much  less  an  international  commission 
"on  claims,  and  set  up  that  he  is  a  person  "  in  whose  behalf 
"(ireat  Britain  is  entitled  to  claim  compensation  from  the 
"  rnite(l  Stat(!s"  for  injuries  which  he  has  sutiered  in  common 
"with  other  civil  citizens  of  the  United  States,  no  more  amenable 
"  to  their  laws,  for  doing  the  same  acts  against  the  policy  of  the 
"  sovereignty  and  laws  of  their  common  government,  for  which 
50  "  they  have  suH'ered. 

"  Aside  from  (piestions  having  to  do  with  the  inviolability  of 
"  the  flag  and  of  the  deck,  whereon  the  high  seas,  sovereignty  is 
"  said  to  be  present  as  upon  its  territory  on  land,  tiiere  is  no 
"  doubt  by  the  authorities  that  this  as.sertiou  in  its  cxtremest 
"  form  is  one  entirely  of  national  dignity,  in  respect  of  the 
"  sovereignty  itself,  as  distinctly  distinguished  from  the  claim 
"  on  account  of  the  private  ownership  of  a  ship  made  by  the 
"same  nation,  in  respect  of  subject  or  citizen.  In  no  court 
"  before  has  it  been  claimed  that  the  immunity  of  the  flag  and 
60  "  and  of  the  deck  from  molestation  by  other  nations  on  the  higli 
'•  seas  carried  with  it  in  courts  of  admiralty  anywhere,  or  in  any 
"  international  court  ever  held,  any  exclusive  presumption  of 
"  private  ownership. 

"  On  the  contrary,  in  the  courts  of  England   as   to   foreign 


j>«-- 


J 

ttfl 


S: 


108 


(Mr.  Bei(iut''n  Aigument.) 

"  ships,  and  in  the  courts  of  every  civili/A'd  nation,  pas.sinjr  the 
"  ([uestion  of  national  ilifjnity,  it  is  conchiHiveiy  lielil  that 
"  natiuntdity  folloti'Aoii'tietxhip. 

"  A  citizen  of  the  Ignited  States,  wlierever  resident  or  donii- 
"  ciled,  nntil  lie    becomes  naturalixe(l   in  (Ji'cat    Britain,    is   still 
"  bound   to    his   original    allej^iance    to    the     I'nited    States    in 
10  "  respect  of  : — 

"(a)  Their  assertion  of  jurisdiction  and  sovereignty  over 
"  territory  or  property. 

"  (b)     All  nntnicipal  laws  havini;  an  exterritorial  ett'ect." 

A<;ain,  on  pajjes  40  and  44 : — 

"  There  arc  fiiv  (7(^s>•(^s  of  ' iie.vsoiin'  muotig  ihese.  claimants, 
"  )cho,  hij  the  settled  and  atljudiciited  priiKiiplea  of  international 
"hue,  are  not  ' persons'  in  whose  hehalf  Great  liritain  is  en-_ 
"titled  to  claim  compensation  from  the  United  States." 

These  are  : — 
20  "(1)  Orijjinal  subjects  of  Cireat  Britain  still  owing  that 
"  nation  a  (pialified  alle;;iance  (in  respect  of  .sovereif^nty  and  cer- 
"  tain  e.\territt)rial  laws),  l)ut  who  by  domicile  in  the  United 
"  States,  without  naturalization,  owe  allejjiance  to  the  .sovereign 
"claims  of  the  United  States,  and  obedience  to  their  municipal 
"  laws. 

"  (2)  Citizens  of  the  United  States,  alleged  to  have  been 
"  domicile(l  in  (h'eat  Britain,  who  had  not  become  naturalized  in 
"  (ireat  Britain,  but  who  owed  allegiance  to  the  United  States, 
"  obedience  to  the  jurisdiction  a.sserted  by  the  authorities 
30  "  of  its  sovereignty — executive,  legislative  and  judicial — and 
"obedience  to  their  exterritorial  laws." 

At  page  44  : — 

"The  logical  positions  of  Great  Britain  as  to  Cooper  are 
"  these : — 

"(a)  That  his  ownership  of  the  vessels  seized  must  betaktMi 
'■  as  conclusive.  (In  this  we  fully  agree,  but  on  other  and  dis- 
"  tinct  gi'ounds  from  tho.se  taken  by  (ireat  Britain.) 

'•(b)  That  although  domiciled  in  the  United  States  since 
"  boyhood,  and  for  nearly  iialf  a  century,  because  he  was  not 
40  ''  uiitui'jilizi'fl,  and  because  he  was  an  original  British  subject,  he 
"  Cduld,  under  the  nnniielpal  l;iws  of  (Jreat  Britain,  take  out  a 
"  Britisli  registrv  for  Ins  ships,  and  put  them  inuler  the  Bi'itish 
"  flag."  [ 

We  unijUestioiiMbly  contend,  and  nothing  has  been  shown  to 
the  ctaitrary,  that  Cooper  although  clomicileil  in  the  United 
States  territory,  was  ciititleil  to  own  liritish  vessels  ami  lia\e 
them  registered  as  such. 

"  (cV  That  so  domiciled,  by  virtue  of  such  r.  gistry  and  flag 
"alone,  in  .lireet  violation  of  the  munici|)al  laws  of  the  United 
50  "States  of  exterritorial  force,  ami  indirect  violation  of  their 
"original  statutes,  alsd  of  extei-ritia'ial  force,  and  in  direct 
"detiance  of  the  national  claim  ami  assertion  of  jurisdiction 
"over  the  .sealing  waters  of  Behring  Sea  (a  soverein  claim  made 
"authoritatively  by  all  the  Ijranehes  of  the  government)  he 
"could  send  his  vessels  to  take  seals  in  those  waters." 

There  is  no  doubt  that  it  was  claimeil  at  one  time  bv  the 
United  St.'ites  ( ioveinnient  that  the  United  States  territory  ex- 
tended ovei'  the  Behring  Sea,  but  this  assinnption  it  seems  to 
me  has  been  set  aside,  and  it  has  been  .set  aside  by  a  Treaty 
()()  wliich  to-day  forms  part  of  the  law  of  tlie  land  in  the  I'nited 
Stati's.  'i'lierefore.  we  have  it  here  as  an  undoubtefl  fact,  as 
resulting  from  the  Paris  Award,  that  these  assumptions  on  the 
part  of  the  (lovernment  of  the  United  States  were  erroneous 
assumptions,  an<l   thei'efore  that  any  acts  done  contrary  to  these 


109 


■    ht'lil  Hint 

flit  or  (loiiii- 
aiii,  in  Htill 
1    States    ill 

ri'ijiiity  over 

I  I'tik't." 

\e  chtimanis. 
niernalional 
y'lUtln  is  en- 

tC8." 

owiiij;   tlmt 
jiity  and  fer- 
tile United 
lie  Hovereij;n 
.'ir  municipal 

to  have  been 
aturalized  in 
nited  States, 
autliorities 
udicial — and 


o  Cooper  are 

lUst  bo  taken 
tlier  and  dis- 

States  since 

le    was    not 

1  subject,  lie 

take  nut  a 

tlie  Hritish 

'11  sliown  to 

tile   I'liiteil 

'is  and  have 


-try  ami  llaj; 
the  I'liited 
loll  oi'  their 
(1  ill  direct 
iurisdiction 
I  claim  macjt; 
•ernmeiit)  lu' 
■I." 

time  by  the 
territory  ex- 
it HeeiiiH  to 
by  a  Treaty- 
"the  I'liited 
bted  fact,  as 
tions  on  the 
re  erroneous 
I'ury  to  these 


(Mr.   Hei(|Ue's  ArjfUiiient.) 

assumptions, — whether   these  aets  weic  done  by  United  States 

citizens  or  British  siil)jects,  -were  perfectly  le;,ralaiid  were  in  no 

'        way  in   contravention  of  any  laws  of  the  I'nited   States.     We 

have  as    a  result  of  the    treaty  and  of  the   award    that    the.se 

assmii'it-  HIS  were  erroneous,  and  that  Article  ID.jli  of  the  Hevi.sed 

;        Stilt  111  "s  of  the  United  Stati's,  was  not  to  be  interpreted  as  was 

10   claimed    liy  the   United  State's    and    had  no    such    iiieaiiinjr    as 

was  intended,  and  did  not  extend   to   liehrinj;  Sea   beyond    the 

tlirei'  mile  limit. 

I  coiitiiiue  to  read  from  the  saiin'  part  of  the  ar«,nimeiit  of  the 
United  States  Uounsel  : 
t  "(d).     That    concurrently   with   his,    the    ve.s.sels   of  Cooper's 

I  "  nei;;iiboiirs  in  .San  Krancisco,  who  were  native  born  citizens  of 
r  "  the  United  .States,  jn'oteeted  no  more  than  himself  by  the  laws 
"of  the  United  .States,  liavilij;' bei'ii  sent  by  them  to  take  .seals  in 
"the  same  waters,  may  be  seized  and  condemned,  under  tlio.se 
"laws,  while  at  the  same  time  their  owners,  his  neij^hbours  and  ■ 
"fellow  citizens  of  tliirty-ti\e  years,  witness  his  ileets  oo  and 
"come,  and  take  seals  with  impunity." 

There  ayaiii  we  have  u  reference  to  laws  that  had  no  existence 
at  all.  I  atfaiii  ijuote  from  the  arj^ument  of  my  learned  friend, 
Mr.  Dickinson  : 

"(e).  That  if  in  these  eirciimstances  the  United  States 
"enforced  the  law  alike  and  with  equal  hand  upon  the  property 
"of  all  their  citizens  of  San  Fratieisco,  be  he  a  citizen  by  domicile 
"  or  like  his  neighbours  b}-  nativity  or  naturalization,  that  Cooper, 
"by  reason  of  his  orii^inal  political  alh'iriance  and  by  havingr 
"  put  his  vessels  in  a  British  re;i;istry  ami  under  a  British 
"  llajf,  is  a  per.son  on  account  of  whom,  for  these  penalties  that  he 
"  has  sutVerecl,  and  while  still  retainiiif;  his  American  domicile, 
"(ireat  Britain  can  claim  compensation  from  tlii'  I'nited  States. 
"  ^^^'  atllrm  that  no  such  monstrous  doctrine  can  be  tolerated 
"  for  a  moment. 

I  leave  it  to  your  honors  to  <  oiisideras  to  wliether  tlu^  position 
vvhicli  is  attributed  to  the  coiiiisi.1  fur  (ireat  Britain,  and  of  which 
we  are  willinjf  to  accept  the  res])onsibility,  is  "  monstrous,"  as 
stated  ill  this  brief.     Aijain,  on  |)ai;'e  4(1: — 

"  I'rotectiou  can  not  be  invoked  by  domiciltMl  forei<>'ners,  except 
"  for  diseriminatioii  and  arbitrary  acts,"  as  distinguished  from 
•'  penalties  and  punishments  incurred  by  the  infraction  of  the 
"laws  of  the  country  within  whose  juri.sdietion  'he  surterera 
"have  placed  themselves." 

At  pa<;e  47  of  the    ari^ument  there  is  a   remark  to  the  same 
effect,  «  i|uotation  from    jlr.    .Mar-'v,  Secretary  of  State  of  the 
Uniteil  States,  which  I  need  not  read. 
At  pai;e  51  there  is  the  followinij;: — 

"*  *  *  but  the  added  objection  in  Cooper's  ease  is  that 
"  he  was  enf;n<ied  in  violating  the  laws  and  defying  the 
"  sovereiijntv  of  his  domicile.  " 

"  It  can  not  be  seriously  onteniled  that  in  behalf  of  her  sub- 
"jects  residinj,'  in  the  United  States  as  provided  in  this  treaty, 
"and  enjoyini;  complete  protection  and  security  of  their  laws, 
"but  subject  to  their  laws  and  statutes,  as  provided  and  stipu- 
"lated  ill  the  treaty,  Creat  Britain  can  make  reclamation  on 
"nccoimt  of  any  such  subject  for  inju.-ies  suffered  at  the  liands 
"of  the  United  States  while  in  the  act  of  violating  those  laws 
"and  statutes,  more  especially  when  such  statutes  are  in  the 
"  nature  of  regulations  of  trade  and  commerce  of  exterritorial 
"effect,  directly  applicable  to  all  citizens  of  the  United  States 
"  everywhere  and  "  all  persons.  " 


™ 


no 

(Mr.   Bcii|iic'H  Ai'ijuiiii'ijt.) 

Tlie  Inst  referiMico  1  will  rciul  from  is  on  paf^t;  5!)  hn  follows  :— 

"Ah  to  <'itizt'iiH  of  tlif  I'liitcd  Stiitcs,  tlicii,  iiHNiiininj,'  tliat 
"  tlit'y  were  lioiniciii'd  imt  not  iiitturali/.c<|  in  (Jrcat  Britain, 
"  wliat  ar((  tlicir  ri'lations  as  claimants  to  ^lio  rnitcil  Stattss  and 
"(irt'at  lii'itain  in  rcsju'ct  of  injnrii'H  suHcrt'd  while  scaling  in 
"  Hcliriiif;  Sea,  in  tlic  act  of  violatin;;  llic  lawH  of  tlie  I'nitcd 
10  "States  in  i|Ucstion,  and  in  defying  anci  attempting  to  <'liide  the 
"jurisdiction  of  the  rnitcfj  States  claimed  liy  that  Oovernment 
"  in  the  waters  where  their  ])rojiei'ty  was  taken  in  that  act ;'  " 

\\'e  have  in  our  written  argument  shown  how  unfounded  thiH 
contention  is.  And  1  might  here  I'efer  to  what  we  said  on  that 
Miil)ject  on  pag*'  2  of  the  reply  of  counsel  for  (ireat  Britain  : 

"The  jiropositions  asserted  on  pages  I4-I(i  of  the  opposing 
"argument,  rest  on  the  assum])tion  that  the  persons  against 
"whom  the}'  are  urged  have  violated  a  munici|)al  law  of  tho 
"  Uniteil  States,  namely,  section  IKot;  of  the  Kevieed  Statutes. 
20  "As  thifl  law  only  forhids  the  killing  of  seals  '  witldn  tlie  limits 
"  of  Alaska  territory  or  in  the  waters  thereof,' and  the  sealing 
"operations  which  constitute  the  alleged  oti'ence  took  place  else- 
"  where,  such  assumption  is  manifestly  unfoundeil.  It  is  useless 
"to  argue  that  the  Tnited  States  may  bind  tlx'ir  citizens  by 
"e.xtra-territorial  laws.  Section  l!lo(i  applies  only  to  United 
"  States  territory. 

"  Kipially  unavailing  ia  the  ai-gument  that  the  citiztuis  and 
"courts  of  the  United  .States  must  accept  as  American  territory 
"whatever  their  goverinnent  may  claim  to  be  such." 
30  The  Commissioner  on  the  part  of  the  United  States : — It  is 
setted  the  other  way  in  the  Ignited  States.  The  bi'oad  jjroposition 
lias  lieeii  .settled  over  and  over  again  by  the  Supreme  t'ourt  of 
the  United  States.  I  ikjw  i'efer  simply  to  thebroail  proposition, 
but  whether  it  applies  to  this  case  or  not  is  another  ([iiestion. 

.Mr.  Beii|ue:  — I  am  aware  of  that  your  Honor,  and  I  do  not 
intend  to  advance  anything  contrary  to  that  proposition.  I  am 
aware  that  it  has  been  settled  o\('r  and  over  again,  that  tho 
Courts  of  the  United  States  were  boiinil  by  the  assumed  juris- 
diction as  maile  })y  the  political  department,  and  it  is  not  intended 
40  to  say  anything  against  that:  lint  the  Courts  of  the  United 
States  are  bound  only  so  long  as  this  assumed  jurisdiction  exists. 

The  Commissioner  on  the  part  of  the  Unite<l  States: — That 
is  another  ([Uestion.  I  merely  call  your  attention  to  the  broad 
proposition. 

Mr.  Beiijuo: — That  paragrajih  which  I  liave  read  is  explained 
by  the  other  paragraph  which  follows: — 

"  In  the  ])resent  case,  the  claim  of  the    United     States'    Ex- 

"  ecutive  is   in  conflict  wi*h  and  must  yield  to  the  Paris  Award, 

"  which  lias    the  force  of  law  within  the  United  States  treaties, 

50  "  under  the  constitution  of  that  country,  being  part  of  the  law 

"  of  the  land. " 

Tlia  five  paragraphs  should  be  read  together. 

The  Commissioner  on  the  part  of  the  United  States : — I 
merely  refer  to  the  very  broad  proposition  laid  tiowii.  It  may 
not  come  up  in  this  case  exactly. 

Mr.  Beicjue : — My  contention  docs  not  go  so  far  as  to  say  that 
the  United  States  courts  were  not  Ixiund  previous  to  the  Award, 
but  I  say  that  the  moment  tlie  Award  was  rendered ;  the  Award 
being  rendered  by  virtue  of  a  treaty  forming  part  of  tho  law  of 
60  the  land,  then  the  contentions  of  the  political  department  of  the 
United  States  are  to  be  considered  as  having  beeu  erroneous  from 
the  beginning,  as  having  been  of  no  avail,  and  as  never  having 
bound  the  courts  of  the  United  States.  I  go  furtiier  your  honor, 
and  I  say  that  so  far  as  the  citizens  of  tlie  United  States  them- 


Ill 


!•  UH  follows  : — ■ 
iiH.Hiiiiiiiij;  that 
(iicat  Hritain, 
iti'il  Statt!H  and 
liilc  Mcaiinf;  in 
of  the  L'liitt'd 
n;,'  to  I'liidc  tho 
at  (ioviTMincnt 
1  that  at't  f" 
uiifouiidt>d  thiH 
we  Haid  on  tliat 
at  Hritain  : 
f  tho  opposing 
itTsoiiH  against 
pal  law  of  the 
viBcd  Statutes, 
itliin  tlie  limitH 
and  tin-  sealing 
took  plaee  else- 
I.  It  is  iiselfss 
H'ir  eiti/ons  by 
only  to  United 

he  eitizens  und 

'lican  territory 

h."  ^ 

d  States: — It  is 

road  proposition 

preme  Court  of 

lad  proposition. 

ler  (piestion. 

)r,  and  1  do  not 

iposition.     I  am 

again,  that    the 

•  assumed  juris- 

isnot  intended 

of  the   Tnited 

•isdietion  exists. 

I  States  : — That 

II  to  the  hrond 

cad  is  explained 

?(\    States'    Ex- 

le  Paris  Award, 

States  treatie."*, 

part  of  the  law- 


ted    States :— I 
ilown.      It  may 

ir  as  to  say  that 
s  to  the  Award, 
red ;  the  Award 
't  of  tho  law  of 
partnient  of  the 
erroneous  from 
18  never  liaving 
her  your  honor, 
;d  States  theni- 


(Mr.  Beit|Ue's  Argument.) 

selves  Mere  coneerned,  if  any  eourts  of  the  United  State.' oon- 
siderin;.  themselves  hound  hy  this  ii.ssumption  of  the  political 
department  of  the  Uniteil  States,  had  reiwlered  decisions  against 
ITnited  States  citi/ens  in  eon.s(|Uenee  of  such  a.ssumptiotis,  after 
the  renilering  of  the  Award— the  Award  heing  a  declaratory 
law;  it  was  not  a  new  law:  it  was  not  a  law  merely  to  have 
0  etl'ect  in  fiituro;  it  was  declaring  what  had  heen  tho 
law  from  the  outset :  it  was  declaring  that  .section  UirAi 
of  the  Revised  Statutes  of  the  Uniteil  States  had  never 
exteiiiled  to  Hehring  Sea,  that  HehringSea  forme.l  no  part  of  the 
Alaska  territory,  and  therefore  that  section  I  ,i)rjf)  couM  not  have 
extended  to  liehring  Sea— I  say  after  the  rendering  of  tho 
Award,  the  United  States  should  "have  made  restitution  to  their 
own  citizens  if  they  were  previously  aggrieved  by  any  decisions 
of  the  courts  on  the  wrong  assumption  of  the  political 
department. 
i20  The  t'onnnissioner  on  tho  pai-t  of  the  United  States: — I 
understand  you  perfectly  Mr.  Heinue,  you  <h)  not  think  it  neces- 
sarv  to  maintain  the  broad  proposition,  and  you  do  not  maintain 
it.  ' 

Mr.  Hei(|Ue  : — Oh  no,  it  is  not  necessary. 

The  Commissioner  on  the  part  of  the  United  States; — You 
claim  that  this  action  is  retroactive  ? 

Mr.  Hei((ue  : — I  claim  that  it  is  retroactive. 

The    material  portion  of  section    lOotJ  of  tho  United  St.it'>s 
Revi.sed  Statutes    under    which    the    seizures  were  made  reails 
30  thus:— 

"Section  ntno.  No  person  shall  kill  any  otter,  mink,  mar- 
''ten,  sable,  or  fur  seal,  or  other  fur-bearing  animal,  irithin  the 
"limits  of  Aldshii  territory,  or  in  tin-  waters  thereof;  and  every 
"  per.son  guilty  thereof,  shall,  for  each  otf'ence.  Vie  tine.:  not  less 
"than  8200,  nor  more  than  81,000,  or  imprisoned  not  more  than 
"sixuKjiiths,  or  both:  and  all  vessels,  their  tackle,  apparel, 
'•  furniture  and  cargo,  found  engaged  in  violation  of  this  .section 
"  shall  be  forfeited.  »  •  *  •  *'• 

Section  .'{  of  the  Act  for  the  protection  of  tho  salmon  fisheries 
4o  of  Alaska,  approved  March  2n<l,  IH.SO,  provides. — 

"  Tliiit  si'clior  l!)-'it>  in  hcri'bij  dcrhired  to  inrhide <tn<i  npi'ly 
"  to  till  tlie  ilominion  of  the  United  States  in  the  waters  of 
"  Behriiii/ Sea  :  and  it  shall  be  the  duty  of  the  President  it  a 
"timely  .season,  in  each  year,  to  issue  his  proclamation  and  ause 
"the  same  to  t)e  {)ublished  «  *  *  warning  all  jh  'aons 
"  aif a inst  entering  said  waters  for  the  purpo.se  of  violatin;;  the 
"  prov'sioiiH  of    said    section.  *  ♦  *  •" 

As  clearly  appears  from  its  terms  and  from  the  declaratory 
act  of  1880,  section  lOSti,  was  not  intended  as  an  extra-territorial 
50  law  ;  it  applied  solely  to  territory  of  tho  United  States,  and 
within  such  territory  was  binding  on  a'l  persons  alike,  on 
foreigners  as  well  as  on  citizens  of  the  1':  ii  "d  States.  Such 
being  its  character,  it  was  not  infringed  by  uay  of  tho  claimants 
because  the  sealing  operations  took  place  outside  the  United 
States  territory,  on  tho  high  seas. 

As  reference  has  been  made  on  this  point  in  our  written 
brief  to  "  La  Ninfa"  case,  I  may  state  that  the  holding  in 
tnat  case  was  as  follows  ;  I  have  taken  the  liead  notes  from  the 
official  report  and  they  are  as  follows : 
CO  "(1.)  By  the  award  of  the  arbitrators  under  the  treaty  of 
"  arbitration  between  the  United  States  and  Great  Britain  (27  U.  S, 
"  statute  948),  it  was  settled  that  theU  hitedS  tates  have  no  exelu- 
"  sive  jurisdiction  in  tlie  waters  of  Bohring  Sea  outside  the 
"  ordinary  three  mile  limitand  no  rightof  property  in,orprotection 


t  " 


wmmmm 


py 


112 

(Mr,   r!t'ii|ue':4   Ar;,Miiiicnt.) 

"  osir  the  I'nr  hoiiIs  frciiucntiii^  tlic  InIiiikIs  of  ilic  liiitcl  Stiitis 
"  ulicii  rmiiKl  ouIs'kIc  iif  Mifli  (line  iiiili'  limit. ' 

'I'licnfdic  the  net  of  Miiicli  -.'ml,  I.S.H!t,  ili'diirin;:  tliiit  Itcvisid 
Slatiii's,  sec.  Ilt'itl  wliicli  I'lirliiilN  llir  killing,'  of  fur  liciiriii;,' 
aiiiiniilM  ill  Altiskii  mid  llic  wiitiTM  tlicirnt'  shiill  M|i|ily  In  all  tlir 
<l<iiiiiiiiiiii  (p|'  llic  I'liitcd  Slates  in  the  waters  nl'  lieinin;;  Sea 
It)  iiiiiht  lie  ediihtrue*!  to  mean  tlie  waters  within  three  iiiiieH  ol'  the 
>li(ire  III'  Alaska. 

"(2.)  Ashy  the  terms  of  t  he  t  leatv  nl' ailiit  i  at  ion  t  he  rie;|its 
"  nf  t  he  ('it  i/eli.s  and  .Miliji'cts  nl'  eil  her  ((Hint  I  V  Wi'I'e  iliVdlved  ill 
"  the  (lefisinli  of  the  ailiit  liltols,  eili/elisof  the  rnileil  Stales 
"  have  the  same  rielu  to  icly  ii|ion  the  Award  as  to  their  ri;,dils 
"  iinih-r  the  statute  as  the  citi/eiis  and  siihjects  of  (Ireal  llritain. 

"(H.)  An  award  liy  arliitiators  under  a  treaty  hetweeii  the 
"  I'niled  States  and  iinotlier  nation  I ly  which  liie  contracliii;; 
"  nations  ae;i'i  I   that  a  deeisioii  of  the  Irilaiiial  of  arhitral  ion  sliall 

20    "he   a    linal    selll(  llielll    of   all  i|llest  ions  sllliliiitted,    heconies  the 
"Mi|  nine  law  of  llie  land, and    is  as  hindiii;,'  on  the  coiirls  as  an 
"  lU'l    of  ( 'oliejress,   4!l    l'"eil.    ')".'">,   reversed." 
At  one  Ol  I  .i  k  the  ( 'omniisHioiiers  rose. 


i, 

p 

't. 


At  lialf-pnst  two  o'clock  tlie  Cominissioner.s  resumed  tlieir  .seats. 

Mr.  Beiiiue  :— When  your  honors  arose,  I  was  just  ahout  to 
rend  from  the  opinion  of  Mr.  Justice  Hnwiey  in  tlie  case  of  "  La 

20  Kinfa,"  in  connection  with  section  l!t.")li  of  the  ]{evised  Sliitutes 
of  the  United  Slates,  and  section  .'{  of  the  Act  jirovidinj,'  for  tlit! 
I'rolection  of  the  Salmon  Kislicries  of  Alaska.  The  learned 
jud^e  says  : — 

"  Ijy  these  provisions,  the  (|uest  to  what  the  lionndaries 

"  well'   over   which   the    United  S  ml   doniinion,  was   not 

"  intended  to  be  and  was  not  determined  hy  the  amendatory 
'•  Act.  The  (Hiistion  WHS  left  open  for  future  consideration.  By 
'  reference  to  the  proceediiies  in  ('onj;iess,  it  appears  that  the 
"  aniendiiient  to  section  l!l."t)  was  hrou^dit  ahont  in  the  fo! lowing,' 

40  "  manner  :  A  hill  was  introduced  in  the  Senate  and  passed, 
'•  umeniliny  ••ectidii  l!l(i;i  of  the  lievised  Statutes,  and,  to  pro- 
■'  vide  fo)'  I  etter  protection  of  the  fur  seal  and  salmon  lislieiics 
"  in  Alaska,  and  had  reference  to  tisliin^  and  fisheries  only. 
"  When  this  hill  came  to  tlie  House  of  Uepreseiitatives,  an 
''  amendment  was  pioposed  and  adopted,  That  section  IJtofiof 
"  t)ie  lievised  Statutes  was  intended  to  include  and  apply,  and 
"  is  liereliy  decreed  to  include  and  apply  to  all  the  waters  of 
"  Ik'Jirin"  Sea  in  Alaska  enihraced  within  the  boundary  lines 
"  mentioned   and    desciibed    in    the   treaty   with    Russia,  dated 

50  "  March  150,  IMIT,  by  which  the  territory  of  Alaska  was  ceded 
"  to  tl.o  United  States,"  kc.  The  bill,  as  thus  amended,  was 
"  returned  to  the  Senate.  The  committee  on  foieij.'n  relations 
•'  report"d  the  House  auiendnient  with  a  recommendation  that  it 
•'  be  dis.ii^reed  to,  Senator  Mor<,'an  of  the  committee  said  :  "  tliat 
"  in  the  report  U'ade  by  the  committee  the  rii.jhts  of  the  {jovern- 
•'  ment  of  the  Uniteil  States  were  not  considered,  and  not 
"  intended  to  be  considered.  We  only  arrive  at  the  conclusion 
"  that  the  question  presented  in  the  amendment  of  the  House  is 
'•  of  such  a  .serious  and  important  character  that   the  foreijjn 

GO  "  relations  would  not  undertake,  at  this  time,  to  pronounce  that 
"  kind  of  judgment  upon  it  which  is  due  to  the  magnitude  of 
•'  such  a  (juestion     .    .     . 

"  The  bill,  as  it  passed  the  Senate  originally,  should  pass, 
"  because  it  protects  the  salmon  and  other  fisheries  in  Alaska, 


^^ 


I'llitcil  StillcN 


led  their  seiits. 


ll.'i 

(Mr.    Hi'i<|m''s    Argument.) 

"  nliiiiit  wliieli  then'  is  no  ilispiito.  Hut  this  pnilieiilitr  (lUcstion 
"  is  one  i)(  very  ;,'n'(it  ;,'niviiy  iiml  scrioiisinss,  niid  tin-  cmii- 
"  Miitt^i'  (III  r(in'i;{ii  I'l'liitiuiis,  tir  'it  Iciist  u  iiwijurily  of  tliii  eiitin^ 
"  [■oiiiinitlci',  <iiil  not  I'i'i'l  wjirnuittMl  in  iimli'rtiikitiL;  Id  coiisiilcr 
."  it  lit  tills  rinif.     .     .     . 

"  Till'  iiinciiiliiiciit  iniiili^  liy  till'  llotisi-   was  iiisii;,'iri'i|    to.     A 

"  coiiiiiiitl r  confcri'ticc  WHS  iippoiiitnil.     Tlic  rcsnlt  wiis  tliiit 

"  till'  (li'SL'riptioii  n's  to  tin'  lioiimiiirirH  in  tlx^  lloiisi'  iiini'iiiliiit'nb 
'■  was  stricken  (Hit,  iiml  the  words  '  hcrt'liy  clccliiri'd  to  includt! 
"  and  apply  to  nil  tlin  doiiiinions  (d"  tlic  Ifnitnl  States  in  tlio 
"  waters  of  Hehrin;,'  Sea,'  insc-rted  in  lieu  thereof.  Ft  tliiis* 
"  appears,  as  is  nninifest  liy  tln^  Act  itself,  that  the  ipiestion  as 
"  to  the  liounilaiies  ovei-  which  the  United  states  had  dominion 
"  was  not  intended  to  lie,  and  was  not  determined  when  the  Act 
"  was  passed. 

"  The  (iovernnient  relies  solely  ii|ion  the  provisions  of  the 
"  statute  to  sustain  the  deeiee  of  the  District  Court,  .'iiid  con- 
"  tends  that  the  decision  of  the  Sii|iieiiie  Court  in  rf  Cooper, 
"  14:J.  I).  S.  474,  jllsti^il^s  the  atlirmiince  of  the  decrt.-e  that 
"  decision  does  ?iot  reach  the  dirrcl-  ]ioiiit  here  in  the  cintroversy. 
'■  The  eomt  tlieri!  held  that  the  (|Uestioii  was  u  political  one  in 
"  which  the  ITnited  States'had  asserted  a  doctrine  in  opposition 
"  to  the  views  contended  for  liy  till'  petitioner;  tliiit  the  neL;o- 
"  tiations  were  then  pendiii;.',  in  relation  to  tht^  puiticiilur  suhject, 
"  hut  the  court  declined  to  decide  whether  the  (Jovermiieiit  was 
"  rii,dit  or  wron^'  in  its  contention,  or  to  review  the  action  uf  tlio 
"  political  I'epai  tineiits  upmi  the  (luestioii  under  review.  Tho 
"  opinion  siiows  that  the  e  iiiit  considerecl  it  a  i,'rave  ipiestion. 
"  it  recites  iiiucli  of  the  iiiij  iiant  histoiy  reliitivi'  to  the  dis- 
"  puted  (piestinii,  hut  the  ipustion  itself  was  not  decided.  I'lio 
"  case  was  disposeil  of  upon  other  i,'rouiids.  What  was  said 
"  concerniiiif  thi^  disputed  ()uestioiis  had  leiereiice  to  thu  ondi- 
"  tions  then  e.xistiiii^.  Thu  conditions  now  existini;  tiro  entirely 
"  ditlerent.  The  nej^'otiations  then  pendini,'  were  liroutjht  about 
"  liy  the  asserted  claim  of  the  United  States  to  proprietary 
"  lights  iji  the  waters  of  Behrini;  Sea  and  in  the  fur-hearini,' 
"  animals  which  friipient  it  and  its  islands  which  was  disputed 
"  liy  other  nations,  |)aiticidarly  liy  Knuland,  tlu^  jirojierty  of 
"  whos(,'  suhjects  had  lieen  fi'oni  time  to  time  seized  hy  till) 
"  United  States  for  alle^'i'd  violations  of  the  statutes  in  (piestion, 
"  and  these  controversies  resulted  in  sulimittii)<,'  the  disputed 
"  Ipiestion  to  an  arhitration  (U.  S.  Stat.,  !»4.S)." 

Then  he  refers  to  Artitile  I.  of  the  Treaty  ivnd  the  questions 
suhniitted  to  the  arliitrators,  and  continues  : — 

liy  the  XIV.  Article  of  the  treaty,  or  convention,  sntiiiiit- 
"  tiui,'  the  ipiestions  to  arhitration,  it  was  provided  that  the  hii,di 
"  contractiim'  parties  eii^fa;,'e  to  consider  the  result  of  the 
"  proeeedini,rs  of  the  Triliunal  of  Arhitration  as  a  full,  perfect 
"  and  linal  settlement  of  all  the  cpiestions  referred  to  liy  tho 
"  arliitrators.  In  .^uliinitlini,'  the  ipiestions  to  the  hiah  court  of 
"  arhitration,  the  i,'overnment  aj,'reed  to  he  hound  hy  the  decision 
"  of  the  arhitiiitors,  and  has  since  passed  an  Act  tojrive  effect  to 
"  tiie  award  rendered  liy  the  Triliunal  of  Arhitration  (28  U.  S. 
"  ")2).  The  award  should  therefore  he  considered  as  havii',;.' 
"  finally  settled  the  ri<,dits  of  the  United  Stales  in  the  waters  d 
"  Alaska  and  Hehrin^'  i! :n,  and  all  ipiestions  concerninif  the 
"  iii,'hts  of  its  own  citizens  and  suhjects  therein,  as  wudl  as  of 
"  the  eitizi-ns  and  suhjects  of  other  countries." 

The  learned  jud;,'e  here  no  douht  had  in  minil  this  portion  of 
the  award — the  first  paiaifraph — where  it  stated  "  Whereas,  hy  a 
treaty  between  the  United  States  of  America  and  Great  Britain," 


m 


I 


114 


i-i:^ 


(Mr.    Reiqut^'.s    AtLfuiiu'iit.) 

lilrc.,  "  tlio  r.'tilicatio"  of  wliicli,"  &c.,  "  it  was,  iiin(in<jst  otliof 
tliiiiijs,  ii<j;roeiI  ami  conclniU^d  that  the  (piostions  wliich  had  ari.sen 
lu'twi'i'ii  tile  i;ovi'rmiioiit  of  the  (Tnitcd  States  of  America  and 
tlie  nr,)vermiieiit  of  Her  l^ritatmic  MaJestT,  concerning'  tin;  jui'is- 
dietional  ri'dits  id'  the  United  States  in  tin?  waters  of  Jitdiriti" 
Sea  and  concrninj;  also  the  preservation  of  llie  fur  seal,"  &e. 

10  "(Hill  the  rli/ltls  (if  Ike  fifizcnx  tind  .fuhji'i'ls  of  rithcv  I'oiuilri/  kn 
ri'f/itrilo  tin:  takiitii  of  fur  xeiih  in  or  hahituallv  resortinsj;  to,  the 
said  waters,  shoiiKl  lie  snhnntted  to  a  Tribunal  of  Arbitration  Ui 
be  composed,  I'vrc. 

Mr.  .lustice  Hawley  continues: 

"  The  true  iiiter|iietation  of  section   lO'iO,  and  of  the  amend 
'  ment  thereto,  depends  upon  the  dominion  of  the  United  States 
"  in  the    waters  of   Heiirin^  Sea  ;  such  domiidon   tlurein  as  was 
"  'ceded  hj-  Russia  to  the  United  States  hy  treaty  of  1SC7.'    This 
"  (|uesti()n  has  lieen  settled  hy  the  award  of  the  arbitrators,  ainl 

20  "  this  settlement  must  be  accepted  '  as  final.'  It  follows  there- 
"  from  that  the  words  'in  the  waters  thereof,'  as  used  in  .section 
"'!).')(>,  and  the  words  '  dominion  of  the  United  States  in  the 
''  wateis  of  liehrint,^  Sea,'  in  the  aniendTuent  thereto,  must  be  coii- 
"  strueil  to  niean  the  waters  within  three  miles  from  the  shores  of 
"  Alaska.  On  cominif  to  this  conclusion  this  court  does  not 
"decide  the  (piestion  adversely  to  the  political  department  of 
"  the 'j;overnment.  It  is  umloubtcdly  true,  as  has  been  decided 
"  by  the  Supreme  (\)urt,  that  in  [)endinLj  controversies  doubtful 
"i|!iestions   which   are  undecided   must  be   met  by   the  political 

SO  "  department  of  the  ijovernment.  '  They  aio  beyoTid  the  sphere 
'of  judicial  co^fnizance,'  anil  if  a  wronLj  has  iieen  done,  tlw 
"power  of  reilress  is  with  Congress,  not  with  the 'judiciary.' 
'  (The  Cherokee  Tol)acco,  11  Wall,  1  l(i-121).  Hut,  in  the  present 
"  case,  there  is  nn  pendiui;  (piestion  left  uniietermined  for  tiie 
"  political  department  to  decide.  It,  has  been  settled.  The 
"  award  is  to  be  construed  as  a  treaty  which  has  bee  ;me  final 
"  A  treaty,  when  accepted  and  ajfreed  to,  becomes  the  supreme 
"  law  of  the  land.  It  binds  court.s  as  mucli  as  an  Act  of  (Jon- 
"<rre,s.s.      In    Head    Money  Oases,   112  U.S.   ;,SO-.J!)>S,  the  court 

40  ".said: — A  ti'caty  is  primarily  a  contract  between  independent 
"  nations.  It  depemls  for  the  enforcement  of  its  provisions  on 
"  the  interest  and  honour  of  the  i^overnments  which  are  parties 
'•  to  it.  A  treaty  then  is  the  law  of  the  land,  as  an  Act  of  Con- 
"  ;»ress  is  whenever  its  provisions  prescribe  a  rule  by  which  the 
"  rii;hts  of  the  private  citizen  or  subject  may  bo  determined. 
"  And  when  such  rights  are  of  a  nature  to  be  enforced  in  a  court 
"  of  Justice,  that  court  resorts  to  the  treaty  fov  a  rule  of  the  de- 
"  cision  for  the  ease  before  it  as  it  woidil  to  a  statute." 

Heferences  are  made  to  Cliof  Ht'utiij   v.  ('.  S.,  112  U.  S.  .'jIIO- 

,-)0    ">40-.-)0.'i,  and  i'nitcil  StuteH  v.  Hunsrlier.  11!)  U.  S.  407-419. 

"The  duty  of  courts  is  to  constrini  and  ijive  eti'ect  to  the 
"  latest  expression  of  the  sovereij^n  will,  hence  it  follows  that 
'  whatever  may  have  becin  the  contention  of  the  eroverninent  at 
"  the  time  in  re  ('oo|>ei-  was  decided,  it  has  receded  thend'roiii 
"since  the  award  was  rendered,  by  an  attn.'ement  to  accept  the 
"  same  '  as  a  full,  completer  antl  (inal  settlement  of  all  (piestiotis 
"  referred  to  by  the  arbitrators,'  and  from  the  further  fact  that 
"  the  j,'()vernment,  since  tht-  reiKlition  of  the  award,  has  passed 
"an  Act  to  1,'ive  idl'.'ct  to  the  award  rendereil  by  the  Triliunal   ot 

()0  "  Arbitration." 

"  It  is  su;,'L;e>ted  in  the  brief  of  the  learned  counsel  for  the 
"  Uidted  State-;  that  '  It  may  be  the  present  policy  of  the 
"  eovernment  t,i  make  record  evi<lence  a-<  to  the  consistencj'  of 
"  its  ciintention  from  the  bei,'inninji;  upon  the  important  (pn^stion 


115 


|50 


(Mr.    BieqiiuH    Argument.) 

"  i)f  its  lijfht.s  to  protect  it.s  property  and  sea!  fislieries  .... 
"  It  may  lno  that  it  is  tlie  policy  of  tins  Government  to  punish 
"its  o\^n  citizens  and  ve.ssels  and  not  the  citizens  and 
"  vessels  of  Eiij;lan<l.  All  these  and  other  cotisiderations 
"make  the  (piestioii  ono  essentially  political,  so  that  would 
"  at  least  hesitiit"  »o  enter  any  Held  I  lyoiid  that  of  constrninrf 
I  '•  the  statutes  under  which  thi.s  case  is  piesented.'  There 
"  is  nothinj;  in  the  award  which  denies  jurisdiction  of  the 
"  United  Stutes  over  her  own  merchant  vessels  on  the  hij^h  seas 
"at  any  plac.o  not  within  the  jurisdiction  of  any  sovereij^nty. 
"  Thes(!  cjuestions  have  no  hearinii;  as  to  the  interpretation  to  be 
"  ('iven  to  the  statiites  under  review.  These  statutes  whatever 
"  their  interpretation  may  he,  must  lie  applied  to  citizens  and 
"  sulijects  of  all  nations,  and  were  not  intended  to  apply  only  to 
"  eitizens,  subject.'-  and  vessels  of  America.  Hy  the  terms  of 
"  Arbitration  '  the  vijjhts  of  the  citizens  and  subjects  of  either 
"  country  were  involved  in  the  decision  of  the  arbitrators,  and  it 
"  necessarily  follows  that  th(>  citizens  and  subjects  of  the  United 
"States  have  the  same  ri<^ht  to  rely  upon  the  award  as  to  their 
"  liLrhts, under  the  statute,  as  the  citizens  and  subjects  of  England. 
"  Tliere  are  no  provisions  in  the  Act  of  April  (),  I8t)4,  '  to  give 
"effect  to  the  award  rendered  by  the  Tribunal  of  Arbitration,' 
"which  indicate  any  policy  upon  the  part  of  this  government 
"  to  enforce  any  rights  against  its  own  citizens,  under  the  statute, 
"  consistent  with  the  contention  made,  '  from  the  beginning  upon 
"  the  important  questions  of  its  right  to  protect  its  property  and 
"  seal  tisheries.'  On  the  other  band,  the  entire  Act  clearly 
".shows  that  it  is  the  policy  of  the  government  not  to  nuike  an}' 
"such  distinction.  The  Act  was  passed  enacting  certain  rules 
"  relative  to  the  control  of  its  own  subjects  in  the  exercise  of 
"  righ'.  which,  under  the  award  of  the  arbitrators,  the  two 
"co\u)tries  had  in  common  to  kill  seal  outside  of  the  three-mile 
"  limit." 

I  thouglit  it  ailvisable  to  read  so  much  in  the  notes,  because 
it  seems  to  me  that  this  opinion  is  very  important  in  the  present 
case.  We  do  not  admit  that  we  have  to  go  so  far  as  to  .show  that 
the  United  States  citizens  themselves  have  the  right  to  recover. 
Wo  consider  that  we  can  support  the  claims  that  have  been 
preferred  here  without  going  so  far  as  that :  but  when  I  can 
invoke  a  decision  so  well  reasoned  as  this — such  a  valuble 
opinion— where  it  was  held  by  the  courts  of  the  United  Sates 
that  the  United  States  citizens  themselves  can  avail  themselves 
and  take  the  benefit  of  the  award,  of  course  it  makes  our  case 
very  much  stronger. 

The  ( 'onindssioner  on  the  part  of  the  United  States  : — Do  you 
know,  .Mr.  Bei(]Uo  whether  or  not  there  was  an  appeal  in  thi.s 
case  to  the  Supreme  Court  f 

Mr.  lieique  : — I  do  not  knov  that  there  was. 

Mr.  Dickinson: — It  is  appt-f  iuble  of  course  under  the  Court 
of  Appeals  Act. 

Mr.  Heiqui'  : — T  do  not  fi  'i:k  it  was  appealed. 

!  might  also  refer  your  l.oiiors  to  the  argument  presented  by 
the  Chief  Justice  of  England  at  Paris,  United  States  Reprint, 
Vol.  l.'{,  piiges  ;{!).')  and  .'!!)(),  where  he  made  clear  that  .section 
lll.")(i  was  a  municipal  law  and  could  not  be  taken  advantage  of 
as  an  extra  territorial  law. 

Mr.  Diekirrsoii  : — As  against  citizens  of  Europe  merely, 

.Mr'.  hei(|ue  : — I  think  he  di.scussed  thi;  iniesiion,  ii  I  recollect 
correctly,  from  a  br-oader  point  of  view  ;  from  the  very  wording 
of  it  in  fact  Mi-.  Justice  llawley,  in  the  opinion  I  have  just 
read,  takes  very  .sti-ongly  the  same  position,  and  it  .seems   to  me 


i 


Hil 


k 


wA 


im 


h: :.   -i '  '.' 


116 


'   1 

'  1        if 


(Mr.    Bieque'.s    Arnfuinent.) 

he  makes  that  point  cloar.  Therefore  all  iiuestions  of  violation 
of  municipal  law  may  be  entirely  (iisniissuil  from  the  picsent 
enquiry,  anil  the  points  at  issue  discussed  as  thoui,'h  the  seizures 
had  taken  place  on  any  high  seas,  whether  Behriny  Sea  or  the 
Atlantic  ocean. 

In  theii'  brief,  counsel  for   tiie    United  States  have    recourse 

10  in  a  "Treat  many  instances  to  princi[)les  and  autiioritii^s  wiiich 
obtain  only  in  time  of  war  or  in  prize  co\irts,  which  of  course 
are  altoifi'thcr  ituipplicalilL'  in  time  of  peace  and  to  the  present 
case. 

Objections  are  raised  in  the  United  States  l)rief  on  the 
•fround  of  nationality  as  to  the  followinj.;  persons  anil  vessels  : 
First,  Thomas  H.  Cooper,  as  ref^istereil  owner  of  the  ''  Grace." 
the  "  Dolphin,"  the  "  Anna  Beck  "  and  the  "  \V.  V.  Sayward  ;" 
second,  Ale.vander  Frank,  as  owner  of  the  "Alfred  Adams,"  the 
"  Black  Diamond  "  and  tiie  "  Lily  ;'  tliird,  Andrew  J.  Bechtel,  as 

20  owner  in  whole  or  in  part  of  the  "  (^irolena  "  and  "  I'athtinder :' 
fourth,  Daniel  McLean,  as  owner  of  22  shares  in  the  '■  Triumph  ;" 
tifth,  Alexander  McLean,  as  half  owner  of  the  ''Onward"  and 
the  "  Favorite."  As  to  Joseph  Boscowitz,  the  defense  of  the 
United  States  has  so  utterly  faileil,  it  seems  to  me,  that  it  is 
useless  to  waste  an\-  jnore  time  over  it. 

As  1  have  already  pointed  out,  and  as  is  nu'iUioue  1  in  tin' 
pieamble  ol  the  Ccnvention.  "  compensation  is  to  be  niibh^ 
for  an",  injuries  for  which  in  the  contemplation  of  the  treaty, 
till- .'iward  ancj   findings  of  the  tribunal   of  iiriiitration,  compeii- 

30  sation  may  be  due  to  Oreat  Britain  from  the  United  States."  The 
wordiiii,'  of  Article  I.  of  the  ('onvention  is  :  — 

"  The  hitrh  eontractiniif  i)aities  ai'ree  tli.it  all  claims  on  account 
"  of  injuries  sustained  by  persons  in  whose  behalf  (Jreat  Ibitain 
'■  is  entitled  to  claim  compensation  from  the  United  Stales,"  \:c. 
On  reference  to  the  case  of  (ireat  Britain,  United  State.- 
reprint  Vol.  1\'.,  paj^os  12  and  1215,  it  will  Vie  seen  that  the  claims 
Were  presented  before  the  I'aiis  Triiiunal  in  the  folio winii;  words, 
and  these  are  the  only  places  where  any  reference  is  made  to  the 
presentation  of   the  claims.      1  read  from  paj^'e  12: — 

40  "  With  rejrard  to  the  points  raised  undiM'  Article  VIII.  (which 

"  refer  to  (juestions  arising;  out  of  claims  for  damai^fes)  it  will  be 
"  contended  on  behalf  of  (Jreat  Britain  that  the  seizure  of  the 
"  ships  was  unlawful,  and  the  arbitrators  will  be  asked  to  tind 
"  that  in  each  ease  the  seizine  took  place  in  non-territorial 
"  waters,  that  such  seizures  were  made  with  the  atithority  and 
'•  iin  behalf  of  the  (to\ '■rnmeiit  of  the  United  States,  and  that 
"  the  amounts  of  damaj^es  which  (Jreat  IJiitain  is  entitled  to 
"  claim  III!  liehalf  .)f  the  owners,  masters,  and  crews,  are  thr 
"  respective    amounts    stated    in     the    scludule    of     particulars 

50    ■'  appended  to  this  case." 

There  is  liiMe  a  clear  indication  that  (iieat  Biitain  at  that 
time  contemjilated  that  the  I'iiri>  Tribunal  miL'lit  pass  upnii  the 
claims,  but  a.s  your  Honors  aie  Lware,  exception  was  taken  to 
that  course,  and  it  was  finally  decided  that  the  jiirisdictioii  nf 
the  Paris  Tribunal  did  not  extend  thus  far:  all  that  cmld  ln' 
dune  was  to  tind  as  to  cerluin  facts  which  either  jiarty  niii,dit 
choose  to  suliiiiit,  liul  without  pif-iii^  at  all,  at  least  directly,  on  the 
<lUestion  of  liability  nf  tin-  I'niled  Stales.  Tlierefiili'  theantici- 
jiations  of  ( ireat  Britain,  as  contHineil   in   this   hist  p.ii  aL;i.iph,  a- 

GO  to  the  amount  of  damages  which  >lie  was  entitled  in  chum  nn 
behalf  (;f  the  owiu  IS,  masters  and  cie"s  were  not  r.alized.  .\s 
a  result,  the  Tiibuiial  of  Aibitialinn  was  not  called  upnn  to  piis^ 
upon  these  amounts,  'i'lue  it  is,  that  it  may  be  nroucd.  leit  oid\ 
what  it  is  worth,  that  (ireat    Iiritain    at  that  time   had   in   mind 


'"'"ill 


117 


ns  of  violation 
111  tlie  present 
i<fli  tiio  seizures 
iii;^  8ea  or  the 

liiive  recourse 
tliorities  which 
I'liicli  of  course 
to   tlie    present 

s  liiief  on  the 
IS  anil  vessels  ; 
if  che  '■  Grace." 
'.  v.  Saj'ward  ;" 
L'd  A'hiuis,"  the 
w  J.  Bechtel,  as 
1  "  Pathfinder :' 
;he  '•  'rriniiiph  ;" 
•  Onward  "  and 
defense  of  the 
)    me,  that  it  is 

mtioiied  in  the 
is  to  he  made 
of  the  treaty, 
ration,  conipen- 
jil  States."    The 

aims  on  iiceouiit 
If  (treat  liiiiain 
ited  Stales."  \:c. 
,  United  States 
1  that  the  claims 
'ollowinj;  words, 
e  is  made  to  the 
■)  ■ 

cle  VIII.  (which 

liases)  it  will  he 
seizure  of  the 

3  asked  to  find 
non-territorial 
authority   and 

States,  and   (hat 

I  is  entitled  to 
crews,  are  the 
of     particulars 

Diilain   at  thai 
t  pass   upon  the 

II  was  taken  tn 
['.  jurisdiction  of 
I  that  ould  hi' 
ler  parly  mi^dit 
^I  diieclly,  on  the 
•efiii''  ilie  antici- 
st  ));ii  ul;i  iiph,  as 
led  lo  claim  on 
lol  ii'alized.  .As 
Ird    upon   to    plis^ 

ary'iied.  Ii'it  oiih 
me    had    ill   miinl 


JO 


A 


(Mr.   Bieque's   Argument.) 

only  the  claims  then  presented  in  its  .schedule  of  claims  :  I  cannot 
see,  however,  how  it  can  be  argiied  that,  becau.se  Great  Britain  at 
that  time  had  only  such  claim.s  in  mind,  she  is  debarred  so  long 
as  the  question  is  open — .so  long  as  the  question  of  liability  is 
pending — from  presenting  additional  claims,  whether  it  be  by 
way  of  amendment,  by  way  of  correction  of  errors,  or  otherwise, 
provided  they  fall  within  the  four  corners  of  the  decision  of  the 
Paris  Tribunal,  and  result  from  the  illegal  acts  of  the  United 
States,  which  acts  were  passed  upon  by  that  tribunal.  Then  the 
schedule  of  claims  was  brought  in  this  way,  at  p.  123  of  the 
same  volume  in  these  words  : 

"  The  schedule  annexed  to  this  case  contains  particulars  in 
"  connection  with  the  claims  presented  under  Article  V^III  ot  the 
"  Treaty  of  Arbitration,  and  the  facts  and  evidence  contained  in 
"  the  schedule  are  submitted  to  the  consideration  of  the  Tribunal 
"  for  the  purposes  stated  at  p.  12  of  this  case." 

That  is  the  wdiole  reference  that  was  made  to  the  claims  or 
scliedule,  before  the  Paris  Tribunal,  and  it  is  the  way  in  which 
that  schedule  of  claims  was  brought  up  ;  and  unless,  as  I  sa\',  it 
can  he  argued  that,  from  the  fact  that  Great  Britain  took  that 
position,  she  is  .debarred  from  that  day  to  urge  any  other  claim, 
the  contention  of  the  United  States  should  not  prevail. 

I  want  to  call  your  Honor's  attention  to  the  fact  that  this 
wording  does  not  make  the  claims  those  of  any  person  in  par- 
ticular. I  mean  the  wording  used  in  the  schedule  of  claims  or 
in  the  reference  made  to  it.  They  remained  the  claims  of  Great 
Britain  on  behalf  of  parties  in  interest,  whether  owners,  masters 
or  crew,  and  the  schedule  was  handed  in  inerelj'  as  a  matter  of 
convenience  in  relation  to  the  particulars  of  the  damage  claimed. 
The  question  as  to  what  particular  person  might  ultimately 
claim  the  amounts,  remained  immaterial.  There  was  merely  a 
reference  made  to  the  vessels  and  to  ihe  masters  and  crews.  Of 
course,  there  were,  as  a  matter  of  fact,  certain  persons  named  in  the 
affidavits  that  were  filed,  but  that  had  nothiniif  to  do  with  the 
presentation  of  the  claims,  nor  was  that  material.  The  claims 
were  presented  in  the  same  nanner  before  this  tribunal,  except 
that  no  particulars  were  fui  nshed.  I  submit  that  Great  Britain 
remained  entindy  free  to  piw\-.'  wlm  were  the  parties  interested 
and  on  whose  behalf  she  is  now  claiming  ;  and  1  would  go  fur- 
ther and  say  that  she  is  not  even  obliged  i  indicate  the  persons 
on  whose  behalf  she  is  claiming,  except  that  the  United  States 
may  be  raising  the  question  of  liability  by  ;iroving  thai  >uch 
persons  are  United  States  citizens  in  the  wording  of  the  reserve 
made  in  that  respect  in  the  Convention.  If  that  re.servc  had  not 
been  made  in  the  Convention  in  favor  of  the  United  .States,  the 
laising  (jf  the  question  of  liability,  in  other  words,  goiiii;  beliintl 
theflagand  registry,  itseemstome  it  would  be  perfectly  unneces- 
sary here  to  show  who  are  the  persons  interested,  or  what  are 
the  persons  who  will  ultimately  recover  the  amount  which  may 
be  awarded. 

As  to  the  facts  concerning  the  persons  on  whose  behalf  it 
is  stated  Great  Britain  is  not  entitled  to  claim,  I  ha\  .•  maile,  I 
believe,  a  correct  summary  of  the  evidence.     It  is  very  brief. 

Cooper,  it  is  adniitteif,  was  domiciled  in  the  Ignited  States, 
but  he  was  at  the  time  a  British  subject.  He  had,  uiuler  the 
British  law,  every  qualification  entitling  him  to  obtain  legistrn- 
tion  for  his  ships  m  British  ships,  and  no  one  before  a  British 
court  could  have  successfully  denied  that  his  ships  so  registered 
were  British  vessels  in  every  sense  of  the  wonl, 

Tl'.ere  has  been  a  statement  made  to  the  contrary  in  the 
United  States  brief ;  no  doubt  it  was  taken  for  granted  that  the 


If 


I  ;i|l         '""•  mum ^npipi 


118 

(Mr.   Bieque's    Argiinient.) 

law  ill  Great  Britain  was  .somcwiiat  similar  to  the  law  in  tlu' 
I'liitt'd  State's  ill  tliis  respecf. ;  under  tlic  Uniteii  States  statute, 
United  States  citizens  doinicileil  in  a  foreij^n  country  are  not 
entitled  to  own  Aiiierieiui  vessels,  lint  no  such  provision  is  found 
in  tlie  Britisli  Mercliant  Sln|)[>inf^  Act,  ami  Cooper,  tlioiii^li 
domiciled  in  tlie  United  States,  was  perfectly  (iiialitied  to  own 
10  Britisli  sliips,  I  iiiii,dit  at  once  refer  to  section  1<S  of  the  British 
Merchant  Shippiiij,'  Act,  the  ori<j;inal  Act  which  was  then  in 
force,  the  Act  of  LSr)4,  which  will  make  the  point  clear  :  — 

"  Sec.  IS.  No  ship  shall  he  deemed  to  he  a  British  ship  unless 
"  she  lielongs  wlioUy  to  owners  of  the  followiiifi;  description  ;  that 
"  is  to  say  :" — 

"  1.     Natural  liorn  British  sulijects." 

"  Provided  that  no  natural  British  horn  suhject  who  has  taken 
"  the  oath  of  allei,'iance  to  any  foreijj;n  sovereign  or  state  shall 
"  he  entitled  to  he  such  owner  as  aforesaid,  unless  he  has,  suhsi>- 
20  "  (|Uently  lo  takin;;;  such  last  iiientioiied  oath,  taken  the  oath  of 
"  allegiance  to  Ilei'  Mii  j.'sty,  and  is,  and  continues  to  he  during 
"  the  whole  peiind  of  his  i!o  heing  an  owner,  resident  in  sonic 
"place  within  Mer  Mtijesty's  Dominions,  or  if  not  so  resideni, 
'•  niemlier  of  u  British  faetnry,  ora  jiarliier  in  a_  house  actinilly 
"  currying  mi  Imsiiiess  in  the  United  Kingdom,  or  in  some  otlui 
"  place  within  Her  M.ijesty's  dninitiions." 

"  '1.     Persons    made    denizens    hy    letters    of    denization,    or 
"  naturalized  hy  or  pursuant  to  any  Act  of  the  Imperial  Jjegishi- 
"  tore,  or  hy  or  pursuant  to  any  Act  or  (^rilinance  of   the  proixr 
l?0   "legislative  auihmity  in  any  British  possession  ;" 

"  I'rovided  that  such  pi'isoiis  are  and  continue  lo  he  diiriiii; 
"  tlie  whole  period  of  their  heirig  so  owners  resiiU'iit  in  some  jilaec 
"  within  Her  Majesty'.s  Dominions,  or  if  not  so  lesident,  memhers 
'  of  a  British  l'a<'t(irv,  or  partnei-s  in  a  house  actually  e.iiiyi'ig 
"on  liiisiii  -.s  in  the  United  Kingdom,  or  in  Mime  other  place 
"  within  Her  Mnjesty's  Dominions,  and  have  taken  tin"  oath  of 
"  allegiance  to  Her  NIm jesly  sul)se(|nently  to  the  Jieriod  of  theii 
"  lieing  so  made  lienizelis  or  natuialized." 

"  ;).      Hiidies  corpiirate  estahlislied  under,  sulijeei  to  the   laws 
411   "  of,  and  ha\  iiig  their  jirincipal   place  of   business  in  the   Unite  1 
■  Kingduiii.  or  some  ihitisli  possession." 

(,)!'  eoiiise  here  the  limitation  is  made  for  jiersons  who  have 
heeonie  Brili'-li  suhji'cts  hy  heiiig  natinalized;  that  is.  jiersoii-. 
hiuii  ill  another  eoiiiitry  and  have  hecome  ihitish  suhjects  hy 
taking  tlie  oath  <il'  nllegianee.  These  persons  are  entitled  to  o\\  ii 
I'liil  :>li  ii'gislei-eil  \  esNiK  oidy  so  long  as  they  reside  in  Britisii 
teiiitciiy,  or  aie  nieiiiln  is  of  firms  or  coui|)anies  as  mentioned  in 
the  Act  But  so  fill  as  ('ooperwas  concerned,  he  heing  a  Jhitisli 
suiiject  li\  liirtli,an.l  never  having  heen  naturalized  in  any  otiici 
"lO  eonnfiy.  there  can  he  no  i|uestioii  under  section  IS  that  lie  was 
clearly  entitled  to  own  British  vessels, 

'I'lie  p^iitimiof  llie    I'nite.l  States  argument   where  an  asser- 
tion lo  tlie  cotitrarv  is  to  lie  touiiil  is  on  page  ,")2  : — 

"  ( "ooper  was  at  the  tiiiie  he  hecaine  the  legal  owner  of  these 
"  \  essels,  and  at  the  time  of  the  seizures  ipioail  the  United  States 
"and  in  their  relations  to  him  as  iigain.st,  (Ireaf  Britain,  an 
"  American  citizen,  and  as  such  his  ships,  as  we  sjiall  see,  were 
'entitled  to  eariy  nulla;,'  hilt,  that  of  the  United  States,  and 
"  Were  not  e\en  cntitlc'l  to  Biitisii  registry." 
(iO  Here,  tl  .le  is   an    announcement  that    th"    (|Uestion    is   to  be 

i'ollowed  up,  hilt  I  has  e  searclied  ill  vain  in  the  United  States  hiief 
to  lind  any  further  reference  to  the  matter',  and  I  conii  lentlv 
stale  thai  tlie  lemiied  coun^id  for  the  United  Stales  will  mil 
iitieni|i!  to  supporl  tliat  proposition  or  to  controvert  the  assei- 


1 


119 


)  tlie  law  in  tlu' 

.'(1  States  statute, 
country  are  not 

irovision  is  found 

Cooper,    tliouj<li 

(luiililied  to  own 

iiS  of  the  Britisli 

icli   WHS  tlien    in 

nt  clcnr  :  — 

iritish  ship  unless 
description  ;  tlmt 


ect  who  has  taken 

ij^ii  or  state  sliall 

I'ss  he  has,  sulise- 

aken  tin;  oath  of 

lies  to   lie  during; 

resident  in  some 

not   so  resident, 

ajiouse  actually 

or  in  some  othei 

of    deiiiziition,    or 
linjiei'liil  lii'ijfishi- 
lice  of   the  proper 
1  : " 

inue  lo  lie  diiriiiL; 
ilent  in  some  jilac'' 
resident,  nieiiilieiN 
iU'luiilly  carry i'l',,' 
some  other  plm-i' 
,aken  the  oatli  nl' 
he  period  of  their 

uliject  to  the  laws 
less  in  the   Unite  1 

persons  who  have 
:  that  is,  persmis 
r-itiNh  suhjecls  hy 
Lre  entitled  to  own 
■  reside  in  liriti-^h 
•s  as  mentioned  in 
ln'  heinj;  a  Ihilisli 
ilized  in  any  other 
m  IS  that  he   was 

it  where  an  assei- 

,,'al  owner  of  tle'se 
the  rnited  States, 
Oreaf  Britain,  an 
we  sjiall  see,  Weli' 
'nited   States,  aiel 

<|Ueslioll  is  to  111' 
I'liiteil  States  liii'f 

and  1  conti  leiit'y 
ted  States  will  not 
It iMVert  the  assei 


to 


(Mr.    Bieque's    Argument.) 

tion    I   have  made,   that    Cooper   wa.s   entitled  to  own  British 
ves.seN.  ,  .       , 

The  fcontention  of  the  L  nited  States  amounts  to  this,  that  if 
Cooper  whtn  he  went  to  the  United  State.s,  had  left  behind  him 
in  British  Columbia,  ships  that  had  been  rejristered  a.s  British 
shii)s  before  his  departure,  his  chanrfo  of  domicile  would  ipso 
fiiclo  have  changed  the  nationality  of  these  ships.  That  is  the 
lo-'ical    sequence  of  the  position    taken    in    the   United    States 

biTef. 

Moreover,  thoup;h  the  rej-istered  owner,  Cooper  had  really  no 
interest  in  these  ships  at  all,  the  real  owner  was  Captain  Warren, 
a  domiciled  British  subject,  to  whom  Cooper  had  lent  his  name 
for  the  jmrpose  of  the  re<,dstration.  This  is  clearly  proved  by 
Coo))er's  evidence.     (11.  p.  1837,  1  .S3  &  .soq.) 

It  will  not  do  to  pretend  that  the  ren;istration  of  the  .ships  in 
Coojier's  name  estops  Great  Britain  from  provinn;  who  is  the 
party  really  interested.  If  it  is  competent  for  the  United  State.s 
to  go  behind  the  register  and  prove  facts  inconsistent  therewith, 
it  must  be  ofpially  competent  to  Great  Britain  to  do  the  same. 

The  United  States  case,  might  po.ssibly  in  this  respect  have 
been  somewhat  stronger,  if  Warren  himself  were  the  adversary, 
if  for  instance  he  had  been  a  plaintiff  before  a  United  States 
Court  of  Claim.s.  But  even  then  I  submit  that  it  would  have 
been  competent  for  Warren  to  prove  his  interest. 

As  to  Alexander  Frank,  the  evidence  shows  that  in  18SG 
Frank  made  by  affidavit  affirming  the  correctness  of  an  inven- 
torj-  which  stated  that  the  deceased  owneil  one-half  interest  in 
the''  Bliick  Diamond  "  anil  in  the  "  Lily  "  formerly  known  as  the 
"  Alfied  Adams,"  but  he  e.xplains  he  did  it  merely  to  protect 
himself,  Gutman's  estate  being  irsolvent,  and  he  (Fraid<)  having 
assumed  all  the  li;ihilities  of  the  firm. 

The  I'liited  States  counsel  have  invariably  argued  that 
ex  parte,  affidavits  of  third  jier.sons  cannot  be  used  in  any  way 
against  the  United  States.  When  we  atteni{)ted  to  put  in 
atlidavits  as  printed  in  the  proceedings  at  Paris,  your  honors  will 
reiiu'mher  that  our  learned  friend,  .Mr.  Dickinson,  argued  that 
they  were  ex  parte  atlidavits  and  were  not  of  the  character 
contemplated  by  this  Convention.  In  face;  of  this  contention  I 
do  not  see  how  they  can  derive  any  benefit  from  the  ex  parte 
atlidavits  that  were  thus  made  by  Frank.  Of  course,  if  Fiank 
were  proved  here  to  be  a  party  interested,  I  would  xinderstand 
that  there  would  he  a  distinction  to  be  made,  but  on  the  contrary 
Frank  comes  hen^  and  swears  that  he  was  not  a  party  interested. 
If  he  is  interested  it  is  only  to  this  extent  an  interest  in  the 
venture  of  the  vessel  for  a  certain  time  anterior  to  1SS8;  surely 
it  cannot  be  siip]H)sed  that  Frank,  if  ho  was  interested  in  the 
vessels,  would  destroy  his  claims  forever  liy  coming  before  this 
Commission  and  swearing  that  he  has  no  sueli  interest.  Ho 
could  not  have  failed  to  understand  that  after  coming  before 
this  ('(Hiimissiun  and  swearing  that  he  never  owned  any  portion 
of  the  vessels,  he  could  ever  recover,  whatever  the  award  i. light 
be.  His  statement  would  be  conclusive  against  him  :  all  his 
interest  was  the  other  way,  showing  that  he  was  a  party 
interested.  I  submit,  therefore,  that  his  statement  in  that 
respect  should  be  most  conclusive.  This  affidavit  of  Frank's  was 
given  for  a  foreign  purpose,  u  purpose  which  had  no  connection 
whatever  with  tlu>  present  eiupiiry,  an  affidavit  that  might  have 
been  loosely  drawn  up  by  his  counsid  at  the  time.  Tliis  affidavit 
is  urged,  not  against  Frank,  but  really  against  tin;  owner  of  the 
vessel — the  estate — of  Jacob  (Jiitman,  and  cannot  be  urged 
against    that    estate;    or,    even    better,    against    Great    Britain. 


4 


'PP^P^W 


120 

(Mr.   Bieque's   Argument.) 

Reliance  is  also  placed  on  anaffiilavit  of  Gutman'sadininiMtrator 
(exhibits,  p.  214)  in  which  the  vessels  are  said  to  belonff  to  the  firm. 
At  the  time  Moriitz  Gutman  riade  this  affidavit  he  was  just 
of  ago,  and  I  believe  that  when  he  was  examined,  he  stated  that 
he  knew  nothinf»  of  the  business  ;  Frank  was  merely  appointed 
administrator  until  Morritz  Gutman  wouM  liecorae  of  ajje,  when. 

10  as  a  brother  of  the  deceased,  he  was  to  take  the  administration. 
The  statement  was  apparently  made  without  tiie  necessary  infor- 
mation. 

Mr.  Dickinson : — Let  me  ask  you,  so  that  there  may  be  iio 
misunderstandinjj  hereafter,  do  you  claim  for  the  estate  of 
Gutman  in  this  connection  ? 

Mr,  Beique  : — 1  say  that  wc  are  entitled  to  claim  for  the  estate 
of  Gutman  for  acts  anterior  to  18SS  ;  that  the  lOth  November, 
1S8!S,  the  vcs.sels  having  been  sold  to  Morris  Moss,  we  claim  from 
that  diite  for  the  latter.     My  argument  refers  to  the  facts  in  188G 

20  and  1887,  and  I  refer  to  these  facts  principiiily  on  account  of 
this,  as  I  shall  at  a  later  stage  point  out  to  the  court,  that  the 
United  States  are  to  be  kept  within  the  reserve  found  in  the 
Claims  Convention  ;  namely,  that  Great  Britain  assented  to 
their  adducing  evidence  whenever  the}'  would  be  able  to  do  so 
that  the  vessels  were  owned  by  American  citizens,  but  I  claim 
that  the  Uniteii  States  should  be  lindted  to  the  reserve  and 
therefore  allowed  to  rnise  the  contention  or  use  the  evidence,  if 
at  all,  ordy  in  cases  where  they  have  succeeded  in  proving  that 
the  vessels  were  really  owned   bj'   American  citizens  ;  therefore 

30  this  portion  of  my  argument  is  directed  to  show  that  it  lieiii^ 
proved  that  Jacob  Gutman  was  in  188()  and  1887  the  ownoi-  of 
the  ves.sels,  whatever  evidence  may  have  been  adduced  caiuiot 
lie  of  any  vnliie,  and  should  Ik;  treated  as  irrelevant  and  as  con- 
trary to  the  rules  of  international  law,  because,  as  we  shall  have 
occasion  to  show  under  those  rides,  the  LToitod  Slates,  but  for 
that  reserve,  should  not  have  been  allowed  to  go  behind  the  flag 
and  registry. 

In  anj-  case,  if  Frank  ever  had  an  interest,  he  paited  with  it 
in  Novendier,  1888,  when  the  vessels  were  sold   to   Morris   Moss. 

40  The  bills  of  sale  were  tiled  and  are  printed  on  pp.  H7'J  and  108 
of  the  Exhibits.  Therefore  he  cannot  bo  interested  in  the  claims 
Nos.  lo  and  10  for  seizures  made  in  1889. 

Bechtel,  a  United  States  citizen  by  origin  until  1S!)2,  when 
he  was  naturalized  as  a  British  subjoct,  was  doniicilod  iri 
Victoria,  wliei'e  he  carried  on  business  at  tlu;  tinu;  of  tin;  seizures 
and  for  many  years  before.  This  is  clearl}'  proved  by  his  evi- 
dence on  page  1 45  of  the  Record. 

The  United  States  relies  on  an  atlidavit  signed  by  liechtel 
himself,  in  which    he  declared  that   in    181H),  hi,"!  "  present  usual 

50  ])laceof  residence  or  abode''  was  in  Auburn,  California.  There  is 
evidenci'  that  lie  went  ht  some  time  or  other  to  California  fur 
his  health.  This,  anyway,  so  far  as  it  may  ditl'er  fi-iun  his  other 
testimony,  could  only  prove  that  lieelilel  g»ve  ditl'erent  testimony 
at  ditl'erent  times,  and  it  would  remain  for  the  Counnissioners  to 
decide  which  stor}"  is  true.  As  to  this,  then-  can  be  no  doubt. 
When  liechtel  swore  at  Victoria  that  he  had  nuide  his  home  aiul 
done  business  there  for  2.'J  years,  he  niaile  a  statement  which,  if 
false,  coulil  have  been  contradicteil  by  an »'  number  of  witiu'sses. 
Tiiat  there   was  no  such    contradiction   proves  that  it    was  true. 

(JO  Of  course  th(!  alKdavit  cannot  be  treated  as  an  admis.sion,  us  this 
is  not  Bechtel's  case,  but  that  i>i  Great  Britain.  It  is  moreover 
proved  that  he  had  no  ownership  in  either  the  "  Carolena  "  or 
'■  I'athtinder ;"  his  oidy  interest  w:is  that  of  mortgagee  of  a 
portion  of  the  "  Carolena."      Munsie   proves  (8ll-!)0   Record)  that 


121 


n'sadininiiitrator 
ielonf]f  to  the  firm, 
vit  he  was  just 
(1,  he  stated  that 
lerely  appointed 
ine  of  a^e,  when. 
!  administration. 
I  necessary  infor- 

liere  may  be  no 
r    the    estate    of 

liin  for  the  estate 
lOtli  November, 
w,  we  claim  from 
the  facts  in  1880 
'  on  account  of 
!  court,  that  the 
ve  found  in  the 
ain  assented  to 
e  able  to  do  so 
ens,  but  I  claim 
tlie  reserve  and 

the  evidence,  if 
in  provinff  that 
tizens  :  therefore 
w  that  it  liein;; 
i7    the    owner  of 

adduceii  cannot 
k-ant  iinil  as  con- 
as  we  shall  have 
States,  but  for 
)  behind  the  Hag 

pai'ted  with  it 
to  Morris  Moss. 
:M\)  and  l!tS 
letl  in  the  claims 

til  1S!)2,   when 

IS    iloniicilod    in 

of  the  seizuns 

veil  by  his  evi- 

ned  by    liechte! 

"  present  usual 
oi'uia.  There  is 
California  foi' 
from  his  other 
ferent  testimony 
onniiissioners  to 
an  be  no  doubt, 
le  his  home  and 

nient  which,  if 

ler  of  witnesses. 

lilt  it    was  true. 

linission,  us  this 

It  is  moreover 

"  (.'aroiena  "  or 
inortj^aLjee  of  a 
)0   Record)  that 


(Mr.  Beiciue's  Argument.) 
owner  of  the  "  Carolena,  "  first  nurchasin;,' one- 


in  188')  ho  became  ,  ,        ,  .  .-. 

third  sliare,   and  afterwards    buyuij^  out   the    shi.re.s  of  his  co- 
si   owners;  aiid  that  in  order  to  raise  money  in  connection  with  tlie 
^'  several  transactions  lie  borrowed  money  from  Hechtol  and  gave 
■    hiiii-a  niortu'iiL^e  of  '.V2   -rliares  of  the  ves.sel,  which  was  paid  and 
disehnrtjed  TmImX).     lie  swears  positively  that  from  1885  to  the 
lb  time  of^tbe  seizure,  no  one  but  iiimself  bad  any   interest  in  the 
:     shin,  except  Beeht-1  as  uiort-n^'ee  ('J()-!)l).     This  evidence  is  eor- 
.    roliorated  by  that    of   Hechtel,  and     by    the   ref,nstration  of  the 
.1    niorti^M.i^'es  before  the  .seizure,  and  is  quite  uncontra-iietecl. 

'['he"  rej^'istration  of  the  mortifa^'es,  before  tlie  .seizure,  it 
seems  to  me  is  a  fact  which  shows  beyond  any  question  that  the 
statement  must  be  correct.  Tlie  parties  coulii  not  have  had  in 
mind  the  seizures,  nobody  could  have  ilreamt,  noliody  could  have 
expected  any  siiznre  takitiL;  place.  ISrfore  tie:'  seizure  these 
niort'^iLtes  were  re^'istered,  tliey  were  made  pubiie,  the  position 
could" not  be  altered  in  any  way  by  ai,'reement  between  Rechtel 
and  MuuMi',  and  how  can  it  be  contended  that  tliis  was  all  a 
sham  and  tiiat  Inehtel  was  not  really  the  iiiongHni.'e,  but  a  part 
owner  in  the  "  Carolena  ?" 

As  to  the  "  I'athliniler,"  there  is  no  evidence  that  Bechtel  was 
connected  with  her  in  any  vva\ ,  i  .■<.•,  j.t  that  he  had  acquired  an 
half  interest  in   the  profits  of  the  .sealini,'  y(;yaj;e. 

Of  course,  as  I  have  already  stated,  and  as  was  pointed  out 
in  our  written  arx"nient,  pa;,'e  '.]'.),  the  fact  tliat  a  United  States 
citizen  was  morti,'!i^ee  or  interested  in  the  promts  of  a  Tessel  is 
quite  immaterial.  The  Convention  permits  the  United  States 
(loverniiient  to  rai.>e  the  ([uestion  of  its  '  liabilty"  hi  casr  of 
proof  lli'if  a  irtifii  "  fan  vlmlhi  or  in  /'oii  tlir  octiKil  ftrojicrty 
of  (i  fit i If II  of  Ihf  Uiiitcil  Stiitrs."  Nothini,'  but  actual  owner- 
.shi])  by  American  citizens,  of  whole  or  part  of  the  vessel  itself, 
entitles  the  United  States  (iovernment  to  raise  the  ipiestion  of 
its  liability. 

Daniel  McLean  was  re-natr.ralizod  as  a  British  subject  in 
October.  188(1,  and  the  .seizure  of  the  "  Triumph,"  the  vessel  in 
question.  t(jok  place  in  1887.  The  certificate  of  naturalization 
ajipears  on  page  J !•,")?  of  the  Record.  There  is  no  proof  what- 
ever that  he  was  dondciled  in  the  United  Stat(;s,  and  the  pre- 
sumiition  is  all  the  otlier  way,  as  he  was  the  master  of  the 
'•  Triumph,"  a  rejristered  British  vessel,  wliich  sailed  from  the 
port  of  \'iecoria,  and  a  I5ritish  subject  b\-  liirtli.  The  learned 
couiisi  1  for  the  United  States  have  cited  authorities  which  are 
unriuestionably  correct,  that  in  the  absence  of  proof  to  the  con- 
trary, the  domicile  of  birth  is  sup})osed  to  continue.  Here,  from 
the  fact  that  Daniel  McLean  was  born  a  British  subject,  born  in 
Cape  ISreton,  in  tlie  absence  of  proof  to  the  contrary  he  should 
'^IBO   be  deemed  to  have  been  domiciled  in  British  land. 

Alexander  McLean  wa.s  born  in  Capo  Breton  and  became 
a  natralized  citizeti  of  tlie  United  States  in  1882.  Between 
1884  and  188(1  (the  seizure  of  the  "Onward"  and  warning'  of 
the  "  Favoni'itt!,"  the  vessel  in  (juestion,  took  place  in  1880),  he 
resided  in  Victoria.  It  clearly  appears  that  this  residence^  was 
.such  as  to  constitute  domicile.  Aloreover.  there  i.s  no  evideiu'e  in 
the  record  which  show.s  the  accjuisition  of  any  domicile  other 
than  his  domicile  of  orii;in. 

Any  difference  of  opinion  between  our  learned  friends  and 
ourselves  liearinjjj  on  the  appreciation  of  the  facts  as  to  nation- 
ality or  domicile,  cannot,  however,  seriously  affect  any  of  the 
claims,  as  I  will  presently  show. 

It  is  pointed  out  in  the  United  States  written  argument,  page 
68,  that : 


,y:i 


122 


(Mr.    l^ii(HK''s  Ar;;uin('nt.) 

"  Wlintevci;  of  invioliiliilit.}'  from  nnd  conclusivoiioss  ngiiinsi 
"inquiry  tlinn-  may  have  l)i'i';i  orwlmtovor  otiier  nuestion  of 
"  natioiml  liii^nity  iimy  imvo  hcen  involved,  it  is  sulpinittiiil  at  thr 
"  outsot  that  all  tlicso  coiisicU'ratioiis  liave  in'on  set  aside  hy  thi 
"provision  of  tli(!  Convention  itself,  reserviiiLf  to  tlie  Uniti'd 
"  States  (whatsover  the  l!a;jf.  the    reijistry,  or   tlie  dif^nity.)   thr 

10  "  HKiilTti)  en(|uire  into  ownership,  especially  with  re'fen.nei'  to  thr 
"  defence  rostintj  on  ownership." 

"  The  ilenial  of  liahility  on  the  part  of  the  Ignited  Slatfs,  it  i- 
"  clear,  ifoe.t  not  only  to  tlii^  (daimlike  that  of  ('ooper,  who  for  the 
"  purposes  of  this  controversy  was  a  citizen  of  the  United  .States. 
"  liut  to  the  claims  of  the  native-horn  or  naturalized  American 
"  citizens  who  are  alleged  to  linve  h(!en  ilomicileil  in  (ireat  Britiin.' 
"  It  would  senm  to  be  the  position  of  (ireat  Britain  that  tlie 
"award  of  the  arbitrators  at  Paris,  and  the  present  Convention, 
"  wliicii  was  its  direct  issue  and  He(]ue],  did  a  wiiolly  vain  thini^  in 

20  "  ])rovidin;j  for  tlie  inquiry  into  citizenship  of  owners." 

"  It  is  said,  true,  the  United  States  may  raise  the  question  of 
liability  on  ovvnersliip,  and  show  that  the  "  actual  "  owners  of 
the  seizL'cI  ships  were,  in  fact,  American  citizens,  and  maj'  rill  the 
entire  record  and  occupy  the  time  of  the  Commission  for  month.s 
in  adducin;^  testimony  u|ion  that  point,  and  (Jreat  Britain  may 
occupy  other  months  witli  counter  testimony,  but  that  after  all 
this  is  done,  this  is  tin;  utmost  extiuit  of  the  purpose  of  the  pro- 
vision: that  immediately  after  the  evidence  shall  be  cloied,  and 
the    record    made,    both  sides    are    in   the    same    position    they 

30  were  liefore,  in  this:  That  the  registry,  the  Hajjf,  and  so 
on,  are  still  a  conclusive  presumption  oti  the  question  of 
owiicTsliip,  i.  e..  that  the  showinj^  of  the  British  tla;^  and  the 
British  reujister  is  conclusive  evidence  that  the  owners 
of  a  vessel   are  British   sulijectsl  " 

This  contention  of  my  learned  friends,  that  the  rij^ht  reserved 
to  the  United  States  of  aililucin<r  evidence  for  the  purpose  of 
proviiiii  that  the  vessel. s  were  wliolly  or  in  part  the  actual 
property  of  one  of  its  citizens,  implies  a  waiver  on  the  part  of 
(ireat  iiritain  of  the  rij^dit  of  raisinii;  the  question  of  conclusive- 

40  ness  of  the  tin;,' and  rej^istry,  in  time  of  peace,  is  at  least  open  to 
considerable  doubt.  May  it  not  be  arj^'ued  that  as  no  one  is 
presumed  to  renotnice  his  ri^dits,  the  reserve  in  cpiestion  must  be 
construed  as  narrowly  as  a  reasonable  construction  of  the 
laiiijuai^e  used  will  jiermit ;  that  the  reserve  was  made  solely  for 
the  purpose  of  allowiui,'  the  Unitecl  Stat(>s  to  raise  the  ijuestiou 
of  liability,  without  waiver,  however,  on  the  part  of  Cireat 
Britain  of  the  iienetit  of  any  law  of  nations  which  miffht  vender 
the  <widene(!  inoperative? 

As  appears  from  the  proceedin|,fs  before  the   Paris   Tribunal, 

50  the  (juestion  as  to  whether  a  siiip  in  nationalized  by  its  tiajf  was 
one  of  the  many  (piestions  on  which  the  two  ^reat  nations  failed 
to  a;,'ree.  No  Wonder,  tliLii,  that  the  United  States  wished  it 
to  be  clearly  understood  that  it  intended  to  raise  the  question 
before  this  hij,di  commission  and  reserved  the  rij;ht  of  adducinj; 
such  evidence  as  would  enable  them  to  properly  do  it. 

The  rifjht  to  raise  a  (juestion  and  the  etlect  of  its  being  raised 
are  quite  different  things :  In  other  wor<i.s,  to  concede  tlie  right 
of  raising  a  question  does  not  imply  an  accpiiescence  in  the  con- 
tention of  the  party  who  raises  .such  question. 

CO  On  this  point  may  I  not  retort  against  the  United  States — 
their  statement  of  the  law  as  appearing  on  page  40  to  ,52  of  their 
brief — changing,  of  course,  the  words  Great  Britain  for  that  of 
the  United  States  and  yiee  versa  ? 

On  page  40  of  the  argument  of  the  United  States  they  say : 


isivciiL'ss  ngiiiiisi 
-laT  (|iiustioii  of 
iil)iiiitte(l  at  tlir 
sot  aside  l>y  tin- 
to  till!  United 
ii>  ilijjiiity,)  till' 
rt'fcn  lice  to  till 

iti'ii  Stiit'.vs,  it  i- 
ipiT,  who  for  till' 
L-  IJnitiMl  States, 
ilizi;il  American 
1  (ireat  Britain," 
Britain  that  tin- 
cnt  Coiiveiitioii, 

y  vain  thing  in 
vners. " 

tlio  que^^tion  of 
inal  "  owners  of 
and  inaj'  till  the 
sion  for  months 
lat  Britain  may 
it  that  after  all 
pose  of  the  pro- 
be cloiod,  and 
I  position  they 
e  Haij,  and  so 
10  question  of 
■ill  flag  and  the 
it     the     owners 

3  I'ii^ht  reserved 

the    purposo  of 

part  the    actual 

on    the  jiart  of 

•n  of  conclusive- 

at  least  open  to 

ftt    as  no  one  is 

uostion  must  lie 

motion    of    the 

nind(!  solely  for 

ISO  the  (piostioii 

part    of  Great 

;ii  iiiiirht  render 

Fiiris  Tribunal, 
by  its  Writ  ^fns 
it  nations  faileil 
Itates  wished  it 
ic  tlio  question 
;ht  of  adducinj^ 
do  it. 

its  being  raised 
ncede  the  right 
ence  in  the  con- 

Jnited  /States — 
lO  to  .52  of  tlieir 
tain  for  that  of 

tates  they  say : 


'4V 

V 


123 

(Mr.  Ueii|ue's  Argunii^nt.) 

"There  are  two    classes  of    'pi-rsons'    among  these  claimajits, 
who,  by  the  settled  and  adjudicated  principles   of  international 
Uw,  are  not  "persons  in  whose  behalf  (ireat  Britain  is  entitled 
to  ol;iiiii  ooiiipeiisation  from  the  United    States." 
These  are  : — 

(I.)     Original    .subjects  of    (ireat   Britain  still    owing    that 
10   nation  a  (lualilied  allegiance  (in  resjiect  of  sovereignty  and  certain 
exterritorial    laws),    but  who  by   domicile  in  the  United  States, 
without       naturalization,     owe      allegiance    to     thi^     sovereign 
elaiiinof  the  Uniteil  States  and  obedience  to  the  municipal  laws." 
On  page  i)'2  the  stnteiiieiit  is  still  liroader: — 
"  Cooper  was,  at  the  time  ho  became  the  legal  owner  of  tliiiso 
vessels,  and  at  the   time  (jf  the  seizure's  (pioad  the  United  States, 
and  in  their  relation*  to  him  as  against  (ireat  Britain,  an  Ameri- 
can citizen,    and  as  such,  his  shijis,  as  we  shall  see,  were  entitled 
to  carry  no  flag  but  that  of  tiie  United  States,  and  were  not  even 
entitled  to  British  registry." 

in  other  words,  if  Cooper  because  of  his  domicile  in  the 
United  States  was  to  be  considered,  as  is  claimed  in  this  brief,  an 
American  citizen  ijuoad  the  United  States,  cannot  we  retort  the 
argument  an<l  say  that  Frank,  or  any  American  citizen,  domiciled 
in  (ireat  Jiritain  and  doing  business  there  quod  tJreat  Britain 
should  be  considered  a  British  suiiject  to  the  same  eH'ect  that 
Cooper  could  be  considered  an  American  citizen  ? 

An  authority  bearing  on  the  point  is  cited  on  page  4(j  of  the 
United  States  brief  from  Lord  Stowell  : — 

"  A  person  domiciled  in  another  country  is  to  bo  taken  as  a 
subject  of  such  country.  •  *  *■  Jlc  cannot  tdkr  advantnije 
of  I'olh  cli(iri(ct<'i:i  at  the  KiDnc  time." 

We  do  not  acipiiesce  in  that  doctrine.  (Jur  position  is,  tliat 
Cooper  was  entitled  to  own  liritish  ships  and  that  the  seizures 
— a  fact  which  goviirns  the  whole  of  this  enquiry — were  not  in 
United  States  territory,  but  in  V'riti-ii  territory.  As  I  shall 
have  occasion  to  show,  the  seizures  i.i.'ing  made  upon  the  high 
seas,  and  tlu;  liigii  seas  for  the  purpose  of  the  present  inquiry 
being  considered  under  the  law  of  nat.ons  as  a  piirt  (A'  the 
territory  of  the  nation  whose  vessel  is  na/itating  upon  it,  I  say 
that  this  iiKpiiry  is  to  be  considered  as  if  the  seizure  had  been 
made  in  tin-  port  of   Victoria,  or  any  other  British  port. 

But  let  us  suppose  for  argument's  sake  that  ( Jreat  l^ritain  did 
waive  all  ((Uestioiis  of  conclusiveness  of  Hag  or  registry,  it  will 
surely  iKJt  be  seriously  coiitendeil  that  the  e  insent  involved  any 
more  than  jiermission  to  the  United  Stitos  to  go  behind  tiio 
registry,  subject  to  the  a|)plicatioii  of  the  rules  of  international 
law  as  to  etl'oct  of  any  evidence  which  might  be  adduced. 

We  are  agreed  on  both  sides,  I  believe,  that  the  law  of  each 
nation  is  supreme  within  its  own  territory  and  binds  alike  its 
subjects,  or  citizens  and  foreigners. 

Another  principle  on  which  there  can  lianily  be  a  <lirterence 
of  opinion  is,  that  a  ship  at  sea  is  regarded,  under  the  law  of 
nations,  as  a  portion  of  the  ti'rritory  whose  flag  she  carries  and 
as  subject  to  that  jurisdiction. 

If  I  am  not  mistaken  this  is  admitted  in  the  United  States 
brief,  hut  at  any  rate  it  will  be  sufficient  to  refer  to  Mr.  Carter's 
argument  at  Pari.s  where  he  very  deliberatolj-  reduced  to  writinc, 
80  that  thoy  might  be  clearly  before  the  Tribunal,  his  propo.si- 
tions  of  law,  and  among  them  were  the  following : — "  Inasmuch  as 
I  wish  to  be  precise  upon  this  poii>t,  I  have  drawn  up  a  series  of 

Eropositions  which  embrace  the  views  entertained  and  asserted 
y  the  government  of  the  United   States  upon  this  particular 


I 
'1 

i 

m 

ir  1 

n 


•4 


It  4 


10 


20 


;]() 


-10 


l-.'4 

(Mr.  Hi'i(|iic's  Arf^unicnt.) 

subject.     And  till!}'  lire  tlii'Sf  :  "      I  mil  rt'iidiii;,'   from    vol.   12  of 
his  Oral  Ari,'niiu'iit  on  lifliulf  of  tlio  Uiiiti'd  Stiitcs,  |»i;^'i'  254. 

"  Fii'.st.  Tli«  tcri'itoiy  of  n  nutioii  coiisi.sts  of  tlic  iniid  within 
its  doiiiiiiion  and  wimt  arc  coinnionly  failed  its  territorial  WHters, 
wliii'ii  embrace  intei-ior  ;;nHs.  or  iiays  nearl}'  enclosed  liy  its 
territory, liut  connected  witii  tlie  sealiy  narrower  straits  separated 
liy  tieadlands,  and  a  narrow  lielt  of  tiie  open  sea  aloiij,'  tlie  .>.liore, 
of  the  widtli,  as  conniionly  allowed,  of  three  miles,  or  u  c.iniion 
.shot." 

"Second.  'I'll.'  exel'cise  of  the  sovcreiun  legislative!  power  ol 
the  nation  is  limited  to  its  territory  as  ahove  descrihed  e.xcejit 
in  speiial  in'-tances  where,  loi'  ii'asons  of  necessity,  a  nation  njuy 
cxeicise  a  limitril  leni,slati\e  jiowerover  neij;hhorinn'  parts  of  tin 
sen  heyund  the  narrow  heltalove  mentioned.  Outside  of  the 
territory  of  the  imtioii  its  laws,  as  laws  have,  except  as  ahove 
nuntioned,  no  operation  or  etl'ect.  T'lr  .-liiiisofn  nui  khi.  Ikhi- 
(  ri  i\  (I r< .  I  I'l  II  Arlii'i)  mi  (he  lii'jli  "i"^.  ilitnnil  to  lie  u  /mit  of  it^ 
territory." 

Third.  Nor  can  a  nation,  with  the  sjiecial  exeeiitimi  alove 
ni(  ntioiu  il.  take  any  action  outside  of  its  territory  for  the  pui'- 
pose'of  enforcini;  its  laws,  oi- pnnishiiii;  a  hre:uh  of  tlu  in.  its 
wiit-..  nr  other  processes,  or  orders  of  its  courts,  cannot  he  law- 
fullj-  executed  outside  ol'  its  territory. 

■  Fourth,  Two  .••o\  erei^^ii  nati(.iis  cannot  exist  to;^ttlicr  upon 
the  same  lan<!.  'J'lie  so\  eniiinty  of  one  must  nece.^sal•ily  yield  to 
that  of  the  other.  lUit  all  soverei;;n  natii  ns  may  co-exist  U]ioii 
the  SI  as.  Tlu'V  may  i^o  and  he  there  as  indi\idual  persons  upi^n 
terms  of  al  solute  ei|UMlity.  In  lenal  contemplation  l/n  i/  iin 
till  11'  ii'lii  III  11  r  Ihr  iiitnifl.-f  uliir/i  llnlj  iirr  Imii ml  to  ilifi ml .utiih 
iitt  till  I  r  jii  ojnili/.  till  1 1'  III  I  :i'iif,  or  I  he  jirojii  rli/  oj  tin  i  r  rit  iK  //.^. 
(Ijf  till  ;('• 

Thesr  |)i  oposit  ions  ari'  elrnieiitary  and  they  w  ill  not.  I  am 
sure,  lie  contested. 

'i'he    laws  of    each  country  prescriliiii;^'    the  (|Ua!iti(  ation  ic- 
(]nired  in  order  to  own  xissels.  ate    essentially    municipal   laws, 
they  form  no  ]!;irt  <d'   the    law    of   iiati(ais.      This    alM)  is  an  tie 
meiilaiy  jiropositioii. 

I'!aeh  (  iilintlV    is  therel'ure    eutitlecj    ti 


.such  iiil'  s  as  it  lik 


'1' 


sp 


.Mthouirli  not    usu.'il,  aii\'    countrv  ((Hild. 


for  instance,  enact  laws  iiermitt iiiij'  fiiniiiners  to  own  and  lei'is- 

.      .     .  '  .  . 

ter  ves^. els  within  its  tei  litoiy.      If  such    had    heeii    the    law  of 

(ileal   iirilain  at  the  time  of  the  seizures,  what  would  heconie  ol' 

if  the  I'nited  .States,  on  the  irrounds  of  nationalil  \ 


tlie  .ihjectiii 
or  domicile 


i'^ 


ir  It  can 


h.'irdh 


he  denied,  that    from   the  fact. 


that 


loreii^liers  \\(i 


uM  I 


i;i\  e  lieeil  thus  in\  i 


ted  t 


)  own  a 


ml  I 


eiris- 


ter  \essels  in    iJritish    teiritorv,    thev 


r,o 


tl 


le  corresiioiiiiin 


lii 


I5iit 


nil  aii'ainsl 


ri;;'lit  ( 
tl 


would    lia\'e,    i/isi)   jiiiii 


f    heili;^     protected     hy  (i| 


•eal 


nations    in  the    use  and    einovnieiit    ol    such 


vessi'ls  w  ithin  liritish  teriit 


or\-. 


th 


Su]ipose,  for  iiistaiiie.  that  the  law  of    Oreat  Itritain  wer( 


rtl'eet     that      I     h 


list    stated. 


d    that    the    law  of  th 


T'nited  States  were  not  only  to  the  contraiy  etl'ect,  Imt  that  it 
madt>  it  a  crime  for  any  one  of  its  citizens  t<i  own  liritish  ves- 
sels; would  it  lie  pretended  that  it  would  lia\e  heeii  open  to  the 
I'nited  States  to  come,  for  instance,  into  the  port  of  \'ict()i'ia  and 
destroy  a  vessel  owned  hy  one  of  its  citizens,  and  that  (ireat 
(iO   Jiritain  would  ha\  e  heen  deinived  of  the  rij,dit  of  ]in)teetini^  that 


American    citizen.       M\-    learned    friends,-  the    counsel   fc 


th 


I'nited  Slates,  in  their  hrief  i;o  to  that  extent.  They  afHrii 
and  they  repeatedly  reatiirm,  that  there  is  no  rifjht  of  protectioi 
as  against  tlie  country  of  ori<;iiial  allcjjiance,  but  it  st'cuis  to  m 


125 


nun    vol.    I'J  ol' 

I"*,  pULI,''  -.")4. 

Llic  Iniiil  witliiii 
•I'itdriiil  watcis, 
•iu'l<isi'il  li}'  its 
traits  .s('jmnit''(l 
ildii;^  till'  !-liiiii', 
t's,  or  u  (Miiniiii 

•  liitivii  [lowir  (il 
•■-(•ril.ril  i'.\ci|it 
y,  a  luitidii  iiiuy 
\u'^  |inrts  oi'  till 
Oiilsiilc  of  tin 
rxccpt  IIS  aliovc 

(I      lllllKlll,  Ikiii- 

ic  a   [III  it  of  it  - 

xccjitioii   al'oNi 

IV  for   till'  |)ur- 

li'of    tin  III.      It-. 

ciiiiiiot  111'   law- 

^t  to^i  tlicr  11] oil 
'('.^Sillily  yii'ltl  l" 
ly  co-exist  iqion 
lal  jicrsoiis  ii|ioii 
latioii  III!  [I  II  f 
I  lo  iliji  ml.  ,s(((7. 
iij  fill  i r  nt i:(  n/-. 

\    will  not.  I  aiu 

i{U:ilili(  atioii  re 
iiiiiiicilial   laws, 
al^o  is  an  rlr 

in  tliat  ifsju'ct 

fotintry  (niiM. 

own  and  i(';,'is- 

I'li    till'    law  ol' 

VOllld    llCCOllll'   of 

s  of  nationalil  \ 
t  from  tilt'  faci. 
own  ami  r(.'i;is- 
a\(',  ijino  Jiirtii 
I'cti'il  liy  (iri'lii 
lyniriit  of  siuli 

I'liilain  wci't'  to 
till'  law  of  till' 
feet,  luit  tlial  it 
wn  I'liitisii  vts- 
icrii  ojn'n  to  till' 
t  of  N'iftoi'ia  mill 
imi  tliat  (ircat 
["  jinitritinjj  tliat 
oiHi.sfl  for  tlif 
t.  Tlit-y  atHriii. 
;ht  of  jirott'ctioii 
t  it  si'fin.s  to  nil- 


(Ml".  F<('ii|in''s  Ari,'um('nt.) 

that  tlif  smiiiiiiiosH  of  the  propo.sitioii  I  liavi!  ciKninct'iI  appcarH 
on  it.s  own  fact'.  It  .sccni.s  to  ine  to  he  plain,  that  whether  or  not 
the  law  of  the  I'liited  States  made  it  a  crime  for  American 
citizcn.s  either  to  own  a  Uritish  ve.s.sel  or  to  own  propi-rty  in 
British  territory,  tliat  it  would  he  a  violation  of  the  laww  of 
natioiiH  for  the  I 'nited  States  to  come  within  r<ritinli  territory 
for  the  purpo.sf  of  piniishinj;  an  American  citizen,  or  for  tlie 
purjiose  of  enforcini;  their  municipal  laws.  If  it  be  true,  as  is 
admitted  on  hoth  sides,  that  the  liij;h  seas  for  the  purpose,  ho  far 
as  merchant  vessels  are  coiicoriied,  are  to  he  considered  part  of 
the  territory  whose  lla^'  the  vessel  carries,  I  say  that  the  same 
rule  aiijilies  whether  the  seizure  of  such  vessels  owned  liy 
American  citizens  domiciled  in  Ftritish  territory  he  madi;  on  the 
hi;,'li  seas,  or  whether  it  he  madu  in  the  port  of  Victoria.  On 
this  iioiiit  1  desire  to  refer  to  some  of  the  authorities  that  are  to 
he  found  on  pa^'es  .")()  and  T)!  of  the  British  Ari^umeiit :  - 

Vattel,  Book  2,  ch.  H,  sec.  104  ; 

"  The  soM'i't'ii,'!!  ouj,dit  not  to  ;rraut  an  entrance  into  his  state 
"  for  the  |iui']io.se  of  drawini,'  foreij^ners  into  a  snare  ;  a.s  soon  as 
"  he  admits  them,  he  eiijjaifes  to  jirolect  tlu'iii  as  his  own  sub- 
"  jects,  and  to  art'ord  them  perfect  security  as  far  as  depends  on 
"liim.  Accordine'ly,  we  see  that  every  soverei;;n  who  has  jjiveii 
"ail  iisylinii  to  a  foi'ei;,fni'r,  considers  himself  no  less  oH'eiided  by 
"an  injury  done  to  tlie  latter,  than  he  woiilil  be  by  an  act  of 
"violence  committed  on  his  own  subject. " 

My  learned  friend,  Mr.  Bodwell,  will  make  a  more  complete 
ri'feieiice  to  some  of  these  cases,  and  I  will  mia'ely  limit  myself 
to  iiicorjioratiiie;  a  short  extract    here.       I    take   the    followinj;' 

fi ihe  r.  S.  Sen.  Kx    Doe.  21— 40,    2   Sess.,    44   Confj.,  p.  :iK. 

Commenting;  on  the  aliove  i|uotatioii  in  Worth  case,  Rayner  .1. 
Bays : — 

"This  principle  of  international  law  is  nu-o^jnized  as  a  part 
"of  the  municipal  law  of  Kuf^land  and  of  the  I'liited  States. 
"The  Kiii^lish  courts  have  decided,  ai^ain  and  aj^ain,  tliat  not 
"only  is  a  foi'ei;jiier  resident  in  England  entitled  to  the  protee- 
"  tioii  of  her  laws  to  his  per.son  and  property  ;  but  even  in  the 
"case  of  ail  alien  enemy,  if  he  ipiietly  and  peaceably  obeys 
"  her  laws  and  performs  the  duty  rei|uired  of  him,  he  is  not  only 
"  entitled  to  the  |irotection  of  her  laws  in  sueinj;  for  his  rii;lits 
"  ill  her  courts,  but  he  is  entitled  to  protection  to  his  person, 
"cffii  ax  iiijdiiint  ill!  liiuil  of  Ills  )i<itiriti/," 

1  refer  to  the«e  iiutlioritieH  principally^  to  aii.swer  the  state- 
ment which  appears  in  the  riiited  States  brief,  that  the  protiic- 
tion  i^iveii  in  no  ouse  extends  a<;ainst  the  nation  of  origin.  I 
quote  this  other  pas.saj;e  from  the  same  .ludjje  : — 

•  *  «  •  "  And  if  the  contlict  had  been  directly  between 
"(ireat  Britain  and  the  Uniti'd  States,  and  there  liad  been  an 
"  intent  on  the  jiart  of  (Jreat  Britain  to  harm  or  in  an\-  way  to 
"  wroni;  them  while  under  our  protection,  all  the  authorities 
"  would  ifo  to  prove  tliat  our  (lovernment  would  be  bound  to 
"defend  and  jirotect  them  in  their  ri^dits,  ^t^/j  itifninut  thfiv  own 
"  (tovi'Dniieiit.  Our  complaint  ajrainst  (Jreat  IJritain  was  not 
"  that  she  had  dii'ectly  or  intentionally  wroiiffed  our  (iovern- 
•'  meiit  or  its  citizens,  but  that  wroiiif  had  been  done  through 
"  her  neglect  to  observe  her  neutral  obligations." 

That  was  in  connection  with  the  Alabama  claims. 

Mr.  Dickin.son  : — Do  you  understand  the  learned  Coinniis- 
sioiier  in  the  Alabama  claims  to  mean  there,  that  he  speak.s  of 
direct  conflict,  a  state  of  war  between  the  United  States  and 
Great  Britain  i 

Mr.  Beiipie : — Whetlier  he  does  or  not,  what  I  am  an,swering 


f 


I 

.-''1 

1 

^1 

m 


i^ 
M 


I 


rmmmm^m^ 


^ 


ite 

(Mr.    n('i(|iieH    Arj^iimpnt.) 

in  llic  liioiul  iiMMcrtiiin  with  rcrcrt^iii't'  to  tin*  limit  of  |)roti'ctinii. 
'I'liiit  is  an  assertion  in  tiic  l)ri('f  of  my  learned  rriemi  tlic 
counsel  for  tlie  I'liiteil  Stiiti's,  wliieli  is  ijiiite  material  ami  ijuile 
iin|i<irtaiit  in  llie  present  en(|uiry.  'I'liat  assertion  of  mv  leariieij 
fi'ieiiil  Mr.  DieUinson  is.tliat  in  no  case  can  lii'eat  Hritain  protect 
Anieiican    citizens  a;;ainst    the     rnileij     States.       I    have  hccn 

10  eiuleavourin;;  to  show    the    iNuitrary  hy  the    examples    I    have 
mentioiieii.  and  liy  supposing;  laws  that  mij,'ht  ;,'ive  rise  to  sucli 
interferences.      I  iiave  ti'ied  to  show,  hy  refi'rrin;,'  to  hypothetical 
acts  done  in  tlieixirt  of  N'ietoi'ia.that  ( Ireat  Mritain  would  undoiihl 
edly  he  eiilitleci   to  protect  .\iiierican  citizens  a;;ainst  the  I'niteil 

States,  and  I  liavi'  I n  nderrinj;  to  these  authorities   in  support 

of  my  Nialemeiit.  There  are  a  innnher  of  other  authorities  tn 
which  I  nii;;ht  refei  on  the  same  point.  I'mler  the  Hritish 
municipal  law.  Uritish  suhjects'only  are  entitled  to  own  Hritish 
rej^istered  vessels,  and  any  contravention   o|)erates  //),>*()  /</<y()  as 

"20  a  forfeiture  of  the  vessel  |4i  Her  .Majesty.  Section  l(t:{  of  the 
I'liilish  .Merchants'  Shi]i|iiMe;  .\ct  of   IS.')4  says  : 

■t'lll.     The  (iU'ence-,  In  icimifter  meiitioiieil  sliall  he  piirnsji 
"ahie  as  fuljnws;  (that  is  to  say) 

"(I)  If  any  persmi  u>rs  the  linlish  \\\\'^  and  assumes  tin' 
"  livilix/i  National  Character  nn  hoard  any  ship  i)wncd  in  wholi> 
"  or  in  pait,  hy  any  person  not  entitled  hy  law  to  own  lirillsfi 
'  .•.'// /'/s,  fur  the  pui  pose  of  inakiny;  such  shi))  appear  to  he  a 
"  ItrUlsli  ^llip,  such  ship  shall  he  forfeiti'il  to  Her  Miijesty,  unless 
'•  such  as»iMn|ition  has  hcen    iii.ide    for   the   purjiose   of  escapiie,^' 

30  "rapture  hy  an  enemy  or  hy  a  l<'oieii;ii  Ship  of  War  in  eX(>rciM' 
"of  some  iiellii,'eicnt  rii,dit  ;  and  in  any  piiiceedini;  foi-  eiifoifiie,' 
"  any  such  forfeiture  the  hurden  of  |)rovini,'  a  title  to  use  the 
'  li  ilis/i  lliii,' and  a-^^iimie  the  lir\ti.<li  Nationid  (Jliaiactcr  shall 
•  Ki'  '10  ai  the  person  ii^ini,'  and  assnmitii;'  the  same." 

'  ('!)  If  the  master  or  owner  of  any  liritish  sliip  do(^s  or 
"permits  to  he  done  any  matter  or  thiii^;,  or  c.iiiies  or  |H'rinits 
"  to  he  carried  atiy  pa|)ers  or  chjpuments,  wi  h  inf  it  to  conceal 
"  the  Ihitisli  chaiacter  of  such  ship  from  an;,  pirson  entitled  hy 
'■  liritish  law  to  iiupiiie  into  the  same,  or   to  assume  a  Korei;;ii 

40  '  chnra('ti>r,  or  with  intent  to  deceive  any  such  |iersoii  ;is  Instlv 
"  liereinlH  fore  nieiitioiieil,  such  ship  shall  le  forfeitecl  to  Her 
"  Maji'sty,  ami  the  mastt>r,  if  he  commits  or  is  privy  to  the 
"  commission  of  the  otl'ence,  shnll  he  j,'uilty  of  a  misihiueaiior." 

(M)  If  any  iiM(|Ualilied  peison,  exce])t  in  the  case  of  such 
"  transmitted  interests  as  are  lu'reinhefoio  mentioned,  acquires 
"  as  owner  any  ititerest,  either  lethal  or  hetieticial,  in  a  ship  usim,' 
'  a  Ih'itish  tla^'  and  assnmiiiLj  tla;  Hritish  character,  such  inteiest 
•'  shall  I'e  forfeited  to  Her  .Majesty." 

"  (4)      If  liny  person,  on  hehalf  of  himself  or  any  other  |)ersoi\ 

'}()  "  or  hoily  of  persons,  wilfulK-  makes  a  false  declaration  touchitii; 
"  the  (piidilic.ition  of  himself  or  such  other  person  or  hody  of 
"  persons  to  own  Ihil'ifli  ships  or  any  shares  therein,  the  ileclarant 
"  shall  he  ;r'iilty  of  a  misilemeaiior  ;  atal  the  ship  or  share  in 
"  respect  of  which  s.^ii  declaration  is  made,  if  the  same  has  not 
"  heen  foifeiteil  under  the  fore^'oin^  provision,  shall,  to  the 
"  extent  of  the  interest  therein,  of  the  person  making  the  Dec- 
"  laration,  and,  iiidess  it  is  shown  that  he  had  no  authority  to 
"  to  makt^  the  same,  of  the  parties  on  ladmlf  of  whom  such 
"  declaration  is  miide.  In;  forfeited  to  Her  Majoty." 
()0  This  leaves  room  for  no  atidiij^uity.and  therefore  it  is  perfectly 
plain  that  from  the  mere  fact  that  there  would  have  heen  an 
attempt  on  tlu;  part  of  any  citizen  of  the  IJnittMl  States  to  own 
nn  interest  iti  any  of  the  vessels  in  (juestion,  under  tlio 
municipal  laws  tjf  Great  Britain,  these  vessels  would  have  heen 


< 


127 


lit  of  proti'otidii, 
iirni'd  I'rii'iiil  Ihr 
ati'rial  find  i|iiiir 

nil  nf  iiiv  li'lirilnl 

it  Britain  pnitcci 
H,      I   liavi'  lii'cn 

Ullllpll'H     I      huvr 

;ivc'  lisf  to  MK  li 

'^  In  ll\  potlicticill 

woiilil  iiikIoiiIiI 
;aiiis|,  tlic  Ciiitril 
ii'itii'M  ill  Miippoii 
■r  aiitlioritii's  lo 
I'Icr  till'  Urili^li 
I  to  own    Hiilisli 

lies  ipso    fiiili)  )!>, 

I'tiori    lO.-'t  or  till' 
I  sliall  lit'  piMii>|i 
mill  nssiimcs  tin* 

)W1H"1    ill    Wllllji' 

V  to  own  Uritlsh 
ipjicar    to    111'   a 

r  Miijisty,  iinlcvs 

losi'   of  I'M-apiiii,' 

War  in  cxtM'ciM' 

inj,'  for  t'lifoieiiii,' 
titli'  to  use  till' 
Uliainctt'i'  slinll 

MIC," 

isli  -.hip  lilies  III' 
ui  it's  or  pcriiiils 
int'  ii  to  coiici'ul 
■;'s()n  t'lititlcii  iiy 
ssiiMie  11  Kor('i;,'ii 

|ii'rson  PS  Instlv 
fiirffiti'ii   to   Hit 

is  privy  to  tin' 
iiiisiifiiieaiior." 

the  caso  of  siicli 
iitioni'd,  ncrpiiirs 
I,  ill  a  ship  iisiii;^' 
tur,  such  iiitoK'st 

any  other  pi'rsun 
laration  touching' 
rsoii  or  lioily  i)f 
I'in,  the  declarant 
hip  or  share  in 
tile  same  has  not 
m,  shall,  to  the 
nakiii;,'  tlie  Dec- 
no  authority  to 
of  whom  such 
ty." 

'ore  it  is  peifectlv 
Id  have  lieeii  an 
m!  States  to  own 
tion,  under  tlio 
would  have  heen 


M 


10 


(Mr.    Beiijuo's    Arj,'iiiiioiit.) 

ipHi)  fnrto  forfeitnd  to   Her  Majesty  and  therefore  (in^at  liritaiii 
would  he  entitled  to  claim. 

liCt  me  now  ask  whether  my  learned  friends  are  prepared  to 
.say  that  they  intend  to  (piestioii  the  validity  of  this  law  or  its 
operation,  whether  British  siihjects  or  Ignited  States  citizens  he 
therehy  afl'ected  ;'  Their  attemptinj,'  to  do  anything'  of  the  kind 
would  lie  a  direct  violation  of  the  law  of  nations  i,'overninj,'  thin 
controversy. 

On  reference  to  paf,'e  Ki  of  the  British  Arijiiinent  in  reply,  I 
Hnd  a  citation  from  ('liii.'f  Justice  Marshall  of  the  Supreme 
Court,  of  till!  United  States,  which  is  of  some  importance  and 
which  1  will  read  :  It  is  taken  from  ('ranch  4,  paife  i?!*  in  the 
case  of  liose  V.  Iliiiu  ly. 

"It    is    conceded    that    the    le;,'islation    of   every   cmintry   is 

territorial,  that  heyond  its  own   territory   it  can  onl}'  atl'ect  its 

'  own  siihjects  or  citizens.      It  is  not  easy  to  conceivo  a  power  to 

'execute  a  niiinicipal  law,   or  to   enforce   ohedieiiee  to  that  law, 

'  without  the  circle  in   which    that   law   operates.     A  power  to 

'  seize  for  the  infraction  of  a  law   is  derived  from  the  Sovereij^n 

'and  must  he  exercised,  it  would  seem,  within  those  limits  which 

'  ciiciimscrilie  the  Siivereij,'n  Power.     'I'lie  rights  of  war  may  be 

'  exercised  oil  the  \\\i^\\  seas,  hecause  war  is  carried  on  upon  the 

'hi;,di    seas;     hut    the    pacific    rii,dits    of   sovcrei^mty    must    tio 

'exercised    within    the    territory    of   the  Sovereign.      If    these 

'  propositions  ho  true,  a  seizure!  of  a  person  not  a  suhject,  or  of  a 

vessel  not  l)elon;,'injf  to  a  suhject  made  on  the  hii,di  seas  for  the 

lireach  of  a  municipal  rej,'ulatioii,  is  an  act  which  the  Sovereiifii 

cannot  authorize." 

Wheaton,  Klemeiits  of  Int.  Law,  Part  II,  Sec.  7S,  p.  i;{;{,  says  : 

"  The  se(;oiid  ;,'eiieral  principle  is  that  no  State  can,  hy.its 
"  laws,  directly  affect,  hind,  or  rcLjulate  property  heyond  its  own 
"  tei'iitoiy.  nor  control  persons  who  do  not  reside  within  it, 
"  whether  they  he  native  h  in  siihjecls  or  not.  This  is  a  conse- 
"  queiice  of  the  first  i,'enei'al  iirinciple  (Foelix,  Droit  Int.  Prive', 
'■s.  it);  a  different  system  which  would  recognize  in  each  State 
"the  power  of  rejjulatinf,'  persons  or  thin;,'s  heyond  its  territoiy, 
"  would  exchid"  the  ecpiality  of  rij,dits  aiiioiii;  different  States, 
"  and  the  exclusive  Snveri'ii^'iity  wliicli  helongs  to  each  of  them 
"(Foelix,  Droit,  Int.  Prive',  s,  10)," 
Ai^aiii  (I'art  II,  Sec.  lOO,  p.  Id!)): 

"  Both  the  puhlic  and  private  vessels  of  every  nation  on  the 
"  liigli  seas,  and  out  of  the  ti^nitorial  limits  of  any  otiier  State, 
"  are  suhject  to  the  jurisdiction  of  the  State  to  which  they 
"  helonjf.  Vattel  says  'i,lie  domain  of  a  nation  extends  to  all  it.s 
"  first  possessions  :  ami  h3-  its  possessions  we  are  not  to  iinder- 
"  stand  its  territory  only,  but  all  the  rif,dits  ('droits')  it  enjoys. 
"  And  he  considers  the  vessels  of  a  nation  on  tlie  hi<,di  sens  as 
"  portions  of  its  territory  (Liv.  I,  cap.  19,  sec.  210  :   Liv.  21 1,  cap. 

"  7,  sec.  MO) This  jurisdiction,  which  the   nation  has 

"  over  its  public  and  private  vessels  on  thehii,di  seas,  is  exclusive 
"  only  so  fai-  as  respects  offences  a^oiinst  its  own  iminicipnl  laws. 
■'  Piracy  and  other  ofiences  ni,'ainst  the  law  of  nations,  being 
"  crimes  not  against  any  particular  State,  but  against  all  nian- 
"  kind,  may  ho  punished  in  the  competent  tribunal  of  any 
"  country  where  the  offender  may  he  found  or  into  wliicli  fie  may 
"  he  carried,  although  coinmitted  on  hoard  a  foreign  ves.scl  on 
"  the  high  .sea.s." 

Halleck,  Int.  Law,  vol.  I,  p.  215,  says: — 

"  Puhlic  and  private  vessels  on  tlie'high  .seas,  and  out  of  the 
"  territorial  li.nits  of  any  oilier  State,  are  suhject  to  tlie  juris- 
"  diction   of  tfie   State    to    wliicli    thev  belong.     The    ocean  is 


'  • 


H'    ill 


mi 

n 

1 

■•i 

;■■,#•- 


I 


m 


ill 


128 

(Mr.    Beiqiie's    Argument.) 

"common  to  all  mankind,  and  may  bo  successively  used  by  all 
"  as  thfiy  have  occasion." 

The    whole  doctrine  is  properly  expounded   by   Sir  Travers 

Twiss,  in  his  book  on  the  Law  of  Nations,  chapter  X.secs.  157-8  : 

"  The  right  of  civil  and  criminal  legislation  in  respect  of  all 

"  property  and  persons  within  the  territory   of  a  nation,   is  an 

10  "  incident  of  the  right  of  empire.  It  follows,  therefore,  that  the 
"  laws  of  every  nation  bind,  of  natural  right,  all  property  situate 
"  within  its  territory,  as  well  as  all  persons  resident  therein, 
"  whether  they  be  natives  or  strangers,  an<i  that  they  control  and 
"  regulate  all  the  acts  done  or  contracts  entcjred   into   within  its 

"  limits A  nation  cannot  by  it.s  own  laws  directly  bind 

''  property  which  is  beyond  the  limits  of  its  territory,  nor 
"  diiectly  control  persons  who  are  not  resident  therein.  This  is 
"  a  iiceessary  constniuence  of  the  proposition  advanced  in  the 
''  preeeiiing  section  ;  for  it  would  be  inconsistent   with  the  abso- 

20  "  lute  character  of  territorial  empire,  if  the  laws  of  a  nation 
"  biiiil  persons  or  property  within  the  territory  of  another  nation, 
"  and  so  contiol  the  operation  of  tiio  laws  of  the  latter  nation 
"  within  its  owri  territory  Rodenburg  has  accordingly  observed 
'■  that  no  Sovereign  Power  can  of  riglit  set  law  beyond  the 
"  limits  of  its  t.nitor}'.  Constat  igitur  extra  territorium  legem 
"  diecte  neiiiini  licere ;  si  fecerit  (piis,  impune  ei  non  pareii, 
"  ((nijipe  ubi  cosset  statutorum  fundainentum,  cessaat  robur  et 
"  jiirisdietio  ("Rodenburg  de  Statutis,"  Tir,  I,  chap.  3,  sec.  1.) 
'' Jioullc'iiois  lays  down  a  similar  rule:    '  Of  strict  right,  all  the 

30  "  law<  of  a  Sovereign  have  only  force  and  authority  throughout 
"  his  dominions.'  (ii)iielliMiois,  "  Traite'  des  Statuts,"  I'rincipes 
"  ( Jeiier.iux.  Vi.)  Vattel  concurs  in  this  view  when  he  says  : 
"The  Emjiire  uniti'cl  to  the  domain  estabiisbes  the  jurisdiction 
"of  the  nation  witliin  its  territory.  It  is  its  province,  or  tiiat  of 
"  its  Sovereign,  to  exercise  justice  in  all  the  places  under  its 
"empire;  to  take  cognizance  of  the  crimes  that  are  committed, 
"and  the  (litrcrences  that  arise  in  the  country.'  (Vattel,  "Droit 
"  lies  Gens,"  II  11,  Siu;.  Si).  '  No  law  is  accordingv  operative, 
"  jiriprio  v'ujure,  beyond  the  limits  of  the  tiuritory  of  the  State 

40  '  which  lias  set  it.'  (.Martens,  '  Precis  dii  Droit  des  (Jens,'  sec.  Sti). 
"'Then;  is  no  doubt,  writes  Chancellor  Kent,  (Kent's  Commen- 
'  taries,  Tom  H,  Sec.  4.')7)  '  of  the  truth  of  the  genei-al  proposition 
"  that  tire  laws  of  a  country  have  no  binding  force  bi'vorul  its 
"  own  territorial  limits,  and  their  autliority  is  admitted  in  other' 
"  States,  not  c.r  priiprio  riijorr,  lait  ex  ciiiniti(t<',»v  in  thf  language 
"of  Huber-,  "  (j|uiitenrrs  sine  pracjiidicio  indulgentium  tii'ri 
•'  potest,'"  \-e.  Another  eminent  authority,  Chief  .Justici;  Pai-ker', 
"  has  recogirized  a  similar  doctrine  in  an  ehiliorate  judgment,  in 
"  the  comse  of  which  he  observes  that  '  the  laws  of  a  State  cannot 

'iO  "  l\V  arry  irihei-erit  aothoi-ity  be  entitli'd  to  res])ect  exti'a-ter'ri- 
"  torially,  or'  bi'yond  the  jirrisdiction  of  the  States  which  enact 
"  therrr  ;  thi-*  is  the  ni'Cessar'}'  result  of  the  iirdepetnlencr  of 
"  distinct  Sovi'r-eignties.'  Jihinehuril  v.  Hii^ai'll,  13  Massachusetts 
"  Report,  p.  4)." 

•'  I*.  'J.S.'j,  sec  173.  The  open  sea  is,  strictly  speaking,  nail  ins 
"  t<'rritoi'iani.  No  nation  can  claim  to  exfreise  jririsdiction  over 
"  its  water's  on  any  grornid  of  exclusivtr  posse-^sion.  On  the 
•'  other-  hand,  it  is  the  pulilic  highway  of  nations  ii])on  which  the 
"  vessels  of  idl   nations   rrreet  on   trrrns  of    iMpiaiity,    each    vessid 

GO  ''  cari')irig  with  the  laws  of  its  own  natiorr  for-  the  govertnneirt  of 
"  those  on  lioard  of  it  in  their'  mutual  relations  with  (;ne  anolhiM, 
"  but  all  subject  to  the  common  law  of  nations  in  matters  of 
"  mutual  relatifin  between  the  \essuls  themselves  and  their 
■  cr'ews. ' 


120 


^'ely  used  b}'  all 

by  Sir  Travels 
r  X.secs.  157-8  : 
II  respect  of  all 
a  nation,  is  an 
reforo,  that  tin- 
property  situate 
3ji(lent  thtMuin, 
ihey  control  and 
into  within  its 
s  directly  hind 
i  territoi-y,  nor 
lerein.  This  is 
Iviinced   in  tlie 

with  the  ahso- 
ws  of  a   nation 
another  nation, 
le  latter  nation 
liiiiifly  observed 
iw    beyond   the 
ritoriiun   le>];eni 
ei    non    pareri, 
L'ssaat  robur  et 
shap.  3,  see.  1.) 
■   rin-ht,  all   the 
ity  throii^lioul 
lUs,"    I'lineipe.-i 
ivheii   he  says  : 
he  jurisdiction 
ince,  01-  thiit  oF 
iices    under  its 
iro  coniniitteil, 
Vattel,  '•  J)roit 
nj^y   operative, 
y  of  the  State 
Gens,'  sec.  SCi). 
'ut's  Ooninien- 
ral  proposition 
ce    lieyond  its 
litted  in  othei' 
'1  the  ianjj;uai;e 
i,'entiuin     tieri 
ustice  Parker-, 

judffuient,  ill 
a  State  cannot 
it    extra-terri- 

whicii  enact 
lependiMlce  of 
Massachusetts 


(Mr.   Beique's   Argument.) 

References  are  made  to  Hall  (International  Law)  to  the  same 
effect,  and  to  Sir  William  Scott,  v/hicli  will  he  found  on  page  18 
of  tlie  Arf^ument  of  Great  Britain  in  reply. 

I  therefore  submit  tliat  whetlier  tb.ere  was  or  tiot  an  attempt 
on  the  part  of  tlie  United  States  citizens  at  holdinfr  any  of  the 
vessels  in  question,  it  makes  no  dift'erenee  liecause  if  tliere  was 
any  such  attempt  it  remained  abortive,  the  vessel  becoming  for- 
feited as  Her  Majesty's  property,  and  re;^i,iining  to  all  intents 
and  purposes  a  British  ves.sel  entitled  to  the  protection  of  Great 
Britain.  I  liave  not  referred  to  the  aiitliorities  concerning  the 
quesiion,  as  to  wliether  in  the  absence  of  tlie  reserve  or  even 
with  tlic  reserve,  as  it  appears  from  the  Convention,  tliu 
United  States  can  go  behind  tlie  Ha(j  of  the  Registry,  tliat  (ques- 
tion will  be  dealt  with  by  Sir  Charles  Hibbert  Tupper  wlien  lie 
comes  to  address  your  honors.  J  niiglit  add  that  the  position 
we  take  is  further  strengtliened  by  tlie  fact  tliat  all  the  owners 
BO  of  the  ships  and  parties  interested  in  their  cargoes  and  ventures 
were  Biitish  subjects,  or  doniiciied  in  British  teiritoiy.  The 
authorities  to  wliicli  I  liave  called  attention,  a  moment  ago,  apply 
principally  as  against  the  contention  of  tlie  learned  counsel  for 
United  States  in  legard  to  their  dealing  with  the  question  under 
discii.ssion,  as  if  there  had  ficen  a  violation  of  a  municipal 
law  proper,  or  whether  they  call  it  a  iiituiicipai  law  with  ex-ter- 
ratorial  etl'ect,  1  claim  fioiii  these  authorities  that  sueli  law  couM 
in  no  way  be  invoked  here.  1  claim  that  as  a  result  of  tlio 
treaty,  as  a  result  of  the  Award,  it  is  an  aci|uiied  fact,  that  tliere 
was  no  such  law,  that  thei'e  has  been  only  an  attempt  on  tiie 
part  of  the  political  Depaitment  of  the  United  States  at  con- 
stiiiiiig  section  ][}')6  of  their  statute  as  exteii(lii.:>;  to  liehring 
Sea.  but  tliat  this  attempt  is  now  admitted  to  have  lieeii 
erroneous.  I  go  fuither  and  say  tliat  even  assuming  that  there 
was  such  law,  and  assuming  tliat  it  would  have  had  an  extra 
territorial  effect,  under  the  authorities  I  have  last  referred  to, 
tliis  extra  territorial  law  would  not  have  extetided  to  Great 
Britain's  teiritory,  or  to  Britisli  ves.sels  navigating  the  high  seas, 
because  the  high  .seas  for  the  purpose  are  considered  to  form  part 
of  the  territory  wliose  flag  tlie  vessel  carries. 

As  it  is  half-past  four  o'clock,  I  shall  not  now  take  up 
anotlier  branch  of  the  suliject. 

The  Commissioner  on  the  part  of  the  United  States: — Inas- 
much as  tlio  room  in  which  the  Ciuumissioners  are  sitting  is 
reijuired  for  another  purpose  to-moriow,  we  iiiiil  it  necessaiy  to 
adjourii  until  half-past  ten  o'clock  on  Wednesday  morning. 

At  half-past  four  o'clock  the  Coiuinissiotier'j  rose. 


I    fe^ 


;«■  3 


y 


!4' 


ii 


V 


y 


iking,  naUltis 
■isdiction  over 
■iioii.  On  tlie 
)on  wliicli  the 
',  each  vessid 
;overniiieiit  of 
ti  one  aiioth(,M', 
n  matters  of 
'es    and   their 


■'k 


il  •?! 


' r*''TW| 


Commissioners   under    the   Convention    of   February  8th, 

1896,  between  Great  Britain  and  the  United 

States  of  America. 


20 


Legislative  Council  Cliambor  of  the  Provincial  Buildinn;, 

At  Halifax,  N.  S.,  September  1st,  1897. 

At  lialf-past  ten  A.  M.,  the  Coinniissioners  took  their  .scats. 


Mr.  Iii'i(nie- — 'i'lie  day  hefore  yestonlay  I  was  rlcaling  with 
the  cnu'stion  of  iiationalit}'  and  domicile  and  esjiccially  with  that 
propositiiin  to  he  fuuni!  in  the  I'nited  States  hiief,  that  the  local 
.s()V(>reij,'nty  cannot  protect  its  domiciled  inhaliitants  as  agaiiHt 
the  countrv  of  (irij^inal  allcojance  for  wrongs  committed  within 
the  terricory  of  the  local  sovereignty.  I  referred  to  several 
authorities  on  this  point,  and  will  add  only  one  more  which  is  n 
very  stiong  case  in  point.     It  is  the   Koszta  case  referred  to  on 

30  jinge  (]')  (if  tile  United  States  brief  and  on  jiage  8  ot  our  own 
aiumiii'nt  in  I'eply.  Koszla,  a  native  born  Austrian  subject,  not 
naturalized  in  any  other  eonntry  and  domiciled  in  the  United 
States,  had,  it  apjiears,  otlenii  i|  Hgiiinst  the  law  of  his  country. 
An  attfm])t  to  take  him  was  made,  not  in  the  territory  of  tlie 
Ignited  States,  but  in  that  of  Turkey,  which  of  course  makes 
the  ca--e  niuch  strong(.r  ;  but  tiii!  United  States  interfereil  on  his 
behalf,  and  if  they  could  i'lterfeie  in  a  case  of  that  kind,  it 
seeiiis  to  me  that  they  would  have  much  more  right,  as  they 
have  themselves  asserted  the  right,  to  have  intiU'fered  in  the  case 

40  of  Koszta,  if  h(>  had  been  arreste<l  in  the  territory  of  the  United 
States,  The  Wording  in  the  reference  on  page  8  of  our  brief  in 
reply  is  veiy  ]ilain  and  very  strong  ;  it  is  taken  from  Wharton  s 
Digest  ol'  Nati(jnal  [/iw,  VohiTU(>  2,  jiages  4.S.')  and  48(i  : 

.  .  .  ."  Anil  what  i'eas(-ns  can  be  given  why,  so  far  at  least  as 
"  lei'ards  protection  to  peison  and  pi-(j|ieriy  aliroad  as  well  as  at 
"  hoTiie,  his  rights  should  not  bo  co-extensivcs  with  the  rights  of 
"  native  born  or  naturali:'.«'d  citizens,  liy  the  law  of  nations  they 
"  have  the  same  natiunalily  ;  ami  what  right  has  any  foreign 
"  power,  foi'  the  puipose  of  making  distinction  between  them,  to 

oO  "  look  behind  the  ehaiacter  given  them  by  that  code  which  regu- 
"  lates  national  intercourse  f  When  the  law  of  iiiitions  determine 
"  the  mitioriality  of  any  man,  foreign  goveitiments  are  bound  to 
"  respect  its  decision. 

.  .  .  ."  If  the  conclusions  iieietofore  arrived  at  are  correct, 
"  the  Austrian  agents  bad  no  more  right  to  take  Koszta  (who 
"  was  nil  Austrian  but  domiciled  in  the  United  States)  fiom  the 
"  soil  of  the  Tuikish  dominion  thuii  from  the  territory  of  the 
"  United  States,  and  Captain  Ingrahain  had  the  same  right  to 
"  ileniaiid  and  enlorce  his  release  as  he  woidd  have  had  if  Koszta 

fiO  '  had  been  taken  from  Atnerican  soil  and  incaiceratu'd  in  a 
"national  vessel  of  tlu'  Austiiati  lOuiperor.  in  this  (|Ui'stion, 
'■  cotilineil  as  it  is  to  tlu!  United  States  and  Austria,  the  place  of 
"  the  liatisaction  is  immaterial,  unless  the  Austrian  mimicijial 
■'  laws  extended  over  it. 


February  8th, 
E  United 


cial  Buildinc;, 
tember  1st,  1897. 

5ok  their  seats. 

ivas  dealing  witli 
it'cialiy  with  tliat 
ief,  tliat  the  local 
litants  as  against 
•oiiMnitted  within 
ferred  to  several 

more  which  is  a 
,se  lef'orred  to  on 
ri>  8  of  oui'  own 
;rian  subject,  not 
ed  in  the  Fnitcd 
\'  of  his  country. 
I  territory  of  the 
of  course  makes 

interfered  on  hi-; 

t)f  that  kind,  it 
ire  right,  as  they 
rfeiecl  in  the  ease 
iry  of  the  Uniteil 
H  of  our  brief  in 

from  Wharton's 
,11(1  48(1 : 

so  far  at  h>ast  as 
oad  as  well  as  at 
;ith  the  rights  of 
w  of  nations  they 
has  any  foreign 
between  them,  to 
code  which  regu- 
lutioiis  determiiH' 
'iits  are  bound  to 

1  at  are  correct, 
like  Koszta  (who 
States)  f 1 0111  the 
territory  of  the 
til!  same  right  to 
ave  had  if  Koszta 
iiearceiated  in  a 
In  this  (juestioii, 
itria,  the  place  of 
istrian    munici]ial 


131 

(Mr.    Beique's  Argument.) 

. . . .  "  The  conclusions  at  which  the  President  has  arrlved> 
"  after  a.  full  examination  of  the  transaction  at  Smyrna,  and 
"  respectful  consideration  of  the  views  of  the  Austrian  Govern- 
"  ment  thereon,  as  presented  in  Mr.  Hulsemann's  note  are,  that 
"  Koszta,  when  .seized  and  imprisoned,  was  invested  with  the 
"  nationality  of  the  United  States,  and  they  had,  therefore,  the 
"  right,  if  they  chose  to  exercise  it,  to  extend  their  protection 
"  over  him." 

The  examination  of  the  authorities  cited  in  the  United  States 
brief  in  support  of  the  proposition  to  which  I  have  referred, 
will  .slunv  that  they  do  not  support  the  proposition  at  all,  and 
,  that  to  make  away  with  the  right  of  protection  two  things  must 
occur — that  there  be  an  offense  against  the  law  of  the  original 
allegiance,  and  that  the  party  be  within  the  jurisdiction  of  his 
own  country. 

Now,  taking  again  the  few  cases  involved  in  the  objection  on 
90  the  grounds  of  nationalit}'  or  domicile,  the  dispute  may  be 
^    rediiceil  to  the  following  propositions  : — 

As  to  Cooper,  so  far  as  the  "  Grace,"  the  "  Dolphin,"  and  the 
"  W.  P.  Say  ward,"  are  concerned — 

First,  is  Great  Britain  to  be  debarred  from  showing  that  a 
person  alleged  to  be  the  owner  was  not  the  owner,  though  the 
.ship  was  registered  in  his  name?  I  think  I  have  shown  that 
the  evic'ence  adduced  in  that  respect  is  jierfectly  legal,  and  that 
Great  Britain  cannot  be  so  debarred  from  showing  that  Warren 
was  really  the  party  interested. 

Second,  even  if  (,'ooper  is  to  be  considered  the  party  inter- 
ested, he  heir';;  a  British  subject,  and  as  such  under  the  laws  of 
Great  Britain,  competent  to  own  British  ships,  is  h.c  to  bo 
deprived  of  Her  Majesty's  protection  when  such  vessels  are  on 
tlie  high  seas  ?  It  seems  to  me  the  (juestion  finds  its  solution  in 
the  mere  statement  of  it. 

As  to  Frank  for  the  "  Black  Diamond  "  in  1886,  claim  No.  5' 
and  Alfred  Adams,  claim  No.  8  : — 

First,  his  interest  being  limited  to  that  of  a  partner  in  the 
registered  ve.s.sel,  are  the  United  States  to  be  allowed  to  go 
behind  the  register?  I  have  already  called  attention  to  the 
teriii.s  in  which  the  government  of  the 'United  States  has  reserved 
the  right  to  raise  the  ([iiestion  of  its  liability-.  The  wording  is: 
"  In  liny  ease  where  it  shall  be  proved  that  the  vessel  was  owned 
in  whole  or  in  part  by  a  citizen  of  the  United  States."  This 
slumld  be  lather  narrowed  than  extended,  aiul  therefore  it  does 
not  apply  to  any  interest  in  any  vessel.  Moreover,  on  reading 
the  British  .Merchants'  Shipping  Act,  what  is  referreil  to  is 
interest  by  way  of  ownership  in  a  vessel,  I  do  not  think  that  the 
British  Merchants'  Shijiping  Act  prevents  anybody  from  being 
interested  in  the  venture  of  a  vessel.  It  ainounts  to  entering 
into  a  charter  for  the  vessel,  and  we  have  in  fact  referred,  I 
believe,  to  authorities  on  that  point  in  our  written  argument. 
The  British  law  permits  such  charter  parties  to  be  made  between 
foreigners  and  owners  of  British  vessels. 

Second,  Iceause  the  ves.sels  in  whose  venture  Frank  was 
interested  were  British  ve.ssels,  carrying  the  British  Hag,  and  it 
is  a  well-known  rule  of  law  that  a  ship  in  time  of  peace  is  national- 
izeil  by  its  papers  which  are  conclusive  as  against  foreign  nations. 
Third,  because  Frank,  when  tlomiciled  in  Briti.sh  territory 
was  entitled  to  tin;  protection  of  the  British  law. 

Fourth,  because  the  United  States  have  no  right  or  status  to 
enquire  whether  a  foreigner  is  entitled  to  own  Britisli  ships. 

We  have  referred  on  pages  44  and  45  of  our  brief  as  an 
authority  on  that  point  to  Wharton,  paragraph  327  :— 


132 
(Mr.    Beique's    Arguiiiont.) 

"  A  eertificato  uiulur  tlio  authority  of  tiie  United  States  must 
"  be  taken  by  i'oreinjii  powers  as  fjemiine,  aTitl  can  lie  impeacbed 
"  by  tiieni  onl^'  by  application  to  the  government  of  tlie  Unite^l 
"  States.  This  has  fieen  heltl  as  to  natiiraii/ation  certifieati'-. 
"  (tiiipvd,  section  174  a),  and  the  same  principle  as  was  held  in  tli. 
"  Viiginius  case  (Kiijira,  sec.  ;12?),  applies  to  ])apers  certifyiii_ 
10  "  under  the  authority  of  the  United  States  tliat  the  vessel  lioi<lin:: 
"  them  is  a  vessid  of  ilw  Ignited  States.  If  such  papers  iii- 
"  fiandulent,  the  parties  forging  or  wrongfully  using  them  ar  ■ 
"  liable  to  punislime!it  in  the  United  States,  and  the  Unite i 
"  States  will  not  pennit  them  to  be  employed  as  the  basis  of  ,i 
"  claim  agaitist  foreign  powers.  But  the  United  States  must  \i. 
"  the  sole  judge  of  their  validitj'  so  far  as  concerns  proceedin^^ 
"  on  the  high  seas.  \o  foreign  power  can  lie  permitted  to  deter 
"  mine  ns  to  such  validity  (sui>rii,  ss.  .S2."),  tf). 

Fdtii,  because  even  if  Frank  was  not  to  have  been  deenu'd 
20  entitled  to  ba\-e  an  iiitrrest  in  the  venture  of  vessels,  sueli 
interest  would  have  been  forfeited  to  the  benetit  of  (ire.ii 
P>ritain.  All  thes-  i masons,  except  the  first,  applj-  to  Ale.Nand.  i 
McLean,  with  this  ditl'erence,  tliat  bis  interest  instead  of  bein- 
in  the  venture  of  the  vessel  was  that  of  part  owner,  iircht.  i. 
in  connection  wiih  the  interest  in  the  venture  of  the  "  Pathtindei 
occupies  also  the  same  position  as  Frank,  with  this  e.\cepti(jii 
that  be  had  beeome  a  British  subject  before  the  sigtiing  of  tl,  ■ 
Claims  Convention.  As  to  Daniel  McLean,  the  rjuestion  seelll^ 
to  be  so  con(•lu^ively  settled  by  bis  papers  of  re-naturalizatinn 
30  that  1  need  nut  dwell  any  more  on  tiie  law  as  to  his  case.  Ii 
not  having  been  suggested  that  any  "f  the  vessels  were  iiavi 
gate(l  by  Ignited  States  citizens,  the  olijection  does  not  apply  ~'i 
far  as  niembers  of  the  crews  are  concerned. 

I  liave  alieaily  referred  to  the  following  paiagraph,  to  le 
found  at  page  ."):J  of  the  Tni'ted  States  brief: — 

"Cooper  was,  at  the  time  he  became  the  legal  owner  of  tlii--e 
"  vessels,  and  at  the  time  of  the  seizures  (pioad  the  United  Stati  n 
"  and  in  their  relations  to  bim  as  against  (Ireat  Britain,  iiii 
"  American  citizen,  and  as  such  bis  ships,  as  we  .shall  see,  weiv 
40  '  entitled  to  carry  no  flag  but  that  of  the  United  States,  aii'l 
"  were  not  even  entitled  to  iiritish  registiy." 

Three  propositions  are  involved  in  this  paragraph  :  First 
that  because  Ctxipt'r  was  domicileil  in  tlie  United  States  he  was 
f|Uoud  the  Ignited  States  and  against  (Jreat  Ihitain  an  Ameiii'aii 
citizen. 

Second,  that  his  sjnps  wete  not  entitled  to  British  registry. 

Third, that  although  he  never  renounced  his  British  allegiance, 
his  ships,  becatise  of  his  domicile,  were  entitled   to  carry  no  tin- 
but  that  of  the  I'nited  States. 
50  ]    woidd   like    my  learned    friends   to  reconcile  these   prop  i- 

sitions  with  their  statement  which  we  tinil  on  page  IG  of  the  saiiii; 
argtnnent,  that  citizens  of  tin;  L'nited  States  wlierever  domicileil 
are  not  persons  on  whose  behalf  (ireat  Britain  is  entitled  tn 
claim  compensation  from  the  laiited  States.  t)ne  can  banlly 
see  why  the  jiositicMi  of  tireat  Britain  shoidd  thus  be  atVecti'l 
quoad  Coo|)er,  becuirse  of  his  domicile  in  tiie  United  States,  ainl 
that  tlie  position  <d'  the  Fniteil  States  shoidd  not  be  the  same  sn 
far  as  Bechtel,  Frank  and  Alexander  MacLean  as  American  citi- 
zens ih)iniciled  in  British  territory  are  concenieil 
60  It    is    ([iiite    evidetit    that    national    law    is    here   somewlml 

moidded  to  suit  the  purposes  of  the  United  States 

I  have  shown  b\'  referring  to  the  liritish  .Merchant  Sliip]iiiiu' 
Act  that  (hooper  was  entitled  to  own  Biitish  vessels.  A  refn- 
ence  to  the   Uevise(i  Statutes  of  the  United   States  will  disprove 


Jnited  States  iniisc 

can  lie  impeaclu'd 

eiit  of  tlie  Unites i 

i/atioii  ci>rtificati' , 

as  was  lii'ld  ill  tlh 

papiTs  certifyiii, 

tlio  vessel  lioldiii:^ 

f  sueli    papers  ai 

y  usinir  tlicin  nv  ■ 

;,  and    tlie    Unite  I 

as  till'   Ijasis  of  :: 

I'd  States  must  li. 

icoriis  proceediiii.'^ 

pel  iiiitted  to  deter 

lave  been  deeiiieil 
of  vessels,  sii"li 
lieiiefit  of  (ii'e.ii 
pply  to  Alexand.  i 
t  instead  of  beiii- 
t  owner.  lU'cliti  1, 
f  the  "Patiitilidei," 
itli  tlii-i  exeeption 
the  si;;nini;  of  tl," 
he  .|ilestion  seeiii> 
)f  le-iiaturaiizatinu 
IS  to  his  case,  it 
ve>.sels  were  navi- 
does  not  apply  ~ii 

,'   painyraph,  to    1  .■ 

vij^n.]  owner  of  tlu--r 

d  the  United  States 

Great    Hritain,  an 

we  .shall  see,  weiv 

United   States,  and 

])ara<Traph  :  First, 
liteil  States  he  wa- 
>iitain  an  Aiiiei  icaii 

0  liritish  re^Msti  y. 

s  liritish  allei^iance. 
led   t(j  carry  no  tlnu 

oneile  these  prop  i- 
pa^fe  16  of  the  same 
wlierever  domicile  i 
itain  is  entitled  to 
i.  One  can  haidly 
dd  thus  he  atVecteil 
!  Unite<l  States,  aiiil 

1  not  he  the  same  sn 
in  as  American  ci li- 
ned 

is  here  soniewliiit 
>lates 

Merchant  Shippiie,' 
h  vessels.  A  refer- 
States  will  disprove 


4b 


m 


133 

(Mr.   Beique's   Argument.) 

the  contention   to  be  fou.  '   in  my  learned  friend's  brief,  that 

althouefli  Cooper  never  renoiint.  1  iiis  orij.dnal  allejrianee,  his  ships 

because  of  his  domicile  in  the   United   States  becainu  American 

p-aperty.     I,  of  conrse.  in  referring  to  the  United  States  law,  tio 

so  subject  to  correction  on  the  part  of  my  learned  friends,  anil  I 

invite  them    to  point  out  any  material  sections  of  the  statute 

;  which  1  iiiav  leave  out  in  the  citations  that  I  am  going  to  make. 

I  intend  to  refer  to  sections  41:J1,  H.S2,  41.S8,  4U{4,  41.S6,  4142, 

|414;5,   410.")   and   41()().     All   these  sections  are,  1   believe,  most 

[important,   and    have    a  great  bearing  on    the  present    contro- 

( versy. 

.        "Sec.    4Un.       Vessels    registiM'od    pursuant   to   law,  and  no 

I"  others,  except  as  shall   be  duly  qualified,  according  to  law,  for 

["carrying  on  the  coasting  trade  and    tislieries,  or  one  of  them, 

'  shall  be   deemed  vessels  of   the    United   States,  and  entitled  to 

'the  lieiietits  and   privileges  appertaining  to  such   vessels;    but 

'  fliei/  xlidll  not  oijui/  the.  mime  loiujcv  IIkid  t/wi/  s/kiU  continue  to 

'  be  uliolli/  ou-iu'it  III/  citizens  und  to  he  eoniindixleil  hi/  u  eitivn 

'  of  the  I'niled  St((les.     Anil  oijiccrs  of  cetiKeln  of  the  United  Stutes 

',  "  ah'dl  in  alt  cuKex  be  citi:ena  of  the  United  States." 

As  apj)ears  fioiiithis  section,  a  necessary  coiuiition  for  the 
registering  of  any  Ignited  .States  vessel  is  that  its  iwner  be  a 
,  Uniteil  States  citizen,  and  it  seems  to  iiie  that  what  is  conteni- 
;  plati'd  liy  United  States  citizenship  is  evideiRly  a  native  born  or 
at  least,  a  naturalized  citizen  and  not  merely  a  doiiiiciled  citizen. 
This  is  made  clear  by  subsequent  sections  of  the  same  statute. 
Section  41. '12  is  as  follows  : — 

"See.  4i;^2.  lV,s',sr'/.s  liuilt  within  the  United  Slates,  and, 
"  belonc/ini/  tcholli/  to  citizens  thereof  and  vessels  wliich  may  be 
'  captured  in  war  by  citizens  of  the  United  Sttites,  and  lawfully 
"  condemned  as  prize,  or  which  may  be  adjudged  to  be  forfeited 
"  for  a  breach  of  the  laws  of  the  ("nited  States,  being  wholly 
"  owned  by  citizens,  and  no  others,  may  bo  registered  as  directed 
"  in  this  title.' 

AiiDther  essential  condition  is  that  the  vessid  be  built  in  the 
United  States,  except  it  be  condemned  as  mentioned  in  that 
statute. 

"Sec.  41.'].').  No  vessel  shall  be  entitled  to  be  registered,  or 
"  if  registered,  to  tile  benefits  of  registrj-,  if  owned,  in  whole 
"  or  in  part,  by  any  citizen  of  the  I'nited  States,  vho  usuall;/ 
"  resiiles  in  a  fpreiijn  countri/  during  the  continuance  of  sucli 
"  residence,  unless  such  citizen  be  a  consul  of  the  United  States, 
"  or  an  agent  for  and  a  partner  in  some  Ikjiiso  of  trade  or  co-part- 
"  iiersliip,  consisting  of  citizens  of  the  United  States  actually 
"  carrying  on  trade  within  the  United  States." 

Tlieiefore,  under  this  section,  lieci.tel,  and  Alexander  McLean, 
as  long  as  they  reside  in  British  territory,  were  disqualified  to 
own  American  vessels. 

Mr.  Dickin.son  :— Or  British  vessels;  they  were  distpialified 
from  registering  in  either  place. 

.Mr.  Bei(|ue: — Section  41.S4  is  as  follows:— 
"  No  vessel  shad  be  entitled  to  be  registered  as  a  vessel  of 
"  tht!  Uniteil  States,  or  if  registered,  to  the  benefits  of  registry, 
"if  ovned  in  yhole  or  in  partbu  any  person  naturalized  in 
"  the  United  States,  and  residinij  for  viote  than  one  year  in  the 
"  eon  iitr;/  which  he  originated,  or  for  more  than  two  years  in  any 
"  foreign  country,  unless  such  person  be  a  consul  or  other  public 
"agent  of  the  United  States." 

Again  a  <lis(|ual:fication  for  Alexander  McLean,  although  he 
was  a  iiaturalize.l  citizen,  as  he  di<l  not  reside  in  the  IJnited 
States,  and  went  to  reside  in   Briti.sh  territory,  wdiicli  of  cour.se 


n 

V' 


..  p- 


;m1 


,i;,-' 


If 

rrllfliP 

fW 

-  ~% 


1S4 

(Mr.    Beique's  Arj^ument.) 

he  was  (loirij>-  wlion  lie  was  navij^atini;  Britisli  vessels  as  master. 
The  .soctioii  proceeds  : 

"  Notliiiifi;  contained  in  this  section  .shall  be  construed  to  prc- 
"  vent  the  rcgi.sterini^  anew  of  any  vessel  before  registered,  in  Ciis.j 
"  of  a  .sale  tliereof  in  good  faith  to  any  citizen  resident  in  tln' 
"  IJniteil  States ;  but  satisfactory  proof  of  the  citizenship  of  thr 

10  "  person  on  whose  aecoiint  a  vessel  may  be  purchased  shall  hi; 
"  e.xhibited  to  the  collector,  before  anew  register  shall  be  granted 
"  for  such  a  vessel." 

"  Sec.  4130.  The  Secretarj-  of  the  Treasury  may  issue  a 
"  register  or  eiirollinent  for  any  vessel  built  in  a  foreign  ci)untr\-, 
"  wlienever  such  vessel  shall  be  wrecked  in  the  United  Stat('> 
"and  shall  be  purchased  and  repaired  by  a  citizen  of  tlie  Unit,.,| 
"  States,  if  it  shall  be  |iroved  to  the  satisfaction  of  the  secretarv 
"  that  the  repairs  jiut  on  such  a  vessul  are  ecjual  to  t!'"ee-fourtli> 
"of  the  cost  of  the  vessel  when  so  repaired." 

20  "Sec.  4142.  In  order  to  the  legistry  of  any  vessel,  and  oath 
"  shall  be  taken  and  subscribed  by  the  owner,  or  by  one  of  tli.- 
"  DWiieis  thereof,  bi'fore  the  oflicer  authorized  to  make  such 
"  registry,  deelaring,  according  to  tin-  best  of  the  knowledge  and 
"  belief  of  the  person  so  swearing,  tlu!  name  of  such  vessel,  lui- 
"  burden,  tlie  place  where  she  was  built,  if  built  within  the  Unite. j 
'■  States,  and  the  year  within  which  she  was  built  ;  or  that  sin- 
"has  been  eaiitured  in  war,  specifying  the  time,  by  a  citizen  of 
"  of  the  United  Slates,  an<l  lawfully  condenuied  as  prize,  |)rn. 
"  d\ieiiig  a  copy  of  the  sentence^  of  condemnation,  authenticatei] 

30  '  in  the  usual  forms  ;  or  that  she  has  been  adjudged  to  be  forfeiti'l 
"  for  a  iireaeh  of  the  law^  of  the  United  States  producing  a  likr 
"copy  of  the  adjudication  of  forfeiture:  and  declaring  his  naiin' 
"  and  place  of  at'ode,  and  if  he  be  the  sole  owner  of  the  vessel 
'■  that  such  is  the  case;  or  if  there  be  another  owner,  that  tluTc 
"  is  such  other  owner,  specifying  his  name  and  place  of  abud". 
'  and  that  he  is  a  citizen  of  the  United  States,  and  specifvinir 
"  the  |iroportion  belonging  to  each  owner,  and  wln'ii  an  owrii  r 
"  resides  in  a  foreign  country,  in  the  capacity  of  a  consul  of  the 
"  Utiited  States,  or  as  an  agi'iit  for  and   a  partner   in  a  liouse  or 

40  "  e<ipartnership  consisting  of  citizens  of  the  I'^nited  States,  that 
"  such  IS  the  case,  that  the  person  so  swearing  is  a  citizen  of  the 
"  United  States,  (U((/ </(((<  llioe  ix  no  f^uhjcct  or  dfhe.n  ofumi 
"  fiiii'ijpi  priDce  iir  ntutc,  dlirdli/  or  Indurcth/,  h;/  'tea)/  offriis/, 
"  (■oiiii'loHT  or  otlicriritic^  'niti- rest  I'd  in  sacli  irt<f<i'l.  or  lii.  th-' 
"  pro/iln  or  issues  fliireo/';  and  that  the  master  thereof  is  a 
"  citizen,  naming  the  master,  and  staling  the  means  whereby  or 
"  manner  in  which  lie  is  a  citizen." 

From  this  it  clearly  ajipears  that  the  Amei'ican  rule  is  mueli 
more    stringent     than     the    Ihitisli.       Under    this    Inst    section 

50  foreigners  are  not  entitled  to  own  even  an  interest  in  the  ventuie 
of  the  Vessel. 

'  Sec.  414.'!. —  if  any  of  the  matters  of  tact  allegeil  in  theoatli 
"  by  an  owner  to  ol^lain  the  registry  of  any  vessel,  which,  within 
"  the  knowledgtMjf  the  party  so  swearing,  are  not  true,  ther.' 
"shall  he  a  forfeiture  of  the  vessel,  tou'ether  with  hiM'  tackle. 
"  apparel  and  furniture!  in  lespiict  to  which  the  oath  shall  have 
"  been  maiie,  uv  of  the  value  thereof,  to  be  recovered,  with  the 
"  costs  of  suit,  of  the  person  by  whom  the  oath  was  made." 

"  Sec.  41(i/j. — No  vessid  which  is  registered,  pursuant  to  anv 
(JO  "  law  of  the  United  States,  and  which  is  seized  or  captured  ainl 
"  condemned,  uiicler  the  authority  of  any  foreign  power,  or  which 
"  by  sale  becomes  the  property  of.a  foreigner,  shall  bo  entitled  to 
"  or  capable  of  receiving  a  new  register,  notwithstanding  sueli 
"  vessel  should    afterward   become   American    propert}'  ;  but  all 


13a 


vessels  as  iiiastei. 

construed  to  prc- 
registerecl,  in  ciis.' 
I  resident  in  tlu^ 
citizensliip  of  tlic 
irciiasud  shall  Ik- 
r  shall  be  j^rantol 

iry  may  issue  a 
I  foreJLjn  country, 
K'  United  Stale- 
zen  of  the  Unite  1 
1  of  the  siccretarv 
1  to  t!'"ee-fourtlis 

'  vessel,  and  oatli 
or  by  one  of  th.' 
1  to  make  such 
le  knowledge  an. I 
f  such  vessel,  lu'i' 
witliin  the  Uniti-d 
huilt  ;  or  that  shr 
',  l)y  a  citizen  cif 
ed  as  prize,  pru- 
on,  authenticati'l 
i^ed  to  lie  foifeiti'l 
s  pioducini:^  a  like 
eeiarini,'  liis  nnniL' 
ner  of  the  vessi^i, 
owner,  that  thiTc 
(1  place  of  al)(id'', 
!s,  and  specifvitii; 
1  whi'ii  an  owMi  r 
of  a  consul  of  the 
ner  in  a  liouse  or 
nited  States,  that 
is  a  citizen  of  the 
or  citizf-n  of  (I II II 
',  ht/  iniii  of  trust, 
lYiixi'l,  or  In  til'' 
ster  theieof  i-:  a 
neans  whereby  nr 

ican  rule  is  much 
this  last  sectimi 
test  in  the  ventuie 

alleged  in  the  oath 
ssel,  which,  within 

:    not   true,   there 

with  her  tackle, 
le  oath  shall  ha\i' 

covered,  with  tiie 
I  was  made." 

pursuant  to  any 
1  or  captureil  aii'l 
,'n  power,  or  whieh 

hail  be  entitled  to 
withstanding  siuli 

property- ;  but  all 


1.0 


(Mr.    Beique's   Argument.) 

"  such  ve.ssel.s  shall  be  taken  and  considered,  to  all  intent-s  and 
"  purposes,  as  foreign  vessels.  Nothing  in  this  section  shall 
"  e.xtend  to  or  be  construed  to  affect  the  person  owning  any  vessel 
"  at  the  time  of  the  seizure  or  capture  of  the  same,  or  his 
"  executor  or  odndnistrator,  or  shall  prevent  .such  owner,  or  his 
"  executor  or  adnjinistrator,  in  case  ho  regain  a  property  in  such 
"  vessel  so  condemned,  liy  purchase  or  otherwise,  from  claiming 
"  or  receiving  a  new  register  for  the  same,  as  he  otherwise  might 
"  have  done." 

"  Sec.  416G. — When  any  vessel  registered  pursuant  to  any 
"  law  of  ihe  United  States,  shall,  while  slie  is  without  the  limits 
"  of  the  United  States,  lie  sold  or  transferred  in  whole  o:'  in  part 
"  to  a  citizen  of  the  United  States,  such  vessel,  on  her  first  arrival 
"  in  the  United  States  thereafter,  shall  be  entitled  to  all  the 
"  privileges  and  benefits  of  a  ves.sel  of  the  United  States  ; 
"  Provided,  that  all  the  requisites  of  law,  in  order  to  the  regi.stry 
"  of  ves.sels,  shall  be  complied  with,  and  a  new  certificate  of 
"  registry  obtained  for  such  vessel  within  three  days  from  the 
"  time  at  which  the  master  or  other  person  having  the  charge  or 
"  command  of  such  vessel  is  re(piired  to  make  his  final  report 
"  upon  her  first  arrival  afterward." 

On  page  fS7  and  SO  of  the  United  States  argument,  it  is 
contended  that  Great  Britain  cannot  claim  on  behalf  of  any 
per-ion  unless  such  person  was  under  its  protection  as  a  citizen, 
with  a  legal  domicile  (nitsidt;  the  United  States  both  at  the  time 
of  the  injury  and  the  presentation  of  the  claim.  It  is  unnecessary 
to  say  that  we  do  not  acquiesce  in  this  contention.  It  .'eems  to 
me  that  the  Convention  shoulil  be  read  as  referring  to  the  time 
of  the  injury,  and  that  if  the  claim  was  then  good  it  has  so 
remained,  notwithstaniliiig  any  change  of  domicile  which  might 
have  subsquently  taken  place. 

On  tlu!  same  page  it  is  suggested  that  Copper,  if  entitled  to 
relief,  should  have  applied  directlj'  to  the  government  of  the 
United  States,  or  to  the  courts  of  his  country  of  domicile,  and 
that  the  position  of  Cireat  Britain,  in  claiming  on  his  behalf,  is 
inconginous,  not  to  say  absurd.  I  have  no  hcNitation  in  sajdng 
that  on  the  assumption  that  Cooper  was  really  the  owner  of  the 
vessels,  which  as  a  British  subject  he  had  the  right  to  register  a.s 
British  ships,  it  would  be  a  rather  startling  propo.sition  that 
Great  Britain  shoidd  not  be  entitled  to  claim  on  his  behalf  for 
the  seizure  and  destruction  by  the  United  States  of  such  vessels 
in  British  territory,  or  on  the  high  seas.  That  we  would  be 
comjielled  to  have  recourse  to  the  tribunals  and  courts  of  the 
United  .States  in  such  cases,  it  seems  to  me,  cannot  be  pretended 
for  an  instant. 

It  is  well  known  that  the  rule  applies  only  in  cases  where  the 
party  resides  it)  a  foreign  country  and  for  acts  which  have  taken 
place  in  that  foreign  countiy.  Of  course,  in  such  cases  we  admit 
that  a  British  subject  residing  in  the  I'nited  States  wouKi  be 
entitled  to  redress  or  jiroteetion  from  (Jreat  Britain  only  if  he 
had  been  deprived  of  the  ordinary'  pr(jtection  aHbrded  to  Atneri- 
can  citizens  under  tin;  municipal  law  of  the  country.  That  this 
doctrine  can  be  apj-lied  to  the  present  case  it  seems  to  me  cannot 
be  pietetided  for  an  instant. 

Oti  pages  !)1  and  92  of  the  United  States  brief  is  the  following  : 

"  The  question  remains  as  to  the  effect  of  part  ownership  by 
"  an  Ameiican  citizen  with  a  Biitish  subject.  If  joint  owners  or 
"  pattneis,  the  whole  claim  must  fail  beyond  question." 

This  somewdiat  confident  proposition  is  attempted  to  be  sup- 
ported liy  the  dictum  of  one  of  the  Secretaries  of  the  United 
States — Secretary  Fish.     His  words  were  these  : — 


]'i 


1 

4,i 

M 


M 


Ijjl'  ^  iPin^iipipvf 


f 


136 

(Mr.    Boique's   Argument.) 

"  Tho  rij,'ht  to  the  protection  of  this  government  may  In- 
"  acquired  by  birtli,  Ity  naturalization,  or  in  some  ca^ics  an(l  for 
"  some  purposes  by  ijomicilo  in  the  United  States.  No  otlicr 
"  mode  occurs  to  ine,  nor  do  I  now  perceive  tlie  autliority  of  itn 
"  officer  of  tiiis  government,  except  in  virtue  of  a  treaty  or  other 
"  positive  legislation,  to  bring  a  new  subject  within   the  sphiM'c 

10  "  of  its  obligations.  Least  of  all  can  1  discern  any  faculty  in  n 
"  private  citizen  to  spread  the  protection  of  his  government  over 
"a  third  person  by  adopting  him  as  a  partner  in  a  cominercini 
"  establishment  in  foreign  ])arts." 

Of  course,  this  has  !)(>  liearing  on  the  proposition  ns  applied 
to  the  present  case.  It  simply  means,  as  I  understand  it,  that  ii 
partnership  in  IJritish  ("olumliia  between  a  British  subject  and 
nil  American  citizen  would  not  spiead  the  prot(^otien  of  tln' 
Unifi'd  Stiites  government  over  a  Bi'itish  partner.  An  authoritv 
to  the  ell'ect  tliat  it  deprived  the  British  subject  of  tho  protection 

20   of  his  own  country  would  be  more  to  the  purpose. 

The  American  counsel  close  tlxdr  argument  in  these  words: — 
"  Whatever  tlit;  rule,  liowrver,  on  this  subject,  the  lluitcil 
"  States  desiit's  to  urge  it  only  as  against  those  persons  who  have 
"  sufi'ered  thcii'  mimes  to  bo  used  liy  American  citizens,  or  havi' 
■'  iieiinitted  the  investments  of  American  citizens,  with  them 
'jointly,  having  the  object  in  view  to  aid  such  citizens  to  violate 
"  the  laws  of  their  countiy  under  cover  of  such  arrangements, 
"  and  have  befouled  their  consciences  in  the  elibrt  to  sustain  tlir 
"  frauds." 

.SO  'rill.'  iccoi-d  discloses,  it  seems  to  me,  that  whatever  was  doin' 

by  way  of  owning  interests  either  in  vessels  or  in  ventures  nf 
vessels  by  Amei'iean  citizens,  was  done  without  any  intention  at 
ail  of  violating  any  of  the  laws  of  the  United  States.  It  wiw 
doni'  in  the  ordinary  course  of  business.  Take  the  case  of  tlii' 
"  Onward  "  and  tin-  ''  l"'avourite,"  us  far  as  Alexander  McljCiin 
was  concerned,  it  was  done  in  ttie  ordinary  course  of  the  partnei- 
ship  which  existed  l)etween  him  and  .Mr.  Spring,  at  a  time  when 
the  vessel  stood  in  the  name  of  Spring's  fatlusr,  who  was  a  ihit- 
ish   subject,  and   at  a   time  when   it  was  not  drc^amed  tjiat  the 

40  United  States  would  assume  any  such  juris(lietion  over  Behring 
Sea  as  they  did  afterwards.  Therefore  it  was  n(!ver  intended  to 
use  the  e.\i)ression  of  my  learned  friends,  to  "  befoul  their  con- 
sciences "  or  to  '•  commit  any  impr()prii!ty,"  and  surely  it  cannut 
lie  pretended,  now  that  the  arbitrators  at  I'aris  have  unanimously 
maintained  and  <leclared  that  the  United  States  were  nil 
entitleii  to  treat  liehring  Sea  as  a  marc  daunuvi,  as  was  ilone,  ainl 
that  it  formed  no  part  of  Alaska  territory  ;  it  cannot  be  pretended 
at  this  staije  of  the  intjuiry  that  any  impropriety  was  done  by 
persons,  whether  they  wen;  American   citizens,  or  whether    they 

oO  were  British  subjects,  in  going  into  Behring  Sua  for  tlie  purpose 
of  sealing. 

These  are  the  only  remarks  1  intei\d  to  ofl'er  to  your 
Honors  on  this  cpi.-stion  of  nationality  and  domicile.  They  will, 
I  am  sure,  be  valual)ly  supported  and  supplemented  by  my  learned 
associ.iti's.  But  it  seems  to  me  that  I  hav(^  so  far  sliown  that  the 
contention  of  the  United  States  rests  principally  on  this  erroin'- 
ous  assumption  that  there  was  a  violation  of  a  municipal  law  ; 
that  section  1  !).■)()  of  the  Revised  Statutes  was  not  only  in  forci- 
quoad  the  present  case,  but  had  an  extra  territorial  etl'ect,  which 

CO  is  not  the  case.  I  thirds  I  have  demonstrated  that  there  was  no 
such  violation  of  any  munici|ial  law,  that  under  the  awaiil, 
which  is  a  di.'chuatory  law,  it  has  now  to  be  ailnutted,  that. 
it  was  open  to  American  citizens  as  well  as  to  British  suli- 
jects  to  go    into  Behring  Sea  for  the  purpo.se  of   sealing.     That 


rninent  may  lii> 
111!  cases  anil  for 
ates.  No  other 
authority  of  nii 
I  treaty  or  other 
ithin  tlie  sphiM'c 
iiiy  faculty  in  a 
;ovornni''nt  over 
in  a  conunorcinl 

sition  as  applioil 
rstand  it,  that  a 
tish  sulijcct  aiiil 
rotcction  of  tlw 
r.  An  authority 
r)f  thi^  piott'ctiou 
sc. 

»  thpso  wonls  : — 
ji!Ct,  tho  Unitcil 
KTsons  wlio  have 
oitizoiis,  or  have 
'.uns.  with  them 
liti/.t'us  to  violalc 
-.]\  arraiiij;enients, 
)rt  to  sustain  tln' 

liatevcr  was  iloiic 
)r  in  ventures  of 
,  ativ  intention  at 
I  States.      It  was 
^   the  case  of  tln' 
lcxantl(!r   Mcljuan 
se  of  the  partner- 
;,  at  a  time  when 
who  was  a  Hrit- 
reanu'd  that  the 
on  over  Uphriiii: 
lever  intended  to 
hefoul  their  con- 
surely  it  cannot: 
ave  unanimously 
■>tates    wei'e    noi 
as  was  done,  and 
iiiot  lie  pretende(l 
etv    was  done  hy 
or  whether    they 
a  for  the  purpo-.e 

)   oH'er    to    your 

icile.     Tiiey  will, 

te<l  l>y  my  learneil 

%v  shown  that  the 

V  o\\  this  erroiii'- 

a  muidcipal   law  ; 

not  only  in  force 

orial  etlect,  whifli 

that  there  was  no 

nder   the  award, 

le  admitted,    tliiii 

s   to   British   sul- 

of   sealinj'.     Tlmt 


60 


187 

(Mr.   Beique's   Argument.) 

even  if  there  had  been  any  .such  municipal  law,  it  could  notatl'ect 
in  any  shape  or  form  Great  Britain,  or  American  citizens  doud- 
ciled  within  her  territory;  that  tiie  high  seas  arc  quoad  tho 
vessels  in  question  to  be  con.sidered  British  territory,  and  when 
tho  United  States  cutters  seized  these  Britisli  vessels  on  the 
high   seas  it  amounted   to   a  seizure  in  British  territory. 

1  have  shown  also  that,  whether  the  United  States  be  per- 
mitted or  not  to  go  behind  the  flag  or  registry,  it  is  limited  to 
matter  of  proof,  to  proof  of  ownership  in  tho  vessel  itself  and 
not  in  its  venture,  that  the  rules  of  international  law  have 
to  he  applied,  and  tiiat  Great  Britain  never  renounced  the  benefit 
of  any  international  law. 

Before  proceeding  further  T  desire  to  express  my  regret  at 
having,  as  I  may  have  to  do,  in  speaking  of  a  great  nation  like 
the  United  States,  to  use  words  which  in  themselves  may  apjiear 
offensive.  My  justitication  is  that  I  sincerely  iielievo  tliat  a 
propiM'  ]iresontation  of  the  claims  which  have  been  entrusted  to 
my  learned  associates  and  myself  d(!iiiaiids  it.  Let  me  say, 
however,  once  for  all,  tliat  any  expression  I  may  make  use  of  is 
intended  to  apply  in  its  strict  legal  nu'aning  and  to  refer  more 
to  individual  oHicials  of  the  United  States  than  to  the  United 
States  themselves.  But  whether  the  acts  or  omissions  of  those 
ofHcials  were  deliberately  preconceivec]  or  merely  the  I'esult  of 
gross  errors  or  of  negligence,  the  United  States  are  eiiually 
responsible. 

In  taking  up  the  elassilieation  of  items  of  damages  it  will  bo 
hnnlly  neces-^ury  for  me  to  I'efer  at  any  length  to  the  facts  whicli 
hnve  been  suiiinuirized  in  our  written  argument.  I  shall  have, 
hew  ever,  to  refer  specially  to  tho  ground  of  defence  of  tho 
boiled  States  as  endiodied  in  their  pleadings  and  which  rests  on 
the  contention  that  in  making  the  seizure,  etc.,  they  acted  in 
good  faith  an<l  imder  an  honest,  though  mistaken  belief  that 
they  were  exercising  a  right. 

'{'he  ( 'omndssioner  on  the  part  of  the  United  States: — I 
cannot  sit  here  to  hear  that  pioposition  contravened. 

Mr.  Bei(iue  : — The  Tiefenco  is  tliore  for  what  it  may  be  worth 
anil  1  think  it  was  attempted  io  supptu't  it  in  the  American  brief, 
and  therefore  it  seems  to  me  that  it  is  iii}-  duty  to  answer  it  for 
the  inirposo  of  showing  that  it  is  a  ca.se  where  aggravated 
damages  should  be  awarilijd. 

The  (,'onMid.ssioner  on  the  part  of  tho  United  States:— I 
caiuiot  sit  here  to  hear  an  argument  that  the  Uidted  States  has 
not  proceeded  in  good  faith. 

Mr.  Dickinson  : — The  answer  in  our  opinion  is  so  complete 
that  1  would  prefer  to  answer  the  charge  upon  the  Record  in  the 
oral  argument,  and  if  your  Honor  will  permit  me  to  suggest  I 
would  prefer  that  .Mr.  Beique  be  allowed  to  continue. 

'J'he  t  'onnni.ssioner  on  the  part  of  the  United  States  : — T  cannot 
sit  here  to  hear  that  either  of  the.se  great  nations,  (!ree.t  Ihitain 
01  the  United  States,  have  not  proceeded  in  good  faith.  1  tlo 
nfit  see  that  the  Convention  raises  any  question  of  that  character. 
Of  course  I  see  that  your  case  fairly  raises  the  questions  whether 
the  otheers  of  the  United  States  used  that  care  which  they 
should  have  used  in  enforcing  tho  law  as  they  understood  it. 

.Mr.  lieique  :— Well,  perhaps  I  might  qualify  the  expression. 
My  remark-  ^'i'P'y  to  tho  acts  of  tho  officials  of  tho  United 
States  (ioNciiniieut,  but,  of  course,  the  Government  is  responsible 
for  the  acts  of  its  own  officials. 

The  Uommi.ssioner  on  the  part  of  the  United  States :— That 
is  another  question.  You  may,  of  course,  argue  the  fact.s  fully 
as  to  what  occurred  in  Behring  Sea  and  at  Sitka. 


Km 


^^ 


I '  ™^'""^^"p"i"lifpppp' 


138 


1 


(Mr.    Boiqiie's   Argument.) 

Mr.  BiM([Ut' : — I  sliall  linvu  occaNion  to  rct'i-r  to  Mr.  CarttTs 
aiji;iiim'iit  at  I'aris  ami  to  liis  propositions  as  written  down  I'l.r 
tlu'  purpose  of  clearness  ami  which  he  aunouneeil  on  liehalf  nf 
iht?  United  States.  It  will  app(-ar  from  these  |)ropositions  thiit 
hu  declared  in  exjtress  terms  that  Ik*  was  not  there  and  did  U'l 
desire  to  defend  the  nrrtjst  of  any  of  llie  masters  and  crew. 

10  '{"111*  Commissioner  on  tlie  part  of  the   United   States: — Tliiii 

is  another  matter,  'i'iie  proposition  as  put  hy  Mr.  Peters  w.is 
entiicly  fair — tiiat  the  Unittid  States  wen;  endeavorinj;;  to  sii|i- 
press  till!  huntiti",' of  fur  seals  in  iu'hrinjj  Sea;  hut  hu  did  ridt 
su;;j,'est  that  they  were  not  proceedinj^  within  what  they  thoULflil 
was  their  right,  aricl  in  i»ooi|  faith. 

Mr.  r>ei(|ue  :  I  do  not  .'•ay  that  the  otiieials  for  the  tiih^ 
lieiiij;  wer(!  enouncinj^  a  pioposition  in  whicli  they  did  imi, 
heliuve,  hut  I  say  that  they  were  enouncin;,'  a  proposition  which 
was  contrary  to  the  policy  of  the   United  States,  contrary  to  tlir 

20  policj'  the  United  States  had  followed  for  years  and  years,  an! 
coutiary  to  the  very  opinion  adopted  hy  previous  Secretaries  dl' 
Stale  and  hy  previous  ollieials  of  the  Government.  When  \vr 
have  to  (h>al  witii  the  (|uestion  of  damaj,'es  it  seems  to  me  that  it 
hectimes  material  to  exannne  the  facts,  so  that  we  can  see  hnw 
the  law  should  he  a|)|)lied.  It  setwns  to  mo  that  wo  are  entitliij 
to  contend,  as  it  was  contended  hy  Mr  Peters  in  his  ahK; 
aij,niment,  that  it  is  a  case  where  ai,'gravated  damages  should  In: 
giaiited,  ami  that  is  the  only  purpose  of  my  argument. 

I  take  the  written  answer  of  the  United  States,  and  in  thoM! 

nt)   answers  to  the  claims  they  alleged  : — 

"  iiiit  it  is  averied  on  the  part  of  the  United  States  that  tli  ■ 
"  said  seizure  was  made  in  good  faith  hy  the  oHlcers  of  tlu' 
■'  United  States  within  the  line  of  their  dot}',  under  tin;  authority 
"ami  mandate  of  the  nuinicipal  laws  of  the  Uuitecl  States,  mii'I 
"such  seizure  was  adopted  in  good  faith  hy  tin;  (Jovernment  (if 
"  the  United  States  as  an  act  to  restrain  violation  of  the  saiij 
•'  statute." 

We  join  issue  on  that  paragraph,  which  is  fouml  in  everyone 
of    the    answers    of    the    United   States.     Of  coiu'se   I  am   veiy 

40  an.xious  to»  avoid  ami  have  no  desire  to  use  any  oHeiisivd 
language,  and  I  am  sure  there  is  no  occasion  for  it,  hut  it  is 
i."'mnheiit  upon  me,  and  I  would  not  ho  discharging  my  duty  if 
I  Were  not  showing  the  facts  such  as  tliey  are  for  tlo  purpose  nf 
npjilyiug  the  law  which,  it  soiuns  to  me,  should  govern  the  cum'. 
'I'ake  the  seizures  of  l.S8(i.  They  were  at  the  time  justili<  .1 
on  one  ground  and  one  only,  viz.,  that  the  United  States  had 
exclusive  jurisdiction  over  Heliring  Sea,  atid  had  acipiired  that 
right  from  Russia.  It  was  on  that  ground  alone  that  the  HImI 
was    hased.     In    the    lihid    there    was   no  attempt   to  raise  any 

.')()  (|Uestion  of  protection  of  or  property  in  fur  seals.  The  onl\ 
allegation  made  in  the  liliid  was  the  violation  of  Section  l!)."iii, 
which  was  thi'U  used  for  tlu?  pur[iose  of  nuiking  Heliring  Sea  ii 
TJKtr*;  (idiisunc.  Afterwards,  as  was  shown  hy  my  loarncil 
associate,  they  hrought  forward  othiu-  arguments  from  time  to 
time,  namely,  that  they  had  exclusive  jurisiliclion  over  Hehi'liii; 
Sea  for  100  miles  from  the  coast  horderiiig  on  that  sea.  and 
finally  that  they  had  a  right  of  propeity  in  the  seals,  hut  thou 
arguments  not  heing  in  their  minds  at  the  time  of  the  sei/.uri";, 
should  not  he  taken  into  account  for  the  purpose'  of  deciding  on 

(JO  the  result  or  the  rights  (jf  lirit'^!;  suhjects  arising  from  such 
seizures. 

^'oiir  Honors  are  familiar  with  the  fact  that  the  only  seriiJiis 
attempt  to  avoid  the  eli'ect  of  or  negotiations  for  the  treaties  nf 
US24  ami  l.S2.')  was  that  the  words  "  Pacific  Ocean  "  in  the  treatv 


139 


r  to  Mr.  CiirtiMs 
i'litti'ii  down  fdi' 
iicimI  on  lifliiilf  (if 
|)rop()siti()nH  tlmt 
tluru  and  did  n^  I 
•s  and  crow. 
m1  StiitL's:— TliMi 
>•  Mr.  IV^ti'iN  w.is 
It'iivoriiij,'  to  H\\\}- 
;  but  lie  did  ndt 
'liat  tlit'y  thoui,'lii 

Ills  for  till'  tiihi' 
cli  tlmy  did  nnt, 
proposition  wliicli 
's,  contniry  to  tin' 
rs  and  yeais,  ini'l 
:)iis  Si'cn'taiiL's  nl' 
mt'nt.  Wiicn  \vi' 
•cins  to  ino  tliat  it 
\vp  can  .see  Imw 
it  wo  art!  I'lititlnl 
'I'tcr.s  in  Ills  alilc: 
laniagos  should  iiu 
l^niiiiL'nt. 
ati's,  and  in  tlui^o 

d   States  that  tlif 

IC      otlicLMS     of      till' 

tidi.M'  till!  authority 
'nitcd  Stati'-i,  mul 
lO  Oovi'rniiient  of 
ation  of  the  s;iiil 

'ound  in  evciT  iiiio 
cour.si!  I  am  vciy 
ise    any   oHeiisivt! 

for  it,  hut  it  is 
iri,'in^  my  duty  if 
for  tl.o  pur|)os('  iif 
1  i^ovcrn  the  cnsi.'. 
the  time  jiistitiril 
Jnittid  States  liiiil 
lad  acipiircd  tliut 
)ni!  that  thi!  lilii'l 
'iiipt  til  raise  liny 
•  si'als.     Till!  only 

of  Section   ll.l.'iii. 

nrr  Hehriiid  Sea  u 

liy    my    learni'il 

nts  from   time  to 

tion  over  Mehriiii,' 

on  that  .sea,  ami 
e  .seals,  hut  thi'-o 
111!  of  the  seizuri'<, 
isi;  of  deeiilinif  on 
irisinj,'    from  sucli 

it  the  only  serious 
for  the  treaties  of 
can  "  in  the  treatv 


10 


(Mr.    IJeiipiuH   Arfjument.) 

did  not  includi!  Belirin;,'  Sea.  Flut  this  was  not  attempted  until 
IHDO.  As  early  as  Afiril,  \SH7,  the  British  Anihassadnr  eom- 
miinicated  a  very  aide  and  stronfj  despatch  of  Lord  Salishury, 
dated  Septemher  10,  IH^S?,  which  is  printed  on  pa;,'e  82  of  tho 
Record,  in  which  he  took  very  strong  ohjection  to  the  courso 
that  had  lieen  followed,  lirinj,'inj;  to  the  notice  of  the  otKcials  of 
the  (Jovernmeiit  of  the  United  States  that  the  proceei!ini,'s  wero 
liiiM'il  on  Section  1!)')(1,  ti'eatin^  nelirin;f  Sea  as  a  iiKiri:  clintmtvi 
111  (i  protesting'  aj,'aiiist  a  conttjiition  of  that  kind.  Ho  called 
icir  attention  to  the  position  they  had  previously  taken  as 
.•ii;ainst  iiussia,  and  what  was  the  answer  !  There  was  no 
answer  ^'iven  at  all,  and  the  ((iiestion  was  approached  over  two 
years  afterwanls  h}-  Mr.  Ulaine,  who  then,  in  I.SDO,  disavowed 
that  Ltround  for  the  pur]iose  of  taking;  another  ijround.  It  seems 
to  me  that  we  are  entitled  to  ask  your  Honors  to  look  at  this 
(|iiestion  somewhat  as  if  it  was  hutwei  n  private  liti;,'ants  who 
iiiif,'lit  have  been  of  the  host  faith  pn  ible  so  far  as  they  wero 
ciitici'iiied,  hut  who  would  neverthele.ss  be  responsible  for  the 
acts  of  their  emplo)  es,  if  those  em]iloyes  acted  neoliuently  or 
inili-^crcetly.  if  the  employes  wi'ie  j,'uilty  of  j^ross  ne^li^'ence, 
whether  the  principals  weru  in  jjooil  faith  or  not  dues  not 
seriously  all'ect  the  question.  It  would  nevertheless  be  a  case 
for  aj,'o;ravated  daiiiae;es. 

Here  we  have  the  case  of  an  ofliciiil  of  the  [Jnited  States  flov- 
ernment  takinj^  a  position  which  he  afterwards  disavows,  which 
is  contrary  to  all  international  law,  and  which  could  not  bo 
defended  by  .Mr.  iilaine.  Therefore,  it  seems  to  nie,  that  we  are 
entitled  to  tho  benefit  of  those  facts. 

I  niiyht  also  urj,'e  this  j,'round,  that  after  the  proti'sts  were 
made  in  1.S.S7,  Mr.  Hayard  of  his  own  motion,  without  beini( 
asked  by  the  IJritish  (iovernment,  announced  that  tho  President 
had  j,'iven  orders  to  liberate  the  vessels.  Jt  sciems  to  nie  that, 
under  the  circumstances,  it  amounti'd  i  an  implied  admission 
that  at  least  the  seizures  were  not  wuii.inted  and  that  he  so 
considered  the  matter. 

In  that  connection  I  would  like  to  refer  jour  honors  to  the 
4th  volume  of  the  American  reprint,  pajfo  111,  where  iij  pears  a 
letter  from  Secretary  Boutwell  bearing  on  that  question  is  early 
as  1S72.  •    He  says  :— 

'  I  do  not  see  that  the  Uniteil  States  woulil  have  the  jiiris- 
"  diction  or  ])o\ver  to  drive  ott'  parties  going  up  there  for  that 
"  purpose  (to  take  fur  seals)  unless  the}'  make  such  attempt 
"  within  a  marine  league  of  tho  shore." 

Such  was  the  position  taken  b}'  Mr.  Adams  and  the  jiosition 
taken  throughout  by  the  United  States.  Such  was  the 
position  taken  by  Secretai'y  Boutwell,  and  such  was  really  the 
position  taken  by  Mr.  Blaine  in  l.S'K),  except  that  he  raised  the 
other  question  that  the  United  States  were  entitled  to  a  right 
of  protection,  that  they  had  a  right  of  propeity  in  fur  seals,  and 
also  the  question  as  to  whether  Behring  Sea  was  comprised  in 
the  Pacific  t)cean. 

Then  1  wish  to  refer  to  volume  \'l  of  the  American  lleprint, 
to  the  argument  of  Mr.  Carter  on  page  25G.  I  find  in  the 
pro|(ositions  which  he  had  drawn  up  as  as.serted  bj-  the  United 
States  (loveriuiient  the  following  : — 

"  Fifteenth.  In  respect  to  the  seizures  actually  made  and 
"  decrees  of  condemnation  thereon,  the  United  States  perceives 
"  no  [lai'ticular  in  which  the}-  are  irregular,  unjust,  or  not  ilefen- 
"  sible  as  an  exercise  of  the  right  of  necessary  self-defense.  It 
"  ilors  not  defend  any  sentence  of  fine  and  imprisonment 
"  imiwued.  upon  any  citizens  of  other  nations  for  engmjivg  in 


u 


m 


ii 


h 


i.'4 


'■IV 


m 


;  1  ,. ' 

la 


[■I 


mmmm 


I   :f: 


140 

(Mr.   Mt'ii|iio'H  Ar^'uiiifnl.) 

"  jtehigir  xcdiinii;  tmt  insists  tlmt  iiiiy  inviiliiiity  with  wiiicl 
"  siu'ii  si^iiti'iiee  limy  lie  iitl'i'ctiMl.  lim  no  tfiniciK;}'  to  impair  tlir 
"  viiiiclity  of  II  (•iitiilcinimiion  otlu'rwisf  viiliii." 

Ilt'i'c  is  II  fair  iiiliiiissiori  on  tlio  |mrt   n\'  tlio  (ioveniiiiciit  ut' 

till"  I'liitiui  Stiitfs  ill  tliis  very  I'oMtiovcrsy  tliat  tiii-sc  iirrcsts  iiiiil 

iiii)>risoniiii'iit  of  tiii-  iiiustcrs,  niiitcs  uiul  i-rcws  wrrc  indcfi'iisilili', 

10  iiiiil  tliiit  tlu'if  is  no  iittriniit  on  tlic  piut  of  tlic  Unitcil  .Stiitcs  to 

(il'fclll!    tiu'lll. 

'I'll!' ( 'oiiimissioiit'r  cm   tin-   jmrt    of  lii((    I'liitcd   States; — Do 

till"  counsel  for  tlic   I'niti'ii  States  lioiij    otlierwise  here  ' 

Mr.  r>i'iniu':  We  iiavc  not  hearil  tlieiii  yet  in  tlieir  oral 
ar^imient,  Imt  1  thinl<  tiiey  iiave  tai<en  anotiier  position.  Thex- 
have  clearly  taken  thronj.'li  their  arj,'iiiiieiit  the  position  that  ii 
is  not  a  easo  where  any  (laiiiaj,'es,  except  the  mere  value  of  the 
ves-»l  anil  possilily  interest,  can  he  awariled,  It  seems  to  ne 
that  this  ciiiiteiiiion  i-  in  coiitlict  witii  the  ailm'ssions  contaiiiril 
-0   in  this  proposition  of   Mr.  Carter. 

Taking,',  however,  the  most  lenif'iit  view  of  the  suhjeet  tiiat 
it  is  possilile  to  take,  the  Uiiiti'd  States  could  not  iaithavi-  known 
that  tlieir  elaiia  was  at  host  a  very  donljtfiil  claim,  and  that 
(ireat  Uritain  woiihl  not  in  all  proliahility  admit  its  corrt'ctlles^. 
In  \  iew    of  the  prc'vious  history  of  tln'    >,iili)ect,  the  least    that 

could   have  heell    expected  of    the   I'lliteil    Stated  was  that    I'efor.' 

as-.ertiiiL;  such  claims,  asserting  them  as  the  transferees  of  Kii>-<i)i, 
and  ahove  ull  asserting,'  them  hy  force  in  the  mannrr  adopted, 
the  I'nited    Stall's  siioulii  have  notilieil  (Ireal    ISritain  nf  thrii' 

•5"   intention  and  invited  a  iliscnssion  of  the  iiucstion. 

The  Commissioner  on  the  part  of  the  United  Statics; -Mr. 
IJeiipie,  1  cannot  he;ir  that.  Sii.  That  is  a  ipiestion  which  con- 
cerns the  nation  herself  ainl  not  thi.i  trihuiiial.  As  far  as  I  am 
concerned,  1  clo  not  propose  to  consider  it. 

Mr.  lieiipie  :  (If  course,  if  we  are  not  to  he  heard  on  what  wr 
deem  to  he  a  material  part  of  the  case,  I  will  liave  to  sit  iluwii, 
hut  witl.i  all  defercnct^  1  say  that  I  have  shown  that  the  issue  is 
sjiecially  raised  l.y  the  written  pleiuiiiii^s  <if  the  counsel  for  the 
I'liited  Stales,  and  I  have  avoided,  and  vim'V  j^'iiardecUy    avoided 

■10  iisiiii;  any  ulleii^ive  terms.  It  seems  to  mi'  in  statiiij,'  what  1  do 
now  state,  1  am  perfectly  vTithiii  my  ri;4ht  and  am  doin;;  my 
diit}'.  I  am  not  here  to  claim  rights,  hut  I  nm  here  to  nischar^" 
duties,  and  1  would  feci  innvorthy  of  my  position  at  the  15ai'  ii 
I  should  coma  iicro  and  ari,'ue  a  case  of  this  nature  without 
puttiiin'  the  facts  such  as  I  consiih'r  them  to  he,  from  the  record, 
hefore  your  honor.  1  sa\'  ai,'ain,  that  1  am  referriiiLj  to  acts  of 
otiicials  of  the  tiovernment  of  tin.'  I'nited  States,  acts  that  were 
done  iiy  the  Secretary  of  State  of  the  United  States  or  pos- 
silily the  Under  Secretary.      .Mr.  I'myard  was  then  the  Sccretaiy 

•"iO  of  State  of  the  United  States,  and  I  have  no  doiilit  at 
all  iti  my  mind,  ih.ii  Mr.  linyard  entirely  disa^jreeii  from  tliosi' 
acts.  1  have  no  douht  that  he  himself  helieved  tiiat  the  Uniteil 
States  liad  i^'oiic  too  far.  The  a.ssumption  of  extra  territorial 
jiirisdietioii  liail  heiii  made,  and  whether  it  was  made  hy  the 
Uniler-Seerelary  of  State  or  ly  any  other  ollicial  of  the 
"government,  it  was  made  nevertlieless,  and  what  was  more  still 
sei;ious  the  Seizures  of  i'.ritish  vesaels  were  made  in  conscfpicnri'. 
The  Commissioner  on  ihe  parted  tJie  United  States :  Have 
you  any  authoritie.s  to  show   tiiat  the  U.iited   States  was  hound 

'•0  (,()  j^ive  notice  hefore  makiiiLj  thesi' seizures  '  So  far  as  J  know 
of  the  method  of  proceediiiL,'  hy  either  t,'"^'ernment,  -  the 
United  States  or  (ireat  IJritaiii,  notice  has  not  heen 
i^'iven.  Have  you  any  authorities  to  show  that  the  United 
States  was  hound  to  give  notice  hefore  making  these  seizures:' 


I 


141 


lity  witli  wliii'l 
y  to  iiiip.iir  tlir 

(ii)vernin«nt  nf 

tllcsc  (ll'I'CMts  llMii 

•rif  indclViiMilili  . 
UiiiU'il  Htiitus  tu 

lc<l   States  :~|),. 

I!  luTf  ? 

ft  in  tlit'ir  orjil 
IKisitioii,  Tlicy 
position  tliiit  ii 
;VL'  valui'  of  tile 

It  SCl'lllS  to  Illr 
isioiis    ColltlliMnl 

tiio  sul)jef-t  tii.'ii 
Init  liiivc  known 
elfiini,  imil  tliiU 
t  its  correct ni'ss. 
t,  tlie  least  tlmt 
WHS  tlmt  I'l't'oT'' 
ifei'iM's  ol'  Uu^<ii^, 
inaiiMfr  (uloptnl, 
lii'itain  of  tlicii 
II. 

I'll    States:— Mr. 
stiori  wliic'li  con- 
As  far  us  I  uiji 

janl  on  wliat  wt 
lave  to  sit  liown. 
that  tile  issue  is 

eo\iiis(i  for  tile 
mledly  avoideil 
tatin^  what  I  dn 
il  am  iloini;  niy 
lere  to  riiseliari;' 
ion  at  the  liar  ii 
nature  without 
from  the  rccorij, 
I'rrinij  to  acts  of 
s,  acts  that  were 
i  States  or  pos- 
en  the  Secretni  y 
ve  IK)  (loulit  at 
reeii  from  those 
tiiut  the  Fniteil 
extra  territorial 
as  made  hy  the 

ollieial  of  the 
it  was  more  still 
•  in  consef|Uenre. 
1  States:  Have 
tates  was  liound 
o  far  as  J  know 
)vtriiment, -  tin' 
has  not  heen 
lint  the  Unitcij 
liese  seizures:' 


(Mr.  Bei(|iie'H  ,\r;;uinent.) 

Mr.   Iteiipie  :     I  am  not  ready   to  ;,'iv(!  any  authorities  going 

to  that  extent. 

The  ConimisMioner  on  the  part  of  tin'   United   States:     If  it 
was  11  nieri'  act  of  unj,'rHcioirsness  on    the    jiart'of  the   I'nitml 

to  listel\  to    coliiments   of   that' 


10 


m 


Stales,  why  should    we   sit  iiere 
character  :' 

.Mr.  I>ei((ue:  -It  is  with  re;;aril  to  the  (pU'stion  of  danui;,'e.s, 
and  1  am  f;oin^'  to  show  that  there  wai  a  deiiiaml  made  liy 
(Jreat  Britain  as  to  whether  tiie  rnited  States  luid  the  intention 
of  eoiitiuuiii;,'  thesi'  s'i/ures,  ami  in  answer  to  that  the  United 
Stales  aiiniiuneed  that  the  matter  was  imder  consideration  ;  they 
virtually  said  tlmt  they  would  comiiiunieate  their  decision,  hut 
insli'ad'of  commimie  itiui,'  their  decision  they  proo'eded  to  make 
further  sei/.uii's.  .\;^.iin,  su|)p'ise  that  these  facts  nrosi'  in  a 
cas"  lietween  private  liti;^iints  -and  it  seems  to  me  from  a  Icffal 
point  of  view,  we  are  entitled  to  deal  with  the  matter 
as  if  the  facts  had  taken  placu  hetween  private  liti^ants- 
wouM  I  not  lie  entitled  to  refer  to  these  facts,  ami  woidd  not  the 
manner  in  which  the  whole  thinjj;  occurred  and  the  history  of 
the  u  hole  transaction  he  material  on  the  (piestion  of  dama;,'e.s  ? 
The  t'onuuisnioner  on  the  part  of  the  United  States: — 1 
make  no  issue  with  you  as  to  the  facts  as  they  appear  on  tlie 
I  Record,  or  a^  to  any  stateuu'iits  of  law  wdiich  you  can  jiroduce 
J  whowiuf^  that  tireat  Britain  remonstrated  with  the  (hiited 
States  for  nnikiu','  these  seizures,  or  that  the  United  Staten 
violated  international  law.  I  do  not  (piestion  your  ri<,dit  to 
show  that,  liut  you  cannot  expect  me  to  sit  here  and  hear  coun- 
atd  discuss  the  graciousness  or  uni^'rHciousness  of  the  acts  of 
either  of  these  ^'rcat  nations,  uidessthe  llecord  calls  for  it.  I  am 
perfectly  well  awaro  tint  in  all  these  cases,  so  far  as  lioth  gov- 
ernments are  concerned,  and  so  far  as  other  governments  are 
concerned,  that  the  conditions  are  fre(piently  s\ich  as  to  give  rise 
to  suggestions  of  that  character,  hut  it  does  not  seem  to  me  that 
this  is  the  place  for  counsel  to  nnike  such  ohscrvitions. 

The  t'ommissioner  on  the  part  of  (Jreat  Britain  : — Perhaps  I 

rnay  be  pardoned  for  saying  a  word.      I  have  been  appointed  to 

<li^  act,  but  once  being  ap[)ointed,  1  am  a  Judge  competent,  I  think, 

4.   to  pass  upon  the  conduct  of  (iroat  Jiritain,  provided  her  conduct 

'i\   were  properly  in  issue  in  tlio  case.     Whether  it  is  .so  or  not  would 

[•[     of  course  be  a  matter  to  bo  decided  oidy  after  hearing  counsel. 

■6         Perhaps  Mr.  Heiipie,  you  will  allow  me  to  a.sk  :  wduither  when 

Great  Hritain  consented  to  the  tirst  reference  whereby  the  (pies- 

tion.s  of  right   went  to  the    Paris  Trihunial,  she  did  n(jt  thereby 

impliedly  admit  that  the  claims  of  the  United  States  were  made 

in  good    faith,  for  otluirwiso  the    parties    would    scarcely  have 

submitted  to  arbitrate  at  all.     Of  course   this  goes  to   nogatii'e 

your  argument  rather  than  to  prevent  you  from  making  it. 

Mr.   Beique : — Of  course   I   am  bearing   that    distinction    in 

i&  mind  and  I  have  pointed  out  the  distinction.     To   this   extent  I 

caiuiot  but  agi'ce  with    wdiat  your  Honor  has  stated  ;  I  cannot 

imagine  that  if  (Jreat  Britain  had  believed  that  the  United  States 

as  a  nation  was  acting  in  bad  faith,  that  the  matter  would  hare 

been  arbitrated  in  the  amicable  way  it  was.     But  I  cannot  see 

that  the  reference  to  arbitration  was  in  itself  an  admi.ssion  that 

the  officials  of  the  United  States  had  not  committed  acts  which 

might  call  for  aggravated  danuigcs.    For  instance,  I  take  the  order 

that    was    issued    by    Mr.    Garland,    the    Attorney    General, 

ordering  the   discharge    of  some   of    the,se   vessels.     Here   are 

officials    of    the    United     States    government    at    Sitka   who 

take  no  heed  of  this   order.     There  may  appear  on  the    record 

an    excuse    for    the    refusal    to    act    upon    the    telegram   of 


Mi 
I  -I 

ir 

f'l 

'I 

i; 

,ii'  < 
-ill 


I. 


Mj 


n 


p 


'  ■  a 


I 


142 

(llr.   Iiciiiuo's   Arij;iini('iit.) 

tlic  Uiiiti'il  States  Atti>i-m'y-<  ii'iirral.  'riic  "lliciiils  a|ipiir(>ntly 
lii'lifvcil  that  it  WHS  H  l'oi';^i'i|  t('li';;ram  ;  Imt  sMp]ii)«(('  for  tlu'  i)iir^ 
OOM'  of  my  .■u'j^iiint'iit  that  tln-y  liail  no  i'X(  iisi'  ol"  that  kim! 
iSiipposc  tliat  in  tii'  i'aci'  of  that  ti'li'L;rani,  the  ;j;onuin('iifss  of 
which  was  doiiliti'il,  they  ilisii'^arilcil  the  instrnctions,  and  not- 
witli.staniiint;  tlic    iiistriictions  pi-occciji'd  to  oondenin  tlie    vessel 

10  and  to  apin'opriati'  the  vessel  as  the  property  of  the  Unite  I 
States;  while  the  ^j^ood  faith  of  the  (lovernineiit  of  the  llniti'd 
States  would  iui  fully  admitteil,  nevertheless  their  resjionsihiliiy 
would  arise  heeause  of  tin;  aets  of  their  ollieials.  (If  course, 
your  Honors,  if  I  use  the  expressicdi  "  had  faith,"  1  tilwaj'suse  it- 
iit  its  strict  lej^al  iueiinin<^,  and  I  d.)  not  want  it  to  lie  interpn-ted 
in  any  other  sense. 

Tlie  (.'oinniissioner  on  the  part  of  the  ITnited  States: — ^Itliitik 
you,  perhaps,  luisunilerstami  nie,  .Mr.  Heiipie.  So  far  as  tiie 
proserd  propositions  are  concerneil  they  are  raised  hy  the  Record 

20  and  there  is  no  question  aiiout  your  iiein;^  allowed  to  ^'o 
into  them.  My  nnnd  was  directed  to  another  matter. 
There  is  no  doubt,  you  may  ari,'ue,  that  these  seizures 
were  "Dade  witliout  notice  to  the  liritish  Governnu^nt.  Now. 
have  J  on  any  le^al  authorities  showing  that  as  between  nations, 
the  United  States  t,'overinuent  was  hound  to  j^ive  notice  before 
making  seizures  /  If  you  have  such  authorities  it  is  lei^itituate 
for  you  to  to  produce  them.  What  I  oiijecteil  to  was  your 
sui,'i.;estion,  not  supported  by  authorities,  reilectinj;  upon  the 
Ciovernnient    of    either     nation — for    1    am    sworn    to    stand 

IM)  indiU'ereiit  as  lietween  these  two  <^overnments.  In  this  case 
all  sujj!,'pstions  of  that  kind,  one  way  or  the  otlier,  are  not 
necessary  mdess  tiie  Record  raises  them.  Tl-ere  is  no  doubt 
that  if  you  can  cite  any  authority,  your  ari^ument  would 
be  perfectly  legitimate  U))on  the  point.  I  do  not  think  that  any 
one  would  deny  you  the  rij;ht  to  make  the  proposition  which  you 
last  nubtaitted. 

Mr.  Uei(|Ue:  -I  thitd<,  your  Honor,  that  1  shoidd  not  be 
called  upon  to  }jive  authorities  on  this  point.  Of  course,  one  is 
not  always  .nble  to  find   authorities    for  all   projiositions  that  he 

40   feels  warranted  in  ailvnncii\j;.      lint  1  dare  say  that  your  Honor 

will  aj;ree  with  me,  that  no  aiithoiity   should   1 x[)ee(ed    fi-oni 

ine  on  the  (juestion  that  I  am  ;;oin;.;  to  lay  before  your  Honor. 
My  ar;fnmeut  is  Ibis:  that  the.se  cases  should  be  treateil  in 
several  res])ects  as  if  they  wei'i- cases  between  private  liti;;aiits 
— and  I  am  not  aware  that  the  law  of  nations  ditiers  in  that 
coiniection.  from  the  municipal  law  of  ,'ill  civilized  eduntries 
Now.  in  matters  between  ])ri\ate  litii,rants,  wlien  a  doubtful 
ri;;lit  is  attemjited  to  be  asserted,  and  when  it  is  jittempted  ti) 
n.ssert  that  li^ht  in  a  violent    manner,    can   it   l>e  deiiieil  that  it 

50  wouli]  be  a  matter  of  very  serious  a;,'fjravation,  if  the  private 
party  a.sserted  that  i'i;;ht  violently,  when  it  was  perfi'ctly  open 
foi-  him  to  ;,M\i'  notice  that  he  intended  to  iissert  it,  and  po.ssibly 
lr)y  ;ji\in;,^  such  notice  he  nn;;ht  have  iivoidecl  the  necessity  of  the 
uitlictioii  of  such  hardships  .as  appe.ii'  on  the  Record,  and  which 
.show  tb.'lt  cert.iin  persons  weri' sent  jidrifl  on  the  open  sea  some 
l.">()0  miles  from  their  residences.  I  say  that  any  court  of  jus 
tice,  without  my  cit  in;;  any  authority  wbatexcr,  would  j)rf)nouiu!o 
a;;ainst  a  private  liti;;ant.  who  liad  asserted  his  ri^^hts  or  sup- 
[Msed  ri;,fhts  in  such  a  \  iolent  mn'iner,  if  he  had  done  so  nnwar 
rant.ibly;  and  1  say  that  the  fact  he  had  not  ;;iven  notice  w<aild 
be  .1  matter  of  very  serious  a;;;;ravation  of  the  damajjes.  It  is 
not  incumbent  upon  me  to  cite  authorities,  because  the  rule  1 
have  been  ri'ferrinjj  to,  is  the  rule  of  couimon  law  as  well  in 
the  Unit('<l  States   as   in  (Ireat    Rritaiii,    and    in  every  civili/.e(l 


♦JO 


J4:{ 


'iais  nppiiroitly 
ose  for  tlif  jiur 
ii'  of  tliiit  kiiiil 
j^i'imiiiciit's.s  of 
ictiotis,  mill  iiiit 
t'inii  t\\{'  vessi'l 
(tf  till'    Uiiitiii 

it   of     tlu'     IJllitlMl 

ir  ri'.s|ioiisil)ilii y 

lis.     Of    coiirso. 

I  fiiways  list!  it 

0  1)1'  iiitcrpri'tt'il 

States  : — ^I  til  ink 
So  far  as  tlii' 
il  liy  the  Ri'cord 

allowed  to  '^u 
iiotlier     matter. 

tiiesi!    seizures 

iM'llllU'llt.       Now, 

letweeii  nations, 
ve  notice  before 
s  it  is  le;;itiiiiati' 
eil  to  was  your 
L'tiii;^  iijion  tile 
worn  to  stuiiil 
<.  Ill  this  ease 
'  other,  are  not 
re  is  no  doiiht 
rf^uiiieiit  wouM 
t  tliiiiU  that  any 
sition  which  yon 

should  not  lie 
Of  course,  one  is 
iiositions  that  he 
hat  your  Honor 
i>  expected  fl'oiii 
ore  your   Honor. 

1  he  treati'd  in 
private  liti;iants 
IS  (litlers  ill  that 
ilized  countrieH. 
ilieli    a   doillitful 

is  attempted  to 
)e  denied  that  it 
I,  if  the  private 
,s  perfectly  o])eii 
t  it,  and  possihly 
(•necessity  of  the 
ecord,  anil  which 
he  ojien  sea  some 
iiiy  court  of  jus 
would  pronounce 
lis  rii^hts  or  sup 

I  done  ,s()  \niwar- 
veii  notice  would 

dainaf^eH.  It  is 
•cauHc  the  rule  I 
law    as    well    in 

II  every  civili/ed 


10 


(Mr.  Beii|Ue'.s  .'Vr^'ument.) 

couiitrv.  It  will  he  iiicumhent  niioii  my  leiirned  friend,  the 
counse'lfor  the  United  States,  to  show  any  international  law, 
dirterinj:  from  that  rule,  an  interiiMlioiial  law  under  wliieh.  in  a 
case  of^dnliious  ri<,dit  of  tliis  kind,  ;>  was  not  ineumlieii'  ontlie 
United  Stales  to  notify  (Ircat  nrita.  i  of  the  action  they  in- 
teniieil  takiii;^. 

The  ('onimissii)iier  on  the  part  of  the  United  States  :  -There 
IS  no  ipiestion,  Mr.  Bei(iue,  hut  that  is  a  lej^iti unite  ari;unieiit. 

Mr.  Heiipie  :--I  would  he  most  ;,'rieveil  that  your  Honor 
would  appreciate  any  portion  of  my  ur^'ument  as  not  heiin,'  a 
lei;itiiiiat.e  ari^'ument.  I  came  here  deeply  conscious  of  the 
position  1  occupy  and  after  Imviiig  fully  matured  tlu'  po.sition  1 
sliotijii  assume. 

Now,  if  your  Honor  will    refer   to  the  very    ahle  ar^'ument 

presented    on     behalf  ()f  the   United   States    in    the     Alabama 

claims    at    (Jencva,    y.)  i     ,vill    timl,    that    the     United    States 

20  counsel    (lid     not     coiisiiler      themselveH     fettered       in       their 

.  lan;,'ua,L,'e.       and    did       not    hesitate     to      use     th(>      strongest 

•.lan^'uai^e     that     could      be     used     under     the     circumstances 

.  •.'•ga'inst"'     (ireat      liritaiii.       They     used      that      lani,Miai,'e     for 

'.'the    purpose    of    holdini,'    (iruat      Britain     responsible    for  the 

A»cts  of    her  ollicials  which    were   acts  of  nej,dii,'en('e.     All   that 

'could   be  reproaiihed    to  I  ireat  Britain   were  acts  of  onii.ssion,  for 

not     haviiifX     b(!en     dili^'ent    cnoujjh     to    prevent     the    .several 

cruisers   from  armini!;  in   British  territory;  (ireat   Britain  never 

''  took  (itrenee,  and  1  do  not  think  she  was  entitled  to  take  otlence. 

IflpfWhen  a  lawyer  .speaks  at  the  Bar  he  sliimld  have  some  freedom 

"in  .siiowini;  or  attempting  to  show  to  the  best   of  his  ability  the 

;  facts  such  as  they  may  be, and  in  applyinij  the  law  to  these  facts 

,  BUch  as  he  considers  the  law  should  be  applied. 

The  ])osition  of  the  United  States   is   further  ai;i;ravateil  by 

•Vtlie  dilatory  course  persued  after  the  seizurcH,  and  after   remoii- 

■.  J  Btrance    had   been   made;  on  account  of  the    delay   which  took 

■''.place  before  any  redress  or  any  attempt  at  redress   was   made. 

;i The  seizures  wer(>  made  on   ( iovcrnineiit  instructions,  and   these 

4()f  inHtruetioMs  not  only  atl'eeteil  the  vessels  in  question  but  applied 

'to  all  \essels  of  the  same  class.      The  United  States  (ioveriimeilt 

•were  notitied  of  the  lirsl  seizures  by  tele;;rapli  on  Auj,nist  KSth  — 

hat  is  about    two   weeks   after   they  were   made.     The   United 

i.ates  (Ioveriimeilt  must  then  have  known  in  the  hcilsc  of  beiiij^ 

norally  Huro,  that   the  vessels  had   been  seized,  and  the  proiiipt- 

tiess  of  atelei,'ram  would  in  a  few  days  liave  secured  information 

liutlientie  eiioiii,di  for  all  practical   |)urpo.seH.      In   Se|)teniber,  the 

leiziii;;  otlleer  who  had  remained  at  Sitka  until  all  the  trials  had 

.^takeii  place,  wrote  twice  to  the  United  .States  ifii\erniiieiit.eri\in(ir 

Sid^the   fullest    i)articulars.      The    first    of  these   litters    must    ha\e 

arrived  loii^f  before  the  end  of  September  and  (he  second  by  at  least 

the  middle  of  Octolier.     ( )n  Se|)tember  '27th  and  ( )ctol)er  Mist  the 

>;Brilish    Amba.s.sador     wrote    to    the    United    States    Secretary 

<oi  State  askiii;,' for   particulars   of  the  seizures   and    protesting 

against  them  ;  and  in  the  month  of   November    the   British  Am- 

.    biissador  forwarded  to  the  Uniti^d  States  authorities  a  copy  of  a 

letter  from  the  British  foreign    minister  which   contained   a  cor- 

yect   »iccount  of  the    proceedinjjH    and   (he     depositions   of    (he 

officers  and  men    of  the    vch.scIh    seized.     Yet  it    was  not  tintil 

60^  April  l:?tii,  1H87,  that  the    United  Stati'R    ( ioveriinient  j;ave  any 

particulars  or  even  detiniteiy  stated    the  f^rounds   on   which  the 

ioizures  were  made.      In  other    words,    althouijh    on   Novemhe 

14tli,  1MH(),  (Jreat    Britain  waH  able  to  p't    accurate   informatioi 

from  Alaska  to  Enirland,  and  to  transmit  it  thence  to  the  United 


^Fm^f 


144 


(Mr.   P)i'i(iii('.s  Ari^juinciit.) 


Statt'H,  tlu'    ifovtM'Miiu'iit    of  tilt'    latter  ('(iiintiy   cdtild    not    <:;■  i 
trustwortliy  dctailH  until  tivc  montli.s  Inter. 

.\Lriiin,  it  niiiy  not  Imve  lieen  tlie  fault  of  tlie  I'nited  Stat.^ 
IIS  a  nation,  liut  it  was  tlie  fault  of  tlie  I'liiteil  States  actili;;-  I  \ 
their  otlieials.  vSurely  it  was  a  matter  of  eonsiileialile  eoneciu 
when  a  nunilier  of  \essels  had  lieeii  seizeil,  when  a  lari^e  inuulii  r 

10  of  British  .suhjeets  hail  iieeii  taken  away  to  Sitka,  far  fi'oui  th'  ;r 
homes:  surelv  it  was,  I  s,-iy,  a  niallirof  considei-alile  coneei;i 
an<l  the  duty  of  the  otlieials  of  tie'  ;,^)\  i-rmiieiit  of  thel'iiii'.! 
States  to  eiii|uire  into  the  ni.Mtter  prniiiptly,  and  arrive  ai  :i 
decision  at  the  earliest  ]iossilile  UKaiient,  Theri'loie  i  saytli.,; 
the  faet  t!;,it  tlier<'  Was  so  niueh  delay  ahont  the  whole  mail  i 
is  also  a  matter  of  seriou^i  aeirravation. 

The  si'iznreHof  KSST  were  if  |iossililo  even  moi'e  unjustilial'i 
lieeaiise  the  I'nited  States  edvefiniient  had  in  eH'ect  iiroinised  I  l.;,i 
no  seizures  would  lie   made    without    notiee,    and    no    notiee  w  is 

20  j;iven.  'The  I'nited  States  ^'oMTument  denied  this,  hut  it  si.  ins 
to  me  that  it  cleai'ly  results  from  the  iiolt'n  rerlmlis  which  w  .  r.- 
exchani,fed  lietween  the  t  wo  ;^o\  ernuients,  one  on  the  14th  \]iii|. 
1M!S7,  (record  ]ia^'e  (il)  from  the  Britisii  Amhassador  l.i  li;^ 
I'niteil  States  Seeretai'v  of  State,  whicli  reads  as  follows: 

"  In  view  of  the  approacliini;'  tishinj,'  season  in  the  Behrine-  S.  ;i 
"and  the  littin^'  cnit  of  vessels  fia- fishinf^  operations  in  tle-e 
"  waters.  Her  Majesty's  ei)veriiment  have  requested  mi>  toemiiiiif 
"whether  the  owners  of  such  vessels  may  rely  upon  hein^ 
"  uiiniolfsted  hy  the  C'ruiseis  of  the  United  States  when  nut  n.  ;ii' 

30  "Innd." 

To  propei'ly  ajipreeiate  those  ■iioti's  vcvh'ih''  one  must  hear  in 
mind  the  fact  that  Secretary  of  State  B(m  ,mu  aetini;  undei'  a 
decision  of  the  President  of  the  United  >-i  ire  luul  deemed  ii 
his  duty  to  Older  that  the  vessels  previo\isly  bi'i/.ed  sin.tdd  1  • 
released.  Now,  what  was  tln^  answer  to  this  note  reihali'.  It 
is  to  he  found  on  the  record  pai,'es(iI-2  dated  Ajiril  12th,  ainl 
aildresscd  liy  the  Secretary  of  State  of  the  United  States  to  th. 
British  Amhassailor  and  it  I'eads  us  follows: 

"  The    (juestion    of  insti'uctions    to  ^'overiuneiit    vessels    in 

40   "  rci,'aril   to  jireventine  the  indiscriminate  killing,'  of  fur  scuU,  i< 
"now  heine;  considd'ed,  anil  I  will  inform  you  at  the  eai'liest  d.'iv 
"  jiossihk'  what  has  heen  decided  so  that  i^ritish  and  other  vessels 
"visiting  the  waters  in   iiui"-tion  can   ;,'iivern    themselves  acmi! 
"in^riy." 

This  was  a  plain  answer  to  a  plain  (lue'stioii,  and  can   not  1 
otherwise  understood  than  us   meaniiiLC   that   the   sealini;  vi  -~.  , 
would  not  he   molested   unless  previous  notico   was  ejven.     .N  . 
notice  was  eiven   hut  the  seizures  were  lume  the  less  madf. 
Ki|Uall3'  unjustiliahle  were  the  seizures  nf  [^S\\.     The  reh,n-i 

5(1  of  the  ships  seized  Ml  1^S(i,  and  the  fact  that  no  si'izures  wi  ir 
made  in  ISNS  were  of  a  nature  to  lull  Ciieat  iSritnin  intu 
secuiity,  and  the  resumption  of  the  seizures  in  US8!)  withni.t 
warniiiL;  was  a  proceediiiL,'  in  delVnceof  uhich,  I  suliiiiit,  iiolhii!- 
can  he  ur^'ed. 

'I'akc  ULjain  the  moiius  viveiuli  cases.  Tiie  modus  vivi  h' i 
distinctly  provided  that  British  vessels  seized  hy  the  Unil.i 
States  sluaild  ho  turned  over  to  (ireat  Britain  foi  trial.  Tin 
I'nited  States  diii  make  severul  seizures  hut  in  only  eiir 
case    did  it    coiii|)ly  with    tliis    condition,    and     in    tlu:    otlhi 

<i"  cases  the  United  States  availed  itself  of  seizures  on  the  hiL;li 
seas,  to  prefer  cliar^^es  of  violation  of  theii'  muniei|iiil 
laws  and  which  were  on  tlioir  own  face  unfounded.  TU 
United  States  took  no  proceedings  on  these  chari,'es,  they  kept 
tlie  vos.sels  in  their  posHcssioii  for  niuntii!i  after  they  wer  .suiziil, 


145 


'V     fOlllll      IKit      <^>  t 

]n-  I'liiU'd  Stills 
States  iii'tili;;  1  \- 

sidcriilili'  (.•oiu'c'i  ,1 
n  a  laiiio  miiiil  v 
tka.  I'ar  iVoiii  lli.  ;r 
siilnalilr  police]  :i. 
riit    III'  till'  rnii-  'I 

.   ami    airi\i'    a!  ,i 

■ret'die    I    >ay  tli,,! 

lie    wlmle    mall'  r 

UMiri'  iiiiiiistiliali!i' 

fleet  [iriiiiiiNfii  |1,,,| 

nil    111)    iintiee  \\  ;is 

this,  lint  it   seeliiv 

rhiili's   wiiicb  \vi  I.' 

on  tlie    14tll    \ji|i|. 

iiiliassailor  io  ihr 
i  as  I'lilloWK : 
in  the  Heliring  Sin 
[lerations  in  tin  >e 
;(ite<l  mo  tc)en(|niir 
rely  ujion  ImIim 
itos  when  nut  ni  ai- 

one  ninst  hear  in 
I    netin;,'   nmlei'  a 

hll'l    ileenieil    il 

>■  sei'/.eil  slmulil  1  i- 
<  note  rcihalr.  1 1 
eil  April  12lh,  ainl 
niteil  States  to  till' 

nnient  vessels  in 
\\\y  of  t'nr  seals,  i« 
at  the  earliest  iliiy 

ill  iUlil  other  Vessels 
themselves  ac'eolil- 

tW,  ainl  can   not  I  • 
tlie    sealilif;  ves^rls 
■e   was  Hjiven.     Nn 
the  less  maije. 
1,'iMI.       'I'he   lelenM' 

L  no  sei/iires  werr 
Ileal  liiitain  iiitu 
;  in  Ihhlt  withii|,t 
I,  1  suliiiiit,  notliiii:; 

lie  moilus  viveii'ii 
:e(i  h\  the  riiit-ii 
lin   fill    trial,     'i'lii 

hut    in    only    mn 

ami     in    the    otlui 

zures  on    tlie  hii:!! 

their     iininiei|iitl 

niifounileJ.     Tli^ 

chari,'es,  they  kr]it 
,er  they  wer  sui/iil. 


20 


80 


(Mr.  BciijueH  Argument.) 

and  returned  them  in  i\  wrecUed  fondition.  Again  it  was  no 
tlie  United  Status,  hut  it  was  their  otlicials — .some  of  their  ein- 
plryees  who  did  this  ;  they  used  tlio  vessels  or  the  houts  on  .some 
of  those'  vessels,  for  their  own  purposes,  and  the  ves-sels  wen-  hd't  to 
rot  and  were  returned  in  a  dilapidnted  condition.  It  is  needless 
to  sav.  that  all  these  thing's  were  '^ross  hreaches  of  international 
Id"  law,  and  tluit  they  must  he  considered  and  treated  as  such. 
Altleiui^h  1  am  ready  to  admit  that  it  was  not  done  h,v  the  nation 
as  a  nation,  yet  from  the  le-al  aspect  of  tlie  que-^tMai  1  say,  that 
these  ollieials  acts  should  he  taken  as  injuries  wilfully  inlliet-d  ; 
injuries  which  as  hetweeii  jirivate  litigants  would  iiinlouhteclly 
call  for  jii.feravateil  damages. 

A\-r  the  (•laim.'iiits  to  he  any  the  lis;  Midemnified  hec'iusi'  itis 
la  rrreat  nation  that  has  olfeiided  ii-ain-t  tlie;;i  ?  It  is  nr^'iied  liy 
counsel  for  the  United  States  tliat  a,^';;•lav.■•.Lell  i.'amages  are  not 
allowed  as  hetweeii  nations.  Sujipixe  this  to  hi  so,  it  is  irre- 
leveiit  hec.HUse  the  damatfes  will  aeirue  to  the  helielit  not  of 
(Ireat  IJritain  hut  of  the  pi'i-sons  in  whose  hehalf  she  claim.s. 
The  rule  for  which  the  Uiiit.d  St.ifes  cmiii-el  eoiit'-n.l  i>  Jasti- 
liahle,  if  at  all,  on  the  Ljround  that  the  prop'  r  award  for 
won  ..led  national  honor  is  not  a  payment  in  money,  in  other 
words  it  is  explained,  not  hy  the  character  of  tlie  olleii  ling  nation 
but  hy  tlu'X  of  the  nation  a^i,'rieveil,  wdiose  di;,niitv  would  be 
otfemied  if  nioney  were  olfered.  ISiit  what  hearing'  has  tlii'^  upon 
injuries  to  |  rivate  persons?  In  this  casi'  "  suKirt  iiiDiiey, " 
as  it  is  called  hj'  my  learmKl  friends,  is  recognised  as  an  appro- 
priate remedy  for  wilful  in,j.ury.  Oreat  Britain  perhaps  could 
not  receive  such  money  on  her  own  behalf  \>ithout  lowering  lier 
dignitv,  hut  the  dignity  of  the  United  States  as  well  as  that  of 
(Ireat  l*>ritain  iiiiperati\oly  demands  that  all  injuries  to  private 
peison.s  he  fully  compensated. 

Tlip  truth  is,  the  United  States  thrust  the  elaimants  forward 
or  put  them  in  the  liacU -ground  a.s  the  necessity  of  the  case  may 
require.  If  it  suits  their  purpose,  the  case  is  treated  as  if  it  were 
in  etl''ct  between  themselves  on  the  one  hand,  and  the  claiments 
on  the  othei-,  fireat  liritain  is  dropped  out  of  sight  and  her 
presence  in  the  cast'  treated  as  irrelevant.  iNow,  however,  she  i.s 
thrust  prominently  forward,  the  claimants  ai'e  ignored  and 
tilt     case    treated     as     if  they     had    nothing   to    do     with     it. 

Ai-efereiiceis  made  in  the  United  States  brief  tothe withdrawal 
of  their  natiiinul  claims  at  (ieiieva.  The  withdrawal  of 
those  claims  is  pi-i'fectly  immatei'iai  to  the  present  issue, 
because'  as  I  have  alreailv  stated,  (ireat  Britain's  conduct 
was  at  the  most  negligent,  and  there  was  in  no  respect  any 
ground  for  aggravated  damages.  To  qualify  the  acts  of  (ireat 
Britain  uiider  the  Alabama  claims  and  to  distingui'^h  them  from 
those  in  the  present  cai»e,  J  cannot  do  better  than  refer  tothe  ap|3re- 
ciation  of  I'rofessor  Bluntschli,  which  is  to  be  found  in  thi»  foreign 
relaliiiiis  if  the  U'liiti^l  States,  jiart  II,  section  ;5,  42  (.'ongress 
4th   vol.  (ieneva  Arbitration  page  541!  : 

■' II  ne  failt  d'ailleurs  pas  perilre  de  viie  que  tons  ces  eU'ets 
"  liesastieux  soiit  en  preiuie'r  lieu  iiiijuitables,  noii  pas  an  gouv- 
■'erpement  anglais,  niais  aus:  eroiseurs  eur-menies.  I'ersonne 
"  r.  accuscra  le  gouvernement  anglais  d'  avoir  donne  mission  de 
"  lelniire  les  navire.s  de  commerce  ameiicains,  on  il'avoir,  par  ^cs 
"  agissv'inents,  eiitrave  ou  endommage  la  marine  aiiiericaine. 
"  Ceijue  Ton  pent  lui  rejirocher  a  bon  droit,  (en  supjiosant  que  left 
"  fails  cite*  plus  haul  doivent  t'tre  consideres  comiiie  avoues  ou 
"  prouves),  ce  n'esl  pas  un  /i//7,  mais  une  o/;i/,s,s(()?(  emit  re  h'  droit. 
"  Sa  faute  ne  consiste  pas  a  avoir  equipe  ct  apparcilli  le.s  cor- 
"  .saires,  luais  a  ii'avoii'  pasempCrhv   !eur  arnicuicnt  et  Icur  sortie 


;« 


« 


60 


|i 


^mmm^mf 


140 

(Mr.   IViiiuc's  Ar;;iiiiitMit.) 

"  lie  soil  tcrriti lire  nriiLi-c.  Mais  crttc  ^((k/^' n'ii  (^ii'iiii  raj)] I  it 
"  iiiili rfcf.  ft  nnlli'iiiriit,  iiii  r)i]i]iiirt  ilirfrt  avce  los  di'^pri' !ati  t^ 
"  ii'rllriiu'nt  coniinisi  .s  pas  les  iTciisi'Ui's." 

[  will  now  lirirfly  rciVr  to  tlic  itcius  of  claims  as  I  li;,.,. 
cinssilicil   tlu'iii. 

Tlic  (^oiiiiiiissioiior  (HI  t!ic  part  of  tlio  Fiiited  States: — 1  w  -li 
10   to  iiit'TiMiiit  yoii  for  a  iiionn'iit.  Mr.    r>i'i([U('.       V'onr  roferrrici'  to 
tlie  seizures   of    ISMltis  •■.oiiiething  that   my   inemorj-  is  confti-  .1 
.liiont.     Were  not  all  these  eases  appealeil  in  Isst). 

Mr   lieiijue  :— In  Canada  !* 

Till'  Commissioner  on  the  ])art  of  the  United  States: — >.,,; 
np]iealed  to  tlie(-onit  of  .Vp[ieals  or  to  the  Supreme  Court  of  ili. 
United  Slates. 

Mr  J)ic'kinsoii  :  The  Cooperoase  was  appealed,  hut  that  nvus, 
not  in  ISSi). 

Mr.  Petprs : — The  Cooper  case  was  the  only  ease  appealed  to 
20  the  Supremo  Court  at  Washiui^ton,  and  the  ('anadian  ease    t!  at 
was  appealed  was  one  of  the  special  cases  not  under  the   mn'ins 
Vivendi. 

Mr.  l^eiquo  : — ^^onr  Honors  will  recollect  that  the  day  liefnii' 
yesterday  1  divided,  for  the  purpose  of  mj-  ar^mneut,  tlie  ditferi  ni 
items  of  claims  under  different  headin<fs.  I  have  lint  a  very  fiw 
remarks  to  offer  under  those  i,'eneral  lieiidini,'^  except  in  possiKlv 
one  instance,  heeaus"  they  will  he  hetti-r  ci.ivered  when  we  taki' 
up  the  cases  sepai'ati'ly.  The  tirst  general  lieadini,'  I  li.ivi' 
ailo)ited  is  "The  illei^al  lioai  ilinj^f,  search  and  arrest  of  vessels." 
\\Q  The  vi--''ls  in  comicetiun  with  which  such  claims  are  |iresi'iii.'.l, 
are,  in  I  .ss?  the  ■' .Mfi-i'd  Adams  "  and  the  "  Triumph.  "  Jn  l^^!l, 
the  "Jnanita  "  "  l';ithtindel'. "  "  fll.ick  Diamond,"  "  Lii\ 
"Minnie,"  "  Tiinmpir'  .-nid  '  .Ariel";  in  ISltOtlie  '  l';ithtin^'  V  ' 
Till'  whole  jiriu'eediii'^s  of  the  I'nite.l  .'-it.-ites  in  ciinn"eti":'  ■  ■■' 
these  vesse  s.re,  of  Course,  admitted  to  have  heeii  illeLi'al.  \\  ln'n 
I  say  "  adiiiittid,"  I  mean  that  was  the  result  of  the  award  as 
rendiri'd  at  i'aris,  and  therefore  we  may  take  it  as  the  law  cov.  r. 
inij  the  enipiiry.  The  illegality,  as  I  ha\'e  already  shown,  was 
ciiiislderalily  aeirravaled  hy  the  cii'cunisiances  .•iiid  maimer  in 
Oi  ill  which  it  was  crpinmitted.  Tli«t  the  owners  of  the  vessels  ,nv 
en*itl"il  to  C'MMpiiisatioii  is,  it  s-ne-  t^  iii",  lieyond  iiuestioii,  iori 
I  sul  Miit  that  the  sum  of  Sfl^.dOO  is  under  the  e"i-eumst;inees  j.iit 
fair.  W*'  cannot,  of  cour.se,  prove  .■iiui  we  have  not  attempiMl 
to  piMve,  (l;iiiia^es  in  dollars  and  C'lit^:  hut  unless  this  Hi;;! 
Trihun.al  is  prepared  to  justify  the  arrest  of  the  vessels  iiniii. 
under  the  circumst,inces  1  h<i\i'  mentioned,  and  to  say  that  such 
pioceedin;^s  i,'avi'  no  u;round  for  dama;4es,  1  say  that  we  Rlmii!.! 
recessal'ilv  recovi'r.  Suppose  th.at  the  vessels  had  iieeli  r.. 
turned  live  or  six  days  after  the  sei/.iire ;  that  the  trip  IukI 
50  not  lieeii  seriously  interrupted,  J  claim  that,  csp'ciuily  un- 
der tlie  circumstances  I  have  rrvi.wid,  from  the  me  e  fact  llial 
the  vessels  were  seized,  that  they  w  re  searched  witliout  aiiv 
warrant,  as  is  estalilished  hy  the  Paris  .\ward,  damages  shciiiM 
be  awarded,  and  that  the  amount  claimed  is  hut  f«ir 

The  Commissionei'  on  the  part  of  the  I'nited  States  : — That 
I  understand,  is  for  what  you  might  p'jrhaps  de.signato  as  tln' 
trespasH. 

Mr.  Heicpie  :— Yes. 

The  second  item  i.s — "  Value  of  Vessels,  their  outfit  and  cnii,'n, 

<)()   or  in  certain  cases,  the  depreciation  in   value  only  '     The  sdK' 

dispute  as  to  these  items  is  as  to  tln^  ijiUDilum  to  he  recovfivd. 

The  United  State!*  counsel  admit  in  their    written    argument. 

fiage  IHK,  that  (Jreat   Britain  should  get   the  market  value  of 
he  vessels  at  tlie  port  of  Victoria  at  the  time  of  .seizure  in  tlio 


6?, 


ii'a  qn  un  ra])]i.  it 

(!  k's  d'/'pri'  lilti     is 

claims  fts  I    h;,.,. 

m1  Statos  ; — T  \v  -li 
Your  ivfert'iic'  f.i 
I'liioi'V  is  ciii»ru-  I 
SS!).  ' 

iti'il  Statos  :—>:,,; 
ii'ciiif  Court  oi'  t  hi' 

•alcil,  liut  tliat  w.i), 

ly  cane  appi-alt'il  Id 
"auiHlian  (•as(^    t'  at 

nUiilT   tllL'     7(i("M(,v 

liat  tlio  ilay  liff.nc 
uncut,  tlip  (iitiiTi  lit 
avf  liut  a  very  i.  w 
*  except  iu  p(is-,i!ilv 
i-e(l  wlicu  we    t.ikc 

licailiiijj;    1     liavi' 

arrest  of  vp.sscls." 

liiiis  are  prcscnti'.l. 

iuinpii.  "     In  iSMi, 

iaiiioMil,  "     "  Lii\ 

tlie  '■  I'alliiin.i'r.- 
ill  cciiue'cti"!'  ■  ■  ' 
icon  illenal.  W'lirii 
It  of  til.'  awai'ii  tis 
t  as  the  law  cnv.  i- 
lrea<ly  shown,  wa-^ 
es  anil  maimer  in 
f  the  Vessels  aiv 
youil  i[Ufvlioii,  aii'i 
(•'/•(•umstances  j.iit 
avo  not  attcmpinl 

unless    this    Hi;;li 

the  vessels  iiiaili 
il  to  say  that  such 
ly  that  we  RlimiM 
els  liail  licen  r,  - 
Ihat  the  trip  hail 
lat,  esp' cially  mi- 
he  me  .■  fact  t!:at 
clh'il  witliout  any 
I,  iluma^cH  sliouM 
nt  f«ir 
te-l    States  :— Thai 

ilesif^iiate   as    thr 


ir  outfit  and  caiL.''i, 
I!  only  "  The  snl, 
m  to  ho  recovered. 
rt-ritten  ar^uincnt. 
e  market  value  of 
le  of  seizure  in  the 


9b 


-  f^ 


A 


•I 


147 

(Mr.  Beiciuc's  Argument.) 

cases  of  vess 'Is  sei^eil  and  condemned.  We  liave  already  .shewn 
in  our  written  argument  whi't  were  then,  at  Victoria,  the  special 
conditions  uf'l-ctin;;  the  value  of  vessels. 

The  next  item  is  '■  Premium-i  of  insurance  paid  "mid  another 
item  is  "Time  and  jiensonal  expenses  of  ow/ier."  Tlie  item 
under  these  liead.s  do  not  call  for  any  special  remarks  on  my 
part,  as  they  do  not  appear  to   he  di-put "d. 

The  next  item  is  "Leixal  Kxpenses"  Under  this  head  a^^'ain 
the  United  States  contend  that  the  claims  shnul  i  he  limited  to 
the  iti'ins  appeal  ini;  in  th(!  British  schedule  at  I'aris,  or  to  such 
of  theiiiHs  have  heen  jiroved.  Special  reference  to  the  cviileiieo 
will   he  found  on  pa^e  '2i  of  ou,-  written  reply. 

That  lei,rul  costs  are  allowed  in  eases  of  this  kind  .seems  to 
go  without  saying'.  As  appears  from  Mr.  Justice  Story's  judg- 
ment in  the  '"  Apollo,"  which  is  refern'ii  to  in  our  written 
ar^juiuent  and  in  that  of  the  United  States,  even  in  admiralty 
cases,  it  is  the  comnum  course  to  allow  expenses  of  this  nature, 
either  in  the  shape  of  damages  or  as  part  of  the  costs. 

The  next  heading  is  "  halance  of  estimated  catch  for  the 
season."  The  items  under  this  head  have  heen  treated  in  tlie 
written  arguments  under  different  captions,  hut  the  legal  ijuestion 
involved  has  special  reference  as  to  whether  prospective  profits 
may  he  awarded.  'I'lie  argument  of  my  learned  associate  under 
this  head  has  heen,  so  complete  that  I  hesitated  to  u.se  the 
notes  I  had  prepared  under  this  heading.  However,  I  have 
been  encouragiMl  hy  my  learned  friend  to  do  it,  ami  it  seems  to 
me  [should  do  so  for  this  reason:  the  aiiiount  involved  is  so 
large  that  we  should  neglect  no  oi)porl  unity  <>f  jilacing  the  mat- 
ter from  ditfereiit  points  of  view,  and  taking  all  the  heiietit  that 
can  be  derived  from  the  authorities  hearing  on  the  point,  liefer- 
ence  was  made  to  cases  of  collision,  and  the  distinction  was 
properly  drawn  as  hetween  those  cases  and  the  present  case.  Jt 
.seems  to  nie  that  a  close  ((xnmination  of  the  cases  which  liave 
been  reviewed,  and  i.'ime  of  wdiich  1  shall  take  the  li})erty  of  re- 
ferring to,  will  show  I  hat  in  most  of  the  cases,  if  not  in  all  that 
are  cited,  for  one  reason  or  another,  the  amount  awarded  did,  as 
a  matter  of  fact,  r(!preseiit  a  proper  indemnity.  One  realily 
umlerstands  that  in  collision  cases  very  often  the  awarding  of 
the  value  of  till'  vessel,  with  interest,  represent  a  proper  in- 
demnity, hecaiise  in  most  of  those  cases  the  party  with  the 
money  may  lia\'e  a  ready  m.arket  to  procure  another  vessel  and 
to  continue  his  trade.  Hut  what  we  take  exception  to  is  to  tin; 
use  that  has  Immmi  maile  hy  the  other  side  -although,  of  course, 
they  have  very  properly  done  .so — of  the  dicta  to  he  fouiul  in 
ae\'eral  of  these  cases,  and  their  attem|it  to  apply  it  to  the 
present  case.  My  learned  associate  has  shown  the  reason  why 
the  present  ca.se  should  he  distinguished  from  the  eases  relied 
upon  hy  the  other  side.  In  those  cases  injury  or  inti'rfering 
with  the  liiisiiiess  of  the  claimants  was  not  the  object  of 
the  act,  whereas  in  this  ease  it  was.  What  was 
intended,  was  to  prevent  these  parties  from  sealing, 
and  therefore  the  (juestion  of  damage  cannot  bo 
considered  as  remote.  I  invite  your  Honors,  as  I  have  no 
doubt  y(ni  will  do,  to  closely  examine  these  cases,  and  you  will 
fijid  that  the  main  i|Uestion  was  really  as  to  whether  the 
damages  were  n<it  too -^mote.  Damages  by  way  of  profits  were 
refused  mainly  on  that  grounrj,  because  they  were  considered  to 
be  too  indir'ct  or  too  remote. 

Before  diwussing  tlie  principleH  and  authorities  bearing  on 
this  (juestion  of  prospective  profits,  I  will  first  point  out  the 
illogical  position  assumed  by  the  United  States  in  their  attempt 


m 


11 


m 


Y'^mmmmiiimiifliilf 


148 


10 


•20 


'AO 


40 


50 


tio 


tlio    vcshcIm   wci- ■ 

IlllTC  (Iftclltioil   (    ■ 

ri'storiMl  to  tli(  :■ 
it  is  arijiii'fl  tli;  i 
to  ilcprivatiiiii  i.i' 

Sllcll     CIIIDpcllSiltiii  I 
Vessel's    value  at  I 


(Mr.  Beiqiiu's  Ar^uiiieiit.) 

t(i  iiiiike  n  (listiiK'tidii  lietweeii  a  ca.sc  wliere 
Hfizeii  ami  lieeaiiie  a  tola!  Iuss  and  a  case  oF 
wariiiiie;  dtl"  in  wliicli  llie  \essels  wi'ic  eitluT 
owners  oi- taken  from  tiieni.  In  (lie  tirst  ease 
no  conipensation  is  to  lie  allowcMJ  in  respect 
the  use  of  the  Vessel,  or  that,    at     anv    rale 

shoulil  lie  eontined  to  lee;al    interest   on  th 

til r   the  seizure  ;    while  in    the  seeoml  case    it     is    |)ro()oseil  I  . 

assess  the  ilainaets  on  another  liasis,  namely,  the  allowance  ol'  i 
sum  repre.' (iitiuj.;  (Ik  ship's  charter  value  in  i'ehrini,;  Sc,-i  for  1 1  • 
remaimier  oi'  il.,- s.  a>-on.  It  is  scarcely  necessary  to  ar;,'ue  ih..; 
this  I  list  inct  ion  is  wholly  arhitrary,  illo^'ical  ami  unjust,  'i'he  t\\  i 
cases  with  respect  lo  th"  (jiiestion  under  (  aisideration  have  evii 
feature  in  common.  'I'he  w  hoh-  i|Uest'  m  is  whether  an  owii' 
who,  durin;^  a  cert.iin  time  h,is  lieeii  dejirived  of  the  use  ^  i' 
piilil  e.'irnin^'  property,  shall  recei\e  a  y,  and  what,  damaj;es  iii 
,-ic  ■ount  of  sucli  deprivation,  it  is  (piite  eviileiit  that  \\h.,: 
heeomes  I'f  the  property  dtiriiii,;  that  time,  or  afterward,  has  i  , 
relation  to  the  ijtie.-.litai ;  yet  th.-it  w  holly  inniiatcrial  circumstani  .■ 
is  the  oidy  point  of  ditrerelice  hetwi'eii  the  two  cases. 

It  may  he  said,  and  perhaps  truly,  that  some  of  the  earli'  i- 
authoriiie.s  have  in  wording'  and  liy  way  of  dictum,  more  th;iii 
by  way  of  passinj,^  really  upon  the  case,  countenanced  the  di- 
tinction  ;  hut  no  reason  has  t'ver  been  jjjiven  in  sup|iort  of  .i 
holdine-  of  that  kind,  anii  none  1  think  can  he  ^dven  which  is  m 
any  deeiec  able  tc»  bear  pIosu  scrutiny.  It  is  indeed  .suijifestr  I 
on  paee  17  of  the  I'nited  States  lirief  -but  F  cannot  think  \eiy 
seriously — that,  in  case  of  total  loss  it  lutist  be  prt^siimed  "tl,'' 
claimant  had  the  means  and  couhl  have  supplied  the  pl.u'c  of  il,' 
property  sii/.ed."  In  other  words  the\-  luust  he  presuiiii'd  ii 
liave  been  able  to  do  what  was  manifestly  impo.ssiblc,  'I'he^i. 
parties  hail  eiine  on  f^ealine-  expeditioi^s  ;  ttiey  were  hiimlrcds  nj' 
miles  -  tifleen  lituidre'd  miles  away  ;  the  season  was  short,  ami  it 
was  open  to  them  to  pi-ocure  other  vessels  and  continue  tinir 
operations.  Therefore  it  lirinj^'s  these  cases,  not  within  th'' 
principle  of  cases  of  collision,  which  occur  very  often  in  a  ]il,ir, 
iii-nr  at  hand, or  under  circumstances  wliere  the  party  ownini^ili' 
\  esse  I  may  have  nieaiis  of  rejilaciiig  the  property  lost,  but  ii 
rather  hrin;;s  them  althouijb  I  claim  that  the  cases  arc  still  to 
be  ijistini^'uishcd  within  tlie  princi[iles  of  the  case«  of  partial 
damae;es.  It  is  no  doubt  correct  that  some  of  the  earlier  .judi.' 
meiits  restricted  dainaees  in  case  of  total  los,s  to  the  value  of  tin 
property  lost  .and  heal  iifterest  on  s\ich  value  from  the  time  of 
the  lo>s.  The  erouiid  on  \\  Inch  these  judi^ments  were  based  w,i> 
that  prospective  proiiis  artM'otitiiieeiit  and  uncertain,  and  tlnii 
fore  it  is  better  to  adopt  .soine  Certain  basis  of  compensjition,  e\  1  a 
at  I  he  risk  in  many  eases  of  inadeipiately  com|>ensat  in^'  the  parly 
injured.  I  will  ]irpsently  discus.s  the  snllicieney  of  this  latti  i 
ar;.niment  ;  but,  as  1  lielievc  this  jurispnidenee  to  lie  over-ruh  J 
by  later  authorities,  1  will  first  refer  to  .such  authorities, 

'i'hc  ticiipva  award  Ih,  Htranjjeto  sa\',  relied  on  by  the  I'liited 
States,  but  is  evidently  a  strotii;  autlmrity  aJ,^linst.  It  i.stnie 
that  iri  that  case,  the  circunistanccs  beinir  materially  ditfereiit, 
the  arbitratorH  did  not  j;o  ho  far  an  we  ask  your  Honors  to  iln 
here,  but  Went  much  further  than  the  I 'nited  States  claim  slioiiM 
be  done  in  this  case.  Thi'V  did.  indeed,  in  draftin;^  their  awaid 
say  :  "  And  whcrca.'*(I  am  readini,'  from  the  Cnited  StdtcHareu 
ment,  paj^e  !)()),  jirospective  eariiiiigH  cannot  properly  be  tnadi' 
the  stibject  of  coinpeii.s.ition,  inHsuiucli  us  they  dcpen<l  in  their 
nature  upon  futtire  tuiccrtain  continj:jencieH,  Ihi-  Tribunal  i-- 
unanimously  of  opinion  that    there  Ih    no  ground   for  awardiii;,' 


149 


(Mr.  lioi(|m;'.s  Argument.) 


tlio  vi'hscIh  wcr  ■ 
mere  (leteiitii)ii  i 
restored  to  tlicir 
it  is  ari;iie<i  tli.i 
t(i  deprivation  ■  i' 
K'li  ('(iiDpeiisatid  I 
isel's  value  at  ll  > 
it  is  |)riii)i)sed  I  . 
le  alldwauce  oi'  i 
'hriiiji  .Si'a  for  il  ^ 
larv  t(»  ai'gue  tli.i; 
unjust.  The  tw  i 
ratinii  have  evei y 
■lietlier  all  (IWIU  ;■. 
ed  111'  I  he  Use  i.f 
wliat,  damages  mi 
,'ideiit  that  wlint 
li'lerwai'd,  lias  i  ., 
ei'ial  eireumslaiii  .■ 

>  eases. 

me  (if  the  earli-  I- 
lietum,  more  than 
ti'uaiK'ed  the  dis- 
iii  support  of  ;i 
given  whieli  is  in 
ill(h'e(l  suggesti'd 
•ainiot  thini\  veiy 

e    [M-esUl I    "  tlif 

d  the  place  of  llii' 
t    he   presumed   to 

npossilile.  Thisr 
were  hundreds  .if 
was  sliort,  and.  it 
nd  eontinue  their 
not  within  th.' 
y  often  in  a  pluc 

party  owning  th.- 
perty  h)st,  hut  it 
e  cases  are  still  i^i 
■    case«  of  partial 

the  eailier   Judg 
o  tlie  value  of   tin- 

from  the  time  ef 

:s  Were  hased  WM>. 

■ertaiii,  ancl  tluic 
impensation,  e\  iii 
•nsHting  the  parly 
lie}-  of  thi.s   iatti  I- 

>  to  he  over-iuli'l 
ithorilies. 

on  hy  tlie  rnited 
,iiinst.  It  istnii 
terially  diflerent, 
our  Honors  to  ile 
itates  claim  shouM 
Fting  their  awai'l 
iiiteil  StateH  argil 
[)roper]y  he  inadi' 
.•  (lepeiid  in  tluir 
,  the  Trihuual  i.- 
und   for  awanliiK' 


20 


the  I'uited  States  any  sum  hy  way  of  indenudty  under  thiH 
head."  So  far  they  have  adopted  the  wording  wfiich  is  found  -p. 
the  early  jurifltruuenee  1  have  just  mentioned,  hut  what  t)  ey 
said  is  of  less  importancff  tlian  wdiat  they  did,  and  we  find  iiat 
wliereas  the  early  eases  had  fully  allowetl  the  valut  of 
the     property     and     legal     intereat,    they    allowed     "  in    lieu 

lO  °^  prus[)eetive  eateh"  the  value  of  tin;  ve.ssels  and  2.5  per  cent, 
of  such  value  and  a  sum  for  wages.  'i'liis  appears  sutlicient 
from  appendix  No.  1  to  our  argument  in  reply,  and  I  will  merely 
refer  to  tin;  report  of  Sir  Alexander  ("ockhui'n,  the  British 
arbitrator.  Tlii^  eminent  judge  di.ssented  from  the  other 
arliitrators,  the  amount  of  whose  award  he  thought  excessive. 
He  .says;  'Hut  independ<Titly  of  the  undenialtly  exaggerated 
amounts  of  the  claims,  a  demand  for  r/ruKS  pronpeclirc  <'<irnir>ijs 
ati  iiiMiiii/iiisln-d  from  net  riii  nin(ji<  \»  i\\ntv  inca])ahle  of  heing 
maintained.  This  is  admitted  in  the  argument  of  the  United 
States,  and  is  clearly  ilemonstrated  in  the  British  report. 
According  to  the  (lecision  of  the  Supreme  t^ourt  of  the  United 
States  the  oidy  allowance  which  ought  to  he  made  in  respect  to 
pii.spective  catch  is  in  till.'  nature  of  intei'csf  from  the  time  of 
the  destruction  of  the  vessel.  1  should  myself  he  disposed  to 
.adopt  a  moie  liberal  mode  of  compensation,  and  to  awaid  for 
prosjjective  profits  a  ■•(.  jisonahle  ])';reentage  on  the  value  of  tin; 
ve.ssels  and  outfit,  etc.  How  after  this,  the  (Jeneva, award  can  lie 
considered  as  in  h.iniiony  with  the  jurisprudence  cited  hy  my 
learned  fi'iends,  much  more  with  the  position  a.ssumed  hy  them, 
^0  ^  lca\e  them  to  exjjlain.  It  i«  apparent  from  these  remarks 
that  w  liat  he  was  contesting  was  thvih-mand  for  gross  prospecti\e 
caiiiiiigs  as  disting\iishei|  from  ■  '„  earnings,  and  he  clearly  says 
that  he  is  disposed  to  adopt  a  more  lilieral  rule  than  tlie  one  to 
which  he  refers  as  having  tjeen  adopted  iw  some  of  the  .\merican 
cases,  and  to  award  for  prospective  profits  a  reasonable  jjer- 
cetitagi;  on  the  value  of  tlie  vessel  and  oiittits.  (Jn  further  refer- 
ence to  his  i-emarks  it  will  l)e  found  that  the  amotnit  allowed 
for  the  vessels  was  in  lieu  of  prospective  profits.  The  amount 
awarded  as  the  value  of  the  ve.ssels  was  a  wry  large  one,  and  it 
was  claimed  to  exceed  consid(;rahly  the  real  value  of  the  vessels. 
Adding  '21)  per  cent,  to  that,  hy  way  of  nuiking  up  for  ])ro.s- 
pective  profits  was,  it  seems  to  me,  adopting  (|uite  a  liberal  rule. 
When  the  arbitrator  for  (ireat  Britain  took  that  position,  as 
appeal's  in  the  protocol,  how  can  the  luni])  sum  award  he  inter- 
preted as  not  having  gi\en  to  the  Ignited  .States  the  beni'tit  of 
the  admission  made  by  the  .arbitrator  for  (.ire.at  l^)ritaiii.  My 
learned  friend  would  have  to  contt'iid  that,  although  the 
arbitrator  for  (ireat  liritain  declared  his  willingness  to  meet  the 
United  States,  so  far  , -IS   allowing  them   this  2.")  per  cent,   on  the 

:0  value  of  the  vessels  by  way  of  prospective  profits,  the  United 
States  did  not  consent  to  accept  tlie  conci'.ssion,  and  that  no 
account  was  taken  of  the  conceHsi(.)n  in  adopting  the 
aw  aided. 


lump  sum 


'i'lie  t  "ommissioiiei 
Beii|iie, 
tic  lie  va 


on 


the  part  of  tl 


Mr. 


lave  you  acci.'ws  to  the   French    text  of  tin 
I  think  we  have  the 


le   United   States: — Mr. 
.\\varil   at 


leliiue 


lOok  here. 

The  Commis.sioner  on  the  part  of  th-  United  States:  — I 
merely  want  !o  ask  you  if  you  will  ascertain  cxacth-  what  the 
words  are  win  h  ai'e  translated  "  prospectiv(;  earniicfs." 

Mr.  Beique  -I  have  made  special  reference  in  examining 
the  point  to  the  French  version,  and  it  scenrs  to  me  that  as 
appears  by  protoc  1  2!),  it  is  ipiite  cvidrnt  that  prospective  profits 


1.  * 


ri 


li" 


h4 


mmmimi^mmm 


^^ 


ISO 

(Mr.    Rt'i(|uc.s'    Argument.) 

were  allowed  in  one  shape   or  another   hecanse   nf  the   jin'<itioii 
tiiki'ii  by  the  IJriti.sh  Cotninissiioner. 

('(iii.iiiissioner  on  the  (lart  of  the  United  Sttte.s : — They 
eieaiiy  allowed  prospeetive  earnings,  stt-ictl}'  speaking,  iiecansr 
they  alloweil  net  freij,'lits. 

.Mr.  f^'iiiue  : — Distinctions  have  heen  made  hitween  oa.sos 
where  the  vessel  is  under  enifaiienient  for  a  purticular  voyatje, 
and  case.s  <m\y  where  she  has  not  secured  a  voyai^e.  It  conies  to 
this,  thai  in  one  e.ise  the  ut\certainty  may  he  greater  than  in  the 
other.  K\en  takiiiLC  tlie  ease  wherr  a  vessel  is  undrr  charter 
party  there  is  always  a  certain  de^n'ee  of  unceitainty-  ■ 
the  vi.'Hsel  ndj^ht  he  hurried  oi'  inii^ht  he  Huiik^all  kind  of 
accidents  nii^ht  ficcur  which  woidd  prt  vent  IIk^  vessel 
from  eariiin;^'  the  amount  covered  hy  the  chai'ter  i>arty.  Of 
course  in  a  ease  of  that  kind  tliPic  may  he  more  certainty  than 
if  the  vi'ssel  is  not  chartereil  ;  hut  if  tlip  vrssid,  althoui,di  not 
20  chartereil,  is  known  to  easily  have  n  iVei^;ht  at  its  disposal  or  to 
he  chartered  whenever  occasion  occurs,  whenever  she  is  free  for 
aiii'ther  voyaj;e,  then  it  seems  to  me  that  thi;  uncertainty  is  no 
iireater  in  the  one  case  than  in  the  other. 

C'omiiiissionur  on  the  p«rt  of  the  Criited  States  : — The  usual 
mil'  ill  collision  easi>s  is  to  allow  net  freii,dit  wherevei-  the  vessel 
lia.s  broken  i;rou:'.d  to  earn  that  fi'eiL,dit — that  is  tlie  common 
(-.Npre.'.siiin.  Net  fi ■ei;,dit  is  never  spoken  of  as  a  matter  of  prolits, 
but  as  a  matter  of  rnrninLjs.  They  arc  more  like  the  ease  of  a  man 
who  is  eiiL,'aj,'ed  for  a  month  at  a  ti.Ted  salary  and  unjustly  truneil 
;]0  out  of  liis  position;  so  if  those  word.«,  "  pi'ospective  earnings," 
mean  in  tlie  original  exactly  what  they  are  translatt^d  as  niean- 
iiiL',  tliei-e  is  apparently  a  clear  inconsistency  on  the  face  of  the 
awar<l,  as  1  reiiieiii 
catch. 

Mr.   1  )ickiiison  : — Tin 
only  as  to  the  whalers. 


ber  it,  sayiii;,'    nothiii;_c  about    this    matter  of 
iiestion  of  prospective  catch  caiin;  up 


At  oni>  o'clock  the  C'ominission  took  recess. 


4 


40         At  half-past  twi 
seats. 


I'clock   the  Commissioners    resumed   their 


Ml'.  lM'i(|ue  : — The  ne.xt  authority  I  shall  refer  to  is  thr  For- 
tunc  Hay  case.  My  refeience  to  it  will  ic  very  brief.  In  that 
case,  tweiity-tw  1  Hnited  States  vessels  wer(;  waitin;.j  in  Fortuiu' 
I'ay  for  luriiiiL;  ;  when  a  school  arrived,  four  of  the  vessels  and 
boats  \\itli  seines  wliich  were  to  hi?  used  for  the  benetit  of  the 
whole'  lleet,  were  fisiiing.  it  is  probable  that  if  the  rnileil  States 
ve-sels  had  been  left  alone  full  cargo  s  would  hav  been  taken 
.JO  by  them,  but  Newfoundland  tlshermeii,  who  weri!  not  peruiitte  1 
under  tleir  law  to  tish  on  Sunilay,  interfered,  and  the  United 
States  vessels  left  with  no  cargoes,  or  small  ones,  'i'lie  case  was 
left  to  arliitratimi  and  lieavv  damages  were  awardi^d,  which  were, 
for  th(^  must  part,  f'U-  pios|^'ctiv(!  catch. 

.\lr.  l)iekinsoii  : — There  was  no  arbitiation.  (Ireat  l!ritaiii 
ni'ide  an  oiler,  and  the  matti'r  was  settleil  on  the  basis  of  tlie 
payment  of  about  STo.OOO. 

.Mr.  lieicpie: — I  thiuight  there  Was  all  arbitration  ;  but  whe- 
ther thi'i-e  was  an  aioitratioti  or  not  is  inimafeiial  ;  as  a  matter 
0()  of  fact  a  large  amount  was  awariled  for  prospective  catcli,  arid 
whelh-'r  the  aiiiuunt  was  large  or  small  makes  little  diti'erence. 
My  |)i>int  is  that  an  amount  was  awarded  for  prospective  catcli, 
Mr.  I'eteishas  made  that  clear  in  his  argument.  'I'he  (Inited 
States  counsel  trv  to  distinguish  this  case  by  saying  that  if  the 


151 


f   the   position 

Stttos  :— Tiioy 
nking,  becansf 

bi.'tweon  CHsrs 
iculnr  voyai,'!'. 
1'.  It  comes  ti) 
ter  than  ill  tlir 

(iiulir  charter 

uiiccrtiiiiity  ■ 
: — ail  iciiul  of 
it  tiie  vi'ssi'l 
tor  jinrty.     <  'f 

certainty  tlian 
,  Hltlioni,'li  not 
.  liispos.'il,  or  to 

slie  is  free  for 
eertttiiity  is  no 

es  : — '{'he  usual 
■ever  tlie  vessel 
is  llie  common 
latter  of  profits, 
IP  easi'  of  a  man 
injiistly  triineij 
liv(^  earnin<,'s, " 
\i\ini\  ns  niean- 
the  face  of  tlii' 
tiiis    matter  of 

catch  came  no 


resumed   tlieir 


•  to  is  the  F(.)r- 
irief.  In  tliat 
iiu;  in  Kortiinr 
li(!  vessels   iiiel 

icnetit  of    the 

!  I'nited  States 

.v"  lie(^n  taVceii 

not  ijerniitte'l 

ml  the   I'liitid 

The  case  was 
ill,  which  were, 

(Jreat   Mritain 
e    basis   oi    the 

ion  ;  hut  wlie- 
I  ;  as  a  imittiT 
:.ive  catch,  and 
I  tie  diti'er(!nce. 
pective  catdi. 
The  United 
inir  tliat  if  the 


■  (Mr.    Bei(|uc'a   Argument.) 

vessels  liad   boon  left  alone  they  would  cprtainiy   have  ^'ot  full 

cari'oes,  and  that,  tlierefore,  it  was  not  for  prospective  catch  Imt 

"actual   loss   of  property    for    which    the   dama^'e   was  awarded. 

';'Thev  treat  tlie  case  a.s  if  the  fish  had   been  landed  on  tlu^  decks 

-   and'takeii  therefrom   by  Newfoundland  fislierme!i  ;    tlu!  answer 

,,'is  evident;  ;,'ettin;,'  tisli   in   a  seine  is  not   rediiciiii,'   them   into 

l(|;fipossessioii   and  that  the  United  States  fishermen  would  have  ;;ot 

t-full  cargoes  cannot   be  a  matter  of  actual  certainty  until  the 

vssines  were  actually  brought  on  shore  with  the  fish  in  them.     In 

;  :^this  connection   I  desire  to  call  attention   to  a   case  which  came 

•ff'before  our  own  courts,  before  the  Supreme  (,'ourt  of  Nova  Scotia 

land  liefore  the  Supreme  Court  of   Canada,  where  the  \ery   (]Ues- 

s-.tion    was   rnisiMl.      Jt    is  tin;  case  of    (r'riing    vs.   The    (^)iieen, 

Vi  decided  in  .May  last,  and  rejiorted  in  27  Sui)reme  Court  Reports, 

'■'■Canada,  271.   The  facts  in  that  case  were  the  following: — 

"  A  riiiteil   States  ship  was  soi/.eii  for  fishing  in  violation  of 

20^"  Chapter  !t4of  the  Revised  Statutes  of  Canada.  This  Act,  wliich 

•-'"was  a  re-eiiactiiient  of  the  Imperial  Act.  .")!),  Oi!ori,'e  111.,  Chap. 

;■'"  ,SS,  (passed  to  enforce  the  treaty  of  I.SIS  between  (beat  Rritain 

,iV."and  the   United  States),  iirovided  that  if  any  t'cucign   vessels 


fo 


had  be-en   fish 


30^ 


loMini    lisniiig  uv  prcj);uiiig  lo  iisii,oi-  iiao  oeoo   iisii- 

i"  ing  within  three  mile.s  of  any  of  the  bays,  creeks  or  harbor.s  of 
"Canada,  without  license,'  such  vessel  should  bo  forfeited.  The 
"  facts  were  that  the  fish  had  been  encloseil  in  the  vessel's  seine, 
"  and  the  sidne  pursed  up  and  secured  to  the  vessel,  the  whole 
"more  than  three  maiine  miles  from  \ova  Scotia,  and  that  while 
"  engagt'd  in  baling  out  the  s(Mne,  and  while  a  large  number  of 
"fish  were  still  in  it,  the  ship  went  within  tlie  three  mile  limit 
"and  continued  its  optu-atioiis,  that  is,  lialiiig  the  (ish  out  of  the 
"  seine.  The  (juestion  was  whether  removing  the  fish  from  the 
".seine  inside  the  three  miles  limit  was  'fishing'  within  the 
"  meaning  of  the  Act.  It  was  argueil,  on  behalf  of  the  ship,  that 
•'  the  fish  enclosed  in  the  seines  w(>re  reduccid  to  possession,  and 
"  therefore  the  'fishing'  was  completed  while  the  ship  was  still 
'  on  the  higli  seas.  It  was  held,  however,  l)y  the  Supreme  Court 
"  of  Nova  .Scotia,  that  the  lish  had  not  been  reihiced  to  possession 

I"  and  that  the  operation  within  th((  three  mile  limit  constituted 

I"  fis-hing,  and  the  vessel   was  condemne  1.     This  judgment  was 

'confirmed  by  the  Supreme  Court  of  Canada  by   three  judges, 

two  judges  dissL-nting.  " 

Another  case  which  wa.s  referred  to  in  that  case,  :md  which 

Is  also  in  ]ioint  is  that  of    Young    and    Hichens,    reported    in    6 

QiHH'ii's  Bench,  10(!.     That  case  is  still  more  to  the  point.     T'he 

facts  of  the  case    summarized    in    the    report   were  as   follows. 

"  On  the  day  in  question  a  very    large    shoal    of  mackerel  cmhio 

into  the  bay  of  St.  Ives.     The  plaintiff's  boat  the  "  Wesley,"  put 

)ut  and  shot  her  seine,  not  conducting  herself  at    that  time,  as 

|he  defendant  alleged,  acc(n'din','-  to  th(!  regulations  of  the  Hsherj'. 

The  seine,  ni'arly  140  fathoms  long,    was  drawn  in  a  semicircle 

(Completely  around  the  shoal  with  the  exception  of  seven  fathoms, 

according    to    plaintitl's    witnesses,   ten    fathoms,    according     to 

^efemlants,  which  was    not    tilled    up    by    it.      In  this  opening, 

Siccurding  to  the  plaintiff's  witness,  the  fisheiiuen  in  the  plaintifl's 

Doat  were  splashing  with  their  oars  and  disturl)ing  the  water  in 

in  siieh  a  manner  that  as    they    afiirmed,   the    mackerel    within 

Would   have  been  effectually  preveiitt^d  from  escaping      At  this 

Wl'^gonjuiu'ture  iiefore  tlie  plaintiff   could    draw    his   net  closer,  the 

f*  Elh'ii,"  the  defendants  boat  rowed  in  through  the  opening  thus 
j^ade,  shot  lier  seine,  enclosed   the   fish,   and  captured  the  whole 

■^f  them." 

It  WHS  held  that  the  plaintiff  couhl  not  maintain  trespass  for 


I   'I 


M 


k'Mi 


\  iip 


jmmm 


mm 


182 

(Mr.    Hfiqiie's   Arj^unieiit.) 


.':-f 


'    i! 


the  takiiif,'  of  the  fish,  liis  possession  not  havini,'  hoeii  cotnplit". 
LokI  Deiiinan  said,  in  i('iiil(irin{i;ju(l;,MiH'nt : — "  It  certainly  ri'suks 
"  from  the  evidence  in  tiiis  case,  lluit  tlio  fisli  were  reduceii  to  a 
"  condition  in  widch  it  was  in  tlie  hi^jhest  det,'ree  prohalile  tlmt 
"  tlie  plaintiti'  would  lieeonie  possessed  of  them,  lint  it  is  ecumliv 
"  Certain  that  hi;  had  not  liecome  possessed.  Whether  thr 
10  '  necessary  possession  i)e  ri;,'litiy  described  liy  the  word  '  ciistudi.i  ' 
"or  '  occupatio,'  I  think  it  is  not  attained  until  the  plaintit^lm^ 
"  hrouyht  the  niiinuds  into  his  actual  power.  It  may  l)e,  inder  I, 
"  that  thi'  delrnilant  has  committiid  a  tortious  act  in  preveiitiii,' 
"  the  plaintiir  from  completin;,'  his  possession."  And  Pattersnti, 
.J. : — "  I  do  not  see  how  we  can  say  this  action  is  maintainaliji' 
"  uidess  hy  lujldiuL,'  that  a  person  oi'  the  point  of  taking'  possis- 
"  sion  of  a  thin;;  is  actually  in  pt^ssession  of  it." 

The  ( 'osta  Rica  packet  case,  I  need  not  n-fer  to  as  it  hiis 
already  heen  fully  coiumenieil  upon,  'fhe  ne.xt  case  is  the  cii-c 
20  of  Williamson  v.  ISarictt,  reported  in  K?  Howard,  pa;,'e  lOl, 
(,'urlis  Repiirls  ■I'l  I,  and  dc^cidcnl  hy  thi'  Supreme  Court  of  t!ir 
United  Stales,  and  which  I  claim  is  also  a  very  .stron^f  authoiitv 
in  our  I'avoi-.     The  facts  of  tht^  case  were  as  follows, — 

"  The  plainlitl's  ship  was  sunk  hy  a  collision  ami  afterwai.K 
"  raise(l  and  re|)aind;  the  Jury  were  instructed,  if  they  fouii  1 
'■  for  the  plaiiitiir,  to  i;ive  such  dama;,'es  as  wouM  renunieriiif 
"  them  fi;r  the  loss  necessarily  incurred  in  raisinj;  the  boat  aii'l 
"  repairin;^' her,  and  also  for  the  use  of  her  durinj^  the  linu' 
'■  necessary  to  make  the  repair.s  to  fit  her  for  husiru'ss.  Thefaci^ 
'M  "  of  that  case  cann  it  of  course  he  reconeili'd  with  fhe  facts  in 
■•  the  '  Aniiahle  .N'aney  '  and  this  wouhl  aeeniuit  for  two  or  tlncr 
' of  the  iudni's  dideriii;,'  from  the  miijoiity  '  In  this  caM'  nf 
Williamsun  v.  ISarrett,  the  head  note  reads  us  follows: — 

"  JJamai^es  fer  deniuna^'e  nd^dit  he  ;;iven  in  a  collision  cii-c 
"and  the  rate  of  freight  which  a  vessel  would  have  uarnei, 
"  deductin;^;  expenses,  is  a  proper  measure." 

Keadini,'  from  the  judgment  of  Ncdsou  .1.,  I  lind  that  he  saiil: 

"The  court    further  charn'e   that    if    tin;    jury    lind   for  tin 

"  plaintills,  they  uu^^dit  to  ,i,'ive  such  daniai,'es  as  would  remuner.iir 

40  "them    for  los.s  necessaiily    incurrtMl    in    raisin;^   the    boat  aiiil 

"  repairiu;,'  her,  and  also  for   the    use  of    her    durinij;    the  time 

"  necessary  to  make  the  re|)airs  and  Kt  her  for  business." 

That  was  the  ])oint  the  court  had  to  consider.    When  the  jnd;^'' 
came  to  discuss  the  (|Ucstion  of  damai;(t-.  lie  proceeiled  as  follows. 

"The  jury  were  instructed,  if  they  found  for  the  plaiutiti's,  tn 
"  ifive  damaj^es  that  woidd  riMuunerale  theiu  for  the  loss  nee -- 
"  sarily  incurred  in  raisin^r  the  boat,  repairini,'  her,  atnl  also  fn 
"  the  use  of  tin:  lioat  during;  the  time  necessary  to  make  tin 
"  lepairs  and  lit  her  for  business." 
'}0  "  liy  the  Use  of  the  boat  wc;  undeTstand  what  she  woui  1 
"  produce  to  the  plaiutiti's  by  the  hii'iiii,'  or  charteiini;-  of  her  tn 
"  nui  upon  the  rivur  in  the  business  in  which  she  had  In  >  ii 
"  usually  enj,'aj,'ed." 

"  The  neiicial  rule  in  re^iilatiii;,'  damaj,'es  incases  of  collisi  .n. 
"  is  to  allow  the  injured  party  an  indemnity  to  the  extent  of  tlu' 
"  lo.ss  sustained,  'rids  ^'iMieral  rule  i.s  obvious  enoui^h  ;  hut  tlu  r.' 
"  is  a  i^ood  deal  of  dilhculty  in  stating'  the  ^nounds  upon  whiili 
"  to  arrivr,  in  all  cases,  at  the  proper  nirasuie  of  that  indemnii\ . 

"  Tin-  expense  of  raisiriLC  the  Imat,  and  of  re])ail's,  may,  nf 
(JO  "  course,  be  readily  asci  itained,  ar.d  in  resfiect  to  the  repairs  im 
"  <leiluction  is  to  be  made,  as  in  insurance  cases,  for  the  m.w 
"  niiiti'rials  in  place  of  the  old.  The  ditliculty  lies  in  estimating 
"  the  damai^e  sustained  by  the  lo.ss  of  seivice  of  the  vessel  whilr 
"  she  is  underj,'oini,f  the  repaii's." 


% 


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163 

(Mr.   Beiciuu's    Argument.) 

"  That  an  iiUowaiicc  short  of  soiin^  coiniiciisiitinn  for  this  1(js.s 
woiilil  full  to  he  an  in(h'iniiity  for  thi>  injury  is  apparent.  This 
(jiii^>tion  was  (iiii'ctiy  hcfori'  tho  (')urt  of  Ailniiralty  in 
Kii:;lanii,  in  tliucasc  of  the'  (iazi'llu,"  lifciiled  hy  Dr.  Lusliin;,'t()n, 
in  ?S.S4,  2  \V.  Kohinson,  27!(.  That  was  a  ease  of  collision,  ami 
in  lieciilini,' it,  the  court  oliserved  :  '  Tiint  the  party  who  hail 
siiliercd  tlie  injury  is  clearly  entitli'il  to  an  aiieipiale  conipen- 
.•^ation  f.ir  any  loss  he  nia>  snstain  foi'  tlie  detention  of  the 
vessel  durinj,'  the  period  whicli  is  necessary  for  tlie  completion 
of  repairs,  and  furnishint,'  the  ik^w  articles.'" 

"  In  ti.^in;;  the  amount  of  the  dama;,'es  to  lie  paid  foi  the 
detention,  the  conit  allowed  the  gross  freight,  deilucting  so 
much  as  would,  in  ordinary  cases,  hj  disbursed  on  account  of 
the  ship's  expenses  in  earning  it. 

"A  case  is  leferred  to,  decided  in  the  connnon  law  courts,  in 
which  till'  gross  freight  was  allowed  without  any  reduction  for 
expenses,  which  was  disiipprovi^d  as  heiiig  iineipiitillile  and 
excelling  an  adeipiate  compeiisatioti,  atnl  the  ipi:ilitication  wo 
have  slated  laid  down.  " 

"  This  rule  may  afford  a  very  fair  indemnity  in  ca-ies  wliere 
till!  lepairs  are  completed  within  the  period  usiiall}'  occiijiied 
li\  the  voyage  in  which  the  frei;,dit  is  to  lie  earned.  Hut,  if  a 
longer  p.M-iod  is  lecjuired,  it  ohviously  falls  short  of  an  nile(piii!e 
ii'lowance.  Ntithei-  will  it  apply  wl.riv  tlie  vessel  is  not 
engaged  in  earning  freight  at  the  time.  The  ])rinciple,  liow- 
ever,  governing  tin;  court  in  adoiiting  tlie  freight  which  tlie 
vessel  was  in  the  act  of  earning,  as  a  just  measure  of 
couipeir-ation  in  tli-  ease,  is  one  of  general  a|)plicatiiin.  It 
looks  to  the  cap,'i"it\  of  the  vessel  to  earn  freight  for  the 
lienetit  of  the  owner,  anil  consei|ueiit  lo-s  sustained  while 
deprivei]  of  hiir  service.  In  other  words,  to  the  amount  she 
wcjuld  earn  him  on  hire." 

■  It  is  true,  in  that  case,  the  shi[)  was  cngagt'il  in  earning 
freight  at  the  time  of  the  collision  ;  and  the  loss,  therefore, 
nioie  fixed  and  certain  than  in  the  case  where  she  is  not  at  the 
time  under  a  charter  [laity,  and  where  her  earnings  must  in 
some  measure  depend  ujion  the  contingency  of  ohtaining  for 
her  emiiloymelit.  If,  however,  we  look  to  the  ilemand  in  the 
market  for  \'essels  of  the  <lescri|)tion  that  lias  lieen  disaMed, 
and  to  tin;  piice  there,  which  the  owiiei-  could  olitain  or  might 
have  olitaiiieil  I'or  her  hire  as  the  nieasuiu  of  compensation,  all 
this  uncerlainity  disappears.  If  tliete  is  no  demand  for  the 
eiiiploynient,  and,  of  course,  no  hire  to  be  obtained,  no  comjien- 
sation  for  the  detention  during  the  repairs  will  be  allowed,  as 
no  loss  would  be  sustained." 

"  Hut,  if  it  can  be  shown  that  the  vessel  might  have  been 
chartered  dui  iiig  the  period  of  the  rejiaiis,  it  is  impossible  to 
deny  that  the  owner  has  lost  in  coiiseipieiice  of  the  damage, 
the  amount  which  she  might  have  thus  earned." 

■  The  maiket  price,  therefore,  of  the  hire  of  the  vessel 
applied  as  a  test  of  the  value  of  the  service  will  be,  if  not  as 
certain  as  the  case  wlieie  she  is  under  charter  party  at  least 
so  certain,  for  all  [iractical  juirposes  in  the  administration  of 
justice,  no  substantial  distinction  can  lie  made.  It  can  be 
ascertained  as  readily,  and  witii  vs  much  jirecision  as  the  |)rice 
of  aiiv  given  commodity  in  tb  narket,  and  atlbrds  as  clear  a 
rule  for  estimating  the  damage  :  ustained  on  account  of  the  loss 
of  her  service,  as  exists  in  the  case  of  damage  to  any  other 
iliH'iiption  of  personal  pr'ijierty,  of  which  the  party  has  been 
deprived." 

'  111  the  case   of  the  '  Gazelle,'  for   aught  that  appears,  the 


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(716)  •73-4503 


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154 


(Mr.   Beiquc's   Argument.) 

"  allowance  of  tlio  freight  nfforfleil  a  full  indoiunity  for  the 
"  detention  of  the  vessel  while  untlergoing  repairs.  This  wnuM 
"  be  so,  as  already  stated,  if  they  were  made  within  the  period 
"  she  would  have  been  engaged  in  earning  it.  If  it  were  other- 
"  wise,  it  is  certain  that  the  indeninitj'  allowed  fell  short  of  the 
"  rule  laid  down  under  which  it  was  made,  which  was,  that  the 
10  "  party  was  entitled  to  an  adecjuate  rompeiisation  for  any  loss 
"  he  might  sustain  for  the  detention  of  the  vessel  during  the 
"  period  which  was  necessary  for  the  completion  of  the  repairs 
"  and  furnishing  the  new  articles." 

"  The  allowance  of  the  freight  she  was  earning  at  the  lime 
"  was  liut  a  modi-  of  arriving  at  the  loss  in  the  particular  case 
"  umler  the  general  rule  thus  broadly  stated,  and  atlbrded,  doubt- 
•"  less,  full  indemnity." 

"  We  are  of  opinion,  therefore,  that  the  rule  of  damages  laid 
"  <l()wn  by  the  court  below  was  the  correct  one,  and  is  properly 
20   "  applicable  in  all  similar  cases." 

This  was  n  case,  the  result  of  an  acciilent,  wheie  the  object 
was  not  that  of  depriving  or  interfering  with  the  business  of  the 
party  complaitnng. 

The  nejkt  ca^e  to  which  I  shall  refer,  also  most  important,  is 
the  case  of  Allisim  vs.  Chandler.  The  facts  nf  the  case  were 
briefly  the  following:  — 

The  <lefendant,  the  owner  of  a  building  occupied  by  tenant.s 
for  business  purjjoses,  wrongfully  tore  down  the  building,  which 
made  it  a  case  of  total  loss  to  the  tenant,  and  the  tfuant  never- 
.10  theless  was  alloweii  damages  for  prospective  profit  in  his 
busiiies'.-.  The  juilgmetit  was  entered  by  Justice  '  'hristiancy.  The 
Judgment  is  (|uite  liiigthy,  but  I  would  readily  adopt  the  language 
of  the  learned  judge  as  covering  the  riili's  appiicaliie  to  this  case. 
In  the  head  note  I  find  a  summary  of  the  decisions  applicable  to 
this  case,  ill  the  fnllowing  words:  — 

"  Mi'imurc  of  iliiiiiiK/i's  ill  (tcliun  of  tort. — The  statement  that 
"  the  rule  of  damages,  where  there  is  no  fraud,  wilful  negligence, 
"  malice,  i/ppression,  vXq.,  is  the  same  in  actions  of  tort  as  in  tho.so 
"  upon  contract,  though  doubtless  true  in  its  application  to  those 
40  "  cases  of  tort  where,  from  the  nature  of  the  case,  elements  of 
"  ci'rtaint}-  e.xist  by  which  substantial  compensation  may  bo 
"  readily  estimated,  and  other  cases  whieh  are  Imt  nominally  in 
"  tiirt,  can  not  be  accepteil  as  a  principle  of  iniiversal  applica- 
"  tion,  nor  be  justly  applied  to  any  case  of  actual  aggressive  tort, 
"  where,  from  the  nature  and  circumstances  of  the  case  itself,  no 
"such  elements  (if  certainty  are  found  to  exist,  or  none  which 
"  will  apply  substantially  to  the  whole  case,  nor  to  any  ca.so 
"  where  the  rule  applicable  to  breaches  of  contract  would  exclude 
"  a  material  portion  of  the  damages  the  injured  party  may  have 
oO  "  suffered,  though  the  amount  of  the  latter  may  not  be  capable 
"  of  accurate  calculation  by  any  fixed  and  ilefinite  rule." 

"  firiilflvcf  of'  ilnmoifi'  in  action  of  tort. —  Where,  from  the 
"  nature  of  the  case,  the  atnount  of  the  damages  in  an  action  of 
"  tort  can  not  be  estimateil  with  certainty,  or  onl^-a  part  of  them 
"  can  be  so  estimated,  all  the  facts  and  circtimstatices  of  the  case, 
"  having  any  tenilency  to  show  damages,  or  their  probable 
"  amount,  may  be  placed  before  the  jury,  so  as  to  enable  them  to 
"  make  the  most  intelligible  an<l  probable  estimate  which  the 
"  nature  of  the  case  will  permit." 
tlO  '  h'viili'iicfi  of  (liinitii/c. — As  a  general    thing,    in  an   action 

"  purely  of  tort,  where  the  amount  of  profits  lost  by  the  injury 
"can  be  shown  with  reasonable  certainty,  they  are  not  onlj- 
"  ailmissible  in  evidence,  but  they  constitute,  thus  far,  a  safe 
"  measure  of  damages." 


155 

(Mr.    Bolque's   Artjumcnt.) 


Lous  of  profitn. — And  where  the  plainliif  was  engagcil  in  the 
"  business  of  repairing  watches,  making  gold  pens  and  selling 
'•  jewellry,  on  the  prenuses  which  were  rendered  untenantable  by 
"  tiiu  trespass,  it  was  held  that  evidence  of  his  past  profits  in 
'  that  btisinees  at  that  place,  though  they  could  not  be  taken  as 
"  tiie  exact  measure  of  future  profits,  were   proper  to  be  proved 

10  and  taken  into  consideration  by  the  jury,  and  allowed  such 
"  weight  as  they,  in  the  exercise  of  good  sense  and  souml  discre- 
"  tion,  should  think  them  entitled  to." 

The  judgment  was  rendered  by  Judge  Christiancy,  and  I  will 
road  some  portions  of  it ; — 

"  While  in  many  cases  the  rule  of  damages  is  plain  and  easy 
"  of  np|>lication,  there  are  nmny  others  in  which,  from  the  nature 
"  of  the  subject  matter,  and  the  peculiar  circumstances,  it  is  very 
'  liifKcult,  and  in  some  cases,  impossible,  to  lay  down  any  definite 
"  fixed  rule  of  law  by  which  the  damages  actually  sustained  can 

2(1  "  be  estimated  with  a  reasonable  degree  of  accuracy,  or  even  a 
"  probable  approximation  to  justice  ;  and  the  injury  must  be  left 
"  wholly,  or  in  great  part,  unredressed,  or  the  question  must  be 
"  left  to  the  good  sense  of  the  jury  upon  all  the  facts  and  cir- 
"  cPMistances  of  the  case,  aided  by  such  ailvicc  and  instructions 
"  friim  the  court  as  the  peculiar  facts  anil  circumstances  of  the 
"  case  may  seem  to  require  But  the  strong  inclination  of  the 
"courts  to  administer  legal  redress  upon  fixe<i  and  certain  rules 
"  has  sometimes  led  to  the  adoption  of  such  rules  in  cases  to 
"  which  they  could  not  be  consistenfly  or  justly  applied.     Hence 

30  "  there  is,  perhaps,  no  branch  of  the  law  upon  which  there  is  a 
'■  greater  confli' '  of  judicial  decisions,  and  none  in  which  so  many 
"  mo'^iy  arbitrary  rules  have  been  adopted.  We  have  carefully 
"examined  all  the  cases  cited  in  the  verj'  elaborate  briefs  of  the 
"  respective  counsel,  and  the  most  approved  elementary  treatises 
"  upon  the  subject,  and,  without  atti^mpting  here  to  compare  and 
"  analyze  them  (which  would  rerjuire  a  treatise,  we  are  compelled 
"  to  say  that  the  lino  of  mere  authority  upon  questions  of  dain- 
"  ages  like  that  here  pre.sented,  if  any  such  line  can  be  traced 
"  tlirougli  the  conflict  of  hostile;  decisions,  is  too  confused  and 

40  "  tortuous  to  guide  us  to  a  safe  or  satisfactory  result,  without 
"  resort  to  the  principles  of  natural  justice  and  sound  policy 
"which  underlie  these  questions  and  which  have  sometimes  been 
"  overlooked,  or  obscured  by  artificial  distinctions  and  arbitrary 
rulf«. 
"  The  principle  of  compensation  for  the  loss  or  injury  sus- 
"  tained  is,  we  think,  that  which  lies  at  the  basis  of  the  whole 
•'  question  of  damages  in  most  actions  at  common  law,  whether 
"  of  ciuitract  or  tort.  We  do  not  here  speak  of  those  actions  in 
"  which   punitory  or  exemplary  damages  may    be  given,  nor  of 

.")0  '  those  whose  principal  object  is  the  estal.>li.shment  of  a  right, 
"  where  merely  nominal  damages  are  proper.  But,  with  these 
"  exceptions,  the  only  just  theory  of  an  action  for  damages,  and 
'  its  primary  object,  would  seem  to  be,  that  the  damages  to  be 
"  recovereil  should  compensate  the  loss  or  injury  sustainetl.  We 
"concur  entirely  with  the  t'ourt  of  Appeals  in  New  York  in 
'  (biffin  V.  C'olver,  10  N.  Y.,  402,  in  repudiating  the  doctrine 
"  adopted  by  Mr.  Sedgwick,  from  Domat  (Sedgw.  on  Dams,  3,  .S7, 
'  :1H,  etc.),  that  '  the  law  aims  not  at  the  satisfaction,  but  the  divi- 
"  sion,  of  the  loss.'     Such,  it  is  true,  is  often  the  result  of  an 

f)0  "  action,  but  never  the  object  of  the  law.  The  law  may,  and 
"  often  does,  fail  of  doing  complete  justice,  from  the  imperfection 
'  of  its  means  of  ascertaining  truth,  and  tracing  and  apportioning 
"  effects  to  their  various  causes  ;  but  it  is  not  liable  to  the  reproach 
'  of  doing  positive  injustice  by  design.      Such  a  doctrine  wouhl 


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156 


(^Mr.    Beique's   Argument.) 

"  tend  not  only  to  niako  tliu  law  it.scif  oilious,  but  to  corrupt  its 
"  ailniinistration,  l>y  fostering  a  disregard  of  the  just  rights  of 
"  parties.  In  actions  upon  contract,  especially,  and  those  nonun- 
"  ally  in  tun,  but  Hiibxtantially  upon  cuntrnct,  courts  have  thought 
"  it  generally  safer,  upon  the  whole,  to  adopt  certain  definite 
"  rules  for  the  government  of  the  jur}'  by   which  the   damages 

10  "  coidd  be  estimated,  at  thi^  ri^k  of  falling  somewhat  short  of  the 
"actual  damages,  by  rejecting  such  as  could  not  be  estimated  by 
"  a  fixed  rule,  than  to  leave  the  whole  matter  entirely  at  large 
"  with  the  Jury,  without  any  rule  to  govern  their  discretion,  or 
"  to  detector  correct  errors  or  corruption  in  the  verdict.  In  such 
"cases,  therefore,  there  has  been  a  strong  incliiiHtion  to  seize 
"  upon  such  elements  of  certainty  as  the  case  nnght  happen  to 
"  present,  and  as  might  appro.ximate  compensation,  and  to  frame 
"  thereon  rules  of  law  for  the  tiKiasurement  of  damnges,  though 
"  it  might  be  e\  ident  that  further  damages  must  have  been  suf- 

20  "  feied,  which,  however,  could  only  be  estimated  as  a  matter  of 
"  opinion,  and  must  therefore  bo  excluded  under  the  r\iies  thus 
"  adopted.  And  it  is  not  to  bederued  that  this  course  of  decision 
"  has  sometimes  been  extended  to  actions  purely  of  tort." 

"  Hut  whatever  ]>lausibil  ty  there  may  be  in  the  theory  of 
'■  Mr.  Sedgwick  when  ap|)lied  to  actions  upon  contract — a 
"  plaiiNiliiiity  which  arises  from  mistaking  the  lesult  for  the 
"  ol'jeet — tin!  injustice  of  such  a  princifile,  when  applied  to  cases 
"  of  actual,  positive  tort,  like  that  here  in  (|uestion,  would  be  so 
'■  gross  as  to  shock  all  sense  of  justice." 

oO  '■  It  has  been  frequently  saiil  that  the  luli;  of  damages,  where 
"  there  is  no  fraud,  wilful  negligence,  malice,  (ippressioii,  etc,  is 
"  the  same  in  actions  of  tort  as  in  those  upon  contract.  Hut, 
•  though  the  remark  is  doubtless  true  in  its  application  to  those 
"  cases  of  tort  where,  from  the  nature  of  the  case,  elements  of 
"certainty  exist,  by  which  substantial  compensation  may  be 
"  readily  estimated,  ami  other  case.s  which  are  but  nouunally  in 
"  tort,  we  do  not  think  it  can  be  accepted  as  a  principle  of 
"  universal  application  ;  not,  in  our  opinion,  can  it  be  justly 
"  applieil  to  any  case  of  actual,  aggressive  tort,  where,  from  the 

40  "  nature  and  circumstances  of  the  case  itself,  no  such  elements  of 
"  certainty  are  found  to  exist,  or  none  which  will  apply  sub- 
"  stantially  to  the  whole  case,  nor  to  any  case  where  the  rule 
"  applicable  to  breaches  of  contract  woidd  exclude  a  material 
"  portion  of  tlie  damages  the  injiu'etl  party  may  have  suH'ered, 
"  though  the  aiuount  of  the  latter  may  not  be  capable  of  accurate 
"calculation  by  any  tixtnl  and  defiiute  rule." 

"  None  of  these  several  considerations  have  any  bearing  in 
"  an  action  purely  of  tort.  The  injured  party  has  consented  to 
"enter  into  no   relation    with    the    wrong-iloer    by    which   any 

oO  "  hazard  of  loss  should  be  incurred  ;  nor  has  he  receiveil  any 
"  consicleration,  or  chance  of  benefit  or  advantage,  for  the 
"  assumpti(/n  of  such  hazard  ;  nor  has  the  wrong-doer  given  any 
"  coiisideiation,  nor  assumed  any  risk,  in  consequence  of  any  act 
"  or  consent  of  his.  The  injured  paity  has  had  no  opportunity 
"  to  protect  himself  liy  contract  against  any  uncertainty  in  the 
"estimate  of  damages;  no  act  of  his  has  contril)Ut'id  to  the 
"injury:  helms  yielde<l  nothing  by  consent:  and,  Ituist  of  all, 
"  has  he  consented  that  the  wrong-doer  might  take  or  injure  his 
■'  pioperty  or  deprive  him  of  his   lights,  for    sue';    sum    as,   by 

0(»  "  tin-  strict  rules  which  the  law  has  established  for  the  measure- 
"  ment  of  damages  in  actions  upon  contract,  he  may  be  able  to 
"  show,  with  ceitainty,  he  has  sustained  by  such  taking  or  injury. 
"  Kspecially  woidd  it  be  unjust  to  presume  such  consent,  and  to 
"  hold  him  to  the  recovery  of   such   damages   only    as  may   bo 


137 
(Mr.  Bttique's   Argument.) 


'20 


;{() 


40 


0(1 


CM 


measured  with  certaintj'  liy  fixed  and  definite  rules,  wlien  tlio 
caKe  is  one  wliicli,  from  its  very  nature,  atibrds  no  elements  of 
certainty  by  wiiich  the  loss  he  has  actually  suHered  can  be 
sliown  with  accuracy  bj'  iiny  evidence  of  which  the  case  is 
susceptible.  Is  lie  to  blame  because  the  case  happens  to  l)e 
one  of  thi  'character  ?  He  has  had  no  choice,  no  selection.  The 
nature  of  the  case  is  such  that  the  wron^^^loer  has  chosen  to 
make  it ;  and  upon  every  principle  of  justice,  he  is  the  party 
who  should  be  niaile  to  sustain  all  the  risk  of  lo^'s  which  may 
ari:<e  from  the  uncertainty  pertainin;;  to  the  nature  of  the  case, 
and  the  difficulty  of  accurately  estimatinj{  the  results  of  his 
own  wrouf^ful  act.  Upon  what  principle  of  rij,d)t  can  courts  of 
justice  assume — not  simply  to  divide  this  risk,  which  vvmdil  be 
thus  far  unjust — •l)ut  to  relieve  the  wron}{-doer  from  it  entirely, 
and  throw  the  wliole  upon  the  innocent  and  injured  party  ? 
.Must  not  such  a  course  of  decision  tend  to  encourage  tres- 
passes, and  operate  as  an  inducement  for  parties  to  right 
themselves  by  violence,  in  ca-os  like  the  present?" 

''Since,  from  the  Huture  of  ihe  ease,  the  durnages  cannot  be 
estimated  with  certainty,  and  there  is  a  risk  of  giving  by  one 
course  of  ti'ial  less,  and  by  the  oiIhm-  more  than  a  fair  compen- 
sation— to  say  notliiiig  of  justice — does  not  sound  policy  recpiire 
that  the  risk  should  be  thrown  upon  the  wrong-doer  instead  of 
the  injured  jiarty  ?  However  this  question  may  be  answered, 
we  cannot  resist  tin;  conclusiin  that  it  is  better  to  lun  a  slight 
risk  of  giving  somewhat  more  than  actual  compensation,  than 
to  ailopt  a  rule  which,  umlerthe  r ircunistancesof  the  case,  will, 
in  all  reasonable  probability,  preclude  the  injured  party  from 
the  recovery  tif  a  large  jjroportion  of  the  damages  be  has 
actually  sustained  from  the  injury',  though  the  amount  thus 
excludetl  cannot  be  estimated  with  accuracy  by  a  fixed  and 
certain  rule.  Certainty  is  doubtless  verj'  desirable  in  estimating 
damages  in  all  caues ;  ami  where,  from  the  nature  atid  circum- 
stances of  the  case,  a  rule  can  be  iliscovered  by  which  adetjuate 
compensation  can  be  accurately  nieasureil,  the  rule  should  be 
applied  in  actions  of  tort,  as  well  as  in  those  upon  contract. 
Such  is  (piite  generally  the  case  in  trespass  and  trover  for  the 
taking  or  conversion  of  personal  pioperty,  if  the  propel ty  (as 
it  generally  is)  be  such  as  can  be  readily  obtained  in  the 
market  and  has  a  market  value.  But  shall  the  injured  party 
in  an  action  of  tort,  which  may  happen  to  fuinish  no  element 
of  certainty,  be  alloweil  lO  recover  no  damages  (or  merely 
nominal)  because  he  cannot  show  the  exact  amount  with 
certainty,  tlntugb  he  is  n-ady  to  show,  to  the  .satisfaction  of  the 
jury,  that  he  has  sufieied  large  damages  by  the  injury? 
('ertainty,  it  is  true,  would  thus  be  attained,  but  it  woulil  be 
the  certainty  of  justice.  And,  though  a  rule  of  certainty  may 
be  found  which  will  measure  n  portion  and  only  a  portion  of 
the  damages,  and  exclude  a  very  material  portion,  which  it 
can  be  rendered  morally  certain  the  injured  party  has  sustained, 
though  its  exact  amount  cannot  be  measureil  by  a  fixed  rule  ; 
here  to  apply  any  such  rule  to  the  whole  case,  is  to  misapply 
it;  and  so  far  as  it  excludes  al!  damages  which  cannot  be 
nieasured  by  it,  it  perpetrates  pwitive  injustice  under  the 
pretense  of  administering  justice." 

"  The  law  does  not  recjuire  im|)ossibilities,  and  cannot,  there- 
fore, require  a  higher  degree  of  certainty  than  the  nature  of 
the  case  aduuts.  And  we  can  see  no  good  reason  for  re<iuiring 
any  higher  degree  of  certainty  in  respect  to  the  amount  of 
damages  than  in  lespect  to  any  other  branch  of  the  cause. 
Juries  are  allowed  to  act  upon  probable  and  inferential,  as  well 


:'      '-ni 


, I'  >' 


li 


■a  '     .'■> 


jpr 


(Mr.   Beique'H  Ar^ruinetit.) 

"  as  direct  nml  positive  proof.  Ami  when,  from  tho  nature  of 
"  tlie  casu,  tile  aiiioiiiit  of  thu  daiiiajjos  cannot  lie  csiiniated  with 
"  certaint}',  or  only  a  part  of  tliem  can  be  estiinated,  wo  can  see 
"  no  oliJL'ction  to  plucin;{  liefore  the  jury  all  the  facts  and  cir- 
"  ciiniNtanccs  of  the  case,  havin^r  any  tendency  to  show  diinia^^es, 
'  01  their  prohulde  aiiKiiint,  ko  as  to  enahle   thcni  to    make  the 

10  "  most  intilli^iiiie  and  prolialile  o.Htiniate  which  the  nature  of  thu 
"  case  will  permit.  This  should,  of  course,  he  done  with  such 
"  instruction  and  advice  from  the  court  as  the  circumstances  of 
"  the  case  may  tefjuire,  and  as  may  tend  to  prevent  the  allowance 
"  of  such  as  miy  he  merely  possible,  or  too  remote  or  fanciful  in 
"  their  character  to  lie  safely  considered  as  the  result  of  the  injury," 
"  Hut  it  is  insisted  that  loss  of  profits  constitutes  no  piopcr 
"  ;{iouiid  or  eleiiieiit  of  dnnia<rcs.  If  there  he  any  such  rule  of 
'  law  it  is  certainly  nut  a  universal,  .ind  can  hardly  he  called  a 
"  general  rule.     Decisions,   it  is  true,  may  he  found    whieli  seem 

20  "  to  take  it  for  j.'ranted  that  the  rule  is  universal.  Hut  there  are 
"  numerous  cases,  even  for  breach  of  contract,  in  which  profits 
"  have  been  properly  held  to  constitute,  not  only  an  element,  but 
"  a  )iii7(,stu'e  fand  sometimes  the  mili/  mt'iiHure)  of  damajjes  ;  as 
"in  .Mast.rton  v.  The  Mayor,?  Hill,'(il  ;  I'hil.  W.  &  H.  11.  K.  Co. 
"  v.  Howard,  13  How.  344.  And  in  actions  for  breach  of  contract 
"  in  nut  delivciin^;  !,'o(ds  (as  wheat  or  other  articles)  havin;^  a 
"  inurkctal  le  value,  as  well  as  in  most  actions  of  tresjiass  or 
"  trover  for  the  takin<;  or  conveision  of  sueli  property  wherever 
"  the  difj'erence  between  the  contract  price,  or  the  maiket  value 

30  "  Hi  the  time  of  takin>,'  or  conversion,  and  the  hi^jher  market 
"  value  at  any  suliseijUent  period,  it  held  to  constitute  the 
''  damn<;es,—  in  all  such  eases  this  difference  of  price  is  but  another 
'■  name  for  jirotits.  and  is  yet  very  properly  held  to  be  a  mi  asurc 
"  iif  iliimuyes.  'I'liere  is  nothing,  therefore,  in  the  nature  of 
"  picitits,  as  such,  whieh  prevents  tlieii-  allowance  as  damarjes. 
"  Hut  ill  iiijiny,  and  perhaps  the  majority,  of  cases  upon  contract 
"  in  which  the  (piestion  has  arisen,  they  have  been  too  remote  or 
'■  dependent  upon  too  many  contin<;encies  to  be  calculated  with 
"  reasonable  certainty,  or  to  have  been  within  the  contemplaMon 

40   "  of  the  parties  at  the  time  of  entering  into  the  contract." 

"  Hut  there  are  also  cases  for  lireach  of  contract  where 
"  thiiu^di  the  profits  were  in  their  nature  s  imewhat  uncertain 
"  and  contin;,'ent  (and  in  most  of  them  ipiite  as  much  so  as  in  the 
"  ple^ent  case),  they  were  yet  held  to  constitute,  not  strictly  a 
"  nieasur"'.  but  ai!  element  of  daina<res  proper  for  the  considera- 
"  tion  of  a  jury,  to  enable  them  to  form  a  jud;^nient  or  probable 
"estiiimte  of  the  <lania}{es:  as  in  McNeill  v.  Keid,  9  Hint;.,  (IS; 
"  Haj^l.-v  V.  Smith,  10  N.  Y.,  48!) ;  dale  v.  Leckie,  2  Stark.,  107  ; 
•  Ward"  v.  Smith.  11  Price,  1!) ;  Urines  v.  Dwi^ht,  17  Wend.,  71  ; 

iiO  "  and  see  Hassenj^er  v.  Thorburn,  ,'}.')  Harb.,  17..  And  in  Waters 
"  v.  Towers,  20  E.  L  i:  K.,  410,  the  jury  were  allowed  to  take 
"  into  consideration  the  profits  •■•hich  mij^ht  have  been  made 
'  upon  a  collateral  contract  (though  void  by  the  statute  of  frauds) 
"  and  see  .McNeill  v.  Keid,  supra ;  while,  iiy  the  American 
"  authorities,  profits  of  this  description  have  Ijeen  almost 
"  uniforinaly  rejected." 

But  whatever  may  he  the  rule  in  actions  upon  contract,  we 
"  think  a  m<'re  liberal  rule  in  regard  to  damat^es  for  profits  lost, 
"  should  prevail  in  actions  purely  of  tort  (exceptinij  perhaps  the 

GO  "  action  of  trover).  Not  that  they  should  be  allowed  in  all  cases 
"  without  distinction  ;  for  there  are  some  cases  where  they  mi^hl 
•'  ill  their  nature,  he  t<io  entirely  remote,  speculative  or  contin- 
"  ^enl,  to  form  any  reliable  basis  for  a  probable  opinion.  And 
"  perhaps  the  decisions  which  have  been  excluded  the  anticipated 


159 

(Mr.   Boi(|Uti'H    Argutiiont.) 

"  profitN  of  a  voyage  broken  up  by  illegBl  capture  or  collision, 
"  limy  i>o  properly  justifieil  upon  this  ground  ;  upon  this,  however, 
'  we  express  no  opinion.  But  generally,  in  an  action  purely  cf 
"  tort,  wliere  the  amount  of  profits  lost  by  the  injury  can  bo 
•'  shown  with  reasonable  certainty,  wo  think  they  are  not  only 
-'  atlniissiMe  in  evidence,  but  that  they  constitute,  thus  far,  a  safe 

10  'measure  of  dainnges ;  as  when  they  are  but  another  name  for 
the  use  of  a  mill  (for  example),  as  in  White  v.  Mo,seIey,  8  Pick. 
"  .S'i(i ;  or  for  the  use  of  any  other  property  where  the  value  or 
"  profit  of  the  use  and  can  be  made  to  appear  with  reasonable 
"  certainty  by  the  light  of  pas*,  experience,  as  might  often  be 
"done  where  such  profit.s  had  '>uen  for  n  connideralile  time  unifom 
"  at  the  same  season  of  the  year,  and  ther.;  are  no  circumstances 
'•  tending  to  show  a  probable  diminution,  had  the  injury  not 
"  occurred." 

"  Past  profits  in  such  ea.sos,  where  the  business  has  been  con- 

20  tinned  for  some  length  of  time,  wouhl  constitute  a  very  material 
•  aid  to  the  jury  in  arriving  at  a  fair  probable  <  .tiniate  of  the 
"  future  profits,  had  the  business  still  continued  without  intcr- 
•'  ru|ition." 

"  Accordingly  such  past  profits  have  been  alloM'ed  for  this 
"  purpose,  both  in  actions  ex  contractu  and  ex  delicto,  though 
"  more  fre([tiently  in  the  latter,  where  from  the  nature  of  the  case 
"  no  element  of  greater  certainty  aj)peare<l,  and  the  actual 
"  dftiiinges  must  be  more  or  lesr,  a  matter  of  opinion  ;  and  where, 
"  as  in  the  present  case,    though    somewhat   inconclusive,  it  was 

SO  •  the  best  evidence  the  nature  of  the  case  admitted.  See  Wilkes 
"  v.  Hiingerford,  2  Bing.  N.  C,  281  ;  Ingram  v.  Lawson,  fi  Bing. 
"N.  C,  212;  Lii-our  v.  The  Mayor,  4  Deur,  •!()() ;  and  the  follow- 
'■  ing  in  actions  upon  contract ;  Driggs  v.  Dwight,  17  Wend  ,  71  ; 
"  Bagley  v.  Smith,  10  N.  Y.,  489." 

"  But  it  is  urged  by  the  coun.sel  for  the  defendant  that 
'  (Ir.iiiages  for  the  loss  of  profits  ought  not  to  be  allowed,  because 
"  they  c.iuld  not  have  been  within  th  contemplation  of  the 
"  def^niknt.  Whether,  as  matter  of  i..v;i,,  this  is  likely  to  have 
"  bifu   true,  wy  do  not   deem  it   important  to    inquire.     It    is 

4(1  "  wholly  immaterial  whether  the  defendant  in  committing  the 
"  tr(>spass  actually  contemplated  this,  or  any  other  species  of 
"  damage  to  the  plaintitt'.  This  is  a  consideration  which  is 
"  confined  entirely  to  cases  of  contracts,  where  the  question  is, 
"  what  was  the  extent  of  obligation,  on  this  respect,  which  both 
"  parties  understood  to  be  created  bj-  the  contract.  But  wh'ere  a 
"  party  commits  a  trespass  he  must  be  held  to  contemplate  all 
"  the  damages  which  may  legitimately  follow  from  his  ill-.»gal  act. 
"  And  where  a  party,  though  acting  in  good  faith,  yet  knowing 
"  his  right  to  be  disputed   by   a  party    in   possession,  instead  of 

.'iO  "  resorting  to  a  judicial  trial  of  his  right,  assumes  to  take  the 
"  law  into  his  own  hands,  and,  by  violence,  to  seize  the  property 
"  or  right  in  dispute,  he  must  be  held  thereby  to  assume,  on  the 
"  onu  hand,  the  ri.^^k  of  being  able  to  show,  when  the  other  party 
"  iiriiigs  him  into  court,  that  the  property  or  right  was  his,  or 
"  that  his  act  was  legal  :  or,  on  the  other,  of  paying  till  the 
"  davKigen  the  injured  party  may  have  suffered  from  the  injury ; 
"  and  if  those  damages  are  in  their  nature  uncertain,  then  such 
"  as,  from  all  the  circumstances,  or  the  best  light  the  nature  of 
''  the  ca.»:e  affords,  a  jury   in   the  existence  of  good  sense  and 

(iO  "  sound  discretion,  may  find  to  be  a  full  compensation." 

This,  of  course,  contains  abnut  all  the  reasoning  that  can  be 
offered  on  the  question. 

The  next  case  to  which  I  desire  to  call  attention  was  referred 
to  by  my  learned  associate      It  is  the  case  of  the  "  Argentino," 


IH'! 


H 


m 


1 1 


100 


(Mr.    Beiqiio'M   Ar^^ument.) 

14  Appeal  Cases  519.     I  will    read  tho  hoad  note  and  a  short 
passage  from  the  jtidgiiient : — 

"  A  collision  occurred  between  two  vessels,  tho  A.  and  thn  0., 
*'  shortly  after  a  contract  had  been  made  by  the  owners  of  the 
"  A.,  that  upon  tlm  completion  of  her  then  voyage  she  should 
"  proceed    upon  another   voj'age.     The   repairs   to  the  A.  ma«lo 

10  "  necessary  by  the  collision  could  not  be  completed  in  time  to 
"  enable  her  to  fiilKI  the  contract.  In  an  action  by  the  owners 
"  of  the  A.  against  the  owners  of  the  O.,  the  former  claimed 
"  damages  in  respect  of  the  loss  of  the  earning*<,  which  would 
"  have  been  derived  from  the  employment  contracted  for." 

"  Helil,  atlirming  the  decifion  of  the  Court  of  Appeal  (13  P. 
"  D ,  101),  that  the  damages  claimed  were  not  too  remote  but 
"  flowed  direetly  and  naturally  from  the  collision,  and  that  such 
"  daiiiiigcs  shoulil  l)e  allowed  as  woubl  represent  the  loss  of 
"  ordinal  J'  and    fair  earnings   of  such   ships  as   the   A,  having 

20  "  regard  to  the  fact  that  the  contract  had  been  entered  into." 

Reading  now  fiom  Lord  Hershell's  remarks  : — 

"  The  question  raised  by  this  appeal  is  whether  the  damages 

"  claimed  hy  the  '  Argentino,'  in  respect  of  the  loss  of  the  earn- 

"  ings  which  would  have  been  derived  from  the  ompioyment  of 

"  the  vessel  which  had  been  arranged  for  prior   to   the  collision, 

"  are  in  point  of  law  recoverable.     It  is  admitted   !hat  there  is 

"  no  special  rule  of  tho  Admiralty  Court  governing  the  ((uesfiou, 

"  and  that    the  law  there  administered    in   relation   to   such   a 

■    "  matter  is  the  same  as  prevails  at  common  law.     Your  lordships 

tiO  "  have,  theiefore,  to  consider  whetbei',  if  this  were  an  action 
"  brought  in  the  Courts  of  Common  Law  and  tried  by  a  jury, 
"  the  judge  ought  to  have  directed  the  jury  that  these  danuiges 
"  could  not  be  recovered  on  the  ground  that  they  were  too 
"  remote.  That  damage,  (hough  undoubtedly  traceable  to  the 
"  wrong  in  respect  of  which  the  action  is  brought,  may,  never- 
"  theless,  be  too  remote,  and  therefore  not  recoverable,  is  beyond 
"  dispute.  I  do  not  think  there  lia^  been  much  difference  of 
"  opinion  as  to  what  constitutes  remoteness  of  damage.  Tho 
"  definitions  which   have  been  given,  though   varying  in  their 

40  "  mode  of  expression,  ap])ear  to  me  to  be  substantially  the  .same. 
"  They  have  generally  taken  a  negative  form,  indicating  what 
"  damage  is  not  regarded  as  too  remote,  and  leaving  all  else  as 
"  properly  fulling  within  that  description. 

"  I  think  that  damoges  which  flow  directly  and  naturally,  or 
"  in  the  ordinary  course  of  thi.igs,  from  tho  wrongful  act,  cannot 
"  be  regardeil  as  too  remote.  The  loss  of  the  u.se  of  a  vessel 
"  and  of  the  earnings  which  would  oniinaii^j  be  derived  from 
"  its  use  during  the  time  it  is  under  repai  ,  and  therefore  not 
"  available   for   trading    purposes,  is   certai.ily   damage    which 

50  "  directly  ami  naturally  flows  from  a  collision.  But,  further 
"  than  this,  I  agree  witFi  the  court  below  that  ^he  damage  is  not 
"  necessarily  limited  to  the  money  which  would  have  been 
"  earned  during  the  time  the  ve.ssel  was  actually  under  repair. 
"  It  does  not  appear  to  me  to  be  out  of  the  ordinary  course  of 
"  things  that  a  steamship,  whilst  prosecuting  her  voyage,  should 
"  have  secured  emploj'uient  for  another  adventure.  And  if  at 
"  the  time  of  a  collision  the  damaged  vessel  had  obtained  such 
"  an  engagement  for  an  ordinary  maritime  adventure,  the  loss  of 
"  the  fair  and  ordinary  earnings  of  such  a  vessel   on  such  an 

60  "  adventure  appear  to  me  to  be  the  direct  and  natural  consequence 
"  of  the  collision." 

The  Commissioner  on  the  part  of  the  United  States : — If  I 
remember  correctly  in  that  case,  the  injured  vessel  was  not  pro- 
cee<ling  under  her  charter,  but  she  was  proceeding  to  a  port 


nil 


(Mr.   Iti'ii|in's  Ai'^^iimfiit.) 


2(1 


:i() 


wlnTi'  sill"  wn^  ♦'>  li"»il  imiirr  Iiit  cliurl'T  'I'ln-  a|)|ilii'iition  of 
till'  mil-  in  tliiit  (Ni-*!' -i'''iii.'.l  (•)  nil' tu  :^ii  ulittli'  I'mllii'i- ilian  any 
ullit-r  rn-ii'  I  liiivc  m-cii. 

Ml'.  ric-ii|iii':  -'I'lii- cliiTctimi  nftli"  tir^f  jiilj^'  wat  us  t'nllows: 
"  Uct'tT  liiick  till-  rcpDit  of  till-  lt'"^'istrar  for  fin  tluT  coii^i<li  riitinu  • 
lis  ri';,'anls  Itcin  NumliiT  HI.'jiii'I  Iti'in  lt>  wa  .  for  l)-is  of  iMrniii;^^. 
10  Till'  t  'iiiirt  of  Aii]ii'aN,  liy  tlii-ir  luli-  of  August  !t,  ISSS,  "  nfiTn-il 
liMi'k  tin-  ii'i>.iit  to  tin-  Ui'.'i-itiar  for  fiiitlicr  (;iiii-.ii|i'iat.ioM,  witli 
(liiiTtioiis  lliaf  sudi  ilaiii;i'.,'rs  slmiill  In-  allowi'il  in  ri'>[)i'fi  of 
tiii-i  cipliisii'ii  lis  wiiiilil  ii'|iri'si'nt  tin-  loss  of  oiiiiiiiiiy  ami  fair 
I'aiiiiii^s  of  Hiiuli  a  slii|i  n-i  till'  ■•  ArLT-'iitiiiK,"  Imviii;^  ri  i/aiil  to  tiii^ 
fact  liiiit  sill'  was  fur  tlu'  liiiH'  on  Wcsu-oit's  line  of  sIcaniiTs 
trailiii;^  til  All^\all>lrill  iiiul  li  iIih  lilack  S.'a,  aiul  Hilvi-itiisi'il  to, 
sail  as  suirli."  Si>  tiiiit,  ib  app'-ars  from  this  ruftTfiici!  tliaC  it  liiil 
not  I'car  at.  all  on  tlic  faiT.  tliat  lli'^  Vi's^i-l  cliai  trn-il.  or  was 
,.ii._rfti^(i'i|  for  a  si'coiiil  voyai,"',  Imt  if  liorn  imiinly  on  tin'  fad.  lliat 
till'  vi'ssi'l  was  in  that  line  of  IiusIihms,  an<l  was  ailvi'itisnl  as 
such,  an  I  was  pri'siiiin-il   .o  IIimI   I'liipioyMn^iit  in  thr  traih-. 

TIk!  C.iiiiiiiis^ioiM'r  on  iIm!  part,  of  tlm  Uiiitu'l  SiatL's  : — I 
nmlcrstand  tlio  House  of  Lonls  >>avi'  tliti  vi^ssel  tin,'  liciiciit  of  the 
I'haitcr  for  till'  voyaijc,  I'lit  sho  was  tln.'ii  procumlin;;  to  tiio  port 
whcic  she  was  to  loail  nnilcr  the  charter. 

Mr.  Iii'ii|U"  :--'rhe  Hoiisc  of  Lords  went  still  further.  Tliey 
Illiiijilii'il  the  rt'l'elelioe  of  the  first  jllil'^'e  to  the  referunci?  as 
a|ip''ars  from  what  [  iiave  read  here.  It  was  irrespective  of  any 
charter  party,  or  any  special  ai^n-i'ement,  and  the  decision  rested 
niainly  on  the  fact  that  I  lie  collision  had  prevented  her  from 
carry ini;  on  her  rc^inlar  trade. 

.A  eomp.'irison  nf  thiHcaseof  the  "  .\r;;eiitino."  with  that  of 
the  •■  Amialile  Nancy  "  is  the  more  ini|iiirtMiit  lieeausethe  deeision 

^)l'    hoth  theColM't    iif  .Vlipeals  and    of    the   House    of    Loi'd.s  CHI  lies 

directly  in  contlict  witli  the  jii'inciple  enounced  in  the  ease  of 
the  "  Aniialile  Nancy"  hy  Mr.  .lu.Htiee  Stiii'V,  and  which  was  in 
these  terms :   - 

"  The  proliahle  or  po.ssilije  licnetitsuf  a  voya;,'e  as  yet  in  fieri 
"can  never  atl'ord  a  safe  rule  hy  which  to  estiiii.ite  ilama;je  in 
4(1  ■  cases  of  a  marine  tresjiass.  'I'liere  is  so  much  nneertainty  in  the 
rule  itself,  so  many  conliuj^eiieies  w  liicli  may  \ary  or  e.\tin;iuish 
"  its  a]ipliciitii>ii,  MU'I  so  niMiiy  ditlieulties  in  sustaining;  its  le;;al 
"  curreclness,  that  the  court  cannot  lielieve  it  proper  to  entertain 
•■  it." 

The  Voy.lLje   in    the   ease  of  the   "  Arijentino"  w;is  sui'ely    hi 
jifvi :  nevertheless    the    ( "ourt    of  .Appeals  and     the    House    of 
liords  came    to    the    conclusion   that    the   prospective  earnines 
should  he  taken  into  consideration. 

I  need  not   refer   to  the  ease  of  l'hili|)s   vs.   the    London  \' 
,')(»   North  Western  Railway  Company,  o  (".  I'.  1).,  p.  2H(),  excejit  by 
way  of  eallinj;  attention  to  the    comment    which    is  to  he  found 
in  tlie  hrief  of    the  I 'ni  ted  .States,  paj;e  Il-'l: — 

"The  case  of  iMiilips  vs.  l.,ondon  and  N.  W.  H.  H.  was  an 
'■  action  foi' ])ersonal  injuries  and  for  pain  and  suHerinj;.  tiy  a' 
••  passeuj^er  on  a  raili'oad  train.  He  was  a  surj^eon  in  active 
"  practice,  and  it  was  the  ordinai'v  case,  governed  hy  its  own 
"  rules,  for  such  damai^es,  including;,  of  course,  loss  of  earnin<; 
"power  directly  traceable  to  the  accident,  as  a  Jury  niii^lit  see  tit 
"  to  i.'ive  under  the  evidence." 
(!(>  I  niij^ht  add,  were  not  the    ship.s  and  their  eipiipments  earn- 

iiij;  powers  possessed  l)y  their  owners,  and  waw  not  the  loss  t)t' 
this  earnin;f  power  directly  traceable  to  the  seizure  ^  H'  it  Ih 
uncertain  whether  the  ships'  owners  wouhl  earn  anythiuf;  in  tliis 
case  the   same   unct^rtainty   would    apply    to  Dr.  Phillips,  the 


\m 


■■  :<  ivi 


iv: 


:.-;oSa 


.!{ 


Ill-i 


(Mr.   l<tic|iif'H  Arjjimiiiit.) 

pri'scnt  case  iM'in;;  even  iiinrc  rmcuiilili-  •<!  (In-  cliiiiiiMiit.  Tin* 
piirnlli'l  wiiiilil  liM\'<'  lii'i'ii  innrc  rcmi-ili'li-  if  l>i'.  IMiilli|i><  liml  lici'ii 
|iiii'|)imi'ly  iiijiiii'il  liy  ii  |)iiircsMiuiial  rival  wliu  wislicil  to  ii|i|ii'(>- 
Iiriiitf  liis  praclii'i'. 

Aiiotlicr  Nti'dii;;  caHc  in  tlic  name  ni'iisc,  is  tlic  ciihi'  (if 
lilt'  "Star  of  India."  ri'|MHtf'l  in  I  I'loiiatc  hivi.sion,  |ia;;t» 
10  4t!<i,  I  il(i  nut  lliinix  it  wa^  rcl'iTrcil  tn  in  tlic  wiittfii  iu';;iihi('nt. 
It  \s  aUii  n  caMc  nl'  cullisicin     the  liraii  iKitr  \n  tJiis :  — 

"  A  liiu'ijui',  Ivin;;  in  tlir  MaiJraN  Hnaij.s,  wan  cliartt'i'cil  tti  pro- 
"ct'cij  til  the  ( 'iii'iinianili'l  cuast,  ami  tliiTc  liiail  a  car;;!!  for 
"  Lonilon,  at  a  frcij^iit  of  ')."is.  ptT  ton.  Wlicn  almiit  to  prooTil 
"toiit-r  loading  poft.slic  wa.s  run  into  and  .scrioiisl  .•  dania;;i'd  hy 
"a  Nliip  wliost' <iwni't°N  admitted  tlit-ir  iiahilily  for  tlu>  collision. 
•' At  a  reference  licforc  tli«!  nejjistrar,  assisted  by  nicrcliants,  to 
"nsNe.sMtlie  dama;;<(s,  it  was  proved  that,  owinj;  to  the  hArijiie 
"  having  heen  delayed  at  Madras  for  repairs,  rendered  necesNary 
20  "liy  the  collision,  tlie  charterers  iiad  acipiircd  a  rijjiit  to  cancel 
"the  charter  jmrty,  and  tliat  they  had  cnnoellcd  the  charter 
"  party  ;  afterwards,  wlientlu'  repairs  were  completed,  the  liHriint* 
"  iH'in;;  iinahle  to  procure  more  protitahle  employment,  sailed 
"  from  Maclras  for  London  with  carpi,  at  a  freij;ht  of  4s.  per  ton. 


ao 


40 


60 


€0 


"The  Ke;;istiardisallowi'd  a    laim  made  by  the  plaintiffs  in  res- 
"  pect  of  the  loss  <if  the  eharte 
"  tirt's'  ajipealed  to  the  Court: 


e  hy  the  pi 
)  cancelled, 


and  the  phiiii- 


"  UpIiI,  that  the  ca.se  must  he  a;;ain  referred  to  the  re^jistrar, 
"  with  <lirections  to  include  in  the  amount  of  dama;;eg  a  sinn  iu 
"  resj t  <if  the  loss  of  the  chart er-pai'ty." 

'I'he  jtid;;menf  was  ii-ndeii-d  liy  Sir  |{oliert  I'hillimore,  and  it 
will  he  of  .some  interest  to  read  a  jiortion  of  his  notes,  hh  it  also 
shows  that  the  <|Ui'stion  of  remoteness  was  considered.  lie 
Hays : —  • 

"The  inaiii  ^.jrouiul  upon  which  the  Kc^^istrar  foundi'd  his  re- 
"  I'ejection  of  the  item  ot  the  loss  of  the  lienetieial  charter-party, 
"and  which  has  lieen  insisted  upon  in  the  argument  liefore  nio, 
"  was  that  the  claim  for  ilamajjes  on  this  account  was  ttio  remote. 
"Thin  was  the  main  ;;roinid  :  hut  tln»  Ue^nstrar  a])pears  also  to 
"  have  hoi<l*'n  that  the  proximate  ciiuse  of  the  Iosh  was  theo]itioii 
■ijivcn  hy  the  charler-|iarty  t<i  the  charterers,  and  which  they 
"e.\ercJs'«|  hy  can(;ellinj;  the  a;;reement,  hecaus«'  the  Hhi|)  diil  not 
"arrive  so  aw  to  he  readv  to  tako  iu  carjjo  hy  the  10th  of  .May." 

"  1  may  dispo.se  of  this  latter  ijUcstion  tivnt.  I  am  luiahle  to 
"  Hei'  how  the  jjrantinjj  of  this  option,  which  it  was  perfectly 
"  competent  for  the  owners  of  the  "Cheviot  "  to  make,  can  W  in 
"any  le;;al  sense  considered  the  real  or  i)roximate  cause  of  the 
"  los.s.  I'lUt  for  the  damap>.  there  is  every  ])rcsuniption  that  the 
""Cheviot"  would  have  arrive<l  in  ])roper  time,  and  that  there 
"  would  have  heen  no  opportunity  j;iveM  for  the  exercise  of  the 
"option.  " 

"  With  rejfard  to  the  nuiin  objection  of  remotenesn,  it  has 
"been  contende<l  that  the  ordinary  lenj^h  of  the  voyajjo  froni 
"Maih'asto  (lopaliH)ro  was  hjx  daytt :  and,  thou};h  it  admitted 
•'  that  the  ship  had  three  days  over  the  time  necesajiry  for  th« 
"  acconipliHhiiieut  of  it,  and  that  at  the  time  the  collision  hap- 
"  pened,  according  to  the  evidence  of  the  captain,  the  "  Cheviot" 
"  wiVH  ready  to  proceed  to  tJopalpore,  which  was  the  first  port 
"  slie  had  to  procee<l  to  oa  the  Coroinandel  coast  to  lotid, 
"  and  at  the  time  the  collision  happened  we  were  actually 
"  heaving  short  on  board  the  "  Cheviot "  for  tlie  purpose  of 
"  getting  under  weigh  for  the  purpose  of  proceeding  to  the  said 
"  port  of  "  Oopalpore."  The  voyage  may  thereiore  be  said 
"  to    have  begun,     but    it     is    contended    that,     nevertheless, 


l(i:< 


(Mr.   lli'i<|iit;'H  Arnuiiii-iil.) 


•  ilic  Nliip  iiii;;lit  hiivi'  Hint  widi  noiiic  ihtIIh  tiiTDi-f  slii- 
"iii'rivi'>1  lit  lii'i'  loit'liii^  |)(ir(     iiii^lit  hiisc  Immmi  lust,  nr  lit  li-a-nt 

•  il('li»y<!'l  hy  liii'l  wi'iitliiT,  itn  I  tlmf  nil  llif  |iliiiiititls  ciiii  )»•  mhuI 
••  111  hiivc  lost  wiiM  till' oliiiir't'  of  |M'i'l'iiriiiiii;;  llif  cliartiT  imrty, 
"  wliii'li  in  too  ri'iiiiitf  an  iti'iii  to  Im  tHki'ii  into  u'coiini  ni  tlii' 
"  I'liiiHiilci'ntion  of  coiiiin'iiMiition.     'I'lic  hiihwit  to  lln'si-  olijcctiouH 

]()  'ii|i|i<-ars  to  iiui  to  Ihi  that,  tlioii^li  tlit-y  may  avail  to  hIiow  that 
•tlio  wlioli-  NII1II  wliicli  rcpn'Sfiits  tin'  Ionh  of  the  iH'in'ticiai  cliiir- 
"  ter  party  riiniiot  In- t'laiini'il,  tiut  that  iifcrtain  ijciliictioti  Hhotiiii 
"he  iiiHilf  from  it,  tli(\v  i|o  not  itvaii  toHliow  tliiit  tho  item  NhoiiM 
■tiiliri'ly  l«'  Ntrtick  out." 

It  HCfiim  to  me  that  the  iioMin;;  in  thiH  caHo  is  clfnrly  iit 
\MriiinPL'  witli  thu  iliotii  in  lln)  ciiso  of  tho  "Aniialilc  Nancy,"  tht- 
case  of  the  "  Lively  "  and  thi' ca.st' of  tht-  "  Colniiiltus." 

"Tin'  ('oMiiiiisHionor  on  the  part  of  (irt'iit  Hritiiin  : — It  HceiuB 
ti>  me  that  the  fact  of  thti  cn^^a^t'ment  having  hocn  niailu   wait 

>.>(!  an  )'ss«tntial  part  of  the  concluHion  wiiich  hu  Ittarned  Jutlge 
eamu  to. 

Mr.  B»'i(Hio:— Well,  aH  a  matter  of  fact,  the  caHc  tiirneil  on 
th''  point  that  tho  charter  partv  wiih  ma<h'— lait  if  your  Honor 
will  IfMik  to  tho  lan^iia^e  of  tho  Hoiiouralile  .luil;;e,  you  will 
liml  that  it  in  wider  tlian  that.  It  enounces  the  principh^  that 
it  is  merely  a  iiuestion  of  proluibility.  He  deals  with  the  ijueH- 
lion  .if  prohahility  that  the  tthip  mi;;ht  complete  her  voyage  or 
iiiij;ht  not  complete  it. 

'{'he  Commissioner  on  the   part   of  (Jreat   Uritain:— I    think 

,!(»  ill  the  direction  of  the  Court  ot  Apjieal.  in  the  "  Ar;;entiiio,"  the 
words  "  having  re;;iird  to  thi^  fact  the  vessel  was  advertized  to 
sail  from  a  certain  port : "  were  taken  as  ei|uival}'iit  to  and  aa 
iiiiplyinj;.  that  she  was  under  an  en;;a;;eiiient,an(l  was  ei|uivalent 
to  sayiii;;,  haviiij; rej^ani  to  the  fact  tlmt  she  had  an  t'lif^ajjeiuont 
fur  her  voyajj;!'. 

Mr.  l{ei(|iie:  I  would  not  reijuire,  your  Honor,  to  ;;o  any 
further  than  that. 

The  CommiHsioner  on  the  part  of  (ireat  liritiiin  : — I'erhaps 
not  l)Ut  I  think  that  is  the  conclusion. 

411  Mr.  hei(|ue  :  —  In  this  caMe  the  vcmhcIh  may  be  Haid  to  have 
lieeii  under  eiiifa;;ement.  They  were  actually  under  an  en;;aj;e- 
iiient.  They  had  been  sent  to  Helirinj.;Sea  for  a  certain  purpose, 
and  they  were  in  the  act  of  accomplisliin<;  ftie  purpo.se  of  their 
voyajfc.  It  seems  to  nu^  that  they  would  come  clearly  within 
that  holdini;.  Hnt  ajjain,  the  discii.ssion  is  always  as  to  the 
i|iiestion  of  remotenes.s  of  thedama<,'e,  and  it  st-ems  to  me  to  bo 
the  result  of  all  these  decisions:  that  when  the  court  considered 
that  the  damaijes  were  direct,  when  the}'  were  not  remote,  the 
plaintitr  recovered.     If,  on  the  other  hand,  they  considered  that 

."JO  it  was  an  indirect  conse(|Uence,  tho  plaintiH'  was  non- 
suited. It  is  usele.s,s  t')  dis^rujne  the  fact  that  several  years  ajjo, 
ill  Mr.  Justice  Story's  time,  the  Judjjes  were  much  more  striufjeut 
and  much  more  inclined  to  be  formal  than  our  modern  Judgen 
are.  The  science  of  jurisprudence  is  no  more  stationary,  ami  is 
uiiderjjoiiijj  the  name  process  of  evolution  as  all  uthor  sciences. 
Widei'  views  are  taken  and  more  lilieral  rules  are  applied. 
When  tho  damage  is  proved  to  bo  clearly  the  direct  consequence 
and  intended  by  tho  act  committed,  I  do  not  think  that  a  cose 
can  1)0  found  where  the  party  did  not  recover.     I  had  intended 

CO  to  refer  to^3  Wheaton,  the  case  of  the  "  Amiable  Nancy,"  and 
I  had  marked  the  volume,  but  as  I  cannot  Hud  it  I  may  state 
from  recollection  that  Mr.  Justice  Story  was  evidently  of  opinion 
that  tho  amount  which  had  been  awarded  by  the  registrar  waa 
amply  sufficient    to  cover  all  damages.     He   no   doubt    took 


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( Ml'.    I!rii|ii"'''<  Ar;,'iiniiiil  ) 

«K'(>ll.siiill  t>i  siMtr  wlllll    I llsiili'I'i'il   In  lir  I  lie  ;;i'lli'nil   |il'iMi'i|llr, 

liiit  it  WHS  iwi  iiliilrf  li ill i( III  on  Ills  |im(  ;  it  was  imt  riM|iiirt'ii 
r<'i'  till'  |iiir|iiiM'  III'  iiiljiiilirMl  iiij;  uii  till-  ciiMc.  His  Juil^niH-nt 
ITHti'cl      UN      till'       I'lii'ls      wliicli       H|i|Miir     (III      till'      I'licr     of     tilt' 

rt'|i"iii.       It     iiiii|iii'sliiiiiiilily      a|i|iriii'H     to      liavi-  licoii     IiIn 

•  li'i'ixiiiii  iliiit  llic  iininiiiil  wliicli   liiiil   lii-tMi  iiwurili'il  wan  aiiiply 

1(1  Niitlicii'iit  to  ciivt'i  ail  ciiiiiiii'iisiiiioii.  to  |iiit  till'  |iarty  in  tin-  Haiiu- 
jxisii inn  MS  it'  till' I'ollisioM  limi  not  iiikm  |il.ii'i'. 

'I'lii- ('iiiiiiiiiNHii)ni'i' on  till' |iai't  ol'  llir  I'liiti'il  Statrs:  'i'liat 
casi' in  Mii'lii^an,  wlii'iT  t III-  mans  liiisini^HH  wa.s  lu'okm  ii|i  liy 
lir'ny  I  virlnl.  wa.s  soiiirtliinj;  III' (liat  sort. 

Mr.  I 'irkilison  ;  'I'liat  is  a  soimw  lial  t'aiiiiuis  rasr,  yniir 
Honor.  Till-  liiir  .Sinator  ( 'liamllrr  owiieil  tlif  |iro|ii'rtv,  lait  tbr 
]ir<i|ii'i'ty  wtiN  iimli'i'  Irasr  to  tlir  (ilaint ill's  /iiiil  lir  ciiulil  not  liny 
Iiiiii  out  ami  coiilil  not  ;4rt  liini  out  in  any  otlirr  way.  It  in  a 
20  fast'  wliicli  is  always  rliararti'ii/.t'il  a«  of  tlir  iiionI  malirioUH, 
w  anion  mikI  out la^i  oils  torts  i'\  ir  roniiiiiltril,  Sin;ilor  (  lianilli'i' 
tliri'W  tlown  till'  Knil>iin;;s  oM'r  tlii'  mans  lirail. 

Mr.  lHii|Ui':  In  tln'  "  l.ivi'ly  "  chmi',  Mr.  •lust ici- Story  mailr 
a  sliitiimnt  wliii'li  sliows  tliat  ln'  was  satislinl  tliat  llir  rr;,Mstrar 
liail  ;4i\  I'll  j'liil  roiii|ii'nsatiiin  to  tlir  plaintiir.  ( )n  |>a^'i'  MlH  of 
(lallison's  l!i'|iiirts,  Mil.  I  Mr.  Justii'i!  Story  Hay.s  : 

"  In  t'onsiili'iin;,'.  Iiowi'vcr,  tin'  iiropor  inraHiii'i;  of  (|ama;;i'H,  I 
"am  not  awari'  thai  tlirrc  fVi-r  lias  lirrn  allowcil  any  vimlictivi) 

;{()  "  <'iini|Mn.sation,  nnlrss  wlurr  tin'  niisroinluct  lia.s  lii'i'ii  vrry 
••  ;,'riiss,  ami  lil'l  li'.-tituti'  of  all  aiioiii;;y.  It  will  lie  ri'rolli'fli'il 
"on  till'  iH'i'M'tit  occasion,  tliat  tin'  ociiircncc  was  soon  after  llic 
"  coinincnci'incnt  of  thu  war,  ami  that  from  loii;^  hahits  of  pcact', 
"  a  ijiioil  deal  of  iniliili^cncc  ouj^ht  to  lie  allowi'il  to  the  errors  and 
"  misconci'|itioiiM  which  j;row  out  of  a  state  of  tliin;;s  so  novel  amJ 
"  einliarrassiii;;.  " 
At  lia;;e  :121  :- 

"I  coiife.s.s  that  I  wnsstruck  with  the  unusual  amount  which 
"  was  a.ssesM'il  as  ilama;,'es, — an  amount  which  exceeils  the  whole 

40  "\alue  o''  the  schonner  /Hid  car;,'!!  a.s  jiresinted  on  the  ]ia|ii'i'H. 
•■'riii'wli.  ■  value  is  liut  ?*l,l(i7.l2,  and  the  dania^^es  awarded 
"are  .^l.^'.l'i  :{(i.  It  has  indeed  lieeii  siiei^rcsted,  that  the  vessel  was 
"  iiicii'used  to  a  vahi^  eijual  to  S.'iOO.  aflir  her  |iurchase  ;  hut  there 
"  is  no  cvideiico  of  the  faot :  and  adiiiittiiij;  it  to  lie  true,  tint  cx- 
"  tent  of  the  dain.'i;,'i  s  is  not  uiaterialiy  ad'ected  hy  that  consider- 
'■  ation.  If  the  whole  vessel  and  cari^o  had  lioen  lost. it  uii;,dit  have 
"  liein  ]irii|ii'i'  to  enter  into  a  lilieial  allowance.  |!uf  here  they 
"  are  restored,  and  there  is  not  a  title  of  evidence,  to  show  that 
"either  of  tliein    HUstaiiud  any  injury  in   the  hands  of  the   raji- 

•'JO  "tors.  The  Voyage  was  not  lost.  There  was  no  unlivery  of  the 
"  CRi'j^'o,  and  thu  capacity  of  ju'rfonnin;;  it  still  remained.  \'et 
"  the  sum  j,'iveii  in  daniaees  seems  to  have  proceeded  u|ioii  the 
"{ground,  that  the  voyae;e  was  lost,  thou;;li  it  mi;,dit  have  lieeii 
"  perfornied  nt  farthest  in  a  week.  ' 

In  the  ••  ( "olumhus  "  case,  ill.  William  iJoliin.son,  pa;,'e  IAS, 
the  principle  for  which  w«  are  contendinj^  seems  to  hnvo  been 
favouralily  considered.  The  lionoiiralile  .lud;;e  seems  to  havo 
admitted  that  tlie  jjoverniiifj  nilo  wa.s  a.s  to  whether  the  party 
waH  put  in  the  .same  jiosition  as  liefore.     He  .says: — 

<iO  "The  only  ;;i'ounil    which    has  lieeii    su^ii^ested    in  tlu>  ar^ju- 

"  inetit,  in  support  of  such  claim,  is  the  jirinciple  to  whicl'.  1  have 
"just  reverted,  viz.,  that  the  plaintitl'oui^ht  to  he  put  in  the  same 
■'condition  in  which  he  ntooi(  jirior  to  tho  collision:  and  in  con - 
•'  tirniatioii  of  this,  the  court  luiu  been  referred  to  ca.sfs  of  partial 


hi.-. 

(Mr.    Itriijihs   .\i';,'iiiin'nt  > 

•■  losH  or  iliiniii;,'!',  wliiTi-   nil   /illnwimi'"'   I'cir   i|(iiiiirni;;i'    |ms  I n 

"irivi'ii   in  ;i<l<litii>ii  (u  (In-   iK'tmil    iiiiiiiiiii(    of  the  i|iuiiae;i'   rnm- 

'  iiiittt'il.     'I'll*'  ]irinci|)li'  iih    a|i|ilii'i|    in   ciisrs  of  |iai'tiiil  Iii>>h,  it 

"  i|i|ii'iii'.H  to  inr,  iliii'ti  nut  i'i|iiiilly  i>|i|ily    to  tlir  cii'iMnnstiini-i's  ii|' 

"ilii-ciiNi   lii'fori' till' coiii't,     Lrt  <|H,  loi' II  nionicut,  consiili-i' u  lull 

w  ciuM  lie  tlio  ill'ict,  in  nil  cjihi's  nt"  tliis  kin<l.  of  ;,'ivin;,'  iiiiyliiin;; 

|i,   ••  iicyiiiiii  till'  lull  viiliic  ut"  till'  vi'Msi'l   ili'strnyi'il.     Sii|)|i<win^.  for 

iiistiini*)',  iliiit  t lii.'<  vi'NNi'l  liiiil  lii'i'n    Mil    l''.ll^•t    Iniliiiiiiiin.  ImiiihiJ 

'  (in  lii'T  iiiitwanl    vnyn;;!'    to   tin'    Kast    liidics,    with    a  valiinlilc 

'carpi  on  Uianl,  Tor  tin- lraii>'|"irtation  ofwliirh  nut  only  wuiiM 

■till'  iiwni'i-N  III- t'iitith'il  til  a    lar;;i'  aiiioniit.   of  fn'i;,fht,    Iml  the 

•  iiia.stei'  iiii;;ht  I ntitle'l  tncoiisideralih'  rontiiieerit  |irolitH  IVuni 

■  the  iilloWMIH'es  niailc    to    llilll    IIIHin    slleh     Voya;;e.      ('iilllil    this 
i-uMI't     take     ll|iiill      itself    to    c|i'e|c|e  U|ion    the    ailiollllt     of    these 

■  enii|ili;Ji  licii's,  ami   to  ileciee  the  |iayilli'nt   of    the  Slime     in  luliji- 

tinii    to   the    |iiiyiiii'nt   of  the    full    value  of  the    .ship:'      I   am 
Oil      I'leai'ly  of  ii|iinion  that  itciiulil  Milt.     The   true  iiile  of   law   in 

•  such  II  fiisc  woiiM,  I  conccivi',  lie  this,  viz.,  to  calculate  the 
'•  value   of   the  |ll'o|iel'ty   ilestfoyed    at  tile  tillie   (if  the    lo.ss,   ami 

"to  |iay   it  to  tl wniTH,  as  a  full   imleninity  to   them    for  all 

'  that  may  have  liapiieiied,  without  eiit'  < ''  ''  for  a  moment  into 
"any  other  consiilcration.      If  the  )ii'iMci|>l'      to    the    contrary, 

•  contenileil  foi' l>y  the  owners  of  the  smacl,  in  this  rase,  were 
'•  on<'e  ailmitteil,  I  see  no  limit  in  il.s  ii|i|iiication  to  the  <lit!icul- 
"  tics  which  would  lie  imposed  upon  i  '  cotiii.  It  would  extent 
••  to  almoMt  cndli'SH  ramifications,  ami  iii  every   c;\--.'  1    mi^^lit   he 

;{()  'called  upon  to  determine,  not  only  tlio   valin'   of  th<.>  ship.  lint. 

■  the  profits  to  lie  derived  on  the  voyi|i.'e  ni  ixliich  she  liii;illt  lie 
"  t"i;,;ii,'ed,  and  indeed  even  to  those  of  Lue  return  voyaye,  which 
■■  mi;,dit  he  said  to  have   1  en   defeated   liy   the   colliHion.      I'pon 

■this  consideration  alone  I  slioulcl  not,  I  coiu'i'ive,  he  justified 
"  in  admittinir  this  claim:  but  I  am  further  iMiriic  ow'  in  so 
'■  iloin;,',  liy  the  ditl'ei'ence  which  exists  lietween  a  total  loss,  and 
•  the  case  of  a  partial  dama;;e,  viy, ,  that  in  the  latter  case  the 
'■  iiiiiount  of  the  ailditional   injury   in   the  loss  of  the  frei<;ht    is 

■  capalile  of  liein;;  acciu'ately  calculated." 

40  The  CiimmissioMer  on  tho  part  of  ller  .Majesty:-  IVrhaps 
what  Lord  Justice  lioweii  says  at  pa;;e  •lU'l  of  the  ■  .Vreentino  ' 
liiirdly  hears  i-,*(Iwdiat  I  .said  as  to  that  c.'ise  His  Lordship  says  : 
'■  I  caniiot  sec  that  for  the  purpose  of  such  proofs  the  existence 
"  ot  an  actual  charter  party  in  essential  sinci?  other  evidence  muy 
"  111-  eipially  coi,'ent  to  estuhlish  tli«  loss  of  ompliiyinent.  " 

.Mr.  lieiiiue  :-Kxactly,  your  Honor.  It  seems  to  me  that  it 
cciiiies  to  this :  Whether  there  was  or  not,  reasonahle  crtaint)" 
that  the  earniiiLjs  or  profits  that  are  claimed  would  have  heeii 
earned  or   realized,  Hiid  that   therefore  it  is  a  matter  of  proof: 

."lO  tiyin;,;  to  estahlish  a  cast  iron  rule,  ns  .Mr.  .lustice  .Story  setMiisto 
iiiive  attempted  to  do,  wouM  surely  defeat  the  end.*  of  justice  in 
a  ;4ri'at  many  cases,  and  especially  in  caies  of  tort,  where  the 
(lmiiai.;es  are  j,;eiierally  the  direct  consc<iuences  of  the  act  com- 
mitted. These  are  the  only  cases  to  which  I  intend  to  refer  on 
liiis  (piestion  of  jirospective  catch,  and  I  shall  now  pass  to  other 
heads  of  claims  and  dinposft  of  thotn  in  a  very  few  words. 

The  next  head  is  "  Kstimated  citch  for  the  followin;^  .season." 
As  to  these  items,  one  must  bear  in  mind  that  tlie  .seizures  are  to 
1)0   considered    as    illegal  "    that    CJreat    lirituiii    had  protesteil 

(id  against  the  .seizures  a.id  tlmt  tho  United  St.ites  (iov- 
crnment  had  formall}'  and  expressly  announced,  in  answer 
tn  the  jirotests,  as  appears  from  the  (lij.loinatic  correspondence, 
that  the  protests  were  taken  into  consideration.  Not  only 
■so,  but  as  I  have    already    pointed    out,    the     United  States 


I M  "J 


iDtil 


■fjij 


1%, '  ■  ■   . 


hit; 


(Ml-.  Jii'ii|iu''.s  Ai'i^iiiiicnt.) 


'I 


iiifiiniici)  (Ircut.  Itritaiii,  in  niiswcr  t)  tluvsi-  protests  liy  tliis  notr 

r,rl,„l,'  ol"  tin-    l-Jtli   April,    I.S,s7,    timt    tiioy    liiid    tli ntt.T 

iiiiilcr  ciiiisiilcnitiiiii  an  I  tlint  (licy  wmilil  iiniiouncc  tliiii  dc- 
ri>i()ii.  Ni)\v  miller  sucli  circiinistiiiu'es  I  say  tliat  tin*  fiaims  an' 
nut  I)  lie  cjinsiilcri'il  as  ciaiins  falling'  at  all  within  tlic  prini-ipic 
")    tiital  luss  ;   till-  oWMi'rs  of    tlli'  vessels    wi'i'e  entitleil  ti>  expi'ct 

!<•  tliaf  justii'e  woiilil  be  (ioiic  unil  that  their  vessels  \vt>ulcl  lie  re- 
tin-iieil.  'riierefure  1  rlaiin  that  they  wrre  not  oMigcl,  anil 
c'onlil  not  have  lieen  pxpecteil,  to  have  investeil  money  —which 
Very  likely  in  most  eases  they  hnil  not  -in  purchasing  other 
vessels  for  the  purpose  of  proceeiiinLj  with  their  trade  or  with 
their  tishini;  excursions  They  had  the  ri^'ht  to  expect,  as  lonj; 
as  the  I'nited  States  had  promised  that  they  were  eonsiderin;; 
the  matter  and  from  the'  fact  that  tliese  seizures  were  ille;,'al. 
tliat  the  <lecisioii  would  lie  favorahle,  and  that  their  vessels 
would  lie  returned.     Therefore  I  say  that,  so  lon;^  as  tlu-  vessels 

2(1   were  detained  they  are  entitled   to  recover  for  the  ])roHt  which, 

but  for  the  seizures  they  would  have  earned    with    the  ves.sels. 

The  same  considerations  apply  to  tlie  items  comin<;  under  the 

lienil   of:    "Value    ol    tlio   tise    of    the    vessels    for    the    period 

lietween  the  two  iisiiini;  seasons." 

Now  as  to  the  items  coming;  under  the  followiuij  liead  :  "  ICx- 
penses.  ille;;a!  arrest,  detention,  imprisonment  and  other  hanl- 
sliips  i)f  masterii  and  mates,  and  in  certain  eases  the  value  of 
their  time." 

The  ("ommissioner   on   the  part  of  the   United  States:  — In 

no  loiikiuL'  at  your  list  of  claims  on  paije  !••">,  I  (ind  the  item  for  the 
seasons  ISHtland  ISS7,  hut  I  do  not  tind  the  iti'Ui  just  men- 
tioned -  '  Use  of  vessels  lietwt  i  ii  the  two  .sea.sons." 

Mr.  liei(|uo: — I  think  j'our  Honor  neeil  not  trouble  about 
this,  for  I  am  merely  n-ferriiiLj  to  it  in  a  e;eiieral  way.  Your 
Ibiiiiirs'  attention  will  be  fornially  called  to  the  matter  when 
de.'iliii'^  with  the(.ises  specilicallv.  It  does  not  apply  to  all  the 
eases  hut  only  to  a  few  of  them.  The  only  remark  I  have  to 
make  iinijer  the  last  headiiiLC  '^  'his  :  that  the  liberty  of  the 
masters  and  mates  was  in  many  eases  interfered  with  ;  that  the}' 

4(1  were  oppressed  and  kept  under  detention  for  a  loni.;  time,  im- 
piisonecl,  and  suiijecti'd  to  other  serious  hardships  is  beyond 
ipiestion.  'I"he  mi'rr  fact  of  beiiij;  arrested  in  Hidu'in^  Sea, 
packed  as  they  were  in  many  instances  in  smdll  cabins,  taken  to 
Silka,  and  linally  turnetl  adrift  some  fifteen  hundred  miles  from 
liome.  is  in  itself  a  matter  for  serious  consideration.  The  books 
are  full  of  eases  where  even  e;reater  sums  than  here  clumanded 
have  been  awnrded  for  wilful  wroni^s  intlicted  on  the  person  ; 
and  it  seems  to  me  that  the  rules  adopteil  in  such  cases  between 
indiviiluals  should  receive  application  here,  and  that  the  amount 

."jO  slioulil  even  be  larj^er  in  cast's  of  this  kind. 

The  next  item  is  :  "  Kxpenses  and  luird.ships  of  the  otiier 
nu  inbci's  of  the  crew  and  in  certain  cases  the  value  of  their 
time.'  I  have  alrea<ly  siiown,  in  dealing  with  the  .scope  of  the 
t "on vention,  that  (treat  Jfritain  reserved  all  claims  umlor  this 
lieaii  and  that  3«iur  Honors  are  called  upon  to  pa.ss  upon  tlieir 
merits.  On  pages  :120  and  321  of  the  United  States  brief,  an 
obj;ciion  is  raised  on  the  alleged  ground  that  you  are  reiiuired  to 
tind  the  amount  of  damages  for  each  person,  and  con- 
sequently     each      claim      should       Iiave       been       prcaented 

(10  separately.  The  contention  ia  based  on  Article  3 
of  the  Convention,  which  flays,  "  TI>o  Commissioners 
shall  determine  the  liaVtility  of  the  United  States,  if  any,  in 
respect  of  each  claim  and  assess  the  amount  of  compensation,  if 
an}',  to  be  paid  on  account  thereof."    That  the   words    "  each 


1«7 


^Mr.   I>('ii|tit''.s  Ar;;mMciil.> 


claim,  "  ri'for  to  niul  cmnprisi!  cvi-rylliinLj  fomiccti'il  witli  t-ncli 
iiiiliviiliiiil  vi'ssi'l  is  iipprti'i'iit  from  oilier  j)()rtii)ii,s  i>l'  tlie  Cini- 
vi'iilion,  mill  I'spcpiiilly  iVoin  tin-  iii-t  ;.iiriiij;riipli  of  Articlf  i.  and 
;iiiJ  till-  list  of  cliiiiiis  tlhTi-  rcfi'iTi'il  to.  It  Clin  In-  ^cimi  tliiit  thu 
list,  of  cluims  thus    j^iv'-ii  is  liy  immo    of  vessel,  iliite  of  seizure, 

M|>pro\iumte  cIlHtHliee  from  lilUil  wlietl  sei/.ei|,  nitme  of  tlie  I'llitecl 

\0  Siati's  vesnel  mukiuir  tlie  seizure.  Ourim,'  the  sittin;^  iit  N'ietoriii 
wliile  the  evidence  wus  lieiii;,'  taken,  questions  arose  in  eoniiection 
with  the  fai't  that  niemhers  of  the  crews  of  most,  of  the  vessels  in 
(piestion  were  liuntinL;  on  a  lay.  1  am  not  aware  tlint  it  was  ever 
eont>n<le<l  hy  the  iearneil  counsel  for  the  I'niteil  States  that 
th'i'at  Britain  shouhl  not  he  entitled  to  recover  for  such  mcmhers 
of  tlie  crew,  or  for  the  portion  of  the  car^^o  in  which  they  were 
individually  interested.  Nor  am  I  aware  that  any  such  conten- 
tion has  heen  raised  in  the  I'niti'd  States  hrief  If  the  rij^hts  of 
each  individual   memher  of  the  cr«\v    in  a  cari^o  can  thus  he  in- 

'jo  eluded  in  one  clnini  nmde  hy  (ireat  (Britain  in  cotnicctioii  wit)) 
individual  vessels,  why  should  not  tlieir  other  rij^hts  us  niemhers 
of  the  same  crew  ho  likewi.se  included  ! 

Your  attention  has  alrer.dy  heen  calleil  to  tlu^  "  ( 'ostiv  llicii 
Packet  "  case,  where  an  amount  whs  awarded  for  the 
crew;  und  I  call  your  Honor's  atteutii>n  to  the  fact  that, 
as  appearing  from  tluit  case,  (a  copy  of  the  full  report  will  he 
handed  to  your  Honors)  pn^^e  I.S,  your  Honors  will  tin<l  that  the 
crew  were  also  on  a  lay,  and  it  was  on  account  of  their  heinj;  on 
a  lay  tliat  the  amount  was  awarded. 

:!0         'I'lie    next    item,     I    think,    is    the    (piestion    of  interest.     I 
had    some     notes    on    the   iplestioii.    hut     it     has    heen     so   fully 
covered  hy  my  learned  friend   Mr.   Peters,  that  I  may  dispen.se 
with  takiii;,'  any  more  time  in  connection  with  it. 

With  reference  to  the  costs  in  the  "Say ward"  case,  1  need 

jiot  adcl  anythini,'.  if  I  have  sui'c ded  to  show  as  I  hope  1  have, 

that,  they  come  within  the  scope  of  the  ('(invention.  As  I  have 
ulready  stated  these  costs  were  presented  hefore  the  Trilmiial  of 
Paris,  and  the  veiy  same  amount  whieli  is  now  claimed  was 
claimed    at    I'aris,     Thi-y    svere    also   referred   to  in   tiie    ollieial 

■id  corresjiondence  in  coriiieetion  with  the  appointment  of  a  mixed 
commission,  at  the  time  when  the  ipiestion  of  a  lump  sum  was 
taken  up.  and  thev  were  atfain  mentioned  as  an  item  of  claim 
in  the  mi'iiiorandum  accompanviui{  Sir  .liiliaii  Paniieefote's  leiter 
(if  June  7tli,   I.S!>4.. 

I  iiave  t(Wipolo;»isc  for  linvin<:;  tal^en  so  much  of  your  time;  hut 
my  excuse  is  the  importanee  of  the  case,  the  imiiortance  of  the 
Ipiestion  at  issue,  und  the  amount  which  is  necessarily  involved  in 
this  matter.  I  could  not  hetter  close  my  arijumi  iitthan  hy  approp- 
riating the  very  reuiurkahle  lauirua);e  of  tlie  present  Cliiid"  . Justice 

.'lO  of  Kngland  in  closing  his  argument  'lefore  the  Paris  Trihunal : 
"There  are  two  grrat  Powers  hefore  you  :  one  a  representii- 
"  tive  of  till!  civilization  of  the  Old  World,  great  in  its  extent 
"of  dominion,  gi-euter  still  in  its  long  unduring  traditions  of 
"  well  onlered  lihorty  und  in  thestahility  of  its  ancient  institu- 
"  tious  ;  the  other  a  J'oung  hut  stalwart  luemher  of  the  Kainiiy 
"  of  Nations,  groat)  ulso,  in  its  extent  of  territory,  in  the  almoiit 
"  l>oundles.s  resources  at  its  conunaml,  great,  too,  in  the  genius 
"  and  enterpri.so  of  its  poople,  possessing  enormous  potentiuli- 
"  ties  for  good  un  the  future  of  the  huunin  race.     These  powers 

(iO  "  ace  111  difioronce.  lireat  Britain  conceives  that  she  lias  heea 
"  wronged  hythosrizures.in  question ;(Icliange  here ttiewording  a 
"  little,  that  her  .sovereignty  hanheoii  invaded;  her  rights  upon  the 
"  high  soa,  represented  hy  her  nationals,  hot  at  naught.  Happily 
"  the  dread  extremity  of  war  was  avoided.    These  nations  have 


•I- 


168 

(Mr.  I](ii|iii''s  Arffiiinciit.) 

"not  sonnlit  to  turn  tlioir  pli)ni:^lisliaie.s  into  swonls,  to  settle 
"  their  (iiricrenci's.  Tlu-y  iirc  liori'  licfore  you,  frifiidly  litii^ants, 
"  pojifi'l'ul  suitors  in  your  ("onrt,  asking  liy  pacific  means  tlie  ail- 
"  justiiient  ami  tin;  (Ictfriiiiiiation  of  tlicir  rifiiits  in  times  of  peace. 
"  Tliis  is,  inilct'd.  a  fact  of  ^rcat  moral  sij^nilicance, 

"  Peace  liatli  lier  victories  nut  less  renowned  than  war." 

At  half-past  four  o'clock  the  Connnissionors  rose. 


Commissioners   under  the   Convention   of  February  8th, 

i8g6,  between  Great  Britain  and  the  United  States 

of  America- 


Le<;islative  Council  Chamber  of  the  ProvinciRl  Building, 

At  Halifax.  N.  S,  September  2nil,  1897. 

•2(t         At  11  A.  M.  the  Commissioners  took  tiieir  seats. 

Mr.  Bodwell ; — May  it  please  Your  Honor.s  : — 

In  the  division  of  labor  which  has  been  arranged  between  the 
counsel  for  Great  Britain,  it  has  been  st-tlied  that  I  should  address 
iiij'sclf  particularly  to  the  evidence  relating  a  number  of  subjects 
winch  are  dealt  with  at  consi<lerable  length  in  the  printed  argu- 
ment for  the  United  States.  Before  undertaking  that  part  of  my 
duty,  however,  I  desire  to  call  your  attention  to  certain  authori- 
;!()  ties  in  support  of  the  line  of  argument  which  has  been  already 
uddn'ssed  to  you  by  my  learnecl  friend,  Mr.  Bei(|ue,  upon  the 
point  that  certain  indiviiluals  mentioned  by  him  who,  although 
their  country  of  origin  was  the  United  States  of  America,  were, 
lit  the  time  of  the  injuries  complained  of,  domiciled  in  British 
(Columbia,  are  persons  on  who.se  behalf  Oreat  Britain  is  entitled 
to  claim  compensation  within  the  meaning  of  the  present  Con- 
vention. In  so  doing,  it  is  gratifying  to  observe  that  that  which 
may  be  taken  as  the  very  starting  point  of  this  argument  is 
common  ground  to  the  counsel  upon  both  hides.  I  tind  at  page 
40  43  of  the  United  States  Argument  this  short  quotation  from 
Dicey  on  "  Conflict  of  Laws :" — 

"(1.)  A  peison's  pre.sence  in  a  country  is  presumptive  evi- 
"  dence  of  domicile." 

"(2.)  When  a  person  is  known  to  have  bad  a  domicile  in  a 
"  given  country,  he  is  presumed,  in  absence  of  proof  of  a  change, 
"  to  retain  such  domicile." 

■'  (;i.)  Residence  in  a  country  is  prima  facie  evidence  of  the 
"  intention  to  reside  there  peimanently  (animtis  manendi),  and 
"  in  so  far  evidence  of  domicile." 
.")()  To  that  statement  of  the  law  we  desire  to  give  our  fullest 
assent.  Inileed,  it  would  be  remarkable  if  there  could  be  any 
ditlVience  of  opinion  in  view  of  the  uniformity  of  decisiofi  that 
1ms  prevailed  whenever  courts  have  berti  asked  to  pronounce 
upon  the  question. 

The  principal  facts  relating  to  the  don)icile  of  the  McLeans, 
Hechtel,  and  Frank,  have  been  referred  to  in  the  argument  of 
Mr.  Beique.  It  is  not  neces.sary  that  I  .should  review  that  evi- 
df'nce.  For  the  purpose  of  any  remarks  I  shall  have  to  address 
to  your  Honors.  I  shall  assume  that  the  domicile  has  been 
<iO  I'stablished  as  a  fact  upon  the  evidence. 

The  particular  subject  tc  which  I  shall  address  myself  is 
discussed  in  the  argument  of  Oreat  Britain  under  the  head  cf 
"  Ertect  of  Doikiicile  on  Nationality,"  on  page  47.  In  that  argu- 
ment  we  state  that  the  Convention  has  left   it  open  to  the 


; !  m\ 


ijiik 


\V\      !* 


.!itJ 


'\? 


r^.'r-; 


170 

(Mr.    BodweU's   Argument.) 

Coiniiiis.sionerH  to  decido  upon  the  facts  as  to  the  eflect  of  the 
evidence  relatini;  to  the  alleged  ownership  of  particular  indi- 
viduals in  the  ships  referred  to.  We  .say  that  is  not  concluded 
hy  the  Convention  but  is  left  open  to  be  deciiled  by  your  Honors, 
according  to  the  principles  of  international  law  on  the  testimony 
that  has  been  taken.     After  making  that  statement  we  take  the 

10  position  that  all  the  claims  advanced  for  }'our  considera'ion  here 
are  national  claims.  That  docs  not  appear  to  be  accedud  to  by 
the  counsel  for  the  United  States.  On  page  ()7  of  tlieir  printed 
Argument  I  Hnd  this : — 

"Of  cour.se  it  is  the  universal  doctrine,  to  which  there  are  no 
"  exceptions,  that  if  a  citizt-n  of  one  nation  complains  of  wrong 
"  (lone  him  by  another  nation,  his  government  must  assume  the 
"  responsibility  of  pre-ienting  the  claim.  A  claim  on  behalf  of 
"  foreign  sul'jects  of  another  government  under  the  established 
"  rules  of  international  law  is  not  entitled  to  consideration  unless 

20  "  a  demand  is  made  by  the  government  of  the  country  of  which 
"  the  claimant  is  a  subject  or  citizen." 

This  language,  your  Honors,  may  be  taken  as  expressing  a 
truism  so  far  as  it  goes,  but  it  fails  in  this,  that  it  does  not  state 
in  what  character  these  claims  are  pre.sentetl  when  they  are  made 
known  by  the  one  government  to  the  other.  If,  as  is  suggested 
in  the  argument  for  tlit;  United  States,  the  claim  is  to  be  con- 
sidered as  the  claim  of  the  individual  instead  of  a  national  claim, 
then  I  submit  two  positions  would  arise.  First,  if  it  were  the 
claim  of  the  individual,  the  goverinnent  would  be  bound  to  pre- 

30  sent  it  irrespuctivi-  of  eveiy  consideration  e.xcept  that  a  wrong 
has  been  done  which  would  re()uire  instant  and  complete  repara- 
tion. Secoml,  if  it  were  the  claim  of  the  iiiilividual,  the 
government  who  presents  it  is  the  agent  of  the  indiviilual,  and,  in 
eo-ses  where  a  money  diMuand  is  made  ami  acceded  to,  wil!  hold 
the  proceeds  as  tnistei-  for  the  iixlividuiil  and  be  bound  to  account 
to  him  as  the  beneficiary  of  the  fund.  If,  oa  the  other  hand,  the 
claim  is  that  of  the  nation,  then  we  may  expect  that  it  will  be 
pressetl,  delayed  or  abandoned,  according  to  the  exigency  of  the 
foieign  policy  of  the  nation,  and  also  where  money  is  taken  that 

40  it  will  be  received  and  held  by  the  Sovereign  as  a  part  of  his 
prerogative,  and  be  dealt  with  according  to  his  sole  will  and 
pleasure.  Your  Honors  will  find  the  authorities  are  in  favor  of 
the  position  that  I  have  la^t  stated  and  are  opposed  to  the  for- 
mer contention. 

We  quote  in  our  argument  on  this  point  from  Wharton's 
InternutioMiil  Digest,  l)ttge  ."),J8. 

'■  Tiie  claims  presented  to  the  French  commission  are  not 
"  private  claims,  but  goverinnent  claims,  growing  out  of  injuries 
"  to  privatf  citizens  or  their  prof)erty,  inflicted   by  the  Govern- 

50  '■  inent  against  which  they  are  presented.  As  between  the 
"  United  States  and  the  ci'izens,  the  claim  may  in  some  sejise  be 
"  regarded  as  private,  but  when  the  claim  is  taken  up  and  presseil 
"diplomatically,  it  is  as  against  the  foreign  Government  a 
"  national  claim." 

"Over  such  claims  the  prosecuting  Government  has  full 
"control;  it  may,  as  a  matter  of  pure  right,  refuse  to  present 
"  them  at  all  :  it  may  surrender  theiu  without  consulting  tlie 
"  claimants.  Several  itistances  where  this  has  been  done  will 
"  occur  to  you,  notably  the  case  of  the  so-called  '  French  Spolia- 

60  "  tion  claims,'  The  lights  of  the  citizen  for  diplomatic  redress 
'■  are  as  against  his  own,  not  the  foreign  Government.  For  the 
"  class  within  its  jurisdiction  the  commission  stands  in  the  place 
'  of  the  diplomatic  departments  of  the  two  countries,  and  the 
"  respective  agents  and  counsel  represent,  not  the  claimants,  but 


171 

(Mr.    Builwell's   Arguinent.) 

"  tlioir  I'cspectivo  Goveriitnents,  and  it  is  uf  the  utmost  iinpnrt- 
'  iince  tu  frankness,  fair  and  iipriglit  dealin<;  hutween  tliu  two 
'  nations,  that  the  agents  and  counsel  should  not  in  any  manner 
"  Ipi;  interested  in  the  cases  wliicl)  they  present  or  defemi.  The 
'  conindssion  is  not  a  judicial  tribunal  adjudin<r  private  rights, 
"  l)ut  an  internBtional  trihunal  adjudgiiig  national  rights," 

10         Then  on  page  721  of  the  same  volume  I  find  this  : — 

"  The  claims  of  France,  national  in  their  nature,  were  thus 
"  set  up  again  against  the  claim  of  the  United  States,  individual 
"  in  their  inception,  but  niaile  national  by  their  presentation 
"  through  the  diplomatic  department  of  the  (fovernment." 

There  are  other  passages  which  I  may  refer  to  without  read- 
ing. Your  Honors  will  find  in  the  second  volume  of  Wharton, 
l)et;inning  at  page  707  ami  continuing  to  page  72!)  language  in 
which  this  same  position  appears  to  be  stated  over  and  over 
again  in  dilt'erent  form  of  words,  iti  dispatciies  and  other  state 

20   duOliments. 

1  ni)W  ask  your  Honors'  attention  to  the  case  of  Rustomjee 
against  the  Queen,  L.  R.  1,  Q.  B.  D.,  page  4S7.  This  case  aro.se 
under  the  following  circumstances.  Certain  British  merchants 
wcie  trading  in  China  with  a  corporation  calleil  "The  Cohong." 
The  peculiarity  of  that  association  was  that  the  debts  of  any 
iriilividuul  member  uf  the  association  were  considered  a.s 
the  debts  of  the  whole  as.sdciation,  an<l  there  were  means  provid- 
ed by  which  if  one  refused  to  pay,  the  claim  could  be  entered  in 
a  certain  book,  and  then  the  proper  Chinese  othcial  would  direct 

'M  that  the  matter  should  be  investigated  and  that  a  judgment 
should  be  pronounced,  and  e.xecution  should  issue  for  the  recovery 
of  the  dii't.  An  English  merchant  had  a  claim  of  that  kind 
which  was  not  paid,  aiul  he  had  taken  all  preliminary  steps  to 
have  it  pre.sented  to  such  otticial  ami  paid  bj-  the  Cohong,  but 
before  it  could  be  dealt  with  serious  troubles  broke  out  in  Canton 
between  the  Chinese  and  the  Queen's  subjects  nnd  war  shortly 
afterwards  was  declared  between  Great  Britain  and  China. 
British  merchants  residing  in  Canton,  including  the  suppliant, 
were  arrested  and   imprisoned  and   finally  expelled  fn,m  ('hina. 

40  As  a  res\ilt  of  the  injuries  thus  indicted  upon  British  merchants 
residing  in  China,  after  the  war  a  treaty  of  peace  was  concluded, 
oi»  the  2(jth  of  August,  KS42,  between  the  Queen  and  the 
Kmperor  of  China  whereby  among  other  things  the  Emperor  of 
China  agreed  to  pay  to  Her  Majesty  the  sum  of  !?.",00(),000  for 
the  amount  of  debts  due  to  British  subjects,  of  whom  tho 
suppliant  was  one,  for  debts  due  by  Hong  merchants.  This  sum  of 
SJ.S.OOO.OOO  was  computed  on  the  basis  of  the  accounts  of  claims 
sent  in  and  investigated  by  Capt.  Elliot,  a  British  otticer  who  was 
there.   Among  the  claims  sent  in,  which  had  been  so  presented,  was 

50  till!  claim  of  Rustomjee,  the  plaintiti'in  the  action.  After  the  treaty 
of  peace  had  been  made  and  the  money  paid,  Rustomjee  filed  a 
petition  of  right  in  the  British  Courts,  claiming  that  tho  Sovereign 
of  (ireat  Britain  hail  leceived  money  as  his  trustee  and  was 
bound  to  account  to  him  for  the  proceeds.  Here  is  what  was 
st.id  upon  that  point.  I  need  not  tell  your  Honors  that  the 
claim  was  dismissed.  Chief  Justice  Cockburn  uses  in  the 
judgment  this  language  : — 

"  War  broke  out  between  this  country  and  China,  the  Chong 
"  was  abolished,  and  the  remedy  which  the   British  subjects,  the 

(JO  "  present  suppliant  am(>n<;  them,  would  have  ha<l  under  the 
"  former  state  of  things  was  swept  away.  Under  these  circum- 
"  stances,  when  peace  was  restored  and  a  treaty  of  peace  was 
"  entered  into  between  the  Queen  and  the  Emperor  of  China, 
"  provision  was  made  for  doing  justice  to   British  sultjects  who 


'» 


■'11 

J 

1   w    1     ' 

1    .   < 

172 


(Mr.  Bodwell's  Arfrument.) 

"had  been  deprived  of  their  remedy  to  enforce  their  claims 
"  against  members  of  the  Cohong ;  but  the  terms  of  the  treaty 
"  were  that  the  money  given  by  the  Emperor  of  China  to  make 
"  good  these  claims  should  be  given,  not  to  the  individual  mer- 
"  chants  who  had  claims  or  debts  against  members  of  the  Cohon, 
"  but  should  be  paid  to  Her  Majesty. 

10  "  Now,  the  effect  of  such  a  treaty  is,  in  my  opinion,  .simply 
"  this,  that  it  places  the  fund  at  the  disposition  of  Her  Majesty, 
"  for  Her  Majesty,  at  her  <liscretion,  to  cause  such  distribution  of 
"  it  to  be  made  as  shall  make  good  the  claims  which  her  subjects 
"  have  against  the  foreigner  from  who.se  government  the  money 
"  is  received.  In  such  a  case  a  petition  of  right  will  not  lie. 
"  The  notion  that  the  Queen  of  this  country,  in  receiving  a  sum 
"of  money  in  order  to  tlo  justice  to  some  of  her  .subjects,  to 
"  whom  injustice  would  otherwise  be  done,  becomes  the  agent  of 
"  thohc  .subjects,  seems  to  me  really  too  wild  a  notion  to  require 

20  "  a  single  word  of  observation  beyond  that  of  emphatically  con- 
"  dcinning  it.  In  like  manner,  to  say  that  the  Sovereign  becomes 
"the  trustee  for  subjects  on  whoso  behalf  money  has  been 
"  received  by  the  Crown,  appears  to  be  equally  untenable.  It 
"  comes  simplj"  to  this,  that  Her  Majesty,  in  order  to  enable  her 
"  to  see  that  injustice  is  not  done  to  her  subjects,  stipulates  for 
"  the  payment  into  her  haml  of  a  sum  of  money.  The  distribution 
"  of  that  must  be  left  to  Her  Majesty's  discretion  ;  no  petition  of 
"  right  has  ever  been  held  to  be  applicable  to  such  a  case.  To 
"  my  mind,  it  is  utterly  inconsistent  with  all  the  constitutional 

30  "  theories  of  the  prerogative  of  the  Crown,  to  suppose  tht.t  Her 
"  Majesty  can  V>e  coerced  by  a  petition  of  riglit  into  doing  that 
"justice  which,  I  am  quite  sure,  it  will  require  no  petition  of 
"  right  to  obtain,  if  the  facts  and  merit.s  of  the  case  were  such  as 
"  to  induce  the  government  to  believe  that  the  claim  was  a  just 
"  one.  At  all  events,  1  think  the  petition  of  right  will  not  lie, 
"  and  that  that  is  perfectl}-  clear  upon  all  the  principles  which 
"  have  ever  been  applied  to  petitions  of  right  and  all  the  prece- 
"  dents  which  have  hitherto  existed  in  courts  of  law." 

Blackburn  J.  .says  in  the  same  case,  page  49;),  as  follows: — 

40  "  I  am  of  the  same  opinion  on  bcjth  points.  The  treaty  in 
'  this  case  made  between  Her  Majesty,  in  the  exercise  of  one  ot 
"  the  highest  branches  of  her  prerogative,  and  the  Emperor  of 
"  t!!hina,  amongst  other  articles,  stipulated  that  the  Emperor  of 
"  China  shouM  pay  into  the  hands  of  Her  Majesfy  3,000,000  of 
"  dollars  in  respect  of  the  debts  due  from  the  members  of  the 
"  Hong  or  Cohong,  to  British  subjects  ;  an<l  upon  that  it  was 
"  contended,  and  the  argument  of  Mr.  Thesiger  wont  so  far  as 
"  this,  that  Her  Majestj-,  in  making  that  treaty  and  securing  that 
"  money,  was  to  be  considered  as  an  agent  for  each  one  of  these 

50  "  British  subjects  individually.  I  certainly  am  not  aware  of  any 
"authority  whatever  in  the  English  law  that  has  ever  put  the 
"  .Sovereign  in  such  a  position  when  exercising  an  act  as  the  body 
"  politic, — to  use  the  old  phrase,  '  the  Sovereign  in  the  capacity 
"  of  the  body  politic,  exercising  an  act  of  prerogative.'  To  say 
"  that  the  Queen  was  the  agent  of  any  person  seems  to  me  to  be 
"  utterly  unfoumled  upon  any  aiithoritj*  whatever.  There  are 
'  plenty  of  oltl  cases  upon  which  the  dignity  of  the  Crown  is 
"  exaggerated  beyond  measure.  This  has  l)een  carried  to  such 
"  an  extent,  that  I  shouhl  certainly  pause  or  hesitate  whether  I 

60  "  would  follow  it  at  the  present  day  to  the  full  extent;  but  to 
"  bring  down  Her  Majesty  to  the  situation  of  it  being  said  of 
■'  her,  that  in  making  a  treaty  of  peace  with  the  Emperor  of 
"  China  she  was  an  agent  for  everybody  who  had  a  claim  against 
"  *':e  Emperor  of  China,  is  totally    without  authority.     And  I 


173 

(Mr.    Bodwell's    Argument.) 

"  believe  that  if  one  or  two  hunilred  yearn  ago  any  counsel  had 
"  arijued  in  tliut  way,  we  uliould  have  heen  a.skod  to  record  his 
"  words  in  order  that  he  might  be  sent  to  the  Tower,  a  course 
"  wliich  is  not  pursued  now-a-<]ay.s.  The  position,  however,  is 
"  <|uite  untenable.  Then,  wlien  Her  Majesty  lias  actually  received 
"  tlie  money,  it  is  a  little  more  plausible,  a  little,  but    not  very 

ID  '-  much  more  plausible,  to  say  that,  though  the  treaty  was  made 
■•  in  the  exercise  of  lier  prerogative,  yet  when  HcM'  Majesty  diil 
"  receive  the  money  it  ought  to  Vie  given  to  those  persons  who 
"  have  claims." 

Speaking  further,  over  on  page  494,  he  says  : — 
"  But  even  if  the  petition  had  been  shaped   in   that    way  it 
"  would  have  been  untenable,  for  this  reason  :  that  tlie  Queen  in 
'  making  a  treaty  an<l  receiving  money  under  it,  and  exerci.sing 
"  II  high  act  of  prerogative,  is  jiot  at  all  acting  as  trustee." 
Further  down  on  the  same  page  he  says  : — 

•2\>  "  But  I  do  not  think  that  it  can  jujssihly  be  saiil  that  when 
'■■  tlie  Queen  has,  as  a  high  act  of  state,  maile  a  treaty,  n'lj 
"  received  money  in  consequence  of  an  act  of  state,  the  mode  of 
'•  distributing  it  is  in  anj*  way  enforcable  by  a  Court  of  law,  or 
"  subject  to  the  tindings  of  jiM'ies.  1  think  there  is  amoral  cliiiin 
'  that  it  be  given  to  the  right  person,  which  must  be  investigated 
"  in  the  manner  in  which  Jier  .Miiji-sty  is  pleased  to  direct,  and 
"  the  MiiiistL-rs  who  direct  it  wjuld  probalily  be  responsible  in 
"  parliament  if  they  did  it  uiiju.stly.  I  do  not  suppose  for  one 
"  moment  that  they  have  done  so,  but  1  am  ipiite  ci'^ar  in    this, 

;iO  '•  that  you  cannot  in  a  Couit  of  law  direct  an  investigation  and 
"  conduct  it  in  the  (^'ourt  of  Queen's  Bench  witli  the  aid  of  a 
"  Middlesex  jury.  I  think  it  must  be  done  by  the  officers  of 
"  state,  subject  to  responsibility  in  such  a  way  as  may  be  just 
"  and  propur.  I  have  no  lioubt  ihey  have  (lone  se  ;  but  whether 
"  or  not  tliey  have  done  so  is  a  (|uestion  which  must  be  ascer- 
"  tained  in  Parliament,  and  not  here" 

The  point  decided  was  that  a  petition  of  right  would  not  lie. 
Why  woidd  not  a  petition  of  right  lie  ?  Not  because  of  any 
pt'cuiiarily  in  the  process  of  the  court,  not  because  any  peculiar 

40  j)rocedure  was  necessary  to  press  the  petition  of  right,  liut  the  case 
was  decided  upon  this  point  that  theQueen  received  the  money  as  a 
part  of  her  prerogative.  It  was  a  claim  put  forward  by  Her  as 
a  part  of  Her  prerogative,  supported  by  Her  on  the  grounds  of 
internatiomil  law,  and  therefore  it  must  be  considered  that  the 
individual  was  in  no  wav  represented  in  the  diplomatic  negotia- 
tions or  in  the  receipt  of  the  money. 

Mr.  Dickinson : — Do  you  contend  that  in  either  case,  the 
French  Spoliation  Claims,  or  in  that  case,  an  international 
Couimissidn  was  appointed  ? 

.")0  Mr.  Bodwell : — I  am  not  able  to  say   whether  there  was  any 

Commission  appointed  with  reference  to  the  Fiench  Spoliation 
Claims  or  not.  In  the  Rustomjee  case  there  was  not,  because 
the  amount  was  not  in  dispute.  The  Emperor  of  China  admitted 
the  amount.  The  only  ditl'erence  between  that  case  and  the  pre- 
sent proceeding  is :  that  in  this  case  the  amount  is  in  dispute.  As 
the  amount  is  in  dispute  between  the  United  States  on  one  side 
and  Great  Britain  on  the  other,  it  can  not  be  settled  in  a  Court 
of  Claims  or  in  a  Municipal  Tribunal  organized  in  either  countrj*. 
It  fiinst  be  an  international  matter  where  a  representative  of  the 

(1(1  Uiiiled  States  can  test  the  claim  presented  bv  Great  Britain. 
But  in  every  other  respect  I  say  the  case  of  Rustomjee  against 
the  Queen  is  on  all  fours  with  the  claims  presented  to  this 
Commission,  The  only  dift'erence  is  here  we  liave  to  decide  on 
the  amount,  and  there  the  amount  was  admitted  and  paid.     Bub 


r"  1'! 


"  ''v 


'A 


"i 


I  "M 


174 


(Mr.    Bodwcir.*  Argument.) 

tlic  authority  I  have  uited  diHclo.ses  this  principle,  and  that  Im  all 
I  ant  contending  for,  tliat  the  claim  which  was  on  account  of 
injuries  received  by  British  suhjects  in  Ciiina,  was  n  British 
claini  presented  in  the  name  of  tiie  Queen  pf  England,  and 
pressed  upen  grounds  of  international  law,  That  is  the  position 
we  take  here  in  our  argument. 

10  Now,  I  was  about  to  read  from  the  decision  of  Lush,  J.,  in 
tlie  same  case,  page  497 : — 

"  Now,  taking  it,  as  it  appears  to  be,  as  a  demaml  nf  a  debt 
"  due  from  the  Crown  for  money  had  and  received,  it  is  necessary 
'■  to  assume,  in  orc'.er  to  reach  that  conclusion,  that  the  Queen, 
"  when  this  money  was  received,  received  it  as  agent  of  the  sup- 
■'  pliant,  that  is,  under  his  authority,  or  claiming  to  have  liis 
"  authority  to  receive  it  for  his  use.  Now,  I  must  say  that 
"  firoposition  startles  one.  It  is  not  only  derogatory  to  the 
"  sovereign's    dignity,  but    I    think    it    is    repugnant    to    every 

20  "  constitutional  princifile.  A  treaty  is  an  act  of  prerogative. 
"  In  making  and  negotiating  and  perfecting  that  treaty  the 
"  Clown  nets  of  its  own  inherent  authority,  not  by  the  authority, 
"  actual  or  supposed,  of  any  subject ;  and  I  think  all  that  is  done 
"  under  that  treaty  is  as  much  beyonil  the  domain  of  municipal 
"  law  as  the  negotiation  of  the  tieaty  itself;  and  when  this 
"  money  was  received,  it  was  receiveil  by  the  sovereign  in  her 
"  sovereign  character,  not  at  all,  in  anj'  view  of  it,  actual  or 
"  constructive,  as  the  agent  of  any  subject  whatever. 

"  It  seems  to  me  that  the  relations  which  is  pressed  upon  u.^ 

30  "  here  never  e.xisted  in  this  case  between  the  Crown  and  the 
"  subject,  and  is  one  which  cannot  exist  in  any  state  like  ours 
"  betwein  thi>  sovereign  and  the  subject.  No  doubt  a  duty  arose 
"  as  soon  as  the  money  was  received  to  distribute  that  money 
"  amongst  the  persons  towards  whose  losses  it  was  paid  by  the 
'■  Emperor  of  China  :  but  then  the  distribution  when  made  would 
"  be,  Hot  the  act  of  an  agent  accounting  to  a  principal,  but  the 
"  act  of  the  soverign  in  clispensing  justice  to  her  subjects.  For 
"  any  omission  of  that  duty  the  sovereign  cannot  be  held 
"  responsible.     The  responsibility  would  rest  with  the  advisers 

40  "  of  the  Crown,  and  they  are  responsible  to  parliament,  and  to 
"  parliament  alone.  In  no  view  whatever  can  an  individual 
"  subject  have  any  such  claim  as  the  suppliant  pretends  to  have 
"  by  this  petition,  tuimely,  a  claim  to  coerce  the  sovereign  by 
'  judicial  proceedings  into  the  payment  over  of  a  part  of  the 
"  in(lenit:ity  received  in  her  .sovereign  character  from  the  Emperor 
"  of  China. 

"  Again,  if  this  were  treated,  not  as  the  demand  of  a  debt 
"  recoverable  at  common  law,  but  a.s  a  trust,  a  similar  answer 
"  would  be  given,  and   it  is  etjually    valid,  that  no  subject  can 

50  "  charge  the  ( 'rown  with  being  a  trustee  for  him.  Moreover, 
"  for  the  same  reason  that  I  have  already  given,  it  cannot  be 
"  deeineil  to  have  been  money  received  by  the  sovereign  as 
'  trustee.  It  was  received  by  her  in  her  sovereign  character,  to 
"  be  ilispensed,  as  I  have  said,  according  to  the  views  of  the 
"  advisers  of  the  (,'rown  as  to  the  persons  entitled  and  the 
"  ('.mounts  which  should  be  fair  and  just  as  regards  the  claims 
"  of  the  parties.  What  the  particular  reason  of  the  petitioner 
"  mav  have  been  for  taking  this  course  I  cannot  tell." 

The  Commissioner  on  the  part  of  the  United  States  : — There 

60  is  an  insurance  case  in  the  House  of  Lords  that  supports  your 
▼iews  as  a  general  proposition.  But  is  there  not  something 
pecidiar  in  this  Convention  arising  from  the  opening  paragrapli 
of  the  Third  Article  that  you  ought  to  comment  upon  ?  I'erhaps 
you  intend  to  do  so  before  you  get  through.     Is  there  not  some- 


175 
(Mr.   Boil well's    Arf^ument.) 


tliini;  there  that  takes  this  Convention  somewhat  out  of  the 
•'eiieral  rule  as  you  claim  it  to  be  ? 

Mr,  Bod  well  i — I  will   look  at  the  Article  and  consider  it 

That  if,  only  as  we  ^ay,  for  tin-  |nirf  ose  of  deteimining  the  amount 

Tli(!  Coniniissioners  have  to  take  evidence  so  as  to  determine  the 

ftinniiiit  that  shall  be  paid  by    the   United   States   in   respect  of 

10  each  claim. 

The  Commissioner  on  the  part  of  the  United  States  : — Is  not 
tliut  stating  a  conclusion  rather  than  giving  the  line  of  reasoning  ? 
It  would  not  be  necessary  for  us  to  state  every  detail  in  order 
to  jiive  the  entire  amount,  and  it  was  not  done  in  the  Geneva 
Arbitration. 

Mr.  Bodwell : — No,  the  United  States  might  have  agreed  to 

pay  a  gross  sum,  and  then  the  case  would  be  exactly  like  this 

case  of  Uiistonijee's.     I  have  not  ."o   far   directed   my  attention 

to  that,  point,  but  I  will  consider  it,  and   at  the  latter  part  of 

20  my  argument  I  will  refer  to  it. 

I  was  about  to  make  the  observation  that  in  the  nature 
(pf  things  tho  contention  which  I  am  making  must  be  so, 
for  in  the  argument  which  has  been  udilrcssed  to  you  by  Mr. 
I't'iqiie,  he  has  shewn  that  what  you  are  here  to  determine  is 
the  liability  of  the  United  States, — for  what  ?  The  infringe- 
ment upon  the  lights  which,  as  a  nation,  appertain  to  (jreat 
I'ritain.  The  extent  of  that  infringement  is  to  be  determined 
by  the  application  of  the  principles  of  international  law,  the 
nmoiint  of  compensation  is  to  be  settled  by  a  reference  to  the 
30  number  and  character  of  the  injuries  which  have  been  inflicted. 
]t  seems  to  me  at  first  blush  that  this  is  an  answer  to  the 
position  which  your  Honor  has  ju«t  put  to  me.  There  may  be 
more  in  it,  however,  and  I  will  consider  it  and   refer  to  it  later. 

As  to  the  first  of  these  positions  I  think  it  may  be  taken  that 
the  United  States  agree  with  us,  for  on  page  19  of  their  Argument 
we  have  this  statement :  "  In  this  controversy  all  questions  must 
lie  considered,  weighed, and  decided  by  International  law."  They 
make  no  distinction  there  for  the  purpose  of  that  statement  at 
any  rate.  All  questions,  whether  they  relate  to  one  claim  or  the 
40  other ;  every  question  which  arises  here  is  to  be  decided,  weighed, 
and  determined  aciiording  to  international  law.  Now,  that  very 
statement  involves  the  proposition  that  the  questions  are  nati'  nal 
quiistions,  for  international  law  concerns  itself  with  no  other  sub- 
ject. In  Hall's  Interimtional  Law,  your  Honors  will  find  a  chapter 
devoted  to  "  Persons  in  Internai-'onal  Law,"  but  the  subject  of  that 
chapter  is  the  relation  of  states,  the  one  to  the  other,  and  the 
(iiilj-  persons  considered  are  the  collective  body  of  individuals 
which  go  to  make  up  a  national  conununity. 

It  is  true  that  in  considering  the  questions  here,  your  Honors 
."lO  will  be  bound  to  refer  to  the  particular  damage  done  to  particular 
individuals,  but  that  is  only  pi-esented  for  your  consideration  as 
ft  part  of  the  evidence  to  establisli  the  contention  that  a  national 
wrong  has  been  conunitted.  No  matter  how  great  the  injury 
to  any  individual,  1  assume  that  if  the  United  States 
could  establish  that,  no  international  wrong  had  betn  done, 
Great  Britain  would  have  no  status  to  ask  for  compensation. 
There  are  cases,  it  is  tiue,  in  which  the  claims  have  been  spoken 
of  as  "national*"  claims  and  "individual"  claims,  but  that 
language  has  been  used  for  the  purpose  of  distinguishing  the 
GO  claims  with  reference  to  the  extant  of  the  injury.  There  are 
claims  which  have  cxtcn<led  piactically  to  the  whole  nation,  and 
there  are  claims  for  injuries  which  have  been  inflicted  only  upon 
inilividual  subjects,  and  therefore  in  a  case  where  it  \''as  necessary 
to  distinguish  between  claims   on  the  one  hand    which    had  a 


,:■!--! 


M 


r!l 


'      l>. 


f 


'i  i, 


li;> 


1^, 


w 


%, 


17fi 


(Mr.    Bodwull'H    Argument) 

general  scope,  and  those  wliicli  relate  only  to  particular  person-*, 
in  snetiking  of  tlioNe  a  colloquial  form  of  uxprt-Nsion  has  hoen 
UNt><l,  and  the  one  class  has  been  called  national  and  the  other 
individual.  Hut,  ncverthulesH,  tiie}'  went  all  national  clainix. 
The  distinction  cannot  avail  tlie  United  States  here,  for  if  oui 
argument  is  to  any  effect  it  is  this— thai  Great  Hritain  is  claim- 

10  ing  liero  upon  every  ground  upon  which  she  has  a  right  to 
present  a  demand  to  the  1 'niti-il  State.s.  Shu  is  claiming  not  only 
on  liehalf  of  those  citi/.ens  who  are  hound  to  her  liy  tics  of 
permanent  allegiance,  hut  also  on  hehalf  of  those  who  hy 
their  dondcile  should  render  her  temporary  allegiance,  and  to 
the  extent  of  that  allegiance  arc  entitled  to  her  protection. 
There  is  no  distinction  in  this  hotweon  tin;  one  class  of  citizens 
and  the  other,  (ireat  Hritain  pre.sen's  her  claim  on  every 
ground,  and  on  hehalf  of  every  person  for  whom  she  has  a  right 
to  claim  compeiisntion.     Indeed,  the  argument   for  the    United 

20  States  presupposes  the  very  proposition  I  am  contending  for ;  the 
defence  which  is  urged  with  reference  to  these  particular  claims 
is  that  the  United  States  is  not  liable  inasmuch  as  they  have  by 
the  estal)lished  principles  of  international  law  a  perfect  right  to 
enact  statutes  binding  their  own  nationals  in  every  part  of  tlie 
world,  and  therefore  (ireat  Hrilain  cannot  complain  because  the 
United  States  prooeeilud  to  e.vercise  their  undoubted  privilege 
as  a  nation,  and  <i  fortiori  (Jreat  Hritain  has  no  standing  to  ask  for 
compensation  because  that  nation  afterwards  took  steps  to 
enforce    in   their  own   way  laws  properly    enacted,  and    which 

80  every  citizen  of  the  United  States  at  home  and  abroad  is  bound 
to  rpspcct   and  observe. 

And  jot,  while  in  one  breath  the  obligation  to  pay  compensa- 
tion is  denied  on  the  ground  that  (Ireat  Hritain  has  not  suffered 
any  injury  in  her  capacity  as  a  nation,  in  the  next  they  .issort 
that  tl.e  i'omniissioners  aro  not  to  hear  (.ireat  Hritain  in  respect 
to  certain  particular  items  of  loss,  because  the  claims  are  not 
asserted  for  (ireat  Hritain,  but  on  account  of  individuals  wlio.so 
personal  status  alone  is  the  subject  for  discussion.  Such  a 
position  is  inconsistent  with  itself,  and  demonstrates  the  propoai- 

40  tion  put  forward  by  the  counsel  for  CJreat  Hritain  that  in  this 
controversy  you  are  to  deci<le  for  what  injuries  (Jreat  Britain  is 
alloweil  to  claim  compensation,  and  whether  tlie  individuals 
named  have  been  injured  in  such  a  manner  as  that  Great  Hritain 
is  entitled  to  ask  compeBsatiou  from  the  United  States  according 
to  the  juinciples  of  international  law. 

Mr.  Dickinson  : — I  ask  you, Mr.  Botlwell.if  lam  correct,  that  in 
all  the  cases  cited  by  you  of  which  the  case  in  the  2nd  Knapp, 
the  Drutnmond  Case  is  the  leading  one,  and  whether  in  all  the 
national    conventions    for   the    adjustment   of    claims    between 

50  countries,  between  Great  Hritain  and  every  other  nation,  the 
right  of  claim  ha--  not  been  deterndned  by  the  personal  status  and 
conduct  oi  the  private  claimant  quoad  the  two  governments; 
wh'ther  under  the  convention,  which  was  for  the  disposition  of  all 
private  claims  between  Great  Britain  and  France,  the  right  of 
Drummond  to  claim  did  not  turn  upon  his  personal  status  ([uoad 
his  own  government  and  iiuoad  England. 

Mr.  Bodwell : — For  tliree  months  in  Victoria  we  had  some 
experience  of  my  learned  friend's  skill  as  a  cross-examiner,  and 
it  is  again  illustrated  here. 

60  -Mr.  Dickinson  : — If  you  answer  in  that  way  there  is  no  use 

in  my  asking  you  any  other  (juestions. 

Mr.  Boilwcll : — What  I  have  said  is  this ;  in  answer  to  tlie 
position  which  Mr.  Dickinson  has  taken;  that  the  right  of 
j)arties  to  claim  was  foundetl   upon  international   grounds,  and 


Itf 


(Mr.    Bodwell'H   Argument.) 

wlion  that  ri^ht  whh  cuncode))  a  trenty  was  inadu,  and  a  part 
of  tliat  treaty  ileHcriliUH  certain  perMons  who  wuro  to  he  paid  in 
accordance  .with  that  ri^ht,  and  it  was  only  curtain  purNonx 
under  ihe  treaty,  therefore  who  liarl  the  ri^rht  to  come  before  the 
coMiniiHsion.  In  every  case  that  ri^jht  was  determined  as  a  matter 
of  Jurisdiction  liy  the  court  upon  circumstances  reialiii;r  to  the 

10  status  of  the  individual.  It  was  always  a  ipu-stion  of  the  wordinjr 
of  the  particular  treaty,  ami  our  uriiument  here  is,  that  this 
treaty,  we  are  now  acting  under,  diflors  from  other  treaties  i* 
in  that  respect  because  the  persons  are  not  determined  in  the 
treaty,  but  they  are  all  to  be  ascertained  by  an  application  of  the 
principles  of  international  law.  In  every  other  case  the  court 
was  constituted  <vilh  certain  powers  which  were  defined  in  a 
written  document,  and  the  court  was  bound  by  it.  It  is  true  that 
in  ascertaininj;  your  powers  untler  the  Cunvention  you  will  Iihvd 
to  refer  to  that  written  document,  but  the  distinction  is  that  this 

:;()  convention  instead  of  pointinj;  out  the  persons  by  ili"-eiipliun 
leaves  it  to  your  Honors  to  ascertain  the  paities  by  an  applica- 
tion of  the  principles  of  international  law  to  certiiin  facts  in 
eviilence.  In  that  respect  this  is  an  international  claim  in  a 
wider  sense  than  any  of  the  other  claims  presented.  That  is  the 
extent  ok  our  arjrnmi'nt.  It  was  stated  as  a  principal  point  for 
the  purpose  of  establishinir  the  other  position,  that  tlu-se  claims 
are  to  be  determined  upon  principles  of  IntiM-rmtioiial  law.  and 
with  that  our  learned  friends  the  counsel  for  the  United  States 
agree.     We  say  that  that  principle  involves  the  con^ideiation  uf 

31)  evary  claim  presented  here,  not  because  a  eeitain  person  ii» 
named  in  the  convention,  but  because  Great  Britain  exercising 
her  position  among  the  nations  of  the  woild  presents  her  claim 
for  redress  for  a  wrong  iriHicted  upon  her  as  a  nation.  I  shall 
not  continue  the  discussion  of  the  nuitter  any  further. 

The  next  step  in  our  argument  is  that  this  being  an  inter- 
national controver.sy,  and  it  being  necessary  that  your  Honors 
.should  decide  upon  our  case  with  reference  to  international  law  ; 
wl  lever  a  controversy  arises  between  nations  with  respect  to 
the  character  of  property,  the  domicile   of   the   individual  owner 

40  is  taken  a.s  the  test  of  nationality  with  respect  to  the  property 
which  he  acquires  in  the  countrj'  of  his  domicile,  in  connection 
with  a  business  oi  trade  which  he  there  carrie.s  on.  I  need  not 
tell  your  Honors,  that  questions  of  this  kind  come  more 
frecpiently  before  prize  courts  for  the  reason  that  the  nUional 
character  of  property  a.s  distinct  from  the  prilitical  status  of  the 
owner  is  .'leldom  of  importance  except  in  the  case  of  war.  I  shall, 
however,  cite  you  authorities  which  will  show  that  not  only 
ha.s  the  principle  been  laid  down  as  a  lule  of  universal  appli- 
cation in  prize  courts  but   it  has  been  carried    into    municipal 

.JO  courts  in  civil  action.s.  We  have  cited  several  cases  fioiu 
prize  courts  in  our  arguments  at  page  50.  I  do  not  intend  to 
iiurden  you  now  with  the  leading  of  these  coses,  because 
they  are  set  out  fully  in  our  argument,  e.icept  to  notice 
certain  comments  upon  them  in  the  United  States  argument. 
The  fiist  case  I  would  call  attention  to  is  that  of  the  "  Indian 
Chief  "  at  page  51  and  carrietl  forward  to  page  i)2.  With  reference 
to  that  case  I  have  only  one  observation  to  make.  In  the  argu- 
ment counsel  for  the  United  States  in  reply,  page  50,  say  this  : 
"  In  that  case  the  person  had  never  lived  in  America  after  it 

00  "  became  a  nation  (not  after  1773.")  That  is  all  referred  to  at 
page  9  of  our  reply,  and  the  point  is  taken  that  that  i'  a  mis- 
understanding of  tlie  case,  and  I  clearly  think  it  is.  An  .  ^'ain  : 
"  The  owner  had  lost  the  benefit  of  his  native  American  character, 
"  if  he  ever  had  any,  which  he  had  not." 


■1     .'1 


',|i'  ■>'', 


' '  m  I 


\i' 


H .  t?. 


f 

IH 

■p 

1 

*'1M'i' 

[, 

178 


(Mr.    Hodwi'll'it   Arf(uiiicnt.) 

Tho  following  uxtrnct  fidin  the  ilitpision  Ims  possilily  oicappil 
ili)>  attuntion  of  llio  Uiiitcil  StuteH  coiiiiti'l,  I  will  rxml  from  tlin 
(■UNO  itsi'lf  nn  it  in  rKpotti'il  in  H  Cliristopliur  KoliiiiHon's  Ailiiiiriilty 
UrportM,  paj^ti  12.  Ill  ^iviii^  jii<li{iiifiii,  Sir  Williniii  Scott 
said : 

"  'I'licrt'  lire  two  positioim  which  arn  not  to  Ih(  controverted  ; 
10  "  that  Mr.  ilohiiHon  is  an  Aiiicricaii  generally  hy  l>irtli,  which  i.t 
"  tho  circiiinstance  that  first  iiiipn'Msus  itst>lf  on  th«  mind  of  thu 
■  '  court;  and  also  by  thu  part  which  hi'  took  on  thu  hrcakin^  out 
"of  thu  American  wni'.  Ilu  cniiiu  hithur  whun  lioth  countriuH 
"  wuru  opi-ii  to  him  ;  luit  on  thu  hruakiii;;  out  of  ho^tilitius,  ho 
"  made  his  clt'Clinn  which  country  liu  would  adhviv  to,  and  in 
"  cnnsuqiitnci'  (huruof  wriit  to  (''rancu.  As  to  thu  '  .•i)tthat  has 
"  ln'un  sii^'i^oitfil,  whuthcr  hu  would  he  doumcd  un  American,  not 
"  having'  licm  pcrsoiially  tht-ru  at  thu  liiiiu  of  thu  duclaration  of 
"  thu  iiiili'pciidiiicu  of  that  country,  I  think  that  is  sutticiuntlv 
20  "  cluarud  up  hy  thu  circnmstancu  of  his  huiin;  adoptud  as  such  by 
"thu  Act  of  th(-  Ainuiican  ^rovurniiicnt,  duclariiii;  him  and  his 
"  family  to  hu  American  suljucts,  and  hy  thu  ollicial  character 
''  which  that  };ovurniiiuiit  has  intru.stud  to  him;  I  am  of  opinion, 
"  thurufore,  that  he  hft»  imt  lost  the  hunutit  of  his  native  Amurican 
"  character." 

Mr,  Dickinson  : — The  analytiis  of  that  casu  is  incorrnct  in  two 
particular.s.  That  analysis,  owinn  to  the  ahsuiicu  of  the  report 
frnm  thu  lihrary  of  tin-  Suprumu  ('ourt.  mid  also  from  the  State 
l)e|'Hrtmuiit,  could  not  hu  vurKied  hy  inu.  Thu  last  criticism  is 
.'JO  cornet  which  I  mnku  upon  thu  aiifiimuiit,  hut  I  took  thoanalysia 
from  that  cn.si.'  wholly  from  my  luarnud  frieiid'.s  brief,  not  being 
able  to  put  my  hand  ni'ciii  thu  rujiort. 

There  is  another  iiuucuracy  in  my  bii«  ''  to  which  I  desire  to 
cnll  thu  attt'iitioii  of  my  luariieil  friends  •  counsel  for  (Jreat 
]{ritaiii,  and  whicli  whs  ciwinj;  to  the  fii  'hat  I  could  not  put 
my  hiiiid  upon  thu  orii.riiial  authoiity.  .  iieru  is  a  conclusion 
from  Bar  (pioted  in  another  place  ;  it  should  not  have  been 
tjuotetl,  althouj^h  I  still  contend  it  expres.ses  the  meaniii;r  of  the 
te.xt.  The  (|Uotation  marks  were  un  error  They  are  the  only 
40    two  cases  I  desire  to  correct. 

Mr.  Hod  well  : — That  is  not  to  the  point  I  wish  to  correct. 
Mr.  l)ickinsi)n  : — Not  at  all. 

Mr.  Hodwell  : — M}'  leaineil  friend  then  aj^rees  tliat  there  i.s 
nil  uiior  huiu  in  this  respect. 

Mr.  Dickinson: — In  that  respect,  but  not  in  respect  of  tho 
conclusion.  We  use  the  "  Indian  Chief  "  case  ourselves  now,  and 
we  cit'.'  it  later. 

Mr.  Hodwell  : — It  is,  howevei,  an  authority  upon  the  point 
which  I  am  now  makiii<^,  and  the  |)oint  of  the  case  comes  through 
no  thu  application  of  th  •  principle — this  case  in  so  niar.y  words 
decides  it.  It  settles  beyond  all  (piestion  that  a  person  domiciled 
in  one  country,  thou;;h  a  native  born  sulijoctof  another,  acquires 
by  reason  of  his  domicil  a  qualitiud  citizenship.  If  he  acquires 
pioperty  (lurin<r  the  course  of  his  residence  and  a  question  ari.ses 
in  a  prize  court  as  to  the  nationality  of  that  proper!',,  it  V\ill  be 
held  to  partake  of  thu  national  character  of  the  country  of  doi;>i- 
cile  and  not  of  the  country  of  his  native  alletriance. 

We  then  refer  to  thu  case  of  the  '  President,'  in  5  Robinson's 
A<lmiralty  Il(q)orts,  p.  12(5,  and  which  will  be  found  on  page  52 
(JO  of  our  argument  ;  we  also  refer  to  the  case  of  the  '  Anna  Kather- 
ina"  in  +  Robinson,  p.  107.  The  case  of  the  "  Matchless  "  will 
be  found  in  I  Ha}»gard's  Admiralty  Rep.,  p  103.  And  "  Driiin- 
niond's  case  in  2  Knapp  P.  (!.,  p.  295.  I  do  not  feel  justified  in 
taking  up  your  time  in  reading  these  cases  at  length.     I  also  cite 


17D 

(Mr.    RixIwuII'm   Ai'siitiiont.) 

tlii>  cMne  of  Livin|{Htono  v.  tlio  Marylaml  Instiraiicu  roinpany, 
7  ('ranch,  p.  500,  and  the  case  of  llm  "  V'cnUH,"  S  C!mnch,  p.  2.MI. 

Wo  have  lot  out  Htitficieiit  of  tliuso  cnsiis  in  our  printuil  iii^m). 
iiii'iit  fur  VHiir  HonorH  to  apprehend  what  they  fully  docido. 
Tliixi  caseH  h!iow  thai  tliis  line  of  deci^don  hits  heon  adopted  in 
Kn^flantl  and  followed  in  the  courts  of  tlie  United  States. 
Ill  Mr.  Dickinson: — Vouiiow  cite  something  which  is  not  in  tiie 
l.rirf. 

.Mr.  Ho<lwell  : — Yes,  tlie  case  of  the  "  Francis." 

'I'he  point  I  am  now  making  is,  tl<at  tliese  cases  estahlish  that 

till'  property  ohtained  tiy  the  doniicil  uf  the  person    in    relatiou 

1,1  his  trade   is   Hritish  property.      I  now  refer  to  the  case  ff  tlio 

Francis, "  reported  in  1  Oallison,  p.  (il4.      iu  this  case  tl  j  fuctH 

iiii'  : — 

"  Mr,  Colin  Oillespie  was  horn  in  (ilas^row    in  Scotland,  came 

•  Id  the  Unitetl  States  ill  17!'3.  and  was  nnturali/.ed  as  a  citizen 
■J)      ilnreof  at  New  York  in  I7!»N.      In  I7!t!)  he  iiinriied  in  Scotland, 

•'  urid  returned  with  his  wife  to  New  York,  where  he  re-id'-d  until 

'    IM02,  wlien,  on  account  of  the  ill  health  of  his  wife,  he  went  to 

Scotland.     In  ISO.')  he  came  a;jain   to   New    York,  and  having 

foiiiu'd  a  mercavtile  copartnerslii})  with   Mr.  Jol.n  (iruliamof 

•  that  city,  it  was  then  i4»reo<l,  for  the  henefit  ami  mutual 
"  interest  of  the  co-jmrtneiship,  that  Mr.  (iillespie  should  reside 

ill  (ireat  Britain  and  there  transact  the  husiiiess  of  theco-part- 
iier'<hip,  innier  the  tirm  of  Colin  (iillespie  iS;  Co.,  and   that  Mr. 

■  (>rali<im  sliould  transact  their  husiness  at  New  York,  under  the 
:;()  '  linn  of  John  (irahain  &  Co.     In  pursuanee  of  this  a;;reeiiient, 

■  Mr.  (iillespie  went  in  the  .same   year   to   Scotland  ;  estahlished 

•  his  ^ouse  of  trade  there,  and  continued  to  reside  therr  with 
■'  ])' .   family    until    the    spring   of   1HI;J,  doinjj    ^)^silles^    as   a 

■  merchant,  receiving;   eonsi<rnments  of  American  produce,  sell- 

■  ill},'  the  same,  and  piircliasin^  jjoods  in  that  market  to  ship  to 
'  the  United  States,  I)ui'in<;  hi"  residence  in  Scotland,  Mr. 
'  (1illespi(>  accepted  a  coiiimissi(;n  fioin  the  Hriti.sh  j{overinnent, 
"  ii'i  an  otlicer  in  tlit;  local  and  embodied  militia  which,  however, 
"  he   resifjneil    in    ISIO.      Mr.  (iillespie,  in   his  atfiilavit,  farther 

40  '  stated  that  it  was  always  his  intention  to  holil  to  his  adopted 
'  ftUefjiance,  and  to  do  no  act  inconsistent  with  his  duties  to  the 
"  United  States  ;  and  that,  as  soon  as  he  could  arran;;e  his  busi- 
'  iiess  in  fireat  Britain,  after  knowled^je  of  the  war,  he  set  sail 
'  with  his  family  to   the   United   States,  and    now    resides  with 

•  them  at  New  York.  The  present  shipment  was  mad(!  in  July, 
"  1.S12,  and  the  capture  took  place  on  or  about  the  —  of  August, 
"  lfsr2." 

The  (piestion  was  whether  his  goods  were  American  goods  or 
British  goods.     Story  J.  said  : — 

.')0  "  And  I  take  it  to  be  clear,  that  the  facts  of  this  case  establish 
"  the  position  that  Mr.  (Jillespie,  at  the  time  of  this  shipment  an<l 
"  capture,  was  a  merchant  domiciled  in  Great  Britain,  and  of 
"  course  aft'ocled  with  its  national  character.  He  was  .settled 
"  there  with  a  house  of  trade,  and  for  purposes  of  indefinite 
"  ext.  nt  and  duration.  Had  the  facts  boen  equivocal,  the  cir- 
"  ciimstance  that  it  was  his  native  country  would  undoubtedly 
"  have  been  entitled  to  great  weig'\t  in  deciding  the  question  of 
'domicile;  for,  as  Sir  William  Sc<tt  justly  observes,  the  native 
"character  easily  reverts,  and  it  reijuires  fewer  circumstances  to 

(10  •'  ciiiistitute  domicile,  in  case  of  a  native  subject,  than  to  impres.s 
"  the  national  character  on  one  who  is  originally  of  another 
"Country.  Such  then  being  the  domicile  and  national  character 
"of  Mr.  Gillespie,  he  must,  according  to  the  settled  rules  of 
"  public  law,  bo  deemed  to  partake  of  the   advantages   and  the 


«;': 


.:  ■' .  *« 


lit 
"I 

1' V 


I  \  M 


'"It 


18» 


(Mr.    Botlwcll's   Argument.) 

"  haznrils  of  u  Biitish  inorclmnt,  in  pence  and  war.  For  nil 
"  coiniiiercini  purposes,  it  is  ipiito  iniiiuiteriiil  wlint  ih  tlx.)  imtivo 
"  or  niiopted  country  of  a  party.  He  is  (icomed  a  niercliunt  of 
"  tliat  country  wlieru  he  resides  and  carries  on  trade.  Under 
"  sue!)  circuuistanc(>s,  Mr.  (lilU-spie  must  he  held,  so  far  as  the 
"  present  transaction  applies,  to  he  completely  invested  with  the 
10  "  hostile  character  of  a  British  meachant." 

Continuing  on  pajje  GIS.  in  ihesame  judj^ment,  Story  J.  said: 

"  In  the  present  case,  if  the  doctrine  of  llio  claimant's  counsel 
"  he  true,  Mr.  Ciillespie's  properly,  at  the  fme  of  the  capture, 
"  was  completfly  protected  from  capture  hy  British  and  American 
"cruisers.  He  was  certainly  entitled  to  protection,  as  a  British 
"  merchant  domiciled  in  Scotland  ;  aiul  upon  the  argument  of 
"  counsel,  as  an  American  merclumt  also.  I  shoidd  have  heen 
"  j;lad  to  liave  learned  how  this  douhle  character,  tliis  hostile  and 
"  amic'ihle  character,  could  coah'sce  in  the  same  ])erson,  as  to 
20  "  tiie  same  transaction.  I  ima>;iiu!  it  would  be  a  novas  luispiifi 
"in  the  prize  jurisdiction. " 

It  can  coalesae  Tor  many  purpo.ses — for  the  purpi>se  of  ascer- 
taining hi'^  |)iilitical  status,  or  the  liond  of  his  alleujiance,  hut  for 
counuercial  purposes  and  as  to  a  particular  transaction  they 
never  coalesce. 

1  refer  also  to  the  case  of  the  "  Ann  Oreeii,"  cit'/d  in  1  (lalli- 
son,  p.  274,  (111)  head  note  of  which  is  also  on  paj,'i^  '27 ii. 
I  now  (piote  from  the  juil<,'ment  of  Story  J.  at  paj»e  2S.t  : — 

''  If  .Mr.  Culleti  W(M°e  domieileil  at  Jauuiica,  at  ttie  time  of  the 
;J0  '  shipment,  he  would  he  lialiie  to  all  the  coiise(juerices  of  a 
"  British  commercial  characti  r;  fur  no  principle  is  ln^tter  settled 
"  tlinn  that  the  property  of  a  per.son  si!ttled  in  the  enemy's 
"  country,  althou;^h  Ih^  ho  a  neutral  suhjeet,  is  affected  with  the 
"  hostile  chaiacter.  It  is  (|uite  immaterial  in  this  view,  what 
"  Was  the  ori^dnal  or  ac(|uired  alle;{iance  of  .Mr.  tJullen.  A  native 
"  American  citizen  is  just  as  nnich  within  the  scope  of  the 
"  principle  as  a  fm-eij;ner." 

"  In  examining,'  the  testimony,  howtiver,  1  think  it  is  dillieult 
"  to  I'esist  the  impression  that  .Mr.  C'lillen's  ahsencu  was  oriijimiliy 
40  "  for  temporary  purposes.  It  is  expressly  shown  that  he  went 
"  out  to  colleci,  the  debts  of  the  company,  and  there  is  no  part  of 
"  the  evidence  that  points  to  to  a  distinct  trade  disconnecti-il  with 
"  those  debts.  I  admit  that  his  connection  in  a  house  of  tiado 
"  in  New  York  would  mol  alone  protect  him,  for  he  may  at  the 
"same  time  po.s.sess  the  commercial  character  of  several  nations." 

Story  J.,  continuinijf,  said  on  the  same  pa^e  :  — 

"  It  is  also  said  that  this  shipment  was  maile  by  C'ullen  in 
"  the  character  of  a  British  subject,  aiul  tliat  this  furnishes  distinct 
"  proof  of  his  havinj,'  retin'neil  to  his  mitive  alle;,'ianee." 
50  Your  Honors  will  see  that  there  ari^  two  principh>s  involveil. 
The  court  not  oidy  looks  into  the  (piestion  for  the  put  pose  of 
ascertaining;  the  domicile,  but  it  also  en(piires  into  the  particulars 
<if  the  transaction  to  ascertain  whether  it  occurred  in  the  man's 
cliaracli'r  of  a  merchant  of  the  country  where  he  was  domiciled, 
or  in  the  character  of  a  subject  of  the  country  of  oi'ij^in.  I 
sh'iU  have  occasion  to  point  oui  that  distinction  a  little  later  on, 
and  p.u'haps  make  it  sonu'what  cleanu',  so  that  I  need  not  dwell 
upon  it.     Continuing.;,  the  judnrnient  reads  as  follows  :  — 

"  1  a;;ree  that  such  would  ordinaril  v  I'c  the  case  ;  but  a  distinc- 
(JO  "  tion  hat  been  taken  in  the  authorities  lietween  a  time  of  peace  and 
"of  war.  Miuih  j^ncati'r  laxity  is  allowed  to  meicantile  transac- 
"  tions  in  peace  than  in  war.  Disjruises  and  covers  nri'  allowable  in 
"  the  foriper,  which  woidd  not  be  tolerated  in  the  latter.  1  do 
"  not  know  that  a  sinjjle  case  lias  been   decided    in    whidi   the 


18t 

(Mr.  Bodwoll's  Arffu?uent.) 

"  nssiiiiiiiiij  H  imtional  clinmcter  in  tiiiip  of  prapc,  to  iivoid 
"  iniiiiicipal  iliitics  or  rL';»ul«tioi».s,  or  to  nvoiil  tlio  (>ti'i'cts  of 
■■  iiiipeii(lin>;  war,  has  licon  liehl  to  liiiuJ  tlii'  party,  when!  it  lias  not 
"  lii'cn  in  frauil  of  tlii'  lutlli^orcnt  who  niaki's  tin-  oaptiirc.'' 
TiiiTt'  is  also  tho  casi^  of  tiit>  "  Joseph,"  1  (^allison,  pajfo  545. 
Tiiis  is  a  case  of  ailt'i;t'(i  trading  with  tiie  oncniy.  In  tiitvt  caso 
1(»   ii  is  saiil  as  follows: — 

"  It  an  American  vessel,  after  a  kno.wletlue  of  thu  war,  pro- 
"  ceed  from  a  iienlral  to  an  enemy  port  on  freij^ht,  it  is  a  trailinjr 
■'  with  the  enemy,  which  snlijects   the    vessel    to   forfeiture,  aiul 

•  she  is  lialile  therefor  on  her  return  voyajfe  to  the  United  States. 

"The  birth  of  a  party  is  not  that  which  decides  his  national 
"  character,  lull  his  domicil." 

It.  appears  that  this  vt-ssel  went  to  St.  Petcr.sl)ur<;,  took  a 
caij^o  of  (iermaii  ;;oiiiN  and  carried  it  to  lMi;rlani|  ;  and  the 
i|Uestion  was,  whether  in  doini;  that  she  was  trading  v/ith  tho 
'JO  cnemv.     At  paije  55 1  it  is  said  : — 

"  It  has  heen  siiirir,.stecl,  that  the  cari,'o  lieiiiLJ  shipped  Uy  a 
■  netitral  house  in  St.  I'eterslnir;^,  consigned  in  (ierman  houses 
"  in  London,  tlu^  latter  are  to  he  considen^il  as  neutral,  and 
"  therefore  there  was  no  trade  it  all  with  the  enemy.  There  is 
"  certairdy  no  foniulalion  for  this  sii;,'^'.'stion.  Admittin^f  that 
"  the  (ierman  hoiisi  s  in  London  consisted  alto;j;et.her  of  (ierman 
'  partners,  it,  is  (piite  im|iossilile  to  contend  tliat  they  arc-  neutrals. 
"  It  is  not  the  l)irth  or  native  allej,'iance.  hut  the  dondcil,  that 
decides  ill  case-  of  this  nature  the  national  ciuiracter  of  the 
;;ii  "  parties.  If  a  neutral  snhject  he  domiciled,  and  caiiy  on  trailu 
'    in  an  eiuiiiiy's  countiy,  he  is  h(dd  as  to  all  commercial  purposes, 

•  an  enemy.     There  can  he  no  douht,  therefore,  that  tlu>  (ierman 
"  houses  in    London    were,  as   to  all    purposes   of  tiaile,  enemies 
"  and  their  property  liahleto  coiiHscation  as  hostile  property." 
The-e  weri'  cases  in  the  prize  courts. 

The  Commissioner  on  the  part  of  the  United  States  : — Is  it 
necessary  to  cite  thost-  cases  >  Is  that  position  disputMl  hy  the 
United  States? 

.Mr.  Dickinson  : — Not  for  one  moment,  your  Honor. 
•Kl         Mr.  Hodwell : — -It  is  our  case. 

Tile  Commissioner  on  the  part  of  the  United  States  :--If  it 
is  not  disjiuted,  is  there  occasion  to  cite  it  ! 

Mr.  |{oil\vell  : — I  think  so,  your  Honor,  for  althou<rh 
il.  is  not  directly  disputed,  it  is  so,  indirectly  ;  it  is  claimed 
(Milt  the  jiroperty  of  Kiaiik,  Mechtid  and  otheis  was  American 
pitipeity,  anil  to  that  extent  the  position  is  dis])uted,  and 
i!ie  claim  is  then  a<lvanced  in  the  ar^'ument  for  the  Uniti'd 
.Stiites  that    this   heiii;;    American   property,  the    United    Stales 

had  a  li^-'t  to  seize  it,  therefore  what  I  wish  lo  estahlish 

."lU         Tlie  Commissioner  on  the  jiart  of  the    United    States: — You 
mean  the  vessel  liein;;  American  property. 

Mr.  liodwell  ;— The  contention  of  the  United  Slates  is  that 
it  is  .American  pro|)erty.  I  nm  not  dealini»  with  that,  Sir. 
What  I  wish  to  make  clear  is,  that  this  is  Uritish  jiroperty, 
,iiid  the  distinction  I  wish  to  jioint  out  with  reference  to  this 
class  of  cases,  after  luiviiii,'  laid  down  the  proposition  and  maiii- 
tiiined  it  hy  authority,  is  that  there  is  a  distinction  in  the 
application  of  the  jirinciple  to  the  cases  to  which  we  apply  it, 
and  the  .ipplicatioii  wdiicii  is  attein|)ted  lo  he  made  of  the  same 
tiO  Jirinciple  to  the  Cooper  case.  This  is  rather  anticipating  my 
,ii|,'ument,  and  it  peihaps  does  not  come  so  clearly  as  it  mijjht  if 
I  liiiij  fii||(i\vi>d  out  the  line  I  wa>  on,  hut  ni)  point  is  :  that  this 
iiaiiiiiialization  of  property  lefers  to  propcMty  which  is 
iici|uiied  hy  the  individual  in  tho  country  of  his  domicil  ;  and 


i 


'Ml  ■ 


iSffi 


182 


(Mr.   Bodwell's   Argument.) 

obtains  only  with  reference  to  the  trade  which  he  carries  on 
there.  It  does  not  apply  to  property  acquired  in  connection 
with  a  trade  which  he  carries  on  in  the  country  of  his  oiitjinal 
allegiance.  For  instance,  a  man  resident  in  Groat  Britain  might 
carry  on  trade  as  a  partner  in  a  house  in  New  York,  and  the 
pioperty  belonging  to  hi.s  partnership  in   New  York   would   be 

10  American  property,  but  the  property  possessed  in  Great  Britain 
under  those  cireuuistances  would  be  British  property. 

The  Commissioner  on  the  part  of  the  United  States: — These 
cases  are  prize  cases.  They  relate  to  the  iloctrine  of  alien  enemy, 
which  we  understand  pretty  well  in  the  United  States.  Now, 
are  you  willing  to  stand  by  the  law  of  prize  cases  ?  What 
would  become  of  your  British  registry  of  a  vessel  owned  by 
American  citizens  ? 

Mr.  Bodwell : — Your  Honor  has  anticipated  my  argument.  I 
said  at  the   beginning  that  these  cases  came   more  frequently 

20  before  prize  courts  than  civil  courts  ;  but  I  am  about  to  cite 
some  cases  now  in  which  the  principle  is  applied  in  civil  cases  in 
time  of  peace  when  the  question  of  domicil  and  of  the  nationaliza- 
tion of  propert}'  arises.  I  do  not  say,  and  I  hope  I  need  not 
be  so  understood,  that  the  piinciples  of  prize  courts  in  every 
bratich  apply  to  the  claims  now  before  your  Honors  ;  but  I 
argue  that  the  principle  which  I  apprehend  was  first  laid  down 
in  prize  courts  with  reference  to  the  nationalizaticn  of  property, 
became  a  principle  of  international  law  and  has  been  applied 
in  civil  actions  in  other  courts,  and  I  was  about  to  cite  cases  to 

30  that  effect.  There  is  an  old  case  where  the  matter  is  well 
reasoned  out  and  decided  at  a  time  when  Great  Britain  was 
asserting  the  peruiatifnt  allegiance  of  all  her  subjects,  contend- 
ing that  it  was  not  possible  for  tliem  by  residence  in  any 
other  country  to  throw  off  tlieir  character  of  British  subjects; 
and  I  submit  that  the  line  of  reasoning  there  adopted, 
which  enabled  thi;  judge  to  come  to  that  liecisiou,  is  all  the  more 
conclusive  from  the  fact  that  the  decision  was  arrived  at  by  an 
eminent  judge  at  that  particular  stage  in  the  history  of  the 
international  contentions  of  Great  Britain.     The  case  is  that  of 

40  Marryat  v.  Wdson,  1  Bosanquet  and  Puller,  page  430.  That  was 
a  case  in  which  it  was  decided  that  a  natural  born  subject  of 
Great  Britain,  ailuiitted  a  citizen  of  the  United  States  of 
America,  either  before  or  after  the  Declaration  of  American 
Independence,  may  be  considered  as  a  subject  of  the  United 
States,  so  &s  to  entitle  him  to  trade  to  the  East  Indies  under  the 
treaty  between  the  United  States  and  Groat  Britain ;  although 
iit  that  time  British  subjects  were  prevented  in  certain  cases 
from  trading  with  the  East  Indies  by  reason  of  the  monopoly 
of  the  East  Ii:  Ha  (,'onipany.     The  judgment   is  that  of  Chief 

50  Justice  Ej're.     l.'e  saj-s  at  page  4.S0  : — 

"  There  reniaiiis  one  other  topic  of  which  I  am  called  upon 
"  to  take  some  notice.  It  is  said  that  Collet,  who  is  solel}' 
"  interested  in  the  two  first  of  these  policies,  and  has  a  joint 
"  interest  with  Butler  in  the  last,  being  a  natural  born  subject  of 
"  this  country,  cannot  shake  off  that  character,  and  become  an 
"  American  so  as  to  entitle  himself  to  the  protection  of  this 
"  treaty.  He  is  a  British  subject  trading  to  the  East  Indies  ;  his 
"  trade  is  therefore  illicit ;  the  voyages  insureil  are  illegal  and 
"the  policies  are  void." 

GO  Beginning  tlie  discussion  of  the  main  subject  at  page  442  he 

says :— 

"  It  was  observed  by  Lord  Hale,  that  a  natural  born  subject 
"  of  this  country  may  by  foreign  naturalization  entangle  himself 
"  in  difficulties  and  a  conflict  of  iluties.     So  may  the  naturalized 


183 

(Mr.   Bodwell's   Argument.) 

"  or  denizen  subject  of  the  King  of  Great  Britain,  Yet  it  is  clear 
"  that  we  and  all  the  civilized  nations  and  states  of  Europe  do 
"  adopt  (each  according  to  their  own  laws)  the  natural-born 
"  subjects  of  other  countries.  So,  I  take  it,  Vattel  puts  it  in 
"  the  passages  referred  to.  Our  laws  give  certain  privileges  and 
"  withhold  certain  pilvileges  froni  our  adopted  subjects,  and  we 

10  "  may  naturally  conclude,  that  there  may  be  some  qualification 
"  of  the  privilege  in  the  laws  of  other  countries.  But  our 
"  lesident  denizens  are  entitled,  as  I  take  it  to  all  sorts  of  com- 
"  mercial  privileges  which  our  natural  born  subjects  can  claim. 
"  We  should  consider  them  as  English  in  the  language  of  the 
"  Navigation  Act.  The  United  States  do  undoubtedly  consider 
"  their  adopted  subjects  as  subjects  of  the  United  States  within 
"  their  laws.  And  I  take  it  that  we  should  consider  their  adopted 
"  subjects,  if  they  happen  not  to  be  natural  l)orn  subjects  of  the 
"King  of  Grea*  Britain,  as  subjects  of  the  United  States  within 

20  '•  our  navigation  laws.  To  this  proposition  I  take  the  case  of 
"  Scott  v,  Schwartz  to  be  in  point,  if  it  wanted  an  authority. 
"  The  case  now  begins  to  work  itself  clear." 

I  am  now  citing  this  authority  principally  to  shew  the  line  of 
reasoning  bj'  which  the  conclusion  was  arrived  at,  and  I  submit 
that  that  line  of  reasoning,  when  properly  understoofi  and  thor- 
oughly worked  out,  is  one  which  will  establish  the  position  we  are 
contending  for.  He  begins  to  consider  what  this  matter  of  dual 
citizenship  is,  where  it  begins,  what  are  its  limitations  and 
characteristics.     He  says  : 

3(1  "  It  comes  to  this  question  ;  What  difference  does  the  circum- 
"  stances  of  the  adopted  subject  of  the  United  States  being  a 
"  natural  born  subject  of  the  King  of  Great  Britain  make  ?  Is 
"  there  any  general  principle  in  the  law  of  nations  (out  of 
"  which  this  adoption  of  subjects  seems  to  have  grown)  that  in 
"  the  parent  state  the  adopted  subject  is  incapable  of  enjoying 
"  the  privileges  which  have  been  conceded  by  the  parent  state  to 
"  the  other  subjects  of  that  state  which  has  adopted  him  ?  I 
"  know  of  no  such  disabling  principle.  Let  us  then  come  to  our 
"  municipal  law.     Lord  Hale   says   foreign    naturalization    may 

■iO  ■'  involve  the  natural  born  subject  in  aconflict  of  dutie.s.  This  i.s 
"  eloquence  but  not  precision.  What  are  the  tluties  of  which 
"  there  may  be  a  conflict  ?  Our  laws  pronounce,  that  if  there 
"  .should  be  war  between  his  parent  state,  and  the  state  which 
"  has  adopted  him  he  must  not  arm  himself  against  the  parent 
'■  state.  Perhaps  they  go  further  and  say,  that  if  he  is  here  he 
"  may  be  prevented  from  returning  to  his  domicile  in  the  state 
"  which  has  adopted  him  ;  that  if  he  is  there,  he  must  on  receiv- 
"  ing  the  King's  commands  under  his  privy  seal  return  hither  on 
"  pain  of  incurring  a  contempt  and  penalties  consequent  upon  it. 

50  "  Whether  the  proclamation  which  has  been  introduced  into  this 
"  cause  will  have  the  same  effect  as  a  privy  seal  served  upon 
"  the  party,  is  a  question  not  necessary  to  be  here  discussed." 

In  fact,  he  there  states  all  the  distinctions  which  arise,  that 
is  to  say,  those  are  all  the  disabilities  which  relate  to  a  subject  in 
a  foreign  country  with  reference  to  bis  native  allegiance! 
He  then  proceeds  : — 

"  Our  municipal  laws  may  attach  upon  him  in  some  other 
"cases,  but  I  conclude  in  no  instance  which  by  analogy  can 
"  govern  the  present  case,  because  I  have  heard  of  no  such  argu- 

00  "  merit  from  analogy.  Upon  what  authority  then  is  it  said,  that 
'■  a  natural  born  subject  of  the  King  of  Great  Britain  shall  not 
'  trade  to  the  East  Indies,  though  he  is  an  adopted  subject  of 
"  another  country  whose  subjects  in  general  are  allowed  to  trade 
"  to  the  East  Indies  ?     Shall  it  be  enough  to  say  that  the  rest  of 


"v 


.''I 


^''H 


!'  :' 


.'*V*  I 


n      •■   t    -li  ft  .? 


N;  n 


V-fi 


11  ;■ 


184 


(Mr.   Bodwell's   Argument.) 

"  the  king's  subjects  are  not  allowed  to  trade  to  the  East  Indies, 
'  and  therefore  you,  being  tlie  king's  subject,  shall  not  ?  He 
"  will  answer,  I  have  a  privilege  which  the  rest  of  the  king's 
"  subjects  have  not.  I  am  the  kings  subject,  but  I  am  also  the 
"subject  of  the  United  States,  and  Great  Britain  has  granted  to 
'•  the  subjects  of  the  United   States  that   they  niaj'  trade.     He 

10  "  niiiy  add, — I  violated  no  law  of  my  parent  state  in  prjcuring 
"  myself  to  be  received  a  subject  of  the  United  States.  She 
"  oncourngos  the  practice,  for  she  herself  adopts  th'j  Hi.:bjects  of 
"  other  states  Why  then  are  the  fruits  of  mi-  adoption  to  be 
"  withheKi  froM)  me  .?  If  it  be  said  tohiu),  you  a  British  subject 
"  ought  not  to  trade  to  the  loss  and  injury  of  the  East  India  Com- 
"  pany  who  have  a  monopoly  ;  he  n)ay  say  :  the  subjects  of  the 
'•  I'nite<l  States  may  and  ought  to  carr^-  on  this  trade  under  the 
'•  autlioiity  of  the  laws  of  this  country  ;  under  the  authority  of 
"  the  .-aiue  laws   which  gave  to  the  East  India  Company  their 

20  "  monopoly.  If  the  Company  sustain  a  loss,  it  is  damnum  sine 
"  iDJa)  id.  In  short,  it  being  oneogi anted  that  natural  born  sub- 
'•  jects  of  the  King  of  (Jreat  Britain  may  become  subjects  of  the 
"  United  States,  there  can  be  no  bieaeh  of  moral,  political,  or 
"  legal  duties,  no  conllicl  of  duties  in  claiming  or  exercising  the 
"  privileges  which  belong  to  that  character." 
Further,  on  the  same  page,  he  says  : — 

"  I  am  not  prepared  to  sa\-,  highly  as  I  respect  the  authority 
"  of  those  who  held  that  opinion,  that  thi"  character  of  natural 
"  born  subject  will  control  or  suspend  the  legal  operatiori  of  that 

jj(j  "  of  a  subji'ct  of  the  United  States.  There  is  here  no  conflict  of 
"duties.  Both  cb.aiaeters  may  stand  together:  and  if  sonie 
"  political  iticiinvenieiiees,  such  as  tlu)se  suggested  in  the  argu- 
"  nient  before  us  (tlii)ugh  these  seem  very  remote)  shoulil  follow, 
"  yet  if  these  inconveniences  are  not  of  coJisequence  enougli  to 
"  prevent  the  practice  of  the  adoption  of  subjects  by  CJreat  Britain 
"  and  ever^'  other  state  in  Europe,  we  cannot  satisfy  ourselves 
"  that  the}'  ought  to  control  the  legal  consequences  of  that  adop- 
"  tion.  We  are  of  opinion  that  there  is  no  error  in  this  judgment, 
•'  and  that  it  ouglit  to  be  affirmed." 

Collett  became  an  adopted  citizen  of  the  United  States  but, 
accoiding  to  the  theory  of  Biitish  law  at  that  time,  he  could  not 
beccme  a  citizen  in  the  sense  which  naturalization  now  occurs. 
Great  Britain  maintaining  for  many  years  after,  the  position 
that  a  subject,  native  born,  could  not  by  any  proce.ss  of 
natuiiilization,  throw  otf  his  permanent  allegiance  to  Great 
Britain.  Therefore,  I  say  that  that  ease  has  peculiar  signifi- 
cance, and  is  a  particularly  stiong  authoritj',  because  at  that 
time,  and  under  those  circumstances,  it  was  held  that  a  num,  by 
reason  of  his  residence,  ac(iuired  a  coimnercial  nationality,  and 
was  entitled  to  protection  in  a  commercial  operation.  As  j-our 
Honors  seem  to  think  that,  perhaps,  I  am,  to  a  certain  extent, 
qu(.ting  authorities  relative  to  matters  which  are  not  in  dis|)Ute, 
I  will  not  eontiniie  at  letigth  on  this  line,  but  there  is  another 
case  in  which  the  same  doctrine  is  worked  out  by  Doctor  Croke. 
I  refer  to  the  case  of  the  "  Naiiej',"  Stewarts'  Nova  Scotia  Reports, 
page  4!).     The  point  in  that  case  was  this  : — 

"  Spirits  of  turpentine  not  importable  under  JCh'd  George  III., 
"  ch.  50,  section  14.  Importers  means  owners  British  sulijects 
"  resilient  abroad  cannot  import."  There  was  a  statute  passed 
in  Nova  Scotia  which  prevented  the  importation  of  a  certain 
kind  iif  goods,  turpentine  and  some  other  goods,  except  by  British 
sulij-ets  in  British  ships.  There  was  a  tuitural  born  British 
subject  residing  at  New  York  and  carrying  on  trade.  Ho  sent 
a  caiito  of  that  class  of  I'oods  to    Halifax.     George  Scott  and 


40 


50 


GO 


186 

(Mr.   Bodwell's   Argument.) 

Joseph  Trenmin  worft  the  names  of  the  two  merchants  in  New 
York. 

Tliis  is  a  case  under  a  statute,  not  a  decision  in  the  prize  courts. 
It  shews  tliat  the  doctrine  is  laid  down  and  maintained  wlienever 
it  hccomes  necessarj'  to  apply  the  principle  in  civil  disputes.  It 
is  not  a  doctrine  obtaining  only  in  time  of  war. 

10  Tile  Commissioner  on  the  part  of  the  United  States  : — I  did 
not  inten<l  to  sutrgest  that  it  was.  As  a  doctrine  of  prize  courts 
it  was  so  well  known  it  was  not  necessary  to  do  more  than  illus- 
trate it.  Please  understand,  if  I  ask  any  questions,  I  do  not 
mean  to  indicate  that  I  have  any  views,  but  that  I  have  diffi- 
culties I  want  removed. 

Mr.  Bodwell :— I  am  more  than  pleased  that  your  Honor 
should  a«k  questions,  because  it  gives  me  an  advantage,  enabling 
me  to  direct  my  argument  to  the  particular  point  passing  in  ^our 
Honor's  mini!. 

20  The  Commissioner  on  the  part  of  the  United  States  ; — I  do 
not  mean,  either,  that  I  expect  you  to  answer  at  the  time. 

Mr.  Bodwell  : — I  hope  your  Honor  will  not  misunderstand 
nie,  either  ;  for  I  do  not  object  at  all  to  the  interruptions  ;  I  am 
more  than  plea.sed  they  should  occur. 

This  is  a  well  reasoned  judgment.  It  is  too  long  to  read, 
but  I  know  your  Ffonijrs  will  refer  to  it.  It  tikes  up  the  whole 
subject,  and  works  it  out  on  the  same  line  as  the  other  cases. 
It  was  held  that  these  men  were  not  British  subjects,  because 
they  were  residing  an<i  carrying  on  trade  in  New  York,  and  be- 

"0  cause  tliey  were  making  shipments  of  these  particular  goods  from 
New  York,  and  that  therefore,  for  commercial  purposes,  the  goods 
were  American  shipped  by  American  subjects.  There  is  also  the 
case  of  McConnell  v.  Hector,  3  Bosanquet  an!  Puller,  113,  where 
it  is  said,  as  follows  :  — 

'■  A  commission  of  bankrupt  founded  on  the  petition  of  A.,  a 
"  British  subject,  resident  in  England,  for  a  debt  due  to  himself 
"  and  his  partners  B.  and  C,  also  British  subjects,  but  resident 
"  and  carrying  on  trade  in  an  enemy's  country,  cannot  be 
"  supported." 

40  It  was  there  held  that  the  residence  of  the  two  partners  in 
the  enemy's  country  prevented  the  other  partner  in  England 
from  presenting  a  petition  in  bankruptcy.  The  ground  of  that 
is  staled  liy  the  Chief  Justice  at  page  114: — 

"  Though  these  persons  may  not  have  done  that  which  would 
"  amount  to  treason,  j'et  there  is  an  hostile  adherence  and  a 
"  commercial  adherence." 

Here  is  the  key  to  the  situation,  and  I  would  like  to  impress 
it  on  your  Honors  ; — 

"  And  I  do  not  wish   to  hear  it  argued  that  a    person    who 

.'0  "  lives  and  cariies  on  trade  under  the  protection  and  foi'  the 
"  benefit  of  an  hostile  state,  and  who  is  so  far  a  merchant  settled 
"  in  that  state  that  his  goods  would  be  liable  to  contiscation  in  a 
"  court  of  prize,  is  yet  to  be  considered  as  entitled  to  sue  as  an 
"  English  subject  in  an  English  court  of  justice.  The  question  is 
"  whether  a  man  who  resides  under  the  allegiance  and  protection 
"  of  a  hostile  state  for  all  commercial  purposes,  is  not  to  be 
"considered  to  all  civil  purposes  as  much  an  alien  enemy  as  if  he 
"  were  born  there  ?  If  we  were  to  hold  that  he  was  not,  wo 
"  must  contradict  all  the  modern  authorities  upiui  this  subject." 

<10  There  is  also  the  case  of  Bell  v.  Reiil,  not  cited  in  our  brief, 
1  Maule  and  Selwyn,  page  720,  which  carries  out  the  same  line  of 
rea.soning. 

As  I  undeistand  it,  the  answer  which  my  friends  make  to 
this  line  of  cases,  or  rather  one  answer,  is  this :  that  the  contention 


K 


t 


i 

1       1    1 

, 

' 

ll 

i,;,..)iyitiy 

1 
1- 

f^:^*ff..r 


186 


20 


30 


(Mr.   Bodwell's   Argument.) 

I  am  now  making  was  a  part  of  argument  of  Mr.  Hoar  in 
the  Barclay  case  ;  and  that  he  was  foicuil  to  admit  in  liis  argu- 
ment that  it  was  unsound,  that  i.s  to  say,  tliat  it  was  unsound  as 
we  put  it,  and  the  decision  was  against  him.  Tlierefore  tliey  say 
that  you  have  not  only  the  decision  of  the  Commissioners,  but  tlie 
.'irgument  of  a  man  as  to  whose  ability  and  knowledge  of  law 
10  there  can  '  j  no  question,  opposed  to  our  position  liere.  In  order 
that  tliat  may  be  thoroughly  understood,!  deem  it  of  importance 
that  the  Barclay  case  should  be  referred  to  at  some  length. 

The  circumstances  under  which  the  Barclay  case  arose  were 
the.se :  In  the  civil  war  between  the  North  and  South,  the 
property  of  a  great  many  British  subjects,  who  were  residing 
there,  was  injured.  Under  those  circumstances  Great  Britain 
made  a  claim,  among  other  things,  that  the  property  of  lier  sub- 
jects residing  in  the  United  States,  which  had  been  destroyed 
while  they  were  observing  the  laws  of  neutrality,  should  be  pro- 
tected, and  that  compensation  should  be  made  for  their  loss.  This 
claim  was  admitted  by  the  United  States,  and  a  treaty  was  exe- 
cuted. The  treaty  of  1871,  XII  Article,  is  the  one  which  refers  to 
this  point ;  and   there 

"The  High  Contracting  Parties  agree  that  all  claims  on 
"  the  part  of  corporations,  companieis.  or  private  individuals, 
'■  citi/eim  of  the  United  States,  upon  the  government  of  Her 
"  Britannic  Majesty,  arising  out  of  acts  connnitled  against 
"  the  persons  or  property  of  citizens  of  the  United  States, 
"during  the  period  between  the  13th  of  April,  18G1,  and 
"  ilie  !)tl)  of  April,  18U,i,  inclusive,  not  being  claims  growing 
"  out  of  the  acts  of  the  vessels  referred  of  in  Article  1. 
"  of  this  treaty  :  and  all  claims,  with  the  like  exception,  on  the 
"  part  of  corporations,  companies  or  private  individuals,  subjects 
"  of  Her  Britaniuc  Majesty  upon  the  Government  of  the  United 
"  States,  arising  out  cf  acts  committed  against  the  per.sons  or 
"  propel  ty  of  subjects  of  Her  Britannic  Majesty  (hiring  the  same 
"  period,  which  may  have  been  presented  to  either  Goveriunent 
"for  its  interposition  with  the  others,  and  which  yet  remained 
■to   "  unsettled." 

The  claims  to  which  the  treaty  refers  are  the  claims  arising  out 
of  tliat  condition  of  things  which  had  been  presented  and  which 
then  remained  unsettled,  so  that  there  was  under  that  treaty  a 
particular  class  of  persons  referred  to  whose  claims  were  to  come 
before  the  (Commission  ;  and  it  goes  without  saying  that  nol'ody 
else  could  appear  there.  The  question,  therefore,  in  the  Barclay 
case  was  this  :  Was  Barclay  a  person  whose  claim  had  been  pre- 
sented,iiiid  did  it  remain  unsettled  ?  That  is,  was  he  a  British  sub- 
jeft  residing  under  the  provisions  of  the  treaty  in  the  United 
States?  and  having  been  a  neutral  there, was  hix  property  impro- 
perly and  wrongfully  destro3'ed  ?  Now,  the  facts  relating  to  Bar- 
clay were  these  :  He  was  a  native  subject  of  Her  British  Majesty  ; 
he  was  a  resident  of  the  United  States  for  many  years  prior  to 
18.58,  for  the  greater  part  of  t  le  time  engaged  in  Her  Majesty's 
service  in  various  capacities,  and  from  18+:?  to  1856  was  Her 
Majesty's  Consul  at  New  York  city.  In  the  year  18.58,  he  took 
up  his  residence  in  (Jeorgia,  and  there  engaged  in  planting, 
carr}intr  on  three  separate  plantations  witliin  the  State  of 
"''  Georgia;  two  he  owned  and  the  other  he  leaseil  and  worked.  I  now 
rend  from  the  statement  of  the  case.  "  He  alleges  that  he  observed 
the  laws  of  neutrality — and  there  is  no  question  but  that  he  did — 
Then  111'  sets  up  the  President's  proclamation  of  blockade  in 
l8Cl,and  the  Act  of  Congress  of  July,  186 1,  conKscating  property 


r>o 


187 

(Mr.    Bod  well's   Argument.) 

wliich  should  bo  found  passing;;  from  the  insurrectionary  into  the 
loyal  (states,  and  alleges  that  it  was  at  no  time  possible  for  him 
to  withdraw  his  effects  from  the  .scene  of  the  insurrection.  Ho 
alleges  various  acts  of  plunder  and  devastation  on  all  the  three 
plantations,  committed  by  the  United  States  forces  under  General 
Sherman  in  or  about  December,  1804,  and    he    alleges  also  the 

10  occupatior)  an(i  apjjr-opriation  of  two  of  his  plantations  by  the 
iiiiiitary  forces  of  the  United  States  and  by  emancipated  negroes 
under  General  Sherman'.s  authority." 

It  appears  that  General  Sherman  had  confiscated  his  property. 
Now,  then,  the  question  before  the  Commission  was,  to  decide 
whether  or  not  he  was  within  the  treaty  designating  a  particular 
class  of  per'.sons,  namely,  British  subjects,  observing  the  laws  of 
neutrality  I'esiding  in  the  United  States,  who  had  been  unjustly 
iliscriminated  against  by  what  had  occurred. 

In  the  argument  both  sides  refer  to  the  diplomatic  corres- 

20  pomlencc  to  ascertain  what  those  claims  were  which  had  been 
presented  and  were  then  unsettled. 

I  refer  now  to  a  statement  made  on  page  G4  of  the  argument 
for  the  United  States.  Speaking  of  this  case  they  say,  begin- 
ning at  the  bottom  of  page  G3 : 

"  In  a  learned  and  most  cai'eful  argument,  showing  in  its 
"citations  the  most  exhaustive  research,  he,  (that  is  Judge  Hoar,) 
"  was  compelled  to  admit  that  the  conclusion  of  all  the  author- 
"  ities  on  international  law  was  that  the  nation  of  domicile 
"  couKl   intervene  for  the  protection  of  a  person  so   domiciliated 

']()  "  as  against  ever-y  nation  except  the  nation  of  his  original 
'■  citizen.ship ;  that  for  certain  purposes,  the  local  sovereignty 
"could  intervene  and  protect  him  even  against  that  country,  but 
'■  never  in  derogation  of  the  rights  of  the  country  of  his  birth  as 
"  recognized  by  international  law." 

With  all  repsect,  I  do  not  find  that  that  was  the  argument 
of  Judge  Hoar.  He  was  addressing  his  mind,  as  I  shall  show 
voii,  to  another  point.  He  was  considering  the  extent  of  the 
authority  of  the  state  of  domiciliation  over  the  domiciled  person, 
and  he  was  endeavoring  to  lay   down   the   linuts   within   which 

40  the  country  of  origin  might  intei^'ere  in  a  case  of  such  a  person 
to  protect  him  in  his  rights  ;  and  the  argument  which  he  made 
was  this :  that  the  local  sovereignty  had  a  right  to  the  complete 
services  and  loyalty  of  the  domiciled  citizen,  except  that  it  could 
not  compel  him  to  take  up  arms  against  his  native  country,  and 
that  the  right  of  a  country  of  origin  to  interfere  for  his  protec- 
tion, was,  among  other  things,  limited  to  a  case  in  which  it  could 
he  shown  that  he  was  discriminated  against  improperlj'  in 
the  administration  of  the  affairs  of  the  local  sovereignty.  I'hat 
wa'i  the  position  which   Judge  Hoar   was  contending  for  in  his 

•''O  argument. 

"  The  (juestion  to  what  extent  the  local  sovereignty  may  re- 
(|uire  the  services  of  a  domiciled  citizen  is  a  very  different 
question  from  this — to  what  extent  in  a  domicileil  country'  may 
native  born  .-ubject  of  another  country  ilisregard  the  laws  of 
the  counti'y  of  origin,  I  say  the  latter  is  a  different  (luestion 
from  the  one  di.scussed  by  Judgt.'  Hoar,  I  am  not  now  arguing 
for  one  or  the  other,  but  the  Ututed  States  counsel  say  that 
we  are  contending  that  a  domiciled  citizen  may  disregard  the 
laws  of  the  country  of  his  origin.       Such   is  not  our  position. 

•if)  Our  position  is  that  even  if  it  coulil  be  shown  which  we  do  not 
admit  that  extra  territorial  laws  could  be  enacteil  liy  the  coun- 
try of  his  origin  to  affect  him  while  domiciled  in  another 
country,  even  then  the  country  of  his  origin  would  have  no 
authority  to  invade  the  country  of  domicile  and  enforce  those 


:^h 


I  ■,' 


m 


n  i;  ii 


mM; 


m^m 


iiir 


188 


20 


(Mr.  Bodwell's   Argument.) 

laws  there.  But  it  is  sufficient  for  my  argument  to  say  that 
the  question  that  Judge  Hoar  was  discussing  was  an  altogether 
different  question.  He  says  at  page  281  of  the  Report  of 
the  Proceedings  and  Awards  of  the  mixed  commission  on  British 
and  American  claims,  No.  2,  1X94  : 

''  An  iidiabitant  so  domiciled  owes  civil  and  political  allegiance 
10  "  to  the  local  sovereignty,  unless  a.s  against  the  sovereignty  of 
"  his  birth.  This  allegiance  and  obligation  have  no  limits  or 
"qualifications  ;  and  the  mere  fact  that  ho  may  not  have  gone 
"  through  the  form  of  naturalization  would  be,  under  the  circum- 
"  stance.s  of  his  case,  innnaterial.  It  would  furnish  no  answer  to 
"  that  sovereignty  if  it  should  see  fit  to  make  the  same  demand 
"  upon  him  as  upon  its  native  or  naturalized  citizens,  for  civil  or 
"  militarj'  service  in  person,  or  contributions  from  his  property, 
"  moval)lo  or  immovable,  for  the  exingencies  of  peace  or  war." 

Now,  what  are  the  limitations  meiltionei'.  by  him  ? 

"No  power  could  call  in  question  these  absolute  rights  of 
"  the  local  sovereign,  unless  it  be  the  sovereignty  of  this  inhabi- 
"  tant's  birth.  Such  u  question  could  not  be  settled  by  municipal 
"  law  of  the  soveieignty  of  his  birth,  but  by  the  law  of  nations. 
"  In  the  present  state  of  the  law  of  nations,  it  is  extremely  doubt- 
"  ful  if  there  are  any  circumstances  which  would  justify  the 
"  sovereignly  of  his  birth  ;:i  interfering  for  his  protection.  If 
"  there  be  any,  it  would  be  such  as  fur.-iislied  proof  that  the  local 
"  .sovereign  in  some  way  attacked,  through  this  person,  the 
"  sovereignty  of  his  birth.  Such  would  be,  for  instance,  laws  or 
30  '•  acts  discriminating  against  the  claimant  on  account  of  his 
"  nativitj',  or  connection  with  the  country  of  his  birth,  or  in 
"  derogation  of  rights  of  that  country  as  recognized  by  law." 

These  are  the  first  two  positions  which  Judge  Hoar  takes 
in  order  to  make  his  argument  that  Barclay  was  not  a  per- 
son included  within  the  terms  of  the  treaty.  He  proceeds  to  say 
at  pasje  28+  : — 

"  The  treat}'  must  be  considered  as  relating  only  to  what  can 
"  be  called  British  propeity.  The  property  for  which  this  claim 
"  is  made  was,  in  no  sense  of  International  law,  British  property." 

For  these  reasons  : — 

"  The  Treaty  contemplates  only  such  persons  as  are,  in  the 
•'  sense  of  the  laws  of  war,  subjects  of  Great  Britain,  a.s,  for  in- 
•'  stance,  those  who  are  temporarily  residing  in  the  belligerent 
■'  territory  for  temporary  purpose.s,  or  for  international  conveni- 
''  ence  only,  or  the  care  of  property  confided  to  the  belligerent 
■'  territory  for  commercial  purposes  or  the  purposes  of  travel  or 
«'  temporary  residence." 

His  next  point  is  on  page  28.5  : — 

'•  To  bring  his  case  within  the  Treaty  one  of  two  things  must 
"  be  .shown ;  either  that  he  suffered  in  his  property  specially  in 
"  his  capacity  as  a  subject  of  Her  Britannic  Majesty,  or  that,  in 
"  common  witii  all  others,  his'property  was  taken  in  violation  of 
"  the  laws  of  war,  to  such  an  extent  as  entitles  any  .sovereignty 
"  whose  interposition  he  could  claim,  to  demand  redress  under 
"  the  law  of  nations." 

Then  he  proceeds  to  argue  that  in  Barclay's  case  there  was 
no  contravention  of  the  laws  of  war,  because  it  was  not  pre- 
ten<led  that  in  Barclay's  case  there  was  any  discrimination  made 
60  or  allowed  against  the  property  of  this  claimant  compareil  with 
other  property  found  in  the  enemies  territory.  Then  he  argues 
at  page  2'Jl  :  That  there  was  nothing  in  the  treaty  lietween 
Great  Britain  and  the  United  States  touching  the  residence  of 
aliens   which   bears   upon   the  claims   of  Barclay,  and    that  the 


40 


50 


189 

(Mr,   Bod  well's  Argument.) 

treaty  of  1794  only  related  to  comniorciftl  and  temporary  resi- 
dents for  commercial  purposes.  That  was  Judj^e  Hoar's 
iiri'ument.  Your  honors  will  see  it  does  not  touch  the  point  we 
liave  been  discussin<j,  and  in  the  naluie  of  LIiIulH  it  coul<l  not. 
I'liat  sutiject  was  not  bffore  that  conunission.  Mo  adopted  the 
;ir"innent  (»f  Judfje  Hale  as  to  the  nationality  of  property, 
1"  iind  the  point  he  makes  is  that  the  property  was  the  property  of 
a  man  who  had  a  permaiiciit  rosidcnci'  in  the  IJnitecl  States,  and 
ilicnd'ore  wa^  not  a  person  coiitempliileil  in  tlio  treatj-.the  terms 
111'  wliicli  only  applied  to  persons  tcinponirily  resident,  and  who 
would  therefore  lie  taki^n  to  hold  an  intention  to  return  and 
ii'sniiii'  thfir  British  resilience. 

Mr.  Dickinson  : — He  was  beaten  on  both  questions. 

Mr.  Hodwell  : — Yes,  in  the  way  ho  put  it  ;  because  it  was 
^-h(•^vn  b}'  the  diplomatic  c()rres|)ondence  and  the  wonlinj;  of  the 
Ti'eaty  that  the  United  .States  had  a(i;reed  that  Hritish  citizens 
2(1  in  the  United  States,  and  carryini,'  on  their  tiade  there  under 
the  provisions  of  the  treaty,  should  be  protected  by  Great 
I'lritain.  They  assented  to  the  proposition  that  Great  Britain 
had  a  right  to  interfere  for  their  protection,  and  the  argument  of 
the  counsel  for  Great  Britain  was  this,  that  they  had  been 
unjustly  discriminated  against,  ami  that  there  was  no  reason  why 
their  property  should  have  been  taken.  Great  Britain  succeeded  on 
tiie  facts,  on  the  evidence  pertaining  to  the  case  ;  as  I  understand 
the  argument  for  the  Biitish  counsel  at  page  29.5,  he  argues  that 
the  acts  were  conunitted  without  provocation,  and  at  page  296 
.SO  that  Barclay's  domicile  was  in  the  United  States,  and  not  in  any 
particular  State,  and  therefore  was  recognized  by  the  Treaty.  At 
page  297  he  contends  that  the  Treat}'  cont  unplated  subjects  in 
any  .sense,  and  therefore  that  the}'  were  not  concerned  as  to 
whether  they  were  subjects  civil  or  political.  Now,  here  is  the 
key  to  the  umlerstanding  of  that  argument — the  position  which 
WHS  taken  there  and  sustained,  page  307  of  the  argument  of  the 
British  Counsel : — 

"  The  .same  doctrine  is  the  key  to  the  correct  understanding 

"  of  the  bearing  of  the  numerous  prize  causes  cited  by  Mr.  Hale 

40  "  as  supporting  his  argument.     Under  the  prize  law  the  property 

'  of  everj'ono  domiciled  or  resident  in  the  country  of  a   belli- 

"  gerent  is  subject  to  capture." 

At  page  308  he  says  : — 

"  The  fallacy  in  the  argument  of  Mr.  Hale  is  in  a.ssuming 
"  that,  by  proving  the  claimant  to  be  an  American  citizen  for 
"  certain  purposes,  he  proves  him  not  to  be  a  British  subject  for 
"  any  purpose. 

"  It  is  not  at  all  necessary  for  the  claimant  in  this  case  to 
"  show  that  he  is  not  a  citizen  of  the  United  States  in  some 
50  "  sense  ;  it  is  only  necessary  for  him  to  .show  that  he  was  a 
"  British  subject  in  the  sense  of  the  Treaty." 

In  other  words,  that  there  was  no  distinction  in  that  treaty 
between  British  subjects  of  one  class  and  another  class.  The 
decision  of  the  case  is  to  be  found  at  page  9,  and  was  upon  the 
facts.     I  read  it  as  follows  : — 

"  The  first  thing  to  be  decided  in  this  case  is  whether  the 
"  Commissioners  have  jurisdiction — which  depends  upon  whether 
"  the  claimant  is,  within  the  meaning  of  the  treaty,  a  British 
"  subject." 
60  "  That  he  is  in  fact  a  British  subject,  there  is  no  doubt ;  but 
"  it  is  contended  that  being  domiciled  in  the  United  States,  he  is 
"  not  one  of  those  intended  by  the  framers  of  this  treaty  to  be 
"  included  in  that  te^-m.  It  is  undoubtedly  true,  as  appears  from 
"  various  cases  in  the  arguments  that  the  subject  or  citizens  of 


■I  ■  i 


r*m^ 


■     4: 


■■.;lJi 


m\ 


!     I 


m 

p.. 

^y 

190 


(Mr.   Bodwell's   Arguiuont.) 

"  one  State,  (Inmieilcil  in  anoUier,  acquires  in  some  respects, 
"  privileges,  an'l  incurs  lial»ilities  diNtinct  from  those  possessed 
"  in  ri<rht  of  his  ori^rinal  birth  or  citixunsliip.  But  he  still  remains 
"  the  subject  or  citizen  of  tiie  State  to  which  he  orij^inuily 
"  lH;lon<;»'d,  and  wo  see  no  reason  to  suppose  tliat  it  was  tlio 
"  intention  of  eitlier  (^overnuKuit  to  |)ut  the  limited  meaiiin;;  on 

10  "the  words  '  British  subject '  contemled  for  in  the  arguments  in 
"  support  of  tlie  demurrer,  so  us  to  excluile  from  our  jurisdiction 
"  a  British  subject  who  has  never  reriounced  his  oiiirinal  allegi- 
"  ancp,  or  lieconie  naturalized  in  any  other  country." 

They,  therefore,  decide  as  a  piincii)lo()f  construction  that  the 
treaty  contemplated  tlioso  who  were  British  subjects  in  any 
sense,  so  long  as  thev'  were  resident  in  tlie  United  States,  and 
while  the  ('oniuiissioncrs  aduutted  it  could  bo  established  tliat 
the  man  who  is  a  British  subject  in  one  sense  may  be  a  com- 
mercial sul  ject  of  the  Uniteil  Stiiti's  also,  tiiey  said  that  that  was 

20  not  the  question  to  be  decided  in  the  premises. 

Now  j'our  Honors  will  sen  that  the  case  you  have  hero  to  ile- 
cide  involves  an  altogether  different  proposition.  The  propi-rty 
taken  here  was  scize<l  upon  the  liigh  seas  by  the  United  States 
asserting  her  right  to  do  so  as  a  nution.  The  right  was  con- 
tested, and  the  contest  has  been  decided  against  the  United 
States.  The  oidy  question  now  is,  was  that  property  British 
property  or  the  property  of  the  Unite  1  States.  If  1  am  right  in 
assuming  as  I  do  that  the  authorities  abundantly  show  that  this 
question  as  between  nations,  is  to  be  decided,  not  upon  considera- 

30  tion  of  the  political  status  of  the  owner,  but  with  reference 
to  the  home  of  the  property,  then  under  these  circumstances 
the  whole  (piestion  will  be  determined  by  the  consideration 
of  the  question  of  the  domicile  of  the  persons  mentioned  here 
and  the  ascertainment  of  the  place  in  which  the  property  was 
acquired. 

In  the  argument  of  the  United  States  there  is  an  attempt  to 
apply  this  proposition  of  law  to  the  C^ooper  case.  In  so  doing 
my  friends  lose  sight  of  a  distinction  which  exists,  viz.,  that  this 
principle    of    law  is    applied    with   reference   to    the  person  so 

40  domiciled,  only  in  respect  to  property  which  he  acquires  in  the 
country  of  his  domicile  and  in  connection  with  the  trade  he 
carries  on.  In  Kent  s  commentaries,  13th  edition.  Vol.  1,  star 
page  80,  the  learned  author  says : — 

"  National  character  may  be  ac<iuired  in  consideration  of  the 
"  traffic  in  which  the  party  i.s  concerned.  If  a  person  connects 
"  himself  with  a  liouse  of  trade  in  the  Enemy's  country,  in  time 
"  of  war,  or  continues  during  a  war  a  coiuiection  formed  in  a 
"  time  of  peace,  he  cannot  protest  himself  by  having  his  donucile 
"  in  a  neutral  country.     He  is  considered  as    impressed  with  a 

50  "  hostile  character  in  reference  to  so  much  of  his  commerce  as 
"  may  be  connected  with  that  establishment." 

I  call  your  Honors'  attention  to  these  latter  words.  It  is, 
"  so  much  of  his  commerce  as  may  be  connected  with  that 
establishment."  In  thejudgmentof  the  case  of  the  "Ann  Green," 
1  Gallison,  to  which  [  have  already  referred,  Judge  Story  says : — 
"  I  admit  that  his  connection  in  a  house  of  trade  in  New 
"  York  would  not  alone  protect  him,  for  he  may  at  the  same  time 
"  possess  the  commercial  character   of   several   nations." 

With  regard  to  Cooper  it  is  clear  that  there  was  nothing  to  pre- 

00  vent  him  from  purchasing  a  British  ship  and  registering  it  in 
British  Columbia.  These  ships  were  purchased  in  Victoria,  out- 
fitted from  Victoria,  and  that  was  their  port  of  return.  Apart 
from  the  fact  that  Cooper  had  no  interest  in  the  ves.sels  and 
cargo,  in  order  to  apply  the  doctriae  to  bis  case  my  learned 


101 


(Mr.  B<j<1wc'I1'h  Arj^uinvnt.) 

friemis  woiilil  1)6  required  to  hIiow  that  Cooper  was  Piirryln;;  on 
a  traiiu  in  San  Francisco,  ami  tliat  in  connuctiun  witli  tliiit  trade 
]()  lit!  ac.|iiire(l  tiiese  veMneis  there  ami  oporated  them  from  that 
port.  TliiM  i»  not  pretended,  an<i  therefore  the  doctrine  of  tlio 
CDnimercial  nationality  doe.s  not  apply  to  the  cane  of  Cooper. 

At  one  o'clock  the  ComniiHsionerH  took  recess. 


;{() 


At  hnlf-past  two  o'clock  the  Commissioners  resumed  theirseats 

Mr.  Bodwell : — In  tin?  course  of  nij*  ar^rumi'iit  this  mornin)^ 
His  Honor  the  Commissioner  on  the  part  of  the  United  Status 
(lirueted  my  attrition  to  Article  Three  of  the  Convention  with 
reference  to  the  point  I  was  then  makini;  as  to  the  nutiunulity 
20  of  the  claims.  Tiie  hearing  of  this  article  upon  my  ar^'ument 
had  not  occurred  to  me  up  to  that  time,  hut  dnrin},'  the  ri'ce.ss  I 
have  examined  it,  and  I  think  it  relates  strictly  to  thu  ipies- 
tion  of  procedure,  and  does  not  touch  the  jurisdiction  of  the 
C.'ommis-'ion.  It  is  the  liahility  of  the  Uniteil  States  that  is 
to  he  determined  "  in  respect  of  each  claim,  and  your  Honors  are 
to  "assess  the  amount  oi'  compensation,  if  any,  to  he  paid  on 
account  thereof."  It  then  provi<les  that  tiu-y,  the  Com- 
missioners, ".shall  he  authorized  to  hear  and  examine,  on  oath  or 
atKrmation,  every  (piestion  of  fact  not  found  hy  the  trihunal  of 
Arliitration,  and  to  receive  all  suitable  authentic  testimony- con- 
cerninj^  the  same;  and  the  Ciovernment  of  the  United  States 
shall  have  the  rijfht  to  raise  the  quustion  of  its  liahility  before 
the  C^omnussioners  in  any  case  where  it  shall  he  proved  that  the 
vessel  was  wholly  or  in  part  the  actual  property  of  a  citizen  of 
the  Uniteti  States." 

The  framer*  of  tliis  Convention  had  to  take  into  consider- 
ation the  possibility  that  the  Commissioners  wouldnot  a^ree,  and 
therefore  as  a  matter  of  procedure,  it  was  thouj^ht  best  that  the 
award  should  not  he  made  in  a  lump  sum,  but  that  the  dama<;cs 
should  be  assessed  with  reference  to  each  particular  claim. 
Further,  inasmuch  as  you  are  authorized  to  receive 
evidence  for  the  purpose  of  coming  to  a  decision  as 
to  the  lialiility  of  the  United  States  upon  the  ques- 
tion here  referred  to,  it  was  no  doubt  thought  con- 
venient that  your  findings  of  fact  upon  the.se  points  should  he 
separated  in  order  that  if  you  .should  be  unfortunate  enough  to 
flisagree,  the  umpire  who  is  to  decide  between  you,  could 
in  a  convenient  manner  indicate  the  result  of  his  deliberations. 
But  it  does  not  appear  to  me  that  the  Article  touches  the 
jurisdiction  of  the  Connuission  to  determine  upon  what 
principle  they  shall  consider  the  evidence  brought  forward. 
That  is  provided  for  by  Article  I.  There  it  is  said : — 
"  The  high  contracting  parties  agree  that  all  claira.s  on 
account  of  injuries  sustained  by  persons  in  whose  belialf  Great 
Britain  is  entitled  to  claim  compen.sation  from  the  United  States, 
etc."  These  are  the  r>o-ties  to  the  controversy.  It  is  Great 
Britain  that  claims  compen.sation  and  it  is  the  United  States 
that  is  asked  to  pay  it,  and  therefore  I  submit  that  there 
hat  been  no  departure  frotn  the  position  I  contend  for,  that  Great 
tiO  Britain  is  putting  forward  the  claim  upon  every  ground  upon 
which  she  i.s,  as  a  nation,  entitled  to  stand. 

I  also  wish  before  proceeding  with  my  argument  to  read  a 
few  words  from  the  case  of  the  "  Pizarro,"  2  Wheaton,  page  91 : — 

"  As  to  the  .second  objection,  it  assumes,  as  its  basis,  that  the 


40 


50 


u  >■■ 


1'  ^*** 


n 


'■  :  i* 


,  'S   <K    •! 


i'     ! 


!1 

ii 

i'f' 

1 

1 

1 

102 

(Mr.  BcHlwt'H'H  Arginnont.) 

"term  ' »ul)iectH,'  as  used  in  tlie  treaty,  applies  only  to  prrHons 
"  who,  by  liirtli  or  nntiirnlixHtion,  owe  n  perniiini'nt  ullcgianon  to 
"  theSpuniMli  Ooverninent.  It  is,  in  (jur  opinion,  very  clear  timt 
"  Bucli  IS  not  till'  true  interpretation  of  tlie  Iiuij^ua^je.  Tlio  pro- 
"  visiohH  of  tlu>  treaty  'ire  manifestly  (le.si>»netl  to  n'wv  reciprocal 
"an<l  co-extensive  privile;,'es  to  I'otli  countries  ;  and  to  ellectuuto 

10  "  tills  olijict,  tlie  term  '  subjects,' when  a])plieil  to  persons  owinj; 
"alle^'ianee  to  Spain,  nuist  lie  construeil  in  the  same  sense  as  the 
"term  'citizens,'  or  '  inhaMtants,'  when  applied  to  persons  owinjj 
"  alle;;ianee  totlie  United  States.  What  ilenionstnites  theeiitiii) 
"  propriety  of  this  conxtruction  is,  that  in  the  iSth  Article  of  the 
"  treaty,  the  tei'ms  '  suhjeets,'  '  people,'  and  '  inliahitants,'  are  in- 
"  discrniuTintely  used  as  .synonymous,  to  desiM;nate  the  same  per- 
"si.ns  in  hotli  countries,  and  in  cases  ohvioiisly  within  the  scope 
"of  the  jirecediii;,'  Articles.  Indei'd,  in  the  !anj,'ua;{e  of  the  law 
"  of  nations,  svhich  is  always  to  he    consulted  in  the  inter|>reta- 

20  "tionof  treaties, a  jierson  domiciled  in  a  country,  and  enjoyinf^ 
"  the  protection  of  its  s(»ven'ij,'n,  is  deemed  a  suhject  of  that 
"country.  He  owes  allej,'iancu  to  the  country,  while  he  resides 
"  in  it ;  temporary,  indeed,  if  he  has  not,  hy  hirth  or  naturali/.a- 
"  tion,  contracted  a  p<-rmanent  alle<;ianee  ;  hut  so  tixed  that,  aa 
"to  all  other  nations,  he  follows  '  the  character  of  that  country,' 
"in  war  an  well  an  in  peace.  The  udschiefs  of  a  difl'erent  con- 
"struction  would  ho  very  ^'reat;  for  it  mi^ht  then  he  contended 
"  that  ships  owned  t'y  Spanish  suhjects  could  be  protected  hy  the 
"  treaty,   although  tlu-y   were  domiciled    in  a  foreign  country, 

30  "with  which  we  were  at  war,  and  yet  the  law  of  luitions  would, 
"in  Hucli  a  predicament   pronounce  them  enemies." 

If  the  authorities  I  have  cited  cstahlisli  the  proposition 
that  hy  reason  of  domicile  tlie  citizen  acciuires  cer- 
tain privileges  it  niu.st  follow,  I  contend  that,  with 
respect  to  those  privileges,  and  to  the  extent  that  ho 
becomes  a  citizen  oi  the  foreign  state,  lie  is  entitled  to  the 
protection  of  that  state ;  and  it  cannot  make  any  diti'erenco 
whether  that  protection  is  claimed  against  an  outside  nation  or 
against  tlie  nation  of  origin.     For,   if  the   authorities  go   as  j 

40  submit  they  do,  to  the  extent  I  have  contended,  then  with 
respect  to  the  privileges  and  the  property  he  ac- 
quires, the  (lon)iciled  citizen  is  in  exactly  the  same 
position  as  if  he  were  native  born  ;  it  is  simply  a 
question  of  fact  in  every  case  whether  the  protection  is  claimed 
in  respect  of  those  privileges,  or  in  respect  of  his  political  status 
outside  of  the  rights  which  he  acquires  by  domicile. 

Even  if  we  were  to  admit,  which  of  course  we  do  not,  that 
the  United  States  have  power  to  enact  laws  which  will 
affect    ptrsons    residing     in    British    territory,    does    it    follow 

50  that  that  r.'  tion  may  invade  British  territory  to  execute 
Hucli  laws  ?  I  HUt)init  upon  the  authorities  I  have  (|Uoted 
that  tl  :j  jiosition  cannot  oe  maintained,  and  therefore  if  the 
United  States  cainiot  enter  British  territory  to  execute  their 
laws  ujjon  property  there  owned  by  residents  of  that  country, 
c«in  they  follow  property  which  has  in  this  manner  become 
nationalized  by  the  domicile  of  the  owner,  ui)on  the  high  seas 
wliile  it  carries  the  flag  of  (Jreat  Britain,  and  is  thereby  deemed 
to  be  as  mucli  a  part  of  her  territory  as  if  surrounded  by  the 
fortifications  of  Halifax. 

60  Let  me  illustrate  tlie  position  I  wish  to  take.  There  is  a 
strip  of  territory  alwut  800  miles  from  Victoria  which  has  lately 
acquired  considenible  notoriety  because  it  is  one  of  the  entrances 
to  tlie  Klondyke  gold  fields.  The  Canadian  goveniment  asserts 
that  it  is  British  territory,  but  the  United  States  are  in  posses- 


lun 


(Mr.  RcMlwell's  Argiiiiii'iit.) 


sinll.      Whilt 
if    it 


as 


\n  tlm  result  f  In  t-vory  rcspiut  it  Im  tifiitfil 
wtTd  Tnitcd  StivteM  triritiiiy.  If  I'litish  ^jimhIn 
i)asH  tlii'Diijili  it  l)<)n(liiij;  nrivilt'j^t's  arc  iipplit'il  for  miil  nlitaiiiiMl 
|iiht  iiH  if  tlio  iii('iTliah<iiH«f  wiiH  lifiii^  tniiiHpDrU^ii  tlir<iii;,'li  tli<- 
Statt)  of  Now  York.  In  tjvory  ri'Mpci-t  it  in  trcatfil  uh  Aiiicri- 
(iiii  ti'iritory,  hfcuum',  iiltlu>uj;n  it  i»  ii  (lisputi.d  titio,  tin:  I'uili d 

10  StatcH  ari!  ni  poHMcHMion. 

So  in  tliiH  cHHt*,  when  thtt  hliipH  in  ((noHtion  left  th«)  llritiMh 
iiorts  with  tliu  iliig  of  (iiviit  iiritiiiu  iibovo  thoiu  (<r<.<at 
Britain  wiw  in  poHHeMnion.  If  it  woiihl  Ix)  Hn  act  of  war 
I'or  the  CiiniKliiin  iviithoritii-s,  hn  I  hiivu  no  doubt  it  would, 
to  enter  the  diHputed  territory  to  which  I  'oferred  u  nio- 
tncnt  a^ro,  and  attempt  to  diHturh  tl>e  occupation  of  tiie 
I'nited  StateH,  would  not  tlie  Mnnie  etliuct  f(.!!'j'n,  niUHt  it 
not  follow,  when  the  United  Statet*  Keize  these  hIiIuh,  which  by 
the  fact  of  tuviling  under  the  British  Ha);   were  in  the  poH8e.sMioii 

20  of  Great  Britain  f  How  niucli  stronjjor  docH  the  case  become 
when  it  w  hIiowm  upon  the  evidence  which  hax  been  received  here, 
and  upon  the  law  that  applien  to  it,  tiiat  that  poH8eH8ion  waH  prop- 
erly ontained.  Kor  if  an  mterest  had  been  ac(iuired  in  thcHo  HhipH 
by  citizens  of  the  United  States  the  forfeiture  accrued  to  toe 
British  Crown  and  Great  Britain  would  ntill  be  in  poMteHHion, 
and  that  witli  a  perfect  title.  Therefore  I  Hubmit  that  the  United 
are  forced  to  contend  that  they  have  a  right  to  enter  upon  British 
territory  to  execute  their  lawH,  before  they  can  maintain  their 
position  and  justify  the  seizing  of  these  Hnips.     1   submit  thut 

30  MMt  position  has  not  been  maintained.  It  is  a  pro^iosition  wliicli 
they  were  bound  to  establish,  and  they  have  not  as  yet  sup* 
ported  it  by  any  citation  from  authority. 

I  say  with  all  respect  that  their  attempt  to  accomplish  the 
end  they  seek  has  been  founded  on  a  misapplication  of  & 
different  line  of  authorities,  a  line  of  authorities  which  refer 
to  the  right  of  the  state  of  domicile  to  call  upon  the  domiciled 
citizen  for  the  performance  of  duties  which  lie  is  bound  to  render 
to  such  State  by  reason  of  his  residence.  Tl  at  was  the  extent  of 
the  discussion  in  the  "  Barclay  "  cjise. 

40  In  the  same  way  the  United  States  have  cited  a  quotation 
from  Bar's  International  L»vw,  and  on  page  !)  of  our  reply  wo 
have  referred  to  it.  In  the  United  States  argument,  page  U;J, 
they  say : — In  Bar's'  Private  Intei-natioiial  L»vw  the  undoubted 
rule  in  this  case  is  laid  down:  'The  State  of  domicile  may  ex- 
tend protection  to  a  domiciled  foreigner  lus  against  other 
countries,  except  the  country  of  original  allegiance.'  " 

I  do  not  understand  that  the  argument  here  purports  to 
quote  the  language  of  the  writer,  because  no  such  statement 
is  found  in  the  text,  but   I   presume  it  is   intended    to   be  an 

.W  interpretation  or  construction  of  the  linguage  there  used.  But 
the  author  was  not  then  considering  the  question  that  is  l)eing 
hero  di.scusaed      He  says  on  page  135 : — 

"  Un  the  other  hand,  it  is  no  sign  of  nationality  to  be  subject 
"to  the  system  of  private  law  in  any  particular  State,  and  in  the 
"  same  way  it  is  possible  for  a  State  to  go  so  far  as  to  extend 
"  (liploinatic  protection  to  persons  who  are  not  in  truth  its  per- 
"  manent  subjects.  Conversely,  it  may  refuse  that  protection  to 
"  certain  persons,  although  they  do  belong  to  it,  for  tho 
"  reason  e.  g.  that  they  have  shown  themselves  unworthy  of  this 

60  "protection,  or  by  some  breach  of  the  law  have  forfeited  their 
"  claims  to  such  protection  There  is  then  hardly  anything  left 
"  except  the  indefeasible  right  of  residence  in  the  State,  the  right 
"  to  live  there. " 

Then  in  a  note : — 


'N   il 


\ 


'»! 


Ill 


i  "     I    I 


1i     I 


t 


|»1 


194 


(Mr.  Bodwell's  Argument.) 

'"ThcUnitnil  States  oxteml  <lijiloiimtic  pnitectioii  to  persons 
"who  linve  not  as  yei,  Itoeoiiio  citizens,  if  the}'  nro  doniieiloil  in 
"  the  United  States,  nnd  Imvc  iniide  n  deelartition  f)f  their  inten- 
"  tion  of  hoconiiiiL;  citizens,  excpt  in  questions  with  the  country 
"  ''rom  wliicli  tliej"  canii',  if  hy  its  laws  tlio  existinj^  hond  of 
"  alle:;'iance  is  not  diss,  Ived,  nnd  if  the  pers'>n,s  in  question  have 

10  "  vohmtnrily  hetalcen  tlieniselves  to  her  territory.  See,  on  that 
"suhject,  Wharton,  Jour.  XI IF.,  p,  .5,S7  et  sec.  Hen  Wool.sey,  ]nt. 
"  L,';W,  81,  on  the  case  of  Kosta,  wiiicli  pai'tly  belongs  to  tliis 
"  subject." 

Both  tlu'se  conditions  must  arise  licfore  pvoteetion  is  extended, 
an<l  tlie  only  limitation  to  that  doctrine,  to  tliat  riijlit  of  tem- 
porary allegiance,  is  that  the  li'ciil  Mneri'i;;'nty  lias  not  the  right 
to  compel  the  teuiporarj'  subject  to  take  up  arms  against  his  own 
country.  That  is  not  an  authority  I  submit  in  favor  of  the 
position  which  the   United  States  must  assume  upon  this  argu- 

20  mcnt. 

Now,  it  must  follow  as  a  natural  logical  sequence,  that  if  the 
country  domicile  extends  to  the  <ioniiciled  citizen  privileges  he 
is  entitled  to  call  upon  her  for  protection  whenever  those  privi- 
leges are  endangered.  There  are  authorities  vdiich  seem  to  go  to 
considerable  length  in  that  direction.  One  of  them  is  referred 
to  in  our  brief,  the  case  of  Worth  against  the  United  States,  and 
LonI  agan.st  the  United  States,  decideil  in  the  court  appointed 
to  distribute  the  money  under  the  Geneva  award.  It  is  said 
in  the  argument  for  the  United  States  that  these  statements  can- 

30  not  be  cited  as  authorit}'  upon  international  law,  because  the 
decision  was  that  of  a  domestic  tribunal,  and  further  that  all  the 
remarks  to  which  we  have  referred  were  obiter.  We  Hay  in  our 
reply  that  the  decisions  of  domestic  tribunals,  when  they 
pronounce  upon  questions  of  international  law,  may  be  read 
against  the  country  in  which  they  purport  to  be  made. 

Mr.  Dickinson  : — You  have  not  stated  my  position  exactly. 
We  contend  that  it  is  not  even  municipal  authority.  It  was  only 
a  Conimission  appointed  to  distribute  certain  money,  and  would 
have  no  more   binding  effect  than   the  decisions  of  an  Indian 

40  Commission. 

Mr.  Bodwell : — The  moat  that  can  be  said  then  is  that  it  would 
not  have  any  binding  or  conclusive  effect  upon  this  court.  I  do 
not  suppose  that  the  learned  counsel  means  to  say  that  if  you 
find  in  any  court  or  in  any  place  a  person  occupying  a  judicial 
position  expressing  an  opinion  upon  international  law  that  is 
sound,  your  Honors  would  refuse  to  listen  to  it  and  give  it  the 
force  that  it  deserves.  I  am  willing  to  allow  my  friend  to  say 
that  this  High  Connnission  is  not  bound  by  the  decisions  of  the 
Judge  distributing  the  money  received  from  the  Geneva  Award, 

SO  but  I  do  saj'  that  the  decision  commends  itself  to  our  judgment, 
that  the  argument  which  supports  it  is  sound  and  ought  to 
prevail. 

Here  is  what  he  says  upon  the  subject  of  protection  which 
the  Hag  throws  over  persons  carried  upon  an  American  ship.  He 
first  took  up  the  case  of  Worth  against  the  United  States. 
Judge  llayner  delivered  the  opinion.  The  quotation  I  am  read- 
ing is  found  in  the  opinion  in  Senate  Documents,  Nos.  21 
to  4G,  and  No.  1  Special  Session,  March  1887,  2nd  Session  44th 
Congress,  page  37  : — 

60  "  It  is  a  well  recognized  principle  of  international  law — to 
"  the  violation  of  which  no  nation  has  been  more  sensitive  than 
"  our  own — that  the  deck  of  a  vessel,  so  far  as  national  rights 
"  and  duties  are  involved  is  regarded  in  the  same  light  as  a  part 
"of  the  terra  firma  of  that  nationality  whose  flag  floats  above 


195 

(Mr.  Bodwell'H  Argmnoiit.) 

"  till!  ilock.  ConsoqiKiiitly,  tlio  duty  of  prott'ctioii  iinires  to 
"  Iho  full  extfiit  to  tliosc  ti'i'siiliiig  tin-  decks  of  AiiKM-icun  vessels 
'iiiitlm  liii(li  sens  (IS  totliosc  i-esi'leiit  oil  imj'juirtioii  of  Ainericuii 
"  sijil,  Ntfver  was  this  priiieii^lii  more  clearly  (^\eir.i)!ilii-,!  '■'.aii 
"  ill  tlie  cnso  of  Miison  and  Slideii.  Great  F5ritain  took  tlio 
"^n'Diind  that  these  men  wei'e,  when  on  the  deck  of  a  Mritish 
h)  '  steamer,  entith-d  to  her  protection.  Our  own  ;^overnment — im- 
"  |iortant  a'*  were  the  results  involve  1— was  comp  ^lled  to  admit 
"  the  justice  of  the  British  deniuid.  (Jr'at  Mritain  not  only 
'■  viniiieated  her  own  nntioii.d  di^qiity  hy  reijuiring  an  npf)loi^y 
"  fn)m  the  United  Stati-s  (}  )Vi'rninent,  Imt  she  practically 
"  liL'stowed  that  pr  tection  which  siie  owed  to  Mason  and  Slid(^ll 
"  h\'  requiring  that  they  should  ho  placeii  in  statu  quo  hy  our 
"Government,  which  was  done. 

Cn  pHj^e  iH  the  Judgi?  continues  : 

"  It  wns  mainly  in  defence  of  this  principle  that  our  Govern- 
20  "  ment,  sustained  hy  puhlic  opinion  went  to  war  with  Great 
"  JJritaiii  in  1M12.  She  took  the  j^round  that  tin?  deck.'i  of  our 
"  ships  must  he  .saereil  as  against  any  claim  of  scarcli,  or  visitation 
"even,  on  the  part  of  any  earthly  power,  if  exeroised  against 
"  our  consent.  Iiutead  of  chalfering  ahout  the  cjuestion  ot  per- 
"  petual  allegiance  and  the  right  of  the  British  Government  to 
"  the  service  of  her  .suhjects  wheresoever  found,  wo  took  tlie  high 
"ami  practical  ground  that  those  who  were  on  the  lieck.s  of 
"American  vessels  and  under  our  flag  were  entitled  to  our  pro- 
"  tection,  and  nhould  have  it. 
;)0         Later  on  the  same  page  ho  .says  .• 

"  The  act  speaks  of  those  entitled  to  the  protection  of  the 
"  United  State8  '  in  the  premises.  '  Tiiose  words,  "  in  the  premi- 
"ses, "  ileflne  and  limit  the  application  of  the  law  within  a 
■' narrow  circle.  It  is  not  everj'hody  entitled  to  the  protection 
"  of  the  Government  that  can  come  before  this  court ;  it  is  not 
"  6^very  one  entitled  to  tl^at  protection  who  was  a  loser 
"  by  depredations  on  the  part  of  the  so-called  Confederate 
"  Government,  by  land  as  well  as  hy  .sea ;  it  was  not 
"  every  one  that  lost  by  Confederate  cruisers  generally  that  can 
40  "  come  here.  But  it  t«  every  person  entitled  to  the  protection 
"  of  the  United  States  in  the  premises,  viz. :  every  such  one  who 
"  sustained  loss  or  injury,  directly  resulting  from  damages  caused 
"  by  the  so-called  insurgent  cruisers  "  Alabama,  "  "  Florida,"  etc., 
"and  the  "Shenandoah,'  after,  etc.,  that  can  come  before  this 
'court,  and  without  reference  to  whether  .such  person  is  native- 
"  borii  or  i  reign-born,  whether  naturalized  or  unnaturalized. 

'•  Wo  si-  L'ld  consider  it  a  waste  of  time,  as  well  as  an  ex- 
"hibit.ion  of  judicial  pedantry,  to  cite  any  long  array  of  authori- 
"ties  t)  prove  that  foreigners  are  entitled  to  p:-otection  in  that 
50  "  country  in  which  they  are  domiciled,  or  even  temporarily  so- 
"journing.  This  right  to  protection  is  recognized  throughout  all 
"  civiliM  1  C!>untries,  not  only  by  the  great  authorities  on  inter- 
"  national  law,  but  by  the  municipal  regulations  and  judicial 
"decisions  of  diflerent  countries.  Vattel,  than,  whom  Christ- 
"  endom  recognizes  no  higher  authority,  in  summarily  disposing 
"  of  the  question  as  one  of  abstract  international  obligation, 
"  says  :  "  As  soon  as  the  sovereign  admits  a  foreigner  into  his 
"  State,  he  engages  to  protect  him  as  his  own  subject,  and  to 
"attbrd  him  perfect  security,  so  far  as  depends  on  him  ;  accord- 
(iO  "  ingly,  wo  see  that  every  sovereign  who  has  given  an  asylum  to 
"  a  foreigner  considers  himself  no  less  offended  by  an  injury  done 
"  to  the  latter  than  ho  would  be  by  an  act  of  violence  connnitted 
"  on  his  own  sulject. "     (Vattel,  book  2  chap.  8,  see.  104). 

"  This  principle  of  international  luw  is   recognized  as  a  part 


1  : 1 


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ir,  -'i: 


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,  1      ;  !). 


im:  rl't']^ 


196 

(Mr.  BoJweH's  Argument.) 

"of  tlic  municipal  law  of  Englanil  and  of  the  United  States. 
"  The  Knirlish  courts  hare  tlecideii  aijaih  and  again,  tiiat  not  only 
"  is  a  foreigner  resident  in  P]ngland  entitled  to  the  protection  of 
"  her  laws  to  his  person  and  property,  but  even  in  the  case  of  an 
"alien  enemy,  if  he  quietly  and  peaceably  ohey»  her  laws  and 
"performs  tlie  duties  required  of  him,  he  is  not  only  entitled  to 

10  "  the  protection  of  her  laws  in  nuing  for  his  rights  in  her  courts, 
"  hue  he  is  entitled  to  protection  to  his  person,  even  ua  against 
"the land  of  hia  nativity. 

My  learned  friend  contends  that  this  authority  does  not  say 
that  his  property  is  entitled  to  the  protection,  but  I  say  that  it 
follows  as  a  matter  of  course,  that  property  which  has  become 
nationalized  by  Ids  residence  and  which  accrues  to  liim  while  he  is 
entitled  to  call  upon  Great  Britain  for  tprotcction  to  his  person, 
must  also  receive  protection  whenever  i  is  assailed  or  an  attempt 
made  to  destroy  it.     The  judgment  then  proceeds  : — 

20  "  True,  this  protection  inures  only  so  long  as  he  is  within 
"  the  pale  of  her  jurisdiction.  If  he  voluntarily  returns  to  the 
"  country  whose  claim  to  his  allegiance  has  never  been  divested 
"  by  naturaliisation  elsewhere,  his  title  to  protection  is  at  an 
"  end  ;  but,  as  long  as  he  remains  on  the  soil  or  the  deck  of  a 
"ship  of  the  British  government,  he  may  rightfully  ci  dui  Dr'tish 
•'  protection." 

Further  down  on  the  same  page  citing  in  ^\v  ...tice 
Kent  and  commenting  on  it,  he  says : 

"  The  same  learned  Judge,  in  a  judicial  opinion,  acclared  that 

30  "  by  the  law  of  nations  (which  is  a  part  of  the  common  law)  an 
'  alien  who  comes  to  reside  in  a  foreign  country  is  entitled,  so 
'  lo.ig  as  he  conducts  himself  peaceably,  to  continue   to  reside 

'  there,  under  the  public  protection And  it  has 

now  become  the  sense  and  practice  of  nations,  and  may  be 
'  regarded  as  the  public  law  of  Europe,  that  the  subjects  of  the 
'  enemy,  so  long  as  they  are  permitted  to  remain  in  the  country, 
'  are  to  be  protected  in  their  pei-sons  and  property,  and  to  be 
'  allowed  to  sue,  as  well  as  be  sued." 

"  If  this  right  of  the  foreigner  inures  to  him  in  time  of  war 

40  "  between  his  native  and  his  aidopted  country,  how  much  more 
'  consistently  may  it  not  seem  to  belong  to  him  in  time  of  peace  ? 
'  If  he  may  rightfully  claim  this  protection  when  merely  residing 
'  or  sojourning  here,  in  the  pursuit  of  his  gainful  callings,  with 
'  how  much  greater  confidence  may  he  appeal  to  it  when  he  has 
'  braved  tlie  perils  of  the  deep  and  embarked  his  hopes  and  hi,, 
'  fortunes  under  that  flag  which  is  the  ensign  of  the  nati<i: 's 
'power  and  glory  ?  Of  all  the  nations  of  Christendon:  not  oi  e 
'  has  done  so  much  to  vindicate  the  freedom  of  the  seas  t.^;aiiiBt 
'  that  proud  and  mighty  nation  that  claims  to  be  their  "  mistvehs  " 

50  "  as  the  United  States  of  America.  No  other  nation  has  done  so 
"  much  in  imparting  to  its  flag  that  moral  power  which  speaks 
"  to  the  nations  in  the  still,  small  voice  of  warning,  that  it  is  the 
"  emblem  of  a  nation's  might,  and  that  if  he  who  trusts  to  its 
"  protection  be  Imrined  under  it  his  wrongs  shall  not  go  unre- 
"  dressed." 

Can  it  be  said  that  this  is  not  sound  law  ?  It  is  not  only 
eloquence  but  it  is  also  precision.  And  can  it  be  argued  in  the 
face  of  such  a  proposition,  that  when  property  is  attacked  w  'o 
it  is  under  the  protection  of  the  British  flag  that  the  owner  c- 

60  not  ask  Britain  to  protect  it  ? 

At  page  40,  speaking  of  the  Geneva  Award,  he  goes  on  to 

"  As  the  result  of  an  arbitration,  involving  the  greatest 
"  triumph  that  peace  ever  obt.x   .-  d  over  */!.••,  the  British  govern- 


197 

(Mr.  Bodwell's  Argument.) 

"  ment  paid  over  the  money  which  it  is  made  the  duty  of  this 
•'  court  to  distribute,  on  certain  conditions  and  limitations,  among 
"  tliose  who  suffered  wrong  from  the  default  of  the  British 
'•  (joverinnent  to  comply  with  lier  obligations  as  a  neutral.  Ac- 
"  cording  to  the  provisions  of  the  law  under  which  this  court 
"  exi.sts  we  have  no  right  to  discriminate  among  those  who  were 

\Q  '•  entitled  to  our  protection  in  the  premises.  The  public  law  of 
"  Christendom,  and  the  municipal  law  of  the  land,  declare  that 
"  foreigners,  whether  domiciled  or  temporarily  sojourning  on  our 
"  soil,  or  whether  on  the  decks  of  our  ships,  trusting  to  the 
"  security  of  our  flag  upon  the  high  seas,  are  equally  entitled  to 
"  our  protection  againt  wrong  from  any  foreign  power,  and 
"  (Miually  entitled  to  sue  for  their  rights  in  our  courts.  There- 
"  fore  on  the  ground  of  abstract  justice  and  propriety,  and  upon 
"  the  ground  of  legal  right,  we  decide  that  foreigners,  entitled 
"  to  the  protection  of  our  tiag  in  the  premises,  whether  natural- 

20  "  ized  or  not,  have  a  right  to  share  in  the  distribution  of  this 
"  fund." 

He  then  takes  up  the  case  of  the  British  subjects  and  while 
not  departing  from  the  position  he  has  previously  assumed,  he 
argues  that  by  reason  of  the  terms  of  the  Convention  alone,  and 
having  regard  to  the  circumstances  under  which  the  arbitration 
was  brought  about,  and  the  object  for  which  the  money  was 
paid,  the  United  States  cannot  distribute  it  among  British 
Hubjects  without  counnitting  a  breach  of  faith.  He  says  re- 
ferring to  British  subjects : 

30  "  Their  cases  present  considerations  different  from  those 
"  offered  in  Nos.  91,  92,  237,  and  246,  where  the  complainants 
"  were  subjcicts  of  Portugal  at  the  time  of  their  alleged  lo.sses. 
"  So  far  as  the  right  to  the  protection  of  our  laws  and  of  our  flag 
"  is  concerned,  the  complainants  Gordon  and  Munn  had  a  right 
"  to  such  protection,  as  against  other  nations  than  their  own. 
"  And  if  the  conflict  had  been  directly  between  Clreat  Britain 
"  and  the  United  States,  and  there  had  been  an  intent  on  the 
:'  part  of  Great  Britain  to  harm  or  in  any  way  to  wrong  them 
"  while  under  our  protection,  all  the  authorities  would  go  to  prove 

■j-()  "  that  our  governnu^nt  would  be  bound  to  defend  and  protect  them 
"  in  their  rights  even  against  their  own  government." 

I  say  what  difference  can  it  make  i  while  a  person  resides  in 
a  country  other  than  that  of  origin,  and  with  respect  to  the 
privileges  he  acquires  by  domicile,  he  is  in  exactly  the  same  posi- 
tion us  if  he  had  been  born  in  the  country  of  domicile.  The 
judgment  continues : — 

"  Our  complaint  against  Great  Britain  was  not  that  she  had 
"  directly  or  intentionally  wronged  our  government  or  its  citizens, 
"  but  that  wrong  had  been  done  through  her  neglect  to  observe 

50  "  her  neutral  obligation.s." 

Then  he  goes  on  to  speak  directly  of  the  treaty,  and  I  will 
read  it  as  it  is  important : — 

"  In  the  distribution  of  this  fund  the  measure  and  scope  of 
"  our  powers  must  be  .sought  for  in  the  Act  of  Congress  creating 
"  this  court.  While  the  proceedings  at  Geneva,  and  thenegotia- 
"  tions  which  led  to  the  Geneva  arbitration,  are  not  positively  of 
"  any  bin<ling  force  or  authority  for  our  guidance,  yet,  as  farts 
"  of  the  res  tjentn,  they  are  useful  in  enabling  us  to  judge  of  the 
"  motives  and  influences  which  operated  on  the  arbitrators  and 

(iO  "of  the  ends  and  objects  of  their  award.  In  ea.se8  of  doubt  they 
"  are  valuabl"  in  aiding  us  to  arrive  at  a  proper  construction  of 
"  the  Act  of  « Jongress  which  prescribes  our  duty. 

'  While  G.'eat  Britain  admitted  that  she  has  been  negligent 
"of  her  duty,  she  rever  did  admit  that  she  had   committed  a 


«1  >!i^ 


:ii   I 


198 

(Mr   Bodwell's  Arffument.) 

"  wroiinf  aiiainst  our  GoverniiuMit,  or  its  citizens  under  tlie  laws 
"of  Hiitioiis.  Tlio.s(>  ropresentinLj  Iter  interest,  as  iippears  from 
'■  till'  Rritisli  cDUiitiM-  case,  coateiuk'il  that  Iut  nej^loct  was  in  not 
"  '"'.^'''b'  t'nforeinjj;  lier  own  inuiiicipal  laws  for  securinj^  ncutral- 
"  ity.  To  tlio  diur;^!',  ainonj^  other  causes  of  complaint  on  the 
"  p;irt  of  those  represeiitinL;    the    United    Statics,    that   slie  had 

10  "  failed  tn  enforce  her  own  municipal  re^'ulations,  lier  reply  was 
"  tiiat  that  was  a  mutter  with  whicii  we  had  no  concern  ;  and 
"that  it  was  a  question  hetweon  her  and  her  own  people,  with 
"  which  we  had  nothing  to  do.  While  as  before  said,  these  pre- 
"  liminarj'  discussions  and  nci^otiatious  are  of  no  hindinji  auMior- 
"  it}'  upon  this  court,  yet  does  not  national  courtesy'-  and  ;^ood 
"faith  reijuireof  us  to  suppose  that  Con;;ress, in  creating  thisconrt, 
"  never  intended  we  should  distribute  this  fuml  other  than  for 
"  the  purposes  for  which  (ireat  Britain  supposed  she  was  paying 
"  it  ?     For  instance,  suppose  Congress  had  chosen  to  keep  half  of 

20  "  the  fnn<l  and  cover  it  into  the  Treasury  of  the  nation  ;  or  had 
"  directed  this  court  to  distribute  it  among  those  whose  comiuer- 
"  cial  interests  had  been  injured  bj'  the  terror  and  alarm  caused 
"  bj'  the  insurgent  cruisers  or  among  those  who  had  suffered  loss 
"  bj'  the  depredations  of  rebel  cruisers,  other  than  the 
"  '  Alabama,'  '  Florida'  and  'Shenandoah.'  In  such  cases,  would 
"  not  Great  Britain  have  had  cause  to  complain  that  she  had 
"  been  misled,  overreached,  deceived  ?  Would  our  Govern- 
"  inent  have  been  acting  in  good  faith  in  making  such  dispcsition 
"of  this  fund? 

30  "  If  Great  Britain  suppo.sed,  as  seems  to  have  been  the  case, 
"  that  in  paying  this  money  it  was  to  indemnify  those  who  had 
"  been  injured  by  her  failure  to  execute  her  own  municipal  laws, 
"  wouldshe  not  regard  any  action  on  ourown  part  in  indemnifying 
"  her  own  subjects  for  her  neglect  as  inconsistent  with  the  ob- 
"  joct«  and  purposes  for  which  she  agreed  to  the  arbitration  in 
"  the  first  place,  and  to  the  payment  of  the  money  in  the  second 
"  place  ? " 

That  is  the  decision.  Rightly  or  wrongly  that  is  the  position 
he  assumed,  and  it  is  the  ground  on  which  he   decided  not  to 

40  allow  this  claim.      He  proceeds  : — 

"  And  while  we  might  be  bound  to  indemnifj'  a  British  sub- 
"ject  entitled  to  our  protection,  who  had  suffered  a  direct  positive 
"  wrong  from  his  own  government,  are  we  bound  to  indemnify 
"  him  for  a  loss  consequent  upon  the  failure  of  his  government 
"  to  do  her  duty  as  to  the  conduct  of  her  own  subjects. " 

That  is  the  point.  The  distinction  is  clear  in  itself,  and  it  is 
made  most  clear  by  the  apt  language  which  is  here  used.  He 
continues : — 

"  Suppose  it  had  been  propo.sed  at  Geneva  to  hold  the  British 

50  "  Government  responsible  for  losses  sustained  by  her  own  sub- 
"  jects  because  of  failure  to  execute  her  own  laws,  would  she  not 
"have  promptly  replied:  "  That  is  my  own  affair;  I  am  fully 
"  competent  to  take  care  of  my  own  subjects"  Whilst  you  may 
"  hold  me  accountable  for  a  direct  injury  done  even  to  my  own 
"  subjects  while  under  your  protection,  you  have  no  right  to  hold 
"  me  accountable  for  a  wrong  done  to  myself  or  to  my  own  sub- 
"  jects  in  a  failure  to  execute  my  own  municipal  laws." 

That  was  the  reason  upon  which  the  case  of  Burns  was 
ruled  out.     This  authority  says  that  the  Burns'  case  which  was 

60  ruled  out  of  the  G«neva  Arbitration,  was  put  upon  that  ground, 
and  I  suppose  he  is  right.  I  am  not  in  a  position  to  refer  your 
Honors  to  the  evidence,  but  surely  that  judge's  statement  of  the 
fact  may  be  taken  as  correct ;  and  I  commend  that  decision  to 
your    Honors,   as   laying  down   sound   principles    which    will 


lU.tL 


199 


I'  ;l 


(Mr.  Bodwell's  Arguim'iit.) 


pi'dctically  settle  Cirout  BritHiii's  rijjlit  in  tliis  cu^e  to  protect  the 
i)i(i])('rty  of  tlie  chiiiinints  lierc. 

■Mr.  IJickinsoii : — It  .sliows  tlie  viilne  of  the  research  of  tlio 
Icariieil  iiuthoriiy  when  he  i-ujs  that  tlie  Geneva  Ai'bitrii- 
tiiiii  liold  Great  Britain  responsilile  for  faiiui'u  to 
execute     her     own     municipal     laws.     The     (lecision     of    the 

10  (ieiieva  Tribunal  was  (lirectl\'  to  the  point,  that 
iiotwithstaiidin;^  her  claim  to  have  e.Kccuted  her  municipal  laws 
liei'  liability  was  held  under  international  law.  She  claimed 
that  she  had  carried  out  her  nuniicipal  laws  but  that  her 
nnniica|)al  laws  were  not  etl'ective. 
Mr.  Peters  :— Oh,  no. 

I\Ir.  Dickinson: — That  is  the  decision  of  the  tribunal  T 
maintain  it  ami  I  will  sliow  it.  It.show.s  the  value  of  this  learned 
C'onnnissioner's  research. 

]\Ir.  Bodwoll : — I  do  not  speak  with  very  mucli  confidence  upon 

20  this  branch  of  the  case,  that  is  a  part  of  the  controversy  to  which 
1  have  not  yiven  as  careful  attention  as  I  have  to  others, 
but  I  liave  always  understood  that  the  claim  against  Great 
Britain  was  that  she  had  not  compelled  her  subjects  to  obey 
her  municipal  law,  which  would  liave  prevented  her  own  subjects 
in  her  own  territory  from  arming  to  attack  a  friendly  power. 
The  United  States  said,  you  did  not  enforce  your  own  laws 
against  your  own  subjects,  and  the  arbitrators  upon  that  ground 
decided  tliat  Great  Britain  was  liable.  What  tlie  Judge  says 
seems  perfectly  correct,  namely,  that  tlie  United  States  never 

30  claimed  that  Groat  Britain  should  indenniify  licr  own  subjects, 
because  within  her  own  tcrritoiy  she  liad  not  enforced  her  muni- 
cipal law  ;  but  the  United  States  did  claim  that  Great  Britain 
sliould  indemnify  citizens  of  the  United  States  who  were  resi- 
dent there  and  liad  been  injured  by  tliat  fact.  I  say  that  the 
reason  why  the  Britisli  claims  were  not  allowed  in  the  distribu- 
tion of  the  fund  after  it  was  paid  was  upon  that  ground,  and 
in  making  the  decision  wliich  he  did,  and  in  showing  as  he 
does  that  there  were  special  circumstances  connected  with  the 
case,  it  appears  to  me  that  tlie  learned  judge  is  perfectly  right. 

40  I  submit  that  the  invasion  of  the  territory  of  Great 
Britain  for  tlie  purpose  of  executing  the  municipal  law 
of  the  United  States  or  the  extra  territorial  law  of  the 
United  States  if  you  like,  would  be  a  most  fragrant  hostile 
act,  and  would  be  one  which  if  carried  out  would  entitle 
the  person  whose  property  was  so  injured  to  claim  redress,  and  to 
claim  it  in  the  only  way  the  claim  could  be  made,  namely, 
througli  the  government  under  whose  protection  the  person  so 
injured  lived,  as  against  the  government  which  had  done  this 
wrongful  act.     My  learned  friend,  Mr.  Peters  suggests  to  me  that 

50  if  Judge  Rayners  decision  were  wrong  it  would  be  so  much  the 
worse  for  my  friend  on  the  other  side,  because  it  would 
show  that  tlie  cases  of  "  Gordon, "  "  Lord  "  and  '  Alexander," 
would  be  in  the  same  position  as  the  cases  of  the  other 
claimants  who  were  citizens  by  origin  of  a  country  other  than 
Groat  Britain,  and  who  were  allowed  to  take  part  in  the  distri- 
bution of  this  fund. 

Now,  if  it  please  your  Honors,  I  shall  not  detain  you  any 
longer  upon  these  points  to  which  I  have  been  directing  your 
attention,  but  I  shall   proceed  with  that   part  of  my  argument 

00  which  relates  to  a  discussion  of  the  evidence. 


1  t^S 


!■!. 


'i.. 


i  i  -  ■ 


Hiwr 


200 

(Mr.  Bodwell's  Argument.) 

THE    BUSINESS    OF  SEALING    OONSIDBUINQ      OENKRALLY    ON    THE 

EVIDENCE. 

Tliere  are  certain  jjoaoral  matters  winch  liavo  formed  the 
subject  of  .separate  heads  in  the  Argument  of  tlie  United  States, 
tliey  also  to  ahnost  the  same  extent  form  the  subject  of  .separate 

10  chapters  in  the  argument  of  tJreat  Britain.  They  relate  en- 
tirely to  (|UfHtions  of  evidence,  and  in  fact  the  United  States 
headings  may  as  well  be  adopted  a»  »:,y  other  for  the  purpose  of 
this  disoi.ssioii.  They  take  up  in  one  chapter  what  they  call 
"  the  uncertain  character  of  .seal  hunting;"  in  another  chapter 
the  (|uesti()n  of  the  "sealing  groinids  in  Hehring  Sea;"  in 
anotlier  ciiapter  the  (juestion  of  "duration  of  the  .sealing  season;" 
in  another  chapter  "the  value  of  seal  skins"  generally: 
in  another  chapter  "  the  value  of  the  vessels  "  considered  gener- 
ally ;  and  in  another  chapter  they  take  up  that,  which  we  have 

20  said  in  our  argument,  relating  to  the  basis  for  computing  the 
value  of  the  estimated  catch.  That  is  a  very  convenient  arrange- 
ment, and  it  is  po.ssible  to  group  the  evidence  undei 
these  dirt'erent  hearlings  so  as  to  make  it  a  connected  .story, 
and  to  put  it  in  such  a  sliape  that  your  Honors  may  consider  it 
with  greater  facility  and  ease.  I  propose  to  follow  the  same 
division  in  the  remarks  which  I  have  to  pass  upon  the  evidence. 
In  regard  to  these  subjects  considered  generallj',  the  argument 
of  the  United  States  is  to  this  effect ;  that  seal  hunting  is  a 
business  uncertain  in  itself,  that  the  ground     where   seals  were 

30  1 1  be  found  were  difticult  of  access,  that  the  season  or  the 
Vieather  during  which  sealing  could  be  prosecuted  is  of  short 
duration,  and  that  in  view  of  all  these  contingencies  it  could 
not  be  predicated  if  any  person  going  on  a  voyage  that  he  would 
make  a  successful  catch.  In  Mr.  Peter's  argument,  he  has  made 
what  may  be  taken  as  a  conchisive  answer  to  the  whole  of  these 
contentions,  when  he  stated,  that  even  if  we  were  to  admit  to  a 
great  extent  all  tliat  is  said  upon  all  these  points  in  the  argu- 
ment of  the  I'^nited  States,  we  have  still  shown  that  notwith- 
standing the  uncertainty  of  the  business,   we  were   in  the  sea. 

40  we  founil  the  seals,  we  were  taking  them  in  large  luimbers  and  if 
we  had  not  been  ijiterfered  with  there  is  every  rea.son  to  expect 
that  we  would  have  returned  with  good  catches  and  would  have 
made  a  large  anuanit  of  mone}'.  More  than  that  I  may  add, 
that  sealing  was  carried  on  in  188(i  and  1887  and  has  been 
coiitiiuii'd  down  to  the  present  time,  as  a  regular  business, 
that  many  vessels  have  been  engaged  in  it,  that  large 
sums  of  money  have  been  investe(l,  and  that  the  business 
has  grown  to  such  proportions  that  now  the  two  nations 
represented  on  tliis  arbitration  are  considering   the   subject  of 

50  regulations  because  the  Uniteil  States  ass(!rt — with  what  degree 
of  accuracy  I  am  not  here  to  argue — that  if  the  business  is  not 
regulated  by  stringent  rules,  hunters  will  exterminate  the  fur- 
bearing  seals.  ITnder  these  circumstances  it  is  .scarcely  possible 
to  believe  tijat  the  character  of  the  seal  hunting  industry  can  be 
such  as  it  is  described  in  ihe  argument  of  counsel  for  the 
United  States. 

Again — and  it  is  a  point  with  which  I  will  have  to  deal  with 
more  fully  later — the  position  assumed  by  counsel  for  the 
United  States  is  inconsisttent  with  the  whole  of  their  contention 

CO  from  the  beginning  of  this  controversy.  If  it  is  a  fact  that  seal 
hunting  is  so  uncertain  :  if  it  is  a  fact  that  the  sealing  grounds 
are  unknown  and  that  the  season  i.*!  short ;  how  is  it  that 
the  United  States  went  to  Paris  and  asked  for  regulations  upon 
the  theory  that  that  large  industry  was  necessary  for  the  com- 


201 


(Mr.  Bodwell's  Argument.) 


fort  of  the  inhabitants  of  the  world  general  iy,  and  that  it  was 
in  danger  of  being  destroyed  by  tlie  eH'orts  of  the  pelagic 
sealers. 

I  say  that  we  might  rest  with  perfect  safety  upon  the 
answer  which  experience  has  given  to  tiie  present  contention  of 
the  United  States,  nevertheless  this  subject  has  been  considered 
10  with  a  great  deal  of  care  and  at  great  length  by  council  for  the 
United  States,  and  it  may  be  necessarj-  to  answer  them  more  in 
detail.  In  the  printed  argument  of  the  United  States  there  has 
been  a  very  ingenious  arrangement  of  portions  of  the  testimony 
iiiid  certain  plausible  deductions  are  drawn  from  this  partial 
statement  of  facts,  and  we  do  not  feel  that  we  would  be 
jiroperly  representing  the  interests  of  Great  Britain  if  we  allow 
the  construction  which  has  been  thus  put  upon  the  testimony 
to  go  unanswered.  That  must  be  my  excuse  for  detaining 
your      Honors — perhaps     you     may    think     to    a    somewhat 


uiuiecessary  extent — in  the 
(if  the  evidence.  I  shall 
us    possible,  and    I   trust  1  shal 


20  uiuiecessary     e.xtent — in     the     consideration     of     the     details 

endeavour     to     be    as    concise 
1     have    your  Honors    forbear- 
ance in  discuBsing  a  matter,  which  although  less  interesting  than 
the    subjects    which    have     been    argued     hitherto,   is  just   as 
nccessarj'  for  a  perfect  under.standing  of  the  case. 

'{'he  first  argument  I  shall  attempt  to  answer  is  that  contained 
in  the  United  States  brief  under  the  heailing,  "The  uncertain 
character  of  seal  hiniting."  That  chapter  di.scusses  the  subject 
from  a  general  standpoint  and  therefore  it  seems  a  fitting  one 

;{()  with  which  to  begin  a  con.templation  of  the  evidence. 

It  begins  in  the  United  States  argument  at  page  177,  and  I 
refer  in  the  first  j)lace  to  a  (|uotation  from  a  deposition  made  by 
Daniel  McLean  at  San  Francisco  on  the  7th  September,  ]Xy2, 
which  deposition  was  read  into  the  notes  by  the  United  States 
Counsel.  In  that  deposition,  under  the  caption  "sealing  a 
venture  "—he  says  :  "  The  conditions  for  a  successful  catch  are 
"  so  many  that  while  one  vessel  may  take  a  great  many, 
"another  with  eciually  as  large  a  crew  may  oidy  secure  a  su»all 
"  number.     It    reciuires    expt-rience  and  a  careful  .study  of  the 

40  "  habits  of  the  seal  and  a  thorough  knowledge  of  their  route  of 
"  travel  along  the  coast  of  Behring  Sea  to  secure  a  good  catch. 
"  I  have  known  persons  to  leave  X'ictoria  at  the  same  time  as  I 
'  did  and  with  the  same  number  of  boats,  and  at  the  end  of  the 
"season  I  had    two  skins  to  their  one." 

This  was  an  ex-parte  statement.  The  witness  was  not  cross- 
examined  upon  it. 

Many  reasons  may  be  suggested,  other  than  that  which  he  has 
given,  as  the  cause  of  his  returning  to  port  with  two  skins  for 
every  one  obtained  by  another  captain.     Your   Honors   will'  re- 

")0  member  that  the  McLeans  figure  to  a  large  extent  throughout  this 
whole  controversy,  and  from  what  you  know  of  their  evidence  you 
will  be  prepared,  I  am  sure,  for  some  exaggerated  statenienta 
from  them,  especially  when  they  are  made  exprate.  The 
poBsession  of  a  particular  knowledge  of  the  seal  liabits  as  all 
the  evidence  shows,  is  not  bo  much  a  condition  of  success  in  the 
ac^aling  captain  and  crew,  as  is  industry  and  perseverance  in 
their  TTi/ik.  We  have  a  great  many  instances  in  the  record  of 
men  who  posseBsed  no  previous  knowledge  of  the  nature  of  seal 
hunting,  who  did  not  know   the   Behring   Sea  or  the    Pacific 

(iO  Coast,  who  came  to  Victoria,  picked  up  a  crew  of  perfectly  green 
hunters  went  to  the  Behring  Sea  and  returned  with  large 
catches.  One  notable  illustration  is  to  be  found  on  page  2!)1  of 
the  Record.  Captain  O'Leary  makes  this  statement  beginning 
I  think  with  line  51 : — 


xi 


m  ' 


m 


J'l^M 


■:i  "Hi 


t<|!    ": 


.I'il 


^i    ■   1^ 


'  '  n 


I       ^' 


202 

(Mr.    ISoilwcll's  Ai-i,finiit'M(.) 


••illii";  111  I  lie  \v!\v 


sen  1 1  Hi;' 
I'di'i'. 
1  iron  i;!  it 


lu'l" 


Ul't' 


ISSd  ill  the 
A.      No. 


•I'ath- 
I   liad 


tlic  "I'litliliniliT  "  ai'ouiul 


klKIWlcjfl'     I) 

■  t()  ln'  I'umiil 


til- 
A. 


hriiii 


Sea  with  til 


111'   lllllitcis 


cicalitv   ill 
No,    i  <li(l 

'  slii|i  tliat 

A.     I  n-ot 


"  <j).      Nov,    \-oii  went 
"  fimlcr  iliil  ymi  '      .\.      W  s, 

"  (.J.      I  laij  you  I'xcr  lucii 
"  never  si'aliil  I'or  Inr  seal  lie 

Tlie  evideiiee    is    that    he 
from  N'o\a  Scoti.i  in  that  year. 
10  ••().      Hail  you  any    |iaitieular 

"  ISehriiij.;-  Sr;i  where  I'lir  seals  wen 
"  not. 

■•  (,).      \'o!i  w"ii!  I'm-  ^"-ilin;;'  to  l> 
"  year  '        .\.      ^'es.  I   diil. 

■■  (^>.       Where  (!ii|  you  ^^et  your  (TeW 
"  them   rio'hl    iiri-r  ill    \'i,  ■.   .  ;,i. 

"(,).      Ila\'.' you  any  :,  now  !■  i!'r,'   IS  to  what    their  exjierienee 
"hail  heeii  ill  seal'lli;'  :*       .\.       W'el',   !   think  twool'  tl'em  ll;lil  lieell 
"  sealinu'  on  the  eo-i.-i  of  (  ';;':roriii  i  thit  year,  e;ime  here,  left  the 
20    "  \essel   here  ami  went  sealiiie;  with  me. 

"  Q.     Tile  others  ^     \.     The  other.s  wa.s  tlioir  tirxt  year. 
"  Q.     Tiiat  was  the  tirst  season    for  all  of  theiu  ?     A.     That 
"  was  the  first  year  for  all  of  them. 

"  Q.     How  many  hunters  ijiil  you  liave  :'     A.     I  had  five. 
"  Q.     How  many  boats  ?     A.     I   Imd    five,   regulai*  sealing 
"  boats  and  a  small  stei'ii  boat. 

"  Q.  Did  your  .stern  boat  do  any  hunting  ?" 
In  passing  I  may  say  that  this  is  a  gootl  piece  of  evidence  with 
reference  to  the  capacity  of  the  stern  boat,  because  the  stern 
30  boat  of  this  vessel  may  be  taken  as  a  type  of  all  the  stern  boats. 
His  answer  to  the  '[itcstion  is  ;  "I  got  a  few.  I  went  out  my- 
self and  got  a  few.  I  might  have  got  30  in  the  stern  boat." 
The  evidence  about  the  stern  boat  is,  that  it  was  usually  operated 
by  the  Mate  and  sometimes  by  the  Captain.  In  the  morning  on 
a  fine  day  when  all  the  work  had  been  done  and  seals  were 
abundant  they  took  the  stern  boat  out  and  hunted  seals  in  it, 
but  it  waa  not  considered  a  regular  sealing  boat  and  was  only 
used  on  occasions  when  the  weather  was  favorable  and  when 
there  was  nothing  else  to  do.  In  our  calculation  of  the  quantity 
40  of  seals  to  be  taken,  we  have  left  catch  of  the  stern  boat  out  of 
consideration  in  each  case,  and  it  works  as  well  for  one  side  as 
for  the  other,  because  all  the  vessels  had  stern  boats  or  canoes 
which  were  used  as  such. 

I  read  again  from  his  evidence: — 

"Q.     What  time  did  you  go  into  the  Sea  ?    A.     I  think  the 
"  sixth  of  June. 

"  Q.    Did  you  know  where  to  find  the  seal  ?    A.     Only  by 
"  looking  for  them. 

"  Q.  Did,  you  f  nd  them  ?  A.  I  did  after  a  while." 
50  With  this  equipment  and  with  this  knowledge  and  experience 
he  made  a  catch  of  1460  between  the  first  of  July  and  the  fourth 
of  August.  Therefore,  Captain  McLean  in  stating  in  his 
deposition  that  to  make  a  catch,  experience  and  careful 
study  of  the  habits  of  the  seals  and  a  further  knowledge  of 
their  route  of  travel  on  the  coast  of  Behring  Sea  is  a  pre-requisite, 
is  entirely  wrong.  And  I  may  point  out  to  you**  Honors,  that 
there  is  a  great  deal  of  other  testimony  in  the  Record  directly 
opposed  to  such  a  contention. 

I  think  I  shall  make  it  clear  before  I  am  done,  that  in 
60  Behring  Sea  the  seals  leave  the  Islands,  and  scatter  about 
the  sea  for  a  distance  of  about  one  hundred  miles.  The  sealers 
went  into  that  locality,  and  when  they  went  there  found  the  aeals. 
They  did  not  find  them  always  at  the  exact  place  at  which  they 
expected,    but    they    always     found    them     after     a    short 


(Ml'.   Unilwcll's  Ar^jumciit.) 

period  of  pruisiii;:^  witliiii  ci'i'tnin  limits.  The  inovi'inoiits  of  tlio 
.s('!ils\v('ri'ul\viiys(!iititiiu'ii\vithiiilii)iiiiiliirii'sfnirly  W'll(i-.C('rtiiini'(l. 
This  matter,  liowovcr,  will  cdiiil'  iij)  more  properly  in  tlio  (liw- 
ciission  of  tlio  loc-iility  of  tlic  sculiiii,'  i^rouiiii.s,  wliicli  I  will  deal 
with  afterwards. 

Ill  ,1  Iditioli  to  the  e\iileiiee  jllst  reail  wc  have  tlie  case'  of 
ID  Captain  Went  worth  l\.  liikcroii  the  "N'iva."  In  ]  SSS  lio 
went  sealiii'.,' for  the  lii'st  time  :  lie  lii'()nt;ht  the  "  \'iva  "  arouiKl 
riiiiii  Nova  Scotia  made  a  voya^fi-  to  I'ldirini,'  Sea  with 
;.Teen  liunteis  and  L^oL  KiOO  seals  between  the  Hth  .Inly  and  the 
:iiil  Svpteiiiiii  r.  Me  wa  ^  a  totally  iiie.\pereiiced  man  in.soaliiipj 
at  that  time. 

Tie'  true  secret  nodmilit,  of  the  sneeess  of  the  seal  hniiter  was 
stated  by  Neil  .Moss.  Ho  h,id  bieii  ill  the  se;i  since  1SS5,  ami 
he  was  asked  in  er()><-i'\aniination  at  paL;e  'VAS,  line  10:-- 

"  Q.     And  the  eateh  of  tlu'  vessel  woidd  depend  somewhat  on 
20  "the  skill  and  kiiowled^je  of  tlio  master,  would  it  not?     A.     Yes, 
'■  I  ij;uess  a  little   somethiin^  about  the   vosstd  too.      The  captain 
"  had  good  knowludire  about  seals.  " 

This,  your  honors  will  roineinbcr,  was  the  year  in  which  he 
sailed  with  McLean  as  Master. 

"  Q.  That  would  make  a  ditt'ereiice  in  the  results  wouldn't 
"  it  ?  A.  I  do  not  know.  It  all  depends  on  how  we  come  acro.ss 
"  them.  New  men  could  jfo  in  there  and  come  acro.ss  them  as 
"  well  as  men  of  experience. 

"  Q.     Is  not  a  man  who  knows  something  about  their  habits 

30  "  better  able  to  judge  wjiere  to  find  them  ?     A.     I  do  not  know. 

"  Q.     When  you  say  that  a  man  has  the  reputation  of  being 

"  one  of  the  best  captains  in  the  business,  what  do  you  mean  ? 

"  A.     I  mean  Captain  McLean  was  a  rustler,  and  waa  always  on 

"  the  go." 

That,  your  Honors,  is  the  secret  of  success.  The  men 
who  hunted  for  them,  the  men  who  tried  to  find  them 
and  the  captain  who  put  his  men  out  and  kept  them  out,  caught 
the  seals.  It  required,  no  doubt,  ordinary  intelligence  and 
ordinary  understanding  of  the  business,  but  a  captain  with  a 
40  capacity  for  handling  men  had  all  the  requisite  qualities  for  a 
successful  sealing  captain. 

The  history  of  the  industry  also  supports  this  contention. 
Before  1886  there  was  very  little  hunting  done  in  the  Behring 
Sea,  and  therefore  before  that  time  there  could  have  been  no 
such  thing  as  an  extended  experience  with  reference  to  th« 
character  and  habits  of  the  seals  in  Behring  Sea.  Yet,  wh*.t  do 
we  find  ?  In  1886  sixteen  vessels  went  into  the  Behring  Sea, 
some  of  them  commanded  by  men  who  had  experience  on  the 
coast,  but  with  the  exception  of  McLean,  Hansen  and  Rayner,  by 
50  men  who  had  not  been  in  the  Sea  at  all  before  that  year;  yet  we  see 
that  every  one  of  these  vessels  were  making  good  catches  when 
taken  by  the  United  States  cruisers.  The  only  schooners  that 
year  commanded  by  masters  who  had  previouii  experience  in  the 
Behring  Sea,  were  the  "  Mary  Ellen,"  the  "  Favourite  "  and  the 
"  Adele,"  which  was  sailed  by  Captain  Hansen. 

The  argument  for  the  United  States  is  also,  and  must 
necessarily  be,  inconsistent  with  itielf  on  this  point,  because 
in  their  chapter  on  the  sealing  grounds  they  quote  a  great 
deal  of  evidence  which  they  allege  shows  that  there  was  not 
60  a  defined  locality  for  seals  in  Behring  Sea.  The  only 
ground  upon  which  it  can  be  predicated  that  the  experience  of 
the  captain  would  avail  in  the  securing  of  a  catch  is  this : 
that  on  account  of  his  knowledge  of  seal  habits  and  his  experi< 
ence  of  the  locality,  he  would  be  able  to  take  bis  crew  to  the  place 


I"  1 
I' ! 


H'f 


:■ 


n 


I'i 


■'^ii ,;.. 


4 :  ■  ;■■! 


ii'i 


-*'    ''. 


,^'i«' 


'I " 


204 

(Mr.    6odwoir.s  Argument.) 

whore  seuls  were  to  be  found,  but  while  making  that  atatcuient 
on  the  one  hand  the  argument  of  tKf  United  States  immediately 
after  asserts  that  previous  experience  was  useless,  since  the  find- 
ing of  seals  in  a  place  one  year  was  no  indication  at  all  that  they 
would  be  found  in  the  same  place  next  year.  We  do  not  admit 
that  contention.     I  may  say  at  once  that  we  contest  ;>.  strongly, 

10  but  the  point  I  am  making  is  this  that  the  argument  of  counsel 
for  the  United  States  is  not  consistent  with  itself,  and  that  that 
inconsistency  demonstrates  the  weakness  of  the  assertions  con- 
tained in  the  chapter  1  am  now  discussing. 

McLean  himself  says  it  only  takes  three  or  four  months  for 
a  man  to  acquire  complete  knowledge  of  the  habits  of  the  seal. 
We  have  proved  that  it  does  not  take  that  time  in  many 
instances.  Here,  however,  is  the  witness  for  the  United  States 
putting  the  limit  of  time  required  lor  l)eef>ming  a  good  hunter 
at  from  three  to  four  months.     At  page  KSTof  the  United  States 

20  argument  his  evidence  is  quoted  as  follows  : — 

"  All  seals  don't  act  alike,  some  act  ditf'erent.  A  uian  has  got 
"  to  have  considerable  experience.  It  takes  probalily  three  or 
"  four  months  before  be  understands  how  to  appioauh  a  seal 
"  properly." 

But  the  evidence  shews  that  all  trie  hunter  has  to  learn  is  to 
keep  to  the  leeward  of  the  seal.  Here  tJHii  is  the  extent  of  the 
experience  he  must  ac(|iiire  in  Hfhiin;,'  Si-a  to  catch  seals.  To 
this,  of  course,  must  be  added  his  n-itural  aptitude  for  hunting, 
and  his  skill  as  a  shot,  wbicli  art-  qualitii-s  ho  will  acquire,  alto- 

30  gether  apart  from  the  study  of  >eal  life  yi  Behi'ing  Sea.  When 
he  goes  to  Hehring  Sea  and  is  put  to  liuni  in  a  boat,  the  only  thing 
he  has  to  ascertain,  is  which  wav  ibe  wind  is  blowing  and  the 
direction  of  the  seal  in  n^lation  to  that  wind.  He  has  also  to 
learn  this,  a  matter  which  a  man  of  onlinarN'  intelligence  must 
be  able  to  ac(jnire  in  a  day  or  tvvo_  at  lea-t,  from  observation,  the 
position  of  the  si'al,  wlielber  it  is  awake  or  asleep,  and  to  regu- 
late his  approach  aecordingly.  So  I  sa\  ('apt.  McLean  has  exag- 
gerated when  he  says  tbiit  that  kind  of  knowlediie  cannot  be 
acquired  by  a  man  of  ordinary   intelligence  except  after  three 

40  or  four  months  of  active  expeiiencf  in  ide  Sea. 

The  next  position  wbicli  is  taken  ou  ibe  uncertainty  of  seal- 
ing is  this,  appearing  at  tlie  bottom  of  page  177: 

"The  vessels  employed  were  u^nallv  small  second-hand 
"  schooners  ranging  from  1.')  to  12.5  t')ns  lairtht'ii,  though  the 
"the  ordinary  size  was  lietween  50  ami    100  tons" 

Now  it  is  true  that  the  vessels  wbicli  were  used  in  the  sealing 
business  in  LS8G  and  lNiS7  weie  in  many  instances  not  new 
vessel.s  ;  but  there  is  no  foundation  wharever  for  the  suggestion 
that  on  that  account   thev    Were    not    good    ve.s.sels.     Fr-om    the 

!)0  beginning  to  the  end  the  evidence  is  conclusive,  that  they  were 
all  staunch,  sea-woi-tby,  and  well-found  in  t^very  respect; 
perhaps,  in  order  that  your  Honirs  may  have  it  in  a  convenient 
place,  I  may  state  here  the  tiMinag.-  of  liie  diff'ereirt  ves.sels  : 

"  Favorite  " 8(t  tons 

"  Sa\  ward  " 64  n 

"  Alfred  Adams" t.9  „ 

"  Dolphin  " G6  ,. 

"Grace" 83  „ 

60  "Ada" 77  M 

"Pathfinder" 70  „ 

"  Black  Diamond  " 82  „ 

"Lily" 69  „ 

"Triumph" 106  „ 


£05 

(Mr.   Bodwell's   Argument.) 

"Ariel" 91  tons. 

"  Oicar  and  Hattie  " 81  .. 

"  Kate" 58  „ 

"  Carolena  " 32  „ 

"  Thornton  " 29  » 

"Onward" 35  .. 

10  "Anna  Beck" 41  n 

"  Juanita"   40  i, 

"Henrietta" 30  « 

"Wanderer" 25  „ 

•'  Winnifred  " 13  „  . 

"  Little  Triumph  " 15  „ 

The  Commissioner  on  the  part  of  Her  Majesty  : — I  think  the 
tonnage  of  the  "  Caroiona  "  was  reduced. 

Mr.  Bodwell :— There  is  a   dispute  as  to  that.     The  official 

20  measurement  put  in  is  27,  or  something  like  that,  tons  ;  but  she 

was  said  to  be,  and    was   registered    first,  as  a  vessel  of  32  tons. 

It  is  not  very  clear  which  is  correct,  and  I  suppose  it  makes  very 

little  difference. 

Mr  Lansinjj: — Is  that  from  Collector  Milne's  list  ? 

Mr.  Bodwell  : — No,  I  have  taken  this  from  our  argument. 
In  making  the  claims,  our  first  statement  is  the  tonnage  of  the 
vessel,  and  this  list  I  have  read  is  compiled  from  that  source. 
I  have  no  note  of  the  "  Mountain  Chief." 

Mr.  Peters  . — It  is  IC,  as  a  matter  of  fact. 
30  The  Coiiimissioner  on  the  part  of  the  United  Status  : — It  is 
not  necessary  to  take  time  here  as  to  this  matter.  This  is  only 
a  bird's  eye  view  of  the  whole  topic  and  need  not  be  accepted  as 
absolutely  correct.  When  we  come  to  discuss  the  various  vessels 
we  will  get  the  precise  facts  about  them. 

Mr.  Bodwell : — I  think  it  is  correct  as  far  as  it  goes.  T'lere 
arc  23  vessels  as  I  count  them  ;  there  is  only  one  of  15  tons, 
only  nine  under  50  tons,  and  there  were  thirteen  over  50  tons. 

Now  then  the  evidence  is,  that  small  vessels,  or  vessels  of  this 
tonnage,  were  employed  designedly  in  seal  hunting  because  they 
40  were  better  vessels  for  the  purpose.  For  that  we  have  the 
authorit}'  of  a  witness  very  much  relied  on  by  the  United  States, 
namely,  Capt.  Miner.  At  page  551  of  the  Record,  beginning 
at  line  22,  he  testifies  as  follows : — 

"  Q.  What  do  you  mean  by  a  vessel  adapted  to  sealing  ? 
"  A.  By  a  vessel  adapted  to  sealing  I  mean  one  that  is  a  moder- 
"  ately  fast  sailer,  a  good  .sea  boat,  and  of  about  the  right  sizf 
"  to  be  comfortable  according  to  the  crew  you  wish  to  take.  I 
"  should  call  nothing  comfortable  for  sealing  under  65  tons,  or 
"  nothing  la  ger  than  125  tons. 
50  "  Q.  But  would  you  undertake  to  say  in  giving  j'our  opinion 
"  from  the  box  that  a  vessel  under  G5  tons  was  not  adapted  for 
"  sealing  ?     A.     No,  Sir,  I  would  not. 

"  Q.     You  would  prefer  for  comfort  a  ves  i-^     f  65  tons? 
"  A.     Not  lower. 

"  Q.     As  a  matter  of  fact  some  successful  sealers  have  been 
"  under  65  tons  have  they  not  ?     A.     I  think  so. 

"  Q,     You  do  not  need  a  regular  racer  for  a  good  sealing  boat 
"  I  suppose  ?     A.     No,  I  think  not. 

"  Q.     Will  j'ou  tell  me  why  a  vessel  over  125  tons  would  not 
CO  "  be   adapted  for   sealing  in   your   opinion  ?     A.     Because   she 
"  would  be  rather  heavy  to  handle,  hard  on  the  gear,  and  harder 
"  on  the  crew. 

"  Q.     How  about  expense  ?     A.    That  is  what  I  say,  more 
"  expensive  on  the  gear. 


m 


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206 


(Mr,    Bodwell's    Argument.) 

"  Q.     And  too  large  to  bo  eaMily  liftniUod  ?     A.     Too  largo  to 
"  bo  easily  bandleil. 

"  Q.     Your  ideal  is  65  tons  is  it  ?     A.     No,  my  ideal  is  about 
"  100  ton  vessel. 

"  Q.     Do  yon  know  tlio  average  toimngo  of  vessels  that  have 
"  been  engaged  in  .sealing  ?     A.     I  think  the  average  would  be 
10  "  very  hard  to  strike. 

"  Q.     Could  you  come  within  ten  tons  of  it  ?     A.     No,  Sir. 

"  Q.     Have  they  been  under  100  or  over  ?     A.     I  think  the 
"  average  would  be. 

"  Q.     A  good  deal  under  ?     A.     Yes,  Sir,  not  very  much. 

"  Q.     Well,  ivbuut  twenty  tons  under  ?     A.     Possibly. 

"  Q.  You  cannot  come  nearer  than  that  ?  A,  No,  Sir." 
It  cannot  be  contended  that,  on  account  of  their  size,  these 
vessels  were  not  good  sea  boats  ;  because  wo  have  the  reconl  of 
80  many  successful  voyages  made  in  that  si-a  at  all  seasons  of  the 
20  year  at  which  seal  hunting  is  prosecuted  ;  and  that  fact  alone  is 
sulHcient  to  establish  that  these  vessels  were  perfectly  well  able 
to  stand  the  vveather,  being  sound  and  seaworthy.  In  addition 
to  that  wo  have  the  positive  statement  of  Capt.  Laughlin 
McLt'an,  who  was  exaniii.v,d  on  this  very  point,  at  page  754, 
line  13  :— 

"  Q.  FroH)  your  experience  would  there  be  any  danyer  of  a 
"  smo'ler schooner  than  the  "  Favorite"  remaining  in  the  Behring 
''  Sea  until  the  end  of  August,  and  even  until  the  beginning  of 
"  Septend)er  (the  '  Favorite  '  was  80  tons)  ?  A.  No,  Sir." 
30  Then  we  have  in  the  Record  that  the  "  Mountain  Chief,"  a 
little  vessel,  stayed  in  the  Behring  Sea  until  the  7th  of  September 
and  came  away  without  ilitliculty.  It  cannot  be  maintained  on 
this  evidence  that  these  voyages  were  rendered  perilous  on 
account  of  the  size  of  the  vessels  employed,  but  f  appeals  to 
be  the  conclusion  drawn  in  the  United  States  arg  ,  for,  in  the 

very  next  paragraph,  we  find    them  asserting  t  dangers 

attendant  on  the  voyage  of  this  1500  miles  to  Behiing  Sea  (and 
I  suppose  thej'  mean  us  to  infer  the  dangers  of  the  voyage  in 
that  class  of  vessels),  "  which  usually  occupies  from  fourteen  to 
40  twenty  days,  and  tl.ose  that  surrounded  the  operations  in  the 
sea,  together  with  the  uncertainty  of  profit,  never  induced 
capital  to  invest  largely  in  the  industry."  It  is  then  said  that 
the  perils  of  the  Behring  Sea  cruise  were  such  that  the  rates  of 
insurance  were  largely  increased  on  Behring  Sea  voyages,  and 
also  it  is  argued  that  the  dangers  and  perils  were  so  great  that 
owners  would  not  employ  hunters  except  npon  a  lay. 

Now  to  deal  with  these  dirterent  propositions  in  order.  In 
the  first  place  it  seems  to  me  that  the  statement  that  the  voj'ages 
usually  occupied  from  fourteen  to  twenty  days  is  scarcely  proved 
50  by  the  evidence.  I  know  there  is  some  evidence  that  there 
were  voyages  of  that  length ;  but  we  have  the  record  of 
the  voyages  of  two  vessels,  which  I  think  may  be  taken  as 
typical  vessels.  This  point  is  not  material  here,  but  it  does  come 
up  for  consideration  when  considering  the  length  of  the  season, 
because  there  is  an  urgument  founded  on  the  fact  that  we  have, 
in  making  our  calculations,  counted  the  whole  time  that  would 
be  orcupied  by  the  vessels,  not  only  in  Behring  Sea,  but  on  the 
voyage  home,  therefore  it  is  worth  while  to  notice  it  here. 

We  have  the  "  Little  Triumph  "  and   the  "  Onward."     The 

00  "  Little  Triumph  "  almost  the  smallest,  and  the  "  Onward  "  may 

be  taken  to  represent  the  mid<lle  class.     We  have  in  the  evidence 

a  record    of  the    time  taken  by    each  one    of  those   vessels    in 

making  the  trip. 

Evidence  with    reference   to    the   time    of    the    voyage    up 


207 

(Mr.   Bodwell's   Argument.) 

would  not  be  so  imlicative  of  the  actual  time  occupied  in 
st'ivling,  because,  on  the  voyage  up,  the  sealers  always  stopped 
to  take  .seals  if  they  found  them,  and  it  is  on  the  record  in  nearly 
every  instance  where  we  make  the  claim  that  there  was  quite  a 
iiuinber  of  seals  taken  on  the  voyage  up,  outside  of  BohringSea. 
Tlierefore  I  refer  to  the  voyage  home  as  a  much  better  basis  for 

10  ubtaiiiing  the  actual  sailing  time  than  the  voyage  up. 

The  "  Little  Triumph  "  in  her  trip  down,  made  the  voyage 
ill  about  two  weeks.  She  is  spoken  of  in  Smith'.s  evidence, 
ji(ii,'u  HOI.  Spring  is  asked  what  time  would  be  required 
f(ir  the  "  Onward  "  to  make  her  voyage,  and  he  says  from  twelve 
to  fourteen  days,  page  86!),  lino  So.  So  that,  except  in  the  case 
of  the  very  smallest  of  vessels,  wo  wo-ild  not  be  justified  in  say- 
ing that  the  ves.sel  occupied  from  fourteen  to  twenty  days  in 
making  the  journey  from  the  sea,  but  we  may  conclude  that,  in 
oidiiiary  weather,  the  longest  time  that  would  be  occupied  would 

20  lie  from  ten  to  fourteen  days. 

The  statement  that  capital  was  never  imluced  to  invest 
largely  in  the  industry  cannot  he  supported.  Of  course  the 
investment  of  capital  in  any  business  is  always  a  relative  term. 
In  18SG  there  was  very  little  capital  invested  ;  but  the  reason 
was  that  the  profits  of  that  industry  were  not  known.  Sealing 
at  that  time  had  been  carried  on  on  the  west  coast  of  Vancouver 
Island,  and  liarl  been  prosecuted  with  inditt'erent  success  ;  but,  ai 
you  have  heard  it  stated  over  and  over  again,  when  Captain 
McLean  and  other  captains  went  into  Behring  Sea  in  188.")  and 

30  niixile  the  catches  which  they  did,  obtaining  large  prices  for 
them,  the  sealing  business  went  up  with  a  bound,  and  a  great 
iminber  of  vessels,  comparatively  sp'  king,  were  put  in  commis- 
sion. In  the  United  States  ca.se  lliere  is  a  statement  of  the 
reasons.  There  is  a  statement  that  was  read  into  the  record  at 
page  1849,  a  part  of  the  afiidavit  of  Morris  Mo.ss,  which  is  printed 
in  volume  3  of  the  United  States  re-print,  page  Ml,  and  which 
was  a  part  of  the  case  at  Paris.  Speaking  of  the  condition  of 
things  before  188G,  he  .says : — 

"  The  fleet  was  small,  not   numbering  over  half  a  dozen  ve.s- 

40  "  sols,  and  the  trade  was  in  the  hands  of  three  or  four  men.  In 
"1883,  the  American  schooner  San  Diege,  of  San  Francisco, 
"  ontere<l  the  Behring  Sea,  and  after  taking  about  2200  seal- 
"  skins,  brought  them  to  Victoria  and  sold  them.  This  gave 
'■  impetus  to  the  trade  and  the  following  year  Victoria  schooners 
"  entered  the  sea.  New  vessels  were  subsequently  added  to  the 
"  fleet  and  other  firms  embarked  in  the  business." 

All  the  evidence  in  the  record  supports  that  statement,  and 
with  regard  to  the  extent  of  the  business,  and  the  number  of 
.seals  which  could  be  taken,  your  Honors  will  see  that  there  was 

50  a  very  considerable  investment  of  capital  and  a  very  respectable 
number  of  vessels  engaged.  In  the  American  re-print,  volume 
2,  at  the  end,  there  is  a  schedule  printed  of  all  the  vessels  engaged 
in  sealing  from  1875  to  1892,  and  that  show.s  this  : — I  begin  with 
1886  ;  Mr.  Peters  referred  to  this,  but  it  will  be  convenient  to 
have  it  appear  here  again. 

Mr.  Lansing  : — Where  does  this  appear  in  the  record  ? 
Mr  Bod  well : — I  do  not  know,  I  cannot  give  it  to  you  now  ; 
we  have  been  referring  to  it  all  through  the  case. 
Mr.  Lansing: — It  is  not  in  evi(!^nce. 

(JO  Sir  Charles  Tupper  : — It  is  certified  by  the  department  and 
is  a  part  of  your  case. 

Mr.  Bodwell : — I  do  not  think  there  can  be  any  possible 
olfaction  to  my  referring  to  it.  There  i.s  no  doubt  as  to  its  cor- 
rectness, and  it  has  been    used  before.      As  to  the  point   on 


I  I 


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H     Lb 


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908 

(Mr.   Bodwell's   Argument.) 

wliich  I  am  now  reading;'  U,  I  am  jure  my  learned  friends  cannot 
possibly  object.  It  shows  that  in  1886  there  were  thirty-four 
vessels  engaged  in  sealing,  in  1887  there  were  forty-seven,  in  1888 
there  were  thirty-nine,  in  1889  there  were  sixty-nine,  in  1890 
there  were  sixty-one,  in  1891  there  were  115,  in  1892  there 
were  122. 

10  In  fact,  the  ca.se  of  the  United  States,  from  beginning  to  end, 
and  throughout  the  whole  controversy,  is  '"nconsistent  with  the 
statement  that  capital  did  not  invest  largely  in  the  business, 
because  their  whole  contention  has  been  that  there  were  so  many 
vessels  engaged  that  the  total  destruction  of  the  industry  was 
threatened.  I  am  willing  to  admit  that  before  1886  capital  did 
not  invest  largely,  because  it  was  not  known  what  a  profitable 
business  it  was  ;  but  the  moment  it  became  known,  everybody 
who  could  buy  a  sealing  vessel,  and  who  had  any  knowledge  of 
the  sealing  business,  was  anxious  to  engage  in  that  trade,  and  did 

20  embark  in  it.  We  have  it  on  record  that  men  were  searching 
the  whole  coast  for  sealing  vessels  ;  that  when  vessels  adapted  to 
sealing  came  in^a  Victoria,  they  found  purchasers  the  n?oment 
they  entered  the  port ;  others  brought  vessels  around  from  the 
Atlantic  coast,  buying  them  at  large  prices  and  fitting  them  out 
for  sealing  ;  and  I  say  that,  having  regard  to  these  circumstances 
of  the  case,  there  was  a  very  large  investment  of  capital,  and  a 
great  inducement  for  its  investment. 

What  other  business  was  there  in  the  province  of  British 
Columbia  at    that  time    which  gave  promise  of  such   returns  ? 

30  Here  we  have  Warren  with  his  vessels  ;  in  the  year  he  was 
seized — witii  his  voyage  interrupted  in  the  midst  of  the  season — 
yet.  in  rpite  of  that  making  a  profit  of,  I  think,  some  §20,000. 
Byers,  a  man  who  came  out  to  that  country,  and  in  1886  went 
out  as  a  boat  steerer,  is  now  an  owner  of  vessels  and  ingoodcii- 
curastances.  Jacobson,  also,  beginning  with  the  little  "  Mountain 
Chief,"  which  he  had  scraped  together  five  hundred  dollars 
to  buy,  and  now  the  owner  of  vessels,  a  man  of  property, 
and  in  exceptionally  good  circumstances  in  the  City  of  Vic- 
toria. 

40  There  has  been  no  business,  during  these  times,  with  regard 
to  the  capital  invested,  which  has  given  such  large  and  handsome 
returns.  And  this  is  our  complaint ;  while  there  was  before 
these  men  a  chance  to  become  within  a  short  period  of  time 
independent  and  even  wealthy,  they  were  stopped  in  the  midst 
of  their  undertaking  by  the  action  of  the  United  Staies  and  the 
opportunity  of  their  life  time  was  gone. 

As  an  illustration  let  me  refer  your  Honors  to  the  case  of 
Gray,  who  brought  the  "Ada"  around  in  1887 — a  man  rich, 
comparatively  speaking,  at  that  time — absolutely  ruined  in  the 

50  midst  of  a  speculation  which  would  have  made  him  independent 
for  the  rest  of  his  life,  Many  other  instances  might  be 
cited  ;  yet  we  have  the  statement  that  this  business  held  out,  no 
inducement  to  capital.  The  truth  is  that  when  capital  was 
invested,  the  investment  was  destroyed  by  the  illegal  action  of 
the  Un'ted  States  authorities. 

I  "im  just  reminded  that  in  discussing  this  question  I  have 
made  no  reference  io  the  question  of  "  lay."  It  is  .scarcely 
necessary  that  I  should  do  so  to  your  Honors,  because  the  hiring 
of  men  upon  a  lay  is  the  common  course  in  fishing  expeditions; 

60  in  fact,  I  may  .say  it  is  the  rule.  No  inference  whatever,  is  be 
drawn  from  the  fact  that  men  wore  employed  on  a  lay.  There 
was  every  reason,  in  voyages  of  this  kind,  that  the  crews  .should 
have  an  inducement  to  hunt  with  persistency  ;  and  inasmuch  as 
it  is  a  well  known  custom  so  universally  applicable  to  all  vessels 


209 
(Mr,  Bodwell's  Argument.) 


of  this  dt'scription,  I  do  not  think  it  necessary  to  take  any  time 
at  all  in  (hscussin<j  ii.     It  is  tiien  stated  on  |)H<i;e  17H  : — 

"These  small  schooners,  li'wvii'p;  the  poit  of  Victoria  in  April, 
"  May,  or  June,  made  their  way  nurthwaid  alonj^  the  western 
"coast  of  British  C'oluniiiia  ami  Alaska  or  hy  iiircct  course  across 
"the  ocean  to  Unimak  I'ass,  tlie  neanst  entrance  to  Behrinjj  Sea. 

10  "The  vessels  carried  either  white  or  Iiidian  Imiiters,  the  majority 
'lieins  the  latter,  in  the  years  l!S>Sfl  to  ISSI).  Tile  hoats  ii;"eil  hy 
"  tlie  whites  contained  oivh  a  hunter  armed  with  a  shot  i^iin  or 
"  rille,  or  hotli.a  hoaty>ullci  and  a"  Imat  steei(>r,"  the  lattor  actinj^ 
"intiie  capacity  of  aiiothei  oarsman  when  not  appioachiiij^  a 
"st-al.  '.hen  canoes  were  I'mpioyed,  each  was  mannetl  hy  two 
"  Indian.s,  one  to  paildle  and  the  otlierto  strike  the  animal  with  a 
"  casting  spear.  It  is  apj)arent  that  when  searching  for  seals  a 
"  boat  had  great  advantiige  over  a  canoe  or  a  hoat  with  hut  one 
"  oarsman,  as    it    possessed   twice  the  propelling    power   of  the 

20  '•  latter." 

Here  tiieie  is  an  attempt  t;)  compart'  the  capacity  of  canoes 
imfavoiiilily  with  that  of  loats  ;  and,  if  this  could  he  done,  it 
would  he  of  considerable  weight,  because  a  great  many  of  our 
vessels  carried  canoes  and  no  hoats,  and  a  great  many  had  Indiiin 
hunters  instead  of  white  men  ;  therefore,  the  Utnted  States  had 
every  reason  to  establish  the  proposition  tiiat  canoes  were  not  so 
usetul  as  hoats,  and  that  Indian  hunters  were  not  so  successful 
as  white  men. 

There  is,  in   tliis   quotation,  a  statement  not   very    material, 

l!()  but  still  incorrect;  it  is,  that  when  canoes  were  u.sed  each 
was  manned  by  two  Indians,  one  to  paddle  and  the  other 
to  strike  the  sial,  This  is  not  e.xactly  correct.  The  evirjcuec! 
of  Captain  Wairen,  at  page  2!S(),  lii\o  20,  and  page  2<S4,  lines 
50  to  (10,  is  addressed  to  that  |)oint,  and  he  says  this: 
tliat  there  are  al".  ^  two  Indians,  and  as  a  rule  they  were  both 
hunters  and  both  had  spears, and, as  I  sliall  show  pri'sentlj-,  each 
had  a  gun :  that  when  they  came  upon  the  seal.s,  if  there  were 
two  in  close  proximity,  each  hunter  woidil  cast  a  spear,  if  only 
one,  one  would  cast  a  spear.     The  exact  fact  is  that  both  Indians 

40  padilled  and  both  hunted,  as  occasion   required. 

Now,  from  the  fact  that  the  boats  carried  three  men,  the 
inference  is  drawn  that  iioats  had  a  great  ailvantage  over  the 
canoes, as  they  po.ssessed  twice  the  propelling  power  of  the  latter. 
This  is  not  justitied  by  the  evidence,  for,  while  it  is  true  the 
hoats  had  more  men  to  handle  them,  it  is  also  true  that  the 
canoes  had  better  lines,  and  were  niore  easily  handled,  so  that 
two  men  in  a  canoe  could  cover  more  ground  than  three  men  in 
a  boat.  For  instance,  we  have  liragg's  evidence  at  page  2U8,  as 
follows  : — 

JO  "  Q.  And  you  say,  that  other  things  ^eing  equal,  the  man 
"  that  covers  the  most  ground  will  get  t'  e  most  seals  ?  A.  That 
"  is  my  idea. 

"  Q.  How  much  lighter  is  a  canoe  liian  a  boat  in  weight  ? 
'•  A.     I  cannot  tell  you. 

"  Q.  It  is  considerably  lighter,  is  it?  A.  It  all  depends  oti 
"  the  size  of  the  canoe. 

"  Q.  How  do  the  lines  of  a  caiuie  compare  with  those  of  a 
"  hoat  ?  A.  They  are  a  little  ditterent  and  a  great  deal  sharper 
"  forward. 

CO  '  Q.  If  yon  had  a  strong  man  in  a  canoe,  who  was  accus- 
"  tomed  to  handle  it,  as  you  had  in  a  boat,  would  he  go  further, 
"  under  ordinary  circumstances  in  the  canoe  than  in  the  hoat  ? 
"  A.  I  think  a  canoe  would  go  further  in  a  day  than  a  boat, 
'  with  two  good  men  in  her." 


M: 


wW 


210 


(Mr.  Bodwell's  Argtimcnt.) 

Now  tlien  if  fclie  liklihootl  of  ;j[etfcing  seal.s  depends  on  tlie 
ground  covered,  and  o!\e  can  m't  fnither  in  a  canoe  than  in  a 
boat,  tlie  canoe  will  return  witli  more  seals,  otiier  things 
beini,'  equal. 

"  Q.     Suppose  yr)u  had  a   canof^   ''is.ijed    with    row-locks  and 

"  oars  and  two  j^ood  men  in   the  canoe,  how  would  the  <listance 

10   "  which  the\-  would  covi-r  in  a   <lay   compare   with    the  distance 

"  which  a  boat  puller  and  steerer  would  take  the  men  in  a  boat? 

"  A.     In  a  canoe  the  distance  would  be  f,'reater." 

Tlu^  canoes  wci'i-  Just  as  Ljond  sea  boats  also;  we  have 
nndonlited  evidence  of  that.  At  [lai^ie  2f)!J,  line  CO,  UragLf 
af,'ain  says  : — 

"  Q.  Are  the  Indians  accustomed  to  ^o  out  to  sea  in  these 
"  canoes  ?     A.     They  are. 

"  Q.     Do  3'ou  know  anythiuif  about   the  distance   they   will 
"  travel  by  sea  ?  anil  where  they  tjo  in  these  canoes  ?     A.     They 
20  "  travel  from  Kyuipiot  to  Vict  )ria  in  canoes. 

"  (}.     Kyuipiot  is  on  the  west  coasi  ?     A.     Yes." 

Your  Honors  will  remember  that  Ivyuijuot  is  on  the  west 
coast — a  very  rockj'  and  dan;»erous  coast ;  there  are  more 
vessels  wrecked  in  Barclay  Sound  than  perhap.s  on  any  part  of 
Vancouver  Island.     The  witness  fjoes  on  further  : — 

"  Q.  How  far  otit  to  sea  will  they  go  straight  out  from  land, 
"  do  you  know  anytliing  about  that  ?  A.  The  Indians  told  me 
"  themselves  that  tney  had  been  off  twenty  or  thirty  miles. 

"  Q.     How  much  beam  have  these  canoes  ?      A.      I    never 
30  "  measured  them. 

"  Q.  Cannot  you  give  us  some  idea  ?  A.  I  suppoae  about 
"  three  and  a  half  feet. 

"  Q.  And  how  long  are  they  ?  A.  Over  hang  and  all,  some 
"  of  them  would  be  about  twenty-five  feet." 

There  is  also  the  evidence  of  Paxton  to  be  found  in  the  Record 
at  paj^e  1538,  line  40,  that  the  Indians  taken  at  Sitka 
were  sent  adrift,  and  made  their  way  home  all  the  way  in  canoes, 
travelling  fifteen  hundred  miles  in  the  open  sea.  There  is  also 
evidence  of  Byers  at  page  319,  line  40. 
40  "  Q.  With  regard  to  catching  seals — boats  compared  with 
"  canoes  have  you  ever  had  experience  with  white  men  hunting 
"  in  canoes  ?     A.     No,  I  have  not. 

"  Q.  So  far  as  covering  ground  is  concerned,  liow  would  a 
"  canoe  manned  with  two  white  men,  compare  with  a  boat  ? 
"  Would  it  cover  as  much  ground,  or  less  ground,  or  more  ?  A. 
•'  I  think  about  equal.  Probably  the  canoe  will  have  a  little  the 
"  best  of  it. 

"Q.     Tliat  is  so  far  as  covering  the  ground  is  concerned  ?     A. 
"  So  far  as  covering  the  ground  is  concerned. 
60         "  Q.     You  have  seen  canoes  maimed  by  Indians  ?     A.     Yes 
•'  sir. 

"  Q.  And  so  far  as  they  aro  concerned  will  that  answer 
"apply?  A.  1  think  so.  1  think  that  a'.i  Indian  will  cover 
"  more  ground  in  a  day  than  a  white  mi'ii. 

"Q.  That  is  if  a  white  man  is  in  a  boat  and  an  Indian  in 
"  a  canoe  ?     A.    Ves,  sir. 

"  Q.  Is  there  any  difference  between  a  canoe  and  a  boat  so 
"  far  as  their  being  able  to  staml  the  sea  is  concerned  ?  A.  I 
"think  that  they  hunt  in  just  as  rough  weather  in  canoes  as  we 
00  "  do  in  boats,  although  I  never  had  experience  in  running  canoes 
"  myself ;  but  I  have  seen  canoes  out  in  just  as  rough  weather 
"  a-s  I  would  care  to  put  boats  in." 

His  statement  that  he  had  no  experience  in  liunting  with  canoes 
himself  is  important,  in  view  of  a   mistake   which   the  witness 


211 

(Mr.  Beilwell's  Argument.) 

MubatMjUt'iitly  made  when  a,skctl  if  tlie  Iiidi.inH  u.scil  <^iiiis  in 
I88().  The  witness  also  stated  at  pa<je  :}2!],  line  18,  fefci-riiig  to 
e.uKU'H : — 

"  Q.  'riiey  art!  not  considered  so  i;ood  for  .scaiinj;  as  boats  ? 
'•  \.     I  think  so. 

"  Q.     For  all  purposes  :'     A.     Ves,  for  all  ])urp()soH." 
10         1  have  also  the  ovidenoi!  of  Ciiptain    (iaudin    at   top  of  ptij^o 
l"2'2fl,  speidvinj^  of  canoes,  he  says: — 

"  (^.      Itdoes    not    li.ivf  to  he   extremely   stoi'niy    wciither  to 

■  pri'vent  canoes  jioinj,' out,  does  it  :"  A.  Oli,  it  wonM  have  had 
•  to  have    been    hio'.vin;^   a    pretty    stiH'  breexe,    .iinl   there  was 

■  notliinji  of  the  kind  so  fai'  as  I  can   rehieniher." 

Also  the  evidence  of   L.  ^[cLean,  at  pat;-e  7:i(i,  line  (i  :  — 

"  Q.  Is  it  an  advantaj^e  to  have  three  men  in  a  boat  as 
'■  a<,'ainst  two  men  in  a  boat:'  A.  Von  cannot  work  a  larj^e 
"boat  with  two  men  to  any  advantaj^e. 
20  "  Q.  Will  thi'ee  men  in  a  boat  j,a't  better  results  than  two 
"men  in  a  boat:'  A.  I  do  not  know:  in  a  smaller  boat  I 
"think  two  men  woulil  be  just  as  <;ood. 

"  Q.  Do  you  know  of  white  hunters  going  two  men  in  a 
"  boat  ?     A.     Yes,  sir,  I  have  known  some  to  go." 

The  result  of  the  evidence  is  this,  that  the  boats  were  larger, 
heavier,  and  harder  to  manage,  and  therefore  there  is  no  ground 
for  pre.suming  that  three  men  in  a  boat,  so  far  as  covering  ground 
is  concerned,  would  go  any  further  than  two  Indians  in  a  canoe. 
In  fact  all  our  experience  is  the  other  way.  Tlie  canoe  is  lighter, 
30  and  easier  handled.  Tiie  suggestion,  therefore,  in  the  United 
States  argument  that  in  chasing  a  "  cripple  "  a  canoe  woukl  not 
go  as  fast  as  the  boat,  is  not  supported  by  the  evidence. 

The  Connnissioner  on  the  part  of  Her  Majesty  : — I  think  the 
tables  drawn  to  our  attention  the  other  day.  by  Mr.  Peters, 
showed  that,  taking  the  results  as  a  whole,  the  catch  per  canoe 
per  day  was  less  than  the  catch  per  boat  per  day. 

Mr.  Bodwell: — That  is  right.  But  I  attribute  it  to  another 
cause  altogether,  which  I  willdiscu.ss  Inter  on.  We  have  made  a 
large  allowance  in  our  computation  estimated  catch  to  cover 
40  any  deficiency  of  the  Indian  hunters  I  do  not  think  that  it  is 
a  correct  inference  to  attribute  that  deficiency  to  tlie  use  of 
canoes.  The  evidence  shows  that  the  Indians  wool  I  get  as  many 
seals  if  they  had  the  same  perseverance  as  white  men.  When 
things  are  difficult  with  theuj  and  .seals  scarce,  they  get  dis- 
couraged. Thelndiansnot  only  had  spears  but  guns  also,  and  they 
had  the  advantage  of  using  the  spears  when  the  seals  were  close 
to  them.  If  therefore,  the  Indians  had  been  as  persistent  hunters 
as  the  white  men,  you  would  have  found  the  seals  secured  by 
them  would  have  been  as  many.  It  appears  that  the  Indian 
50  canoes  were  just  as  good  for  hunting  as  boats,  and  that  under 
ordinaiy  circumstances  they  ought  to  have  had  as  large  a  catch. 

The  ne.Kt  point  taken  in  the  argument  of  the  United  States 
refers  to  all  hunters,  both  Indians  and  white  men,  but  is 
especially  intended  to  apply  to  Indians.  It  is  contended  by  my 
learneti  friends  that  there  was  a  great  deal  of  skill  required  in 
taking  the  seals.  That  point  is  nuide  very  distinctly  and  put 
prominently  forward  in  the  argument  of  the  United  Staten.  At 
page  179  the  following  appears  :  — 

"  If  the  seal  appeared  to  be  awake  the  hunter  used  his  rifle 
f)0  "at  a  range  of  from  00  co  100  yard.s.  The  shotgun  was 
"  generally  used  wh.en  the  animal  was  asleep,  and  could  be  more 
"  etisily  approached.  If  the  shot  was  successful,  the  long 
"  liandled  gnU'  carried  in  the  boat  was  used  in  an  endeavor  to 
"  to  secure  the   rapidly  sinking   body.     If  not   killed  outright, 


l^'-.'M\: 


I'm 


.N 


ll^ 


■  J;: 


212 


(Mr.  Bodwell's  Argument.) 


t  ;  v 


'  tlx'  luinttT  ('(iiitimu'd  Hriiij;,  in  sonic  iiiHtanccs  a  doztu  shots 
'  bt'inij  tircii  at  a  I'ripplc,  uliii'li  eventually  was  lost.  Tlii()Uii;li 
'  some  peeuliar  instinct  the  animal  when  wounded  starts  directly 
'to  the  wimlward.      In  pui'suit  oi'  a  cri|)pled  seal,  the  advantage 


which  a  hoat  with  twi 
is  aiJiiarent. 


pu 


II. 


had  over  a  canoe    with  but  on 


10 


It    the  schoontT  carried  Indian   hunters  and   canoes  instead 


)!'    boats,  the    method    oi" 


itin<r   was    ditlerent.     Instead  of 


alwjiys  jiroeci'diiii;  to  the  wiiidwanl,  the  canoes  went  in  different 
directions,  se!<!(im  exteiidine- tlu'ir  ope  rations  over  three  or  tour 


th 


miles  irom  the  schoonei 


I'll 


It  is  tirst  to  be  iiote.l,  *^herefore,  that 


tiie  ari'a  covei'ed  l)V  a  ves.sel    mainii 


1    u 


.1 


iti 


1    canoes    was  m 


uch 


more 

'  ployed. 

that  ' 


limited   tlian  when  boats  with  white  hunti'i's  were  eni- 


n  as  a  seal  was  siehted,  and  it 


dct( 


d 


lie    was    asleei) 


th 


it'  to   the    windward    ot"    th 


■' animal,  ciicie(l  atjout  and  attempted  to  apijroacli    him  from  th(> 

•20    ''Ice.      If    successful,  the  ifeal  not    awakini;.  the    s])ear    was  cast 

"  whi'U  the  boat  was   within  'i-')  or  ."iO  feet.       If  sutliciently  skil- 

"  full  to  sti'ike  the  small  moviny  mark,  the  animal  was  drawn  to 

f  a  core  1    attached   to  the  spearhead.     If, 

as   awakened   bv  the  aiMiroach  of  the 


'th 

'  howe 
'canoe 


hv  means  o 


th 


animal    w 


til 


ere    was 


Itlle  pi 


it  v  ol    his  beiiiir  secured. 


as  he. 


w.niJd  swim  ;iway  at  a  rate  of    speed  which  precluded  pursuit. 
"  h'rom  llu'  dillereiit  ways  in  which  canoes  and  ])oats  started 
out,  it  is  ap})areiit  that  boats  would   have  an  advantaet.,  as  the 
.seal  has  an  acute  sense  of  smell." 


30 


The  reference  there  is  that  there  was  only  a  small  moviiie- 
mark  for  the  hunter  to  tire  at,  and  that  in  the  case  of  canoes 
maiiiied  witli  Indians,  there  would  be  ereat  trouble  in  hittiny; 
till'  mark,  mid  that  in  any  event  with  such  a  .siiinll  object  to  aim 
at.  and  such  dilhciilty  of  ajiproach.  ercat  skill  would  be  recpiired 
ill  the  cajiture  of  the  seal.  I  submit  that  the  evidence  does  not 
bear  out  any  one  of  the.se  projiositions. 

In  the  first  place  the  perceiitaije  of  loss  was  not  ijjreat,  that 
is  to  .say.  the  percentage  of  seals  shot  and  not  obtained.  Vour 
Honors  will  reiiii'iiiber  that  each  side  was  at  libertx'   to  call  six 


40    experts  U|ii)ii    this  i|Uestioii.      We   ealh^ 


hve 


d    the    United 


States,  so  far  as  I  rememb"r,  calleil  only  one.  The  ))ercentajfu 
of  losH  was  thus  stateil.  Brajjje-  at  page  tiO,'),  line  lo,  puts  the 
pei-centage  at  4  jier  cent..  Hanson  puts  it  at  two  per  cent, 
Hainlase  who  proiliici'il  a  book  in  which  he  actually  kepta  record 
of  his  success  in  shooting,  shows,  at  j)agi' (i2l,  that   there   was  a 


very    siiiall   pi 


itay;e    lost,     'i'lie  reason   wh\'   lie    niado   th 


entries    was  that    he    liai 
authorities  to  keep  a  reco 


I    been    asked    by    tlie    Uiiittd    States 
rd.     A  similar  statement  will  be  found 


as  gi\-en  b\-  the  witness  Brown,  who  also   kept  a  book  at  ))age 


50   ti.^l  and  <i.")4.  line  40.     'i'he  result  of  this  evidence  is   that 


not 


III 


ore  than  four  and  |iidl)ably  not  more  than  two  jier  cent,  of  th 


seals  which  are  aetimlh  shot  were  lost. 


Tl 


lere 


is  also    a    statement    here  which,   if  it   were    exactiv 


correct,  wou 


Id     nndoubtedl\-    have    some 


ect.  It  is  that  a 
le  peculiar  iiiHtiiict  of  the  animal,  when 
wounded  starts  directly  to  the  windward.  The  HUggostion  of 
course  is,  that  that  action    of  the  .s<!iil    rcndefH  the   chase    of 


Heal 


froi 


n 


cri 


(10 


piile  more  dillieult.      I  <lo  not  know  where  my  learned  friends 

find  this  evidence.     There  is  a  statement    by  Hanson,  that  seals 

to  till'  windward,  liit  that  does  not  mean  wounded  sealt*. 


anva\s  iro 


Wli 


lell  a  seal  is  wouiideil  he  goes 


away  as  fast  as  he  can  from  the 
hunter,     'i'lie  i|Uestion  of  dii'ection  is  not  a  material  coiiHider- 


ation 


to  tl 


le  wonili 


led  an 


The  next  proposition  with  reference  to  cnnoeH  is  tlli.s  : — That 


213 

(Mr.  Bodwell's  Argument.) 

they  do  not.  go  as  far  away  from  the  schooner  as  the  boats,  and 
therefore  they  did  not  cover  as  much  ground.  That  statement 
is  based  upon  some  evidence  given  by  Captain  Alexander 
McLean  as  follows ; — 

•'  Q.     What  is  tlie  difference  between  the  Indian  method  and 
"  the  method   of  experienced    white    men  ?     A,     The    Indians 
10  "  search  around  the  vessel  in  all  directions,  and  the  white  hunters 
"  generally  sail  ahead  of  the  vessels  in  small  boats. 

"  Q.  And  go  away  from  the  vessel  instead  of  about  her  ? 
A.     "  Yes  sir-" 

Your  Honors  will  observe  that  the  inference  drawn  is  that  of 
the  counsel  and  is  put  to  the  witness  in  the  form  of  a  very  leading 
([uestion.  The  distinction  that  the  witness  was  making  was 
this  :  that  white  men  use  sails  in  their  boats  and  Indians  do  not. 
If  his  statement  goes  any  further  than  that  it  is  not  consistent 
with  the  rest  of  the  evidence.  There  is  a  great  deal  of  evidence 
20  to  show  that  taking  one  day  with  another  the  Indian  canoes 
cover  just  as  much  ground  as  the  white  men  in  boats. 

I  refer  to  the  evidence  of  witness  Smith,  page  1403,  who 
being  examined,  said : — 

"  Q.     Do  the  canoes  proceed  on  ahead  of  the  vessels  and  the 
"  vessels  follow  them  ?     A.     Yes. 

"  Q.  How  many  miles  of  grcund  will  canoes  cover  in  an 
"ordinary  sealing  day  while  sailing?  A.  Twelve  to  fifteen 
"  miles." 

Now  the  evidence  of  Captain  Warren,  at  page   283,  line  5.5, 
30  is  that  this  is   about    the    distance    which  the   boats  usually 
cover : — 

"  Q.  How  far  out  from  the  ship  do  the  small  boats  go?  A. 
"  They  go  just  until  they  can  see  the  masts  of  the  vessel. 

"  Q.  Does  a  steam  vessel  pick  the  boats  up,  or  do  they  re- 
"  turn  to  her  ?  A.  They  return ;  we  do  not  know  where  the 
boats  arc,  and  we  have  to  wait  or  we  would  lose  them 

There  are  also  instances  mentioned  in  the  evidence,  of  canoes 
being  lost  in  the  fog,  which  means  that  they  went  so  far  away 
from  the  vessel  that  they  could  not  see  her  or  hear  the  firing  of 
40  the  cannon  which  was  kept  on  the  vessel  for  the  purpose  of  warn- 
ing the  men  and  giving  them  the  direction  by  which  they  could 
return.  There  is  really  no  eviilence  to  suggest  that  the  boats  go 
further  away  or  pursue  a  difterent  plan  of  hunting  than  the 
canoes.  The  hunters,  both  in  canoes  and  boats,  go  as  far  from 
the  vessel  as  they  dare,  having  regard  to  the  character  of  the 
day  and  the  locality  of  the  seals. 

The  next  suggestion  in  the  argument  is  that  the  Indians 
were  compelled  to  depend  entirely  upon  their  spears,  and  had  no 
guns  with  which  they  could  shoot,  if  the  seals  were  not  in  a 
50  place  where  they  couhl  be  speared.  This  is  not  correct,  for  there 
isanabundanceof  evidence toshow  thatduring  theyearsin  question 
the  Indians  had  guns  and  spears,  both  of  which  they  used.  This  is 
established  by  a  number  of  witnesses.  I  refer  particularly  to 
the  testimony  of  Moss,  page  337,  line  65  ;  Warren,  page  284,  line 
50;  Hanson,  page  615,  line  60;  Jacobson,  page  635,  line  34; 
Buckman,  page  707,  line  58  ;  McLean,  page  741,  line  45  ;  Cox, 
755,  line  12;  Olsen,  page  1041,  line  15,  and  the  .same  witness, 
page  1063,  line  10.  These  witnesses  .show  beyond  a  doubt  that 
the  Indians  had  guns  as  well  as  spears. 
1)0  Your  Honors  will  remember  that  in  several  instances  when 
vessels  were  seized  the  Indians  hid  their  guns,  and  it  ma^'  be 
that  my  learned  friends  have  been  misled  when  examiinng  the 
inventories  which  in  such  instances  do  not  contain  reference  to 
tfuns. 


•  A- 


n; !« 


"lii 


lii\ 


i-  ■' ! 


iU;: 


214 

(Mr.  Bodwell's  Argument.) 

Besides  this  we  have  evidence  that  tlie  Indians  were  very 
succe.sflful  and  handled  their  spears  with  skill.  On  that  point  I 
refer  to  Townsend's  report.  He  of  course  is  speaking  of  a  later 
day  than  1880,  but  they  were  the  same  Indians  in  188G  and  had 
the  same  skill  as  later  on.  They  were  brought  up  to  the  business 
and  their  tribes  had  for  generations  obtained  their  livelihood  by 
10   hunting  with   the  spear.     At  page   17,  he  says: 

"  There  were  27  Canadian  vessels  in  Behring  Sea  and  only 
"11  American  vessels.  The  Canadian  ves.sels  hunting  with 
"  Indian  spearmen  from  Vancouver  and  Queen  Charlotte  Lslands 
"  were  very  successful  while  the  American  vessels  with  the 
"  exception  of  two  or  three  made  poor  catches.  Sealing  with 
"spears  in  Behring  Sea  has  tlierefore  been  protitable  to  Canadian 
"  rather  than  American  ve.s.sels." 

The  catches  also  speak  for  themselves.  Mr.  Peters  has  laid 
before  your  Honors  a  detailed  statement  and  you  see  what  suc- 
20  cess  the  Indians  had  in  hunting  with  spears  and  guns  in  the 
years  in  question. 

In  volume  ',i  United  States  reprint,  page  81.'),  there  is  to  be 
found  the  affidavit  of  Neil  Bond  which  was  used  at  the  Paris 
arbitration,  in  one  paragraph  of  which  referring  to  1887  he  swore 
as  follows : — 

"  1  went  sealing  as  a  deck  hand.  We  had  twenty  canoes 
"  The  Indians  used  spears  except  in  calm  water  when  they  used 
"  shot  guns." 

At  page  201  of  the  United  States  argument  there  is  a 
80   ([notation  from  tiie  evidence  of  Byers  as  follows: — 

"  Q.  You  were  asked  something  about  the  dirterence  be- 
"  twecn  white  intn  anil  Indians.  I  simply  want  to  ask  you  this 
"(juestion:  In  18cS(j  and  1887  were  the  Indians  in  the  habit  of 
"  using  ginis  ;it  all  :*     A.     No. 

"  Q.  Si),  if  you  ha<l  an  Indian  crew  at  that  time  you  would 
have"  to  use  spears  !     A.     Yes,  sir. 

"  Q.  At  that  time  which  was  considered  best,  spears  or 
guns  ;■     A.     (Jun.s." 

But  tlie  witness  is  wrong  there,  as  the  other  evidence  shews. 
40  He  does  not  pretend  to  be  speaking  fi'om  experience,  becau.se  at 
page  81!),  line  8.5,  he  says  that  he  never  hunted  with  an  Indian 
ei'ew.  The  evidence  I  have  (|Uoted  is  the  evidence  of  captains 
anil  mates  who  hunted  with  Indians,  ani]  who  personally  knew 
that  the  Indians  used  guns  and  spears. 

At  four-thirty  p,  m.  the  Connnissioners  rose. 


Commissioners   under    the   Convention   of  February  8th, 

1896,  between  Great  Britain  and  the  United 

States  of  America. 


Legislative  Council  Chamber  of  the  Provincial  Buiidinp;, 

At  Halifax,  N.  S.,  September  3rd,  1897- 

20        The  Cotnmissioners  took  their  seats  at  1 1  A.  M. 

Mr.  Bodwell  : — When  the  Commission  arose  last  evening,  I 
was  dealing  with  the  fact  that  canoes  were  equipped  with 
1,'iins  a.s  well  as  spears,  and  I  think  I  have  said  all  that  I  wish  to 
fttate  to  your  Honors  on  that  point. 

In  another  respect  canoes  had  as  great  an  advantage  in 
seal  hunting  as  boats,  I  refer  to  the  approach  to  the  seals.  We 
have  in  Byer'a  evidence,  page  321,  line  1,  this  statement : — 

"  Q.     The   approach  to  the  seal  I  believe,  is  that  generally 
30  "  done  at  a   fixed  speed  or  slowly  ?     A.     Do  you  mean  the  last 
"  approach  ? 

"  Q.     The  last  approach  !     A.  The  last  approach  is  very  slow. 

"  Q.     After  within  what  distance  ?     A.     Fifty  yards." 

He  also  says  on  page  320,  line  0.^  : — 

"  Q.  In  going  after  a  seal  with  a  canoe  is  it  done  with  a 
"paddle  or  with  oars  ?     A.     With  a  paddle. 

"  Q.  Is  not  the  same  thing  done  with  a  boat  ?  A.  No,  Sir ; 
"  the  boat  is  pu.shed  with  oars." 

Your  Honors  will  see,  as  perhaps  it  is  unnecessary  to  state  to 
40  you,  that  tiie  last  approach  to  the  seal  is  accomplished  very 
(|uietly.  For  the  last  fiftj'  yards  the  canoe  is  paddled  up  with 
great  care  to  within  striking  distance  of  the  seal,  a  boat  is  usually 
sculled  with  an  oar  behind  and  pushed  up  quietly  and  slowly  in 
order  that  a  sliot  may  be  taken  at  the  sleeping  .seal.  It  is 
therefore  quite  apparent,  that  in  that  respect  canoes  would  have 
an  advantage  over  boats  if  carefully  handled. 

The  next  point  taken  in  the  argument  of  the  United  States 
is  that  the  actual  killing  of  the  .seal  with  a  gun  or  with  a  spear 
is  a  matter  requiring  great  skill.     It  is  put  in  this  way  in  the 
•lO   Uidted  States  Brief  : — 

"  If  sufficiently  skillful  to  strike  the  small,  moving  mark,  the 
"  animal  was  drawn  to  the  canoe  by  means  of  a  conj  attached  to 
"  the  .spear  head.  If  however,  the  animal  was  awakened  by  the 
"approach  of  the  canoe,  there  was  little  probability  of  his  being 
"secured,  as  he  would  swim  away  at  a  rate  of  speed  which  pre- 
"  eluded  pursuit." 

The  suggestion  here  is  that  only  the  head  of  the  seal  is  in 
sight,  and  that  as  it  is  in  constant  motion  it  is  a  difficult  mark 
to  hit.  Such  is  not  a  correct  deduction  from  the  evidence,  be- 
(iO  cause  the  mark  is  not  a  small,  but  a  comparatively  large  mark, 
and  further  that  large  mark  is  a  body  at  rest.  In  Byer's  evidence 
page  320,  line  35,  we  havn  the  following: — 

"  Q.  Will  you  tell  us  when  a  seal  is  floating  in  the  water  how 
"  much  you  .see  ?     A.   About  one-third  of  him  is  out  of  the  water. 


'?ii 


,'!;!■ 


w  :;?¥ 


\t-, 


■•Hi  ;: 


\v 


I ': 


l-^i'  ■;! ' 


|:f:;-^ 


1 

Li|| 

:  :! 


fW'i  - 

lie 

(Mr.  Bodwell's  Argument.) 

"  Q.  At  what  distance,  as  a  rule  do  you  fire,  at  that  time  ? 
"  A. — Oh  about  fifteen  yards  as  a  rule. 

"  Q.  Do  you  refer  to  when  they  are  sleeping  ?  A.  When 
"  they  are  sleeping,  yes. 

"  Q.    When  they  are  travelling  do  you  fire  at  a  longer  distance  ? 
"  A.     Yes,  travelling  fire  at  them  all  the  way  up  to  seventy-five 
10  "yards. 

"  Q.  Yes,  but  the  bulk  of  the  seals  are  killed  asleep  ? 
"  A.     Sleeping,  yes  sir. 

"  Q.  That  is  the  way  the  bulk  of  the  seals  are  killed  ?  A. 
"  Yes  sir. 

"Q.  You  say  you  generally  get  within  15  yards  ?  A.  Fifteen 
"  yards,  yes  sir, 

"  Q.     Do  they  lie  still  ?       A.     Yes,  Sir. 

"Q.     They   throw  their  spear  out  about  what  distance  ?     A. 
"  About  eight  yards." 
20      And  further  on  at  page  321,  line  10,  he  sa3's  : — 

"  Q.  Now  when  yet  within  that  close  that  you  describe,  io 
"the  seal,  is  there  any  actual  skill  required  in  shooting  the  seal  ? 
"  A.     No,  not  a  great  deal." 

It  is  apparent,  therefore,  that  there  is  no  very  great  amount 
of  skill  required  and  that  any  ordinary  shot  ought  to  be  able  to 
hit  a  mark  as  large  as  one  third  of  a  seal  lying  still  on  the  water 
at  a  distance  of  15  yards,  and  especially  so  when  shooting  with 
ten  or  twelve  bore  shot  gun. 

There  is  also  a  great  deal  of  corroborative  evidence  as  to 
30  the  amount  of  skill  required  in  the  fact  that  a  great  many 
vessels  with  perfectly  green  hunters — green  in  the  sense  that 
they  had  no  experience  whatever  in  shooting  seals — made  very 
large  catches.  In  1887,  for  instance,  the  "  Favorite "  made  a 
large  catch.  At  page  741,  line  25.  Captain  Lauchlan  McLean, 
was  a.sked  in  cross  examination  as  to  the  skill  of  the  hunters 
engaged  by  him,  and  this  is  his  evidence  : — 

"  Q.  You  had  very  good  hunters  in  1887  had  you  not  ?  A. 
"  Not  very  good. 

"  Q      Anything  unusual  about  their  skill  ?     A.     They  were 
40  "  all  new  men;  they  did  not  know  very  much  about  it." 

Yet  they  took  1878  skins  between  the  8th  of  June  and  the 
27th  of  August, — page  746,  line  50. 

We  have  also  a  witness  upon  the  other  side,  P.  C.  Meyer,  one 
who  is,  to  a  great  extent,  relied  upon  by  the  United  States. 
At  page  1730,  line  1,  he  deposes  as  follows: — 

"  Q.  What  experience  had  you  before  1885  ?  A.  Why  it 
"  don't  require  a  great  deal  of  experience  to  be  a  hunter. 

"  Q.     1  asked  you  if  you   had    any  experience  before  ?    A. 
"  No,  not  before." 
50         And  at  page  1732,  line  25,  he  says  : — 

"  Q.  Both  of  them  are  old  hunters  ?  A.  Yes  sir — was  a  long 
"  time  on  the  old  '  San  Diego.' 

"  Q.  Who  had  the  most  seals,  those  hunters  or  yourself  ? 
"  A.     W^ell,  it  was  about  equal. 

"  Q.  You  could  do  as  well,  about,  as  could  old  hunters  ? 
"  A.  Well  it  did  not  require  a  great  deal  of  skill  to  shoot  seals, 
"  ,ind  sleeping  seals  especially  ? 

"  Q.     According  to  your  experience  it  is  quite  easy  to  shoot 
'■  seals  wherever  they  are  ?     A.     Yes." 
60         "  Q.     And  you  didn't  lose  many  of  them  ?     A.     No. 

"  Q.  The  moment  you  find  them  inu  are  quite  sure  of  taking 
"  them  ?     A.     That  is,  if  I  find  them  sleeping." 

And  again  I  read  at  page  602,  line  30  :  — 

"  Q.     Mr.  Byers,  you  have  already  stated  your    experience 


217 

(Mr.   Bodwell's    Argument.) 

an  a  .seftl  hunter,  and  I  will  not  (fo  over  that.  In  shooting  seals 
"  will  you  tell  nie  how  are  the  majority  shot,  sleeping  or  swim- 
"  ming  ?     A.     Sleeping. 

"  Q.  A  large  majority  of  them  or  not  ?  A.  Yes  sir,  a  very 
"  large  majority  of  them  are  shot  sleeping." 
All  the  evidence  is  to  that  effect.  The  seals  after  becoming 
10  settled  on  the  islands  go  long  distances  to  sea  in  search  of  food 
and  then,  having  satisKed  their  hunger  tliey  sleep  in  calm  days 
on  top  of  the  watei' ;  and  the  peculiarity  of  sealing  in  the  Behring 
Sea  was  that  there  were  far  more  sleeping  seals  than  in  any 
other  hunting  ground.  Along  the  west  coast  of  Vancouver  Island 
and  in  the  Pacific  Ocean,  the  seals  were  on  a  journey  travelling  to 
the  I'ribilof  Islands,  they  only  slept  when  rest  was  necessary, 
liut  having  reached  the  Island.!  they  were  at  home,  and  then, 
(lay  after  day  they  were  found  out  at  sea  feeding  and  sleeping 
as  is  their  natural  coiulition. 
20  Another  peculiarity  of  seal  life  is  referred  to  in  the  brief  of 
the  United  States  as  being  a  great  elt-nieiit  of  uncertainty  in  the 
sealing  Inisiness.  It  is  to  be  found  at  page  ISO  of  the  United 
States  argument,  where  this  is  said  : — 

"  The  seal  has  an  acute  .sen.se  of  smell,  and  can  <letect  the 
"  presence  of  a  hunter  at  a  tlistance  of  three  or  four  hundied 
"yards.  A  canoe  with  Indian  hunters  vvas  at  a  further  disad- 
"  vantage  because  the  seals  taken  by  it  were  necessarilj'  '  sleepers,' 
"  as  the  use  of  the  spear  necessitated  a  close  approach  to  insure 
"  a  successful  cast." 
30  I  submit,  the  latter  statement  is  not  at  all  justified  by  the 
evidence.  It  is  true  that  the  Indians  take  sleeping  seals  when 
t'sy  git  thein,  b'lt  wiieii  th^y  ei'iii)t  liid  sleeping  seals  they 
shoot  at  the  travelling  seals.  The  affidavit  which  I  reail  into  tlie 
evidence  shows  that  Indians  shot  at  seals  whicli  were  travelling, 
with  guns,  and  that  they  took  them  when  sleeping  with  spears. 

The  principal  point,  however,  is  the  ailegiid  uncertainty  of 
catching  seals,  on  account  of  their  acute  sense  of  smell.  It  is 
not  denied  that  the  seals  have  an  acute  sense  of  smell.  It  was 
common  ground  throughout  the  whole  ca.se  on  both  sides,  but 
40  that  peculiarit)-  is  not  confined  to  seals,  for  it  exists  in  the 
case  of  every  other  animal  that  is  taken  by  the  hunters  skill. 
This  sense  of  smell  of  the  seal  was  a  matter  which  was  well 
known,  and  is  overcome  by  approaching  the  seal  from  the  lee 
side.  Here  is  evidence  upon  that  point  which  is  most  satisfac- 
tory and  whieli   explains  the  matter  thoroughly. 

At   page  002  of  the  record,  line  58  in  Bj'er  s  evidence  the 
following  is  set  forth  : — 

"  Q.     There  is  some  question  here  as  to  seals     leing  able  to 
"  .scent  a  long  way  off';  is  that  the  case  ?     A.     Yes,  sir. 
50         "  Q.     And    is    that  a   practical    dilKculty,  and  how  do  you 
"  overcome  it?     A.      We  overcome  it  by  keeping  to  the  leeward 
"  of  them  all  the  time. 

"  Q.     Is  there  any  difficulty  in  doing  that  ?     A.     Yes,  quite 
"  a  difficulty. 

"  Q.     But  you  overcome  it  in   that  way?     A.     Oh,  ye:i,  we 
'  can  overcome  it. 

"  Q.     Do  you  fail    to  get    many    shots  on    account  of  their 

"  smelling  you  ?     A.     It  don't  often  happen  except  in  a  sudden 

"  change  of  the  wind.     A  sudden  change   of  the  winil  may  put 

()()  "  you  out.     And  we  ma}'  find  ourselves  to  the   leeward  and  still 

"  lie  to  windward  with  the  sudden  cl:;in'.,fe  of  the  wind. 

"  Q.     And  that  happens  in  all  kinds  of  hunting?     A.     Not 
"  only  seals,  but  everything  else.'' 

That  is  so  common  sense  a  statement  tliat  no  comment  need 


218 


'•]:! 


(Mr.   Bodwell's   Argument) 

be  made  u-  '"n  it.  The  liuntein,  when  they  start  out  in  the 
morninr;,  have  the  direction  of  the  wind,  and  when  they 
find  the  seals  they  govern  their  action  accordingly.  It' 
there  was  a  sudden  change  in  tlie  wind,  it  is  true,  they  might 
Hiid  tliL'ir  calculation.s  upset,  but  that  happotis,  your  Honors,  in 
all  kinds  of  hunting  ;  not  oidy  in  the  hunting  of  seals,  but  with 
10  all  other  aidmals.  1  think  we  need  not  concern  ourselves  with 
that  head  of  dirticulty,  as  it  is  one  which  is  very  easily  overcome, 
and  which  the  evidence  shows  was  overcome  by  all  of  the  hun- 
ters in  all  cases,  except  under  unusual  circumstances  which 
they  could  not  control. 

The  next  point  raised  bj'  the  United  States  counsel  in  their 
brief  is  more  serious,  and  if  it  were  correct  would  be  a  matter  to 
be  carefully  considered  liy  your  Honors.  It  is  found  at  page  IHO 
of  the  Lnited  States  argument,  and  reads  as  follows: — 

"The  Indians  who  came  from  tribes  along  the  west  coast  of 

20  "  Vancouver  Island  were  ignorant  and  superstitious.  Several 
"  in.stanci's  appear  in  the  Record  (which  willl  be  given  more  in 
"detail  hereafter)  where  a  sealing  voyage  was  brought  to  an 
"abrupt  end  through  some  superstition  or  ignorant  fancy  of  the 
"  Indian  hunters,  arising  from  the  sickness  of  one  of  their 
'  numbei-,  the  loss  of  a  canoe,  a  prolonged  season  of  rough 
"  weather,  the  stubborn  determination  to  retin'n  home,  or  some 
"  other  cause  which  oidy  the  Indians  themselves  could  explain  " 
There  are,  no  doubt,  a  number  of  instances  in  the  Record 
where  voyages  were  interrupted  on  account  of  trouble  with    the 

30  Indians,  but  the  cause  of  that  trouble  was  in  nearly  every 
instance— I  believe  there  are  only  two  exceptions — the  fear 
which  the  Indians  had  of  seizure  by  the  revenue  cruisers  of  the 
United  Suites  :  and  the  Indians  had  good  cause  for  fear.  Wo 
know  that  in  the  year  188C  the  Indians  of  the  "Anna  Beck" 
were  sent  adrift  in  their  canoes,  and  were  obliged  to  paddle  all 
the  way  down  to  their  homes,  across  that  portion  of  the  Pacific 
Ocean  lying  between  Sitka  and  the  west  coast  of  Vancouver 
Island.  On  that  journey  several  of  them  were  lost.  This  news 
was  spread  abroatl  amongst  the  Indians  of  the  coast,   and   they 

40  were  naturally  afraid  of  being  seized  when  they  went  to  the 
Behring  Sea.  Not  onl}'  s;),  but  when  the  seized  Indians  were 
taken  in  charge  by  the  United  States  authorities,  they  were 
not  lieated  with  any  great  regard  to  their  feelings.  They  were 
allowed  to  get  their  feed  in  the  very  best  way  they  could  ;  they 
were  simply  set  adrift,  and  wo  have  the  evidence  of  .some  of  the 
impiisoned  masters  pnd  mates  that  they  paid  for  the  food  of 
their  Indian  crew  out  of  their  own  money.  The  result  was  that 
the  huliai!.-*,  having  suffered  these  hardships,  were  afraid  of 
being  seized,  and  the  record  is  full  of  instances  of  trouble  with 

50   them  on  that  account. 

Paxton,  at  page  180,  line  40  of  the  record,  tells  the  story  of 
the  Indians'  sufferings;  and  Hansen  speak.s  of  his  case  in  1887, 
and  says  at  page  302,  line  40,  that  he  had  to  leave  because  the 
Indians  were  afraid  and  would  not  work — they  were  afraid 
because  of  the  seizures.  At  poge  307,  line  10  of  Reppen's  evi- 
dence, we  find  that  the  .same  thing  occurred,  and  at  page  144.5, 
lines  25  and  30,  Jacobson,  who  was  speaking  of  the  year  1889, 
8a)'s  as  follows  : — 

"Also  I  had  more  trouble  with    the  Imlians  the  year  before. 

GO  "  We  did  not  think  there  woidd  be  any  seizures  this  j'ear,  and  I 
"  could  get  Indians  to  go  up  without  any  trouble." 

He  was  speaking  of  his  trouble  in  securing  a  crew  of  Indian 
hunters,  and  when  he  a.ssured  them  that  tliere  would  be  no 
seizure    there  was    no    difficulty,    but   .so    long   as    the  Indians 


210 


(Mr.    Bodwell'H   Arfjument.) 

thought  there  were  likely  to  be  seizures,  he  had  very  great 
trouble  in  inducing  them  to  go  into  Behring  Sea.  Also  at  page 
1401  of  the  evidence,  line  10,  speaking  of  the  voyage  of  the 
"  Little  triumph,"  Smith  says  :  that  the  Indians  refuse(l  to  work, 
and  I  suppose  my  learned  friend  might  put  this  down  as  a  ease  of 
mutiny,  because  on  page  1451,  line  40,  the  woid  "mutiny"  is  used. 
10  Mr.  Lansing  : — VVouid  you  kindly  read  that  reference  to 
Ueppen's  pvidence,  that  you  referred  to. 

Mr.  Bodweil : — I  will  read  it  but  it  will  necessitate  an 
explanation  that  I  intended  to  make  later  on  in  my  argument. 
It  is  as  follows,  page  307,  line  10: 

"  Q.  And  when  did  you  leave  the  Behring  Sea  ?  A.  We 
"left  on  the  14th  or  15th  August. 

"  Q.  Why  did  you  leave  on  the  14th  or  1.5th  August?.  A. 
"  Well,  the  Indians  wanted  to  go  home. 

"  Q.     Did  they  object  to  remaining  any  longer  ?     A.     Yes, 
20  "  they    were   afraid    I  think.     They    objected    to   staying   any 
"  longer. 

"  Q.  They  were  not  used  to  going  to  Behring  Sea  I  .suppose  ? 
"  A.     No.  Sir." 

And  fijrther  on  at  the  same  page,  line  65,  he  says  : — 

"Q.  VVhy  did  you  go  further  east  ?  A.  I  do  not  know — 
"  it  was  the  captain's  opinion. 

"  Q.  Did  you  hear  of  any  seizure  then  ?  A.  Yes,  we  spoke  the 
'  '  Anna  Beck  '  in  the  beginning  of  August  and  they  told  us  that 
"  some  schooners  were  seized." 
30  I  submit  it  is  a  fair  inference  from  the  evidence  just  read 
that  what  the  Indians  had  heard  aboiit  was  the  seizure,  and  that 
the  fear  of  the  seizure  made  them  iinxioiis  to  go  home.  I  suppose 
that  is  the  point  to  which  my  learned  friend,  Mr.  Lansing, 
referred. 

To  continue  my  previous  remarks,  I  was  referring  to  the 
place  where  the  word  mutiny  occurred.  It  is  in  the  evidence 
(if  Smith,  referring  to  the  voyage  of  the  "  Little  Triumph,"  and 
is  to  be  found  on  page  1405,  line  40  : — 

"  Q.     When  the  Indians  refused  to  launch  their  boat  on  the 
30  ■'  2Cth  August  ?     A.     25th. 

"  Q.  You  sealed  on  the  25th.  On  the  2Gth  August  they 
"  based  their  refusal  on  the  ground  that  the  cutter  would  come 
"  along  anil  seize  them  ?     A.     Yes,  Sir. 

"  Q.  Did  you  tell  them  that  there  was  no  fear  of  that  ? 
"  A.     That  had  been  the  trouble  the  whole  season. 

"  Q.  Did  you  tell  them  that  there  was  no  danger  of  that  ? 
"  A.  I  tried  to  quiet  them  down,  and  told  them  that  from 
"  instructions  I  received  from  the  captain  that  they  were  out  of 
"  the  track  of  the  cutters. 
■50  "  Q.  And  finally  when  you  did  come  out,  you  did  not  cuiue 
"  out  liecause  you  were  warned,  but  because  the  Indians  would 
"  not  lower  their  canoes  ?  A.  On  account  of  the  mutiny  of  the 
"  Indians. 

'•  Q.  You  and  the  captain  would  hot  have  come  out,  would 
"  you,  if  it  had  not  been  for  the  Indians?  A.  No,  we  would 
"  not  liave  come  out. 

The  mutiny  of  the  Indians  was  not  caused   by  any  super- 
stitious fear,  but  was  due  entirely  to  the  dread  of  .seizure  by  the 
cutter,  and  that  is  made  very  clear  in  the  evidence  at  page  1401, 
<iO  line  10  :— 

"  Q.  Why  did  they  refuse ;  what  reason  did  they  assign  for 
"  refusing  to  go  out  ?  A.  The  main  reason  was  that  they  were 
"  in  constant  terror  of  running  across  a  cutter,  or  a  cutter  running 
'  across  us  and  seizing  us." 


ii  (8  ' 


:  lifli^ 


ii: '  f 


I 


:; . 

m 

!^        '^H 

1       'im 

m 

in 

i^ 

m 

TT 


mm* 


tfi.i 


ito 

(Mr.   Bodwell's   Argumunt.) 

Your  Honors  will  remoinljL'r  tho  ciisu  of  tlio  "  Little  Triuiii])li," 
she  was  warned  liy  the  rovenup  cuttur  before  tlioy  went  into  the 
Behrin^  Sua.  Honio  of  tlie  Imiians  iitiderstooil  En^dish,  and 
havini;  heard  the  words  used  by  tho  ottieer  of  tiio  revemio  cutter 
of  the  United  States,  were  frij^htened  ;  but  the  captain  quieted 
them  l)y   sayinj;  that   lie   knew  of  a  liuntin;j  place   whore  seals 

10  were  to  lie  found,  and  where  the  revenue  cutters  would  not 
come.  By  that  moans  lie  induced  the  Itnlians  tojro  into  the  .sea. 
They  were,  however,  not  thoroujibly  satis'ied,  and  still  dreaded 
the  approach  of  the  cutter,  and  that  foar  of  seizure  increasing 
became  at  last  so  (freat  that  they  refused  to  work  at  all.  It  was 
not  II  superstitious  fear,  tho  outcome  of  bad  luck,  or  based  on 
the  sickne.ss  of  one  of  their  number,  but  it  was  a  fear  founded 
upon  <;ood  jj;round,  namely,  the  possibility  that  in  spite  of  the 
precautions  taken  the  United  States  reviinuo  cutter  might  still 
seize  tliem.     In  that  event  they  expected  to  suffer  great  hardships. 

20  There  is  only  one  authentic  case  of  the  existence  of  mutiny 
on  board  a  ship  by  an  Indian  crew  ;  that  is  the  case  of  the 
"  Sapphiie  "  in  1890.  In  that  year  ('aplain  Co\  told  us  that  the 
Lidians  broke  up  their  spears  anil  decided  to  go  home,  and  ho 
had  to  go  with  them.  The  reason  was  that  there  was  a  sic  - 
man  on  lioard  the  vessel.  The  Indians  thought  he  was  somewhat 
of  a  Jonah,  as  the  captain  put  it,  and  tln'y  refused  to  stay  in 
the  sea.  Tiiat  is  the  onlj'  instance  in  tho  record,  of  a  voyage 
being  broken  up  by  reason  of  .■superstition,  or  of  any  peculiar 
phase  of  the   Indian   character.     There  is   another  case   which, 

30  perhaps,  my  learned  friends  will  say  was  a  case  of  superstitious 
fear,  although,  generally  speaking,  it  is  not  considered 
so.  Hansen  tolls  us  ,it  page  GIG  of  the  record,  liiii!  10,  that  he 
came  home  one  year  because  his  Indians  would  not  work  on 
Sunday. 

If  your  Honors  will  refer  to  the  list  of  ves.sels  we  have  cited 
in  our  argument,  you  will  see  that  it  extomls  over  a  period  ^f 
five  years  and  comprises  over  thirty-three  vessels,  a  large  majority 
of  which  were  manned  with  Indians,  and  it  being  shown  that  out 
of  that    record  of    voyages    there  is  only    one  instance    wliero 

40  Indian.--,  refused  to  work  for  a  supoistitious  cause,  I  fjsk  you  is 
there  any  ground  for  supposing  that  the  superstition  of  the 
Indian  is  an  clement  of  uncertainty  which  can  enter  to  any  great 
extent  into  the  business  of  seal  bunting.  That  record  will  com- 
pare favourably  with  tho  record  of  any  of  business  in  any  part 
of  the  world  where  vessels  arc  used. 

There  is  another  matter  which  speak.s  for  itself  in  this  con- 
nection. Since  the  legulations — 1  think  1  am  justified  in  referring 
to  these — were  made  at  Paris,  the  sealing  busine.ss  has  been  al- 
most exclusively   conducted  with  Indian    crews.     Thi.-  hunters 

50  are  not  allowed  to  use  guns  in  Behring  Sea  since  that  time,  and 
therefore  Indian  ciews  are  eniploj-ed.  During  all  these  years 
vessels  have  gone  out  in  the  sealing  business  and  have  returned 
with  largo  catches.  Surely  with  a'  tlieso  facts,  we  may  say 
that  no  reason  is  shown  why  your  Honors  should  take  the 
superstition  of  the  Indian  into  consideration  as  a  real  ditHculty 
in  tiie  sealing  business. 

The  argument  of  the  United  States  then  proceeds  to  say  at 
page  ] 80  ;— 

"Another   peculiarity  of  tho  Indian  hunters  was  that  they 

60  "  were  unwilling  to  start  sealing  when  there  was  foggy  weather. 
"  As  fogs  are  so  frequent  in  Behring  Sea,  it  is  apparent  that  this 
"  fear  or  superstition  of  the  Indians  must  have  tended  to  greatly 
"  mollify  their  efficiency  and  to  reduce  their  value  as  seal  liunt- 
"  ers  when  compared  with  white  men." 


Ml 

(Mr.    fiodwcM's    Arf^iiment.) 


Tliin  Ntateinent  is  haNorl  on  the  obHervation  of  one  witnoss. 
It  is  in  the  evidence  of  the  witness*  Reppen,  page  308,  line  22. 
If  your  Honors  will  refer  to  the  record  upon  this  point  you 
will  find  it  is  ii  statement  made  bj'  him  at  the  very  end  of  his 
cross-examination.  It  is  not  dilated  upon  in  his  evidence  and  is 
niereiy  n  remari<  thrown  in  by  the  way.  It  apparently  did 
10  not  attract  tlie  attentioi.  of  counsel,  for  there  was  no  re-exani- 
iiintion  upon  it.  He  says  in  his  evidence : — "  The  Indians  did  not 
'  ^'o  out  in  fojrjjy  weather."  There  is  a  great  deal  of  evidence  to 
contradict  this  statement,  but  I  wish  only  to  refer  your  Honors 
to  a  few  instances. 

At  page  2Ml  of  the  record  there  was  read  into  the  notes 
several  extracts  from  the  diary  kept  by  Captain  Warren  in 
command  of  the  Dolphin  in  1886.  There  are  several  instances 
liiere  mentioned  of  canoes  going  out  in  foggy  weather.  For 
instance,  at  page  281,  line  40: 
20  "  Q.  On  the  12th  July,  how  many  .seals  did  you  take  ?  A.  31. 
The  canoes  ha<l  to  stay  close  to  the  vessel  on  account  of  the  fog." 

Therefore  they  did  not  make  a  very  large  catch,  they  were 
bound  to  stay  close  to  the  vessel,  which  was  the  case  as  well 
with  boats  as  with  canoes  on  a  foggy  day.  At  line  20,  page  282 
of  the  eviilence  af  the  same  witnesses,  there  is  the  following: — 

"  On  the  28th  July  we  got  43  seals,  fair  at  noon,  foggy  con- 
"  .siderably  so.     On  the  Slst  of  July  we  got  18G  seals." 

"  Q.  What  sort  of  weather  had  you  on  that  day  ?  A.  Thick 
"  fog  in  the  morning  antl  did  not  lower  the  boats  until  9  o'clock." 
30  The  question  I  am  now  discu.ssing  was  not  very  prominent 
lit  that  time  we  were  taking  this  particular  piece  of  evidence, 
and  if  we  had  (,'aptain  Warren's  book  now,  there  is  no  doubt 
that  we  could  read  of  many  other  cases  where  the  canoes  had 
put  out  in  foggy  <lays.  I  have  enquired  for  that  book  but  I  find 
it  was  not  left  with  the  Secretary  of  the  Commission. 

There  is,  however,  other  evidence  in  the  record  which  is  quite 
satisfactory  and  quite  pertinent.  In  1889  the  "  Beatrice  "  lost 
three  canoes  in  a  fog.  That  is  to  be  found  in  McKiel's  evidence, 
page  671,  line  4.5. 
40  In  the  evidence  of  Owen  Thomas,  page  1767  we  have  this 
statement: — 

He  was  sailing  on  the  '  Black  Diamond  '  in  1889,  and  was 
seized  on  the  11th  of  July.     I  read  from  page  1767: — 

"  Q.  What  kind  of  a  day  was  it  on  the  10th,  so  far  as  sealing 
"  was  concerned  ?    A.    It  was  a  pretty  good  day,  Sir ;  a  fair  day. 

"  Q.  Any  seals  in  sight  ?  A.  There  was  none  around  the 
"  vessel,  but  a  little  distance  off  we  caught  them. 

"  Q.     On  the  11th.  af  what  time  of  the  day  were  you  seized  ? 
A.    A  little  after  12  o'clock,  Sir,  between  twelve  and  one. 
50         "  Q.     Were  the  boats   out  ?     A.     Yes,  they  were  all  out  Sir, 
"  well  I  had  them  all  in  before  he  got  alongside  of  me,  before  the 
"  cuiter  got  along.side  of  me." 

Further  down  on  the  .same  page  he  testifies  as  follows  : — 

"  Q.  Was  it  a  good  sealing  day  ?  A.  They  would  have  had 
"  one  hundred  more,  I  believe,  if  they  had  been  left  alone.  It 
"  cleared  up  nicely  ;  it  was  thick  as  could  be  all  the  morning." 

Then  on  page  768  he  says  : — 

"  Q.     Was  there  any  herd  of  seal  in  sight,  a  quantity  of  seal  ? 
"  A.    Well  I  could  not  see  any  from  the  vessel,  but  they  woulil 
60  "  (irobably  get  them  all  the  .same,  Sir.     I  told  them  in  themorn- 
"  ing  not  to  go  any  further  than  they  could  hear  the  horn." 

The  canoes  were  out  sealing,  but  it  was  so  foggy  he  could  not 
.see  them,  and  he  warned  the  canoes  not  to  go  any  further  than 
they  could  hear  the  horn.     At  page  769  he  testifies  : — 


'Mr 


I.'    ,; 


irfp^f 

'^^^v 

!   !:-■ 

1  :; 

S28 

(Mr,   Bodwell's   Argument.) 

"  Q.  And  if  you  had  not  been  seized,  were  they  intending  to 
"  po  out  ?  A.  Tiiey  would  have  went  out  in  the  afternoon,  but 
"  they  would  not  in  the  morning.  I  stopped  them  my.self  because 
'■  it  was  too  thick." 

This  refers  to  tlie  stern  boat. 

We  have  also  another  bit  of  evidence  on  the  same  point.  The 
10  log  of  the  "Favorite"  in  1888  is  in  evidence,  and  she  was  hunt- 
ing with  boats  and  canoes.  I  refer  to  some  extracts  from  that  log 
which  indicate  what  happened  in  the  ordinary  course  of  a  voyage 
in  the  Sea.  For  instance,  here  is  the  entry  for  Suntlay  the  12th  of 
August : — "  This  day  begins  with  cloudy  weather  ;  light  breeze  ; 
''sea  lumpy;  dense  fog;  light  breeze  and  lumpy  sea;  canoes 
"  lowered  ;  dense  fog  at  intervals  ;  high  sea  and  light  breeze." 

Further  on ; — 

"  Thick  fog  ;  lumpy  sea,  one  boat  lost"  (this  is  in  the  after- 
noon, 7  p.  m.)  At  t',  p.  m.  "  Dense  fog  ;  light  breeze  ;  all  boats 
20  and  cnnoes  aboard."' 

Also  on  August  13th. :  "  Weather  overcast ;  slight  sea,  pass- 
"  ing  banks  of  fog  ;  at  S  a.  m.,  chmdy  sky,  sinooth  sea,  but 
"  threatening  banks  of  fog  on  the  horizon  ;  canoes  and  boats 
"  lowered." 

The  canoes  and  boats  were  lowered  at  the  very  time  when 
these  bnriks  of  fog  were  aroimd  the  horizon.     Again  on  the  14tli.: 

"This  day  begins  with  a  calm,  but  high  short  swell  from  the 
"south  wist;  sky  cloudy  and  overcast  with  occasional  slight 
"  glimpses  of  the  sun  ;  canoes  anci  boats  lowered  ;  heavy  mist 
30  "  hanging  over  head."     On  apparently  the  same  day,  later  on  : 

"  All  boats  and  canoes  aboard  ;  moie  or  less  fog  through  the 
"  day  ;  plenty  of  seals  in  all  directions  ;  catch  214." 

Ayain  on  the  20th  August: 

"  This  (lay  b(  gins  witli  hazy  weather  ;  light  breeze  ;  lumpy 
"sea  ;  canois  and  boats  lowered  ;  pa.ssing  fog  banks  with  indica- 
"  tions  of  clearing  up." 

Again  on  the  27th  August : — "  Heavy  banks  of  fog  pa.s.sed 
"  during  the  watch,  which  caused  us  to  fire  cannon." 

'i'hat  was  because  the  boats  anil  canoes  were  out  in  the  fog. 
40  They  took  ()uite  a  number  of  seals  that  day  also. 

1  need  not  weary  your  Honors  b}'  referring  further  to  the 
record  on  this  ipiestion.  The  position  is  established  that 
ordinarily  tliere  is  no  diH'i-rence  between  the  movements  of  boats 
and  canoes  in  fogi,'y  weather. 

On  the  very  next  page  of  the  argument  there  is  a  reference 
to  till!  unusually  inclement  character  of  the  weather  in  Ikhring 
Sea,  and  thi'  inference  is  drawn  that  on  account  of  the  great 
frequency  of  the  fogs  and  this  peculiarity  of  the  Indian  hunters, 
there  must  necessarily  have  been  a  very  small  catch  with  the 
.50  Indians  and  canoes.  Hut  this  ])roves  too  much.  I  will  first  read 
tlic  statement,  and  the  authority  on  which  it  is  based,  and  I  will 
showyoui-  Honors  that,  if  it  were  true  that  Indians  do  not  hunt 
in  fog,  we  could  shew  very  small  rrsults  from  vessels  carrying 
Indian  hunters.  The  statement  is  that  "  there  is  perhaps  no 
body  of  water  on  the  face  of  the  glolie  where  the  meteorological 
conditions  are  more  urdavorable  for  fair  weather  than  Behring 
Sea."  The  authority  for  that  is  (iuote<l  from  the  American 
Reprint,  Volume  2,  page  90,  and  the  reading  there  is; — 

"  From  .May  to  Nov-Miil)er,  inclusive  (the  period  when  the 
CO  "  majority  of  the  seals  are  on  land),  the  mean  temperature  is 
"  I'etween  41°  and  42"  F''' during  August,  the  warmest  month, 
'■'  the  mean  is  47.  2'  F''  during  the  warm  months  of  June,  July 
"and  August  the  highest  temperature  reached  was  02°,  which 
"  occiiired  but  once  in  eight  years,  and  the  lowest  was  28,  which 


288 

(Mr.    Bod  well's   Argument.) 

"  was  reached  but  once  during,  the  same  period.  This  constanc}' 
"of  temperature  is  furtlier  supplemented  by  tiie  absence  of  sun- 
"  shine  and  the  almost  continual  presence  of  fogs,  rnists,  or  light 
"  rains.  During  eight  years  the  mean  percentage  of  cloudiness 
"  on  the  islands  for  the  months  of  June,  July  and  August  was  92 ; 
"  while  during  that  period  of  eight  years,  consisting  of  seven 

10  "  hundred  and  thirty-six  days,  but  eight  clear  days  occurred, and 
"  during  the  months  of  August  not  one." 

It  thai  assertion  is  correct,  and  I  have  no  doubt  it  is  based 
upon  actual  observation,  and  if  it  is  true  that  Indiat.s  do  not  go  out 
in  the  foggy  weather,  we  would  have  had  no  respectable  catches 
at  all  from  vessels  manned  by  Indian  hunters  ;  but  your  Honors 
have  before  you  a  statement  made  up  by  my  friend,  Mr.  Peters, 
which  shews  that  the  catch  of  Indian  hunters  in  canoes  compares 
very  favorable  with  the  catch  of  white  hunters  in  boats,  and 
as  those  catches  must,  in   the  very  nature  of  things,  have  been 

20  largely  made  during  foggy  weather,  it  demonstrates  beyond  all 
possibility  of  doubt  that  Indians  hunted  in  foggy  weather 
just  as  frequently  as  white  men  did. 

There  is  another  point  made  at  page  121  of  the  United  States 
argument,  vyhich  perhaps  is  not  so  very  important,  but  is  still 
Wdrthy  of  mention,  that,  if  the  contention  of  (Jreat  Britain  is 
true  that  a  great  majority  of  seals  could  Iiave  been  taken  in  a 
comparatively  small  area,  the  firing  of  the  guns  from  one  canoe 
would  have  a  tendency  to  frighten  the  seals  so  much  that  the 
canoes  or  boats  of  another  ship  would  have  very  little  chance  of 

30  success.  These  expressions  in  our  printed  argument  must  uU  be 
understood  in  the  relative  sense  in  which  they  are  used.  It  is 
true  that  we  have  to  do  with  a  comparatively  small  area;  but 
that  comparatively  small  area  is  not  an  a^rea  in  which  the  firing 
of  guns  from  one  boat  would  necessarily  frighten  seals  hunted 
by  canoes  or  boats  at  a  distance  of  one,  two  or  three  miles  awaj'. 
The  evidonce  is  this,  that  the  boats  start  out  together,  but  they 
radiate  from  the  schooner  to  a  distance  of  eight,  nine  or  twelve 
miles,  as  the  case  may  be,  they  cover  a  large  surface  of  sea,  and 
there  is  no  likelihood  at  all  that  the  firing  of  the  guns  from  one 

40  boat  would  frighten  seals  which  were  several  miles  away  and 
being  pursued  by  hunters  in  another  boat.  With  reference 
to  Indian  hunting  with  spears,  it  would  tiot  apply  at  all,  as 
there  would  be  no  noise.  Here  is  a  bit  of  evidence  on  the  point 
I  am  just  making,  in  the  evidence  of  McKeil,  pnge  .S29,  line  60. 
The  question  is  this  : 

'■  Q.  Now,  )'ou  roam  around  the  sea  a  good  deal  looking  for 
"  seals,  don't  you  ?  You  don't  stay  in  one  place  ?  A.  Not  if 
"  there  are  no  seals  there. 

"  Q.     Sometimes  sail  fifty  or  seventy  miles  a  day  ?     A.    Yes, 

■)0  "  I  have  been  further  than  that  in  twenty-four  hours  looking 
"  for  them." 

I  shall  have  occasion  to  mention  later  on  that  these  distances 
are  all  consistent  with  our  contention  tliat,  within  certain 
limits,  there  were  well  defined  grounds  in  which  it  was  known 
that  seals  could  always  he  found,  sometimes  in  one  spot  within 
those  limits,  sometimes  in  another,  but  always  in  places  easily 
reached  in  a  few  hours  by  the  vessels  in  the  Sea 

With  reference  to  the  conditions  of  weather  generally,  and 
the  fre(]uency  of  fogs  and  storms,  the  evidence  is  that  fogs  do  not 

(iO  stop  sealing.  It  is  a  fog  accompanied  by  wind  whielt  stops 
sealing,  and  the  strength  of  the  wind  necessary  is  one  which 
blows  from  20  miles  an  hour  and  upward  ;  boats  have  been 
out  even  in  that  kind  of  weather.  It  is  not  denied  that 
sealing  in  Behring  Sea  is  carried  on  under  certain  ilifliculties ; 


,i! : 


mi: 


I- 1 


M-  , 


m  *'N 


(Wi 


224 

(Mr.    Bodwell's    Argument.) 

but  the  hunters  take  seals  in  fog  anr]  wind,  and  they  remain  out 
and  hunt  so  long  as  their  boats  can  live  in  the  sea.  When  they 
have  a  number  of  fine  days,  comparatively  calm  days,  they  make 
very  large  catches.  When  they  have  rough  days  they  make 
small  catches ;  but  they  make  catches  in  stormy  as  well  as  in 
calm  weather.  Another  thing  which  all  the  evidence  tends  to 
10  prove  is  that,  although  there  are  fog-t,  they  are  not  continuous  ; 
in  the  morning  it  may  be  very  thick,  and  then  it  may  clear 
up  and  be  fine  for  several  hours,  afterwards  the  fog  mpi,y  settle 
down  again.  On  the  point  I  am  referring  to,  Byers'  evidence  is 
material,  page  320,  line  12  : — 

"  Q.  Now,  has  fog  any  effect  on  you  ?  A.  Fog  has  often 
"  effect  when  there  is  wind ;  in  calm  weather  fog  has  no  effect, 
"  only  except  it  is  very  foggy,  and  then  we  cannot  see  the  seal  as 
"  far  as  we  could  when  it  was  clear. 

"  Q.     But  do  you  put  the  boats  out  in  calm  foggy  weather  ? 
20  "  A.     Decidedly,  yes. 

"  Q.  So  far  as  lowering  the  boat  is  concerned,  fog  does  not 
■'  stop  you  ?     A.     No,  fog  and  calm  weather  don't  stop  us. 

"  Q.     The  fog  and  wind  does  ?     A.     Yes. 

'■  Q.     Now,  did  3'ou  use  guns  and  horns  for  the  purpose  of 
•     "  letting  the  boats  knew  where  you  are  in  a  fog.     A.     Yes,  Sir." 

The  evidence  is  clear  on  that  point. 

Mr.  Lansing: — Is  this  in  reference  to  Indian  hunters  or 
whites  ? 

Mr.    Bodwell : — With    reference    to    the     sealing     business 

30  generally.      The    evidence    discloses    practically    no    difference 

between  Indians  and  whites  with  reference  to  going  out  in  a  fog. 

At  page  319,  line  CO,  this  evidence  is  also  drawn  from  the 
witness  with  referenccto  the  capacity  of  the  canoes  to  stand  the 
weather : — 

"  Q,  Is  there  any  difference  between  the  canoe  and  the  boat 
"  so  far  as  their  being  able  to  stand  the  sea  is  concerned  ?  A.  I 
"  think  that  they  hunt  in  just  as  rough  weather  in  canoes  as  we 
"  do  in  boats,  although  I  have  never  had  experience  in  running 
"  canoes  myself,  but  I  have  seen  canoes  out  in  just  as  rough 
40  "  weather  as  I  would  care  tj  put  boats  out  in. 

"  Q.  Now,  with  regard  to  the  weather  that  you  actually  fish 
"  seals  in,  what  kiiid  of  weathei'  is  the  best  for  fishing  seals? 
"  A.     Calm  days. 

"  Q.  But  do  you  confine  your  fishing  to  calm  days  ?  A. 
"  No,  Sir. 

"  Q.  What  weather  do  you  fish  in?  A.  Well,  we  fish  in 
"  some  very  rough  weather. 

"  Q.     What  actually  stops  you  ?    A.  What  actually  stops  us  is 
wind.     In  these  days  nothing  but  wind  stops  us  in  the  sea. 
i^O  "  Q.     To  what  extent  would  there  lie  wind  before  j'ou  would 

"stop  sealing?     A.     I  presume  about  twenty  miles  an  hour. 

"  Q.  You  would  .seal  up  to  that  you  mean  ?  A.  Yes,  we 
"  have  often  had  to  reef  our  sails  when  opr  boats  were  out 
"  before  the}'  got  aboard." 

Also,  there  is  evidence  from  the  witness,  Alexander,  called  by 
the  other  side,  and  upon  whom  they  rely  to  a  very  eonsiderable 
extent.  At  page  474,  lines  10  to  30,  he  says  in  substance  that 
upon  vcrij  rough  ddj/n  seals  are  not  easy  to  be  had.  Ke  makes 
a  distinction  in  his  evidence,  which  is  consistent  with  the  siate- 
GO  ments  of  all  the  witnesses  called  on  our  side. 

Ilnynor,  another  witness  called  iiy  the  United  States  and 
relied  on  by  tliein,  page  52.t,  line  32,  .says  : — 

■'  Q  Now,  to  enter  into  the  matter  of  taking  seals,  what 
"  are  the  conditions  which  would  modify-  the  number  which  can 


225 

(Mr.    Bodwell's   Argument.) 

"  be  killed  ?  A.  Well,  the  state  of  the  weather.  If  it  is  rain- 
"  ing,  or  strong  winds,  or  anything  of  that  kind,  the  seals  do  not 
"  sleep  very  well.  And  in  a  strong  breeze  of  wind  you  cannot 
"  get  on  to  them." 

The   evidence   is   that   they    sleep   not  only   on   calm   days 

but  on  stormy  days  also ;  in  a  very  strong  wind,  or  on  a  very 

10  stormy  day,  it  goes  without  saying  that  the  seals  are  restless  and 

hard    to   get,    not   only  from   their  own   habits   but    from   the 

difficulfy  of  handling  a  boat. 

There  is  another  statement   made  at  page  183  of  the   United 
States  argument  with  reference  to  .seal  habits : — 

"  Atmospheric  changes  tend  to  effect  the  seals  and  to  cause 
"  them  to  be  wakeful  and  alert." 

But  this  is  so  only  in  a  qualified  sense,  not  in  the  unlimited 
sense  in  which  the  language  is  used  throughout  the  argument  for 
the  United  States.  1  quote  again  : — 
20  "  There  are  in  their  natures  some  peculiarties  as  yet  unex- 
•'  plained,  and  perhaps  unexplainable,  w'lich  caused  them  to  be 
"  aroused  when  the  hunters  expected  to  find  them  sleeping. 
"  Hunger  is  another  cause  of  restlessness,  for  when  seeking  its 
"  food  the  seal  is  in  constant  motion,  diving,  leaping,  and  form- 
"  ing  a  most  difficult  mark  for  a  hunter." 

I  fail  to  find  any  justification  in  the  record  for  this  reference 
to  the  unexplainable  peculiarities  of  .seal  habits.  I  do  not  know 
that  there  is  a  case  in  which  any  hunter  expected  to  find  a  seal 
quiet  when  he  was  hunting  for  food,  or  expected  to  find  him  asleep 
30  when  it  could  be  seen  that  he  was  awake.  The  hunters  can  tell 
from  his  position  in  *'..e  water  whether  the  seal  is  awake  or 
asleep,  ami  they  govern  their  actions  accordingly.  There  is 
really  nothing,  1  submit,  in  the  evidence  u))on  which  this  rather 
broad  statement  can  be  founded,  that  there  are  those  unexplain- 
oble,  peculiar  characteristics  of  tlM3  seal,  which  upset  all 
calculations  and  movements  of  the  hunters  in  their  efforts  to 
take  them. 

The  conclusion  is  then  drawn  from  the  whole  of  the  evidence 
that  from  the  20th  to  the  25th  of  August,  the  gales,  becoming 
40  more  frequent  and  increasing  in  their  intensity,  compel  the 
cessation  of  all  profitable  seal  lumting;  I  will  have  occasion  to 
draw  your  .Honors'  attention  to  these  matters  at  a  later  stage  of 
my  argument,  and  I  hope  I  will  be  able  to  shew  that  there  is  no 
good  reason  for  saying  that  the  weather  from  the  20th  of  August 
on  was  so  mateiially  different  from  the  weather  at  other  seas(4ns 
of  the  year,  that  seal  hunting  could  not  be  prosecuted  with 
success  during  the  latter  part  of  August  and  the  month  of 
September. 

Another  statement  is  made,  which  is  of  rather  more  import- 

50  ance  ;  it  is,  that  this  stormj'  weather  is  local  in  Behring  Sea  and 

not  general  in  its  character.     That  inference  is  not  borne  out  by 

the  evidence,  for  instance,  Hackett,  page  G5!),   line  35,  is  asked 

this  i|UeHti()n  : — 

"  Q.  When  you  speak  of  bad  weather,  I  suppose  you  refer 
"  merely  to  just  wha*  you  exparienced  in  a  certain  locality,  and 
'  not  to  the  general  weather  for  the  season  ?  A.  When  we 
"have  bail  weather  in  Behring  Sea  it  is  generally  all  over. 

"  Q.     The  same  kind  of  weather  all  over  the  Sea  ?     A.     As  a 
"  rule  that  has  been  my  experience." 
(10         This  was  on  cross  examination. 

An  example  is  given  at  page  1M2  of  the  United  States  argu- 
ment of  the  local  character  of  the  stormy  we'ather  by  citing  the 
experience  of  the  "  .Mary  Ellen  "  and  tin?  "  Sawyard."  It  is  saiil 
that  "  the  '  Mary  Ellen,'  used  as  a  typical  vessel  by  Groat  Britain 


If?    , 


Tpipjr 


226 

(Mr.   Bodwell's   Argument.) 

"  for  the  purpose  of  computing  a  probable  catch,  was  in  Behring 
"  Sea  in  August,  1886,  twenty-nine  days,  during  which  time  she 
"  had  fifteen  days  of  weather  so  rough  that  it  was  impossible  to 
"  lower  a  boat.  The  '  W.  P.  Say  ward  '  during  twenty-four  days  of 
"  the  same  month,  had  but  eleven  in  which  her  canoes  could  be 
"  lowered." 
10  Now,  .then,  if  your  Honors  will  refer  to  the  chart  shew- 
ing the  position  in  which  the  vessels  were  captured  by  the 
United  States  revenue  cutters,  (and  these  charts  will  be  before 
you  later)  you  will  find  that  the  "  W.  P.  Say  ward  "  was  seized  in 
almost  the  same  locality  as  the  "Dolphin."  Warren  is  cross- 
examined  on  that  point,  page  284,  line  10.  That  very  thing  is 
put  to  him.  I  will  not  read  the  evidence;  but  the  effect  of  it  is 
this  ;  his  attention  was  called  to  the  fact  that  the  "  Mary  Ellen  " 
had  ver}'  stormy  weather,  while  he  appeared  to  have  very  good 
days,   and    lie   said    the    reason    was    that   he    was  down  near 

20  Bogosloft",  where  he  was  protected,  whereas  the  "Mary  Ellen" 
was  out  in  a  more  open  part  of  the  sea  ;  the  evidence,  therefore, 
does  not  shew  that  the  storms  were  local  in  their  character,  but 
that  there  were  certain  positions  in  the  Sea,  which,  from  the 
conformation  of  the  .surroumiing  land,  rendered  the  vessel  less 
exposed  to  rough  weather  than  she  would  have  been  in  other 
part.s. 

A  statement  is  made  here  as  to  the  lowering  days,  and  it  is 
said  the  "  Adams"  in  1887  had  only  fourteen  lowering  days  out 
of  thirty      That  is  a  very  fair  average  of  lowering  days.     In  our 

30  argument  we  do  not  pretend  that  every  day  was  a  lowering  day 
01-  that  seals  could  be  taken  at  all  times.  We  have  made  a 
ver}'  fair  average  upon  that  point.  We  have  taken  the  "  Mary 
Ellen  "  and  the  proportion  there  is  68  days  out  of  120  as  lower- 
ing (lays.  In  ail  our  calculations  the  proportion  of  sealing  days 
has  been  made  up  on  that  basis.  Now  the  lowering  day.s  of  the 
"Adams"  compare  very  favorably  with  that — fourteen  out  of 
thirty.  Then  they  state  that  the  "Triumph  "  was  in  the  Sea  for 
45  days  and  had  only  17  lowering  days. 

The  Commissioner  on  the  part  of  the  United  States  : — Is  there 

40  any  point  in  your  printed  argument  where  you  make  that  com- 
putation ? 

Mr.  Bod  well : — Yes,  your  Honor,  I  will  come  to  it  in  a 
moment.  The  evidence  in  respect  to  the  "  Triumph,'  as  I  was 
about  to  observe,  is  very  incomplete.  It  vvas  given  by  Mr.  Edgar 
Crowe  Baker,  who  was  not  upon  the  schooner.  The  captain, 
Dafiiel  .McLean,  could  not  ba  produced  as  a  witness  before  the 
Commission,  and  wo  have  no  explanation,  whatever,  of  the 
character  of  her  voyage  or  of  the  circumstances  surrounding  it. 
No  very  strong  inference  can  be  ilrawn  from  the  fact  of  her  only 

oO  having  had  seventeen  lowering  days.  There  might  have  been 
many  reasons  for  this  not  known  to  your  Honors,  for  lack  of 
evidence.     The  argument  proceeds  : 

"  In  1800  the  same  vessel  with  white  hunters,  who,  not  being 
"  induonced  by  the  fear  of  fogs,  lowered  in  weather  which 
"  would  have  prevented  Indian  hunters  from  sealing,  was  in  the 
"  sea  42  daj-s,  and  in  that  time  had  liut  1.')  which  were  not  too 
"  unfiivoralile  for  her  boats  to  be  used." 

Now  that  is  scarcely'  a  fair  statement,  because  the  e'.iilence 
is  conclusive  tlmt  the  year  1890  was   an   exceptionally  stormy 

60  season,  one  in  which  the  weather  does  not  compare  favor- 
ably at  all  with  that  of  otiier  years.  Captain  Cox  himself 
says  it  was  on  wccount  of  the  inclement  nature  of  the 
Weather,  that  he  returned  home  that  year  with  a  very  small 
catch.      I   submit,  therefore,   that   you    cannot   agree   with  the 


227 

(Mr.  Bodwell's   Argument.) 

inference  drawn  here,  that  they  possibly  lowered  more  days 
tlian  a  vessel  manned  by  Indian  hunters  would  have  lowered. 
The  real  explanation  is,  that  it  was  a  very  bad  year  throughout, 
and  therefore  there  were  few  days  on  which  seals  could 
lie  taken.  We  have,  as  I  stated  a  moment  ago,  based  all  our 
calculations  upon  the  hypothesis  that   there  would    be  in  each 

10  month    a   comparatively    small   number    of   lowering  days,  for 
instance  in  the  year  1889,  at  page  73  of  our  argument,  a  year  . 
that  we  contend  was  a  good  3'ear,  and   a   very  favorable  season 
lor  sealing,  we  have  this  statement : — 

"  The  '  Mary  Ellen '  had  IG  lowering  days  in  August  between 
"  the  1st  and  2.5th,  when  she  stopped  sealing. 

"  The  '  Ariel  '  had  13  lowering  days  between  the  14th  and 
"  .Wth  of  July  ;  but  of  these  the  IGth,  17th,  19th,  21st  and  24th 
"  were  not  full  days.  On  the  30th  she  lost  a  boat  and  spent 
"  some  time  in  looking  for  it ;  between  the  5th  and  18th  August 

20  "  there  were  11  lowering  days ;  but  the  5th,  10th,  16th  and  18th 
"  were  not  full  days  .  .  ." 

•'■  The  '  Viva  '  lowered  21  days  between  the  Gth  and  30th  of 
'■  July,  and  15  days  between  5th  August  and  the  21st,  on  which 
"  latter  day  the  return  voyage  was  begun. 

"  The  '  Juanita '  was  seized  on  the  31st  July.  She  bpgan 
"  sealing  on  the  3rd,  and  between  that  and  the  30th  had  17 
"  lowering  days. 

"  The  '  Favourite '  entered  the  Sea  about  the  13th  of  July, 
"  and  from  that  day  to  the  end  of  the  month  had    15   lowering 

30  "  days  ;  in  August  there  were  16  lowering  days  up  to  the  25th 
"  when  she  stopped  sealing." 

In  the  chapter  on  the  method  of  computing  the  est'mated 
catch,  at  page  81,  we  set  out  the  number  of  lowering  days  which 
the  '  Mary  Ellen  '  had  in  1880,  and  although  it  was  an  exception- 
ally good  season  and  she  made  a  very  large  catch,  this  is  the 
statement  of  the  operations  of  her  hunters :  DeFries  had  in 
August  15  whole  days  and  three  half  days;  Jacobson,  15  whole 
days  and  4  half  days  ;  Julian,  16  whole  days  and  4  half  days  ; 
Lorenzo  15  whole  days  and  4  half  days  ;  Dillon,  16  whole  days, 

40  4  half  days.  In  making  up  our  calculation  for  the  estimated 
catch  we  based  it  on  this  proposition,  page  82,  of  the  argument 
for  Great  Britain  • — 

"  The  '  Mary  Ellen  '  had  five  men  who  were  in  the  sealing 
"  waters  24  days  in  August.  This  would  be  equal  to  one  man 
"  for  120  days,  but  there  were  51  half  days  in  which  no  hunting 
"  was  (lone,  leaving  68|  actual  hunting  days  for  one  man. 
"  During  these  68|  days  953  seals  were  taken,  not  including  the 
"  47  taken  by  the  stern  boat  in  10  days ;  this  is  equal  to  14  seals 
"  per  day  for  the  one  man  power  at  work." 

50  All  our  calculations  of  the  amount  of  probable  catch  are  based 
upon  the  proportion  as  the  number  of  lowering  days  on  the 
"  Mary  Ellen  "  is  to  the  number  of  supposed  lowering  days  on  the 
uLher  vessel  in  question.  We  do  not  pretend  that  the  sealing 
was  such  that  the  boats  could  go  out  every  day.  The  very  fact 
that  such  large  catches  were  made  under  such  circumstances 
shows  that  when  the  weather  is  moderate  the  taking  of  seals  is 
11  matter  of  very  great  ease,  and  can  be  carried  on  with  remarka- 
ble success. 

At  page  184  another  matter  is  taken  up  and  made  a  great 

CO  ileal  of  ;  it  is  a  suggestion  that  tlie  success  of  sealing  depends  upon 
the  skill  and  experience  of  the  captain.  I  have  already  quoted 
considerable  evidence  upon  that  point ;  but  supposing,  for  the 
sake  of  argument,  that  it  is  true,  what  is  there  to  show  that  the 
vessels  in  respect  of  which  we  claim  weie  not  in  connnand  of  able 


fn-" 


f: 


nm 


f  ife^ 


111  11 


i'!i. 


if 


^1  ill  *^ It  ■■■U 


(t,\i 


i         11  'j 


li 


"i^^^ 


rn 


228 

(Mr.   Bodwell's   Argument.) 

and  experienced  men,  Who  were  the  good  captains  ?  Where 
did  they  live  ?  There  is  Cox,  Baker,  Hackett,  O'Leary,  Warren 
and  Jacobson.  These  men  are  residents  of  Victoria,  and 
they  were  on  the  vessels  in  question.  And  even  if  it  were 
a  fact  that  the  success  of  the  voyage  depended  so  much  upon 
the  skill  and    experience  of   the  captain,  the    evidence  is  that 

10  we  had  skilled  and  experienced  captains.  Your  Honors  are  not 
here  to  speculate  upon  what  might  have  happened  if  there  had 
not  been  skilful  and  experienced  captains  in  command  of  the 
ships  in  question. 

Upon  this  point,  however,  the  argument  of  the  United  States 
has  gone  to  a  far  greater  length  than  the  evidence  will  justify-. 
I  call  attention,  without  reading,  to  the  following  pages  with 
regard  to  it  — 

O'Leary,  page  292,  line  10 ;  Moss,  page  388,  line  10  ;  and 
Cotsfunl,  page  385,  line  GO,  where  he  says — "  You  would  always 

20  "  be  sure  of  getting  seals  but  not  of  the  amount."  And  Smith  at 
page  141>G,  line  60,  where  the  catch  was  made  by  a  captain  who 
had  never  been  in  the  sea  before.  And  Myers  at  page  838,  line 
50;  and  McLean  at  page  423,  line  CO,  and  page  420,  line  10. 

Having  covered  the  subject  in  this  general  manner  there  are 
in  the  argument  of  the  United  States  long  quotations  from  the 
testimony  of  three  witnesses,  and  it  is  stated  that  that  is  really 
the  whole  of  the  evidence  upon  the  point.  The  first  extract 
is  from  the  statement  of  Coptain  Alexander  McLean,  a  witness 
relied    on    very   strongly    by    the  United   States.     To  such  an 

30  extent  is  this  the  case  that,  before  commenting  on  the  particular 
extract  set  out  in  the  argument,  I  desire  to  take  a  general 
review  of  his  evidence. 

McLean  is  first  introduced  as  an  expert  on  the  value  of  seal- 
ing vessels,  and  later  on  he  is  put  forwatfl  as  a  man  thoroughly 
competent  to  pronounce  upon  every  question  relating  to  seal  life. 
He  gives  in  his  evidence  the  history  of  his  early  life,  and  from 
that  we  may  form  a  judgment  as  to  how  far  he  has  been  quali- 
fied to  speak  as  an  expert  on  the  value  of  vessels. 

At  page  400  we  have  his  eviu<^nce  in  chief,  and  it  appears  that 

40  he  was  born  in  Cape  Breton,  and  remained  in  the  Eastern  Pro- 
vinces engaged  in  mackerel,  fishing  ui.tii  1880,  when  he  went  to 
San  Francisco.  He  next  appears  as  master  of  the  steamer 
"  Douglas  ".  When  he  was  cro.ss-cxaminuc^  these  statements  were 
qualified  to  a  certain  extent.  He  says  he  canic  *o  San  Franci.sco 
in  1S80,  to  Victoria  in  1881,  and  that  in  1882  he  went  to  Alaska 
in  connection  with  a  mining  enterprize.  Subset  uently  he  came 
back  to  Victoria  and  from  there  he  went  to  Mussachusetts ;  be 
was  then  travelling  about  from  one  place  to  another.  Then  he 
went  to  Cape  Breton  and  came  back  to  San  Fran  'isco. 

50  At  page  400,  line  GO,  Captain  McLean  makes  a  rather  peculiar 

statement.  He  saj's  that  he  was  navigator  and  ooat  steerer  of 
the  "San  Diego"  in  1883i  It  is  not  appfr..iit  to  the  casual 
observer  how  these  two  positions  could  b;-  united  in  the  one 
person.  It  is  not  the  usual  course  of  thirgs;  and  it  is  also  a 
question  how  it  could  happen  that  McLean,  though  he  was  out  in 
the  boats  sealing,  could  also  take  the  observations,  which  he  sa3's 
were  entered  by  him  in  the  ■■hips  daily  log.  It  is  difficult  to 
undeistanil  how  he  could  occupy  at  tli*.  same  time  che  position  of 
navigator  and  boat-steerer,  the  lowest  and  hiyiiest  positions  which 

GO  a  man  could  fill  on  board  a  sealing  vessel.  His  fancj'  has  been 
playing  him  several  tricks  with  reference  to  this  voyage,  for  we 
also  lind  that  he  had  himself  written  down,  as  master  of  llie  ship, 
in  this  book  I  hold, which  was  produced  by  him,  and  he  only  erased 
the  entry  two  or  three  months  before  the  giving  of  his  evidence 


229 

(Mr,   Bodwell's   Argument.) 

at  Victoria.  The  whole  of  his  testimony  as  to  the  crnise  of  the 
"  San  Diego  "  in  1883,  is  extremely  mythical  and  unsubstantiated 
by  other  facts  in  evidence. 

At  any  rate  the  "  San  Diego  "  in  that  year  was  not  upon  a 
sealing  voyage,  at  least  that  was  not  the  main  object  of  her  cruise. 
She  started  walrus  hunting,  and  when  she  got  to  Behring  Sea  the 
10  master  and  crew  found  seals  and  took  a  comparatively  small 
number,  the  skins  of  which  they  brought  to  Victoria  and  sold  at  a 
high  price. 

In  1884,  McLean  was  on  the  "  Favorite,"  but  he  did  not  go 
to  the  Behring  Sea.  In  1885  he  went  to  Behring  Sea,  and  was 
also  there  in  188C  and  1887.  In  the  following  years  he  seems 
to  have  been  in  Behring  Sea  regularly  as  a  .sealer.  In  1884  he 
was  taken  into  partricrship  by  Charles  Spring  and  in  that  way 
lie  became  part  owner  of  the  "  Onward,"  "  Kate,"  and  "  Favorite." 
This  partnership  continued  until  188C,  and  is  referred  to  at  page 
20  890.  It  is  quite  evident  that  he  had  not  verj-  great  experience 
in  the  buying  of  sealing  vessels  as  appears  from  his  own  evidence. 
At  pane  459,  line  50,  he  says: — 

"  Q.  Now  you  said  j-ou  had  a  good  deal  to  do  with  the  sale 
"  of  ve^-sols,  and  that  you  sold  several  vessels  ?  I  have  the 
"  names  of  them  here  that  you  said  you  sold,  and  I  ask  j'ou  if 
"  you  yourself  had  .something  to  do  with  the  selling  of  some 
"  ye.ssels.     A.     Yes,  sir. 

"  Q.     How  many  ve.ssels  had  you  actually  to  do  with  the  sale 
"  of  ?     A.     I  liave  been  interested  in  three  vessels. 
30         "  Q.     You  had  something  to  do  with  the  selling  and  buying 
"  of  three  vessels  ?     A.     Yes,  sir. 

"  Q.  Outside  of  that  had  you  anything  to  do  with  the 
"  purchase  or  sale  of  a  vessel  ?  A.  Not  here,  excepting  them 
"  three. 

He  refers,  I  suppose,  to  the  three  Spiing  schooners. 

"  Q.  Had  you  anywhere  else  except  here  ?  A.  I  had  in 
"  San  Francisco. 

"  Q.     What  vessels  did  you    buy 
"  inspected  vessels  for  other  parties. 
40         "  Q.     How  many  ?     A.     I  think  three  or  four. 
What  vessels  were  they  ? 


"Q- 

'  Lewis.' 

"Q. 
"Q- 

'sealer  ? 


in  San   Francisco  ?     A.     I 


A.     The  '  James  Hamilton 


Was  she  a  sealer  ?     A.     Yes,  sir. 

The  other   was  the  steamer   '  Alexander,'  was  she  a 

A.     Yes,  sir. 
The  other  wa.')  the  schooner  '  Bonanza,'  was  she  a  sealer? 
A.     Yes,  sir. 

"  Q.     These  are  the  three  vessels  you  inspected  ^     A.  Yes,  sir. 
"  Q.     Did  you  make  a  bargain    for  the  purchase  ?     A.     For 
50  "  one  of  them. 

"  Q.     Only  one  of  them  ?     A.     Yes.  sir. 

"  Q.     Which  one  ?     A.     That  was  the  '  John  Hamilton  Lewis.' 
"Q.     When  was  that  ?     A.     In  1890,  I  tlunk. 
"  Q.     And    the  other  vessels   you    simply    inspected    to   see 
"  whether  they  were   suitable   vessels   or  not  ?     A.     Yes,  sir,  to 
"  see  if  they  were  worth  the  money  asked  for  them." 

I  think  it  is  fair  to  conclude  on  that  evidence  that  Captain 
McLean  was  called  in  to  inspect  the  vessels  as  to  their  sailing 
capacity  and  quality  of  sealers.  I  submit  that  it  does  not 
tiO  follow  that  he  was  called  in  to  value  the  vessels.  At  any  rate  it 
is  perfectly  clear  that  he  had  had  no  very  great  experience  in 
buying  or  selling  vessels  either  at  Victoria  or  San  Francisco.  It 
is  a  fair  inference  also  that  his  being  taken  into  the  firm  of 
Spring   and    Company    was  for  the  purpose  of  managing  the 


,'t| 


i   ft- 


:.:tii 


'i'i.;; 


;i-i 


I'ii' 


Mk 


230 


N  li 


(Mr.  BodwelTs   Argument,) 

vessels  on  their  scaling  voyages.  He  learned  something  of  the 
cost  of  vessels  from  tlie  prices  paid  bj'  the  partnership,  but  out- 
side of  that  it  was  not  his  business  to  value  that  class  of 
property.  Now,  if  a  man  who  simply  from  his  experience  in 
the  .senling  occupation  is  to  be  taken  as  an  expert  in  regard  to 
the  value  of  vessels — and  I  do  not  say  that  one  does  not  acquire 
10  a  ceitain  knowledge  in  tliat  manner — what  n-ason  is  there  for 
taking  the  evidence  ot  McLean  against  men  of  the  same  class, 
who  have  had  larger  experience?  For  instance,  why  take  the 
opinion  of  McLean  in  preference  to  that  of  (.\iptain  Warren  ? 
This  uum  came  to  N'ictoria  in  1886  ;  for  years  before  McLean  was 
on  the  coast  at  all  Warren  was  building  vessels  at  Victoria,  was 
operating  many  trading  schooners  there,  was  engaged  in  the 
business  of  sealing  and  had  the  best  reason  in  the  world  for 
ac(|uiriiig  accurate  knowledge  of  the  cost  of  vessels  and  their 
adiiptibility  for  sealing  purposes.  It  was  his  business,  and  he 
20  acquired  knowledge  not  merelj'  as  a  navigator,  but  as  a  man 
who  had  to  buy  and  pay  for  vessels. 

Why  should  you  take  the  evidence  of  McLean  in  preference 
to  that  of  Sieward,  one  whom  your  Honors  will  remember  as 
a  shrewd  business  man,  absolutely  uninterested  in  any  claim 
before  the  commission.  In  the  year  1S8U  and  1887  he  was  a  mem- 
ber of  the  film  of  Hall,  Goepel  &  Co.,  who  were  contemplating 
entering  into  sealing  operations  on  a  large  scale. 

Mr.  Lansing  : — Where  is  that  evidence  in  the  record  ? 
Air.  Piodwell  : — At  page  1.57,  line  00,  the  evidence  is  that 
30  he  was  the  man  selected  to  purchase  the  vessels.  For  that 
purpose  he  made  carefid  encjuiries  and  went  iiito  the  matter 
thdioughly.  1  say,  therefore,  that  there  is  every  reason  to  accept 
his  evidence  and  to  consiiler  him  a  thoroughly  competent  man, 
i'orliv!  made  it  his  business  to  enquire  into  the  value  of  vessels. 
Why  accept  the  opinion  of  McLean  with  his  limited  and  casual 
knowledge  as  against  that  of  a  man  who  investigated  the 
subject  for  the  very  purpose  of  ascertaining  the  state  of  the 
market  and  the  exact  status  of  affairs  at  Victoria  ? 

Mr.  Lansing  : — At  the  time  referred  to  he  was  not  a  paitner. 
40  Mr.  Bodwuli .- — I  think  my  friend  is  right  in  that,  but  he 
became  a  member  that  year,  and  Mr.  Sieward  was  doing  then 
exactly  what  he  would  have  been  doing  if  ho  had  been  a  partner 
at  the  time.  He  was  acting  in  the  same  manner  as  if  he  had 
been  an  actual  partner  at  the  time. 

Or  wlij'  take  .McLean  as  against  Gaudin  ?  He  came  to 
Victoria  in  188(j  ;  and  at  that  time  he  held  a  master's  certificate 
from  the  British  Board  of  Trade.  He  has  been  connected  with 
ve.ssel  building  and  ship|)ing  interests  ever  since  at  Victoria,  and  is 
a  man  of  high  standing  and  respectability  there.  He  is  now,  and 
,50  has  been  for  years  agent  of  the  Department  of  Marine  and 
Fisheries  at  Victoria.  Why  does  he  not  know  as  much  about 
the  price  of  vessels  as  McLean  ? 

Take  also  the  evidence  of  Mr.  Collister  who  is  absolutely  dis- 
interested. He  came  to  Victoria  twenty-one  years  ago  and  has 
resided  there  ever  since.  For  thirteen  years  he  occupied  the 
position  of  Inspector  of  hulls  for  Lloyds  Underwriters.  His 
business  was  to  acquire  knowledge  of  the  value  of  vessels  at 
Victoria,  Why  set  aside  his  opinion  because  Captain  McLean, 
who  purchased  one  or  two  schooners  in  Victoria  and  inspected 
GO  three  vessels  in  San  Francisco,  chooses  to  give  you  a  contrary 
opinion  ?  Which  one  is  to  iie  preferred  ?  Surely  it  goes  with- 
out saj'ing  that  the  man  who  lived  in  the  place,  and  whose  busi- 
ness lequired  him  to  acquire  knowledge  of  the  value  of 
vessels  at  Victoria,  is  the  one  whos^  statement  is  to  be  accepted. 


281 

(Mr.   Bodwell's   Argument.) 

Or  why  set  aside  the  evidence  of  Walker  ?  Here  hi  a  man 
very  well  qualified  to  give  correct  information.  He  began  to 
acquire  his  knowledge  of  shipping  on  the  Clyde  and  took  a  full 
five  year.s  course  as  an  apprentice.  In  1871  he  built  two  steamers 
at  Port  Franci.i,  from  there  he  went  to  Cftlifornia.  Ho  came  to 
Victoria    in  1875    and  from    that   time  was  engaged  avS  a  ship 

10  owner.  He  built  steamers  and  lepaired  vessels,  The  point  is 
niaile  in  the  United  States  that  he  and  some  other  builders  who 
were  called  a.s  witnesses  did  not  build  sealing  vessels ;  it  just 
happened  that  in  1887  and  perhaps  for  two  or  three  years  about 
that  period,  sealing  vessels  were  not  built  at  Victoria.  But 
other  ships  were  built  there.  There  is  no  magic  in  the  word 
"  sealing."  A  man  building  ships  is  competent  to  tell  what 
would  be  the  cost  of  a  sealing  .schooner,  which  is  simply  a  ship  of  a 
(iitl'urent  style.  In  1884  he  was  appointed  measuring  surveyor 
for  the  port  and  occupied  that  position  for  some  time.     Later  on 

20  he  has  been  in  business  as  a  coal  merchant.  The  whole  cause  of 
that  man's  experience — his  experience  in  the  Red  River  country 
— in  San  Francisco,  in  Victoria,  and  the  duties  performeii  by 
him  there,  would  give  him  an  education  upon  the  value  of  vessel 
which  would  enable  him  to  give  a  competent  opinion.  His  evi- 
dence is  detailed  on  that  point ;  he  gives  reasons  for  his  judgment 
and  the  reasons  are  conclusive. 

Or,  why  set  aside  the  evidence  of  Charles  Spring,  a  man 
brought  up  in  the  sealing  business  ;  William  Spring,  his  father, 
was  engaged  in  this  occupation  for  many  years  at  Victoria,  and 

30  Cliarles  Spring,  during  his  whole  life,  lias  been  connected  with 
the  trade  of  sealing  vessels,  ami  ho  has  in  that  way  acquired  by 
actual  experience  a  large  fund  of  information  whicli  renders  him 
competent  to  proiioutice  upon  the  subject  with  authority. 

This  leaves  out  of  sii;ht  altogether  that  other  class  of  testi- 
raony  which  wo  called,  of  disinterested  witnesses,  men  engaged 
ill  ship  building. 

Again,  McLean  poses  before  us  as  an  expert  in  sealing.  I 
admit  that  he  has  experience  on  that  point,  but  in  what  respect 
is  his  experience  greater  than  that  of  other  witnesses.     In  what 

40  respect  does  he  possess  knowledge  unknown  to  Warren  ?  While 
McLean  was  enjoying  himself  in  Halifax  and  other  places  in  his 
peculiar  way,  Warren  was  engaged  in  the  sealing  business  on 
the  west  coast  of  Vancouver  Island.  It  is  not  pretended  that 
the  seals  become  different  animals  when  they  enter  the  Behring 
Sea ;  they  travel  and  sleep,  and  their  life  generally  is  the  same 
in  either  localit}'.  Warren  had  vessels  during  these  years 
engaged  in  sailing  operations,  and  many  of  the  men  engaged  by 
him  went  into  the  Behring  Sea.  How  much  greater  experience 
had  McLean  ?     If  you  leave  out  the  voyage  of  the  "  San  Diego," 

50  he  had  the  advantage  of  these  other  captains  by  just  one  season, 
and  in  so  far  as  that  voyage  is  concerned,  it  did  not  give  him 
any  advantage,  for  the  men  who  went  out  without  his  experi- 
ence found  the  seals  and  made  comparatively  about  the  same 
catch  as  McLean. 

If,  it  is  suggested,  that  because  of  his  occupation  in  sealing 
in  recent  years  lie  had  special  experience,  in  what  way  does  he 
come  before  us  with  better  credentials  than  the  others  I  have 
referred  to  ?  I  have  already  spoken  of  ihe  qualifications  of  the 
men  who  were  engaged  in  sealing  in  1886.     Let  us  consider   the 

60  men  of  later  years.  I  have  referred  quite  largely  to  the  evidence 
of  Byers.  Your  Hononi  will  remember  that  man.  His  demeanor, 
while  giving  evidence,  was  everything  that  could  be  desired.  Mr, 
Dickinson  cross-examined  him  with  great  skill,  but  was  unable 
to  find  any  fault  with  his  testimony.     That  man  came  to  Victoria 


•i  n 


!,  "j.; 


^m    '            '  "^ 

■''     ii' 

:«   i 

li!' 


{Ill 


i« 


Ui 


!'',;.! 


^Im  ;' 

,  i^ 

282 


(Mr.  BodwoH'H  Argument.) 

in  188G.  He  began  as  a  boat  steerer,  and  workeil  bis  way  up 
as  a  bunter,  mate,  captain  and  vessel  owner.  Every  year  since 
he  has  been  on  voyajros  to  Behrinjj  Sea.  What  is  it  that  McLean 
can  tell  us  about  .seal  huntinjj  that  liyers  does  not  know  ?  In  what 
respect  is  McLean  a  bolter  witness  ?  I  suinit  that  we  are  far 
more  justified   in   accepting    the   statement   of  Byeis    than   of 

10  McLean. 

Or  what  advantage  has  McLean  over  VV.  Baker,  a  man  who 
has  been  higli  liner  as  a  scaling  captain  in  every  year;  from 
his  tirst  voyage  he  has  made  most  Huccessfnl  catches;  or 
Hackett,  a  man  of  large  experience.  Both  the.se  men  were 
absolutely  uninterested  ;  or,  0.  N.  Cox  or  O'Leary,  or  Louis 
Olson,  who  has  been  out  ever  since  1880,  or  Jacobson,  a  very 
successful  man.  Do  you  suppose  that  McLean  knows  anything 
that  Jacobson  cannot  tolls  us  ?  What  has  been  the  record  of 
that  man  ?     He;  entereil   the   business    without  experience,  and 

20  has  acijuired  wealth  in  its  pursuit ;  leaining  the  subject  in 
all  its  branches,  going  out  as  a  hunter  year  after  year,  as  well 
as  being  the  owner  of  sealing  vessels  actually  operating  in 
the  8ea. 

I  do  not  object  that  my  Icarnofl  friends  opposite  should 
indulge  in  a  mild  form  of  hero  worship,  if  Captain  McLean  is 
the  character  tboy  would  so  elevate;  but  when  be  is  paivided 
here  as  the  one  whose  opinion  is  to  be  taken  witiiout  ([ucstion 
on  all  ])ointH  it  is  well  to  examine  bis  credentials  and  see  to  what 
extent   he   is  entitled   to  maintain   the  extravagani  pretensions 

30  that  are  put  forward  on  bis  behalf.  I  submit  that  be  is  only  an 
ordinary  sealing  ca))tain,  able,  no  doubt,  to  give  us  ini'urtiiation, 
and  if  he  were  willing  to  give  exact,  and  accurati'  iiiiurmation, 
liis  statements  woulil  have  weight.  But  I  say,  his  opinion,  where 
opinions  ditl'er,  is  not  to  be  taken  as  against  tlie  witnesses  that 
we  have  ctilleil,  and  inasnnieh  as  our  witne.sses  are  l)etter  ([ualiHed, 
have  more  experience,  and  make  a  bettei'  appearance,  the  weight 
of  evidence  is  with  us  in  every  case  of  diH'erence. 

It  seems  also  that  .some  comuK^nt  should  be  made  upon  the 
manner  in  whicli  Captain  McLean  gave  his  evidence  before  tlie 

40  Commissions.  For  instance  as  to  liis  experience  in  the  value  of 
sealing  vessels.  We  have  a  statement  from  him  of  about  25 
vessels  on  pages  404,  40.5  and  406  of  the  Record,  in  wliich  he 
assumes  to  remember  the  names,  tonnage,  origin,  and  otlier  par- 
ticulars about  the  ships  mentioned.  We  have  also  a  statement 
from  him  of  the  .sale  of  l.'J  vessels,  and  he  purports  to  give  us 
the  exact  facts  in  regard  t(3  the  price  of  8.  Now,  your  Honors 
will  remember  tliat  Captain  McLean  gave  that  evidence  without 
any  note  or  memoranda  to  refresh  his  memory.  We  know  that 
lie  had  no  pei'.sonal  interest  in  these  ti'ansactions  which  would 

."JO  give  him  a  rea.son  for  remembering  them.  Your  Honors  would 
naturally  assume,  therefore,  that  be  was  a  man  with  a  very 
retentive  an<l  accui'ate  memory  inasmuch  as  he  is  able  to  carry 
in  bis  minil  all  of  these  transactions  (jver  so  many  years  But 
you  will  be  di.sappointed  if  y<m  tbiidv  bis  recollection  is  so 
retentive  and  accurate  as  to  enable  bim  to  speak  of  these  things 
without  refreshing  bis  memory.  We  are  driven  to  the  con- 
clusion that  these  particulars,  the  prices  obtained  for  ves- 
.sels,  wei'e  stated  by  him  from  in(|uiries  he  bad 
made       recently       in      Victoria,       and       if      so,      it      would 

CO  liave  been  nuicli  more  satisfactoi-y  to  your  Honors  if 
tlie  original  sources  of  his  information  had  been  pre- 
sented to  }ou.  You  cannot  rely  upon  Captain  McLean's  memory 
for  be  lias  not  a  retentive  one,  and  he  is  not  always  accurate 
in  the  statements  be  makes. 


S88 

(Mr.  BckIw^U'h  Aiyuniont.) 

On  page  413,  line  50,  \w  Mays:  tlio  "  Lilly  L.  "  was  sold  in 
1887  for  $l,r)()(),  but  wlich  Mr.' Thornh-y  is  put  in  tlio  box,  lie 
^'ives  the  price  at  which  the  "Lilly  L. "  sold  in  1887  as  a  very 
(liHerent  one  than  that  stated  by  Captain  McLean.  On  page 
172;{  Mr.  Thornley  says: 

"The    .schooner    "  Lilly  L.,"   in  October,  18«7,  was  sold    by 
10  "  James  W.Todd  toC.  D.  Ladd— one-thirteenth  for  *4()0;  that  the 
"  vessel  was  built  in  1887,  (ilJ  tons ;  that  in  February,  1887,  Ladd 
"  sold  to  Fi  ink  one-twelfth  for  !j'4.'!;{..'J.S.  " 

I  think  those  tijjures,  if  carried  out,  would  make  the  whole 
\alue  of  the  vessel  about  1?.)  I !)!).()(),  a  very  considerable  discrep- 
ancy between  Capt.  McLean's  memory  and  Mr.  Thornley 's  state- 
ment made  from  the  Records  in  the  otlice  at  San  Kraneiseo. 

There  is  another  thin;j,  if  Capt.  McLean  could  remember  all 
these  matters  with  so  nnjch  accuracy  when  he  '  id  such  limited 
means  of  ac(]uirin>;a  knowleil>{e  and  so  small  uii  interest  in  them, 
2(»  we  .should  expect  him  to  f^ive  very  different  answers  to  the 
following  (juestions  asked  him  in  cross-examination.  He  was 
beinff  cross-examined  as  to  what  he  was  doini;  himself,  what 
voyages  he  was  on,  what  kind  of  vessels  he  was  in  in  1874  and 
1878.     On  page  428,  line  47,  he  is  asked  :— 

"  Q.  In  what  trade,  between  1874  and  1878  or  187!)?  A.  I 
was  coasting  on  the  coast  between  Hoston,  Philadelphia  and 
Baltimore. 

"  Q.     On  your  own  account  ?     A.     No,  sir. 
"  y.     In  whose  employ  ?     A.     I  was  in  diH'erent  vessels,  but 
HO  I  cannot  state  the  owners. 

"  Can  you  give  me  the  names  of  any  of  your  employeru  dur- 
ing that  time  ?     A.     Mo  Sir.  I  cannot. 
"  Q.     Not  one  ?     A.     Not  one  of  them. 
"  Q.     That  is  strange,  is  it  not  ?     A.     No. 
"  You  cannot  give  me  the  name  of  one  of  the  (  aployers  you 
were  with  between  1874  and  1878  ?     A.     I  did  not  keep  books, 
and  when  I  was  .shipped  onboard  a  vessel,  I  did  not  enquire  who 
were  the  owners  or  who  my  employers  were. 

"  Q.     Can  you  give  me  the  name  of  any  of  the  ves.sels  you 
40  "  were  in  ?     A.     I  guess  I  could. 

"  Q.  Give  me  them  then  ?  A.  I  could  not  give  the  names 
"  at  present,  but  I  think  I  would  be  able  to  give  them  to  you 
"  later  on. 

"  Q.  Could  you  give  mc  the  name  of  one  now  ?  A.  No, 
"  sir,  not  just  now,  positively.  There  was  one  called  the  '  Eddie 
"  D.  Morri.son.' 

"  Q.     Owned  by  whom  ?     A.     I  cannot  state. 
"  Q.     In  what  capacity  were  you  on  her  ?     A.     I  was  able 
"  seaman. 
r)0         "  Q,     Was  that  your  capacity  up  to   1870   in  all  the  vessels  ? 
"  A.     Not  in  all  the  ves.sels. 

"  Q.  Can  you  name  the  captain  of  any  of  these  vessels  ?  A. 
"  No.  sir,  but  I  believe  I  could  show  the  names  of  the  different 
"  vessels  and  the  masters.  I  am  almost  certain  that  I  could  get 
"  them." 

Again,  there  is  con.siderable  discrepancy  between  Captain 
McLean's  memory  about  what  occurred  respecting  the  "  San 
Diego"  catch  and  that  of  the  other  witnes.ses.  He  says  that  in 
1888  the  catch  of  the  '  San  Diego"  was  1200  .seals.  He  pro- 
''"  duces  a  book  and  evidently  is  speaking  from  it,  because  the 
exact  catch  of  the  whole  season  is  1200  seals;  of  the.se  he 
says  32!)  were  taken  in  Behring  Sea  and  871  were  taken 
outside  of  the  Sea.  His  words  are : — '  There  were  1200, 
mostly   taken  in   Behring   Sea."     He   admits   that   this  catch 


t:' 


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(  Mr.    l!oii\vrll'>  Ai'Miiiinit  ) 


wns  sold  to  linlil'i"  nii.l  wi-  know  tlmt  it  win.  Mr.  IjuIiIms 
liriiirjn  his  l)Of>k  in  coiiit  ami  shows  that  it  was  in  1HM2  that  tlm 
"  Sun  l)ii';;'o"  took  in  liclii'in:,'  Sen  :lit!  sciiln.  whirh  is  ii  ilitl'.'rcni'C 
oP  only  thri'd  sphIs  trorn  Mclii-iin's  sttti'iiu-nt  of  tilt' y'lir  I.SH;{. 
Ill'  also  s;iys  that  till'  ciilch  I'l'  I  SS.'t  whs  .'HH  si-uls.  Now,  it  has 
Iti'i'n  siii,"^'"sti'i|  that  liiilili's  cviiliMKrc  may  he  consisti'nt  with 
10  Mcljiian's  I'viilcrico  ln'caiisn  thcsi,'  snals  wt-n^  only  dcsprilu'd  us 
Morthi'rn  ssais  and  soino  niiijlit  In'  tak(»n  outsider  of  IJijhrin^'  Si-a. 
Unt  ndinittinj^  that,  t!ii>  cvidcMici!  is  tlmt  Liililm  lioiij^ht  the  whole 
catch  from  I'liptain  < '.ithoart  and  tln'ri'  would  soill  liiuidiscri'panuy 
of  MOO  s(!als,  l)i'(!iiusr'  tin?  whole  catch  as  mentioned  l)y  Mclicanwas 
1200  seals  :  whereas  liiihlie  says  the  whole  catch  was  OKI  WIumi 
that  statement  is  taken  in  connection  with  his  otlier  statement 
that  he  was  hoat  stc(,'rer,  it  is  evident  that  (Captain  Mcljeau 
olitnined  the  information  as  to  the  catch  of  the  'San  Dic^o " 
from  some  other  source  other  than  personal  knowl(!dj,'e  as  i;e 
20  says,  and  morever  that  ho  did  not  co|>y  it  accurately. 

However  that  ma}'  be,  whether  it  is  a  failure  of  recollection 
on  ('aptain  Mcl>ea?i's  part  or  not,  I  suhmit  that  we  cannot  .alwAjvs 
be  sure  that  ('aptain  NlcLean  in  prenentin^  to  th(.'  court  matturn 
upon  which  lie  claims  that  he  had  accurate  information,  is  deal- 
in;:;  with  that  frankness  we  ouy;ht  to  expect  from  a  witness.  For 
instance,  here  is  a  book  which  he  produces,  h  hook  which  in 
itsi.'lf  bears  strong,' internal  evidence  of  havini,'  been  all  written 
up  at  one  time,  and  (.'aptain  McLcian  swears  to  that  book.  He 
was  not  asked  to  swear  to  it,  there  was  no  reason  why  he  .ijl'.ixild 
30  do  so  tiecanse  the  entries  w(,'re  not  very  material  to  the  case  or 
to  Captain  McLean's  evidence,  but  still  ho  takes  it  upiin  himself 
to  swear  to  the  accuracy  of  that  book.  On  pai^e  4^0'^,  line  22, 
he  say»  :— 

'■<,).  You  kept  accurate  lojTs,  did  yo\i  ?  A.  Yes,  sir,  very 
"  correct  I  think.  Of  course  they  are  kept  for  my  own  use,  ami 
"  I  did  not  intend  to  l)rint,'  them  into  court.  There  is  one  of  the 
"statements  in  that  book  for  18M7  that  is  not  correct  in  the 
amount  of  seal-t  stated  there." 

Therefore  this  is  the  book  that  Captain  McLean  referred  to 
40   because  it  is  the  only  book  in   which  that  mistake  occurs. 

Atpaf;e414,  line  38,  he  is  askeii  in  direct  examination  : — 

"  Q.  You  kept  the  book  with  references  wiierc  you  made 
"  good  catches  of  seals?     A.     Yes,  sir." 

In  cro.sH-exami nation,  pa^^c  433,  line  20: 

"  Q.  I  am  just  goinj;  to  have  a  little  look  at  that  book  of 
"yours  now— .You  took  that  answer  from  that  hook.  This  book 
"  purports  to  be  what  ?  A.  That  is  for  my  own  private  infor- 
"  mation. 

"  Q.  When  did  you  make  it  up  ?  A.  [  niado  it  up  at 
50   "different  times. 

"  Q.  You  liftvo  an  entry  here,  sailing  in  Hehring  Sea  in 
"  1883,  the  number  of  seals  caught,  the  (lays  were  caught,  the 
"  latitude  and  the  longtitmle.  That  is  right,  is  it?  A.  Yes, 
'•  sir,  it  is  suppo.sed  to  be. 

"  Q.  I  want  a  straight  answer  to  this  question.  When  did 
you  make  these  entries  ?  A.  I  cannot  .say  as  to  the  exact  date, 
or  probably  the  year,  but  they  have  been  made  some  years  back. 

Q.     Will  you  swear  you  made  them   in  1883?      A.     No,  sir. 

Q.  Will  you  swear  you  made  them  in  188't?  A.  No,  sir. 
CO  Q.  Will  you  swear  you  made  them  in  1885  ?  A.  Probably 
in  1885. 

"Q.  Why  did  you  make  them  "probably  in  1885?"  A. 
"  Because  I  had  that  book  in  1885  and  made  entries  in  it,  and  I 
"  believe  this  is  one  of  the  first  entries  I  put  in. 


fii 


(Mr.  |{oilwc'll's  Ar;;iiiiioiit.> 

"  Q.  Yim  prolxilil}' maili'  tlii'in  in  iHS'i'  A.  Krom  other 
"  lidokN,  I  dill. 

"().  VVlmt  otliar  liook's  :*  A.  Uouks  tlint  I  iisud  to  ki'cp 
"  rt'CdnJs  ill, 

"Q,     Do  you  niL'iin  to  suy  tliat  7-1   i^  a  ciin-cet  .^tiitt'inriit  in 
"  tliii  liook  ?     A.     1  helicvc  it. 
10         "  (^.     Will  you  swear  it   i.s  corropt  ?     A.     To  the  best  of  my 
"  kiu)\vl(!i!Ki',  nil-. 

"  (.^  Thi'ti  tlu'so  »'iitri(;«  wfin;  not  iiiiuk'  at  tlicsi!  dates  '  A. 
"  No,  sir. 

"  t}.  You  have  ^otiiot  only  tluMiuuilier  of  seals  cauyht  eaeli 
•'(lay  liut  till'  latitude  and  longtitude  where  they  wcm'u  cauj,'ht? 
"  A.     V'es,  sir. 

"  (},.  Where  did  you  get  that  from?  A.  f  took  tlie  oliser- 
"  vatioiis  myself. 

"(.},.     Where  did  you  put  them  down  ?     A.    I  put  tlieui  down 
2(t    "  in  a  hook. 

"  if.     What  hook  ?     A,     There  was  a  log  book. 

"  Q.  Who  has  got  that  log  book  ?  A.  The  ioj^  hook  VTas 
"  left  in  the  .ship,  I  believe,  and  1  took  the  private  book  of  my 
"own. 

"Q.     When  did  you  leave  the  "  San  Diego  r'     A.     In  l«s;}. 

"  Q.     You  wt!re  only  on  her  one  year  ?     A.     One  year. 

"  C^.     The  log  was  left  there  ?     A.     Left  in  the  ship. 

"  Q.     And  yet  you  liavo  entries  made  here  which  could  only 
"  come  from  the  loir  and  which   you  did   not   make  tintil    18S5. 
,S()    "  Where  did  you  get  the  log  i     A.     I  had  a  private   log  of  my 
"  own  which  1  always  kept  at  sea. 

"  i).  Where  is  that  log  ?  A.  I  destroyed  that  wlien  I  was 
"  making  that  book  up. 

Then,  again,  as  to  the  correctness  of  this  book  : — 

"  Q.  As  a  matter  of  fact,  will  not  the  log  of  the  '  Favorite' 
"  show  tliat  you  did  make  small  catches  that  year?  A,  I  do 
"  not  think  there  is  any  Heal  entry  in   the   log  of  the  '  Favorite.' 

"  Q.     Are   you  sure  ?     A.     There  may    be,  but   I  have  not 
"  looked  at  the  log  for  some  years, 
40        "  Q.     As  a  matter  of  fact,  is  it  possible  that  these  .seals  were 
"  caught   in    the  way    you  put  them    down  there  ?     A.     It  is 
"  possible. 

"  Q.  Will  you  swear  it  did  take  place  ?  A.  There  may  be 
"  an  odd  seal  that  might  be  put  down  from  one  day's  catch  to 
"  another. 

"  tj.     Is  it  substantially  correct  ?     A.     As  near   as  possible, 
sir. 

We  have  therefore    McLean's   positive   statement   that   this 

hook,  except   as  to   some   unimportant  detail,  is  a  correct  and 

50  accurate  record  of  things  that  happened  within  Iiis  own  personal 

observation,  entered  Viy  him  at  the  time  in  another  book  which 

lie  lias  de.stroyed. 

Again,  we  find  McLean  being  asked  as  to  the  length  of  the 
.sealing  season,  and  he  won't  answer  until  he  refers  to  the  book. 
At  page  4+1,  line  49,  he  is  asked  : — 

"  Q.  What  is  the  last  day  you  fished  in  Behring  Sea  in 
"  1886  ?     A.     I  believe  that  book  will  .show  it. 

"  Q.     Well,  what  do   you  say  now  ?     A.     I  think  it  was  the 
"  litth  of  August. 
t!0        "And in  1887?     A.     The  2.'5rd. 

"Q.  And  in  1888?  A.  I  cannot  exactly  say  without 
"  referring  to  the  book." 

So  that  so  far  as  the  testimony  of  McLean  goes  we  have  the 
unnecessary  statement  from   him  that   this   book    is  an   actual 


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23U 

(Mr.  Bodwell's  Argument.) 

record  of  actual  events  anil  substantiHlly  correct.  Now,  tiien, 
if  you  will  look  at  the  book  when  your  Hoiior.s  hiivo 
leisure  to  examine  it,  you  will  find  that  it  i.s  tilled  from  year  to 
year  with  entries  which  purport  to  state  days  on  which  SHaliujf 
was  prosecuted  and  the  latitude  and  longtitude  where  the 
schooners  were  at  the  time  and  the  actual  number  of  seals  taken. 
10  \  peculiar  thin^f  about  the  book  and  about  his  statements  of  tho 
catch  is  this  :  that  you  will  find  no  days  on  which  a  small  catch 
wa.s  made.  That  circumstance  was  one  which  would  come  at 
once  to  the  attention  of  any  person,  and  Captain  McLean  was 
examined  about  it.  His  explanation  is  this  :  That  these  entries 
are  not  actual  entries  of  seals  taken  on  these  days,  that  where 
there  was  a  small  catch  it  was  not  recorded,  but  the  entry  wa.s 
cai.i'"'  over  and  made  as  if  the  seals  had  been  taken  upon 
another  day  altogether. 

On  another  point,  more  material  still,  we  find  that  this  book 
20  is  not  at  all  an  accurate  book. 

The  Commissioner  on  the  part  of  the  United  States : — Of 
what  importance  to  this  case  is  it  whether  the  book  is  accurate 
or  not  ?     Who  called  for  the  book  ? 

Mr.  Boilwell  : — M-.  Dickin.son  called  for  it  in  the  direct  ex- 
amination of  Captaii.  McLean  and  I  handed  the  book  over  to 
him.  It  is  important  for  two  reasons.  It  bears  on  Captain 
McLean's  evidence  generally,  and  it  is  important  also  because  it 
is  made  the  foundation  for  repeated  statements  upon  the  othea 
.side  that  in  certain  years  Captain  McLean  left  Behring  Sea  on  a 
30  certain  date. 

The  C(  nimissioner  on  the  part  of  the  ITnited  States: — The 
date  when  he  left  Behring  Sea  is  not  disputed. 

Mr.  Bodwell : — Because  there  was  no  opportunity  of  bringing 
Captain  McLean's  evidence  into  contrast  with  other  evidence  in 
the  Record  and  we  are  driven  to  rely  upon  his  statements  alone 
in  that  particular. 

The  t'ommissioner  on  the  part  of  the  United  States: — The 
owners  of  tho  vessels  do  n»t  contravene  it. 

Mr.  Bodwell  : — These  were  vessels  that  were  not   in  contro- 
40  versy  in  this  case  at  all. 

The  Comnussioner  on  the  part  of  tho  United  States: — In 
what  particulars  do  you  say  the  testimony  of  Captain  McLt'un 
shouhl  not  be  accepted  f  There  are  a  number  of  mutters  here 
whieh  you  say  are  not  revtian*.  to  the  case.  But  upon  what 
roveltut  and  sul)stantial  matter."  do  you  say  you  object  to  the 
testimony  of  Captain  McLean  ? 

Mr.  Bodwell : — In    a    general    way    I    wish     to   .say  as  re- 
gards the    length    of  the  sealing  season  in  Behring  Sea.     They 
saj'  upon  the  other  side  that  bis  evidence  .ibows  that  the  sealing 
50   season  practically  ended  on  the  2.5th  of  August  of  every  year 

Tlu!  Commissioner  on  the  jiart  of  the  United  States.  What 
do  your  own  record.s  show  as  to  when  the  sealing  season  prac- 
tically eniled  (' 

Mr.  Bodwell :  We  say  it  would  have  been  carried  mi  if  we 
liad  not  been  interfered  with. 

The  Commissioner  on   the  part  of  the    United  St;itv's.     Not 
how  long  it  could  have  been  carried  on,  but   when   thi   you  say 
that  the  season  |iraetieully  ended  as  a  mutter  of  fact  i' 
(jO  Mr.  Bodwell  .    -Wi'  say  the  practical  end  of  tl.c  season  is  the 

time  at  wliicli  the  vessel  would  have  come  home  if  she  had  not 
been  interfereil  with. 

The  Commissioner  on  the  part  of  the  United  States.  That  is 
sufficient  upon  that  point  for  we  do  not  agree  about  that. 


237 


''!  I! 


(Mr.    Bodwell's    Artruinent.) 


What  are  other  points  upon  which  yon  ol>ject  to  the  testi- 
mony of  Captain  McLean  ?  I  mean  substantia!  matters,  so 
that  I  can  weigh  tliese  tilings  that  you  are  tallying  about  1 

Mr.  Bodwell  : — As  I  said,  one  is  the  dunition  of  tlie  sealing 
season;  tlien  we  have  Captain  McLean's  evidence  on  tlie  value 
of  vessels.     We  have  Captain  McLean  quotct;  in  the  very  argu- 

10  luent  I  am  now  directing  your  Honors'  attention  tons  the  man 
who  gives  his  opinion  that  sealing  was  such  an  uncertain  matter 
that  it  could  not  be  prosecuted  with  success  ;  that  it  depend.s 
for  it*  success  upon  the  experience  of  the  captain,  the  experience 
of  the  crews  and  a  great  manj'  other  things  which  we  say  are 
not  supported  by  the  evidence  of  other  witnesses.  Again  Cap- 
tain McLean  is  the  handy  man  for  the  United  States.  He  is 
called  in  to  fill  up  a  number  of  gaps  in  the  evidence.  For 
instance,  he  is  called  in  to  speak  of  the  character  of  the  sea  and 
the  weather  on   the   west  coast  of  Vancouver  Island    directly 

20  contrary  to  what  we  contend  aie  the  facts.  He  is  also  called  in 
reference  to  Daniel  McLean's  ciLizenship  and  he  is  called  to 
supply  a  great  deal  of  testimony  about  particular  vessels 
in  San  Francisco  the  prices  of  which  as  I  have  no  doubt  will 
be  urged  by  the  other  counsel  should  be  taken  as  the  basis  for 
computing  the  value  of  these  vessels. 

'riie  Commissioner  on  the  part  of  the  United  States  : — You 
have  given  me  enough,  and  I  can  now  weigh  what  you  are 
■saying  about   his  testiuKiny. 

Mr.  Bodwell : — Your    Honor  will  see  how  important  this   is. 

;iO  He  is  the  chief  witness  relied  upon  by  the  United  States  upon 
these  points;  they  lay  greater  stress  upon  his  evidence  than 
\ipon  the  o''i'le"ee  of  any  other  witness  that  they  have  ealliMl. 
And  that  is  why  I  am  examining  with  more  care  the  testimony 
of  Captain  McLean.  I  want  to  be  fair  with  Captain  McLean, 
and  the  point  I  am  now  making  is  that  his  evidence  does  not 
come  before  us  with  that  frankness  which  we  ought  to  expect 
from  a  witness  in  his  position. 

Tlic  Commissioner  on  the  part  of  the  United  States  : — I  do 
not  iiuestion  that.     I  merely    wanted  to  get  some   guide  to  see 

40  where  it  fitted  into  the  case  in  your  opinion,  and  then  I  could 
weigh  better  what  you  said  about  it. 

At  one  o'clock  the  Comniiasioners  took  recess. 

At  hah  past  two  o'clock  the  Commissioners  resumed  their 
seats 

Mr.  Bodwell  : — When  the  court  adjourned,  I  was  aliout  to 
refer  m(n-e  particularly  to   some   entries   in    this   book    kept    by 

.")0  Captain  McLean,  When  your  Honors  inspect  it,  you  will  see  that 
for  .several  years  which  are  here  mentioned,  it  purports  to  be  a 
statement  of  the  catch  from  day  to  ilay  of  the  vessels  on  which 
McLean  was  empl()3'ed,  and  assumes  to  give  not  only  the  day  of 
hunting  with  the  luimher  of  seals  caught,  but  tlie  exact  position 
of  the  schooners  on  the  day  mentioned,  As  I  have  before 
pointed  out.  Captain  Mcl^ean  has  pledged  us  his  word  that  these 
are  substantially  correct  statements,  but  when  he  is  cross- 
examined  upon  it  we  have  certain  cvidenci>  brought  out 
I   have   already  called   your  Honors'  attentimi    to   the   fact,  that 

(10  in  these  entries  there  appear  no  small  eatches.  They  are 
all  catches  of  ([iiite  a  considerable  tuimlicr  nf  seals — ;U),  40,  .")(), 
mid  SI)  on  for  the  day.  At  page  4.S4,  beginning  with  line  150,  the 
following  evidence  is  given  iiy  Captain  .McLean;  — 

"  Q.     I  am  going  to  come  to  this  now.     Tiiki'  the  year  1883, 


1% 


'■"!' 


238 

(Mr.   Bodwell's   Argument.) 

"  and  I  find  here  these  entries  of  seals  eauwht :  25th  of  July,  50 
"  seaKs  ;  22nd,  GO  seals  ;  20th,  87  seals  ;  August  2nd,  70  seals  ; 
"  Au{j;ust  10th,  G2  snaN.  That  is  the  whole  catch  in  Behring 
"  Sea  ?     A.     Yes,  Sir. 

"  Q.     Do  you  mean  to  tell  me  that   there    were  no  days  on 
"  which  yon  caught  loss  than  that  ?     A.     There  might  be  ati  odd 
10  "  seal    picked    up   occasiuiiaily,  but   that  is  as   near  correct  as 
"  possible. 

"  Q.  Could  you  show  me  the  log  of  any  sealing  ship  from 
"  which  it  will  appear  that  on  certain  days  tliere  were  large 
"  crttelies  caught  like  that  and  no  small  catches  ?  A.  I  cannot 
"  say. 

"  Q      I  will  take  atiotliei-  one  for   you.     Take   your  entries 

"  here  for  1884.     You  have  the  same  thing  in  your   book  I  sup- 

"  pose        Here    are    the    catches  :     li),  .S3,  .■)8,  ry,i,  Gt»,  1()8,  20,  4'!, 

"  107,  14(),  131,  -200,  101,  8G,  83,  oG,  58,  not  one  small   catch  in 

20  "  the  whole  number.     A.     You  will  iiiid  them  in  rotation  there. 

"  Q.  When  you  were  putting  down  a  correct  statement  of 
"  the  nundier  of  seals  caught  per  day,  did  you  put  down  a  state- 
"  ment  of  facts  that  is  not  coirect  ?  A.  All  the  seals  I  caught 
"  is  in  that  book. 

"(J.  Do  you  mean  to  say  that  you  caught  this  number  of 
"  seals  on  these  days  ?  A.  I  believe  so.  There  might  be  an 
"  odd  seal  caught  in  the  evening,  and  I  would  put  it  down  ii\ 
"  next  day's  catch. 

"  Q.     You  were  on  the  '  Favourite' in  188G  ?     A.     Yes. 
30         "  Q.     And  there  is  no  small   catcli   entered    there  ?     A.     No 
"  small  catch. 

"  Q.  As  a  ma't(!rof  fact,  will  not  the  log  of  the  '  Favouriie  ' 
"  sjiow  that  you  <lid  make  small  catches  that  year?  A.  I  do 
"  not  think  there  is  any  seal  entry  in  the  log  of  the  '  Favouriti-.' 

"  Q.  Are  you  sure  ?  A.  There  may  be,  but  I  have  not 
"  looked  at  the  log  for  some  years. 

"  Q.      As  a  matter  of  fact,  is  it  possible  that  these  seals  were 

"  caught   in  the  way    you    put    them   down   there  ?     A.     It  is 

"  possible. 

40         "  Q.      Will  you  swear  it  did  take  place  ?     A.     There  may  bo 

"  an  odd  seal  that  might  be  put  from  one  day's  catch  to  another. 

"  Q.  Is  it  substantiallv  correct  ?  A,  As  near  as  posifible, 
"  Sir. 

"  Q.  Day  by  day  ?  A.  Day  by  day  for  the  catches  I  believe 
"  there  ai'e  some  of  the  catches  that  are  marked  for  the  diHereiit 
"  days  that  do  not  correspond  with  this  book  ;  there  was  a  mis- 
"  take  in  taking  them  down. 

"  Q.     Taking  them  ilown   from    what  ?     A.      From   another 
"  book. 
")0         •' Q.     From  what  book  (lid  you  make  the  mistakes  ?    A.    The 
"  amount  of  seals  cauidit  with  the  different  lieadinsrs." 

Now  then  upon  another  point,  wddch  is  ecpially  material,  it 
appears  that  the  entries  in  the  book  aie  altogether  wrong.  The 
examination  continues  at  ',)age  43.")  : — 

"  Q.  Will  you  swear  that  this  book  substantially  agrees  with 
•'  the  log?  A.  There  may  be  some  errors  in  the  day,  but  the 
"  latitude  and  longitude  agrees  with  the  log. 

"  Q.      Does  the  number  of  seals  agree  with  the  log  ?     A.    Yes, 
"  sir,  to  till'  best  of  my  knowledge. 
GO         "  Q.     For   each   day?     A.     Yes;  there   may    be  an   error,   I 
"  have  not  cotiipared  them  lately. 

And  further  down  at  line  4.")  of  page  43-')  ; — 

"  Q.  Did  the  log  of  the  "  San  l)iego"  show  the  catch  ?  A. 
"  I  cannot  exactly  .say  if  it  did,  but  I  kept  a  record  of  the  catch. 


ki 


I 


(Mr.  Bodwell's  Arpfument.) 

"  and  I  also  kept  the  ship's  loj^.     I  am  not.  sure  if  we  entered 
"  the  position  and  the  catches  in  the  lofj  or  not." 

I  ask  your  Honors  to  consider  how  it  is  possible  that  Captain 
McLean's  evidence  will  stand  taken  as  a  whole.  If  he  was  boat 
steerer,  how  was  it  possible  that  he  was  keeping  the  log  and 
taking  observations  at  the  different  times  necessary  to  make  the 
1(1  entries  in  the  log.  Then  again,  with  inference  to  these  entries, 
as  to  latitude  and  longitude,  we  find  at  page  430,  line  5,  the 
tollowing : — 

"  Q.  Now,  here  is  the  log  of  the  '  Favourite  '  for  1884.  You 
"  were  in  her  that  year  ?     A.     Yes,  sir. 

"  Q,  Did  you  enter  tlie  number  of  seals  taken  that  year  .a 
"  the  log?  A.  I  cannot  state  exactly,  the  book  will  .;how  if  I  have." 

Th's  is  referring  again  to  the  book  to  whicii    I   am  ulluding. 

Then,  after  the  log  is  produced,  the  cross-examination    proceeds 

at  lino  22,  page  436,  as  follows  : — 

•Jl)         "  Q.     I  want  you  to  refer  to  the  date,  July   the  9th,  Beh.ing 

"  Sea,  and  tell  me  what  is  the  entry  there  ?    A.    Thirty-five  se.ils. 

"  Q.  Read  the  whole  entry  ?  A.  Reining  Sea,  35  soals, 
"  latitude  .")4..5(),  longitude  100. (i." 

Mr.  Peters  then  takes  the  book  and  the  log,  and  asks  the 
witness  particularly  with  reference  to  the  entries  of  latitude  and 
lo!igitude,  and  the  ni-nd)er  of  seals  caught,  and  this  is  the  manner 
in  viduch  tlie  cross-exaunnation  proceeds  : — 

"  Q.     I   have  here,  in   the   American   book,  a  copj'  of  what 
"  purports  to  be  the  log  of  that  ship  for   that   year,  and   I    want 
S')  "  to  see  whether  it  agrees  with   your.s.     It   says   hei-e,  July  Oth, 
"  position  .')"). i)iS,  is  that  there  ?     A.     It  is  .S4..i()  here. 

"  Q      What  is  the  longitude  J     A.     It  is  100. 

"  Q.  And  hei'e  we  have  it  107.25.  How  man}'  seals  there  ? 
•'  A.     Thirty-five. 

"  Q.  And  there  are  1<S  here.  Xow,  I  will  take  the  very  next 
"  one.  Look  at  the  10th  of  Julj-,  an<i  what  is  your  entry  there  ? 
"  A.     There  is  no  entry  for  the  lOth. 

"  Q.     What  is  your  next  entry  ?     A.     The  11th. 

"  Q.    Give  your  position  there?    A.     Latitude  55.48,  longitude 
40  "  LSO.S. 

"  Q.  The  position  here  is  latitude  55.18,  and  longitude  107.21. 
'•  How  do  you  account  for  that  difference  ?  A.  I  do  not  know, 
"  I  have  not  seen  that  book,  and  I  don't  know  anything  about 
"  that  book. 

'  Q.     What  is  the  number  of  seals  there  ?    A.    One  hundred. 

"  Q.  And  the  number  of  seals  here  is  113.  Now,  then  you 
"  have  no  seals  caught  on  the  lOth  ?     A.      No,  sir. 

"  Q.     This  book  gives  78  seals  ?     A.     I  supp  se  so,  sir. 

"  Q.     How  do  you  account   for   that  ?     I  find   this   entry   in 

oO  "  what  purports  to  be  a  copy  of  the  log  of  the  '  Favourite,'  and 

"  F  find  that  on  the  10th  .luly  in  such  a   position   she  caught  78 

"  seals,  and  1  tind  that  in  j-our   book  she  caught  none.      A.      Not 

"  on  the  1 0th. 

"  Q.  And  I  find  on  the  1 1th  she  caught  100  seals  ?  A.  She 
■  uiiidit  have  caught  one  or  two  on  the  lOtb  and  it  might  be 
'   aihled  up  the  day  afterwards. 

■■  Q.     You  would  co\iiit  78  seals  '  ore  '  or  '  two  '  ?    A.     No,  sir" 

Here  there  wiu*  an  ol'Jcction  taken  that  Mr.  Peters  was  read- 
ing from  the  printed  copy  instead  of  from  tlu!   oiigirial    log,  and 
III)  so  the  original  log    was    produi'ed,  and    this  is   what  follows  on 
page  437,  line  10  : — 

"  Q.  We  will  see  how  the  log  works  out  On  July  the  9th, 
"  ]MSO,your  position  in  that  little  book  you  have,  is  latitude  54  ? 
"  A,     Yes,  sir. 


i".' 


1  '•!■ 

Ml       a 

i      ,  j- 1  - 


''It' 


i    h 


i  'I 


>  I 


240 

(Mr.   Bodwell's   Argument.) 

"  Q.  I  have  now  what  is  supposed  to  be  the  original  log.kept  on 
"  that  .ship  in  1886.  Will  you  .say  if  your  position  in  the 
"  original  agrees  with  the  position  in  that  book  ?  A.  The 
"  po.sition  agrees  very  closely  with  that. 

"  Q.  With  what  ?  A.  There  may  be  a  difference,  but  it  is 
"  not  much; 
10  "  Q.  I  hand  you  the  original  log  of  the  "  Favourite  "  for  the 
"  year  1886,  and  I  ask  you  the  question,  if  on  the  9th  of  July, 
"  the  po.sition  iii  your  log  is  different  from  the  position  as  stated 
"  in  tlie  log  ?     A.     Not  quite  the  same,  sir. 

"  Q.  Why  was  it  nrt  quite  the  same,  what  object  had  you  in 
"  putting  it  not  quite  right  ?  A.  The  original  log  book  is  kept 
"  for  noon,  and  this  little  book  is  kept  as  closely  as  po.ssibie  to 
"  wliere  the  seals  were  caught  in,  it  might  make  a  difference  of 
"  some  miles  during  the  day. 

"  Q.     What  was  your  position  on  the  8th,  on  the  9th,  and  on 
20  "  the  10th,  as  marked  in  the  log  ?     A.     On  the  10th  it  is  55.58 ; 
"  on  the  9th  it  is  5.5.45  ;  on  the  8th  it  was  5,5.80. 

"  Q.  Did  you  ever  get  into  latitude  54  at  all  during  that 
"  time  ?     A.     Yes,  Sir. 

"  Q.     On  these  days  ?     A.     In  August. 

"  Q.  No.  But  on  these  three  days  I  have  named  ?  A.  Not 
"  that  I  know  of,  if  1  did,  it  would  be  in  the  log  hook." 

8o  that  he  is  not  in  the  .same  latitude  at  all  according  to  the 
log.     The  examination  proceeds  : — 

'  Q.     Your    log  shows  that  \  ou   were  noi.  in  54  on  any  of 
30  "  these  three   days,  and   that  heing  the  case,  explain  to  me  why 
"  you  put  54  in  your  little  book.     A.    Well,  that  might  be  an  error 
"  in  taking  that  down,  of  course. 

"  Q.  Will  you  swear  it  was  an  error  ?  A,  Yes,  Sir,  I  will 
"  swear  it  was  an  error,  and  that  it  was  not  done  intentionall}' 
■'  either. 

"  Q.  Is  there  any  statement  in  the  log  as  to  how  many  seals 
"you  caught  on  the  9th  or  10th,  or  the  11th?  A.  No,  Sir, 
"  because  I  did  not  enter  my  catches  in  this  log  book. 

'■  Q.     Now  then,  following  on  that  same  line  with  your  log 
40  "book,   look    at    the  next  day,  the   11th,  as  shown   there?     A. 
"  Yes. 

"  Q.  What  is  3'our  position  according  to  your  little  book  on 
"  the  nth  .?     A.     55.48. 

"  Q.     What  is  the  position  in  the  log  ?     A.     55.37. 

What  is  the  longitr.de  there    in  your  little   book  ?     A, 


167.8. 
"Q. 

"  tion  ? 


What  is  the  log  ?     A.     107.7. 

When  did  you  make  up  your  mind  to  make  that  altera- 
A.     I  made  the  alteration  as  liear  as  possible  as  to  the 
50  "  ground  I  took  the  seals  on. 

"  Q.     When  did  you  put  down  that  position  in  your  little 
"  book  ?     A.     It  was  put  tlown  a  little  later  on." 

How  can  Captain  McLean  say  that  the  diH'eronce  between  the 
entiy  in  the  book  and  in  the  log  was  not  made  intentionally. 
Hi)W  can  he  say  that  when  he  himsolf  makes  a  statement,  which 
I  shall  now  reaii,  at  another  place  in  the  record.  In  explanation 
of  the  reason  why  thene  entries  appear  dilfereiitl}'  in  the  little 
book  from  what  they  are  in  the  log  book,  at  page  4.S5,  being 
examined  in  cross-examination,  and  with  refei(>nce  to  the  same 
CO  book  where  it  refers  to  the  catch  of  the  "  San  Diego,"  he  says  : — 
"  Q.  llacl  you  any  object  in  not  I'liteiing  in  the  log  the 
"  nundier  of  seals  that  you  caught  ?     A.     Yes. 

"  Q.      What  was  your  object  ?     A.     Because  if  you   have  a 
"  log  hook  atul  you   make  pretty  good  catches  your  hunters  or 


241 

(Mr.    Bodwell's   Argument.) 

"  crew  may  get  hold  of  the  book  and  take  the  po,sitions  out  of  it, 
"  and  going  on  hoanl  another  ship  they  would  give  it  to  tliein." 

I  submit  that  .statement  .shows  conclu.siveiy  when  taken,  in 
connection  with  the  fact  that  there  is  not  an  entry  in  that  book 
as  to  latitude  and  longitude  which  corresponds  with  the  entries 
in  the  log  book,  that  the  change  was  made  intentionally,  and 
10  perhaps  with  good  reason.  Rut  when  in  the  cour.se  of  the  next 
hour  in  hl.s  evidence,  he  says  that  it  was  not  done  intentionally, 
you  have  him  making  two  ditferent  statementu  about  the  same 
fact  in  the  course  of  three  or  four  pages  ol'  the  evidence. 

There  is  another  ttiing  which  j-our  Honors  will  observe  in 
examining  this  book.  You  will  find  tlint  at  one  place  there  was 
some  writing  with  paper  paste<l  over  it,  which  paper  was  sub- 
sequeidy  torn  out.  That  fact  in  itself  was  of  course  not 
material,  but  Captain  .McLi.'an's  explanation  of  the  time  when 
the  tearing  took  place  and  the  reason  for  which  it  was  torn 
20  out  is  of  serious  consefjuence  to  your  Honors,  in  considering  his 
evidence.  At  page  107()  of  tiie  record  in  re  direct  examination 
by  Mr. "Dickinson,  he  is  asked  for  an  explanation  and  this  is 
what  occurs,  page  107(),  line  8. 

"  Q.     You    came  here   and  turned    over    your  books  to  tlie 
"  counsel  for  Great  Britain  ?     A.     Yes,  Sir. 

"  Q.  They  had  them  for  a  long  time,  hadn't  thej'  ?  A.  Yes,"  Sir. 

"  Q.     All  your  logs,  memoranda  books  anrl  everything  ?     A. 
•'  Yes  Sir. 

"  Q.     Did  you  not  do  that  ?     A.     Yos,  Sir. 
.'lO         "  Q.     And    since    you    have    been    here   ami  specially  after 
"listening    to  the  'Carolena'  case,  you  would  talk  very  fully 
"  with  us  ?     A.     Yes,  Sir. 

"  Q.     Except  about  your  ownership  of  the  Spring  vessels? 
"  A.     Yes,  Sir. 

"  Q.     You  tried  to  cover  that  up  by  pasting  papers  in  the 
"entries  in  your  books  ?     \.     Yes,  ,Sir,  I  did." 

That  is  a  statement  that  after  the  books  had  been  in  the 
hands  of  the  British  counsel.  Captain  McLean  became  friendly  to 
the  counsel  for  the  United  States  and  wa.s  giving  them  informa- 
40  lion,  but  was,  nevertheless,  desirous  of  keeping  from  them  the 
fact  which  appeared  in  this  book  that  he  hail  an  interest  in  the 
"  Favourite."  He  therefore  says  that  in  the  interval  he  pasted 
over  the  entries,  and  when  it  was  pointed  out  to  him  that  it  was 
an  incorrect  thing  to  <lo  he  tried  to  take  it  out.  Let  us  see  what 
follows  ; — 

At  line  30,  page  1070,  the  re-direct  examination  proceeds  as 
follows  : — 

"  Q.     Was  that  pasted  over  to  keep  from  the  Ameiican  coun- 
"  sel  the  fact  of  yo\n-  ownership  ?     A.    Yes,  sir,  I  did  it  for  that 
•")0  "  purpose. 

'■  Q.     To   cover  it   from  us  ?     A.     Yes,  sir  ;  then  I  took  the 
'  paper  otl  again. 

"  Q.  After  the  rttpiesentativo  of  the  ITiiited  States  told  you 
"  t'.iat  he  had  found  out  what  was  behind  it  by  holding  it  up  to 
'  ibc  light  ?     A.     Yes,  sir. 

I  jiroceed  now  to  read  the  examination  and  the  cross-examin- 
ation which  follows,  and  in  order  to  meet  any  suggestion  that  I 
am  endeavouring  to  make  a  p'liiit  against  Captain  Meljcan  which 
is  not  justilied  \>y  the  evidence,  '  sliull  rea<l  thr  whole  of  his 
I'l'l  re-cro.'-s  examination  on  that  point.  I  shall  comuKiice  at  line  40, 
page  1070  : — 

"  Q.  When  did  you  tir^t  hand  ov  it  that  book  to  the  United 
■  States  coun^^e!  ?  A.  1  believi;  it  might  have  been  two  weeks 
"  ago  or  more. 


Is 


242 


(Mr.    Bodwell's   Argument.) 

"  Q.  When  did  you  s^how  them  the  book  for  the  first  tinie  ? 
"  A.  That  would  be,  of  course,  two  or  three  weeks  ago.  I  can- 
"  not  exactly  say. 

"  Q.  Was  it  before  the  enquiry  commenced  before  this 
"  tribunal  that  you  first  showed  that  book  to  the  American 
"  counsel  for  the  first  time  ?  A.  It  was  before  I  came  on  the 
10  "  witness  stand  here. 

"  Q.  I  ask  you  whether  it  was  before  the  enquiry  com- 
"  menced  ;  before  the  coiumencin'^  of  the  "  Carolena  "  case  ?  A. 
"  Yes,  sir. 

"  Q.  How  lon^  was  it  before  the  commencement  of  the 
"  enquiry  in  the  "  Carolena  '  ca.ie  that  you  showed  this  book  to 
"  the  American  counsel  ?  A.  It  might  have  been  probably  a 
'•  week.     1  am  not  sure  how  long,  but  1  know  it  was  before  that 

"  tiuK-'. 

"  Q.     You  ihowed  that  book  also  about  the  same  time  to  the 
20  "  British  counsel  did  you  not  1     A.    Yes,  sir. 

"  Q.  When  }  ju  sliowed  that  liook  to  the  British  counsel,  was 
"  it  not  pasted  up  in  the  same  manner  as  when  j'ou  showed  it  to 
"  the  United  States  counsel  /     A.     No,  sir. 

"  Q.     It  was  not  !     A.    No.  sir. 

"  Q.  Uo  yen  say  that  when  you  showeil  that  book  to  the 
"  British  counsel,  Mr.  Peters,  it  was  not  pasted  in  the  same  nian- 
"  ner  as  when  you  showed  it  to  the  United  States  counsel  ?  A. 
"  No.  I  went  to  woik  and  I  tried  to  make  it  clear  afterwards 
•'  when  I  saw  that  it  was  not  correct  to  paste  it  over,  and  I  took 
:>{.}  "  some  of  the  papur  oil  wliun  I  found  out  it  was  not  correct  for 
"  me  to  do  so. 

"  Q.  When  did  you  lirst  paste  up  anything  in  the  book  ?  A. 
"  I  pastt'd  that  in  Sun  Francisco  before  I  came  to  Victoria. 

"  Q.     When  was  it  ?     A.     In  October,  I  think." 

Here  within  the  space  of  ten  lines  you  find  two  difierent 
statements  aliout  the  very  same  thing.  The  re-cross  e.xamina- 
tion  continued  a^  follows  : — 

'  Q.     When  ilid  you  rumove  the  pasting  ?     A.     Since  I  came 
"  to  Victriria. 
40         "  Q.     How  long  liefore  the  enquiry  into  the  '  Carolena  '  case 
"  Dill  you  removi'  the  pasting  ?     A.     About  a  week  or  so." 

Then  Mr.  Dickinson  re-examined  Mr.  McLean  in  order  to  put 
him  straight  upon  the  statement  which  he  had  ju>t  made  and 
the  followitig  oocured  ; — 

Ki'-dirt'ct  E.xaminaiion  li^-  Mr.  Dickin.ion. 

"  Q.  <  'aptaiii  McLean,  are  you  not  mistaken  about  taking 
"that  ort'  liefore  the  '  ( Jarolena,'  case  opened  before  the  actual 
■'  coming  together  of  the  court  ilid  you  not  take  it  off  ?  I  will 
"  refresh  jcuir  memory  tor  you.  Did  you  not  take  it  t)ft  when 
.lO  "  .Munsie  wvs  on  the  stand  in  the  'Carolena'  case?  A.  1 
'■  took    It  (,fr  before    I    came  on    the   stand    here,     before  1  was 

"CC.ll.'d." 

i  caP  your  Honors  attention  to  that  statement,  because  it 
will  ajipear  in  the  evidence  that  this  book  was  produced  while 
he  wa.'  on  the  stand  ;  it  remained  in  the  hands  of  the  Briti>h 
coun,-il  from  the  time  Capt  lin  McLean  came  to  Victoria  until  that 
period.  Then  the  following  occurred  in  the  re-direct  e.\aniina- 
tion  by  Mr.  Dickinson  : — 

'' t^-  '*'''  yu  "'*•'  f'^l^^'  it  ort  after  witnesses  were  actually 
•  iU  "  beginning  to  be  sworn  ?  A.  I  cannot  swear  to  that,  sir.  I  am 
"  not  sure  whether  I  took  it  off  before  or  after,  but  I  know  it  was 
"  liefor<'  I  came  to  the  stand. 

"  Q.  Yes,  liefore  you  came  on  the  stand,  to  be  sure.  Do 
"  lujt  you  know  it  was  pasted  over  close  when  you  got  the  book 


243 

(Mr.   Boflwell's   Argument.) 

"  from  the  British  counsel  and  handed  it  to  the  American  counsel  ? 
"  A.     Yes,  sir." 

The  statement  is  thai  it  was  pasted  over  after  he  had 
received  the  book  from  the  British  counsel,  but  here  follows  the 
re-cro.ss  examination  by  Mr.  Beique  as  follows  : 
"  Re-cro.ss  examination  by  Mr.  Beique: — 
10  "  Q.  As  a  matter  of  fact  Captain  McLean,  is  it  not  true  that 
"  that  book  which  you  referred  to  as  havinrj  been  pasted  up, 
"remained  in  the  hands  of  Mr.  Peters,  the  British  counsel,  from 
"  the  time  previous  to  the  befjinninj;  of  the  enquiry  in  the 
"  '  Caroiena  '  case  until  it  was  proiluced  iii  court  in  the  course  of 
"  your  own  examination  ?     A.     Yec,  sir. 

"  Q.  And  it  remained  in  the  posse.esion  of  Mr.  Peters  all 
"  that  time  ?     A.     Yes,  sir  ;  and  my  other  books  too. 

'  Q.     For    about  three  weeks  oi'  more  ?     A.     T  cannot  say 
"  how  lonfj  it  was  since  I  brought  the  books  to  the  otfica 
20         "  Q.     Was  it  not  for  three  weeks  or  more  ?     It  iiiiTht  have 
■'  been  three  weeks  or  more." 

That  evidence  speaks  for  itself :  and  while  the  fact  of  this 
pasting  over  is  not  at  all  material,  the  way  in  which  Captain 
McLean  explains  it  and  the  different  statements  he  makes  in  the 
course  of  a  short  examimitKn  about  that  simple  affair,  is  very 
mater'  il  for  your  Honors  to  tonsider  when  you  are  dealing  with 
Capt.i:;i  McLean's  evidence  on  other  points. 

I  sliall  also  refer  your  Honors  to  the  evidence  \fhich  he  gives 
as  to  the  entries  in  this  book  relating  to  the  schooner  "  Bonanza." 
30  'J'hese  entries  as  made  purport  to  be  a  list  shewing  the 
necessary  articles  and  price  for  outfitting  sealing  schooners 
with  the  exact  amount  of  seals  taken  on  the  voyage,  the  nuinber 
of  men,  and  th ;  profits  of  the  season.  There  is  not  a  word  any 
where  in  the  book  to  show  that  it  was  not  intended  to  convey 
that  meaning.  On  the  contrary  it  appears  to  be  the  record  of 
an  actual  sealing  voyage,  and  an  account  made  up  for  the  pur- 
po.oe  of  estimating  the  profits  of  a  sealing  venture  in  a  schooner 
like  the  "  Bonanza."  But  when  Captain  McLean  is  examined 
upon  it  and  it  appears  plainly  that  the  amount  of  provisions  on 
40  that  voyage  was  somewhat  large,  and  that  the  entry  rather 
reflected  upon  a  previous  statement  he  had  made  as  to  the  cost 
of  outfitting  a  sealing  vessel,  lie  gives  this  explanation.  Oh, 
that  is  not  an  exact  account  of  what  took  place  on  the  ship, 
because  she  took  supplies  for  other  vessels ;  and  it  was  not  an 
exact  account  of  her  voyage  because  when  she  returned  she  did 
not  have  the  number  of  seals  stated,  and  the  profits  were  not  as 
great  as  shown  in  that  book. 

At  pages  4."j1-4.54  of  the  evidence  he  gives  the  testimony  to 
which  I  now  refer.  I  have  already  called  your  Honors  attention  to 
SO  the  fact  that  Captain  McLean  had  written  hiniseif  down  as  the  mas- 
ter (if  the  "San  Diego"  in  LS8t?,  and  he  nuikes  us  an  explanation  of 
that — he  .said  he  was  practically  the  master  because  he  was  the 
navigator.  We  have  it  in  evidence  that  that  ship  was  under  the 
coiiunaiul  of  Captain  t'atchart,  an  old  and  I'xpericnced  captain  ; 
nnd  let  !ne  ask  your  Honors,  how  could  Captain  Mer.,ean  pos'ubly 
imagine  that  he  was  the  Master,  evmi  it  it  wlm'c  true  that  he  was 
the  navigator. 

In  another  case  he  had  himself  vvritten  down  in  this  book  as 
Master  of  the  "  Favorili"  in  18.S7,  which  is  not  true. 
(il)         The  "Han  Diego"  reforeiice  is  to  be  found  at  page  440  of  the 
record  lines  i)  anil  10,  an>>  is  as  follows  : — - 

"  Q-  Originally  in  tin  book  foi'  )8!S3,  when  in  the  schooner 
'•  '  San  Diego,'  your  entry  wi  ■(  '  A.  McLean,  master  of  the  schooner 
"  San  Diego  '  ?     A.     Yes,  sir. 


:  4 


to 


i,  i    r.ii 


M 


1.  jM 


i,ili!|iif' 


::''!iiiiii^Nlf^ 


■!.•;■■ 
li' 


I;  'I 


» 


^wwp'f 


244 


10 


20 


30 


30 


(Mr.   Bodwell's    Argument.) 

"  Q.  And  that  entry  remained  in  that  boolt  for  how  long  a 
"  time  ?     A.     Till  probably  about  a  month  or  six  weeks  ago. 

"  Q.     Had  you  any  object  in  scratching  it  out  ?     A.     Ye.s. 

"  Q.  What  object?  A.  Because  I  was  not  the  actual 
"  master  at  the  time,  I  was  the  practical  master.  I  acted  as 
"  navigator  and  kept  the  .ships  log-book." 

I  do  not  think  any  observation  is  necessary  on  that  evidence 
because  it  speaks  for  itself.  The  explanation  is  a  very  lame 
one.  How  is  it  that  he  could  by  any  po.ssibility  consider  himself 
the  master  of  a  ship  when  he  wa.s  not  master  at  all  ?  Ho  had  to 
explain  in  some  way  how  he  came  to  have  these  entries  in  the 
book,  and  his  explanation  is  that  he  was  navigator  of  the  ship, 
and  that  he  thought  he  was  master. 

Tiio  (luestioii  which  occurs  to  one  is,  why  was  this  book  pre- 
pared /  Hew  was  it  that  such  incorrect  entries  were  maile  ? 
Captain  McLean  said  he  made  them  for  his  own  use.  But  let 
me  ask,  what  jxissible  piu'pose  could  ho  have  in  writing 
up  a  book  for  his  own  use  which  contains  incorrect  entrie.'? 
from  beginning  to  end.  Are  we  to  suppose  that  (Japtain  McLean 
is  of  that  peculiar  bent  of  mind  that  he  employes  his  idle 
moments  in  preparing  a  book  full  of  false  statements  ?  Was  his 
object  to  deceive  himself?  If  not,  the  conclusion  is  irresistable, 
that  the  book  was  prepared  for  the  purpose;  of  deceiving  some- 
body else.  A  reason  may  be  suggested  :  perhaps  Capt  McLean 
wished  to  ci'eate  the  impression  that  he  was  a  man  of  extraordin- 
ary iiliility,  that  he  was  master  of  vessels  on  which  he  held  sub- 
ludiiiiite  positions  only,  and  that  ho  made  hunting  trips  where  he 
had  mit  a  small  catch  of  seals  during  the  whole  voyage  and  that  he 
cu  i:;!it  these  seals  in  latitudes  that  he  never  was  in.  The  ques- 
tion must  naturally  arise  why  did  Captain  McLean  make  such 
entries  in  such  a  hook  ? 

Mr.  Warren  : — Have  you  got  the  reference  there  to  where 
Captain  McLean  said  he  was  captain  of  the  "  Favorite"  in  18S7? 

Mr.  Bodwell : — I  do  not  think  it  is  necessary  to  take  up  time 
about  that  now. 

Mr.  Warren: — Just  cite  the  page. 

Mr.  Bodwell : — I  said  it  appears  in  the  book. 

Mr.  Warren  : — Let  us  see  the  book  tlien,  please.  (To  Mr. 
Bodwell)  you  are  evidently  referring  the  "  Mary  Ellen  "  and  not 
to  the  "  Favorite  "  at  all. 

-Yes;    to    the    "Mary    Ellen"- Did    I    say 


Mr.    Bodwell 
"  Favorite  V 

Mr.  Warren:— 
Mr.  Bodwell  :- 
Mr.  Warren  :— 


50 


60 


■Yes ;  3'ou  did. 

-What  dirt'erence  does  it  make  ? 
It  make  the  ditTercnce  that  he  was  Captain  of 


the  "  Mary  Ellen." 

Mr.  Bodwell : — -If  he  were  the  Captain  of  any  of  them  why 
dill  he  strike  it  out  ?  I  may  have  made  a  mi.stakein  mentioning 
the  name  of  the  vessel,  but  I  will  give  jju  the  evidence  on  that 
point.  I  no  doubt  should  have  saiil  the  "  Mary  Ellen,"  but  the 
point  I  wish  to  make  was,  that  he  marked  himself  down  as 
Master  when  he  was  not  Master  of  the  vessel  at  all,  and  that, 
afterwards  he  scratched  it  out.  Here  is  i.s  the  place  where  that 
reference  occui's  in  the  evidence.  Your  Honors  will  notice  that 
that  is  a  pencil  entry  "  24!)G "  on  the  book,  and  following 
evidence  occurs  on  page  44."),  line  40  : — 

"  Q.  When  did  you  make  that  etitry  in  pencil  tiierc  ?  A- 
"  When  1  was  adtiing  it  up  in  court  here  on  Friday  afternoon,  I 
think.      It  was  just  to  show  that  these  belonged  to  li'^8(j. 

"  y.     And  a-lso  these  figures   '  2400.'     These   were  put  in  the 


245 

(Mr.    Bodwcll'.s  Argument.)  , 

"  book  lately  ?     A.     Yea,  sir,  that  was  Satunlay  afternoon  when 
"  I  was  making  up  the  (hites  for  the  catch  of  1SH7. 

"  Q.  Do  you  notice  at  the  bottom  of  this  same  page  I  urn 
"  referring  to,  the  page  referring  to  1.S87,  there  was  a  word 
"  written  there  which  you  scratched  out  ?     A.     Yes,  sir. 

"  Q.     What  was  that  word  ?     A.     '  Master.' 
10         "  Q.     When  did  you  scratcli  that  out?     A.     Some  titne  ago. 

"  Q.     How  long  ago  ?     A.     I  cannot  say  exactly. 

"  Q.  But  I  want  you  to  state  exactly,  how  long  ago  is  it 
"  that  you  scratched  that  word  out  ?  A.  Probably  a  month  or 
"  probably  two  months. 

"  Q.  Tell  mo  what  object  you  Iiad  a  month  or  two  months 
"  ago  in  scratching  anything  out  of  tiiis  book?  A.  When  I 
"  received  a  letter  from  Mr.  Bodwtll  at  San  Francisco  I  thought 
"  probably  1  might  re(|uire  to  be  here,  and  then  in  looking  over 
"  my  books  I  found  that  would  be  a  n)istake. 
20  "  Q.  As  soon  as  you  heard  that  you  were  likely  to  give 
"  evidence  you  commenced  scratching  things  out  of  that  book  ? 
"  A.  I  scratched  out  what  I  thought  would  not  be  correct.  I 
"  .scratched  out  the  word  '  master  ',  because  I  was  not  master. 

"Mr.  Dickinson: — You  scratched  out  the  word  'master' 
"  under  the  word.s  '  Alexander  McLean  '  ?     A.     Ye.s." 

It  is  i)orf(;ctly  clear  that  he  was  not  the  master  of  the  ship, 
although  he  had  written  in  the  book  that  he  was  ;  and  the  entry 
remained  there  until  three  or  four  weeks  before  he  came  to 
Victoria  when  be  scratchad  it  out. 
;U)  When  this  interruption  occurred,  your  Honors,  I  was  about 
to  read  certain  portions  of  the  evidence  of  (Japtain  Mcljean, 
which  is  quoted  in  the  United  States  argument  with  reference  to 
the  uncertain  character  of  sealing,  which,  with  that  of  two  or 
three  other  witnesses,  whose  evidence  is  referred  to,  is  said  to  con- 
tain so  complete  and  comprehensive  a  description  of  the  whole 
business  of  seal  himting  that  it  is  deemed  worth  while  to  tran- 
.scribe  it  at  length  in  the  argument.  Tncalling  your  Honors'  atten- 
tion to  this  portion  of  the  evidence,  1  wish  to  say  that  the 
statements  made  b}-  Captain  McLean  throughout  are  equivocal, 
40  and  capable  of  being  read  without  in  any  sense  contradicting 
our  evidence  on  the  same  matter.  Yet,  they  are  put  forward  in 
such  a  manner  that  th..'y  can  also  be  read  to  make  out  any 
contention  the  United  States  choose  to  bring  before  your 
Honors'  on  the  lines  that  they  have  adopted  throughout  the 
controversy.  I  also  call  your  Honors'  attention  to  this  fact, 
that  the  evidence  is  given  in  answer  to  the  most  leading  ques- 
tions, and  does  not  possess  the  weight  and  force  which  it  would 
have  if  the  witness  had  been  allowed  to  tell  his  story  in  his  own 
way.  It  is  not  very  long,  and  in  order  to  do  complete  justice  to 
50  Captain  McLean,  I  will  read  it  as  it  stands.  I  do  not  suppose  it 
will  be  necessary  for  the  reporters  to  take  this  down,  for  it  is  all 
in  the  argument  of  the  Uniteil  States,  page  1S5. 

(Mr.  Bodwell  reads  extracts  referred  to). 

There  is  a  portion  of  Captain  McLean's  evidence  on  that 
point  which  has  not  been  printed  in  the  argument,  and  which 
has  something  to  do  vvith  the  answer  last  quoted  in  this  extract. 
It  is  at  page  424,  line  9  : — 

"  Q.     Has  the  holding  of  the  vessel  to  leeward  from  where  it 

supposed  the  seals  are,  before  the  boats  are  sent  out,  to  avoid 
GO  ■   the  scent,  anything  to  do   with   it  ?     A.     No,  that  has   not  so 
"  much  to  do  with  it. 

•' Q.  It  has  not?  A.  No,  sir ;  a  vessel  among  the  seals 
"  cannot  tell  whether  they  are  to  windward  or  to  leeward  of  the 
"  vessel." 


.ij  .1 


i'  {  I 


I  i 


U: 


i!.f|.: 


iiilf 


\i 


246 


(Mr.    Boilwoll's    Argument.) 

So  that  really  all  the  benotlt  the  captain  can  get  from  experi- 
ence i;i  the  position  wliere  the  .seals  are  likely  to  be;  then  the 
small  boats  are  .sent  out  and  they  tind  the  seals. 

Now,  this  an.swer  is  not  quite  what  was  expected  from 
Captain  McLean,  and  he  is  followed  up  in  this  manner: — 

"  Q.  ('an  an  experienceil  captain  of  a  vessel  tell  from  seeing 
"  a  few  seals  whether  he  is  near  a  gre'it  body  of  seals  ?  A.  Of 
"  courst-  lio  cannot  tell  whether  there  are  a  body  of  seals  there 
"  until  he  has  huntecl  there. 

'  Q.  Are  there  indications  which  go  to  shew  that  he  may  be 
"  on  the  margin  of  a  great  body  of  seals  when  he  sees  a  few  ? 
"  A.     Yes,  sir,  he  can  tell  pretty  near. 

"  Q.  And  have  his  movements  from  place  to  place  anything 
"  to  do  with  it  I     A.     It  has,  sir." 

That  completes  Captain  McLean's  evidence  on  that  point; 
and.  having  shewn  your  Honors'  how  little  there  is  in  this 
20  statement  which  controverts  the  position  we  have  taken,  I 
will  read  ('a[>tain  McLean  against  himself  on  the  same  ([ues- 
tion,  and  this  need  not  be  taken  into  the  notes  either,  because 
it  is  set  out  in  full  in  our  ie[)ly  ;  but  it  is  convenient  for  your 
Honors'  understanding  that  it  should  be  read  at  this  point.  It 
is  piintt'd  at  page  2()  of  our  reply.  Captain  McLean,  in  the 
examination  inimediatel}'  preceiling  this  I  am  about  to  read,  had 
been  examined  with  reference  to  mackerel  fishing  on  the  Atlantic 
coast. 

(Mr.  Bodwell  then  read  the  evidence  of  McLean  as  quoted  at 
30   p.  2(j  of  the  reply  of  (heat  Biitain). 

Captiiiii  McLean,  as  you  observe,  puts  seal  hunting,  mackerel 
fisbiiig  ami  eodtisbing  upon  the  same  basis,  and  therefore  wc 
know  where  we  stand.  With  reference  to  codfishing,  mackerel 
tisliing,  and  that  class  of  business  we  are  within  the  realm  of 
authority.  We  have  the  Fortune  Hay  cases  for  our  guidance, 
the  "  llisoluto  "  and  the  "  Argentino." 

The  Commissioner  on  the  part  of  the  United  States  : — You 
have  Jiot  got  any  mackeiel  Hshing  business. 

Mr.  Hodwell  : — Well,  eodtisliing  at  any  rate;  the  "  Risoluto," 
40  was  on  a  codfishing  voyage,  if  I  remendier  correctly,  and  I  think 
so  was  the  "  Argentino."  However,  I  say  w(!  know  where  we 
are,  because  that  class  of  cases  has  been  the  subject  of  judicial 
decision,  and  if  your  Honors  are  once  convinced  that  seal  hunting 
occupies  relatively  the  same  position,  you  know  what  kind  of 
judgment  you  will  be  able  to  give  upon  the  authorities  which 
have  been  cited  to  yoir 

I  now  pass  over  the  evidence  next  (juoted  that  of  Captain 
Raynor  anil  Captain  Miner,  because  it  is  in  the  sanie  line  with  that 
of  Captain  McLean,  and  does  not  add  anything  to  what  has  been 
50  said  by  him.  But  there  is  a  witness  on  whom  my  friends  rely,  and 
that  is  Mr.  Alexander  of  the  Uidted  States  Fish  Commission,  a 
man  brought  buforo  your  Honors  as  one  who  had  been  sent  out 
in  a  .scientific  capacity  to  make  enquiries,  to  get  information  and 
furnish  data  generail}-  upon  which  he  could  form  an  expert 
opituon.  Therefore  the  United  States  have  good  reason  to  rely 
on  this  witness  to  a  vt-ry  great  extent.  His  evidence  in  chief  is 
also  set  out  in  full  in  the  United  States  argmnent  from  page  103 
to  page  10(i.  It  will  not  be  necessary  to  take  into  the  report 
such  particulars  of  it  as  1  shall  read  ;  but  I  wish  to  call  your 
GO  HoiKjis'  attention  to  the  very  guarded  statements  which  Mr. 
Alexander  makes,  and  to  point  out  to  yon  that  they  are  not 
necessuriU'  inconsistent  with  our  statement  of  the  case  or  the 
evidence  which  we  have  adduced.  I  shall  not  take  th.e  time  to 
read  the  whole  of  this,  but  only  some  extracts. 


10 


20 


(M 
as  quo 

In 
Honor.' 
eviden 

"  ence, 

'■  Q. 

"  rate 
"  of,  du 
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"  winil 
Th 
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jiortion 
always 
was   bio 

30  will  obsi 
aud  I  su 
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general 

ilefei 
United  s 
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gether,  ai 
your  Hoi 

40  "Mr  Alex 

■;q. 

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t)0 


•Q. 


247 

(Mr.    Bodwull's    Argument.) 

(Mr.  Rod  well  readn  extracts  from  Mr.  Alexandoi's  testimony, 
aH  (jiioted  at  pages  lO-t,  1!).')  of  the  United  States  argument.) 

In  addition  to  the  portions  I  have  just  read,  I  also  call  your 
Honors'  attention  to  the  following  extract  from  Mr.  Alexander's 
evidence  (|Uoted  at  page  195  of  the  United  States  argument : — 

"  Q.  What  would  you  say,  from  your  knowledge  and  experi- 
10  "  etice,  as  to  the  weather  in  the  Sea  ?     A.     It  is  varialile. 

"  Q.     Is  it  variahle  in  ditl'erent  localities  in  the  sea  ?     A.  It  is. 

"  Q.  Can  you  illustrate  that  in  any  way  ?  A.  I  can  illnst- 
"  rate  it  Ity  a  cruise  I  made  in  the  '  Louis  Olson,'  hefore  spoken 
"  of,  during  the  month  of  August.  A  larger  portion  of  it  we 
"  wen^  to  the  west  and  northwest  of  the  seal  islan<ls,  or  the 
"  Priliylof  Islands,  during  which  titne  we  only  lowered  the  nuin- 
"  her  of  days  which  I  have  mentioned  ;  and  nearly  all  th«  time, 
"  it'  not  ([uite  all  the  time,  two  degrees  south,  or  two  and  a  half, 
"  as  the  case  may  he,  down  at  what  they  call  the  Bogosloff 
20  "  (Irounds,  there  were  lowerings  made  every  day,  and  a  largo 
"  number  of  seals  wisre  heing  taken,  while  we  were  in  gales  of 
"  wind  nearly  all  the  time." 

The  statement  here  made  does  not  in  any  sense  contradict 
that  of  Captain  Hackett,  anil  other  witnesses,  who  say  that  as  a 
general  thing  whore  it  is  had  weather  in  one  part  of  the  sea,  it 
is  had  in  other  parts;  becnuse  Mr.  Alexander  i.s  speaking  of  a 
portion  of  the  sea  which,  from  tho  very  nature  of  things,  must 
always  have  comparatively  fine  weather  except  when  the  wind 
was  blowing  from  one  particular  direction.  It  is  also,  as  you 
30  will  observe  a  very  guarded  statement  made  hy  Mr.  Alexander, 
Kud  I  submit  not  at  all  sufficient  to  support  the  position  of  the 
United  States  that  the  storms  of  Behring  Sea  are  local  and  not 
general  in  their  nature. 

lleferring  still  to  Mr.  Alexander's  evidence  as  quoted  in  the 
Ignited  States  argument  it  is  a  case,  your  Honors,  in  which  the 
half  has  been  told,  because  a  verj'  considerable  portion  of  Mr. 
Alexande's  testimony  has  been  left  out  of  the  argutnent  alto- 
gether, ami  I  will  now  proceed  to  read  it  to  your  Honors.  If 
your  Honors  will  refer  to  the  Record  at  page  4S1,  you  will  find 
40  Mr.  Alexanders'  cross-examination  that  I  aui  about  to  read  : 

■' Q.  I  believe  your  experience  has  been  that  the  seals  were 
"  (piite  tame  in  Behring  Sea,  were  they  not  ?  A.  At  times  they  are. 

"  Q.  In  July  and  August?  A.  Sometimes  they  are  and 
"  sometimes  not. 

"  Q.     A.s  a  rule  ?     A.     It  depends  upon  tho  weather. 

"  Q.  As  a  rule,  are  they  not  easily  approached  ?  A.  Possi- 
"  bly.     I  say  under  certain  circum-^tances,  yes. 

"Q.  I  believe  that  your  experience  has  been  that  they  are 
'  quite  plentiful  during  July  and  August  in  Behring  Sea.  A.  I 
,jO  "  have  seen  them  quite  plentiful. 

"  Q.  As  a  rule  you  have  seen  them  in  large  numbers  have 
"  you  not  ?  A.  Well,  that  would  depend  on  what  constitutes 
"  large  quantities." 

Then  there  is  an  interruption  and  discussion  by  counsel  and 
the  examination  proceeds  at  page  48S,  line  GO  : 

"  (i.  You  admit  that  every  year  you  went  to  Behring  Sea 
'you  found  a  large  quantity  of  seals,  both  in  Juh'  and  August  ? 
"  A.     Found  a  larger  quantity  in    tho  j-ear  189.")  than  we  did  in 

■  IHIH. 

CO        "  i).     But  in  both  yeai's  you  fouml  a  large  quantity.     A.     A 
"  considerable  quantity. 

'  (}.     Both    in  July    and    August?     A.     Both    August    and 

■  September  1894,  a  few  in  July,  we  were  not  hunting  in  Jul}*, 
'  we  passed  through  them  '  "   our  way  to  the  hunting  ground.s. 


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(Mr.   Bodwell's   Argument.) 

"Q.  And  from  your  observation  you  have  ascertainetJ.  so 
"  far  us  you  were  able  to  ascertain,  tliat  from  year  to  year  they 
"  remained  in  the  Hehring  Sea  in  iar^e  quantities  in  July  and 
"  August  ?  A.  That  is  tlie  natural  sealing  grounds  during  those 
"  months  in  Behring  Sea ;  there  must  be  a  large  quantity  of 
"  fish  on  which   they  live  in  Behring  Sea  around  the  PribyioH" 

10  "  islands  at  that  time,  they  being  fish  eating  marDinals,  of  course 
''  there  must  be  a  large  number  of  fish  in  order  for  them  to  sub- 
"  si  St. 

"  Q.  And  I  believe  jou  have  ascertained  also  tliat  they  were 
"  not  easily  frightened,  and  they  could  be  easily  approacheil  as  a 
"rule?     \.     But  that  rule  is  subject  to  variations. 

"  Q.  Have  you  not  ascertained  that,  and  have  you  not  made 
"  reports  to  that  eflVct  ?  A  In  a  great  many  ca.ses  they  are 
"quite  easily  approached,  but  there  are  times  when  'hey  are 
"  not. 

20  "  Q.  Have  you  not  made  several  reports  to  your  Govern- 
"  ment  to  the  eflect  that  they  are  easily*  approached  ?  A.  I  think 
"  you  will  find  on  looking  at  the  reports  that  the  statement  may 
"  be  modified  some,  but  there  were  conditions  under  which  they 
"  can  be  easily  approached,  I  think  that  you  will  find  that,  I  am 
"  not  positive. 

"  Q.  Will  5'ou  refer  to  the  statement  that  you  have  made, 
"as  published  in  the  Senate  document  number  1M7,  page  190, 
"  and  say  if  you  have  not  made  the  follcwing  statement  in  that 
"connection   when  j'ou  were   on  the  ocean:  'We  soon  learned 

30  "  that  they  were  iinusally  tame,  as  we  approached  near  enough 
"  to  touch  one  with  a  spear  pole  that  was  in  the  boat.  'I'hey 
"shewed  little  signs  of  fear,  notwithstanding  that  we  were 
"  within  30  feet  of  them  for  full}'  five  minutes?'  A.  Yes,  si i, 
"  that  is  correct. 

"  Q.  Did  you  also  make  the  following  statement  ?  (refer- 
"  ring  to  volume  S,  page  103,  of  the  American  llepiint.)  A. 
"  That  is  correct. 

"  Q  I  believe  that  you  made  this  report  also  on  page  198  of 
"  the  same  document    137   as  of  the  .')th   of  August : — '  A  largo 

40  "  nund>er  of  seals  was  noticed  ;  they  were  frequently  seen  p!ay- 
"  ing  about,  sometimes  on  the  crest  of  the  waves,  and  then  in  a 
"hollow  of  a  sea.  They  .seemingly  had  no  fixed  course,  but 
"  would  swim  in  one  direction  a  half  a  mile  or  so,  return  aud  go 
"in  an  opposite  way.  It  is  more  than  likely,  ha<l  the  wind  been 
"  blowing  a  strong  gale,  they  would  all  have  been  bound  in  one 
"  direction.'     Is  that  correct  ?     A.     It  is. 

"  (}.  And  you  reported  also  to  the  effect  that  they  were  not 
"  easily  frightened  by  vessels,  that  vessels  being  amongst  them 
'•  had  not  the  effect  of  frightening  them." 

.')0  Then  there  is  an  interruption  and  a  discussion,  and  the 
exanunation  is  continued  on  page  4-iS."),  line  10  as  follows;  To 
witness — 

"  Q.  From  your  experience  is  it  not  a  fact  that  the  seals  are 
"  not  easily  frightened  even  when  vessels  are  amotigsi  them  > 
■'  A.  I  have  seen  them  on  several  occasions  when  they  were  not 
"  easily  frightenei'.,  and  I  have  also  seen  them  on  other  occasions 
"  when  they  were. 

"  Q.  Did  you  make  the  following  statement  in  Document 
"  137,  Part  2,  |)age  125,  '  When  (juite  near  them,  one  of  the  seals 

GO  "  lifted  its  head  up,  but  the  sight  of  the  vessel  caused  no  alarm. 
"  Having  no  boat  to  lower,  or  spear  to  throw,  a  loud  noise  was 
"  made  liy  shouting  <iiid  lieating  upon  a  tin  can.  This  did  not 
"  have  the  effect  of  frightening  them  ',  ami  also  on  the  same  pa^e 
"  '  At  7  a.  m.  a  sleeping  seal  was  observed    under  our  lee,  close 


10 


•20 


■■w 


249 

(Mr.    Bodwell's   Arfjument.) 

"  aboard,  but  not  in  n  |)osition  to  detect  us  \iy  the  sense  of  smell. 
"  A  canoe  was  .soon  launched  and  started  in  pursuit,  but  the  short, 
'  clioppy  sea  made  it  some  what  ditiicult  to  catch  it.  In  calm 
"  weather,  or  at  times  when  there  is  only  a  li<{ht  wind  stirring, 
"  a  canoe  in  approaching  a  seiil  isgi^neraliy  paddled  <lirectly  from 
"  the  leeward,  but  in  a  choppy  sea  such  as  prevailnl  on  this 
"  occasion,  an  Indian  always  approaches  side  to  the  wind,  which 
"  brings  the  canoe  in  the  trough  of  the  sea  and  prevents  it  from 
"  making  any  noise  that  would  disturb  the  sleeper  '  ?  A.  That 
"  is  correct. 

"  Q.  On  page  129  of  the  same  document,  clid  you  make  the 
"  following  Htatonient,  "  No  .seal  life  was  observed  mitil  the  mid- 
"  die  of  the  day,  when  one  seal  was  noticed  asleep  not  far  from 
"  the  vessel,  but  so  soundly  that  the  Hupping  of  the  canvas  did 
"  not  disturb  it.  It  was  captured.  Its  stomach  was  empty  ? 
"  A.     I  did." 

"  Q.  And  on  page  12-1'  of  the  same  document  ilid  you  make 
"  the  following  statement  > — '  Late  in  the  afternoon  we  p!iss(?d 
"  close  to  such  a  patch  covering  a  considerable  area,  in  which  six 
"  seals  wore  i)laying.  They  paid  no  attention  to  the  vessel, 
"although  within  one  hundred  yards  of  them.  A  hunter  with 
"  a  shot  gun  could  have  captured  two  or  three  of  the  number, 
"  and  an  Indiim  with  a  spear  woild  have  secured  at  least  two  ? 
•  A.     I  did. 

"  Q.  And  further, — at  5  p.  m.  the  canoes  returned  with  a 
"  catch  of  42  seals  ?     A.    Yes,  that  is  conect. 

"  Q.  *-id  on  page  1:03  of  the  first  part  of  the  same  document, 
"  .lid  you  .ake  the  following  statement  f  'On  a  day  like  this. 
"  when  seals  showed  no  inclinati<m  to  sleep,  shot  guns  in  the 
"  hands  of  skilful  hunters  would  have  done  very  destructive 
"  work  to  the  soni  herd,  for  experienced  hunters  kill  nearlj',  if 
"  not  (piite  as  many  travelling  seals  during  the  course  of  a  season 
"  as  sleeping  ones  ?'     A.    That  was  correct. 

"  Q.     Based  on  your  observations  ?     A.     Yes." 

"  Q.  Do  you  mean  that  they  would  have  been  caught  ?  A. 
"  I  mean  a  large  percentage  of  them  would  have  been  caught,  and 
"  that  was  the  meaning  I  intended  to  convey. 

"  Q.  Did  you  not  also  find  at  times  that  even  the  firing  of 
"  guns  would  not  disturb  them  ?  A.  I  do  not  recollect  of  p,  case 
"  of  that  kind,  where  the  firing  of  guns  would  not  disturb,  unless 
"  they  might  be  quite  a  distance  removed  from  the  vessel,  or 
"  bnat  po.isibly,  but  I  do  not  have  a  recollection  of  anything 
of  that  kind.'' 

The  extracts  which  I  have  just  read  from  the  evidence  of  Mr. 

Alexander  (|Ualify  to  a  considerable  extent  the  statements  which 

had  been  pieviously  made.     There  is  another  piece  of  evidence 

.■)0  from  the  same  witness,  being  his  cross-examination,  page  4H.S  : — 

"  y.  Look  at  this  document,  and  I  will  read  the  following 
"  from  your  report: 

"  On  the  next  ilay,  ")4.S  north  latitude,  1")7.4  west,  we  saw 
"  our  first  seals,  20  in  number,  12  of  which  were  sleepers.  In 
"  the  afternoon  we  saw  six  seals,  about  half  a  mile  from  the 
"  vessel  feeding  in  a  bunch  of  .seaweed.  The  sea  at  that  time 
"  was  perfectly  smooth  with  a  light  air  astern.  The  two  hunters 
"  and  myself  started  out  in  a  boat  to  watch  them,  anil  to  see 
"  how  near  we  could  approach  without  disturbing  them.  Wo 
soon  learned  they  were  unusually  tnme,  as  we  approached  near 
enough  to  touch  one  with  a  spear  pole.  They  showod  little 
sense  of  fear,  notwithstanding  we  were  within  30  feet  of  them 
for  about  ten  minutes,  diving  under  theseaweeil  and  cimstantly 
thrusting  their  heads  through.     It  saemed  to  afford  them  great 


40 


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250 


(Mr.   Bodweir.s   Argument.) 

"  pluaHiirc.  Tlicy  paiil  littlo  attention  to  us,  and  .seemed  almost 
"  inditferent  as  to  how  near  we  approaclicd,  as  we  did  freijuently. 
"  Tliis  caused  the  hunters  to  exclaim  several  times, '  It'  we  only 
"  hud  II  gun  we  could  kill  them  all.' 

"  Is  that  correct  ?     A.     Yes." 

In  the  re-examinntion  there  was  an  etiort  made  to  show  that 
10   these  weie  unusual  events  which  Mr.  Alexander  had  heen  refer- 
ring to,  hut  the  whole  mutter  was  settled  hy  a  t|Ucstiou  asked  hy 
the    I'ommissiuner   on    heholf    of    Her    Mnjesty    at    l>ago    4!)1, 
line  40  :— 

"  Q.  I  suppose,  .Mr.  Alexander,  we  are  to  understaml  that  the 
"  lepoits  that  you  made,  to  the  extent  that  they  have  heen  read, 
"narrated  true  ciiouiiistunces  ?  Of  cour.<e  yon  will  say  yi's  ? 
"  A.  Tliey  are  truthful  to  the  extent  they  go  and  suhject  to  any 
"  i|uulilii'ati(iiis." 

Therefore,  we  have  this  witness  saying  that  the   rule  is  to 
20   find  large  (|iiuntities  of  seals  sleeping,  and  that  when  thiy  are 
slfcping  iIk'V  are  easily  taken,  and  that  the  exceptions  are  parti- 
cular   conditions,    such    as    wind,  weather   and    hunger,   which 
rentier  the  seals  diHiciilt  of  capture. 

-Vt  pages  10()-1!>7  of  the  United  States  aigument,  there  are 
two  (piotutions  from  the  case  at  Paris,  which  are  cited  here  as 
heiny  iin  I'xaet  reridi'iing  of  the  eviiknci'  licfore  your  llonrns. 

(Mr.  Modwi'll  lii-re  read  extracts, ami  al.so another  at  the  hottom 
of  pngi'  litis  and  another  at  page  727,  line  .")().) 

iJut  if  your  lloiior.s  will  refer  to  tlie  evidi'uce  on  page-  727  at 
:tO   lino  .^0,  it  will  be  shewn  that  tlichmiters  were  not  all  experienceil 
nun.      lie  h:id  two  who  werr  not  experieiieed. 

Another  contingency  which  I  havf  referieil  to,  ami  upon  which 
an  arginiient  is  alti'nipti<l  to  he  made  hy  tin' American  counsel  is 
refrind  to  in  their  ari;unii'nt  at  page  l!)!l  at  the  holtom 
of  the  page.  The  evidence  referred  to  is  that  of  V.  N.  l/'ox.  Tlie 
following  statements  should  he  add»!il  to  the  portion  (pioted, 
because  it  gives  a  better  understanding  of  what  the  witness 
really  said  upon  the  sulject.  I  ask  your  Honors  to  consider 
the  statement  Ik;  makes  at  page  (il2  from  line  5 1  to  the  end 
4t)   of  his  re-examination  : — 

'•  (}.  You  were  askeil  liy  .Mr.  Warren  as  to  whether  there 
"  was  not  a  good  deal  of  luck  in  this  mutter,  and  particularly 
"  whitiii'r  theie  was  not  a  good  deal  depended  on  the  way  the 
"  captain  handled  his  men  ?  an<I  yu  said  there  was  ?     A.  Yes  sir. 

"  (}.  Assuming  that  you  have  a  captiiin  who  knows  how  to 
"  handle  his  men.  there  is  not  much  chance  about  it,  is  there  ? 
"  A.  I  consider  tlu'  chances  are  whether  the  captain  stays  among 
"  them  and  gi'ts  them  or  not. 

"  l^.If  you  once  find  seals,  the  captain's  duty  is  to  keep  among 
.50  "  them  ?     A.     Yes,  sir. 

"  Q.  And  if  you  do  that  is  there  much  chance  about  it  ?  A. 
"  Nr  chance  whatever. 

'■  Q.     Why?     A.     If  you  stay  among  them  M)U  .vill  get  them. 

"  (^>.  Do  seals  herd  together  as  .Mr  Warren  suggests?  A. 
"  I  have  seen  them  that  way. 

"  Q.  As  a  matter  of  fact  are  the  seals  that  ytni  gel  scalterecl 
"  about  heie  and  there  !     A.     Yes, 

"  Q.     Coming  down  to  this  point  of  chance,  did  you  ever  go 
"  on  M  voyage  when  you  did  not  find  them  ?     A.     I  never  did. 
(iO         "  Q.     ( liven  that  you   once  find  the    seals  is  there  anymore 
"  chance  about  it  than  when  you    find    mackerel   when  you  are 
"  mackerel  fishing.     A.     No,  sir. 

■'  Q.  Coming  back  to  the  point  about  the  seals  being  all  in 
"  a  herd  together,  is  that  the  case  at  all  in  the  months  of  July, 


251 

(Mr.  Boii well's   Argument.) 

"  August  and  September  ?     A.     I  have  never  seen  tliem  in  that 
"  way. 

"  Q.     How  do  you  find  the  seals  thk-n  ?     A.     Scattered  aliout. 

"  Q.  On  certain  {^rounds  ?  A.  I  seldom  finil  them  cm  the 
"  „r»ne  grounds. 

"(I.     tlow  many  will  you  find  together,  as  a  rule  ?     A.  Three, 
](»  "  or  four,  two;  very  often  one. 

'■  Q.  And  this  idea  of  largo  herds  with  watchmen  to  keep 
"  the  pelagic  sealer  off  is  there  anything  of  that  kind  in  Behring 
"  Sea  ?     A.     Not  in  my  experience. 

"  Q.  Do  you  find  them  in  larger  hodies  on  the  southern 
"coast !     A.     Yes,  sir. 

"  Q.  When  they  are  going  up  to  the  Sea  ?  A.  On  the 
"  southern  coast  wi!  find  them  in  large  hunches. 

"  Q.     And  the  renmrks  you  have  made  when  asked  about  25 
"  seals  together,  and  that  sort  of  thing,  does  that  apply  to  Behring 
20  "Sea?     A.    No  sir. 

"  Q.  Dill  j'ou  ever  meet  a  mass  containing  as  many  as  25 
"  seals  close  together  in  Behring  Sea  at  once  ?     A.     No  sir. 

"  Q.    You  meet  them  in  scattered  numbers  >     A.    Yes  sir. 

"  Q.  Over  the  feeding  ground  ?  A.  That  is  the  ease,  yes 
"  sir." 

So  that  the  only  point  is  that  the  captain  should  stay  among 
the  seals,  and  if  he  does  he  will  get  them. 

I   have    read   this   evidence   into   the   notes  because   it    will 
be  referred  to   frequently  in  the  argument  and  it  is  convenient 
31*   to  have  it  togethei  in  one  place. 

R'firring  hi-re  to  Captain  Cox's  evidetice  we  find  this  .state- 
ment in  the  American  aigument : — 

•'  It  is  needless  to  say,  in  connection  with  tin-  witness' 
"  statement  that  the  seals  iire  found  '  scattered  about,'  and  '  three 
'•  or  four,  or  two  '  togtjther,  '  very  often  one,'  that  the  chances  he 
"  refers  to  are  sufficiently  numerous  to  make  the  probable  suc- 
"  cess  of  staying  among  ti.em  very  uncertain." 

But  that  is  not  the  (piestion.  He  says,  and  that  is  the  point 
we  make,  it  is  within  certain  liu>its  that  these  seals  arc  found, 
40  and  when  you  once  get  on  the  fee-iing  grounds,  having  reganl  to 
the  habits  of  the  seal,  it  is  not  a  difficult  thing  for  a  vessel  to 
stay  among  them.  It  is  not  meant  that  they  are  scattered  about 
all  over  the  Sea,  but  ratliei'  that  they  are  within  certain  defined 
bounds,  and  a  vessel  can  keep  in  that  vicinity  and  the  small 
boats  ca»i  find  the  scattered  seals. 

At  pages  201  anil  202  there  is  a  quotation  from  Captain  Cox 
in  order  to  support  the  contention  that  Indians  were  hard  to 
control  and  were  superstitious,  and  this  case  is  the  one  instance 
in  which  that  contention  might  apj)!y,  but  it  is  the  onl}-  case  in 
■'if  which  it  can  be  said  that  the  mutiny  of  Indians  for  superstitious 
reasonj  resulted  in  breaking  up  the  voyage.  We  do  not  deny 
that  particular  case,  but  we  sa^'  that  that  .was  an  exceptional 
instance,  as  all  of  the  rest  of  the  evidence  shews. 

At  page  205  there  is  answer  quoted  from  the  evidence  of  (J. 
(,'.  Oerow,  who  .says  "  You  may  be  amongst  lots  of  seals  and  not 
"  kill  any."  That  answer  should  be  read  in  connection  with  the 
question  which  was  asked.  The  (juestion  to  which  this  answer 
WHS  given  is  a  very  long  question,  in  which  there  is  lead  to  him 
an  eiitr}'  out  of  his  log,  page  I40S,  line  (5."): — 
<!'•  "  Q.  Now  on  the  Kith  August,  this  entry  is  uuide  in  this 
"  book,  and  I  will  read  it :— '  Fresh  south  wimland  foggy.  Boats 
"  out  and  returne<l  at  noon  with  12  seals  in  all,  viz.,  .1.  Shields, 
"  (j ;  Mr.  Getow,  4;  W.  Parker,  2  ;  others  none.  Day  ends  with 
"  strong  breeze  and  fog.' "     And  the  following  entry  is  made  on 


|l    I' 


'\n 


I' 


:f^ 


mm 


252 


(Mr.    Bodwell's    Ar^^utncnt.) 

the  17th  August : — "  Strong  soiithwcKt  wiml  ami  foggy.  Veasol 
'  lying  umlor  tlie  nininHail.  One  sen!  sliot  from  tlie  deck  hy 
"  James  Shields.  Many  seals  seen  from  the  vessoi  during  the 
"  day."  When  these  seals  were  nuiueioiis  around  your  vessel,  it 
"  appears  that  one  day,  the  I'lth  August  you  got  111,  and  on  the 
"  day  following  all  the  hoats  took  only  12  seals  ;  and  on  the  fol- 
10  "  lowing  day,  when  the  observation  was  made,  that  many  seals 
"  were  seen  around  the  vessel  during  the  day,  none  were  taken  ; 
"so  the  fact  that  yuu  did  not  seal  on  these  days,  viz.,  the  KJth 
"  and  17th  August,  and  ilid  not  take  any  seals  with  the  excep- 
"  tion  of  ahout  twelve  ;  was  that  due  to  the  fact  that  the  vessel 
"  was  working  out,  or  was  it  because  there  was  wind  and  fog  ? 

"  A.     You  may  he  among  lots  of  seals  and  not  kill  any." 

The  statement  is  a  general  one  and  has  no  particular  weight. 
It  ciiiinot  lie  (|U(iteil  as  an  authority  for  the  proposition  asserted 
hy  the  ITnited  States. 
20  At  the  bottom   ot  page  20.")  there  is  a  referetice  to  the  evi- 

dence of  Ileppen  and  a  (|iiotation  is  given  from  which  the 
inference  may  be  drawn,  that  he  had  left  the  Sea  in  that  year 
on  the  10th  August  on  account  of  bad  weather.  Hut  in  connec- 
tion with  that  his  evidence  should  be  reail  bvcause  the  whole 
story  should  be  taken  together.  At  page  307,  line  10,  he 
testifies  as  follows  :— 

"  Q.  When  iliil  you  leave  the  Behring  Sea  ?  A.  We  left  on 
"the  14th  or  ir)th  of  August. 

"Q      Why  did  you  leave  on  the  14th  or  loth  of  August  ?     A. 
30  "  WpH,  the  Indians  wanted  to  go  home. 

"Q.  Did  they  object  to  remaining  anj' longer  ?  Yes,  they 
"  were  afraid  I  think,  they  objected  to  staying  any  longer. 

"(}.  Thev  were  not  used  to  going  to  Behring  Sea,  1  suppose. 
"  A.     No,  sir." 

So  that  it  is  not  very  safe  to  tlraw  any  positive  infer- 
ence from  that  evidence.  It  is  a  n-asonable  deduction  from 
the  whole  statement  that  the  reason  why  the  Indians  were 
frightened  was  on  account  of  the  stories  they  had  heard  about 
seizures. 
40  And  now,  having  carried  your  Honors  over  the  whole  of  their 

contention  uj)on  the  evidence,  I  will  here  sum  up  the  diU'erent 
contingtMicies  as  stated  in  the  United  States  argument  aH'ecting 
seal  operations,  and  also  state  the  answer  which  we  make. 

The  first  contingenrj-  mentioneil  is  in  relation  to  the  small- 
ness  of  the  vessels,  that  has  been  explained  hy  the  fact  that 
small  vessels  were  chosen  designedly  and  they  were  regarded 
as  safe  and  satisfactory. 

Their    second    contention    is    the    perils   of    the    voyage    to 
Behring  Sea. 
50         The  answer   is  that  the  voyages  were  made  continually  by 
vessels  without  any  special  danger. 

Third,  tliiit  boats  had  r.  certain  superiority  over  canoes  anil 
the  British  sealers  used  a  great  many  canoes.  The  answer  to  this 
is  that  there  is  no  evidence  or.  which  it  can  be  asserted  as  a 
positive  fact  that  boats  in  themselves  had  any  superiority  over 
canoes.  Cances  woulil  stand  the  weather  antl  were  better 
equipped,  the  Indians  used  both  guns  and  spears,  canoes, 
hunted  during  fogs,  and  their  meihuds  were  as  successful  as 
those  of  white  men.  If  they  did  not  meet  with  the  .same 
GO  success  some  reason  must  exist  other  than  a  uuggestion  that 
their  e(|uipment  was  incomplete. 

The  next  suggestion  is  that  on  account  of  such  defects  the 
Indian  hunters  were  not  as  good  as  white.  Whatever  may  be 
the  cause  of  the   smaller  catch  of  Indian  liunteis,  1  submit  to 


258 


(Mr.    Boilwell's   Argument.) 

your  Honor!)  that  we  have  made  a  far  more  liberal  allowance 
than  we  are  cniled  upon  to  make  in  tliat  roi^anl.  The  statement 
pre|>arc<i  l>y  Mr.  Peters  i<«,  perhaps  the  iu-st  answer  to  the  con- 
tention. The  catch  of  the  canoes  coinpareH  veiy  favorably 
indeed  with  the  catch  of  the  heats,  hut  in  an}'  event,  under  our 
method  for  computing  the  estimated  catch,  we  make  this  deduc- 
10  tion  in  every  case  where  Indians  were  employed,  and  I  am  cer- 
tain on  the  evidence  it  is  far  more  lilieral  than  we  are  bound 
to  allow.  We  say  in  our  argument  p.  7!( :  "  It  is  shewn  that 
boatA  take  about  one-third  more  thiin  an  e(|uai  number  of 
canoes." 

We  have  mntlo  up  our  estimate  on  that  basis.  That  is 
clear  from  the  tabulated  statement  wliich  begins  at  page  75  and 
continues  to  the  end  of  page  7f^  of  our  atgument.  In  many 
eases,  of  course,  the  schooniTs  cat  rying  canoes  had  more  hunt- 
eis  than  the  vessels  earring  boats  as  canoes  were  more  easily 
■JO  stowed. 

The  next  contention  which  is  referred  to  in  the  United  States 
argument  ntay  be  summed  up  under  the  heading  of  "  Seal 
baliits."  We  have  shewn  that  the  majority  of  seals  at  tlie  time 
of  hunting  in  Behilng  Sea  were  sleepeis.  and  that  sleepers,  as  a 
rule,  were  easily  taken  and  in  good  weatlier  tlu*  hunters  could 
be  reasonably  certain  of  a  gcod  pntch.  The  argument  based  on 
the  sci-nt  of  the  .seal,  I  explaimd  away  by  showing  the  method 
of  hunting  wliicli  was  udo[)ted.  The  frightening  by  shots  is 
more  inwi;;iniiry  than  real,  because  the  distance  was  such  between 
:fi'  eacli  bnui  tliHt  hunters  in  one  boat  would  not  be  likely  by  firing 
to  frighten  s.  uls  in  the  vicinity  of  another. 

The  inxt  contention  is  that  founded  on  the  alleged  supersti- 
tion of  the  Indians  ami  that  has  already  been  answered. 

The  next  contention  of  the  United  States  Counsel  is  in 
rtdation  to  the  weather,  but  the  answer  is  tliat  foggy  weather 
does  not  prevent  sealing  operations,  although  fog  with  wind  does 
prevent  siieli  operations  when  the  \vin<l  blows  more  than  20 
miles  an  hour.  We  have  made  a  very  liberal  allowance  with 
reference  to  the  question  of  weather,  and  on  that  point  i  refer 
4ti  to  the  argument  for  Great  Hritain,  page  82.  This  is  our  com- 
jHitation.  In  every  case  we  consider  that  as  the  '  Mary  Ellen  " 
out  of  120  days  had  (i.Sj,  M-oiking  ''ays,  none  of  our  vessels 
would  have  had  nioie  working  days  while  they  were  in  the 
Si'ii  than  the  "  Mary  Ellen  "had,  and  we  therefore  make  a  liberal 
allowntiri'  and  give  our  friends  on  the  other  side  the  full  benefit 
of  it. 

Then  as  to  the  experience  of  the  captains,  I  submit  it  does 
not  really  enter  into  the  discussion  for  whatever  truth  there  nuiy 
be  in  it,  it  docs  not  apply  to  our  vessels  at  all  because  the 
"id  exj)erienced  captains  were  with  lis  and  had  control  of  our 
hunters  and  they  did  exceptionally  good  work  when  not  inter- 
"eied  with,  '["he  same  may  be  said  with  reference  to  good 
hunters.  Every  one  of  the  men  mentioned  in  the  evidence  as 
good  liunters  belonged  to  our  vessels,  and  therefore  even  if  it 
were  shewn  upon  the  evid^-nce  that  experienced  captains  were 
essential  to  success — which  I  deny  that  the  evidence  proves — we 
had  tliem  with  us  and  had  the  benefit  of  their  skill. 

With  reference  to  the  opinions  of  the  United  States  experts, 
1  have  shewn  that  tln'v  have  answereii  themselves  on  every  one 
'II  of  the  contentions  put  forward. 

I  submit,  therefore,  that  there  has  been  nothing  shewn  under 
this  chapter  upon  the  uncertainty  of  sealing  which  controverts 
the  position  of  (Jrfat  Britain  or  supports  the  arguments  made 
bv  the  United  States  Counsel. 


I! 


h 


fppp 


884 


(Mr.   Bodwfll'H   Ar>{ument.) 


THK   Dl'llATION   OK  THE  SkAMNO   SEASON. 

The  next  miliji-cl  to  which  I  witih  to  direct  your  Honors' 
attention  is  tiiKt  whicli  is  liiHcnsMiMJ  in  tlie  Ar^tnnont  of  the 
Unittij  States  untie»  tiie  head  of  "  Duration  of  Scalin^j  Sea'^on  in 
Hehriiip  Sea,"  and  I  siihniit  tliat  tlie  eocnsel  upon  the  other  side 
10  liave  not  appieciatfil  the  character  and  s-jope  of  the  argiiineiit 
which  has  lieen  ads'anced  on  helialf  of  (treat  Britain  upon   this 

roint.  In  order  tliat  our  position  may  )ie  fully  and  fairly  stated 
shall  shortly  ^'o  over  tlie  ^ronml  we  have  taken  and  tlien  com- 
pare uui  ur;;iiiueiit  wifii  the  inferences,  your  Honors'  are  askecl 
to  draw  fi  nni  tliiit  portion  of  tlie  evidence  (pioted  in  tlu<  Argument 
for  the  United  States. 

Tliis  .suljt'ct  is  eonsideied  in  our  printed  l)rief  he^dnnini;  at 
p.i;.'e  ()7.  'I"he  tirst  position  we  takt?  in  tliat  ar>,'unient  is  tliat 
althou^'h  senlin;;  in  Hehiin;;  .Sea    was    practically    hegun  in  the 

20  year  IfSStJ,  there  was  a  jrieat  ileal  of  iiiforiuation  concerninjj  the 
C'Jiiditions  of  the  weather  there,  which  had  heen  ac(|uired  and 
was  possesseil  hy  |)ersons  in  Victoria  for  many  years  prior 
to  that  time.  It  is  in  eviilence,  that  a  j;reat  many  whalinj;, 
otter,  ami  walrus  lHiiitin;r  voyajjes  had  taken  place  in  that  sea, 
and  had  heen  prosecuted  for  a  yieat  iiumher  of  years  prior  to 
the  lietjinnin;^  of  sealinj,'  in  1880.  For  iiiitance,  w«  have  in  the 
evidence  of  ('apt.  Miner,  who  was  a  sailiiifj  master  of  considerahle 
experience,  ami  is  a  witness  very  nmeh  relied  upon  hy  tlie  Uniteil 
States,  that  he  was  on  the  const  of  California  otter  hunting.;  until 

•SO  188(1,  and  then  he  came  north  and  went  to  the  Kiirlie  Islands, 
that  afte''wnrds  lie  witit  to  Snn  Francisco  and  the  next  voyajje 
he  was  up  the  coast  sealiti;;  in  the  Hehtin.'  Sea  through  to  the 
Aleutian  coa>-i  liown  to  Okotsk  Sea  and  then  to  Yokohama. 
That  was  in  1881.  In  188(1  he  l)roui,dit  the  '  Penlope  "  from 
Yokahama  to  Victoria  at  ihe  end  of  the  otter  huntinir  voyajje 
and  came  throiiyh  Piehrin;,'  Sea  late  in  the  season.  We  have  also 
a  reference  here  which  is  incidentally  of  considerable  value  upon 
the  k'nj,'th  of  the  seaiinj;  season,  fcr  we  find  in  these  years, 
accordini,'    to    ('apt.    Miner,    that    they    fitted    out    for    lengthy 

40  voyajfes.  At  pai,'o  .")4"1.  Vuw  20,  speaking  of  otter  hunting; 
voya;,'es  in  1881  he  is  asked  ;  "So  then  you  tilted  out  to  hunt 
otter  from  the  1st  of  March  until  the  1st  of  Septemher,"  and  he 
answers,  "  Yes,  until  about  the  latter  part  of  September. 

It  also  appeals  from  the  i-videiice  of  Capt.  Rayiier,  at  paj^e 
4!*2,  line  25,  that  he  was  in  Hchriiij;  Sea  three  years  before  188(). 
Thc^se  were  otter  huntin<;  voyajjes.  On  cross-examination,  at 
paj^e  .")20,  line  30,  you  will  fiiiil  the  statement  that  he  was  in  the 
schooner  "  Otter  "  in  Hehrinf^  Sea  in  l.'8() ;  that  ho  went  in  there 
sealiii;^  before,  but  not  sealinj^  alto;;ethe'-  ;  that  he  went  in  otter 

50  hunting;  and  hunted  seals  for  about  six  weeks.  There  is  also  evi- 
dence to  show  that  there  must  have  been  in  the  nature  of  thinfjs  a 
considerable  amount  of  information  <,'atheri'd  toj^ether  respeciinij 
that  sea  i)rinr  to  188(!,  when  the  matters  occurred  which  have 
«ccasione<l  the  sitting'  of  this  Commission. 

Referring  again  to  this  scht'dule  printeil  at  the  end  of  Volume 
2  of  the  American  Reprint,  you  will  find  a  list  of  vessels  that 
took  seals  in  Hehiing.Sea  from  187')  to  1S92,  and  that  list  shows 
the  following  state  of  affairs.  In  l87o,  1  vessel  ;  187(5,  1  ve.s.sel  ; 
in   1878,  1   vessel:   in    187!»,    2    vessels;   in     1880,    IG   vessels;  in 

(iO  1881,  12  vessels;  in  1882,1.")  vessels;  in  1883,  l.lves.sels;  in 
188',  11  vessels;  in  188.'),  15  vessels. 

Mr.  Lansing: — I  am  sorry  to  interrupt  you,  but  I  should  like 
to  know  when  ami  where  that  was  put  into  the  Record. 

Mr.  liodwell  :— I  did  not  know,  but  it  is  in  the  evidence  some 


25S 

(Mr.   BiHlweU'H    Argument) 

wliere,  mid  even  if  it  were  not,  I  do  not  .see  tiiiit  tliere  is  any 
oljection  to  my  refcrrinjj  to  a  .".tatcment  prepared  liy  tin;  Uoited 
States  for  their  own  use  and  wliich  is  iindoiilitedly  corri'ct. 
Tliere  is  no  dispute  that  tliese  vessels  went  tiiere  just  as  th«y 
are  statetl  in  this  scliedule.  It  is  a  useful  scliedule  and  ijives  us 
a  jjrent  deal  of  information. 
10  Mr.  Lansiiifj: — I  ask  the  question  for  the  reason  that  tliat 
schedule  was  prepared  under  my  direction  and  it  lias  no  reference 
to  Beliring  Sea. 

.Mr.  Hodwell : — I  see  that  it  i""  an  error  on  my  part.  I  have 
always  understood  that  schedule  related  to  Behrinj;  Sea  entirely, 
hut  1  am  willing;  to  tai«'  my  friend's  correction.  I  am  sorry 
liiat  I  did  not  notice  that  partieuliir  fact  in  ci)nnection  with  the 
>ehi'dule,  .vnd  I  am  sure  tiiat  what  I  said  will  not  mislead  the 
Commissioners.  I  may  ^o  tliis  far  with  perfect  saftjty  ;  tluit 
there  had  lieen  a  numher  of  voyaj^es  mad(!  to  Bchrini,'  Sea  prior  to 
20  ISSd.  That  whaliii)^  liad  lieen  carried  on  for  a  numher  of 
yi-ars  is  not  denied,  and  is  referred  to  in  tlie  evidence  which  I 
shall  read  shortly.  Victoria,  under  the  eireumstances,  would 
naturally  he  a  place  where  tliisniformation  would  lie  ^'atliered  to- 
j,'ether  and  Itept  in  uund.  ('apt  Warren,  .Sprin;^  &  Co.,  and 
other  persons  were  en^aj,'ed  in  sealitifj  off  the  west  cnast 
of  Vancouver  Island,  and  tliero  were  several  persons  tra- 
dinj,'  up  the  coast  to  the  north.  The  Hudson  liay  ('ompany 
always  had  a  post  at  Victoria  and  were  extensively  enijta^ied  in 
hnyinf^  furs.  Mr.  Luhhe  and  others  had  estahlishments  there 
30  anil  purchased  turs.  These  men  wouM  in  thr?  ordiiuiry  eoursi'  of 
their  husiness  acquire  eonsiderahle  information  a))iiut  l!ehiinf( 
Sia  and  the  weather  there,  and  esppcinlly  in  IHS3,  when  Mr. 
Luhlie  houi^ht  the  catch  of  of  the  ".San  l)iei,'o"  and  in  lcSH4  and 
ISS.5  when  other  vessels  sold  their  catch  at  Victoria.  From  the 
vei-y  fact  of  these  voyaj^es,  and  the  j)rf)fitahle  results  of  tht;m  an 
e.xcitement  arose,  and  what  may  in  collcquial  language  be  called  a 
"  boom,"  in  sealing  spranj^  up  and  caused  inquiries  to  be  made. 

Your  Honors  will,  in  consideration  of  these  facts,  be  prepared 
to  accept  the  statement  of  the  witness  Gerow   wlien  he  was  e.\- 
K)  arnined  upon  that  point.     At  page  1404,  line  31,  he  says  : — 

"  Q.  You  say  tin;  wdialing  vessels  haii  told  you  that  there 
'■  was  Hne  good  weather  in  Behring  Sea  in  Octolier  i  A.  Well, 
"  I  have  hearil  it  on  whaling  vessels,  and  I  have  heard  it  for  the 
"  last  12  years. 

"  Q.  Prior  to  the  year  hS89,  liad  you  heard  it  from  any  one 
'■  else  except  wliaiing  vessels  ?     A.    Oh,  yes. 

"  Q.  Did  you  hear  it  from  sealing  vessels  ?  A.  Well,  it  has 
"  l)een  understood  by  lots  of  people  here  that  in  October— 

"  Q.  I  am  not  asking  you  what  otlicr  people  understantl. 
."id  "  What  is  your  understanding  '  Did  you  hear  from  anybody 
"  excepting  the  captains  or  mates  of  whaling  vessids  prior  to  IJSSft 
"  that  there  was  good  weather  in  Behiing  Sea  in  (Jctober  ?  A. 
"  I  have  heard  it  generally  understood  that  there  had  been 
'■  months  of  October  in  Behring  Sea  that  has  lieen  the  best  month 
"  in  the  year  for  sealing,  and  plenty  of  seals,  too. 

"  Q.  What  boat  told  you  prior  to  18X9  that  there  was  any 
'  sealing  in  the  Behring  Sea  in  October  ;  what  sealing  boat  ?  A. 
"  What  whaling  lioat  ? 

"  Q.  No,  sealing  boat ;  did  you  hear  all  this  information  front 
(10  ■  whaling  ships  ?     A.    I  have   heard  it  from  whaling  boats  and 
•  also  from  plenty  of  men  in  town. 

■  Q.  Please  confine  yourself  to  a  period  before  1889;  did 
"  you  hear  any  sealing  captain  say  iief'ore  then  that  there  was 
'  tine  weather  in  Behrini;  Sea  in  October  ?     A.     I  have  heard  it 


i>' 


^w\m 


2A6 

(Mr.    Hodwoll's    Argument.) 

"  niiiDn^  til)'  Miilors.     I  ilon't  ilnntit  luit  wlint  I   have  licnril  it 
"  from  Mealing  cnptttitiH  too,  Imt  still  I  wniilil  not  Nwoar  to  it. 

"  (.^.  Do  vcdi  now  lofrr  to  latt-r  yimrN,  or  to  yearn  prior  to 
"  IHMl)?     A.  "  Prior  to  it. 

"  Q.     Did  yon  lit-ar  prior  to  IMS!)  any  <<j'alinf{  captain  say  it  f 
"  A.     0]\,  I  hav«'  licnril  it  licru  !.'>  or  I(!  yoars  a>{0. 
10         "  (j.     I>iil  yoti  hi-ar  any  sunlin;;  captain  prior  to  l.SNO  Nay  that 
"  hfi  wat   in  lii'hrinK  Sua  in  Octitlii-r  ?     A.    No,  all   information 
"  wflH  fiom  whnliTs." 

Tlio  inforniiktion  roniiiii;  from  whalitrs  wan  just  aH  ^oml  us 
information  coming  from  any  other  vcsmi;!-'  or  persons,  liccausi;  it 
relatfil  tn  tin-  weather  in   iiehiin^  S^n. 

I  liuve  called  yoiir  lloriors'  attention  to  tins  eviduncii  and  to 
the  surrounding  ciieinimtunces  to  show  that  as  Ion;;  a^ro  as  |.*>  or 
It)  yiiiH  prior  to  IMSfi  (here  was  in  Victoiia  amori^  thoNe  piirsons 
un^aj;iil  in  the  l»U'<inesi,  knowled;,'(i  that  vessels  of  a  hI/i; 
20  and  character,  similar  to  those  used  in  sealin^r,  could  remain  in 
Ri'hriiij;  Sea  in  the  month  of  Octoher  without  expericnciti;,'  any 
disaster. 

Advanein;,'  anotlifr  step  in  the  order  of  Brf,'uuient,  we  say  tliat 
vessels  of  that  size  af^l  class  actually  did  renutin  in  Hehrin;;  Sea 
until  the  lie;;innin^,  vlie  middle,  and  almost  the  end  of  Septemlier. 

The  (.'omiiii-sioner  on  the  part  of  tin;  United  States  : — 1  do 
not  nnw  leniendier  a  si!i;{|e  case  during  the  years  of  controversy 
where  II  vc'ssel  lemaiiied  sealiii;;  Up  there  after  the  la.st  of  August. 

.Mr.  ISddwell  :— No,  the  reason  was  ther  were  seized  and  taken 
:{()  awiiy.       If  they   had    l)een   allowed   to   stay    they    would  have 
remained. 

Mr.  Jjansin;; : — The  Mollie  Adams"  remained  in  the  Sea 
until  Oetoliei-. 

Mr.  liodwell  :— V'es,  she  hunteii  on  the  islan<ls.  I  do  not  know 
as  I  (jiiite  understand  your  Honor.  We  have  several  instaiici's 
of  vessels  remaining;  in  the  Sen  and  catchin;^  seals  in  Septemher. 
Theie  are  three  cases,  and  I  think  I  will  have  occasion  |fiter  to 
refer  to  them. 

The  Commissioner  on  the  part  of  the   Uniteil  Statt-s  : — I  did 
40  not  mean  to  anticipate  your  atiswer,  hut  I   wanted   to   tix  it  in 
my  memnry. 

Mr.  Hod  well  : — In  l.SMSthe"  Mountain  Ciiief  "  remained  initil 
till!  7lh  of  Septendier.  In  1H90  the  "  Sea  Lion  "  remained  in  the 
Sea  until  the  I4tli  of  Septemher. 

The  (Commissioner  on  the  part  of  the  United  States: — In 
1«9(),  l«!»l,  and  INO'J,  they  hegan  I,)  protract  their  voyaRcs. 

Mr.  Hodwell  : — Hecaiise  tlusy  weie  not  seized.  Hut  the  point 
I  am  on  is  this,  and  for  that  leason  I  suhmit  that  all  the  eviilence 
as  to  later  years  which  was  tendered  was  material  ;  and  a 
50  great  deal  more  of  il  might  have  heen  tendered  and  perhaps 
would  have  heen  received  if  this  point  had  heen  taken  into 
consideration,  that  conditions  of  the  weather  were  no  ditferent  in 
18!»2,  1H!)3,  IH!t4  or  l.S!)."),  from  what  they  had  heen  for 
many  years  hefore  in  Hehring  Sea.  And  if  it  is  proved  that 
the  conditions  of  the  weather  in  later  yearn  was  tliat  ves- 
sels of  the  class  and  character  of  these  sealing  vessels  could 
renuiin  tliere  and  catcii  seals  in  Septendier  and  Octoher,  our  case 
is  strengthened,  when  we  prove  that  wdi(!n  our  vessels  went  there 
in  1<SS()  they  were  fitted  out  to  renuiin  that  lungtli  of  time.  The 
00  fact  that  similar  vessels  remained  in  later  years  helps  our  con- 
tention that  our  vessels  would  liave  stayed  till  the  same  period 
in  \HH(i  and  1H.S7.  It  is  demonstrated  heyond  all  manner  of 
douht  that  there  was  nothing  in  the  weather  itself  wliich  would 
have  made  it  unsafe  for  vessels  of  this  size  and  character  to  have 


(Mr.  lloilMcll'i  ArKUiiiDiit.) 


r<  inaineil  tlixiu  up  In  tlie  latter  piirt  of  Si>nti-iiil>fi'.  At  tlii!4!i(H){i! 
I  wish  to  refer  to  tliu  eviili.-nco  of  ('apt.  Miner,  on  pH;;<«  .'I'l.S,  line 
.;J.     Speakinj;  of  the  war  IHiK)  he  \h  asked  : — 

"  C^.  What  time  iliil  you  leave  I  A.  I  left  tliitt  year  in 
Septenilier. 

'  </     Wliat  tiiiie  '     A.    The  Hrnt  part,  aloii^  llie  Hrnt  prtit  of 
|l)      Scpteniher. 

"  t).     Von  tlnn't  reniehilier  (lie  Week  f     A     No  sir,  I  dont 
I'.'Uieinlier  the  Week." 
Atiil   then  further  alun^;  on   pn^e   .*>.')!),  line  ',i'2,  spuakiii^r  of 
I  >'M.  he  in  H<4kei| : 

"  <^.  What  tini)!  ilid  yon  reach  the  Sea  '  A.  I  foryet  the 
date  I  reached  Onnala^ka,  hut  I  reached  the  sealin;;  LjroiHid  or 
lii';ran  Nealini;on  the  lOlh  of  AugiiNt. 

"  1^.     And   how  lon^  did  yon  seal   in  that   vicinity  '     A.      I 
•sealed  tlie  rest  of  the  season   in  that  vicinity,  within  7<)  or  NO 
•20      niile.s. 

"  (}.     And  catnu  out  of  the  Sea  when  f     A.     I  came  out  of  the 
Sea,  if  I  rememl)er  rij^htly,  ahont  the  l.'>th  of  Septomher." 
.Mr.  liansiri}; : — Is  he  .speaking of  Hehrin^  Sea  i" 
.Mr.  Hodweli : — I  think    there  is  iio  dnuht   whatever  that   lie 
MIS  speakinj;  of  liehrin^j  Sea. 

.Mr.  LauHin^ : — And  what  year  was  h  ' 

.Mr.  Kodwell  : — It  does  not  appear  to  lie  just  there,  hut  I  think 
it  was  in  I  SUM. 

Mr.  liansin^  : — It  is  in  the  year  1H!(4. 
;t(i         Mr.  Hodwell  :— In    1S!»0  the  "  Sea   Lion  "  took   .'{00  seals  in 
I'udiriny  Sea  in  the  month  of  Septemher,  continuing  her  opera- 
tions until  the   14th  of  the  month.     In    l.S!»0  the  "Viva"  took 
•.'(»|.">  seals,  80  of  them  in  Septemher. 

There  is  also  n  statement  of  (Japt.  Alexander  to  this  ellect  on 
|piii,'e  4^1,  line  JJ4,  where  h.;  says  he  was  in  Hehrini;  Sea  in  IN!).") 
lip  to  the  22nd  day  of  Septemher. 

.Mr.  Warren  : — That  was  after  these  seizures  were  made. 
.Mr.  Hodwell  : — But  that  does  not  make  any  diH'erence.  That 
i-  the  mistake  my  friends  make  continually.  The  fact  that  this 
40  c  vidence  relates  to  other  years  does  not  weaken  it  at  all,  l)e- 
(■aiisu  when  we  demonstrate  that  Ihe  weather  was  such  that 
vissids  could  remain  in  that  locality  until  the  latter  part  of 
Si'pteinher,  and  wlien  we  show  that  our  vessels  were  Htti.'il  out 
to  remain  that  time,  the  ar<{ument  is  a  fair  one  that  if  they  had 
licit  lieen  seized  they  would  have  stayed  in  the  Sea  until  the 
latter  part  of  Septemher  if  necessary  to  complete  their  catch. 

.Mr.    Dickinson  :— Your    Honors    will    rememher    that    that 
1  vidence  was  excluded  which  related  to  the  years  after  ISDO.  and 
therefore  we  did  not  meet  that  evidenct!  because  it  was  ruled 
.'lO   out. 

The  (\)mmi.ssioner  on  tlie  part  of  Her  Majesty  : — I  know  we 
I'Ncliided  evidence  of  the  catch  after  a  certain  tinte.  Hut  as  to 
wliether  it  extended  heyond  that  I  am  not  now  prepared  to  say. 
The  C'ommissioner  on  the  part  of  the  ('nited  States  : — There 
IS  evidence  in  the  case  showinj;  that  the  lenjjth  of  the  voyaj;es 
increase<l  after  the  seiz'-'re  was  made. 

The  Commissioner  on  the  part  of  Her  Majesty  ; — I  think  the 

liest  way  is  to  let  it  ^o  as  a  matter  of  argument,  hut  simply  call 

attention  to  it.     I  remember  that  we  did  rule  out  the  evidence 

i>l)  lit'  catch  after  a  certain  year,  and  that  it   was  not  to  he  taken 

into  account  in  making  up  any  average. 

At  half-past  four  o'clock  the  Commission  rose. 


IMailH!'  ' 


Oommissloners  under  the  Oonvention  of  February  8tl: 

1896.  between  Oreat  Britain  and  the  United 

States  of  America. 


I^rjjisliitivo  Council  ('Iihiii'mt,  l'i(iviiuMnl  UuiMinj;, 

At  Halifax,  Supt.  4tli,  IHUT 

At  II.  A.  M.,  till'  CiiiiiiiiiHsioiiurM  took  tlicir  m*iitH. 

Mr.  Dic'kiiisiiii ;  — I  tiiiil  on  <■  viiniiniitimi  of  the  K*'coi'>l.  iniiy  it 
|>li-iis(>  the  (  oniniiNMionft-M.  that  I  was  corntct  in  my  statuiiient  ii~ 
to  the  I'liiiri);  iniiil(>  at  tliu  lii-iiriii;;,  and  tliat  tlif  ruling;  wa^ 
a;;niiist  tlic  rnitcil  States  on  tliu  <|tii!Hlion  of  );oin^  into  latii' 
j'l-ai'H  than  ISSM) — not  only  as  to  tliu  eatnli,  Imt  as  to  tin-  Hcasdii 
20  an<l  all  other  i|n(>siions  hearing  tipoii  thoso  yc^ars.  At  |ia^r 
12.'>4  of  tin-  llu'coni  this  (|ii(!stion  was  aMkcil— Do  yon  know 
wlu'n  till'  Hca.sitn  closi-.s  now  < 

"  (Mr.  Kay  nor  in  on  tint  stand.) 

"  CoiiiiMfl  for  the  Unitod  States ;—"  That  lias  Ixivii  riiltid  uui 
•'  ln'forc." 

'■  Sir  (.".  H.  Tn|)()ui': — "  I  <lo  not  think  soon  uross-nxaniinatioii 

"  Then,"  Thf  Coinnii.ssionur  on  the  part  of  the  United  Stiiifs 
"  We  havH  Iteen  pi()i;eeilin;;  on  the  line  of  excluding;  any  tcsti 
"  inony  v'f  this  kind  after  the  year  1M!)0." 
;}0       yi>'  ^'   H-  Tuppcr: — "  It  seems  to  me  that  I  have  the  rijjlit  tn 
"  a«k  this  i|iie.stion.     This  witness  was  asked  to  jjive  his  "pinicin 
"  a.s  to  what  wa.s  the  close  of  the  sealinj;  season. 

The  ('onnnissioner  on  the  part  of  the  United  States:— "  But li 
".sides  have  heen  very  inconsistent  ahout  this  matter.  Mr 
"Lansing;  tir^t  pot  a  <|Uestion  uf  this  nature,  and  the  Coin- 
"  missionerH  rnled  that  it  could  not  he  put.  Afterwards 
"another  i|Uestion  was  put  relatin<;  to  the  years  subset |Uunl  t<i 
"  IS!(()  and  tlwre  was  a  luiijj  discussion  about  it.  Kor  mj'self  I 
can  .see  no  ;;ood  of  j;oin>f  into  anythini;  which  occurred  since 
40  1S!)0,  except  with  repird  to  one  or  two  nnittcfrs  which  have 
"  been  specially  reserved.  It  is  perfectly  apparent  that  tlu' 
"  methoiis  of  the  seiilinij  tieet  changed  between  1  HUG  and  iH!)0. 

Mr.  Dickinson: — "We  were  prepared  b}'  our  witnesses  to  j;i> 
"  into  matters  relating  to  the  later  years,  but  we  were  preclutlcd 
"  from  duiiij;  tliiit." 

The  Commissioner  on  the  part  of  the  Uniteil  States: — "  If  mv 
"learned  fiietid.  Judge  King,  thinks  it  will  aflbrd  any  light  on 
"  the  subject  I  will  jcjin  him  in  allowing  this  evidence.  For  my 
"  own  part,  it  appears  t')  me  that  it  is  a  waste  of  time  to  go  intu 
50  "  evidence  regarding  these  years  since  1H!((),  l)ecause,  as  I  have 
"  .said,  it  is  very  apparent  that  the  methods  of  the  sealing  lleil 
"  have  thangeil  since  then." 

Mr.  Dickinson  : — '  We  were  precluded  from  giving  evidence 
"us  to  the  events  after  the  year  ISOO,  ami  as  to  conditions 
"existing  since  that  time.  We  thought  the  conditions  hud 
"changed,  an<l  we  bowed  to  the  ruling  of  the  court,  and  did  mt 
"elicit  such  eviilence  from  onr  witnes.ses,  who  have  now  left. 
"Our  witnesses  have  been  discharged  and  it  would  be  maiii 
"  festly  unfair  to  the  United  States  to  re-open  this  (|Ues- 
(iO  "  tion  now." 

The  Commissioner  on  the  part  of  Her  Mi'jesty  : — "  It  seems 
"to  me.  Sir  Charles,  that  it  wouM  lie  advisable  not  to  press  this 
"  evidence.  There  has  Ijeen  a  ruling  which  seems  to  have 
"  covered  such  ea.ses  hs  this." 


if,'.) 

(Mr.  Hiiilwells  Ar^uini'iit.) 

Tliiit  liml  rffcrt'iicu  to  tin'  i-losiii};  til"  tin*  mi'hsdhs  for  t'  o 
|iri'viiius  yours.  At  piisoH  IH.jO  to  iMl,  iiiclusivi',  and  piiiti- 
culiirly  III  pa^eN  iH'Hi  iiml  |H'>7,  thu  iiiiittci'  whm  iipkiri  <liscii>4st.'il, 
iiikI  Sir  CliarloH  Tuppor  j)r<x;«)fc It'll  tt)  i)Ut  in  this  tvsliiiittny.  I 
refer  to  tlie  .tt>Htiiiiot)y  un'eretl  wliuii  tlit;  iliscusMion  eoiiuiit'iieeil 
lit  px^t)  1H'>(>,  tin  the  Attempt  ti)  put  in  eviijeiu'e  (if  1MD4  liy 
10  (Iticunientnry  prtMif.     I  ctintinnetl  the  rciulin^. 

"Tile  ('tiiniiiissitiiier  im  the  pnrt  of  the  I'liitotI  Htiiti'H : — In 
"nut  thin  nither  lno  iiitiilern  history  fur  us:*  Whut  is  tlui 
•'  ihite  tif  it  r 

••  sue.  II.  Tnpper:  — It  it  ti.uci  in  1S1I4." 

Mr.  Dii'lxinstiM  :— '  This  is  tlDnhtless  put  in  nn  an  niliniHsinn  tin 
"  the  piiri  (if  the  Uiiiteil  States  with  re;;iir(l  to  th.-  linliits  of 
"  the  seiilH." 

"Sir  V.  H.  Tnpper;  — Of  ctiurse,  iinil  it  is  very  iin|Mirtiint,  hi'- 
"  cause  thoy  knew  actuiil!}'  iiiort!  iilimtt  it  in  iHiH  than  they  tlii| 
20  "  in    If<S7."      Tlitii  tliere   is    iinollier    oxtnict    wliieli  remls    us 
"  follows,  &('.  : 

"  Sir  t'.  II.  Tiipper: — ('onr< nii'ijj  thesu  referenoes.  We  will 
"strtinjfly  ctintentl  ihit  they  are  •  iluiilile,  aiil  they  are  more 
"  valuiihle  in  \H',)i  than  they  ci>nl<l    le  at  an  earlier  tjatc  " 

Now  comes  the  ar;;iniieni  anil  thscussion  ns  ftillows: 

"  Mr.  Dickinson  :— If  this  "s  allowotl  in  we  as  ill  have  to  put  in 
"eviileniro  as  to  the  catcl  all  these  yeiirs.     This  is  at  pH;^o 

"  1«5fi" 

"  S  r  ('   H.  Tnpper  —This  h  is  ii  irlim;;  to  ilo  with  tliu  amount 
:{(»  "  tif  the  catch." 

"  The  Commissicjner  tm  the  pm  I  of  the  United  States: — This 
"matter  lias  tieon  l)efore  the  Coniniissioners  on  two  or  three 
"  occasions,  and  it  has  been  ctiminonly  untler.stood  that  the 
"  t/omnii.ssioners  wore  not  disposed  to  jjo  into  cs  idi'iice  as  to  the 
"ctjnditions  after  IH90." 

"  The  Coiiunissioiicr  on  tlu^  part  of  the  United  States  a;jain  :  — 
"  It  .seems  to  me  that  the  evidence  we  have  had  frtim  witnesses 
"  in  the  imx  in  regaril  to  such  matters  is  more  valuable  than 
"anv  ovitlence  that  couhl  lie  put  in  this  way." 
40  "The  Coinniis.sioner  on  the  part  of  Her  Majesty:  —  I  think 
"  whiit  \ve  have  saiil  anti  tlone  heretofore  on  .somewhat  similar 
"  matters  will  really  prevent  us  from  receiving;  this  evidenci!." 

And  the  conclusion  was  to  exclude  it  because  it  related  to 
matters  in  1HI)4. 

Now,  of  course  if  the  testimony  of  l<S!)l-()2-0:l-!)4  iintl  sub- 
.set|iieiit  years  was  of  value  to  my  learned  friends  tht-y  would 
have  put  it  in  lt)nij  heftire  this  from  the  eijrhty  or  ninety  wit- 
nesses they  hatl  at  Victoria;  hut  it  seemed  that  thu  comlitions 
were  so  ratlically  diH'erent  that  it  woultl  not  be  competent.  We 
',0  oH'ered  at  another  place  in  the  reconl,  to  which  it  \*  unnecessary 
to  refer  (  I  refer  not  ti  all  the  plautis  in  the  Rjcor  1  liut simply  to 
the  rulings)  to  show  that  in  those  years  tlie  catch,  by  reason  of 
the  shortness  of  the  season,  was  very  much  reiluced. 

The  Commissioner  on  the  part  of  the  Unitetl  States: — The 
general  rule  is  tpiitc  strongly  fixed  in  my  niin  I.  Still,  I  liati 
a  sort  of  impression,  which  it  seems  jierhaps  was  entirely 
wrong,  that  there  wa.s  some  evidence  shewing  the  length  of 
the  sealing  voyn  .,oh  in  .subsei|uent  years. 

Mr.  Dickinson : — It  came  up  in  the  cross-exaniiniition  after- 
(iO  wards  in  the  matter  of  te:.tii'i,'  experience.     It  came  out  in  the 
Alexander  evidence. 

The  Commissitiner  on  the  part  of  Her  Majesty: — That  is 
what  I  hatl  in  niiml.       I  think  the  tpiestion  came  up  tirst    then. 

The  Co!niniH.sioner  on  the  part  of  the  United  States: — So  far 


'1 


-i" 


iij,^ 


i|       ; 


•       I 


■I.   ■  K' 


I    il 


wm^F 


•2(iO 

(Mr.  Hod  wall's  Arfjunieiit.) 

as  I   mil  conci  iiit'il   I  woulil  liave    to  iippciil  to  tin    Record  ;  I 
would  not  iliiro  to  tnist  ni}'  iiieiiioiy. 

Mr.    Hodwell : — Mr.  Alexiiiider,  however,  wlio  wuh  culled  liy 

the  United    States,   wiisexaiiiined  nt  ijreat  U'lijjth  with  reference 

to  tlie  hal)its  ol'  the   sml,  and    cross-examined    ill.so  at   ^reat 

len;;t)i,  and  it  was  in  this  cro.ss-exaniinatinn  tiiat  this  (|uestioii 

10  came  ()\it. 

Mr.  Dickinson: — That  was  heeauso  he  was  an  expert:  not 
nil  the  duration  t>i"  the  -('ason.  You  had  the  rij^ht  to  test  liim 
in  every  respect  lis  to  his  expertness. 

Mr.  Hodwell  :— That  is  exactly  the  position  I  am  puttinjj 
here.  1  say  the  climatic  conditions  in  Hehrini;  Sea  were 
known  to  he  what  I  have  stateil,  from  the  repoits  of  whaliii^j 
and  other  cai)tains  in  the  year  iMlSti  and  hefoie  that;  that  the 
experience  of  later  years  has  shown  that  that  information  was 
correct,  and  Mr.  Alexander  is  a  witness  wlio«e  evidence  is  to  the 
20  point.  All  that  the  evidence  I  (piott'd  was  [mw^  used  for  was  to 
estalilish  this  position,  that  the  weather  was  such  that  sealinij; 
operations  cnuld  he  cariied  on  there  at  that  time:  snhse(|Uent 
experience  has  jiroved  it.  We  lay  the  foundation  for  the  next 
step  of  our  iir<;uinent.  hy  showinj;  that  the  owners  outfitted  with 
the  intention  of  reiiiaininj;  dnriiii;  that  perioti  tsuhseiiueiit  experi- 
ence shows  that,  if  wo  hud  nut  heen  interfered  with,  we  could 
Imve  remained  and  made  the  catches  of  seals  which  we  claim. 
It  seems  to  nie  heyoiul  all  i|Uostion  that  that  evidence  must 
have  iieeii  material,  and  would  have  lieen  received  at  any  time 
HO  if  till' (juestion  had  arisen  and  heen  arj.;ued  upon  the.se  lines; 
hut  tile  |i(iint  hefofi'  tlu'  Coinmi.ssioners  prohahly  was,  whether 
till'  catch  of  later  years  was  to  he  taken  into  coi'sideration 
w  hen  consideriiis^  the  (|iiesti()n  of  prohahle  catch  of  1XH(!  and 
ISX7.  With  reference  to  what  my  friend  has  just  stated  that 
we  mi^^ht  have  called  eijjhty  or  ninety  witnesses  on  that  point, 
I  cnll  ids  attention  to  the  fuct  that  it  was  his  case  to  make  out 
that  the  sealinij  season  closed  on  the  'li'tth  of  Atiyust.  Wo 
Were  claimiiiff  for  a  certain  amount  of  prohable  catch.  He 
says:  You  cannot  make  that  catch  hecaiise  your  sealin^j 
40  seai-oii  wotild  have  ended  on  the  2")th  of  Auj;ust.  That  was 
his  case:  and  our  eviileiico,  in  .so  far  as  we  gave  it,  was  rebuttal. 
For  instnnce,  we  attem])ted  to  put  in  the  report  of  the  Secre- 
tary of  the  Navy,  which  was  ruled  out  upon  my  friend's 
ohjection  on  the  ;;rouiid  that  the  Commissioners  hacl  already 
decided — and  it  seems  to  me  that  was  an  ohsorvatioii  made 
witlKUit  considerntion--that  for  no  purpose  whatever  could 
any  evidence  of  that  kind  he  introduced,  whereas  there  is 
no  doubt,  upon  more  careful  consideration,  the  Commissioners 
would  have  annniiiiced  that  for  many  ])urposes  such  evidence 
!){)  was  material,  ninl  necessary  for  a  proper  consideration  of  the 
ca.se.  However,  this  evi<li  nee  I  (|Uote  wont  in  without  the 
sliirhtcst  objection.  (hi  cross-examination  of  Mr.  Alexander 
tliere  was  no  (|Uestioii  raised. 

Mr.  Dickinsiai :  —  liack  of  all  this  is  the  ruliiii.;  of  the  Coin- 
mis.sioners.  Can  you  put  in  testimony  where  we  were  shut 
out  by  the  rulings  of  the  Commissioners  :' 

'I'he  Commissioner  on    the   part  of    Hir  Majesty:  —  On  the 
face   of  it,  the    rulinij  to  which  you   have  referred  seems  very 
broad,  Mr.  Dickinson  ;  1  must  sny  the  ruling:;  seems  to  cover  the 
CO  ground  on  the  face  of  it. 

.^ll•.  Hodwell:  —  The  other  evidenci!  was  not  in;  this  (!vi- 
deiice  is. 

'I'he  Comnii^siitner  on  the  part  of  the  I'nited  States: — Do 
you  not  think,  Mr.  Hodwell,  that  there  is  sullicient  evidence  in 


2(>1 


(Mr.  BotlwellKN  Argument) 


|M 

■ :  .1   lilt  (d 

1  It' 

1': 

11 

^  Ml;  1 

lliis  lai'ffe  Uoconl  which  is  not  contuxted  on  either  siJt;  with 
reference  to  that  particular  iMsui>,  to  enable  the  coiiit  to  tiniler- 
'^tanil  all  the  issues  ? 

10  Mr.  liodwell; — I  have  .said,  Your  Horn ir,  all  I  intend  to  Hay 
on  that  point,  and  following  the  very  line  of  Your  Honor's 
Dlwervation,  there  is  other  i'\  idence  in  the  Record  I  would 
very  much  like  to  have  quoted,  l>nt  I  did  not  (juote  simply 
lu!cause  it  ha<l  heen  oljectfd  to,  although  it  seemed  to  nie  I 
might  present  a  very  strong  argument  to  you  to  re-consider 
the  decision  as  to  its  admissibility;  init  this  particular  piece  of 
I'vidence  was  reeeivt-d  without  objection  of  any  kind,  and  wius 
dl'awn  from  the  very  witness  they  called  ;  his  own  experience 
began    then,  and  the  fact  which  comes  out  is    the  foundation 

'21)  for  the  experience.  Surely  it  cannot  be  .said  that  I  am  not  at 
liberty  to  u^e  it  at  all  under  any  circumstances,  especially 
when  Your  Honors  must  consider  it  so  relevant  and  pertinent 
to  the  casi.'.  Tlie  climatic  conditions  of  Hehring  Sea  to-day 
are  what  they  were  one  hundred  yens  ago.  at  least  so  far  as 
the  evidence  goes.  • 

The  Commissioner  on  the  part  of  the  United  States : — 
Kvi<lenee  comes  in  for  one  nurpose,  and  it  may  be  vyiy 
(|Uestionable  whether  it  can  1«^  used  for  other  purposes.  I 
rememl)er  very  distinctl}-  the  general  rule  we  adoptetl.  I  think 
;i()  .ludge  King  and  myself  fully  concurred  in  that  after  rotlection  ; 
but  as  to  the  application  of  it  to  that  particular  pii-ee  of 
.•vidence.  I  will  have  to  trouble  the  counsel  to  refer  me  to  the 
Record,  because  I  would  not  dare  to  trust  my  reeollection  in 
such  matters.  It  seems  to  me,  on  tlie.se  generid  questions, 
there  nnist  be  enough  in  the  Reeord,  to  which  all  counsel  agree 
as  proper  for  the  ([Uestions  you  desire  to  discuss,  to  enable 
us  to  uiiderstand  them,  without  pressing  the  matter  to  such  an 
extent  as  to  compel  us  to  examine  the  Record. 

Mr.   Dickinson:  —  If  that  was  the  general  rule,  and    it  was 
40  against  us,  to  what  end  do  we  argue  that  the  court  was  wroiii; 
then,  HO  long  as  the  court  cannot  send   it   back    for  new  trial 
when  it  was  against  us ;  because  we  are  precluded  from   intro- 
ducing testimony  on  the  point. 

Ml'.  Hotlwell :  —  I  do  not  propose  to  deal  with  that  subject 
any  further  or  to  refer  to  that  evidence  again.  I  have  said  all 
1  liave  to  say  about  it.  I  did  not  think  when  I  (juoted  it 
that  my  friends  would  take  the  position  they  now  do. 

The  Oommissioner  on  the  jjart  of   the  United  .States  : —  We 
have   enough    in    the    Record    to   enable  the  Commissioners  to 
.'lO  dispose  of  the  matter  properly. 

Mr  Hodwell :  —  When  the  court  adjourned  yesterday,  your 
Honors,  I  was  proceeding  with  the  evidence  relating  to  the 
question  of  the  outtitting  of  the  vessels  in  XHHi't.  Those  vessels 
were  the  "Carolera,"  "Thornton,"  "  tJnward,"  "Favorite"  and 
lilaek  Diamond."  With  reference  to  the  "  Carolcna,"  as  I  was 
stating  when  the  court  adjourned,  there  is  no  ([uestion  at  all 
on  the  evidence  but  that  she  was  abundantly  supplied  with 
provisions.  I  yesterday  quoted  Mr.  Mun.sie's  evidence  where 
he  speaks  of  what  he  understood  would  lie  the  length  cf  her 
(io  voyage. 

The  Commissioner  on  the  part  i5f  the  United  States: — Vou 
are  now  on  the  intended  length  of  her  voyage  > 

Mr.  Bodwell: — Yes,  may  it  please  your  Honoi.  There  is 
also  evidence  which  is  (juoted  in  the  Uniteil  States  Argument, 


m 


i   1! 


.1^^ 


'W  .i^ 


\U 


'       I- 

■iiJ- 


2(i2 


(Mr.  Bodwcll's  Arijuiiii'Mt.) 

and  wliicli  I  will  f^iveyou  later  on,  (l)iit  for  tlie  sivkc  of  avoiil 
iny  repetition  will  not  refer  to  it  yet)  of  Cotsford  and  Mtinger, 
Munjier  was  not  a  hunter,  but  a  seaman  on  board  the  "  Caro- 
lena."  This  evidence  shows  the  ien<jtii  of  the  intended  vovmki 
as  it  was  spoken  rif  by  the  (.'iiptain  during  the  voyage.  \Vitli 
10   reference  to  tiie  "  Thornton  " — ■ 

The  C'oniniissioner  on  the  part  of  the  United  States:  — I  will 
be  exceedingly  oblijred  to  you  if,  on  this  particular  (juestion, 
yon  will  refer  to  the  K-jcord  as  often  as  you  can,  and  read  the 
exact  testimony;  not  at  this  instant,  but  I  mean  generally  in 
<liscussing  this  (|iiestioii. 

Mr.  Hodwell :— The  evidence  of  Mr.  >[unsie  I  gave  the  pagf 
and  line  of  yesterday.  The  evidence  of  Cutsford  is  ([Uoted  in 
the  I'nitid  States  Argument  at  page  2.S2 ;  in  the  Kecord,  page 
377,  lino  l(i.  'i'he  (|Ue>tiou  is  :  — 
20  "(}.  Do  you  know  anything  ab'jut  what  time  Capt.  Oglevii'. 
or  <iiil  you  hi'iir  anything  about  the  time  he  was  preparing  to 
leave  the  Si  a  f 

"  A.     Somewhere  about  the  20th  or  2;{rd  of  August,  I  believe." 

The  evidence  of  .Munger,  which  is  (|Uote<l  there,  and  at  |)igi' 
(i:{(!,  line  .'{:},  of  the  liecord,  is  "  In  the  Sea  the  Captain  talked  ol' 
going  home  abor.t  the  end  of  the  month  (of  August)." 

On    cross-examination    this    witness    .said: — "  Q,     Will    ynu 
swear   whether  they  saiil   '  about  the  end  of  the  month  '  or  '  2()tli 
August  '  '     A.     No. 
;iO        "',•.      Vou    ciinld    not   say   which''     .\.       No,    not  as   to    the 
"  date  " 

'i'hat  is  all  wi?  Iiuve  as  to  the  "  Carolena,"  and  our  case  upon 
that  point  will  have  to  stand  on  that  evidence,'.  With  refer- 
ence to  the  witness  Cotsford,  I  shall  argue  to  your  Honors  ,it 
a  later  stage  that,  if  there  is  an}'  real  ditlerence  between  hi-- 
evidence  and  that  of  Munger,  the  eviclenee  of  .Munger  is  to  bo 
preferred  for  several  reasons. 

Now  with  reference  to  Captain   Warren's  vessel,  the  "  Th(jrn- 

lon, '  we  have  this  statiMuent  from  him,  beginning  at  the  bottom 

40  of   page   i'OfS.       He  li.-id  a  lleet  of  vessels  as  yoiu-   H<aiors  will 

renu'ndier — sever.il    vessels   in  the  year    l>t(S(».  the  "Thornton' 

WHS  seized.     .Speaking  of    that  sehooniM-,  he  says : 

•  <,>  In  ISSl).  taking  the  su])plies  you  hail  on  the  vessels 
yiMt  b.i\e  mentioned,  bow  long  did  you  arrange  for  the  cruise, 
a  criiis-  (iT  the  various  vessels  in  your  tleet  <  A.  "  My  inten- 
tion wa.  to  liiive  staved  in  the  Sea  until  about  the  end  ol' 
.September. 

"(,t.     Ami  taking  the  supplies  you  had,  are  you  able   to  say 
"  that  they  woul<l  have  held  out   for  the   full  scii.son  :"     A.      Ves, 
■')()   '•  |)lenty. 

'  <,).  H.ive  you  any  doubt  alriut  tliit  whatever  ;■  A.  No 
"  doubt  wliate\ei-. 

"  (j>.      And  y  'U  >o  arrange<l  :'     A.     So  arranged." 

The  Connnissioner  on  the  part  of  the  United  .States: — Tli.it 
was  ('aptain  Warren,  and  diil  he  go  up  with  those  ve«.sels  :' 

.Mr.  iiodwell  : — He  went  on  the  "l)ol|)bin"  and  came  out 
bec.iuse  be  was  afraid  of  seizure.  Now  the  "  Thornton  '  was 
a  small  vessel  and  there  was  not  sutKcient  su)»plies  on  her:  liul 
Llie  re-t  of  the  I'videnee  shows  that  he  had  taki'U  an  extra 
()()  (|uanlity  ot'  sujiplies  up  m  the  "  Dolphin,"  and  Ii.'kI  arratiged 
tli.'it  the  ''riiornton"  sliouM  meet  the  "Dolphin"  in  llehring 
Si'a  and  refurnish  her  with  sii|)plies  if  necessary.  This  is  on 
the  same  l)ige  of  the  l{( rd,  beginning  at  line  .'{2. ' 

"  (,*      What  .-irningemeiits  dill  vou  mike  with  regard  to  out- 


\,m»^- 


10 


•JO 


2(i:\ 

(Mr.  Him  I  well's  Arguiiifiit.) 

•'  Htting  the"  Thornton"  tlint  year  ^  A.  I  took  extra  supplies 
"  on  hoanl  the  "  Uolpliin  "  to  {;ive  her  in  Helirinj;  Sea. 

'  (^.  You  hat!  extra  supplies  for  the  "  Thornton  "  on  hoanl 
"  the  "  Dolphin".'     A.     Yes. 

"  Q.  What  was  your  reason  for  not  puttinj;  the  full  supplies 
"  on  the  "  Thornton  "  for  the  Behriiifj  Sea  voyajre  at  Clayoquot  ! 
"  A.     They  were  cramped  for  room." 

"  ().     She  was  a  small  ves.sel  ?     A.      A  small  ve.ssel. 

"  ().  What  arranf^enients  did  you  make  so  that  you  coulil 
"  replenish  the  "  Thornton  "  with  supplies  !  A.  I  arran^jjed  for 
"  the  Captain  to  meet  me  in  the  Helirinj  Sea  at  a  certain  time 
"  and  place  so  as  to  j;ive  him  any  supplies  he  wanted. 

"  i).  Where  did  you  have  this  understandinj;  ?  A.  In 
"  Clayoijuot  is  where  I  made  the  arianfjemcnts  with  the   Captain. 

(,).  And  as  a  matter  of  fact  you  sulisecjiiently  met  the  "  Tliorn- 
"  ton."  did  you  not  ?     A.     Yes. 

"  ().  And  met  him  at  the  mouth  of  one  of  the  entrances  ? 
•'  A.     ^'es,  met  her  at  the  mouth  of  one  of  tlie  entrances  f 

'if.     And  you  towed  him  in.     A.     Yes. 

"  (j).  You  were  on  the  "  Dolphin  "  an!  you  towed  the  "  Thorn- 
"  ton  "  throuijh  the  pa.ss  f     A.     Yes. 

"  Q.  In  these  various  years,  when  you  were  huntin;^  with  your 
"  lleet  did  yoiu"  vessels  work  comparatively  all  toi^ether,  or  was 
"every  vessel  inlep'iident  of  the  others  A.  We  always 
"expected  to  assist  one  anotiier,  and  whenevtT  we  j^ot  time  we 


;)0 


dill. 


<.» 


A.     They 


the    Tnited  States  :  —  I 
season,   hut    I    did    not 


Your    vessels    were    on    the  siine  ground  ? 
were  on  the  same  oast  tofjether. 

"i).  And  when  you  entered  Hehring  Siia,  they  entered  about 
"  the  same  time  /     A.     Yes,  just  alx)Ut. 

"  Q.  Hail  you  lieen  in  the  hahit  of  replenishinsj  the  other 
"  vesselH  of  your  Heet  from  the  "Dolphin  "  f     A.     Ye.s." 

Then  he  <^oes  on  with  the  evidence  I  read  Just  a  moment  aj^o, 

which  shows  that,  with   reference  to  the  "  Thornton,"  provision 

was  made    for  keeping  her    supplied,  and  the    intention  when 

C'aptain   Warren  left  with  all  his  Heet  was  to  remain  in  the  sea 

K>   until  about  the  end  of  September,  and  he  had  so  arranged. 

The  Commissioner  on  the  part  of  the  United  States: — He 
took  up  his  whole  fleet  that  season  ? 

Mr.  Hodwell  : — I  think  so. 

The  Commissioner  on  the  part  of 
I'emember  that  he  did  the  second 
remember  about  tbnt  season. 

.Mr.  Hodwell: — I  was  about  to  say,  Your  Honor,  that  no 
doubt  tills  arniugeincnt  was  made,  as  I  s;iiii  yesterday,  for  the 
reason  that  Captain  Warren,  in  the  nature  of  things,  would 
.')0  have  had  the  information  which  (ierow  says  he  and  other 
people  had  in  Victoria,  about  the  length  of  fair  weather  for 
sealing  in  liehring  Sea  from  the  experience  of  whaling  and 
other  vessels  which  had  been  there  before. 

The  "Favorite"  and  the  "Onward"  were  owned  and  con- 
trolled by  Spring,  although  McLean  had  an  interest  in  them. 
It  must  be  considered  that  all  information  which  was  in  the 
possession  of  Captain  Warren  would  also  be  known  to  Spring, 
for  he  had  been  engaged  in  .sealing,  and  his  father  before  him, 
for  many  years  at  Victoria.  He  gives  evidence  with  reference 
(iO  to  his  intentions  in  regi;.  1  to  the  "Onward"  at  page  804, 
line  2,S. 

"  Q.  Did  you,  or  did  you  not,  give  your  captain  any  instruc- 
'•  tions  as  to  the  length  of  time  he  should  stay  in  Behring 
"  Sea  >     A.     Yes. 


J 


I  , 


•  ii  (I 


\\H 


|l     (i 


.1. 


!|-|' 


1* 

I 


!  f 
ii 


,1 


mum 


264 

(Mr.  Bod  well's  Ar^nniciit.) 

"Q.  Will  you  he  kind  enough  to  tell  mo  what  the  iniitruc- 
"  tions  wer*!  ? 

'  A.  The  inntructions  were  to  the  etfcet  thiit  he  xhould  proceed 
"  to  Hehring  Sea  and  continue  there  a«  long  as  poAHible,  and  to 
"  he  hack  some  time  in  the  month  of  September  at  any  rate,  to 
"  he  guided  in  a  mt-asiire  by  Captain  McLean — on  'he  schooner 
10  "  Favourite  "  at  that  tiine.  They  had  agreed  to  meot  in  Behrinjj 
"  Sen. 

"  Q.  This  would  l)e  which  McLean  ?  A.  Cuptain  Alex- 
"  ander  McLean,  who  wns  then  master  of  the  "  Favorite  "  in 
"  188(!. 

"  Q.  For  what  length  of  timo  did  yon  provision  the  vessel  ? 
"  That  i.s  when  you  were  at  Kyuipiot  ?  A.  Well,  they  had 
"  instructions  to  take  everything  required  to  enable  the  vessel  to 
"  gpt  l>ack  to  port  in  Victoria  some  time  in  September. 

"  Q.     Some    time  in    September^      A.      About    the    middle, 
20  "  the  10th,  15th  ;  about  that  time." 

Referring  to  the  case  of  the  "  Favorite  "  which  went  to  .sea 
the  i-ame  year,  al  paj^e  1302,  line  50,  Mr.  Spring  gives  the 
following  evidence : — 

"(}.  Did  you  yive  any  instructions  when  the  vessel  was 
"  leavini;  as  to  when  she  would  leave  the  Hehring  Sea  ?  A. 
"Not  particularly  in  the  case  of  the  "Favorite."  Knowing 
"  that  i'aptaiu  Alexander  McLean  was  captain  and  an  interested 
"  party,  I  took  it  for  ijranted  that  he  would  use  his  own  judgment 
"  anyway  to  the  best  advantage. 
30  "  <,>      Did  you  as  far  as  the  other  ves.sels    were  concerned  ? 

"  A.     Ves,  sir,  the  "Onward"  had  my  special  instructions. 

"  (}.  Had  you  any  conversation  with  Captain  Alexander 
"  McLean  as  to  the  time  he  would  remain  in  the  Hehring  Sea  ? 
"A.  Ves,  I  feel 'certain  that  I  must  have  had  some  con- 
"  versation  with  him,  but  I  cannot  bring  to  my  mind  any  time 
"  in  pa  ticular,  or  anything  particular  1  said.  I  do  not  know 
"exactly  what  words  I  did  u.se  but  there  was  an  understanding 
"  l)etween  us. 

"i).      To  what  etieet  was  the  understanding?     A.     That  he 
40  "  was  to  stay  as  long  as  possible. 

"(>>.  As  long  as  possible.  As  long  as  the  weather  would 
"  permit  ?     A.     Ves. ' 

Captain  JIcLean  himself  is  also  examined.  At  page  133, 
line  (i2,  he  says: — 

"  <^.  Was  it  not  your  intention  to  remain  sealing  for  as 
"  long  as  the  .sealing  would  remain  good  ?     A.     Yes,  sir. 

"  i).  And  as  long  as  there  would  be  seals  ?  A.  Ves,  as 
"  long  as  I  woulil  be  Justified  in  sealing  there. 

"Q.     And  you  hail  enough  provisions  on  the  ves.sel  to  enable 
50   "  you  to  do  that  :'     A.     ^'es,  I  believe  I  hail. 

"  And  j'ou  could  have  remained  until  the  1st  of  September  < 
"  A.      Ves,  sir,  if  the  weather  would  permit." 

Mr.  Warren — Kindly  rend  at  page  13:13,  line  44. 
Mr.  Hodwell —  It  is  as  follows: — 

"  i).  When  you  left  for  Behring  Sea  in  18S6,  as  master  of 
"the  "Favorite,  "  when  did  you  intend  to  get  back?  A.  I  in- 
"  tended  to  be  back  here  between  the  1st  and  10th  of 
"  September. 

"  ().     Had   }ou  any  special  rea.son  to  get  back  at  that  time  ( 
(iO   "  A.     Well,  1  used  to  tit  out  for  that  time." 

Now,  when  the  facts  are  taken  into  consiclenition,  that 
McLean  was  an  interested  party,  that  he  took  provi.'-ions  for 
that  length  of  voyage,  and  when,  as  I  shall  subse«|uently  show, 
the  weather  would  enable  sealing  to  be  prosecuted  with  success 


20 


.'.(I 


265 

(Mr.  Bodwell's  Arpument.) 

it  wns  a  fair  preHUinption  tliat  if  McLean  liad  not  been  warned 
or  frijjhtcned  out  he  woulil  have  remained,  unless,  prior  to  that 
(inte,  lie  had  made  sucli  a  larjje  catch  that  he  would  liave  Ix'en 
satisfied  to  return.  Tiiat  '.s  tlie  eonchision  to  wliich  we  come  on 
I  lie  whole  evidence.  That  the  .seal  ;rH  hml  the  provisions,  and 
intented  to  remain  for  that  period,  provided  always  that  if 
jO  prior  to  the  time  referred,  tliey  had  made  a  successful  catch,  they 
would  have  returned. 

That  completes  the  list  of  ves.sels  in  1S86.  In  1887  we  have 
the  '  Say  ward,'  the  '  Anna  Beck,'  the  '  Alfred  Adams,'  the 
'Dolphin,'  the  '  Orace,'  the  'Ada'  and  the  'Triumph.'  Out  of 
this  lot  four  schooners  belonged  to  Warren,  and  in  regard  to 
ids  intentions  for  the  year  1887  we  have  the  evidence  at  page 
1130,  line  30:— 

"  Q.  For  what  seasons  had  they  started  under  your  super- 
"  vision?     A.     In  1887. 

"  Q.  Yes  ;  for  what  season — for  what  len<;th  of  time  ;  what 
"  were  your  arrangements  made  for  ?  A.  Well,  some  of  the 
"  vessels  I  don't  know  exactly  how  long  I  intended  them  to  stay 
"  out.  I  intended  some  of  the  vessels  to  stay  in  the  sea  just  as 
"  long  as  the  weather  would  allow. 

"  Q.  How  long  could  they  have  stayed  out  under  the  orrange- 
"  ments  you  made  :•     A.     The  provisions  ? 

"  Q.  Yes,  nml  anununition,  ond  arrangement  as  to  crews  ? 
"  A.  They  could  have  stayed  out  to  the  end  of  October  for  that 
"  matter. 

"  Q.  In  arranging  then  your  work  and  fitting  them  out  you 
"  saw  to  it  that  they  could  do  that,  if  the  weather  would  permit  ? 
"  A,  Yes,  it  wns  my  intention  to  send  some  home  with  the  skins 
"  anil  keep  some  of  them  there  in  the  sea." 

He  did  not  intend,  so  he  >tates,  that  every  vessel  of  his  fleet 
should  remain,  because  it  would  probably  be  arranged  that  some 
one  vessel  would  take  the  skins  and  bring  them  to  Victoria  and 
the  rest  would  stay  in  the  sea  as  long  as  the  weather  would 
permit. 

With  regard  to  the  '  Alfred  Adams,'  the  evidence  was  taken 
by  deposition,  and  there  is  no  evidence  upon  the  point  in 
(piestion  ;  we  will  have  to  consider  her  case  in  connection  with 
evidence  a<lduced  in  other  cases. 

As  to  the  '  Ada,'  I  call  attention  to  the  evidence  at  page  1312, 
line  ")0,  which  says  that  she  fitted  out  for  the  Rehring  Sea  cruise 
on  the  17th  June,  ami  at  page  1213,  line  20,  this  evidence  is 
given : — 

"Q.     Did  you  take  stock  of  the  provisions  yourself  ?    A.    We 
"  were  in  port  visiting  three  or  four  days  for  the  Indians  ;  during 
"  that  time  we  filled  for  water.     I  overhauled  the  store  lists  and 
()  "  hai'.  everything  ready. 

"  Q.  What  I  want  to  get  at  is  this :  For  what  length  of 
"  voyage  did  you  feel  satisfied  you  were  provisioned  ?  A.  From 
"  my  recollection  now,  after  having  gone  through  the  list,  I 
"  think  about  four  or  five  months." 

That  would  be  about  four  or  five  months  from  the  I7th  of 
June. 

At  page  1214,  line  32,  is  the  evidence  of  Captain  Gaudin  on 
this  point : — 

"  (.).  Approximately,  about  what  time  would  you  have  left 
"  the  Sua  ?  A.  We  thought  of  staying  till  the  first  part  of 
"  September  at  least." 

"  Q.     Up  to  the  ]5th  ?    A.    Yes,  later  than  that." 

"  (j.  And  on  the  25th  August  your  ship  was  seized  ?  A. 
"  Yes." 


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(Mr.  BotlwellH  Argument) 

"Q.  For  whftt  len;jtli  of  time  was  your  vessel  proviHionorl  ( 
"  A.  To  the  boHt  of  my  judfjment  I  should  think  tlitit  there  was 
"  pk'nty  of  provisions  for  tiie  crew  we  were  carryinjj  to  lust  us 
"  till  the  liejfinninj;  or  the  middle  of  October. 

"  Q.  As  a  matter  of  fact,  had  you  provisions  left  when  you 
"  arrived  on  the  coast !     A.     Yes,  we  had  plenty  left. 

The  little  '  Triumph "  was  also  in  the  sea  that  year. 
Speakin;;  of  her,  the  witness  Smith,  at  p.  1400,  line  65,  says: 
"  I  had  a  thoroujjh  understanding;  with  Mr.  Byrns  myself,  hein;; 
"  on  a  lay  that  tlie  vessel  would  be  provisioned  to  such  an 
"  extent  of  time  that  it  would  enable  us  to  stay  until  we  were 
"  driven  out  by  the  weather  or  could  not  find  any  more  seals." 

This  is  the  evidence  of  a  man  who  knew  about  the  provisions, 
and  here  is  the  evidenee  of  Mr.  Byrns,  the  owner  of  the  ship 
who  fjave  the  orders.     I  refer  to  page  1406,  line  (iO  : 

'■  Q.  In  a  jfeneral  way  are  yon  able  to  say  to  what  extent 
"  you  outfitted  and  [)rovisiont!d  the  vessel  ?  A.  All  I  can  say  is 
"  this,  of  course  I  calculated  that  the  schooner  would  stay  up 
"  there  until  pretty  late  in  the  season — that  was  in  September. 
"  I  gave  the  Captain  particular  orders:  'I  want  you  to  hunt 
"  there  until  the  last,  until  yun  are  driven  out  of  the  .sea,'  and,  of 
"  course,  I  gave  them  what  1  considered  a  gooil  five  months'  pro- 
"  visions,  and  the  proof  of  it  was  the  schooner  came  back  jjretty 
'•  Weil  provided  with  provisions  after  the  trip." 

That  finishes  the  list  for  1,S87.  The  list  for  IHK.)  comprises 
the  '  Jiianita,'  the  '  Pathfinder:'  the  '  lilack  Diamonn,'  the  '  Ariel ' 
and  the  '  Kate.' 

With  reference  to  the  '  Juanita,'  I  direct  your  Honor's  atten- 
tion to  the  evidence  on  page  1341,  at  the  very  top  of  the  page. 
The  ipiestion  iiegins  at  the  last  line  of  the  prececdint;  page  :  "  (). 
"  Up  to  what  time  did  yo»i  intend  to  stay  in  tlie  Sea  ?  A.  We 
"  intended  to  stay  in  the  .Sea  up  to  the  beginning  of  September." 

"  i).  Had  you  arranged  that  before  you  left  Victoria  ?  A. 
"  To  the  best  of  my  belief  at  the  present  time,  and  what  trans- 
"pircd  afterwards,  I  believe  the  10th  of  September  was  the  day 
40  "mentioned  by  Mr.  Hall.  He  said  that  we  could  stay  longer.  I 
"  think  he  had  had  information  from  some  one  who  had  been 
"  there  that  seals  had  been  caught  in  .September  and  that  the 
"  .season  was  not  actually  clo.sed. 

That  is  the  evidence  of  Captjiin  Clarke.  The  evidence  of  Mr. 
Hall,  who  is  the  owner  is  at  page  i;U!>,  line  26  :  "  <)  What 
"  length  of  voyage  was  your  vessel  fitteil  out  for  when  she  went 
"  to  Behring  Sea  ?  A.  When  the  Captain  left  I  told  him  to 
'•  stay  (in  until  .some  tim  ;  in  September.  I  do  not  remember 
"  exactly  what  date. 

"  ().     Had  you  information  that  there  was  any  use  staying 


30 


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"until  Septendier  ?  A.  Yes,  I  was  toltl  by  some  one  in  the 
"  sealing  business  that  there  was  .sealiiig  to  be  d(jne  in  September. 

"Q.  And  you  made  up  yom-  mind  to  try  that  ?  A.  Yes,  I 
"  told  the  C'apt'iin  to  stjiy  in  until  September,  if  possible. 

"  Q.  With  regard  to  die  supply  of  provisions  you  put  on 
"  board,  was  the  ship  provisioned  .so  as  to  be  able  to  stay  until 
"  .September  ^  A.  I  presume  that  .she  was.  That  was  left 
"  pretty  nnich  to  the  captain.     Ho  bought  what  he  wanted. 

The  Captain  referred  to  has  sworn  positively  that  he  was 
provisioned  for  that  time. 

With  reference  to  the  '  Pathfinder  '  of  1880,  Mr.  Munsie  says 
that  he  did  not  give  any  special  instructions  to  the  ciptain,  he 
left  it  with  him.  The  captain  was  O'Leary  and  a  man  of  some 
experience.     The  evidence  of  Munsie  is  at  Jiage  1505,  line  15. 


267 
(Mr.  BcmIwuU'b  Argument.) 

As  to  tlio  '  Black  Dianioiu),'  the  evidence  i.s  given  by  Owen 
Tliomiw  at  page  1767,  wliich  shows  tlie  date  oi  the  seizure,  and 
at  page  1770,  he  says  : 

"  Q.     F'or  wliat  lenjjth  of  time  was  the  vessel  provisioned  ? 
What  provisions  iiad  you  on  Ix^ard  ?     A.     I  liad  plenty  of  pro- 
visions, sir." 
10         "  Q.     For    what   time    had    you    provisioned?     A.     To    tije 
"  latter  end  of  October." 

I  might  here  direct  your  Honors'  attention  to  a  matter  which 
i;ives  strength  to  this  class  of  evidence.  All  the  witnesses  say 
that  when  tliese  provisions,  if  there  were  any  left  over,  were 
brought  back  to  Victoria,  tliey  could  scarcidy  be  sold  at  all,  and 
if  sold  were  disposed  of  at  a  loss.  It  would,  therefore,  be  idle  and 
ludmsiness  like  for  men  of  experience  to  piovision  their  vessels 
until  October  if  they  did  not  intend  to  stay  in  the  sea  atid 
consume  them. 
20  As  to  the  "  Lily,"  her  case  is  proved  by  stalntory  ileclaration, 
and  there  is  nothing  stated  there  with  reference  to  the  length  of 
her  intended  sealing  voyage. 

As  t'j  the  "  Minnie,"  the  evidence  of  Captain  Jacobson,  at 
page  1440,  at  the  bottom  of  the  page,  is  as  follows  : — 

"  Q.  B'or  what  season  did  you  outfit  the  schooner  ?  [Now 
this  is  the  man  who  was  in  practical  command  of  the  vessel]. 
"  A.  I  intended  to  stay  until  the  middle  of  Septeud)er,  from 
"  the  10th  to  the  nuddle  of  September  in  Behring  Sea;  I  stayed 
'•  thei'e  the  year  before  in  a  small  .schooner  ;  in  this  schooner  1 
30  "  was  not  scared  of  wind  or  weather." 

It  was  a  new  vessel  which  he  had  built  himself. 

As  to  the  "  Triumph,"  I  refer  to  the  evidence  of  E.  C.  Baker 
(it  paife  1420,  line  45  : — 

"  Q.  Did  you  give  him  any  instructions  as  to  the  time  that 
"  he  should  stay  in  the  sea  ?  (That  is  Captain  Daniel  McLean). 
"  A.  Well,  of  course,  I  am  not  really  positive  as  to  instructions. 
"  1  was  simply  one  of  the  partners  managing  the  affairs  of  the 
"  schooner,  and  a  good  deal  necessarily  would  be  left  to  McLean's 
"  discretion,  because  it  was  he  that  got  me  to  go  into  that 
40  "  venture.  Naturally  I  would  be  guiile<l  by  his  report  as  to  the 
"  circumstances  when  he  was  to  return.  But  it  was  distinctly 
"  understood  between  him  and  myself  that  he  would  remain 
"  there  until  the  very  last  of  the  season  that  he  could  catch 
"  seals,  so  as  to  ascertain,  if  possible,  how  long  the  season  really 
"  did  and  could  last. 

"  Q.  Was  there  any  understamling  at  all  to  that  effect  ? 
"  A.     Yes  ;  he  was  to  remain  there  until  late  in  September. 

"  Q.  That  was  fully  understood  ?  A.  Fidly  understood 
"  between  h'm  and  me.  In  fact  he  wanted  to  know  something 
•'lO  "  about  what  became  of  the  seals  after  they  left  the  Sea,  includ- 
"  ing  the  Priliyloff  Islands.  He  wanted  to  go  a  little  voyage  of 
'■  di.scovery  to  a  certain  extent  and  trace  them,  and  probably  do 
"  some  .sealing  at  the  sanuf  time. 

"  Q.  It  was  mentioned  between  you,  or  undeistood,  that  he 
"  coidd  stay  there  until  pretty  late  in  September  ?  A.  O,  )'es ; 
"  the  previous  year  he  had  come  back  on  the  10th  of  Sejitemljer, 
"  and  he  had  everything  on  board  that  would  enable  him  to  stay 
"  there  until  the  end  of  the  year  lor  the  matter  of  that." 

(jO         Mr.  Warren  :— Would  you  cite  there  the  evidence   of  Daniel 
.McLean,  page  1821  : — 

Mr.  Bodwell  : — That  is  a  deposition  of  Daniel  McLean,  upon 
which  he  was  not  cross-e.xamined.  My  renuirks  on  a  previous 
occasion  will  apply  to  this.     He  says  in  that  deposition  :  "  I  was 


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268 

(Mr.  Bodwell's   Argument.) 

"  in  the  Behring  Sea  during  the  fore  part  of  July,  and  left  the 
"  last  of  August." 

Ht;  is  stating  his  usual  custom,  but  in  this  particular  }'ear 
then-  was  ii  dlH'erent  understan<ling  altogether. 

With    reference    to    the    "  Ariel,"   there    is    a   good    deal    of 

evidence  ;  I  will  give  your  Honors  the  page  and  the  line.     This 

10  portion  I  will  read,  it  is  the  evidence  of  Sndth,  who  is  the  man 

who  attended   to   the  outfitting  of  the   vessel.     At  page    1484, 

line  .')2  :— 

"  Q.  Before  leaving  for  Behring  Sea,  was  there  any  under- 
"  standing  between  the  crew  and  the  captain  of  the  vessel  and 
"  j-ourself,  as  to  the  time  the  vessel  would  remain  in  the  Behring 
"  Sea  !     A.     Previous  to  our  gi'ing  to  the  Behring  Sea  ? 

"  Q.     Yes  ?     A.     Yes,  sir,  there  was. 

"  Q.  What  understanding  was  there  ?  A.  On  several 
•'  Decisions  we  met  on  board  the  schooner,  that  is,  the  hunters 
20  "  and  myself  met  the  captain,  and  asked  him  to  fit  the  vessel 
"  well  out,  us  she  was  at  that  time  one  of  the  largest  vessels  out. 
"  of  Victoria  harbour,  a  staunch  vessel,  and  wo  had  all  made  up 
"  our  u)inds  to  make  as  long  a  season  as  possible  on  previous 
"  reports. 

"  Q.  Was  there  any  month  mentioned,  or  any  time  men- 
'•  tioiieil,  which  you  desired  to  remain  in  Behring  Sea  ?  A.  Well, 
"  I  believe  that  I  was  one  of  the  parties  who  persuaiied  the 
"  captain  to  provision  the  vessel  up  until  October,  anyway. 

"  Q.     What  do  you  mean    by   '  up   until   October  ?'     A.     To 
30   "  allow  us,  if  the  weather  permitted  us,  and   if  the  reports  were 
"  trui!    witli    regard    to    seals    being   found    that   month    in   the 
"  Behring  Sea,  that  wu  would  be  able  to  stay." 

There  is  a  great  deal  of  corroborativ(>  evidence.  I  will  give 
pages  and  lines  to  your  llorioivs  :  Pagi'  14(iO,  line  3;  page  1457, 
line  .'jQ ;  page  14.S5,  line  10;  page  1487,  line  ')0. 

The  Commissioner  on  behalf  of  the  United  States: — I  would 
like  you  to  read  it. 

Mr.  Bodwell : — Well,  here  is  the  evidence  of  Captain  Samuel 

Buckman  at  page  14.')9,  beginning  at  the  bottom  of  the  page: — 

40         "  Q.     For  what    time  did    you  outfit    the    vessel  ?     A.     To 

"  make  a  long  .season.     We   intended  to  try  October  .sealing  in 

"  the  Behring  Sea,  and  we  fitted  out  for  a  long  season. 

"  Q  .To  remain  until  October  in  the  Behring  Sea  ?  A. 
"  Yes  sir." 

At  page  1407,  line  48,  there  is  the  evidence  of  Buckman  on 
cross-examination  : 

"  Q.     Before  leaving  for  Behring  Sea  had  you  any  conversa- 
"  tion  with  your  crew,  or  anj'  understanding  with  them  as  to  the 
"  time  you  were  to  remain  in  the  Behring  Sea  ?     A.     Yes,  sir,  I 
50  "did. 

"Q.  What  was  it  ?  A.  It  was  a  kind  of  agreement,  it  was 
"  understood  that  we  should  make  a  long  season,  and  do  as  well 
"  as  we  could  that  year. 

"  Q,  Any  time  specified  ?  A.  Well,  we  were  thinking  we 
'could  go  into  October  very  well;  1  had  heard  that  October  was 
"  a  good  month  for  sealing  up  there.  We  had  that  report  from 
"some  whalers,  and  we  intended  to  try  it." 

The  Commissioner  on   behalf  of  the  United  States: — What 
schooner  is  that  ? 
GO  .Mr.  Bodwell  :— That  is  the  "Ariel"  in   188!).     Here  is    the 

eviilence  of   Herman  Smith    in   direct  examination,  page    1485, 
line  10:— 

"  Q.  Ca>'.  3'ou  say  in  a  general  way  how  far  the  vessel  was 
'  provisioned  ?     A.     Well,  I    had  it  in  my  hands  to  get   it  on 


269 

(Mr.    Boil  well's   Argumenf.) 

"  board  anil  dispose  of  it  to  the  cook.  I  should  think  that  she 
"  had  ample  provisionH  there  until  tl<e  middle,  or  towards  the 
"  latter  end  of  Noveinher." 

I  also  read  the  evidence  of  Gerow,  one  of  the  hunters  of  the 
ve.ssel,  at  patre  14S7,  line  4iS  : — 

"  Q.  Before  you  went  into  the  Behrinj;  Sea  tliat  year,  had  you 
10  "  received  any  information  as  to  the*  lateness  of  the  time  you 
"  would  stay  in  Behring  Sea  that  year  ?  A.  Of  course  it  wiis 
"  talked  over  between  the  mate  and  the  ( 'aptain,  and  some  of  the 
•■  hunters;  I  heard  the  conversation  ;  in  fact  they  <;ot  it  from  the 
'  whalers,  I  have  hearil  it  myself  on  board  a  whaler,  that  there 
"is  good  sealinj,'  in  the  Belirinjj  Sea  in  the  mrnth  of  October. 
■'  The.se  whalers  have  said  that  there  is  as  jfood  sealini,'  in 
"  Behring  Sea  in  the  month  of  October  as  any  other  month  in 
"  the  year." 

Then  bej^inninf;  at  paj;e  1404,  lini!  30,  is  the  evidence  of  the 
20  •-lime  witness,  which  I  read  the  other  day,  stating  the  informa- 
tion he  then  ha<l  as  to  the   lateness  of  thi.-  season. 

It  is  clear,  therefore,  that  there  was  a  <listinct  nnderstanding 
that  the  "  Ariel  "  should  remain  until  October.  The)-  intendeil 
to  try  an  experiment.  Many  vessels  intended  to  remain  until 
September,  but  this  vessel  had  specially  Htted  out  for  a  voyage 
to  en<l  in  October,  provided  that  operations  could  \w  curried  on 
until  that  time. 

Captain  Moss,  speaking  of  the  "  Kate,"  at  page  13H7,  line  50  : — 

"  Q.     Now,  tell   me,  captain,  what  were  3'our  instructions  as 
30  '■  to  the  time  you  should  stay  at  sea  ?     A.     My  instructions  were 
"  to  stay  there  as  long  as  the  weather  would  permit. 

"  Q.  As  a  matter  of  fact  what  caused  you  to  leave  when 
"  you  did  leave  ?  A  On  account  of  being  afraid  of  seizure  if 
"  seen  again." 

The  "  Wanilerer  "  was  a  small  vessel  of  24  Ions  as  shown  by 
the  evidence  of  Captain  Pa.xton,  at  the  bottom  of  page  1587, 
and  he  says  at  page  155H,  line  10,  that  he  intended  to  leave 
aiiout  the  25th  of  August. 


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40  The  next  step  in  the  argument,  your  Honors,  is  a  reference  to 
the  evidence,  which  shews  that  in  the  years  1886  and  1887  the 
weather  was  exceptionally  favorable  for  sealing.  We  have 
already  seen  how  late  the  season  is  in  good  years,  and  now  we 
(|Uote  the  evidetice  to  your  Honors  that  these  j'ears,  1886  and 
1887,  were  favorable  years.  We  contend  that  there  is  every 
reason  to  believe  that  the  sealing  coulil  have  been  prosecuted 
in  1886  and  1887  to  the  full  length  of  time  that  sealing  was 
ever  carried  on  in  Behiing  Sea. 

The  evidence  is  stated  in  our  printed  argument,  and  the  part 

50  that  we  refer  to  begins  at  page  71,  line  40,  and  extends  to  the 
end  of  the  sect)nd  paragraph  of  page  74.  That  evidence,  we 
submit,  shows  that  1880,  1887  and  1880  were  good  years.  In 
fact,  we  may  go  further  upon  the  evidence  there  quoted  and 
siiy  they  were  exceptionally  tine  sea.sons.  However,  we  do  not 
claim  for  them  anything  more  than  that  they  po.ssessecl  the 
average  conditions  of  a  good  sealing  season,  and  were  such  that 
scaling  could  have  been  prosecuted  during  that  year  to  as  late  a 
perioil  as  we  have  evidence  that  operations  were  ever  carried  on 
in  that  Sen. 

(iO  We  then  proceed  to  argue  that  no  inference  is  to  be  drawn 
against  our  contention  from  the  fact  that  nont  (tf  the  vessels  re- 
iniiined  in  the  Sea  for  the  length  of  time  ref^ri?d  to.  There  are 
Hi  vessels  in  the  list  of  those  that  were  in  the  Sea  in  1886,  and 
of  those  we  read  the  following  reports  in  the  evidence  : — 


270 


(Mr.  ncMlwt'll'H  Ai^Hiufnt.) 


Wiirreii,  on  tliti  "  Dolpliin,"  wiis  intiM'niptt'il  on  tlui  2nil  of 
August  on  fjoo>l  .scalin;;  ^'roiiml  and  Mto|i|)<Ml  on  aecoinit  of  fear 
of  Hcizunv  O'lii'Hry,  on  tin-  "  PatliHntler,"  was  fiij,'liti'n('(l  out  liy 
sfizuri's.  Kainlnsi',  on  llic  "  Tlicrfsa,"  li-ft  Auynst  2.">tli,  Ih-cuumc 
lio  was  hIihi-i  (if  pi'ovisiciiis.  Hansen,  on  the  "  A<liil(>,"  left  on 
account  of  sei/iiies  (if  tlie  scliooners  on  2n(l  of  Anynst.     Me  was 

10  in  lietween  the  "  CariiU'iia  "  anil  the  "  'I'liornton/'or  near  hy  when 
they  were  seizeii  ami  lie  sli|)|)eil  nut  hetween  them.  Ile|ipen,  on 
the  "  tJrace,"  left.  In-caiise  the  Inilians  were  afraid  to  stay  lon;,'er 
on  account  of  seizure.  I  suhniit  that  this  is  a  fair  inference  from 
his  eviih-nce. 

Alexaiiiler  Melii'nn,  on  the  "  Kavnurite,"  was  warn«il  on  tiie 
•2n<l  of  Au;,'U>t.  ami  we  claim  that  his  voyap!  was  interrupteii  on 
tliat  nccoiint.  Meyer,  on  tiie  "  Vanilerhilt,"  reniaineil  until  the 
;}()th  of  Ant;nst.  'I'liere  is  no  direcl  eviilence  tluit  he  was  inter- 
fered wiiii   iiy  seizure,  hut   there   is  much   in    Meyer's  evidencH 

20  to  sliow  tliat  lie  thought  lie  mi;;lit  have  trouhls.  I  shall  have 
ocnisinn  to  notice  that  at  another  time.  OUeii  started  home  the 
day  after  the  l!hh  of  Au;;ust  on  'U'count  of  the  illness  of  one  of 


his 


Marketich,   on  the  "  On. 


<l, 


was 


seized  the   2lid  of 


Au;;ust.     '{'he  '■  'J'hni  iilon  ' 


IS  seiz'd  the  first  of  Auyust.      l'a.\- 


ton,  of  the  "  HIack  nianmnd,"  was  warned  on  the  1st  of  July  and 
left  the  4th  '  f  Au^'ust  fearini;  seizm-e. 

Tlieie  are  only  two  vesstds  in  all   that    list  which    were  not 
directly  inlerfered  with,  or  had  their  voyn^'e  interrupted  in  some 


way- 


With  refcieiiee  lo  the  "  Sayward,"  the  evidence  was  that 


30  (if  the  witiiiss  l/iinj:,  who  (iie(|  during  the  time  of  our  stay  in 
Vietoiiii.  At  the  time  his  deposition  was  taken  this  (|uesiion  of 
the  lenj'th  of  the  seaiiii''  season  hud  not  heen  lai^ed.     'J'liat  was 


pa 


It  of  the  I'nited  .Slates  cast;  and  was  madi!  on  tl 


a 


at  a  later  sta''e. 


It  Wl 


re-e.xamine  that  witness  even  if  that  course 


as   not  possilile   m  the  state   of   tliiiiLfs   to 


le   evidence 
f    th 


(II 


40 


e  Would  liave  l)een  per- 
mitted hy  your  Honors.  There  is  some  indirect  te.>,timony  from 
which  we  ask  yon  to  infer  that  he  must  have  had  some  knowle(l;^e 
of  the  seizures  at  any  rate.  Mis  voyage,  as  shown  on  tin;  chart, 
was  heiiii,'  proseciite(|  on  the  very  same  ;,'roUii(l   where  the  other 


Were  a 


t  the  time  tl'.eV  Were  seize(l. 


Ml.   I 


iinsin<; : 


-What   is  the  data   from    which   the  chart 


IS 


ia(h 


'P 


IS 


Mr.  Hud  well  : — It  is  a  chart  made  hy  the  United  States  and 
from  tlu!  ii'cord  of  the  scaliiif,'  vessels. 

Mr.  !,ansiii^':— In  L'iST,  lnu  not  in  l.HSO. 

Mr.  Rdilwidl  : — We  will  come  to  that  hy  and  hy.  The  con- 
clusion which  we  ask  your  Honors  t<)  draw  is  that  in  each  case 
where  a  claim  is  made  the  schooners  Would  have  remaiiie(l  until 
they  shoiilil  have  completed  a  satisfactory  catch.  We  (lo  not  say 
•j()  that  they  would  havi;  iemailie(l  to  j;et  a  record  catch.  M'  they 
had  a  reasoiialile  catch  and  the  wind  was  favorahle,  they  would 
have  returned  as  the  "  Mary    Kllen  "  did    when,  having;   mado 


hi 


catch,  she  took  advantage  of  the  first  north-svest   wind   to 


heirin  her  voyaije  home.     We  say  we  are  Justified  in  claiminj^  that 

every  schooner  in  that  Sea.  if   she  had  not  heen  interfered  with. 

Would  have  made  a  catch  which  would  have  compared  favoralily 

lith   the  catch  of  the  "  Mary  Kllen."     'J'he   evidence  shows  they 


Were  in  the  plac(,'  where  seals  were  to  he  found 


experience  has 


demonstrated    that  seals  could  have    heen  taken  later  on  in   the 
(iO   season  and  that  if  they  had  heen  permitted  to  remain  their  catch 
would  have  heen  proportionatidy  tin;  same  as  the  "  Mary  Kllen  ' 


H 


aviMi,'  eolle  ov 


■r  th 


e  principal   points  n])on  whieli   we 


lakt 


our 


claims,  I  proceed  to  an  examitiation  of  some  of  the  evidence 
(pioted   in  the  United   States  argument  to  resist  the  contention 


971 

(Mr.    liodwull's    Ai'guiiiont.) 

tlmt  wi!  ninke.  'riicrit  are,  in  thi>  >)t>^inniii^',  at  pii(;u  22H,  .soiuo 
stiit(!in«nts  wliicli  I  <lu  not  think  iiiirly  rcpi'fst'nt  tin*  ar^riiiiiftits 
pri'sfnttMl  to  your  Honors  i>y  Oroat  Hritain.  On  tiiat  pii;,'f  th«y 
Nay  : — 

"  The  uxtractN  ami  citatioiiH  of  toNtininny  from  tliu  n'conl  iinil 
"  the  concluHion.H  drawn  tlicritfrom  in  tlio  ItritiNJi  nr;riiMiPtit,  roln- 
10  ■'  tive  to  tht!  Hoalin;;  season,  iiru  vinlcntiy  at  war,  tin-  one  witi)  tlio 
"  otlii^r.  Tilt)  voyant'H  of  many  of  the  vcssids  arc  sliowii  in  llie 
'  extracts  from  the  Dviilcnct',  carefully  colli-cteii,  to  have  termin- 
"ateii  between  tlie  2()tli  and  Sotli  day  of  Aii^fiist,  Imt  tlie 
"conclusion  is  drawn  tlmt  tlu:  season  extended  'well  ittto 
"  Septemtier.'  " 

I  hare  referred  to  that.  There  is  no  inference  to  lie  drawn 
from  the  fact  that  tlie  voyni,'es  actually  terminated  iniismuch  nn 
they  were  lirou^ht  to  an  end  hy  the  act  of  seizure  of  the  United 
States. 
20  On  pa;;e  22!(,  refi-rrin;;  to  tlu^  evidence  tluit  ve  liave  ([uoted, 
the  ar^'umcnt  siiys  with  refei'ence  to  ISilO:  — 

"  The  average  date  for  the  ternduiition  of  the  voyaj^cs  of  the 
"  vesstds  named  in  this  statement,  whicli  uxclndes  iiiiit!  ve.s'«el.'< 
"  out  of  sixteen  whicli  wen;  in  the  Sea  that  year,  is  SeptiMuher  5. 
"  The  days  that  hunting  ()perati(<ns  were  stopped  is  not  j;ivei), 
"  only  the  days  upon  whicli  the  varioiis  vessels  left  the  Sea.  The 
"((inclusion,  however,  is  drawn: — 'It  is  therefore  estaldished 
"  that  the  hahits  of  the  seals  ami  tlie  weather  ordinarily  prevail- 
"  in;j  would  permit  the  vessels  enj^aj^'ed  in  sealiii;;  to  carry  on 
30  •  operations  until  well  into  the  month  of  Septeudier,  if  it  was 
"  necessary,  in  order  to  complete  their  catch.'  " 

That  is  not  statinj;  the  order  of  the  urL;nment  fci  Oreat 
Hritain.  The  conclusion  was  not  ilrnwn  fiom  the  time  the 
vessels  left  the  sea  in  lSi)0,  hut  the  conclusion  drawn  from 
ahundance  of  evidence  which  we  have  as  to  lenj'th  of  tinie 
durini;  which  sealing  could  he  carried  on  in  Septemher  in  every 
V  -ar.  Therefore,  we  say  that  when  j'ou  find  vessels  outfitted  for 
that  period,  with  the  intention  of  remaining,',  you  are  justified 
in  presunnng  tiiat  the  V(iya<,'es  would  have  so  continued  utde.ss 
30  prior  to  tliat  time  they  had  completed  a  satisfactory  catch. 

The  United  States  ar^'ument  ftirther  says,  pa^e  22!*:-- 

"  Without  citinj,'  from  the  Record  the  testimony  of  any 
witness  showint;  that  a  lon<;er  voyajje  was  ever  made,  and  in  fact 
no  s\ich  testimony  could  he  referred  to,  the  final  conclusion  is 
drawn  that  it  has  heen  'determined  that  they  would,  in  each 
case  have  continued  sealini;  under  the  favoral>le  conditions  of 
weather  proved  to  have  lienti  existing  until  as  near  the  end  of 
Se|)teiid(er  as  would  be  necessary  to  accomplish  a  satisfactory 
catch.'  " 
50  I  ^ay  there  is  evidence  in  this  record  to  show  that  vessels 
could  have  remained  and  lonjjer  voyai^es  have  been  made.  Then, 
the  argument  fjoes  on  to  say  : — 

"  The  supposition  mi<j;lit  fairly  be  made  that  the  teruunation 
"  (if  the  sealini,'  season,  without  an}'  foundation  in  evidence  beinj^ 
"  fixed  '  as  near  the  end  of  September,'  would  not  be  ai^ain 
"  removed  to  a  later  time." 

But  it  is  only  removed  in  the  claim  of  certain  vessels  as  to 
which  thert!  is  positive  evidence  of    inti.'ntion    to  remain    to   a 
later  date,  the  "Trimnph,"  the  "  Ariel,"  and  the  "  Kate." 
(iO         The  ur<runu>nt  says  further  : — 

■'  No  evidence  was  adduced  on  behalf  of  the  clain  :  s  bear- 
'  in>;  upon  the  duration  of  the  season,  except  in  the  indirect  way 
"  of  examininj;  witnesses  as  to  tlie  time  for  which  a  ves.«cl  was 
"  iint/itti-d." 


Ml 

I    Hit 


t^ 


*  h 


'  H     i 


An. 


F 


mgr 


27J 


(Mr.    Bndwell'R   Arcuiiiont..^ 

I  liavx  ruad  the  uviduncc  iipon  which  w«  n>ly,  and  I  h>avo  it 
to  yoiir  Mdiiui'ii'  to  dctiTinint'  whirii  coiit<>niiiin  in  th<>  true  one, 
without  further  cuinnient.     Then  tlm  ArKUuieiit  prorni'ds ; — 

"  All  till*  tt'stiiuony  in  tho  llftunl  ridalin^  to  the  liiiration  of 

"  th<>  liuntin^  nt-axon  in  Hulirin;;  Sch  )rivt>n  hy  captains,  uiatc^,  or 

"  liunttTM  on  iVHMflH  ii<li()ne  voifiuieit  wevt  not  interrupted  iir  inter- 

10  "  ferrrd  with  \n  contained  or   leferred   to  in   tliin  portion  of  the 

"  Arj,'unient." 

I  ^hnll  I'ndeiivor  to  >ihow  vour  MonorM  that  Nome  material 
portions  of  liie  i-viiji'nee  liave  heen  omitted.  It  is  rattier  a  liroail 
Mtutement  tii  say  that  all  the  evidence  is  containeii  here,  li(>caiisf 
tliere  is  a  ^reat  deal  of  evidence,  material  evidence,  has  not 
even  licen  referred  to  in  the  ai;;unient.  The  Ar>rinnent  says 
apain,  pn>;e  "I'M:  — 

■  'I'he  hunting;  of  seals  in  Hehrinj;  Sea  heyan  in  the  year  ISMCi, 

"  Capliiin  Wai  ren  testified  ;  '  iHStl  was  the  first  year  then  of  any 

20  "note  in  liehrin^  Sea.'     The  evidence  docs  not  refer  to  niore  than 

"  a  half  dozen  vessels  which   entereil    MchriiiK   Sea   prior  to  that 

"  year,  anil  none  id"  them  sailed  from  Victoria." 

I  think  my  friends  have  failed  to  refer  to  this  evidence 
when  they  made  that  statement.  Captain  Alexander  Mcliean, 
oj»  his  dirt'ct  examination,  pa^je  402,  line  10,  says: — 

"Q  In  1S!S.')  wiiat  were  you  doiiifj  ('  A.  I  sailed  from  here 
"in  l><S.'). 

"  t^.     In  what  ship  '     A.     The  '  Favorite." 

"  t^.     And  what  kind  of  a  crew  (     A.     An  Indian  crew. 
30         "  l^.     Hiiw  many  canoes   and    how    many    Indians  ?     A.     I 
"  liolieve  there  were  12  canoes  in  IH.S.j." 

Mr.  Lansing:  —  Did  ho  go  to      •lirinj'  Sea? 

Mr.  Ho<lwell  :-Yes. 

Mr.  Warren; — Will  you  kii>  y  read  where  he  suys  tliat  he 
went  to  Hehiiny  Sea  ? 

Mr.  Hodwell : — I  have  the  reference,  hut  cannot  just  now  put 
my  hand  upon  it.     1  will  look  it  tip  and  }{ive  it  to  you  later. 

There  is  then  at  the  bottom    of    that    page  a  quotation  from 
the  evidence  of  the  witness  Bragg,  page  230  of  the  United  States 
40  Argument. 

"  Q  The  2Jtth  August  wan  practically  the  close  of  the  .sealing 
"  that  year  in  Behring  Sea,  was  it  ?  A.  It  was  the  close  of  our 
"  .sealing. 

"  Q.  I)i<l  you  come  away  earlier  that  year  than  others,  or 
"  or  did  you  stay  the  ordinary  limit  of  the  sealing  season  >  A. 
"  That  was  the  ordinary  limit  dt  that  time. 

"  Q.  And  in  IHM?  it  was  ahout  the  limit?  A.  About  the 
"  lindt  in  18«7." 

The  wiliuss  Bragg  had  never  been  in  Behring  Sea  before  that 
50  year.     His  evidence  at  page  261,  line  (jO,  is  . — 

"C^.  Was  this  the  first  year  that  you  were  in  the  Sea,  Mr. 
"  Bragg  ?     A.     It  was  my  first  year  in  the  Sea. 

"  Q.  Had  you  ever  hutited  with  the.se  hunters  before  on  the 
coast  ?     A.      1  never  had. 

"  Q.  Had  you  ever  hunted  before  anywhere  ?  A  I  never 
'  had  hunted  seals,  no." 

Mr.  Bragg  could  only  testify  as  far  as  his  own  experience 
went,  by  speaking  of  the  vessel  on  which  he  was  then  employed 
That  vessel  came  home  on  the  25th  of  August,  because  she  liad. 
60  made  a  successful  catch  and  was  ready  to  leave.  The  voyage  of 
otherveasels  was  ended  for  ditt'erent  causes  altogether.  So  there  is 
very  little  evidence  to  bo  obtained  from  Mr.  Bragg  upon  that  point 
his  opinion  was  not  of  any  great  importance  for  he  was  then 
speaking  of  the  sealing  voyage  on  which  he  was  for  the  first  time 


f78 

(Mr.    Boilwt'll'n    Ar^juiiierit.) 

('n(;nf;ci).  (In  cniiM  not  l.nvu  iiriy  iiifoi  iniUii)ii  Hlioiit  tlm  intonliotis 
of  the  cri'ws  of  otlior  Hliips.  lit*  is  not  ii  iiiati  to  spi-iik  of  wliiit  whs 
the  li>ii|{tli  of  the  Ni'alinj(  Ki'amiii.or  the  ^jciii'iiilly  rohsidiTcil  h'li^'th 
ill  Victoria  in  |NM(!  ami  IHS7,  fxpuciully  whttii  liis  o|iinioii  is 
hrou^'ht  into  contntst  with  that  of  men  like  ('a|it.  Wiirnii  ami 
others  will)  ant  rn^a;;!*)!  in  that  Imsint'ss,  rcspotisilili'  fur  thu 
|i)  jossfs  ami  )>xp(>eliii;;  to  niakt*  tliti  profits. 

On  pa^u  2:11  till'  I'nitctI  Ktatt's  A  ^'unu-nt  tlicy  ipiotr  llie 
cviili'nctt  of  Haiiilase  to  hIiow  tiiat  liis  si'nlin^'  nmlfil  on  t':-  *''itli 
of  An^iist,  Itiit  tliu  vf-ry  parni^rapli  thoy  ({uuti>,  at  tin*  t'mi  sliowii 
tliis  statt'iiicnt : — 

"  y.  'I'lii'ii  yon  left  on  account  of  wliat !  A.  Tin-  ve.ssol 
"  wasn't  fittcil  out  for  a  lonjr  cruise  ;  slio  wasn't  very  wi-ll  pro- 
"  visioneil  jjoin^  lionie," 

Hiircly  it  cannot  l)(>  clainicil  tliat  tlic  inusti-r  of  tliul  srhooin'r 
loft  luicauM!  till'  scaling'  season    was  over,     lie   left,  as  lie  says, 
2(1  on  account  of  the  sli()rtnt'SH  of  provisions, 

Tlien  my  frieixis  say  lliat  Alexander  Keppen, called  on  liehalf 
(if  (Jreat  Britain,  testified  that  he  was  on  the  "  (Jrace"  in  lMM(i, 
and  his  evidence  is  referred  to  wliere  he  .says  they  li^ft  the  lAtli 
of  Au;,'Hst,  and  then  he  is  asked  ;  Was  the  liad  wiither  that 
season  the  reaso.i  why  you  left  the  sea  ?  and  he  answered  yes. 
The  whole  (if  his  cio^s-exaiiiiiiatioii  on  this  point  slioiild  he  read 
in  order  to  ^et  a  projicr  iinderstamliii;;  of  the  evidence  of  tlii.s 
witness.      It  will  Im  found  on  pa;;(»  'MO,  line  .'{() : — 

"  Q.     Is  it  not  a  fact  that  hefore  you  came  out  it  was  lilowin^ 
'M  "  pretty  liaid,  and  liiat  tliat  was  tlie  reason  the   Indians  wanted 
"  to  (^et  away  >     A.      Yes,  thu  weaiiier  commenced  to  lie  a  little 
•  liud. 

"  Q.  Are  not  the  Indians  very  superstitious  ?  A.  Yes,  they 
"  are  as  a  j^eneial  rule. 

"  t^.  And  if  thuy  want  to  come  away  do  the  captains  liavo 
"  to  come  /  A.  Yes,  to  liumor  them.  It  is  no  use  to  yoa^^ainst 
'■  tliem. 

"  Q.     Was  it  not  a  fact  that  the  season  was  practically  ended 
"  on  the  15th  Au;;ust  of  that  year  ?     A.     If  wc  had  white  men 
40  "  we  could  have  stayed  longer." 

The  .same  witnes.s  shows  in  another  part  of  liis  evidence  read 
yesterday,  pa(;e  307,  that  they  had  in  the  liejjinninjf  of  the 
season  heard  of  the  seizures,  havinj;  spoken  the  "  Anna  Heck," 
and  the  argument  addie.ssed  to  your  Honors  yesterday  was  that 
a  fair  inference  from  the  whole  of  his  evidence  was  that  the 
Indians  were  fri(»htened,  as  they  had  reason  to  be,  from  the 
seizures,  and  that  was  the  rea.son  why  the}-  hecanie  ditlicult  to 
iiiaiiBfje.  There  is  no  justification,  however,  foi  this  statement 
in  the  United  States  arjjuinent,  paj^e  232  : — 
50  "  Reppen  was  the  only  witness  called  who  was  alioard  the 
"  Grace  "  in  1<S80,  and  liis  evidence  outweij^hs  the  (general  state- 
ir.ent  of  (.^aptain  Warren  that  liis  vessels  were  outfitted  for  a 
voyayo  until  the  end  of  September." 

I  submit  that  his  evidence  is  consistent  with  Captain  Warren's 
statement  that  he  outtittei'  his  vessels  and  intended  them  to 
remain  until  the  end  of  September.  That  intention  was  inter- 
fered with,  and  the  voyajjc  .  iterrupted  by  circumstances  beyond 
the  control  and  entirely  outside  of  anj'  kiiowledf»e  of  Captain 
Warren  wImu  he  ordered  his  ves.sels  into  Behiiiij;  Sea. 
liO  Cotsfor.l's  evitlence  is  then  referred  to,  but  I  shall  have  to 
rufir  to  him  at  another  time. 

Peter  C.  Meyer  is  spoken  of  at  pajje  232  of  the  United  States 
argument,  and  his  evidence  is  quoted  where  he  is  aske<l  : — 

"  Q.     How  did  you  find  the  sealing   between   August  20th 


li- 


„    j.. 


274 


(Mr.    Boilwell's    Argument.) 


\. 


From  tliii  20th  of  Augu.st  to  tlio 
There  was 


"  and  the  end  of  Auiruat  ? 
"  end  of  the  month  ? 

"  Q.     Yes  ?     A.     Well,  1  didn't  find  much  i.i  it 
"  not  inucli  pnv  in  sfnyinii;  tlint  time. 

"  Q.     Wiuit  did  3'ou  stay  for  >     A.     I  was  tliere  to  j;ive  it  a 
"  trial,  and  I  stayed  there  and   jjave   it  a   trial,  hut    I   found  it 
10  "  didn't  pay  me. 

"  Q.  In  your  experience  in  18^(i  and  1887,  you  did  not  find 
■'  good  senlinj^  Ijetween  the  20th  and  .'Mst  of  Auj^ust  ?  A.  No, 
"  sir,  it  was  not  ^jood  scaling  weiither." 

Ten  days  in  any  month  may  he  taken,  and  the  same  answer 
wouKl  apjily  to  them.  .Mr.  Meyer,  I  submit,  is  not  a  witness 
whose  evidence  is  entitled  to  the  wtight  which  is  attributed  to 
it  hj'  the  United  States.  I  .shall  not  take  up  3-our  Honors'  time 
by  reading  it,  hut  I  shall  ask  your  Honors  to  read  the  cross- 
examination  at  page  172!),  17:50,  17m  and  17S2  of  the  i-ecord, 
20  an<l  you  will  find  the  witness  thcr(^  making  ft  nundier  of 
statements  which  are  not  of  a  character  to  inspire  any  confidence 
in  his  testimony.  As  a  sample,  he  makes  this  extraordinary 
statement  at  page  17.'?2,  lim^  4S  : — 

"Q.  You  were  not  afraid  of  cutters  in  188(5  and  1887? 
"  A.      Well,  no,  we  were  not  a  great  deal  afraid  of  them. 

"  Q.  Were  you  somewhat  afraiil  of  them  ?  A.  No.itdid'nt 
"  scare  me  a  great  bit. 

"  Q.     They  scared  you  a  little  ?     A.     No. 

"  Q.     You  did'nt  care  to  be  caught,  1  suppose  ?     A.     Not  that 
30  "  I  cared  a  great  deal, 

"  Q.  You  were  (|uite  iiidifi'i  rent  about  being  seized?  A. 
"  Yes,  T  liid't  think  tln-y  would  scizi'  me. 

"  Q.  Did  you  not  hear  that  there  were  seizures  in  those 
"  years  ?  A.  Well,  towards  fall  f  found  that  thej-  wert^  doing 
"  something.  1  was  told  in  18Sti  that  they  were  seizing  vessels, 
"  but  then  I  did'nt  care  a  great  deal  whether  they  did  seize  me 
"  or  not  ;  I  did'nt  think  they  wouhl  seize  me  ;  if  they  did  seize 
"  me  I  thought  they  would  make  it  all  right  with  me  again." 

I  need  make  no  comment  Here  is  the  witness  who  says 
40  that  the  sealing  season  was  practically  over,  and  that  it  did  not 
pay  him  to  stay  in  the  sea  after  the  20th  August;  perhaps  it 
did,  and  perhaps  it  did  not,  but  I  do  not  think  you  can  come  to 
any  conclusion  from  the  evidence  of  such  a  witness.  There  are 
other  portions  of  his  cross-examination  which  are  also  equally 
unsatisfactory. 

Then  in  the  United  Slates  brief  follows  a  reference  to  the 
evidence  of  O'Leary  on  the  "  Pathfinder  "  in  188()  and  1887.  The 
United  States  counsel  ipiote  the  witness  in  this  way: — 

"  Q.      How  long  Were  you  provisioned  to  stay,  and  how  long 
jO  "  did  you  expect  to  stay   tliere?      A.      I   expected   to  stay   until 
"  about  the  first  of  Septemlier." 

And  they  >iiy  the  witness  then  testifies  that  he  did  leave 
August  (!th. 

Hut  why  di  1  not  my  learned  friend  say,  as  the  evidence  is, 
that  he  left  because  he  was  fiighteiied  liy  the  seizures  ?  That  is 
the  direct  statement  of  the  witness. 

With  reference  to  Captain  O'Leary  in  the  "  Pathfinder  "  in 
1887,  they  (juete  this  as  his  evidence  : — 

"  Q.      For  how  long  were  you  provisioned  and  what  time  liid 
(iO  "you    expect  to    staj-     there?      A.      I  expected    to    stay    until 
"  .SepliMuber — about  the  fiist  of  September. 

"  Q.  As  a  matter  of  fact,  how  long  did  you  stay  in  the  sea? 
"A.      I  left  on  the  /;///  of  August." 

He  left  on  the  17th  August  in  1887  because  he  was  fearful  of 


275 

(Mr.    Bodwell's    Aiguinent.) 

seizure.  Tlie  evidence  of  this  witness  is  quoted  nj^iiin  on  pftge 
234i.     With  reference  to  the  season  of  \HW)  lie  says  as  follows  : — 

"  Q.  How  late  in  Aujijust  did  you  leave  ?  A.  About  the  2r)th 
"  of  August,  as  far  as  I  renienilier. 

"  Q.     You  never  were  in  there  later  than  the  25th  of  August  ? 
•'  A.     r  do  not  think   so  ;  tliat   was  the  last  year  I  v^-as  in  the 
10  "  Behring  Sea." 

The  facts  as  '.o  O'Leary's  voyages  in  the  ditFerent  years  are 
these.  With  reference  to  that  year  INOO,  at  page  77'),  line  30  of 
the  evidence,  the  following  eviilence  is  given  !iy  him:  — 

"Q  About  what  day  did  you  enter  the  Sea  in  1890.  A.  I 
"cannot  remember.  It  was  soiuewhe,-e  in  July  ;  I  guess  it  was 
"somewhere  about  the  10th. 

"  Q.  It  was  about  tlie  ordinary  time  ?  A.  Yes,  it  was 
"  after  the  1st,  I  know. 

•  Q.     You  were  lato  that  year  ?     A.     Nn. 
•20         "  Q.     What  time  ilid  yon  leave  that  year  >     A.     f  left  there 
"  son)etime  towards  the  enil  of  August. 

"Q.  The  fact  is  that  that  season  you  hunted  in  the  sea  about 
"  the  usual  time  ?     A.     Yes. 

"  Q.     And  you  took  fiOO  seals  within  that  pt^riod  ?     A.    Yes; 

■  I  left,  a  little  soojier  than  I  wouM  have  left;  I  was  shoit  of 
"  grub  that  year.  We  got  .some  of  our  stores  at  Sand  Point  that 
•  year. 

"  Q.     How  late  in  August  did  you  leave  ?     A.     .\bout   the 
••  25th  of   August,  as  far  as  I  remember. 
oO         "  Q.     You     never     were    in   there    later    than    the    25th    of 
"August?     A.     I  ilo  not  thiidc  so;  that  was  the  last  j'tar  I  was 
in  tin;  Behring  Sea." 

I  shall  liave  occasion  to  refer  to  this  again.  But  your 
Honors  will  find  in  ISSfi  ()'Leaiy  was  frightened  out  ;  in 
lfM7  he  was  frightened  out ;  in  1S8S  he  did  not  go  into  tlie  Sea, 
nor  again  until  18!)0.  So  that  when  this  witness  says  he  was 
never  in  the  sea  later  than  the  25th  August  it  is  not  strong  evi- 
dence. It  is  really  no  evidence  at  all  upon  which  to  base  a!» 
inference  as  to  the  length  of  the  sealing  season,  because  he  was 
40  in  every  year  warned  out  or  left  foran>ason  such  as  being  sluirt 
of  grub  in  ISOO. 

The  United  States  Biief  continues  as  follows  : 

"  Captain  James  ]).  Warren,  who  managed  the  largest  fleet 
"of  vessels  in  Behring  Sea  in  1S8  ;,  examined  on  liehaif  of  the 
"el.iiuuint,  is  cited  in  the  British  Argument,  page  70  in  support 
"of  the  contention  that  the  sealing  season  in  the  year  IiS.Hti 
"  extended  to  the  end  of  September  : 

"  Q.     In    1SS(),  taking  the  supplies  you  had  on   the   vessels 

"  you  have  nu'iitioned,  how  long  did  j-ou  ai'tange  for  the  cruise, 

.'lO  "  a  cruise  of  thi!  various  vessels  in  your  fleet  ?     A.     My  intcTi- 

"  tion   was  to  have  stayed    in   the  sea    until  about  the  end  of 

"  September. 

"  This  witness  might  reasonalily  be  expected,  when  the  general 

■  cliaiaeter  of  these  claims  is  considered,  to  testifv  to  a  prolonged 
"  hunting  season,  but  irrespective  of  his  pi-ejudices,  the  fact  is 
'  cliselosed  by  th(>  record  that  he  wos  never  in  l^ehring  Sea  after 
'  the  20th  of  August,  and  that  the  captains  sailing  the  schooneis 
'of  the  fleet  in  the  year  18H()  all  slopped  hunting  before  the 
"  25th  of  August." 

(ii)  I  have  already  referred  to  that,  but  as  to  Captain  Warren,  it 
may  be  wiu'th  while  to  notice  that  in  the  "  Dolphin  "  in  ISStJ 
he  wns  frightened  out  ;  and  in  the  "  D.dpl.'u  "  in  1887  he  was 
seized. 

On   page    KJ5  of  the    Brief  of  the   United  States  the  state- 


v"»  :" 


!ii 


■^a-' 


i' 


■liii 


\mm 


t  f^ 


276 

(Mr.   Bodwell's   Argument.) 

ment  is  repeated  that  Captain  Reppen  of  the  "  Grace "  left 
the  Sea  in  August,  and  tliat  .she  was  not  warned  out  hut  was 
stopped  on  account  of  hail  weather.  I  have  already  referred  to 
the  evidence  on  that  point,  and  I  suhniit  that  I  have  shown  that 
such  a  statement  is  not  justified  by  a  reading  of  the  whole  of 
Reppen's  evidence. 
10         Mr.  Lnnsing  : — It  is  justified  l>y  that  evidence. 

Mr.  Bodwell : — You  cannot  take  one  answer  out  of  a  wit- 
ness's evidpnce  and  sny  that  it  is  a  complete  statement  of  the 
wliole  of  his  testimony.  It  must  all  lie  read  together.  When 
you  read  the  whole  of  Reppen's  evidence,  take  the  fact 
that  he  was  warned,  and  the  fact  that  his  Indians  were  trouble- 
some, you  cannot  conclude  that  he  left  the  Sea  at  the  time  he 
did,  because  the  sealing  season  was  over.  These  other  circum- 
stiu;ci-s  also  come  into  consideration,  and  it  is  a  fair  inference 
from  the  evidence  that  the  length  of  the  sealing  season  had 
20  nothing  to  do  with  the  termination  of  the  voyage  of  the 
"  Grace  "  that  year. 

The  Uniteil  States  then  quotes  from  Captain  Olsen  to  show 
that  he  started  from  the  Sea  on  the  19th  August  and  came 
through  the  Pass  on  the  21st;  but  the  reason  of  Olsen  leaving 
the  Sea  is  not  referreil  to  in  the  United  States  Argument.  It  is 
this  :   At  page  19+7,  line  30,  we  find  him  saying  :— 

"  Q.     What  time  did  you  leave  the  Sea  ?     A.     My  last  seal- 

"  ing  day  was  on  the  19th  of  August.     I  think  I  went  through 

"  the  Pass  on  the  21st.     It  took  me  three  days  through  the  Pass. 

30  '  Q.      Had  you  seen  anj'  other  vessels  previous  to  that  ?     A. 

"  [  .saw  the  "  Mary  Ellen  "  in  ISMO. 

"  Q.  How  long  before  your  last  lowering  day  ?  A.  I  spoke 
"  to  her  on  th»  ISth  and  we  sailed  the  daya  fter,  and  that  is  the  last 
"  we  saw  of  her.  The  day  after,  the  19th,  I  started  for  home, 
"  one  of  the  men  being  sick." 

Your  Honor.s  are  not  to  conclude  that,  because  Ol.sen  stopped 

sealing  on  the  19th  August,  it  was  the  eTid  of  the  sealing  season, 

for   he   mak^s    on    oath   the    positive    statement    that    it    was 

because  of  one  of  his  man  being  sick.     He  left  to  take  the  sick 

40  man  home. 

At  page  235  of  the  United  States  Brief,  there  is  the  follow- 
ing statement : 

"  The  captains  on  three  of  the  ves.sels  of  this  fleet  positively 
"contradict  Captain  Warren." 

I  submit  that  they  do  not  contradict  Captain  Warren  at  all. 
On  the  contrary  their  evidence  is  sustained  by  the  statement  ho 
has  made. 

It  is  then  attempted  to  show  at  page  23.')   of    the    United 
States    Brief    that    Captain     Warren    contradicts    himself ;     I 
50  wish  to  read   the   evidence   of  this  witness  as  ([Uoted  and   con- 
trast   it  with    that  which    appears  in    the  record    in  order    to 
show  how  my  learned  friends  have  misunderstood  him  : — 

"Q.  Now,  you  say  your  schooners  were  all  fitted  out  to  leave 
"  the  Sea  at  the  end  of  September  ?     k.  In  that  neighbourhood. 

"  Q.  Did  J  on  ever  know  a  sealing  vessel  that  stayed  in 
"  Bebring  Sea  to  the  end  of  .Septembc'r  in  those  j-ears  ?  A.  In 
"  those  years  I  don't  think  I  do,  and  I  think  likely  there  was 
"  vessels  in  before. 

"  Q.     You   did   not  begin  to  enter  Beliring  Sea   until  1S8G? 
GO  "  A.     The  Victorians  did  not  as  a  rule. 

"  i^.  Can  j-ou  tell  me  of  a  single  vessel  that  reuiained  in 
"  Behring  Sea  in  IH.SG  or  1MS7  as  late  as  September  ?  A.  I  don't 
"  know  as  I  know  of  one. 

"  Q.     You  were  first  in  Behring  Sea  in  188G  ?     A.    In  IHiSG." 


277 

(Mr.  Bodwell's  Arguuioiit.) 

Here,  tliere  has  been  an  omission  of  a  question  anil  an  answer 
which  oupht  to  be  inserted.     It  is  as  follows  : — 

"  Q.  You  liave  answered  the  counsel  in  the  direct  exaniin- 
'■ation  tliat  you  fitted  out  your  ships  to  the  first  of  September 
'  for  Behrinj;  Sea.  Do  you  want  to  correct  your  testimony  ?  A. 
'  No." 
10  The  evidence  an  quoted  at  pajje  '2'M>  of  the  United  States  brief 
will  then  continue  : — 

'•  Q.     What  was  the   usual  time  for  leaving  Behring  Sea  of 

■  the  whole  of  the  sealing  Heet  ?  A.  We  were  commencin<^  at 
"that  time;  I  intended  to  have  stippjd  in  until  the  end  of 
'■  Septendier. 

'•  Q.     Have  you  learned  since  by  experience  that  there  is  no 
"  .M'aling  to  be  had  after  the  2.')th  of  August  ?     A.     Yes,  sir. 

It  is  perfectly  iiliiin  when  your  Honors  refer  to  the  whole  of 
the  evidence  thiit  the  witness  is  makin<{  an  answer  here,  as  wit- 
'JO  iiesses  sometimes  do,  which  is  not  responsive  to  the  question,  or 
clsL-  he  intends  to  use  the  word  in  an  indirect  sense  ;  because  when 
llie  cunnection  is  read  a  very  differont  comi)lexion  is  put  upon 
his  statement,  and  I  do  not  think  my  learned  friends  should 
have  stopped  the  (|uotation  where  they  did.  Here  is  the  whole 
of  that  evidence  which  I  wish  to  read  because  it  is  not  fair  to 
say  of  Captain  Warren  that  he  contradicted  himself.  I  quote  from 
line  ;J0.  pa<,'e  93iS  of  the  evidence  : — 

"  Q.     You  have  answered  to  counsel  in  the  direct  examina- 
•  tion  that  you   fitted  out  your  ships  the  1st   of  Septeud)er  for 
30  "  Bi'hrinjj  Sea  ?     A.     Yes,  sir. 

"  Q.     Do  you  want  to  correct  your  testimony?     A.     No. 

"  Q.     What  was  the  usual  time  for    Icavinjj   Behrin<;  Sea  of 
'■  t lie  whole  of  the  sealinj;  lleet  ?  "      A.    We   were  conmieneinij  at 
•  that  time,  I  intended  to  have  st()j)ped   in  until  the  end  of  Sep- 
tcnd)er. 

"  Q.      Have  you  learned  since  by  experience  that  there  is  no 

■  HcaliMj;  to  be  had  after  the  2oth  Auj;ust.     A.     ^"es,  sir. 

"  <.^.  Any  sealinif  done  in  later  years  afti'-r  the  1st  Septem- 
'•  bcr  ?  A.  Yes,  I  think  there  is.  1  know  of  vebsels  i^ettini;  back 
4(1  ■  pretty  well  to  the  end  of  October— the  20th.' 

■  (^).  Did  they  stop  and  seal  on  the  coast  ?  A.  On  thecoast 
"  condnif  back  ! 

"  Q.     Yes  f     A.     It  is  too  late. 

"  (.^.  Now  Clin  you  tell  me  a  sin<,de  ship  that  has  ever,  from 
"  ISSt)  down  to  this  last  sealinjf  sea.son,  both  inclusive,  fleale(l  in 


No,  1  don 


tk: 


low 


50 


(ill 


"  Hehrin^^Sea  aftei'  the  1st  of  Septeiidjer 
"just  what  they  have  done." 

"  ().  And  the  usual  time  for  leavinj;  liehrini;  Sea  in  lS8(i, 
ISS7  and  1888,  was  the  -iOth  Au<,nist,  was  it  not  ?  A.  //(  ISSS 
u)>(l  1SS7  there  was  too  much  m-lzvirs  youig  on  for  vfttseln  to  stay 
Ihfrc  " 

Mr.  Wai'ren : — The  reference  to  that  evidence  in  the  United 
States  brief  is  ]iai;e  878  :    that  is  a  mistake  for  it  sliould  be  'J38. 

Mr.  Boilwell : — 1  quote  from  Captain  Warren's  evidence,  pajje 
<X.]S. 

The  witness  is  not  contradict inj;  himself  at  all  as  your 
Honors  will  see.  It  is  a  fact  of  course,  that  the  vessels  did  not 
stay  in  the  sea,  but  the  reason  which  Captain  Warren  jjives  for 
that  is  the  very  rea.son  which  we  now  suj;i^e.st  to  your  Honors, 
nanu'ly,  that  tliere  was  altoj^ether  too  much  seizinji  going  on  to 
make  it  comfortable  for  vessels  to  stay  there.  That  evidence 
does  not  conflict  with  Captain  Warren's  previovis  statement,  and 
it  does  not,  as  my  friends  suggest,  make  him  unwortiiy  of  credit. 

Tile  United  States  brief  continues : — 


Im 

tm 


f] 


'U     ^!' 


a 


m 


:'!■ 


ii  •  r 


■11  '^1 


W-^ 


t    t.-.i-., 


278 


(Mr.  Bodwi'll's  Argument.) 


"  Cfiptaiii  Alt'XMiidcr  ^IcLcaii,  sailiiifj  tlio  "  Favourite,  "clo.sj'd 
•'  liis  luiiitiiij^  Hea.son  in  ]HH'i  on  tlic  lOtli  of  Aujfust.  " 

Ho  waH  not  on  tlic  "  Favourite  "'  but  on  tlie  "  San  J)iej;o  "  on 
the  lOtli  of  Auf^ust,  18HH,  ami  [  suppose  tiiat  i.s  a  misprint.  At 
any  rate  no  Miferenee  is  to  l)e  Irawn  I'roni  tlie  t'aet  tlial  Captain 
MeL 'an  eloseil  liis  sealinj;  season  on  the  "  San  lliej^o"  in  188;} 
10  btieause  the  "San  Diego"  was  fitted  out  for  walrusini.;  and  tlie 
takin^X  "f  seals  was  nioi-e  a  matter  of  atTide'sl-  than  anytliinj^  else. 

The  rniteil  States  l)rief  continues-  - 

"  'I'iiis  testimony  is  all  tlie  testimony  in  the  record  bearing 
"upon  till'  (hiration  of  tin;  sealing  aeason  in  Hehring  Sea  in  tin; 
yi'ar  I88(i,    which  was    given  hy   captains   who    were   actually 


th 


d  wh 


)se  voyages    were  not  iiitei'rujjted.     Only 


,f 


"  tliesi,'  vessels  was   warned,  and    ('aj)taiii  .Mel..eaii,    comiiiandiiig 
"that  vessel,   the    "Favourite,  '   testitied     that  he  did    nut  leave 
"  the  sea    because  of  the    warning,  but    stopped  hunting  on    the 
20   "  litth  of  August  liecaust!  the  .sea.son  was  closeil.  " 

As  I  have  stated,  it  is  not  exactly  all  the  evidence,  but  when 
all  the  evidence  is  reail,  the  evideiict!  which  J  have  (pioted  to 
your  Honors,  as  well  as  the  exidence  (pioted  in  the  l^nitcil 
States  brief  and  the  exi)laiiatioti  given  by  the  captains  who  wen' 


comix 


'lied  t< 


live  the  Jiehriiie-  Sea  on  an  earlier  date  tiiaii  tl 


otherwise  would,  how  can    it 


d  that    it  ii 


ley 


1  anv  wav  contro- 


verts the  contenti 


)f  tlreat    Hritain.     There  is  not  a  witness 


(lUoted  from,  whose  statement   as  to  the  <late  of  leaving  cannot 
be  explained,   when  it   has  not   been  explained  by  himself,  upon 


no   the  groiiiiils  which  F  liave  nn'iitioiied. 


Tl 


le   SMIlie     resi 


e  \ear 


lit    will    follow  when  the    evidence    iiu 


oted 


to  til 


ill 
1887  is  read  with    its  context.      The  first  evi- 


di'iice  (|iioted    in  the  l/iiited  Stales   brief  is  ("aptniii    Alexandi 
"can's,  who  is  mentioned  as  .saying  that   "the   "Mary  Ellen 

("apta 


McI. 


sto 


<l  ll 


unting  on  the  JUtli  Aiu/nsf."    That  evidenc 


to  which  I    re- 


McLean  is    based  upon  entries  in  his  own    b( 
ferrcd  yesterday. 

Mr.  Lansing  : — Supported  by  other  testimony. 

Mr.  Bodwell :— He  is  supported   entirely  from  his  book,    and 


40   he  would  not  answer  until  he  saw  the  book. 


The  L'niti'd   Stat.'s   b: 


coiitiiiiles  : 


t'ai>taiii  Charles    E. 


Uayner  states  that  he  made  ready  to   leave  the  sea  on  the  J.'/tli 
Aiatasf,  1887,  on  the  "  Allie  1.  Alger." 

I  refer  to  Captain  Kayner's  eviileiice  on  that  point,  because  I 


sul 


unit  it  is  verv  lioiibtfiil    whet 


for  tl 


i(>  reasons  whicl 


ler    lie  ilHl 

gi\es  in  till 


sto] 

'vid 


)  sealing  on  that 
eiiee  which  vuur 


lonors  lia\( 


befon;  you.      At  [lage  12-17.  line  4r)-(i()  we  have  fn 


him,    that    he    was    .sei/.ei 


I   at    tl 


le    same    time   as 


th 


AdM 


^''O   and     was    towed     into    "Ounlaska  "    bv   the    same  cutter,    ami 


that  dax'  was  the  2.")th 


)f  Aiii'iiKt.      Ill  eross-examiiiatioii  he 


he  is  askecl  this  ipiestion  at  page  I2.")t)  of  the  evidence  : — 

"  (}.     What   was   the  weather   on  thi;  2.'5rd  of  August  ?     A. 

"Good. 

"  (.^.     A  good  day  for  M'uling  i'     A.     Vi's. 
(.^.     At   what  hour  were  ymi  seized  on  the  2r)th  ?     A.     The 


.au  weather 


th 


HO 


'  24tli  we  had 

"  C^.     As  bail  as  on  tin,'  2.')th.     A.     I  think  it  was. 
"  Q.    On  the  2.")th  it   was  a  good    sealing  day?     1 
the  day,  in  the  fureiioi^n. 


Part  of 


Q,     You  saw  sonio  s(;als   brou:;lil  o:i    to  the  '  Ada,' did  you 


'  not  ? 


No,  sir. 


'  Q.     Whore    were    y 


ou    when 


th 


Ad 


a  was  s 


poken 


"  When  the 

"  miles  from  lit 

» 

"  Q.     Therfl 
"  vou  doubt  it 
*  "Q.     What 
10  "  not  just  say, 
"  noon  in  tow  ( 
"  Q.     What 
"A.     About  I: 
■Q.     Doy, 
"  stopped  wliel 
"  ing  because  y 
"  reason  for  piu 
"  .season  over. 
"  Q.     You  h 
•2i)   "  that  there    wi 
"  there  would  h 
'■  get  them  in. 

'■  Q.      You  d 

"  caught,  and  }•( 

"  got  much  latei 

"No,  sir;  1  dill 

There  is  Cn] 

cause  till!  soalin; 

let  us  turn  to  th 

;J0  piiint  and  see  w 

at    imge     787, 

2.Sth    of    Angus 

the  time.       Ami 

had     caught     .'? 

any  (luestion  as 

report  of  the  se 

Aiipendix   \i  pa; 

dead    seals  on    i 

"  Ada"  was  catc 

in  of  the  seizing  ot 

.Master  of  the  "  j 

and  you  have  al 

was  only  three  i 

seized,     r  ask  yo 

he  says  that  he  1 

was  over.     It  mi 

started    to  go   oi 

"  Ada." 

.Mr.  Warren  : 

.")()   "  Ada  "  was  seizt 

Mr.   Hod  well: 

shows  he    was  ii 

realized  next  day 

and  I  leave  \-ou  t 

There  is  in  th 

the  statement,  th 

he  iealed  in    18S'; 

to  Steel's  evidenci 

the  "  Mary   Ellen 

110   the  sealing  soasoi 

of  Steele  who  wt 

20  he  saj-s : 

'Q.   -You  left 
"  you  left,  the   19 


27J) 

(Mr.  Beilwell's  Argument.) 

"  When  the  '  Boar'  first  spoke  her  I  suppose  I  was   about  three 
"  miles  From  her." 

"  Q.  Tiiere  was  iiothiiij^  iii  tlie  weatlier  that  would  make 
"  j'ou  (ioulit  it  ?     A.     Not  tlmt  forenoon. 

'■  Q.     Wiiat  tiiui!  dill   you  start  for  Ouualaska  ?     A.     I  can- 

]()  "  not  Just  sa}-,  but  we  got  there  about  two  o'clock  in  the  after- 
"  noon  in  tow  of  the  cutter. 

"  Q.  What  distance  were  you  from  Ounalaska  when  seized  ? 
"  A.     About  12  miles. 

•' Q.  ])o  you  mean  to  convej' that  the  sealing  weather  had 
"  stopped  when  you  IusIkmI  j-our  boats,  and  that  you  wen;  leaY- 
'•  iiig  i)ecause  you  could  get  no  more  seals.  What  was  ycjur  real 
"  I'eason  for  preparing  to  go  away  then  ?  A.  I  consiilered  the 
"  season  over. 

"  Q.     You  have  stated   that   already.     But  did  jou  consider 

o()  "  that  th<!re  were  no  more  seals  to  bi?  caught  ?  A.  No,  sir; 
"there  would  be  more  seals  caught  if  3'ou  had  any  weather  to 
"  get  them  in. 

"  Q.  Yoti  did  not  consider  there  wert;  no  more  seals  to  be 
"caught,  and  you  know  as  a  matterof  fact  that  seals  liav(;  been 
"  irot  much  later  than  the  i+tli  of  Au^fust  in  Behrin;r  Sea  ?  A. 
"  No,  sir ;  1  did  not." 

There  is  Captain  Rayner's  statement  that  he  left  the  sea  be- 
cause the  sealing  was  over  and  that  the  weather  was  bail;  but 
let  \is  ttirn  to  the    evidi'iice  in    tiie  case   of  the  "  Ada"    on    that 

;!()  piiiiit  and  see  what  we  have  there.  The  evidence  of  Lundberg 
at  page  7.S7,  line  t)2,  shows  that  he  was  seized  on  the 
2Stli  of  August,  and  that  the  boats  were  out  sealing  at 
the  time.  And  at  jiage  788,  line  2.^,  he  deposes  that  they 
had  caught  .'58  seals  that  morning.  If  thei-e  is  to  be 
any  (juestion  as  to  which  is  correct  upon  tliat  point  we  have  the 
i-eport  of  the  seizing  officer  of  ttie  Uniti  d  Statcss  cutter  in 
Appendix  15  page  .So:  "Seized  the  sclu.ini.'r  "Ada"  with  .'50 
dead  seals  on  board."  There  is  no  doubt  whatever  that  the 
"Alia"  was  catching  seals;  and  that  is  supported  by  the  report 

-1.1)  of  the  seizing  otHcer."  We  liave  therefore  the  evidence  of  the 
Master  of  the  "  Ada  "  wlio  says,  that  it  was  a  good  sealing  day  ; 
and  you  have  also  the  circumstance  that  the  "  AUie  I.  Alger " 
was  oidy  threi'  miles  away  frnm  the  "Ada"  and  .saw  her  being 
seized.  I  ask  your  Honors  to  iid'er  that  Rnynei-  is  wrong  when 
he  says  that  he  lashed  up  his  boatu  because  the  sealing  season 
was  over.  It  might  be  argued  that  he  lashed  up  his  l)oats  and 
started  to  go  out  of  the  sea  when  he  saw  them  seizing  the 
"  A.la." 

Mr.  Warren  : — He    lashed  his  boats  on    the  24th,  and    the 

.M)   "  Ada  "  was  seized  on  tlie  2.')th. 

.Mr.  Hodwell  : — 'i'liatisall  the  strojiger  evidence,  because  it 
shows  ho  was  in  th(!  track  of  the  cutter,  and  his  fears  were 
realized  next  day — at  any  rate  your  Honors  have  the  evidence 
and  I  leave  you  to  come  to  yoiw  own  conclusion  upon  it. 


(;ii 


Tlune  is  in  tin"  ■ii-guiiii'nt   of  the   Unitml   States  pa- 


287- 


thi'  statement,  that  Captain  Folger  testified  that  the  last  day 
he  sealed  in  lcSS7  was  the  IKth  daj-  of  August;  but  a  reference 
to  Steel's  evidence  on  that  point  leaves  it  open  to  doubt  whether 
the  "  Marv  KUen  "  left  the  15ehring  Sea  on  that  date,  because 
the  sealing  j^eason  was  over.  At  page  l()7!l  we  have  evidence 
of  Steele  who  was  on  the  same  ves.iiel  with  Folger  ;  and  at  line 
20  he  says : 

'■  ii.     You  left  on  the  20th  .\ugnst,     Now  on  the  day  before 
"  you  left,  the   lUth  August,  how  many  seal.s  did  you  got  '     A 


4.1 


»il: 

r 


B''PiP-^ 


280 


(Mr.  BoflwcU's  Argument.') 

"  I  think  on  tlie  last  day's  lowerinj^  w«  got  about  SO  seals. 

"  Q.  Ami  tlie  next  day  before  that  wiieii  you  were  hunting, 
"  what  did  you  get  ?     A.     I  do  not  remember. 

"  Q.  Was  it  not  a  large  catch  ?  A.  I  do  not  remember, 
"    Ir.   Peters. 

"Q.  So  that  j'oii  were  actually  catching  seals  up  to  the  very 
10  "  daj-  you  left  the  Sea  and  catching  plenty  of  them  ?  A.  Yes, 
"  we  liad  some  very  gooil  days. 

"Q.  Are  you  prepared  to  state  that  if  you  hail  stayed  for  a 
"  week  afterwards  you  would  not  eateh  any  seals  ^  A.  If  the 
"  weather  was  tine  we  might  have  caught  some. 

"  Q.  Do  you  know  if  the  weather  was  tine  or  not '  A.  It 
"  was  not  when  I  left. 

"  Q.     'I'he  day  you  left   was  not  fine  ('     A.     No  sir." 

Steele  says  that  the  day  they  left  was  not  a  .liic  day,  but  they 
were  eatehing  seals  u[)  to  the  date  tliev  left  the  Sea,  and  they 
20  caiight  ^iO  (tn  the  last  lowei'iiig  day.  Vet  it  is  argued  by  the 
United  States  because  the  vessel  left,  which  might  have  been 
for  several  reasons  not  stated  in  the  evidence,  that  the  sealing 
sea.son  was  over  at  the  time  mentioned. 

1  have  already  referred  to  Captain  Meyer  and  the  cliaracter 
of  the  testiinony  whicli  hi."  ban  given.  1  shall  not  repeat  my 
observations  with  rel'ereiiee  to  that  :  l)Ut  he  is  the  next  author- 
ity ijuoted  by  the  rnited  States  to  siiow  that  the  hunting  season 
was  over  on  the  2.">th  of  August. 

'i'he  next  statement  i     'he  United  States   brief  is  as  follows, 

30   P"tJt'  -•^"  : 

"  .\lexander  {{epjjen  testitieij  that  he  was  on  the  "  Hiaek 
"Diamond  in  ISS7,  and  that  she  left  tlie  Sea  on  the  loth  ot 
"  Augu.st. " 

'{"hat  is  an  exceptionally  early  date:  and  when  the  witness  says 
that  he  does  not  know  the  reason  why  they  left  the  .Sea,  it  surely 
camiot  b»'  taken  as  evidence  to  show  that  it  was  the  close  of  the 
sealing  season.  At  all  events  it  never  has  been  claimed  that  the 
|.")th  of  August  was  the  close  of  the  Season.      I  ipiote  the  follow- 


40 


ing  from  the  evi  '  'iiee  of   Heppen.  jiage  |:>s:?,  line  (10: 
'  Q.     What  time  <lid   you  go   into    Mehring   Sea 


\\i 


ivent  Ml  the  beginning  of  July. 


Q.     What  time  did  vou  come  out  (     A.     About  the  loth  of 


August,  I  think. 


Al 


so  on  ijairi 


1.SH-1-,  line  10: 


Q.     An<i  you  stayed  in  there  the  usual   season 


W 


e  went 


'out  on  the  loth  of  Aujrust. 


'Q.     Went  out    or  st( 


'PI»' 


ding 


the    loth  <     A.     We 


"went  out  of  the  i'a.ss  on  the  l-oth 

Also  at  page  KW.'j,  line  4.4: 
50         *i*.     "  Ami  you  came  out  that  year  on  the  loth  of  August? 
"  A.     ^'es  sir. 

"  Q.     Why  :■     A.     I  don't  know  why. 

That  ovidence  cannot  be  taken  as  establishing  in  anyway  the 
close  of  the  sealing  seasoTi. 

The  next  statement  from  the  United  States  Brief  is  that 
Captain  Moss  testified  that  the  "  Kate"  left  the  Sea  in  1X>S7  tl 


»tter  par 


t  of    AuLTUst,    and    later    fixed   the    date     somewlun 


60 


about  the  20th,  24th  or  2.')th.  Hut  the  reasim  that  Moss  left 
the  sea  is  not  stated.  His  reason  is  given  at  page  341  of  the 
Record,  lines  9  and   10  and  it  is  as  follow  : 

"  Q.  And  you  left  what  date  in  August?  A.  The  latter 
"  part  of  August. 

"  Q.     Fix  the  date  in    August,  1887,   when   you   left  ?     A- 


a  general  a 
there  had  1 
deuce.  I  ca 
tj"  something 
with  the  Ii 
evidence  tl 
was  occasio 
were  conce 


281 

(Mr.  Bod  well's  Aiguiiient.) 

'  Somewhere  about  tlie  20th  or  24th  or  25th  ;  aoinewhero  around 
"  there. 

"  Q.     Is  it  nearer  the  20th  than  the  30th  ?     A.     About  the 
"  25th,  I  think. 
10         "  Q-     ^'^'tLS  the  sealin^T  season  oTer  when  you  left  ?     A.    No, 
"  I  don't  think  it  wa.s. 

"Q.     Why  did  you  leave  ?     A.     Because  I  saw  some  .schoou- 
"  ers  getting  .seized. 

"  ii.     Wiiiit  schooner  did  you   see  j^etting  seized  ?     A.     The 
"  Alfreil  Adams." 

This  brings  me  to  the  year  1888. 

Tlie  Connnissioner  on  the     part  of  the    United   States  : — If 
tliere  is  no  objection  on  either  side,  I  would  ask   counsel   in  the 
li.^t  L»f  the  seized  vessels  they  liave  given,  to  add    the  names  of 
>2()  the  Miistur.s  of  these  vessels. 

Mr.  Bodwell  : — I  will  do  so  with  great  pleasure. 

At  one  o'clock  the  Commissioner  took  recess. 


At  half  past  two  o'clock  the  Commissioners  resumed  their 
seats. 

Mr.  Bodwell  resumes  : — 

In  addition  to  tlie  evidence  which  I  cited  to  your  Honors  this 
morning  relating  to  the  length  of  the  sealing  season,  that  is  to 
•i«y  with  reference  to  the  intention  of  the  particular  captains 
who  were  warned  out  in  the  years  188U  and  1887  I  desire  t()ad<l 
;!l>  11  quotation  which  I  omitted,  from  the  evieience  of  Mr.  M.  F. 
Keefe,  at  page  1 12;i,  line  45  : — 

"  Q,.  And  now  you  say  that  tlie  '  Anna  Beek'  intended  stay- 
"  ing  until  the  10th  of  Se[)tember?  A.  I  say  that  she 
'■  intended  to  stay  perhaps  until  the  lOth  or  15th  of  September. 
'■  1  was  not  interested  in  \wr,  but  I  understood  that  from  the 
"  captain. 

"  Q.     If  the  captain  had    tostitieii  that  he  did  not  intend  to 
"stay   after    the    tirst  of  September,    you  would  be  mistaken  ? 
•  A.     I  did  not  know  anything  about  it.    That  was  what  he  said 
■1(1  "  he  intended  to  do  at  that  time. 

'  >^.  Do  you  really  know  how  long  he  intended  to  stay  in 
■'  in  Behring  Sea  ?     A.     No. 

"  Q.    You  had  nothing  to  do  with  governing  that  ?     A.    No." 

The  very  tirst  ijuestion  in  the  cross-examination  is  the  follow- 
ing, and  1  desire  to  refer  to  it  at  this  stage,  though  it  does  not  bear 
on  the  point  to  which  the  other  evidence  is  directed,     lie  says  : — 

"  Q.     When    you  were  on  the    stand   this   morning    Captain 
"  Keefe,    you  said  that  if  you    had    not    lost  a  bo^t,    or  if  your 
"  crew   had    not  mutinied    j-ou    would  have    stayed  in  the  Sea 
."ill    '  until  the  10th  of  September.     A.    Yes." 

1  have  looked  through  the  direct  examination,  which  I  sup- 
pose is  the  examination  in  the  morning  referred  to  in  that 
ijuestion,  anil  I  do  not  liiul  anything  taken  down  with  reference 
to  any  mutiny  of  the  crew.  The  word  "  mutinied,"  is  r,  woi'd 
used  by  ct)unsel,  and,  unless  we  know  the  circumstances, 
it  would  not  be  .safe  to  assume  from  the  fact  that  the  witness  gives 
a  general  atfirmative  answer  to  the  whole  of  that  question,  that 
there  had  been  any  ca.se  of  mutiny  mentioned  in  his  previous  evi- 
dence. I  cannot  recall  the  circumstance  now;  there  may  have  been 
Oil  .something said  by  the  witness;  but,  if  there  was  any  trouble 
with  the  Indians,  I  think  it  safe  to  assume  from  all  the  other 
evidence  that  we  have  about  the  "  Anna  Beck"  that  year,  that  it 
was  occasioned  by  the  fear  of  seizure  in  .so  far  as  the  Indians 
were  concerned. 


*I 


ifii' 


■4 


».!  - 


■^^ 


282 
(Mr.  BodwoH's  Arjjuinont.) 

This  morning  when  I  was  referring  to  a  statement  maile  in 
•  the  United  States  nrgnnient  thnt  not  a  schooner  went  from 
Victoria  to  Uoliring  Sea  in  18.S.'),  I  ciiUeil  your  Honors' 
attention  to  a  statement  of  (.'aptain  Alexander  Mcfjoan.  '  My 
fricnijs  do  not  agree  witli  mo  on  tiie  jioint  that  (Captain  Alex- 
ander McLean  went  to  Behring  Sea  in  iSSo  in  the  "  Favorite;" 
10  but  I  cannot  reail  liis  evidence  in  anj^  other  way.  Begiiniing  at 
page  401 ,  at  the  hutlom  of  the  page,  the  very  last  ([uestion  in  the 
direct  examination;  hy  Mr.  Dickinson  :  — 

"  Q.  The  '  Favourite'  was  outfitted  and  went  into  Hehring 
"  Sea  ^  A.  Not  in  l!SS4.  She  was  on  the  west  coast  of  Van- 
"  couver  Island  in  lSfS4. 

"  Q.  ])id  you  have  anv  experience  with  IiKlinn  hunters  in 
"  LSS4  ?    A.     Yes,  sir. 

"  Q.    How  many  canoes  had  you  i*     A.     From  I S  to  20  canoes. 

"  Q.  And  in  that  year  liehring  S(>a  wa'<  not  enter»«l  I 
■20  "think?  A.  \o,  sir,  another  vessel  went  to  the  Hehring  Sea, 
"  hut  till'  '  Fav  irite'  did  not  go. 

'  Q.  In  ISS,")  what  were  you  doing  ?  A.  I  .sailed  from  hei'e 
"in  iNSo. 

"  Q.     In  what  ship  ?     .\.     'i'he 'Favorite.' 

"  (^).     And  what  Kind  of  a  crew  >     A.     An  Indian  crew. 

"  (}.  How  many  ciiiioes  and  how  many  Indians  ?  A.  I 
"  helieve  there  were  12  canoes  in  ISS")." 

Moreover,  in  this  hook  n(  Captain  McLean's  to  which  1 
hav^  referred,  anil  which  I  presumi;  at  an}'  rate  my  friends  will 
30  consider  as  perfectly  authentic,  W(>  have  a  statement  of  sealing 
in  INS.")  on  the  west  co.ist,  and  si'aling  in  Iirhriiig  Sin,  heginidrig 
with  duly  4tli,  with  the  hititudf  and  longitude  set  out,  and  a 
total  catch  of  2()7.'{  seals  totalid  up,  1.'5n4  in  I'ldiring  Sea:  and 
at  the  liottom;  "  By  AlcxamliT  M<diean,  master  of  the  sehooTier 
'  Favoui'ite,'  of    Victoria,  !!,  ('." 

It  apjiears  therid'ore  that  I  was  correct  in  the  contention 
made,  that  the  "  Favoin-ite ''  did  sail  from  \'ietoria  in  l.SS.")  to 
15ehring  Sea  upon  a  scaling  voyage. 

In  tihe  course  of  tlir  remarks  whieli  I  was  addressing  to  j'our 

40    Honors  rel.'iiive  to  the  duration   of  the  sealing     ;eason,  1  closed 

wiml  I  had  t'l  ^ay  liel'ore  the  adioi!ruiiieiit,  at  the  lie^imiing  of  the 

sealing  seasiin  for  Isn.S,  as  it  isdescrilied  in  the  argument  for  the 

United  States. 

The  ;irginiieiit  with  rel'ereiii'e  to  the  yeur  ISMS  hegins  with 
a  (|uot;itioii  from  tie"  evidence  of  Ivandase,  page  '2'U  of  the 
Uniti-'d  .States  Alignment,  at  the  liottom  of  the  page.  There  has 
heeii  .a  mistlike  madi' in  ipioting  this  eviilenee  and  in  two  ways. 
In  the  lirst  place  I  wij]  rea'l  it  as  it  is  ipioted  here. 

"(^).  What  time  did  you  leave.'  \.  About  the  'iOth 
oO      August,    I  believe.      I  am  not  certain  of  the  date  though. 

'■  (^).  \'eiy  111  ar  the  20l!i  /  A.  It  must  have  been  very  near 
"the  20th.  because  ire  hail  linished  nuf  sealing  season. 

•■(,).     Were  you  warni'd  out  in  ISSS?     A.     No,  sir." 

Now  that  is  not  the  language'  of  the  witness  reported  in  the 
Record,  If  your  llonoi's  will  refer  to  tie-  original  evidence  you 
will  notice  the  diireicnci'.  The  witness  was  being  cross- 
examined.  I  tried  to  gi't  the  original  notes,  but  the  .steno- 
grapher who  hail  that  "take"  has  not  his  notes  here.  The 
witness  is  being  eniss-examined,  and  although  a  part  of  the 
00  phrase  is  printed  as  aiiuestimi  and  apart  as  an  answer,  from 
the  reading  of  it,  it  appears  to  me,  it  is  all  a  question,  and  is  an 
endeavour  to  get  an  answer  from  :■  witness  which  he  is  not 
inclineil  to  maki'.  I  will  read  two  or  three  lines  before  in  order 
to  give  your   Honors  the  coiniection  : 


283 
(Mr.  Bodwt'H's  Argument.) 

"  Q.  Are  you  just  {jueHHiiij;  at  it  ?  A.  JuhI  what  T  ciui 
"  r-'incmlxT. 

"Q.  Vou  littve  Homo  tiu'inory  of  it?  A.  I  have  soino 
"  iiK'inory  of  it :  I  know  it  wn.s  thcreiilMtutH. 

"  Q.     If  you  arc  jjuessiii^j  at   it   I    <lo  not  earo  to  have  you 
"answer  it  f     A.     I  <loii't  rt'int'inbt-r  tiic  date." 
1(1        Here  follies  wliat  I  talie  t<»  lie  a  whole  i|UeHtioii: 

"  Q.  Veiy  near  the 'iOtli  i*  A.  It  must  have  been  very  near 
"the  'iOth,  heeaime  yott  ha<l  tiiiislied  your  sealing,'  season." 

I  am  sure  it  must  have  been  all  <|Uewtioii,  although  part  of  it 
Is  printed  as  a  ([Uestiiju  and  part  as  an  answer.  The  (juestion  in 
printed  here  "  \'vry  near  the  2()tli  f  "  and  tlie  rest  of  tlie 
sentenee—"  it  nuist  liave  lieeii  very  near  the  2()tli,  liecause  yiiu 
liad  finishtMl  //oi/r  sealinj;  season  "  is  printed  as  an  answer. 

Mr.   Warren: — Oiu-  ar;;iiment   c|notes  it  correctly  frfini  the 
Roconl,  does  it  Jiot  ? 
•Jii  Mr.  Hodwell  : — No;  you    t|Uote  it  this  way:     "  It  must  have 

been  very  near  the  20th,  because  iir  liad  finished  our 
seidin;^  si'ason."  In  the  Record  it  is:  "  It  must  liave  laieii  very 
near  the  2()tli,  because  i/uii  had  finislied  ijoiir  sealinj;  season." 
I  nay  the  wlioit!  context  shows  that  it  was  a  ([Uestioii  and 
nut  an  iinswer  at  ail.  At  any  rate,  it  is  perfectly  clear  that  the 
witnesH  did  not  intend  to  say  that  they  bail  finished  the  Healing 
season.  If  tlie  evidence  iH  read,  bejfinnini^  at  line  40,  [laj^'e  Vt'2',i, 
(liis  will  appear  : 

"  (.^.     Wiiat   time  did  you  go  into  tlie  Sea  tliat  j-ear  ?     A.     I 
:;(i  "thiidv  it  was  the  20fh  .Inly. 

"  <V-  What  time  dill  you  leave  ?  A.  About  the  20th  August 
"  I  believe.      I  am  not  eertnin  of  the  date  though. 

"<,».  Are  you  ju.st  guesMing  at  it  (  A.  .lust  what  I  can  re- 
"  member. 

'  (.,•.  Vou  havt^  some  niemoiy  of  it  ?  A.  f  have  some 
"  memory  of  it,  I  know  it  was  tliei.'abouts. 

"  <^>.  If  you  are  gneNsing  at  it  I  do  not  care  to  have  you 
"answer  it.      A.      I  don't  rember  tiie  date. 

"  Vei'v  near  tlu^    20tli  i*     A.      It  must   have    been  very   near 
■'11  "the  20tli  l)eciiUH(i  yon  had  fiiiislu'd  your  sealing  season. 

"  (,).  Wiuit  was  the  Inst  you  lowered  in  IHSM  ;■  A.  I  don't 
"  reuKMiiber. 

"  (f.     Were  y<iu  warned  out  in  IMSH  '     A.     No,  sir. 

"<,*.  ^du  left  August  20tli  l)ecause  \ou  liad  finished  your 
"  .sealing  siMiKon  (     A.      I  d(jn  t  know  why  tb(;  cB])taiii  left. 

"  <,).     'I'liere  was  no  Hpecinl  icason  why  you  jel't  liiat  year  wa;; 
■llii  r.>  '     .\.     I  had  n.itliing  to  (lo  with  that  ])art, 

"<,).      \'ou  know    whether  there  was  any    special  reason    or 
"  not  '      \       I  <lon  t  know  anything  about  it. 
."II  "i,>.      Was  it  good  weather  when  you  left  ^     .\.     Nearly  rahii 

for  two  days  before   we  got   out    througii    the  I'asH.  ami  nearly 
"  ciibii  lor  iiiiollier  day. 

■().  'riieii  a  brue/.e  sprang  up  and  you  came  out  :*  A.  Ves 
"sir. 

"(j>.  Had  you  any  bii(|  weather  just  before  the  calm  '  A. 
■  Not  that  I  remember  of.  ' 

It  is  pi'rfectly  plain  that  the  witness  is  not  attempting  to  say 
why  they    left  at    thnt  time,  and  tliei'e  must   have    been   a  mis- 
understanding of  his  evidence  on  tiiat  point  or  it  would  not  have 
till   liren  inserteil  here  as  it  is. 

Mr.  Warren  : — The  next  'piestion  liaH  his  answer  embodied 
ill  it  where  it  says:  "  You  left  August  20th,  because  you  had 
"  tinished  your  sealing  season.  " 

Mr.  Jiudwoll : — That    is    a    very    coniinon   thing   in  cross- 


284 


20 


(Mr.  Budwell's  Ar^iitiiunt.) 

Gxaniinntion.  It  had  buun  put  to  tlio  witiiusH  before  and  lie 
iliil  not  answer,  evidently  in  this  way  :  "  Very  near  tiie  20tli,  it 
must  have  been  very  near  the  2()tii  because  you  had  tinislud 
your  sealing  season  "  and  tiiere  is  no  answer,  and  as  a  cio.ss- 
exaniincr  very  naturally  would  do,  thinking  he  can  make  u 
witness  give  an  answer,  he  repeats  it ;  'You  left  August  2()th 
0  because  you  had  tinisheil  your  sealing  season."  The  answer  to 
that  (|Uestion  is  :  "I  don't  know  wli}-  the  Taptain  left.'  The 
witness  could  not  be  pressed  to  tliutconclusion  fi'(jui  the ijuestions 
which  were  asked  him.  It  is  perfectly  clear  that  the  evidence 
of  the  witness  has  no  wwi^^lit  at  all  as  to  the  do.se  of  the  season, 
becaus(!  he  does  give  an  opinion  \ipon  it. 

The  ne.xt  reference  is  to  tlie  evidence  of  Mr.  iiaker  with 
reference  to  the  voyage  of  the  "  Triumph  "  in  lts.S8.  That  is 
dealt  with  in  the  Hritish  argument ;  iiut  |)erliaps  it  will  be  just 
as  well  to  take  it  down  in  the  notes  from  |iage  fiS. 

"  The  only  otliiT  vessel  mentioned  is  the  ''Triumph,"  the  date 
"  when  she  left  the  sea  is  not  stated,  lier  last  xealiiig  day  wa.s 
"  the  2()th  August.  As  nom;  of  the  member.<t  of  her  crew  could 
"  be  obtained  to  give  evidence,  the  statement  of  her  catch  is 
"  found  in  the  testimony  of  Mr.  K.  t'.  Baker,  a  ]mrt  owner  of 
"the  ship,  and  he  had  no  knowledge  of  the  reason  why  xiie  left 
"  the  Bca." 

Captain  iSteele  is  then  iiuoted  at  page  2.'}S,  from  his  evidence 
at  page    1078,  line  .')S,  I  takt?  it;  "  The  tirst  strong  gales  that  set 
in  frouL  the  northwest  after  the  2()th   August  we  generally  left 
30  for  home." 

If  your  Honors  will  turn  to  the  cro>s-exandnation  of  Captain 
Steele,  you  will  timl  he  is  speaking  from  a  very  hmited  experience. 
He  .saj'.s— page   1078,  lino  (iO. 

"  i-i.  How  ujiiny  years  have  you  actually  hunted  for  seals 
"  in  the  Keliring  .Sea  ('     A.     Two  yearn. 

"  Q.  One  of  these  was  I88'J  anil  what  was  the  other/  A. 
"One  was  1887  and  the  other  was  18!)0. 

"C^.     Jn  what  capacity  were  you    on  the  ship  in   1887/     A. 
"  1  was  before  the  mast  on  her. 
40         "  Q.     Just  a  seaman  /     A.     Ws,  sir. 

"  <i.  You  Were  not  a  hunter  /  A.  No,  I  was  before  the 
"  mast  on  her. ' 

We  have  here  simply  the  statement  of  a  common  seaman,  at 
that  time,  wlu)  had  made,  only  one  voyage  into  licdiring  !Sea — no 
other  voyage  until  l88!>.  It  can  .scarcely  be  taken  therefore 
that  he  speaks  with  authoi-ity. 

The  Oonnnissioiier  on  the  part  of  the  I'nited  States  : — iJid 
he  remain  a  common  seaman  :" 

.Mr.  liodwell  : — He    became   aftirwards  captain,  but    he  was 
o()  not  in  the  IJehring  Sen  again  until  I88!t. 

The  t'ommi.ssioner  on  the  part  of  the  I'nited  States: — He 
did  become  the  captain  of    a  sealer  / 

-Mr.  Lansing: — He  was  sealing  in  1887  and  188!)  on  the  coast. 

Mr.  Hodwell  :— Hesays  in  1887  and  I8tt0. 

The  Comndssioner  on  the  part  of  the  United  States: — In 
the  introduction  to  his  testimony  what  does  he  call  himself  / 

Mr.  Hodwell  ; — He  docs  not  say. 

Mr.  Warren: — IJo  you  not  know  what  he  is? 

Mr.  Bodwell : — Really  I  do  not  know  the  nwiTi,  he  was  not 
our  witness.     I  do  not  think  I  ever  saw   him.     (Reading.) 

"Q.  You  were  subpienaed  by  the  United  States  to  appear 
"  here  ?     A.     Y'es,  .sir." 

That  is  his  evidence  in  chief. 


(JO 


28r) 

(Mr.  B(mI\vcI1h  Arjjuiiiciit.) 

"  Q.     Ymi  art!  iiciti/t-ii  of    Victoria  ami  yoii  nro  a  resident  of 
"  Britiiili  Coliiniliia  '     A.     I  resiile  licre  now." 

Tlu' ('oiiiiiii.ssiinicr  111!  tlic  jmi't  ol"  the  Uiiiti'd   StntoN :-  It  is 
nut  iii'ci'ssary  tr  take  tiiin'  furtlifr  witli  this. 

Mr.  Hodwi'll :  lie  iIoih  not  Htate,  ymir  Hdiior,  and  I  do 
not  know  Ail  tin'  olwci'valion  I  niaki-  upon  it  Ik  that  it  would 
111  not  coni*'  to  till-  attention  of  a  coninion  si-aniaii  at  that 
time  till'  cxtiMit  of  thr  Hi'alin;;  scaMon  or  any  of  these  iiiatterK. 
They  would  not  he  for  his  attention  or  eousidei'atiuu 
naturally.  At  any  rate,  liein;;  in  that  eajiacity,  and  ha\  in;;  such 
a  limited  ex|ierience,  your  Honors,  I  suhmit,  will  not  feel  jus- 
tified in  ;;ivin;;  much  wei;;ht  to  his  statement. 

Captain  Meyersis  next  i|Uoted.  I  dealt  with  this  evidence  tins 
mornin;;,  and  have  referred  your  Honors  to  those  parts  of  hin 
ci'oss-examination  which  I  think  ou^jht  to  bo  read  in  connection 
with  any  statement  he  makes. 
•JO  My  friend.  Sir  Charles  Tupper,  refers  mo  to  tho  evidence  at 
pa;;e  lOSI,  line  -ii,  where  it  is  shown  that  in  IHHH  John  Steele 
was  tho  master  of  the  "  Penelope.  " 

Mr.  Warren : — The  top  of  page  107i)  states  all  about   that, 
your  Honor. 

Mr.  Hodwoll : — The  next  reference  is  to  the  fact  that  Captain 
Aloxaudor  McLean  of  tho  "  Mary  Ellen  "  stopped  hunting  on  the 
IDth  of  August.  Well,  we  have  Captain  McLean's  .statement  for 
that :  but  wo  have  no  cross-examination  or  other  information 
from  Captain  McLean  as  to  why  he  stopped  Healing  on  the  l!)th 
no  of  August.  Tho  "  Mary  Ellen"  was  not  a  schooner  in  unestion 
before  the  Connnission,  and  Captain  McLean  was  not  asKed  any 
((uestions,  wo  have  only^  tlie^bare  statement  that  he  left  on  the 
l!)th. 

The  Commissioner  onthe  part  of  tho  United  States : — What 
year  was  that  / 

Mr.  Bodwell :— 18M8,  your  Honor.  The  next  reference  is  to  the 
evidence  of  ( ioudio,  who  went  out  on  the  "  Edward  Welsh."  He 
stayeil  in  the  Sea  until  the  7th  of  Septeniber.  His  evidennce  is 
useful  to  that  extent,  although  (Joudio  wa.s  a  man  that  did  not 
40  appear  before  your  Honors  ni  any  enviable  position,  it  having 
been  shown — 

Mr.  Warren  : — The  "  Molly  Adams  "' — it  was  another  voyage. 
Mr.  Bodwell  : — At  any  rate  it  shews  ho  was  in  the  Sea  until 
the  7th  of  September. 

A  referenci-  is  then  made  to  the  evidence  of  Captain  Charles 

Hackett,  shewing  that  he  left  tho    Sea  on  the    22nd  of  August 

and  was  not  afraid  of  seizui'os.     That  is  correct  so  far  as  it  goes; 

hut  it  is   not  the  whole  story.      'J'hero  is  another  mistake  here, 

because    tho    witni.'.ss    on    the  previous    page,  (i.o!),  line    .58,  is 

50  giving  evidence  about  the  vear  1888,  and  this  is  the  evidence: — 

"  Q.     Was  she  in  Hehri'ng  Sea  in   1888  ,'     A.     She  was. 

"  Q.     Dili  you  have  a  large  or  small  catch  i     A.    Small  catch. 

"Dill  not  leave  here  until  2Lst  Juno. 

"  (}.     What  time  did  ycai  enter  the  Sea  i     A.  About  the  20th 
•July." 

He  is  asked  some  <|Uestions  like  that,  which  I  rol'il-  to  merely 
to  show  he  is  giving  evidence  about  the  year  1888,  and  then — 

"  Q.     And  you    had    the  samt^  outfit,  si. x  boats   and  astern 
"  boat '     A.     ^'os,  sir. 
•)0         "Q.     Were  you  afraid  of  seizure  that  year  ;'     A.     No. 

"  Q.     You  left  about   the  same  date  you  did  in  1888  f     A. 
"  Yes,  sir." 

That  is  evidi.'utly  a  misprint,  because  tho  witness  is  speaking 
about  1888. 


'   l' '' ' 

'i|  'M 

1 

1, 1-  ■ 

.    1 

i' 

''•up 

-0 

'■;•  i'l 

:,Hi 

rrii 

1'   ■ 

'!'  ,jl 

PI 


!    I 


■:■  'ii  \i  ■ 


il: 


•2M 


(Mr.   llodwiH'.H  Ai};iiiiMiit.) 


10 


"Q.     On  a'.'cniiiit  uf  till' wi'iitliiT  '     A.     No. 

'•  Q.  (Mimi- i>f  the  Mfiisdii  '  A.  I  tlii)ii;r|il  I  liiul  jro),  pretty 
'  ni'iir  III!  I  cniilil  ;,'i't  I  Imil  ;;ii'<'ii  iiifii  fur  Iniiitt'r.s,  tlii'V  iit'Vcr 
'liii'l  lii'i'ii  at  till' liii.siiii'SH  lii't'iii'i'. 

"  Q.  Tliat  was  yuiir  tir.sl  yi'Mi'N  t'Xiii'rii'iici'.  .\.  Firnt  ycai-'.s 
'  oxiicrii'iict'. 

"  Q.  Wlii'M  yim  siy  yiiu  It't't  till'  sen  ;,n  tlm  '2i\\i\,  tliut  ilot's 
'  not  iiii'an  tliat  was  the  last  ilay  Villi  lowrri'd  (•  \.  'I'liat  was 
'  till*  ilay  1  fame  tliroiij^li  tin-  pass." 

[  siiliiiiit  that  your  lioimrs  (;aiiiiot  iiifi'i'  uiiytliiii;^  t'roin  tliat 
Dviiji'iici)  lis  to  till-  ('li)si'  of  till'   si'asoii.     Till'    witiii'ss    left  on  a 


cortMiii  <lav  and   tliat  is 


that 


IS  iirovi'i 


I.     Tl 


H!   (•on."<ii|i'ratiiiii 


whifli    iinluci'il  liiiii    to  li'avf    was   aiiiiarciitlv  tlu'   fact   tl'.at  liis 


liiiiit 


I'ls  wcri'   not 


i;itisfai'tor\'  ;  li 


I'l' 
was  not  i,'t'ttinif  aloiii,'  as  In 


liail    liopril,    li.'CiiMif    liisconia^i'il    ami    went    away.       Ili-  sayi, 
positivuly    and    distinctly,  that    it  was    not  on    accoiintof  the 
20    weather. 

The  ari;niiiint  tlii'ii  jn'occi'ds  at  pa;,'i'  '2'M  t'l  Lfivc  a  i|Uotation 


from  the  cvidi'iR'c  of  Vict'ir  .laci 


n  sliowiii'''  till'  date  at  whi 


•ft     tl 


sea 


that 


veur. 


T 


IIS    cvideiiei 


ited 


III    til. 


Unite.!  States  armiinent  at  paije  "J-'ilt,  near  the  top.  if  your 
Honors  will  turn  to  the  evidence,  vou  will  liiiil  on  pa^'e  It+T, 
line  tlO. 

Q.     Vou  lowered    ill    the    Pas,«i  i*     .\.     Ves  lowered    iiisiile 


the    P; 


(.,).     Vou  do  not  iisiiallv  lower  eanoi>s  in  the  Pass  itself; 


:{0  "  I 


lOWere 


1   tl 


'ne\i'r  we  could  ''('t  seals 


SoiiiothiiiLr 


t^.     Did  you  ;;c't  any  si'als   in    the  Pass  ' 
"like  (iO  I  think  one  canoe  had    17.' 

It  is  a  fair  inference  from  that  evidence,  and  from  wdiat  we 
know  of  .lacoliseii,  that  he  would  not  then  have  lioen  leaviiii^ 
tlio  sea,  if  he  had  had  eiioui^di  water  to  remain  ;  of  couise.  it 
would  not  have  lieeii  worth    his  wdiile,   after   haviie'    tilled  with 


water  down  nt  the   I'l 
hunt  lonyier. 


to  sail   hack   into   the   sea   airaii 


d 


T 


I  ere 


is  also    a    reference     immediatelv    after   that  to    tlit 


40  witness'  voyiii,'e  in  the  year  l.S!)(),  sliowiiii^  that  he  left 
the  sea  on  the  '2'tlh  of  Auijust,  and  that  he  was  not  afraid 
of  seizure.  That  is  perfectly  true,  but  nevertheless,  that  is 
not  the    reason    wdiy  he  left  the  .sea  that    year  on    that  daj'. 


for,    at    paj;e    I4+S*  heiiinnin;;    with    line    (11,   we    hii 


th 


"  il  Vou  left  the  sea  on  thi'2  ."ith  August,  IXitO  !  A.  ■2;{rd  1 
think,  we  ipiit  simiHiil^  on  the  2.'Jrii.  We  were  some  two  or 
ti-.re,   days  getting  out. 


■•  !h 


you 


went  out  ahout  the  2")th  ?     A.     About  the  ioth. 


(.)      In  l)s!K)  your    Indians  tliouj,dit  the}'    had  hunted  loiii,' 

L.     Thev  thoU'dit 


close    on 


•JliOO 


;h'whi'n  they  wer,.  nut,  did  tliey  not  ; 
'  ]  had  seals  eiioUL,di  and  inoiie\-  enough. 

"  Q.  8')  you  \vant"d  to  come  out  .'  A.  I  had 
'  seals  that  year,  I  had  on  that  trip  up  to  Beluiii;;  Sea,  and  into 
'BehriiiL;;  Sea  close  on  2:{00  seals.  They  wi're  all  pretty  well 
'.satisfied — ;{()0  before  on  the  coast." 

The  real  reason  for  the  ship  leaving,  as  ymir   lIoU'i 


.serve,  was  that  they 


to 


h 


ai 


ul    that 


laii  niaile  a  large  catch   anil  wen 


satisfied 

is   exactly  the  conl'iitioii    that  we    are 

lad   sucei'cded    in   making  a    s^itistactoiy 

(JO  catch  tlioy  did  not  reiii.ain  in  the  sea — but  otherwise   if  they  did 


inakiiir;,  wlieii  vess 


not  make  a  satisfactorv  catch. 


Refe 


erence    is   made  on   the    sam  •    page 


to   th 


e    eviilence 


)f 
the   -iOth 


Captain  ("larke,  who  t  'stifled  that  he   left,  the  soji 

August,   l^SSS.      Ihit  his  statement  on  that  point,  should  be  rend 


n 


m 

(Mr,  Hoflwt'll'H  Ar;,'uiiiiiit.) 

witli  tli<!  reason  lut  nivp>t.  It  was  tliiit  hi-  li;ft  tin-  sea 
on  tliat  iliitc  Iji'i'imti*  Ix't'oiT  In'  went  uwny  t'mm  N'ictoria  In-  wn« 
instinct  I'll  to  ri'tnrn  Ipfciiiisc  si-i/UKL's  wi'ic-  to  Ih-  nimli!  uftiT  tin; 
•JOtli  Aiij{UHt.     I  ivf.'r  yiiii  to  |)iiL,'i>   1120,  line  |.'>  :- - 

"  if.     Wluit  iliil  yon  conio  out  on  tin-  itiHli  iif    Vui^nst  for  :'" 
'I'lmt  must  111'  H  misprint  t'lr  2l)tli  of  August. 
Ill        '■  A.     My  instructions  wci'c  to  inivc  tlic  2i)tli. 

"  Q.  You  finm  out  on  account  of  your  iristi'iK'tion-t  !  A, 
"  ^^•s,  sir." 

Ki'-ilircct  cxnniination  li}'  Mr.  Ij'insini,' : — 
"(jt.     Whose  instructions  were  tliosc  you  olu'vci!  ''omini,' out ;' 
.\      Tlic  instructions  wi'ro  mainly  .Mr.    Hall  s  tin-    mHna;,'in;; 
owner.'' 

.\ncl    your   Honoi-s    will     I'cmi'mlifi'  tlmt    lie   was    n'-callcil 
,ft('r\Mifi|sani|  fully ''.xplaincii  tlic  circumstiiMi'i's,    I'.  Jlt.VI-.  I.  liO, 
'I'licrc  is  then  the  stati'incnt  of  witness  Smith,  with  refereiico 
ill  to  the  trip  of  the  •  lilacU  Diamoinl."      He  snys  :  — 

'*}.      Were   you  in    liehriiiLT  Si-a  tlie  entire    -easoii  <if    J.S.S.Sf' 

■  \.     So,  Just  part  of   the  season. " 

'riiix  shouhl  lie  reiiii  in  connection  witii  the  statement  that  is 
•  iMoteil  liere  : — 

"  (,>.      When  liiil  you  ;ro  out  '     A.     On  the  iOtli  Au;4Uit." 

.Mr.  l/insin;,':— He  tolls  when  he  enters  tln'  sen  on  the  last  of 
.Inly,  see  line  tiS. 

.Mr.   IJoilwell :— Well,  it  is  there  foi'   what  it   is  worth  ;  it  is 

just  one   tiare   statement   of  this  witness    ami    has  simply    tlmt 

^■ii   \veiL;ht,     Hi'  was  not  e.namineil  as  to  the   re.ison   fir   lea\ini^  or 

whether    it     was  the    close    of    tlie    season    or    not.     There  is 

nothiny;  Imt  tiie  simple  fact  that  he  left  on  that  ilatr. 

Till.' ari^ument  on  ))a;^e  240  then  repeats  the  statement  that 
there  is  no  cviilenco  of  vessels  remaining,'  in  the  Hehrini^  8oa 
in  the  month  of  ,Sei)teinh(!r  except  in  one  instance.  I  liavo 
aheaily  s^iven  the  an.swer  to  tliat  assort:  mi. 

1  now  come  to  the  season  of   ISH!), 

There  is  first  a  reference  to  the  eviilence  of  Captain  Charh>» 
40  llacUett.  wlio  testitiod,  as  it  is  stateii  in  the  arn;nment  at  paj^s 
•Hi),  that  lie  left  the  .Sea  in  the  "Annie  (".  .\loore"  on  the 
20tli  Auf^nst.  that  it  was  not  favorable  weather  ami  tha*^  he 
stopped  hunting  oil  the  Kith  August;  but  his  evidence  should 
have  ')ecn  continued  becau.se  he  is  asked  here,  at  page  <).')!>,  at 
the  top  of  the  page  : — 

"  (^.  When  did  you  stop  .sealing  in  ISItO,  Chptain  ?  A. 
"  August  11  th. 

"  i).     And  that  was  about  ten  <lays  earlier   that   you  tlid  in 
•IS.S!)?     A.     Yes. 
,"i()         '■  ().     Dili   you  stop    sealing    then    on    account    of  the    bad 

■  weather  ?     A.     Y'es. 

"  ().     And  you  stopped   in  188!)  on   the   same  account  ?     A. 

■  Xo.  1   n'Kii  iiffiiil  of  Kcizarr  in,  1SH9." 

The  evidence  of  Thomas  H.  Hrown  is  then  referred  to  with 
reference  to  the  voyage  ot  the  "  Maggie  Mac."  It  is  said  there 
that  the  last  lowi'ring  day  was  on  the  23tli  ,\ugust.  That  is 
true,  but  there  is  more  that  ought  to  be  read  in  connecti;. n. 
The  first  statement  is  at  page  ")l,  line  ;{0; — 

"  ()  You  came  out  because  the  season  was  over  so  far  as 
•  111    ■  vou  knew  :*     A.     Y'^es.  1  had  lieard  of  seizing  before  that." 

It  is  manifest  that  the  witness  heie  cdiduses  the  two  words, 
■siasun  "  and  ".seizing."  'i"he  cuunsel  said  "  seiLson  "  and  the 
witness  understood  hiin  to  say  "seizing."  Tlii.s  is  |ilain  from 
the  examination  at  page  (ioo,  line  10: — 


0 


J..;-*! 


'■H!  !||'!'f 


|!l 


m 


i  ,,  I  Ji'Hd 


i;    '1 


|i    i' 


I  'PII 


'"■;nOT*WBff 'r       ' 


mmmmm 


2H8 


10 


20 


(Mr.  Hodwi'ir.s  Ari;uiiieut.) 

"  Q.     Have  \-o'i  any  note  of  tlic  nuinlier  of  Hcals  you  caught 
tliat  (la_v  .'     A.  (t'xainiiiiiii;).     We  didn't  hunt  that  day.  " 
|)own  ftirthor  at  line  20,  i.s  this  cvidcnci.' : — 


!r>th 


A.    That 
A. 


On 


"  i).      Wln'i'c  did  you  do  tliat  scalinij  on  tiic 
"  wa.s  I'losc  to  till'  I'a.ss — Tour  Mountain  I'a.^s. 

"  Q.     'I'lu'  soi/.uii'  of  wiiat  .sfhooniTM  did  you  hear  .' 
"  that  day  \vi'  Hj)oi<c — 

"  Q.  Ni'vcr  mind  what  you  did.  What  8ciio(>nt'rs  did  you 
"hear  h.id  been  sci/.i'd  :'  A.  Thi'  '  Minnie,"  "  Blai-k  Diamond  " 
"  and  the  •'  PatlitindiT." 

'riiiTo  is  a  scntt-noe  also  that  I  sliould  have  ivad  at  line  ISiin 
the  same  page. 

"  Q.  Wow  long  did  you  stay  on  tiie  Sea  after  the  2;ird  f 
"  A.     Until  we  eame  out  on  the  28th.  " 

And  the  log,  which    was  afterwards  referred  to,  shows    that 
when  they  lieard  of  the  seizin-es  they  started  away. 
Mr.  Warren :— Read  line  ;J2,  page  057. 
Mr.  Bodwell : — Reading — 
"  Q     Some  time  previous    to  that  was  it  not  ?     A.     Yea,  sir, 
"  I  tliink  the  tirst  intimation  we  heard  of  the  .seizure. 

"  Q.  We  will  not  go  into  tliese  iletails.  You  do  not  mean  to 
"  say  tliat  you  came  out  of  Behring  8eu  because  you  heard  of 
"  the  seizures,  do  y""  '  A.  No,  I  would  not  say  it  was  that." 
Well,  of  course,  though  tlu'  witness  gives  that  answer  there, 
later  on  when  he  had  the  log  he  niakes  another  statement  and 
his  subsequent  statement  should  be  accepted.  It  is  sliown  that 
30  their  course  was  ciianged.  When  they  heard  of  the  seizures 
they  went  to  an  unusual  place  where  sealing  was  not  profitable 
but  which  was  out  of  the  track  of  the  cutters. 

WMth  reference  to  Captain  Baker,  who  is  (juoted  next,  we 
have  dealt  with  that  in  our  printed  argument,  page  OH,  line  46. 
The  evidence  of  Captain  Lauchlan  McLean  of  the  "  Favor- 
ite" is  next  referred  to,  at  page  2'il  of  tite  United  States  argu- 
ment, but  his  evidence  at  page  730,  line  50  to  70  should  be  read 
in  this  eonnection. 

"  Q.  You  were  not  afraid  of  being  seized  in  1889,  weri'  you  f 
"  A.     A  little  bit. 

"  Q.  Then  you  left  on  that  account  i  A.  No,  1  did  not 
"  leave  exactly  on  that  account. 

"  Q.     You  ditl  not  leave  because  it  was  bad  weather  and  do 
"  not  know  why  you  left  f     A.     I'erhaj)s   I  wanted    to  go  home. 
"Q.     What  i.s  your  best  recollection  about  it  i     A.     1  think 
'■I  did  want  to  go. 

"  <,>.     Tlu' fact  is  the  sealing   was  about  over  (•     A.     No,  sir. 
"Q.     Why  did  you  leavi'  '     A.     1  was  very  .sorry  1  did  leave 
"  when  the  vessels  eame  in  witli  their  big  entehes  afterwards  " 
No  eoniinent  is  neeiled. 

Then  Hi.ssett  s  evidence  is  referrt'd  to.  He  was  on  the 
"  Theresa. "  Mis  e\  ideiiee  is  at  page  770.  The  evidence  of 
Bissett,  who  was  on  the  "Theresa,"  is  produeeil  to  show  the  state 
of  the  weather  at  tlie  time  of  the  seizure  of  the  "  I'athtinder,' 
because  !'•  ■  .ett  was  sailing  in  siglit  of  the  "  IVthtinder.  '  ll 
would  be  extraordinary  for  your  Honors  to  arrive  at  the  con 
elusion  that  the  season  was  over,  undei-  the  circumstances  dett.  '••! 
b\- this  witness.  .\t  |mge  775  l)egiiniing  at  line  45,  iiis  evidence 
reads  as  folhtws : 

"  ().  ( >n  that  particular  day,  what  sort  of  a  day  was  it  for 
"  .sealing  ?     A.    A  splendid  day. 

"  if.     Was  it  calm  or  roiigii  ?     A.     Very  smooth. 
"  ().     Were  there  any  seals  being  caught  that  day  !     A.   Not 
"  while  the  cuttei'  was  aiound.     They  prevented  us  from  lower- 
"  inir  the  boats. 


40 


50 


GO 


2S9 


(Mr.    Hi)(l\vi'irs    Ari.jiMiu'iit.) 
Q.      I)i<l  the  otlii'iT  (if  llio  I'litttT  iiiakt'  iiiiv  statcinciit    willi 


I'l'I'iTi'IlCi'  to  M'llls  tllllt   (lay  ^       A.      lie  did. 

'  <).     W'liat   dill  111-  sav  i'      A.     1  rcmaikrd    t,)  liiiii  that 


riTi'  very  jiii'iitifi 


wild,  and  I  told   liiiii  in  n  iok 


irt  of 


way  tliat  tlicy  si't'iiit-d  to  know  tlicy  were  under  tin-  protoetion 
(if  tlif  Aiiit'iiean  ciittiT.  He  saiil,  you  tliiiik  you  liavo  c'nn;j;lit 
tiu'iii  jilcntil'ui  aiouiiil  licit',  liut  you  oiii^lit  to  tic  around  tlic 
'  Ariel,'  wc  had  to  .shove  thcni  out  of  the  wnv  hofoic  us  ''cttiiiji 


on  hoard  her  tiiis  moriiini 


(.).     Thai 


l.-i  What  he  reiioi 


ited  '      A.     Y( 


Q.      .\s  a   iiialter  of   fact  the  "  IJiish  "  went    'iwav.  did    sh 


A     Y, 


Q.      Did  \-ou  seal  anv  that  dav  '      A,     We  did. 


U.     With  what; 


uceess : 


A.    ■i'l 


le  cutter  left  us  at  i  o'uh 


II  the  afteriiooii ;  she  hovered  in 


vessels  until    ahout  '2  o'clock 


■Jii   "  ahout  4  we    lowt 


re.  I 


ailioni^the  Heel   of  four  (U' flvi' 

k  ;  she  ste.inieil   away  alioiit  '2  and 

>i  I'T  skins  from   4  to  7 


a  lioat,  and    wi 


■  that  t'veiiiiiv;  ;    it  w;is   eithei  ft")   or  !l7.  I   woulil    not  he  certain 
'  which,  liui  ii  w;is  eiiliei  one  of  these  two  niiiiihcrs, 

•■  (j>.     What   did   the   ■ 'I'riuiiiph  '  do   after   thai  '      A.     Wiuit 

■  away  from  there  ;  the  captain  said  he  was  afraid  of  seizure  and 

■  we  well!   down  close  to    the  p  issii,'e  out  of    the  way  of  the   cut- 
'■  teis.  as  he  thought. 

•  (j>.      .\iid  you  went  oiil  of  the  Sea,  when  !      A.     We  diil  not 

■  i;o  out  of  the  Sea  till  the  Iird  of  Septeiuher,  1  think  it  was. 

"  (jl.      What  ]iarl  iif   the  Sea  did  you   getaway  to'     A.     We 
•  it'      went  down  in  the  iieijilihoihood  of  I''(Uir  Mountain  Pass. 
"  ().     I>id  you  tind  any  seals  there  ^     .\.      No,  sir. 
"  ().      Would  you  have  yone  there  if    it  had  not  heeii  for   the 
"  ciitti'r  ;'     A.     No,  sir." 

Mr.  Wan  . SI :  — Ilea  I  the  next  (pie-^lion  aiul  answer. 

Mr.  liodwell,  readinj,'  ■-- 

'  Q.     Yon  stayed  in   tlieie  part  of  the  year  :"     \.      We   went 

■  down  in  the    nel;;hhoi  hood  of    the  p.'ls-  and   relliiliued  there    for 
'  the  halaiice  nf  the  s  'as  m." 

()f  course  he  did.      lie  could  not  catch  any  seals  ihere.      That 
h'  is  exactly  our  contention,  hut  still  he  stayed  in  the  liehiiiii,'  Sea 

until   llu'  7lh  of  SeptrUlliei. 

'I'hen  the  statement  of  ( 'aplaiii  Steele  is  ripetilcd  ahout  the 
e;ales,  hut  I  siiliiuit  that  no  inference  is  to  he  drawn  from  that 
hecausc  the  whole  Weight  of  the  evidence  is  ihilt  ISiK)  wa.s  a 
season  of  most  unusual  incleiueiicy,  and  therefore  the  fact  that  a 
\.  ^se!  eii  Ht  any  particular  date  is  not  suHicieiit  for  a  conclusion 
as  to  th    ('(Uiililioiis  existiiiL''  in  any  olher  year. 

The  next  statement  is  that  of  William  T  Hraii^'  "''"'  testi- 
lie  !  that  the  :jr>tli  of  Auejust  was  the  Inst,  loweriiie;  day  on  tiu' 
'''  Mai.'^ie  Mac  "  ill  the  year  ISSIt.  'J'hat  is  iierl'ectly  true.  Hut 
this  w.'s  llie  schooner  on  which  tlic  witness  Mrowii  was  huntiiii,', 
and  his  eviileiici-  discloses  th.c  fact  that  Ihiy  left  the  Sea  oil 
fifcount  of  the  seizures  that  year. 

Hire  is  a  reference  to  (iiuidie  in  rcfiard  to  which  I  thuui,'ht  1 
hail  a  meinniandiim.  It  is  on  pa^c  :>4i.  \\',.  ,U,  imt  press 
llondie's  evidence  u|ion  your  Honors,  it  hii.s  no  particular  weie;ht 
oil  either  side. 

Mr.  LaiisiiiKi  —  Yoii  said  that  Hra.';,;  and  Ihowii  were  on  the 
|.,i  s.ime  hout.  Ihau'j,'  was  111  the  "  MaLTijie  Mac  "  Mid  Hrowii  was 
nil  the  "  Mary  Klleii.  ' 

Mr.  Iioilwell  ; — Then  I  was  mistaken.  I  see  hy  rcforriiii,' to  the 
lecord,  paj,'e  (l.'it,  it  is  tiiie  that  I'ro'vn  was  on  the  "  Mary  Kllen  " 
ill  l.Sfsit.     J  Hill   fj;liid   my  friend  li..s  calleil  my  attention  to  that 


m 


I  1 

1-  ^ 

,  ''*■ 

■'■ 

■  \ . ; 

\.,  ■     ■ 
''I 

■i-  'I- 


II  It 


il 


I 


If 


w 


290 


(Mr.    BodwcU'^  Argument.) 

because  I  really  had  made  a  wrong  reference  myelf.     We  deal 
with  the  "  Maggie  Mac"  in  1889  in  our  argument. 

This  i.s  what  we  say  in  our  argument  at  page  69.  The 
"  Maggie  Mac  "  left  the  Sea  on  the  2.5th  of  August,  but  her 
Hja.ster  was  dead,  and  the  number  of  the  catch  had  to  be  obtained 
from  the  witness  Kerr,  who  had  no  knowledge  of  the  time  on 
10  which  she  began  her  homeward  voyage.  Bragg  was  not  asked 
any  questions  as  to  the  reason  wliy  lie  left  the  Sea  at  that  par- 
ticular time.  It  was  evidence  that  might  have  been  obtained 
from  the  witness  but  was  not  asked  for. 

With  reference  to  the  evidence  of  Captain  Hanson  in  the 
"  Adele,"  which  is  quoted  at  the  bottom  of  page  241.  At  page 
(jl(i,  line  10,  ho  shows  tliat  lie  had  Indians  who  were  n(;t  vei-y 
good  workers. 

"  Q.  Why  ?  A.  One  thing  is  tliat  I  could  not  get  them  to 
"  lower  the  boats  on  Sunday. 
20  "  Q.  And  when  the}-  did  lower  the  boats,  "ere  they  as  good 
"  hunters  as  the  others,  or  were  they  not  ?  A.  No,  they  were  not 
"  as  good.  I  think  I  had  better  chances  that  year  than  the  year 
"  before,  but  these  Indians  would  go  out  in  the  morning  and  when 
"  they  caught  ten,  twelve  or  fifteen  seals,  even  if  it  was  only  nine 
"  o'clock,  they  would  come  back  and  not  go  bi'ck  an;,"  more  ;  I 
"  could  not  persuade  them  to  go  out  again. 

"  Q.     Your  hunters  in  1889  were  not  stu'sfn  't.oi  .        A.    No. 

"  Q.     And  you  nevsr  tried  them  before,  I'l'-i    wt.'^  your  first 
"experience  with  them  ?     A.    Yes. 
30  "  Q.     Why  did  you  leave  llie  Sea  so  cHrl}-  as  the  middle  of 

"  August  ?     A.     I  coul<l  not.  do  anything  with  tiie  Indians,  they 
'■  would  not  hunt  any  more." 

Captain   Hanson   had    ver}'  good    reason    foi'   leaving  at  that 
time  without  reference  to  the  ordinary  duration  of  the  .season. 

The  evidence  of  Captain  Miner,  at  page  242,  is  equivocal. 
At  page  .i.'i7  his  evidence  is  : — 

'  Q.     Now  when  <lid  you  go  out,  in   1889?     A.     In   1889  I 
"  went    out   of  the    sea    about   the   latter  end    of  August,  if  I 
"  remember  light." 
40         This  is  a  statement    which    has    very    little    weight.     It   is 
indefinite,  and  tlieie  was  no  crois-examination. 

TIk!  ai'gument  then  proceeds  to  deal    with    ihe   testiniony  (\.i 
to  the  year  18!U).     Our  contention  throughout  is  that  1890  wi;  • 
an  exceptional  season.     They  (juote  at  paj.ie   242  of  the   Uni 
States  arguniLMit,  about   the  mid<lle  of  the   page,  the   state;)) 
that  Captain  Jacobson  testified  that  the  last   day  of  hunli'^ 
1890    was    the    21st   of    August.      His    further    evidiMce    is 
follows : — 
.")0  "  Q.      Weie  you  warned  out  that  year  ?      A.     No. 

"  (}  Did  you  come  out  because  you  were  afraid  you  would 
"  be  seized  ?     A.      No. 

"  Q.  Did  you  come  out  for  water  ?  A.  I  came  out  because 
"  I  thought  I  had  sealed  enough.  I  had  then  four  or  five 
"  hundred  seals,  more  than  I  had  any  salt  for. 

"  Q.  You  made  an  unusual  catch  that  year?  A.  That  is 
"  what  I  did. 

"  Q.     The  tact  is.  ..lint  you  made  a  laiger  catch  than  y^ 
"  counted  upon  making?     A.     That  is  what  I  diil. 
GO         "Q      And  you  had  so  many  skins  jou   found  you   i  ^ 
"  brought  salt  enough  to  salt  them  ?     A.     Yes." 

That  the  evidence  does  not  at  all  r  late  to  the  length  > 
season. 

Captain  Hackett,  who  is 


111 

!lt 

as 


had 


ttquot':'  as  having  stopped  on 


291 

(Mr.    Bodwell'B   Argument.) 

the  11th,  clearly  explained  that  it  was  on  account  of  the  weather, 
page  658,  line  50:  — 

'  Q.  What  kind  of  weather  had  you  in  1890  in  Behring 
"  Sea  ?     A.     The  weather  was  pretty  bad  in  1890. 

"  Q.     How  did  it  compare   with    the   weather  of  1889  ?     A. 
"  Well,  in  July,  1889,  wo  .sealed  ten  day.s,  and  in  1S90  we  sealed 
10  "11  days. 

'•  Q.  How  did  August,  1889,  compare  with  1890  ?  A.  Only 
'  four  days." 

"  The  Commissioner  on  the  part  of  the  United  States  : — How 
many  days  did  you  have  in  Au^u.st,  1889  ?     A.     Eleven,  sir." 

Mr.  Bodwell  : — Tiiis  is  very  good  evidence  to  show  the 
(litference  in  the  character  of  the  weather  in  1889  and 
1890.  Now,  the  next  witness  whose  evidence  is  referred  to,  is 
(.'aptain  Clarence  Cox,  who,  it  is  stateil,  stopped  .sealing  on  the 
19th  of  August.  His  evidence  is  at  page  (J06,  line  31,  on  this 
20  point,  and  is  as  follows  : — 

"  Q.     You  sealed  for  the  last  day  on  the  19th  ?    A.    Yes,  sir. 

"  Q      Then  you  left  ?     A.     Yes,  sir. 

"  Q.  What  did  you  leave  for  ?  A.  The  weather  was  not 
"  very  good  :  the  seals  were  scarce." 

Captain  Miner  left  oil'  sealing  the  first  part  of  September, 
and  as  far  as  that  evidence  goes  it  is  in  our  favor.  He  says  at 
page  559,  line  42  : — 

"  Q.     An<l  came  out  of  the  sea  when  ?     A.     I   came   out  of 
"  the  sea,  if  I  rememlier  rightly,  about  the  15th  of  September." 
30         Mr.  Warren  : — That  is  in  1894.     That  is  the  same  quotation 
you  had  trouble  with  last  night. 

Mr.  Bodwell : — Yes,  he  .says  he  came  out  the  first  part  of 
September. 

I  think  1  need  not  make  any  observations  upon  the  rest  of 
the  evidence  up  to  page  244  in  the  United  States  argument, 
because  that  ground  lias  been  practically  covered  by  what  I  have 
already  said  as  to  the  witnesses  there  quoted. 

Tiiere  is  then,  on  page  241',  a  reference  to  the  evidence  of 
40  O'Leary,  who  was  on  the  "  Walter  L.  Rich."  I  juoted  that 
evidence  this  morning,  where  the  witness  says  he  left  that  time 
becaiise  he  was  short  of  grub.  Perhaps  I  should  not  say  that 
he  left  because  he  was  short  of  grub,  but  lie  was  short,  and  the 
inference  I  draw  is  that  he  left  on  that  account  at  an  earlier  date 
than  he  otherwise  would. 

I  give  your  Honors  now  a  reference  to  the  evidence  of  this 
witness  relating  to  the  year  188C  that  F  did  not  have  before. 
Y(iu  have  the  reference  that  he  was  frightened  out  of  the  Sea  in 
1SS7.  In  1888  he  did  not  go  into  the  Sea  at  all.  The  evidence 
.50  on  that  point  is  at  page  769,  line  HO.  In  1890  he  went  in  on  the, 
"  Walter  L.  Rich,"  which  is  the  evidence  1  have  just  referred  to. 
Therefore,  Captain  O'Leary  when  he  states  that  he  never  stayed 
in  the  Sea  longer  than  the  24th  of  August,  is  as  quoted  in  the 
United  States  Argument,  is  only  speaking  of  the  vouiges  of  his 
own  vessels.  There  were  special  circumstances  with  reference  to 
ever)'  year  he  was  in  Behring  Sea  :  his  evidence  must  be  taken 
with  that  qualification. 

Hansen  says  that  in  1890  he  came  out  of  the  Sea  on  the  12th 
(if  August,  but  ho  puts  that  down   to  exceptional  circumstances. 
(JO   Page  til 6,  line  47,  lie  is  asked  :— 

"  y.  What  time  in  August  ?  A.  I  cannot  e.xactly  tell,  but 
"  somewhv  .e  about  the  l£th. 

"  Q.  <  'an  you  tell  me  how  many  seals  you  caught  in  1890  ? 
i'  A.     No,  sir,  I  do  not  remember. 


■  ai 


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292 


(Mr.   BoUwell's   Ai'irument.) 

"  Q.     Was  your  catch  large  or  small  /     A.     It  was  not    l)i 
"  I  do  not  think  I  cau;^ht  more  than  .'lOO  or  (iOO. 

"  Q.     In  Rehrini;  Sea  ?     A.     Yes,  sir. 

"  Q.     What  rea:!on    do    you    put    that    down    to?      A.     'J'h 
"hunters  I  had  were  not  any  extra  good. 

''  Q.  And  what  ahout  the  weatiier  !  A.  'I'he  weather  was 
"  pretty  rough,  I  thirds,  in  the  first  part  of  August." 

That  agrees  with  other  evidence  which  lias  heen  referred  to 
anil  whicli  is  meiitioued  in  our  Argument  as  to  the  season  (if 
hSftO. 

Our  conchision,  therefore,  upon  this  liranch  of  the  case  is  that 
wlien  your  Honors  read  the  whole  of  the  evidence  ridating  to 
the  circumstances  under  which  these  various  vessels  left  the  Sea 
you  will  not  find  anything  that  is  in  contravention  with 
tlic    ]  osition    We   have   assumed  :    viz.,    that    there     was    in  al 

20   these  years  weather  which  was  suitahle  for  sealing  extending  on 
to  the  end  of  Septemher.      We  saj'    that    our   vessels   were   then' 
outfitted  to  rtMiiain  for  that  length  of  time  and  that  they  staitt 
with  that  intention. 

W'l'  ask  y')ui'  Iliiiiors  to  lind  as  a  fact  that  the}'  wouKl  have 
roniaine(l  in  the  Sra  until  the  niiddli'  of  the  month  of  SeptetuhiT, 
or  as  long  as  was  necessary  for  them  to  make  a  successful  catch. 
We  do  not  assert  tliat  they  would  necessarily  havi,-  remained 
there  luitil  that  time  if  they  had  previously  Uimle  a  good  catch, 
liecausi',  as  a  rule,  tliesi;  vessels  came  home  as  sdon  as  they  olitniued 

30   a  satisfactiiry  nundier  of  skins. 

Aiuither  thing  which  may  he  said  is  that  if  the  eviileiice  (jI' 
the  witnesses  as  a  whole  is  to  he  taken,  the  record  shows  that 
seals  were  mort^  than  usually  ]dentiful  in  the  years  of  liSSt!  and 
liS,s7,  and,  therefore,  a  go(id  o]iportunity  to  make  a  large  catch  in 
a  sJKirt  time. 

Till.'  Vessels  in  (piestion  were  all  found  in  the  Sea.  mi  gond 
sealing  giomids.and  in  the  act  of  tidcing  a  lai-ge  nundier  of  seals, 
and  we  ask  your  lionor.s  to  conclude  that  if  tliey  had  Tiot  heen 
intorferred  with  they  would  have  contituied  to  hunt  successfully 

40   and  would  have  retiirru'd  to  Victoria  with  large  catches. 

SEAI.IXli    OUdUND.S    IN    IlKIIRINC    SK.\. 

There  is  another  suhject  upon  which  we  arc  in  considerahle 
conflict  with  our  friends  on  the  other  side,  which  naturally  griws 
out  of  the  evidence  alread}'  referrecl  to  and  that  is  as  to  the 
locality  of  the  sealing  gi'ounds  in  ]iehring  Sea. 

( )ur  contention  is  that  within  certain  defined  linuts  which  have 
hecome  well  ktiown  thens'were  places  in  which  it  was  lilways  |iossi- 
hli^  to  fiiiil  seiils, — not  always  po^silile  to  find   seals  in  the  exact 

.")0  ilegree  of  latitude  and  longitude  where  they  hacl  heen  seen  in 
previous  years,  l.ut  that  within  certain  linuts  which  were  not  far 
apart, and  that  it  was  ([uite  |)ossilile  for  an  ordinary  v(.'ssel  to  cover 
the  space  when  sealing.  'I'he  seals  followed  the  fish,  which  were 
plentiful,  someiimes  in  one  place  one  year  ami  in  another  place 
in  anoth(»r  year,  hut  always  within  a  e<Mtain  liiidted  area,  so  that 
the  vessel,  if  not  successful  in  the  first  instance,  always  knew 
where  to  go.  and  usiuiily  did  proceed  to  the  place  where  the 
seals  actually  were  for  the  time  heing  in  great  inunhers. 

I  think  my  friends  on  the  other  side  have  not  (juite   a{ipre- 

00  ciatiMl  the  force  of  a  portion  of  the  evidence  which  wo  have 
intr()duc(Ml,  and  the  sources  from  which  it  derives  its  weight. 
We  introduce<l  a  consideralile  amount  of  evidence  taken 
from  maps  whicli  had  lieen  prejtured  hy  the  Tniteil  States 
authorities  and  a  nundier  of  statements  from   the  Uinted  States 


1(1 


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203 

(Mr.    Bodwcll's    Argument.) 

ca.ses  and  affidavits  tlierein  referred  to  and  made  them  a  part  of 
the  evidence.  They  were  used  hy  the  United  States  wlien  tliey 
applied  at  Paris  for  regulations.  Our  friends  now  contest  the 
accuracy  of  that  evidence.  1  think  I  sliall  be  able  to  convince 
your  Honors  that  they  are  practically-  corroborated  by  other  evi- 
dence which  has  lieen  given,  although  some  of  them  might  have 

10  been  qualified  if  there  had  been  a  rigid  cross-examination  But  the 
point  upon  which  we  introduced  the  evidence  and  the  force  to 
be  given  to  it,  arises  fiom  an  entirely  ditlercnit  consideration. 

We  take  the  position  that  the  Uidted  States  liaving  at  one 
stage  of  this  controvery  made  their  case  on  the  ground  that 
sealing  was  being  conducted  so  successfully,  that  the  habits  of 
the  seal  were  so  well  known,  the  places  of  abode  so  well  defined, 
that  the  efforts  of  the  pelagic  sealers  were  practically  tlestroying 
the  seal  herd,  I  say,  we  assert  that  it  was  not  competent  for 
them    at  another  stage  of  the  controversy,  in  order  to  benefit 

20  themselves,  to  take  an  entirely  different  and  inconsistent  posi- 
tion and  assert  that  the  forniei  contentions  was  not  correct. 

The  rule  of  law  is  one,  I  submit,  which  your  Honors  will 
find  laid  down  in  tlie  Miinicipal  Courts  of  both  countries  as 
applying  to  litigation  between  private  individuals,  and  we 
assume  that  your  Honors  will  hold,  even  without  authorities 
lienring  directly  on  ilie  point,  that  in  an  International  Court, 
which  is  a  court  of  honor  and  gooil  faith,  the  rule  applies,  that 
inconsistent  positions  cannot  be  assumed  at  difierent  stages  of 
a  controversy   for  the  sake    of  benefitting   either    party.     The 

.SO  law  has  been  concisely  stated  in  a  chapter  in  Bigelow  on 
Estoppel,  5th  Edition,  page  717: — 

"If  parties  in  court  were  permitted  to  assume  inconsistent 
"  positions  in  the  trial  of  their  causes,  the  usefulness  of  courts 
■'of  justice  would  in  most  cases  be  paralyzed  ;  the  coercive  pro- 
'  cess  of  the  law,  available  only  lietween  those  who  consented  to 
"  its  exercise,  could  be  set  at  naught  by  all.  fiut  the  rights  of 
"  all  men,  honest  and  dishonest,  are  in  the  keeping  uf  the  courts, 
"  and  consistency  of  proceeding  is  therefore  required  of  all  those 
"  who  come  or  are  brought  before  them. 

40  "  It  may  accordinyly  be  laid  down  as  a  broad  proposition 
"  that  one  who,  without  mistake,  induced  by  the  opposite  part}', 
"  has  taken  a  particular  |)osition  deliberately  in  the  course  of  a 
"  litigation  must  act  consistently  with  it ;  one  cannot  play  fast 
"  and  loose." 

The  Connuissioner  on  the  part  of  the  United  States  : — That 
nuist  have  been  in  the  days  of  special  pleading.  What  becomes 
of  the  case  where  the  defendant  say.s,  "  I  never  had  the  pot ;  it 
was  cracked  when  I  borrowed  it ;  and  if  1  had  it,  it  was  whole 
when  1  returneil  it." 

"'0  .Mr.  Bod  well  : — That  is  a  case  of   alternative  pleas  which  are 

permitted.  This  authority  is  referring  not  so  much  to  pleading 
as  to  a  position  assumed  in  the  action. 

The  Commissioner  on  the  part  of  the  United  States: — Of 
course,  it  weighs  against  the  party  to  take  inconsistent  posi- 
tions. But  I  do  not  think  there  is  any  rule  of  law  about  it.  It 
weighs  agaijist  the  party  taking  the  iiiconsi.iuent  positions  and 
sometimes  with  very  great  force,  almost  sometimes  to  the  extent 
of  a  conclusive  j)resumption  against  liim. 

Mr.    Bodwell : — I   can   easily  understand    that  a  man  in  hi'? 

(il)  original  action  might  set  up  an  alteiiiative  ground  of  complaint 
or  an  alternative  ground  of  defence,  but  I  understaiul  the 
authorities  to  mean  that  if  he  has  taken  u  deliberate  position  in 
his  action  and  tlie  litigation  has  proceeded  upon  that  ground  so 
that  he  has  obtained  an  advantage  by  reason  of  that  position  he 


■k. 


It 


1,1.  I    iia  'loi- 


m^ 


l:    'i 


294 


{Mr.   Bodwell's    Argument.) 

is  not  afterwards  at  liberty  when  his  interest  chanties  to  take  an 
entirely  ditlerent  stand  inconsistent  witli  his  fortner  assertion 
and  ask  for  an  advantaj^e  on  tliat  ground. 

The  Coniniissioner  on  tlie  part  of  tiie  United  States  : — I  did 
not    mean    to    shut   you    oH'  in  your  argument  on  that   point. 
There  is   no  doubt  that  tiie  United  States  took  that  position  nt 
10  one  time,  and  it  weighs  againnt  them  now. 

Mr.  I'odwell :— '1  here  is  a  case  upon  that   point  of  Davis   v. 
\Vakel(e,  in  InG  TJnited  States,  page  (iSl.     In  that  ease: — 

"  D.  was  adjudicated  a  bankrupt  in  18(59  in  California.  W 
"  then  held  six  promissorj'  notes  executed  by  him  which  were 
"  proved  in  bankriiptey  against  1)  1).  then  removed  to  New 
"  Yi>rk.  After  that  \V.,  by  leave  of  court,  reduced  his  claim  to 
"  judgnu'nt  in  a  state?  court  of  California,  tlie  oidy  notice  to  1). 
''  being  by  publication,  and  D.  never  appearing.  In  1875  ]). 
"  petitioned  for  his  discharge.  \V.  opposed  it.  I),  moved  to  dis- 
-0  "  miss  the  objection  on  the  ground  that  the  claim  of  W.  had 
"  been  absorbed  in  a  judgment  obtained  after  the  commeuce- 
"  nient  of  tlie  proceedings  in  bankruptcy,  which  would  rema  in 
"  force.  The  court  sustained  the  motion,  cancelled  the  proof  of 
"  the  debt  and  dismissed  the  specification  of  op[)osition.  \V. 
"  then  tiled  a  bill  in  equity  in  tlie  Circuit  Court  of  the  United 
'•  Stat"s  for  the  Southern  District  of  New  York  to  enforce  an 
"  estoppel,  and  to  enjoin  D.  from  asserting  in  defence  of  any  suit 
"which  might  be  broiight  upon  thejudL  ^ent  that  the  debt  u[ion 
"  which  it  was  obtained  was  not  nieigeii  lU  it,  an<i  from  denying 
SO  "  its  validitv  as  a  debt  against  D,  unaffected  by  the  discharge. 
'■  held  :- 

"  (1.)  That  the  Judgment  wa.s  umioubtedly  void  for  want  of 
"jurisdiction. 

"(•J.)  That  nevertheless  D.  was  estojjped  in  ecjuity  from 
"  claiming  that  it  was  void  : 

"(.S.)     That  in    view   of  the  uncertainty  which  appeared  to 

"  exist  in  New  York  as  to  whether  a  complaint  in  an  action  at 

"  law  would  or  would  not  be  demurable,  it  must  be  hehl  that  the 

"  remedy  at  law    was  not  so  plain  or  clear  as  to  oust  cost  of 

•40  "  equity  uf  Jurisdiction  : 

"(4.)  That  the  degree  below  restraining  D.  from  asserting 
"  that  tlie  Judgment  was  invalid  should  be  affirmed." 

There  is  anotlier  case  of  Lawrence  against  Keener,  24 
Atlantic  Reporter,  page  290,  and  the  head  note  is  this  : — 

"  A  debtor,  holding  the  legal  title  to  land,  after  sale  on 
"  him  execution  against,  cannot  maintain  ejectment  against  the 
"  purchaser  on  the  groutul  that  there  was  a  resulting  trust  in  favor 
'  of  the  estate  of  his  deceased  wife,  he  having  only  a  life  interest 
"  and  that  the  sale  was  not  made  pursuant  to  Act,  Jan.  24,  1894, 
50  "providing  for  the  sale  of  life  estate-;  in  land,  where  there  was 
"evidence  that  before  the  sale  he  asserted  that  his  wife  had  no 
"  interest  therein." 

There  is  another  case  in  19  Queen's  Bench  Division,  Roe 
against  the  Mutual  Lorai  Fund,  Limited,  page  3")0,  where  a 
man  having  set  up  that  a  bill  of  sale  was  valid  for  the  purpose 
of  obtaining  an  ddvantage  could  not  rfterwards  contest  the 
invalidity  of  the  bill  of  sale. 

Lord  Lindley  in  delivering  judgment  in  that  ease  said: — 
"  I  am  of  the  same  opinion.  Before  this  action  the  plaintiff 
(10  "  treated  the  bill  of  sale  as  valid,  and  everything  was  done  in 
"the  bankruptcy  on  that  footing.  The  plaintiff  got  the  lieneBt 
"  of  inducing  thf  creditor  to  accept  a  composition  and  to  dis- 
"  charge  him,  and  now  he  desires  to  turn  around  and  treat  the 
'  whole  thing   as  invalid.     The  plaintiff's  position  and  that  of 


295 

(Mr,    Boilwell's   Argument.) 

"  the  creditors,  including  the  defendants,  has  been  so  changed  tliat 
'•  the  plaintiff  is  estopped  from  saying  tliat  the  representations 
"  on  which  the  wliole  thing  turned  were  incorrect.  The  clause 
"  in  the  letter  which  encloseil  the  receipt,  to  the  effect  that  the 
"  receipt  was  to  ho  without  prejudice  to  the  plainliff's  right,  was 
"  an  ineffectual  protest,  indicating  the  intention  of  the  plaintiff 
10  "  hut  having  no  legal  operation." 

There  is  also  a  case,  Gandy  vs.  CJandy,  in  30  Chancery 
Division,  pages  ")7  and  !)H,  where  there  is  a  ver}'  well  con- 
sidered opinion  upim  this  whole  subject.  I  do  not  wish  to 
take  ujitime  upon  this  point,  for.  after  all,  I  was  only  introducing 
it  by  the  wa)-  of  preface  to  show  that  we  were  depending  for 
strength  not  so  much  upon  the  strict  accuracy  of  the  witnesses, 
although  we  believe  them  to  be  substantially  correct,  and  corrob- 
orated Ijy  other  evidence,  but  upon  the  contentioti  that  it  is  not 
competent  for  the  Uniteil  States  to  take  a  ditl'erent  position  from 
20  that  which  they  have  taken  and  nmiiitaincd  in  the  original  case 
which  they  put  forward  at  Paris ;  because  they  have  had  an 
ailvantage  on  that  ground.  Thev  have  obtained  regulations 
which  were  satisfactory  to  them  upon  the  conteitt''^n  that  we 
were  slaughtering  seals  to  an  unlimited  e.xtent,  and  that  unless 
the  arbitrators  brought  into  force  stiingent  regulations  there 
was  danger  of  the  extermination  of  the  whole  seal  herd. 

My  friend,  Sir  Charles  Tupper,  has  referred  me  to  a  portion 
of  Mr.  Phelps'  argument  on  page  ',i{)7  of  V^ol.  1')  of  the  United 
States  reprint,  in  which  he  says  : — 
30  "  But  it  is,  of  course,  like  all  such  facts,  a  general  one  that  it 
"  is  impossible  to  bring  to  an  exact  point.  Now,  where  are  these 
"  seals  found  when  they  do  go  out  ?  That  enormous  numbers  of 
"  them  are  taken  is  shown.  That  of  these  the  greatest  propor- 
"  tion  are  nursing  mothers  is  shown.  Now,  where  are  they  taken 
■'  in  the  Behring  Sea  ?  That  has  not  been  ipiite  shown  in  the 
"  argument.  I  have  not  particularly  addressed  myself  to  that 
"  question.  I  have  dealt  otdy  with  the  fact  that  they  were  taken 
"  in  the  Sea,  and  when  they  were  taken,  and  what  their  con- 
"  dition  was,  and  what  proportion  of  them  were  in  that  condition, 
40  "  and  pointed  out  how  the  British  evidence  concurs  with  that  of 
"  the  American  in  its  great  weight. 

"  In  the  appendix  to  the  United  States  cas(%  Vohune  2,  we 
"  have  from  a  nun>ber  of  sealers  a  statement  of  the  distances, 

"  On  page  400,  Adair  speaks  of  the  distance — the  distance  I 
"  mean  within  which  they  took  the  seals — as  being  from  30  to  150 
"  miles. 

"  Then  Bendt,  on  page  404,  gives  the  distance  as  from  10  to 
"  150  miles. 

"  The  President : — Is  this  from  the  island.s  ? 
.")0  "  Mr.  Phelps  : — -From  the  islands.     On  page  405  Benson  gives 

"  the  distance  as  65  miles. 

"  On  page  315,  Bonde  say.s  10  to  100  miles  off  St.  George 
"  Island. 

"  On  page  413  Collins  .saj-s  a  distance  of  100  miles  or  more. 
"  On  page  328  Jacobson  says,  a  distance  of  200  miles 
"  On  page  448  Keen  says  a  distance  over  150  miles. 
■  On  page  435  Lansing,  a  witness  who  is  also  examined  on  the 
"  British  side,  says  from  50  to  150  miles. 

"  On  page  4G4  Maioney  saj-s  a  distance  of  40  to  200  miles. 
<>0         "  These  are  all  the  witnessijs,  I  believe — it  is  intended  to  be  all 
'■  the  witnesses — -who  give  precise  distances." 

That  is  our  position  heie,  that  the  sealing  grounds  are  wall 
known  to  extend  a  distance  of  about  lOO  miles,  sometimes  to  a 
distance  of  150  miles  towards  HogosloH,  but  generally  speaking 


m 

Mi- 


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♦if'? 


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iili 


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n 


il: 


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if;: 


20 


29(5 

(Mr.   Butlwells's   Ai'(,'iuiient.) 

witliin  IX  rniliiis  of  100  miles  around  the  islands.  We  say 
that  the  seals  go  upon  the  islands  and  when  they  have  performed 
the  purpose  that  brinjjs  them  there,  they  scatter  over  the  sea  in 
search  of  food  and  travel  from  40  to  (iO  and  100  miles,  from 
the  islands  in  all  directions.  That  is  our  contention,  and  as  1 
JO  have  pointed  out  to  your  Honors,  that  was  the  contention  of 
the  United  States  before  the  Paris  Triliunal. 

I  do  not  think  there  is  any  doubt  your  honors,  but  that  the 
United  States  made  tliis  case  deliberately  at  Paris.  I  refer  to 
20!)  of  volume  2,  American  reprint,  wheie  it  clearly  appears. 

Mr.  Lansinj,'  : — Is  this  in  the  record  ? 

Sir  Chas.  Tupper  : — Yes  ;  it  is  in  the  record.  It  is  referred 
to. 

Mr.  Lansiu",': — Are  you  not  estopped  in  the  British  case 
from  ])roceedinfj  on  that  ".jround  ? 

Mr.  Uodwell  : — I  do  not  think  so.  We  diil  not  deny  we  could 
take  seals  in  <;reat  numbers.  We  did  not  deny  as  a  fact  that 
we  have  taken  nursing  seals.  Sir  Charles  Tupper  is  more 
familiar  with  that  part  of  the  case  than  I  am. 

Sir  Chas.  Tupper ; — All  the  dispute  was  as  to  how  many  of 
the  nursing  females  we  took.  Their  percentage  we  claim  was- 
unreasonable,  but  it  was  never  denied  that  we  took  females. 
We  claimed  the  right  to  take  all  kinds  of  seals  and  that  was  the 
(juestion  fought  out. 

Mr.   Bodwell : — I  shall   leave  that   point,  but  I   think    I    am 
(|uite  justified  in  that  view  of  the  law  to  refer  to  the  extracts 
30  which  have  been  actually  read  into  the  evidence  and  made  a 
part  of  the  rec<ud  on  this  point. 

The  first  position  taken  by  the  United  States  in  their  present 
argument  is  at  page  200.  They  say  that  we  are  altogether 
wrong  in  using  the  word  "  Banks  "  or  calling  this  seal  fishing,  or 
referring  to  it  in  the  same  form  of  words  that  one  would  use  in 
speaking  of  fishing  voyages  or  operations  connected  with  ordinary 
fishing.  The  principal  grouncl  upon  which  I  understand  my 
learned  friend  bases  that  argument  is  this  ;  that  the  chart.s  sub- 
n\itted  to  the  Commission  do  not  show  any  banks  or  grounds 
existing  as  there  are  in  fishing  localities  generally.  It  is  not 
correct  to  say  that  there  are  no  banks  in  the  Behring  Sea  or  that 
the  soundings  do  not  demonstrate  that  there  are  place.s  which  are 
considerable  more  shallow  than  others.  If  your  Honors  will 
consult  one  of  the  Admiralty  Charts  of  Behring  Sea,  you  will 
see  a  great  many  places  spoken  of  as  banks  and  marked  on  the 
chart  as  such  :  they  are  not  as  shallow  as  they  might  be  but 
still  they  are  a  great  deal  shallower  than  otlier  portions  of  the 
sea. 

We  have  ev'dence  upon  that  point  also.     At  page  740  of  the 
50   evidence,  line  10,  Captain  Lauchlin  McLean  speaking  of  the  food 
of  the  seals  says  as  follows  : — 

"  Q.  Are  there  banks  of  fish  in  Behring  Sea  that  are  per- 
"  manent  ?  A.  There  are  banks  marked  on  the  charts  that  are 
"  permanent  — sandbanks. 

"  Q.  Are  there  banks  of  fish  that  are  permanent  in  Behring 
"  Sea  ?    A.    Not  that  I  know  of. 

"  Q.  When  you  come  to  look  for  seals  you  do  not  look  fiir 
"  any  jiarticular  jiosition  on  the  chart,  do  you?  A.  Well,  we 
"  get  aiouiid  the  (MJgL'  of  the  l)ank. 

"  Q.  Ate  there  always  fish  around  these  sand  banks?  A. 
"  I  never  tried  to  fish  there  :  we  sec  fish  at  times  jumping  in  the 
"  water." 

It  is  (|uite  apparent  that  there  are  locations  in  Behring  Sea 
where  there  is  shoal  water,  using  the  term  in  the  relative  .sen^e. 


40 


60 


2i>7 

(Mr.  Bo<l\vuir«  Arfjuinent.) 

nntl  whore  fish  are  more  likely  to  be  found  than  in  (jtlier  places, 
and  as  a  fact  in  navigatinj;  Behrinj;  iSua  the  captains  of  the 
vessels  endeavour  to  ^et  as  close  to  these  positions  as  the}-  can, 
knowing  from  past  experience  that  they  are  the  most  likely  places 
in  which  to  find  seals.  The  records  discloses  that  the  fish  upon 
](»  which  the  seals  feed  are  to  a  certain  extent  migratorj",  but  I 
would  ask  your  Honors  to  find  on  the  whole  evidence  that  the 
tish  are  always  discovered  in  some  of  these  shallower  places,  and 
that  the  seals  are  there. 

In  order  to  establish  our  position  with  reference  to  the 
fact  that  there  are  defined  sealing;  i,'rouiids  in  Behring  Sea, 
we  put  before  your  Honors  a  number  of  charts  which  have 
been  prepared  by  the  United  States  for  the  purpose  of  their 
case  at  Paris.  In  all  of  these  charts  there  are  positions 
marked  and  information  given  which  we  submit  to  your  Honors 
•20  as  very  important  evidence  to  est,ablish  our  contention  that 
the  limitations  of  the  sealing  grounds  exist  as  a  fact.  These 
charts  are  really  very  important  to  our  case  and  I  will  hand 
them  to  your  Honors  for  inspection.  I  will  defer  my  argument 
upon  that  point  until  your  Honors  have  had  the  opportunity  of 
referring  to  them. 

At  page  liS+y,  line  22,  there  is  a  note  of  the  dirterent  portions 
of  the  United  States'  case,  which  were  read  into  the  record,  and 
the  evidence  to  which  I  have  referred,  on  which  we  rely.  There 
was  a  short  note  taken  of  it  at  the  time,  and  I  do  not  think  that 
;;(!  the  (|Uotations  were  read.  At  any  rate  I  should  like  to  read  them 
now  in  order  to  pre.serve  the  connection  of  my  remarks. 

The  Hrst  reference  is  at  page  StiO,  volume  8,  of  the  ITnited 
States  Reprint,  take  from  the  affidavit  of  William  Hrennan.  He 
says,  speaking  of  the  vessel :  — 

"  If  a  vessel  hunts  seals  from  January  to  May  along  the 
"coast  and  pays  expenses  it  does  well  at  the  present  time,  and 
"  very  few  do  it.  Nearly  all  would  lose  money  if  the  hunting 
'  was  contined  to  the  Pacific  Ocean,  but  they  depend  on  the 
"  Behring  Sea  catch,  where  the  seals  are  more  plentiful  and 
40  "  occupy  a  more  limited  space  as  a  feeding  ground." 

At  page  SOJi  of  the  same  atlidavit  he  says  :  — 

"  When  they  arrive  in  Behring  Sea  later  in  the  seasrm  they 

■  start  in  to  work  in  earnest.  The  water  is  full  of  them  and  you 
"  can  hear  them  firing  all  around.  The  vessels  enter  the  sea 
"  about  July,  but  get  the  most  of  the  seals  in  Augu  I  or  early 
"  September,  when  the  weather  gets  bad  ;  but  they  u  ■  .lally  have 

■  a  good  catch  by  that  time,  if  not  interfered  with." 

I  now  read  from  the  same  volume  of  the  United  States 
reprint,  page  oli.     It  is  also  an  affidavit,  put  in  by  the  United 

.')()  States,  and  is  made  by  Hernum  Liebes.  Mr.  Lielies  says  that 
he  is  i')0  years  of  age,  resides  in  San  Francisco,  California,  and 
that  he  has  been  in  the  fur  business  sin'-e  he  was  13  years  of  age, 
and  established  in  his  own  business  si  ice  18(i4.  Page  514  he 
says ;  — 

"  The  poaching  vessels  a  few  years  ago  have  been  known 
"  to  get  as  many  as  ;i,GOO  or  4,000  skins,  ami  deponent  has 
"  bought  4,000  skins  from  one  vessel,  whereas  no  poaching 
"  vessel  now  gets  more  than  a  few  hundred  with  the  same  size 
■'  crew." 

(jo         That  affidavit  was  made  on  the  4th  day  of  April,  18!(2. 

The  next  is  an  affidavit  from  Melovedott',  who  your  Honors 
will  remember  was  mentioned  frc<iuently  in  the  course  of  the 
tvidence  at  Victoria,  and  who  resides  at  Kailiak.  At  page  14;{ 
of  the  American  reprint  Volume  3,  he  states  as  follows  : 


'   '  :,' 

mm 

T^r'wT 

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M' 

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''SH' 

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1 

;:  Hi 

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11! 

M 

2!KS 

(Mr.  liodwcirs  Arguini'iit.) 

"  From    liS84  tla'  ."cIidoirtm  kept  on  increa-(injj,  until  in  IMIII 

"  tl.erc  was  tnore  tlian  one  limiilreil.     'I'lieso  scluxmers  care  very 

"  little  alxnit  cominjj;  to  ilie  Isiaiuls  to  take  soais  on  tlie  lam),  for 

10      they  only  have  to  hovt-r  around  tin;  tishiny  l^'inks  tVnin  /)()  to 

"  200  miles  away  and  take  all  the  seals  they  want." 

That  is  a  form  of  expression  which  appeals  to  liave  lieen 
made  use  of  l)y  the  witnesses  who  have  known  whether  thiM'e 
were  places  m  the  liehrinj;  Sea  which  could  be  descrihod  as 
Hsliini;  liank>.  With  reference  to  MeloveiloH' we  ouj,'ht  to  ha\  e 
some  description  of  him.  He  says  in  the  l)e;i;innini.,'  of  hi> 
atlidavit — pajjje  142  of  the  same  volume — "  I  am  thirty-eii,'ht 
"  (*iS)  years  of  nye  and  I  wa.s  horn  '»n  Kadiak  Island,  Alaska,  I 
"  came  to  St.  Paul  Island  in  IHM,  the  first  time,  and  in  Ihtift  the 
-0  •'  second  time.  I  have  resided  here  since  Dsfi!)  and  I  have  been 
"constantly  employed  anion;:;  the  Alaskan  fur  seals  in  all  that 
'■  time.  I  have  had  a  lari,'e  and  varied  experience  in  all  the 
"details  of  the  business  as  it  has  been  cariicd  on  on  St.  i'aul 
"  1-land,  and  I  have  done  service  in  all  the  departments  from 
"  the  work  of  a  boy  to  that  of  Fir^t  Chief  of  the  Island." 

The  next  reference  \n  from  the  alKdavit  of  (ieortje  Wardman, 
who  was  the  editor  of  the  "Fittsburj..;h  I'ress,"  and  who  made  a 
trip  for  the  purpose  of  taking;  observations  an<l  i^ave  a  result  of 
his  experience.     At  pa;i;e  17i»  of  the  same  volume,  he  says  : 

;iO  "  As  seals  are  found  in  large  numbers  over  100  miles  from 
"  the  Islands  durint;  the  entire  summer,  a  zone  ',\0  or  40  miles 
"  al)imt  the  Islands  in  which  open  sea  sealing  were  preventiid,  if 
"  such  could  be  done,  would  be  of  comparatively  little  protection 
"  to  seal  life." 

The  next  reference  is  an  alKdavit  made  by  C'.  S.  Scammon, 
and  he  cleposes  as  follows  : 

■  I  am  ()7  j'ears  old  and  a  resident  of  Oakland,  Cal.  I  am 
"and  have  been  an  otllcer  in  the  United  States  Revenue  Marine 
"Corps  since  IStiU.  In  18()5  and  liSdIi  I  was  in  command  of  the 
40  "  Western  I 'nion  Telegraph  Company's  fleet  of  vessels  when  it 
"  was  expected  to  establish  a  telegraph  line  to  Europe  via 
"  Hthring  Straits.  In  this  capacity  and  later  as  commander  of 
■'  Vessels  under  the  I'^nited  States  llyvenue  cutter  llag,  I  re- 
"  peatedly  passed  through  Mehring  Sea,  touching  at  the  seal 
"  islands.  I  am  the  author  of  the  work  entitled  "The  Marine 
"  Mammals    of    the    Northwestern    Coast    of    North    America," 

•  publisheil  by  J.  H.  C'armany  &  Co.,  San  Francisco,  1M74,  In 
"  preparing  chapter  IV  of  part  2  of  that  work,  relative  to  fur 
'  seals,  I   consulted   every  accessible   authority'  upon   the  subject 

50  "  and  added  the  result  of  my  own  observation  and  experience. 
"  Since  then  eigliteeri  years  have  elapsed  and  many  new  facts 
"have  been  brought  tt)  ligliteoncerning  them,  confirming  for  the 
"  most  part  what  was  then  written,  yet  modifying  to  some 
"extent  the  conchT-ions  arrived  at." 

The  part  of  the  affidavit  upon  which  we  rely  is  to  be  found 
at  page  47"),  and  is  as  follows  : 

"  I  hav(^  no  doubt  the  northern  seals  of  the  i'ribilof  Islands 
"  spread  over  a  very  wide  extent  of  the  North  I'acitic  in  winter. 
"They  are  occasionally  seen  far  otl  from  land,  but  are  much 
(jO  "  more  numerous  within  soundings.  Their  food  is  mainly  fish, 
"and  Ihey  are  naturallj'  found  where  that  is  most  abundant. 
'  Seal  hunters  say  and  statistics  show  that  where  tisli  are  most 
"plentiful,  as  in  latitude  ">.■)    to  .Mi  north,  in  Hehiing  Sea,  on  the 

•  iShumaLrin    Hanks    oH"  the    Alaskan    Peninsula,    and    ort    the 


■10 


:)(i 


m 


.")!) 


III! 


■2!)!> 

(Mr.  llodwi'lI'M  Arjjumi'iit.) 

"  entrancu  to  tlie  Straits  of  t'lica,  tlicre  tlie  liest  catclius  of  sL-als 
"  are  ma''"." 

I  n-ail  now  from  an  aHidavit  wliicli  was  rt-fLrri'd  to  by  Mr. 
I'lielps  on  tliat  part  of  tlu?  arjjiiinent  to  which  I  cbIIlmI  Your 
Honor's  attention  a  few  minutes  aj^o.  On  iiaj^i'.Sl")  \iels  Itond, 
deposes  as  follows  : 

"  Niels  Honde,  lieinj,'  dnly  sworn,  deposes  and  says:  I  am 
'2+  years  of  a^'e  ;  residence,  Victoria.  I^ritish  C'uliimliia  :  occii- 
"  pntion  seaman.  I  went  sealinj,'  as  iJeeU  hand  in  the  Hritish 
'schooner  Kate,  (,'«ptain  Moss,  master,  in  1.SS7.  We  had  twenty 
"canoes  and  Indian  hunters  who  used  spears,  ii.\copt  in  calm 
"  weather,  when  they  would  nse  shot  jjuns.  Wo  sailed  from 
"  Victoria  the  l.'jth  of  !\larcl),  sealin;^  otf  Harclav  Sound,  between 
"there  and  Cape  C-ook,  ami  caiiiilit  .")22  seals  Came  liuck  to 
"  Victoria  in  jMay,  dischaij;od  our  skins  and  thc^n  went  to 
•  Hehrini;  Sea,  arrivin<;  there  in  -luly.  Wu  came  out  of  the 
"  Hehrinj;  Sua  the  latter  part  of  Aui^iist,  and  liad  catii^ht  about 
"1700  seals  between  the  I'ribiloH'  Island:-  and  Alaska:  wo 
"cauj^ht  them  from  10  to  100  or  more  miles  otl'  St.  (Jeorj^'e 
"  Island.  Tlie  larijest  catch  we  liad  that  year  in  any  one  day 
'  was  2f)G  seals.  We  only  took  ei<;ht  cano(>s  and  one  boat  into 
"  Helirinjj  Sea." 

1  tako  the  followin'j;  frotn  the  United  Stites  cas",  pa<;'i  ll.'i, 
volume  2,  American  reprint : 

"  Necessaril}'  after  a  few  days  of  nursinij  her  pup  the  cow  is 
"  compelled  to  seek  food  in  order  to  provide  swtlicient  nourisb- 
"  ment  for  her  ott'sprini;.  Soon  after  coition  she  leaves  the  pup 
"  on  thi  rookery  ami  goes  into  the  sea,  and  as  the  pup  jjets  older 
•'and  stron<»er  these  excursions  lengthen  accordingly  until  she  is 
"  sometimes  absent  from  the  rookeries  for  a  week  at  a  tin 

"  The  fooil  of  all  classes  of  fur  seals  consists  of  s(|nids,  tislies, 
"crustaceans,  anil  molliisks,  but  sipiids  seem  to  l)e  their  principal 
"  diet,  showing  the  seals  are  surface  feeders.  t)n  account  of  the 
"  number  of  s(!als  on  the  islands  Hsh  are  very  scarce  in  the  neigh- 
"  boring  waters  ;  this  necessitates  the  cows  going  many  miles  in 
"  search  of  her  food." 

That  is  rather  an  imi)artant  stit(!ment.      It  continues  : 

"  They  undoui)tedly  go  often  from  one  humlred  to  two  lum- 
"ilred  miles  from  the  rookeries  on  these  feeding  exeur>ions 
"  This  fact  is  borne  out  by  the  testimony  of  many  experiunci  , 
"sealers,  who  have  taken  nursini.i  females  a  hundred  miles  ar  1 
'•  oviir  from  the  islands,  and  Capt.  Olsen,  of  the  steam  schoonei 
"  Anna  Meek,  states  through  the  "  Victoria  Daily  Colonist "  of 
"August  .'ith,  IISST,  (which  is  pulilislied  in  tlu!  Miitisli  Hliie 
"  liook,  IfSDO,  C  (li;U,  p.  SI)  that  'anyone  who  knows  anything 
■'  of  sealing  is  aware  that  such  a  charge  (catching  seals  in  Alaskan 
"  waters  within  three  leagues  of  the  shoio)  is  lidiculons,  as  we 
"  never  look  for  seals  within  twenty  miles  of  '...r  They  arc 
"  caught  all  the  way  from  twenty  and  one  1,  i;  •.;  d  and  fifty 
"  miles  off' the  land.'  ('apt.  Dyer,  of  the  seized  si'aling  schooner 
■  Alfred  Adams,  contirmed  the  above  statement  l)y  saying  :  '  We 
"  hail  never  taken  a  seal  within  sixty  miles  of  Onalaska,  nor 
"  nearer  St.  Paul  than  sixty  miles  soutii  of  it.'  Among  the 
"depositions  taken  before  Mr.  A.  U.  Milne,  Collector  of  Customs 
"  of  tlie  port  of  Victoria,  Mritish  Columiiia,  several  of  the  depon- 
'  ents  give  testimony  as  to  tlie  usual  sealing  distance  from  the 
'■  I'ribilof  Islands  while  in  Hehring  Sea.  Capt.  William  Petit, 
'  present  master  and  part  owner  of  the  steamer  .Miseiiief,  gives 
"  such  distance  as  from  sixty  ti  one  hundred  miles,  and  states 
"  that  seals  aie  found  all  along  that  distance  from  land  in  larg(^ 
"numbers.     Capt.  Wuntworth  Evelyn  Maker,  in.isterof  the  Can- 


a 


■  ly 


■illif^f 


;s;:t*i! 


mall 


..'•iJS?'" 


;l  ■ 


' 

MOO 

(Mr.  Ht)(hvt'll'H  Aiffumuiit.) 

"adian  schooner  C.  H.  Tuppor,  ami  t'ornierly  master  of  tlic 
"  schooner  Viva,  says  tliat  the  distance  from  land  was  from  thirty 
"to  one  hundred  miles,  usually  sixty  uiiles.  And  C'apt.  Wiiliaui 
"  Cox,  master  of  the  schooner  Sapphire,  places  the  principal 
"hunting  {ground  at  one  hundred  miles  from  the  islands  of  St. 
"  George  and  St.  Paul  Island.     Capt.  L,  ( J.  Shepard,  of  the  United 

10  "  States  Uevonue  Marine,  who  seized  several  vessels  while  sealing; 
"in  Hehriiig  Sea  in  1K87  and  l(S8l),  states:  'I  have  seen  the 
"  milk  come  from  the  carcasses  of  deail  females  lying  on  the 
"  decks  of  sealing  vessels  which  were  more  than  a  hundred  nulis 
"  from  the  I'ribilof  Islands.'  He  further  adds  tiiat  ho  has  seen 
"  seals  in  the  water  over  one  hundred  and  fifty  miles  from  the 
"  islands  during  the  summer.  The  course  of  sealing  vessels  and 
"  their  daily  catch  show  al.so  that  the  majority  of  thra  seals  taken 
"  in  Bering  Sea  are  secured  at  over  one  hundred  ndles  from  the 
"  Pribilof  Islands.     The  distance  that  the  .seals  wander  from  the 

20  "  Islands  during  the  summer  in  their  search  for  food  is  clearly 
"  shown  by  the  '  Seal  Chart '  compiled  from  the  observations  of 
"  the  American  cr"isers  during  their  cruises  in  Bering  Sea  in 
"July,  August  and  September,  181)1." 

I  call  your  Honor's  attention  to  that  statement  relative  l.o 
the  chart,  because  that  is  one  of  the  charts  upon  which  we  rely, 
and  to  show  that  it  was  authentic  and  prepared  for  this  purpose. 
I  refer  you  to  this  i|uotation  from  the  American  case.  That  seal 
chart  is  No.  (!,  which  I  will  sulnnit  to  your  Honors,  and  was 
compiled  in  September,  IH'Jl.     This  extract  is  also  useful  upon 

30  the  duration  of  the  sealing  season,  that  is  insofar  as  it  is  a  piece 
i)f  evidence  establishing  the  fact  that  seals  are  found   within 
these  limits  in  the  month  of  September. 
Mr.  Lansing :  —  What  year  ? 

Mr.  Hodwell :  — ]«!)!.     Hut,  as  I  ha  mdy    said,    these 

seals  are  the  same  kind  of  animals,  occup^y..  „  the  same  grounds, 
and  having  the  same  habits.  It  was  used  by  the  Unitetl  States 
as  being  evidence  of  the  locality  of  the  seals  in  the  years  that 
the  sealing  took  place,  and  when  the  ilispute  arose.  1  take  the 
following  ([uotation  from  page  201),  volume  2,  of  the  American 

40   Reprint:  — 

"After  the  Hrst  of  July  the  cows  are  nearly  all  at  the 
"  rookeries,  aTid  having  given  birth  to  their  young  they  go  into 
"  the  water  in  search  of  fond,  in  order  that  they  may  be  able  to 
"  supply  tluNr  offspring  with  nourishment.  And  as  has  been 
"shown  they  often  go  from  one  hundred  to  two  hundred  miles 
"  from  tile  islands  on  those  excursions.  It  is  while  absent  from 
"  the  rookeries  feeding  that  they  fall  a  prey  to  the  ]wlagic  seal 
"  hunter." 

We    uNo    put   in    evidence    the    affidavit  of    Captain   L.  (i. 

50  Sheppard  taken  before  the  Congressional  Committee,  which  was 
ajjpointed  fov  tin;  purpose  (jf  en(|uiring  into  the  subject.  Gaptain 
Shepliard  is  dead,  and  this  evidence  was  allowed  to  go  in  and  is 
to  be  found  ft  page  2.S0  of  a  book  called  "  Fur,  Seal,  and  Other 
Fisheries  of  Alaska,"  printed  by  the  United  States  Government 
in  tlie  year  18.Sf).  Tlie  Hrst  of  thi.s  (piotation  your  Honors  will 
see  will  bear  out  my  argument  as  to  the  distance  that  canoes 
go  from  the  vessels.  Captain  .Shephard's  evidence  was  as 
follows:  — 

"  The   Indians  go  out  in    the   canoes,  two  Indians  in  each 

(iO  "  canoe.  They  shoot  the  seals  with  .shot  guns  or  spear  them. 
'•  The\'  .sometimes  go  (|uito  a  distance  from  the  vessel.  I  have 
"  seeti  canoes  iS  or  10  miles  from  their  vessel.  They  g(}  out  in 
"  different  directions  and  thus  cover  a  large  surface  of  the  sea. 
"  A   vessel  with  15  canoes  can  cover  a  surface  of  the  sea  pretty 


10 


20 


:iO 


301 

(Mr.  B(k1wo11'h  Arguinont.) 

"  well  for  12  miles  in  every  direction  from  the  vessel,  and  any 
"  Heal  cominfj  within  that  surface  Htand.s  iv  pretty  poor  chance  of 
"getting;  nway,  as  the  Indijviis  iiro  very  expert  in  taking  them." 

"  Q.  Why  tlo  they  go  to  that  particular  locality  ?  Is  that 
"  the  feeding  ground  ?  A.  They  paHs  this  locality  in  going  to 
"  the  feeding  ground  near  the  Aleutian  Islands.  I  uixierstand 
"  the  seal  lives  on  Hsh. 

"Q.  The  hunters  intercept  the  seals  constantly  as  they  go  to 
"  and  from  the  islands  ?     A.     Ych,  sir ;  that  is  what  I  understand. 

"  Q.  Do  you  have  any  opinion  as  to  the  probable  extent  of 
"  the  destruction  of  seals  hy  these  unlawful  hunters  ?  A.  During 
"the  season  of  1887  I  estimated  that  they  killed  40,000  seals 
"  and  would  have  taken  20,000  more  had  no  seizures  been  made. 
"  We  captured  15  vessels,  on  board  of  which  wo  found  about 
"  12,000  skins.  Some  of  the  ves-sels  captured  early  in  the  season 
"had  taken  only  a  few  skins.  The  number  varied  from  150  to 
"  1,500  skins  on  each  vessel." 

And  at  page  238  of  the  same  volume  ho  gives  the  following 
evidence :  — 

"  Q.  What  is  usually  a  fair  catch  for  a  vessel  of  the  de.serip- 
"  tion  of  those  now  being  fitteil  out?  A.  It  varies  very  much, 
"according  to  the  size  of  the  crow;  but  from  1,000  to  2,500 
"  seals. 

"  Q.  Say  2000  ;  would  that  bo  a  fair  average  ?  A.  I  would 
"  say  1 ,800." 

That  Knishes  all  the  extracts  from  the  United  States  author- 
ities which  I  wish  to  give  on  this  point ;  and  as  it  is  now  half 
past  four,  I  shall  proceed  with  my  argument  with  reference  to 
the  charts  at  the  next  sitting. 

At  half- past  four  o'clock  the  Commissioners  rose. 


Commissioners    under    the    Convention   of   February  8th, 

181)6,  between  Great  Britain  and  the  United 

States  of  America. 


20 


Legislative  Council  Chamber  of  the  Provincial  BuiUiinfj, 

At  Halifax,  N.  S.,  September  Gth,  1897. 

At  10.30  A.  M.  the  (^ommi.ssioners  took  their  seats. 


Ml.  Hodwell,  continuing: — When  your  Honors  adjourneJ  on 
Saturilay  I  ivas  about  to  refer  to  a  number  of  sealing  charts 
that  were  put  in  evidence.  1  wish  to  call  your  Honors'  attention 
to  them  at  this  stage  of  tlie  argument.  The  first  chart  is  a 
Migration  cliart,  sliowing  tin;  direction  the  seals  take  on  their 
journey  from  the  North  Pacific  Ocean  to  the  Prybilofi'  islands. 

Our  contention  is  that  the  sealing  in  the  Sea  was  not 
carried  on  to  any  great  extent  until  after  the  seals  had  Tiuide 
30  their  first  journey  to  the  Islands  and  had  settled  in  their  places 
thei'e.  'i'lierL'fore,  the  e.\act  course  which  the  seals  take  from  the 
Pass  to  tlu'  Island,  while  entitled  to  some  consideration,  is  not 
a  mattt  r  of  so  much  importance  as  to  necessitate  any  lengthy 
connnent  from  me. 

I  may  state  to  yom-  Honors  that  in  our  printed  argument  at 
pages  .")7  and  .")9,  we  refer  to  the  charts  to  which  I  am  now 
calliii''  your  attention,  and  we  'Ava  a  statement  of  the  inferences 
to  lie  drawn  from  them. 

The   second  chart    is    oik^    prepared    by    the    United    States 
40   authorit'i.'s,  and    is  chart    numbei-    G,  calleil    the   sealing   chart, 
showing  the  position  and  number  of  seals  observeil  and  reported 
by  the  United  States  cruisers  in  Hehring  Sea. 

The  Commissioner  on  the  part  of  the  United  States  :^ln 
what  Near  .' 

Mr.  P.o.hr.'U  :  — in  ]H9:'. 

Mr.  Lansing : — That  is  chart  number  six. 

Mr.  r)odweil  : — Yes;  this  is  a  chart  based  upon  obsi'rvations 
tiiat  were  taken  in  the  sea  by  the  United    States  authorities,  as 
to  the  places  where  seals  wi'rc;  to  be  fouml  in  most  abinidance. 
•>0  The  ( 'ommissio.'ier  on  the  part  of   the    United    States: — The 

one  we  had  on  Saturday  evening  was  IH[)\. 

.Mr.  l')(>dwell  : — Yes,  that  was  chart  number  4.  As  all  the 
charts  are  not  at  the  moment  at  linnd,  I  will  refer  to  such  as 
are  here,  thou:,di  1  intendi'il  to  sjieak  of  them  in  a  different  order. 

I'ire  is  chart  number  !,  which  shows  the  track  of  tlu;  cruisers 
of  ;lie  United  Stat(!s  iti  Hehring  Sea  when  they  were  patrolling 
to  intfrcept  sealers  in  IS'M. 

I   hand  you   now    a    chart    that    is   useful    for   your    Honors 
(jO   in    following    th;'    n  lu.uks    I    luay    have   to    make.       it  shows 
Hehring  Sea,  simply  the  lofun  in  t/uo. 

Mr.  I/uising:  —  Is  that  chart  luimlier  one  of  the  ( 'a^o  ? 

Mr.  Li)(lwell  :  -It  is  a  blank  el.ai't.  lii're  is  another  chart, 
maile    by     Mr.    Townsi'ud,    showing    the    localion,    at    ditlerent 


303 

(Mr.  Bodwell's  Aijj;utnent.) 

seasons,  of  part  of  the  catcli  from  1883  to  1893  based  on  the 
\.)'r  entries  of  five  vessels  enrjagcil  in  pelaj^ic  soaiinj^.  In 
'i'ownsend's  report,  alreaiiy  before  you,  there  is  a  table  of  posi- 
tiiius  she\vin<,f  tlie  locution  of  f.ho  schooners  whose  lo^js  were  used 
in  niakinji;  up  the  chart. 

Here  is  another  ol-.art  prepared  by   th     same   man,  showing 
10  the  location  at  ditierciit  seasons  of  the  catch  of  fur  seals  in  !8!)4. 

The  charts  which  [  intended  to  call  attention  to  first  aie 
those  contained  in  volume  thre^;  of  tlie  United  States  Reprint. 
Reference  is  made  ir.  the  Record  to  then),  but  the  actual  charts 
were  not  handed  to  the  Commi.ssioners.  For  the  time  beinn;,  I 
will  hand  your  Honors  the  volume  of  the  United  States  case 
wher'  they  appear,  and  you  will  see  that  the  charts  are  all 
numbered.      It  is  volume  number  3  of  the  United  States  Reprint, 

The  tirst  chart    is  number  4.     The  next  chart  is  nninlier  5, 
winch  shows   the  position   of  the  seized    vessels   in    188(J,  1887. 
20  1880,  at  the  tinse  when  they  were  ariested. 

There  are  also  in  evidence  lof^s  of  certain  of  the  seized  vessels 
but  I  can  more  conveniently  notice  tliem  in  a  few  minutes,  and 
will  not  make  any  mention  of  tiiem  at  present. 

The  T'liited  States  ari^'ument  at  pn^'es  212,  213,  and  214 
uiaUes  reference  to  these  chaits.  At  pai^'e  212,  lu^ar  the  bottom 
of  the  paf,'e,  thej- say  that  chart  number  1,  in  volume  7,  demon- 
strates that  in  connection  with  the  patiol  of  the  sea  in  the  year 
1891.  the  oidy  coalinjr  station  in  the  eastern  part  of  Behring  Sea 
is  at  Unalaska,  in  lliuliidc  'larlwr.  Yours  Honors  will  see  that 
80  (he  chart  shows  the  track  uu  the  seizing  cutters.  There  could 
be  no  object  in  showinjf  the  arbitrators  at  Paris  that  there  was 
a  coaling  station  in  the  eastern  part  of  liehring  Sea.  The  cliart 
was  no  diiidit  intended  to  show  tlie  course  pursue<l  bj'  th(> 
cutters,  whicl  as  the  event  proves,  was  the  course  taken  by  the 
sealinir  ves.iels  in  the  year  when  the  cruisers  patrolled  the  sea. 

With  refeiT'ice  to  the  migration  chart,  there  is  really  no 
dilVerence  between  mj'self  and  my  frienrls. 

The  refereiu'u  to  the  Townsend    charts   in  the  United   States 

Mrgtimetit  is  a  statement  that  they  disclosed  the  state  of  affairs 

40  in  1894  and  189.'>,  ami  with  regard  to  that  subject   1   have   said 

all  1  intend  to  say  ;  I  think  your    Honors    will   understand  the 

position  fioui  our  point  of  view. 

With  refei'tsnce  to  these  charts  and  the  evidence  in  connection 
with  them,  our  contention  is  tliaf  in  so  far  as  they  go  they  are 
olijiet  lessons,  which  on  their  face  disclose  that  there  was  a 
eel  tain  limited  area  in  Behring  Sea  whei'e  sealers  always  went, 
and  where  the\-  always  fomul  seals. 

The    Commissioner   on    the   piu  t  of  the    United   States  : — I 
would  like  to  know  the  approximate  latitude  of  the  I'ass  ? 
Ml  Mr.  I'odwell  : — It  is  between  ,")4  and  .").">. 

The  Commissioner  on  the  jiarl  of  .;.,  United  States: — What 
is  the  extreme  northern  latitude  wh(>re  ;eals  have  been  found,  so 
\',\v  as  yoin-  case  shows  ? 

Mr.  Bodwell  : —About  o.S,  1  shou'  i'link. 

The  Connni.ssioner  on  the  part  of  the  United  Slates: — Then 
it  runs  from  .")4  to  ,"j8  ? 

Mr.  Bodwell  :  —Down  as  fai-  as  liogoslotl'  which  is  on  .■)4. 

The  Commissioner  on  the  part    of    the    United   States  : — Tidl 
Mir  I  wo  or  three  things  at  tliis  ]ioint.      l^ogosloM"  is  on  ."4,  and  the 
iiO   ixtl'i'liie  northern  latitude  where   setils   Imve  bi^eii  I'oV.ml  i^  nliout 
.VS, 

.Mr.  Bodwell  :— Yes. 

The  Commissioner  on  till"  p:irt  of  the  I'nite. I  States  : — Thnt 
is   about    4    de'Mves    of  latitude,  and    about  2."i()  marine    miles? 


I'  ! 


...'Ill 


|i| 


.9  "t 


!•. 


Hh' 


ft 


liU 


i''il 


.M 


!,-l!.. 


^il' 


304 


(Mr.   Bodwell's   Argument.) 

Mr.  Boil  well  : — Yes. 

The  Commissioner  en  the  part  of  the  United  States  : — Then 
what  is  the  approximate  degree  of  longititude  of  the  Pryhlotf 
Islands  ? 

Mr.  Bodwell :— About  170. 

The  Commissioner  on  the  part  of  the  United  States : — Then 
10  what  is  the  approximate  number  of  marine  miles  between  the 
degrees  of  longitude  at  that  part  ? 

Mr:  Bodwell : — About  what  would  you  say,  Mr.  Lansing  ? 

Mr.  Lansing: — About  one  and  a  half. 

The  Commissioner  on  the  part  of  the  Lnited  States  : — What 
do  3"ou  cull  the  extreme  degree  of  longitude  ? 

Mr.  Bodwell : — E^om  about   175  east   is   the   extreme  in  the 

evidence.     And  the  extreme  eastern   boundry   as  given   in   the 

evidence  is  about  165.     But  the  original  sealing  ground  appears 

to  have  been  between  165  and  173.     Bogoslotf  is  on  1G8  ;  that  is 

20  about  5  degrees  of  longitude  or  about  150  miles. 

The  Prybilot!  Islands  nrc  a  little  to  the  westward  and  the 
northward  of  the  cantre  of  the  field.  The  figures  we  have  given 
to  j-our  Honors  are  what  we  consider  to   be   the   best  grounds. 

Now,  before  going  further,  and  in  line  with  the  evidence  to 
which  1  have  been  referring,  i  think  I  might  read  to  your  Honors  an 
extract  from  the  opinion  of  Mr.  Justice  Harlan,  given  at  the 
arbitration  at  Paris,  as  showing  the  impression  that  was  created 
upon  the  minds  of  the  arbitrators  there  by  the  same  evidence, 
viz.,  these  charts  and  the  afiidavits,  parts  of  which  I  read  on 
30  Saturday.  It  is  a  short  extract  and  it  shows  the  impression,  as 
to  the  facts  presented  there,  created  upon  the  minds  of  those 
engvged  in  discussing  it.  At  page  215  of  Volume  1  of  the  Pro- 
ceedings of  the  Tribunal  at  Paris,  Mr.  Justice  Harlan  makes  these 
remarks : — 

"  I  now  come  to  the  important  practical  question  as  to  what 
"  regulations  in  view  of  all  the  evidence  are  necessary  for  the 
■'  proper  protection  and  preservation  of  this  herd  of  seals." 

"  We  have  seen  that  these  seals  begin  to  leave  the  islands  in 
"  September  and  by  November  substantially  all  of  them  are  in 
40  "  the  North  Pacific  Ocean,  south  of  the  Aleutian  Islands.  Dur- 
"  ing  December  they  may  be  found  off  the  coasts  of  the  United 
"  States,  north  of  the  35th  degree  of  north  latitude.  In  January 
"  they  turn  their  faces  northward  and  move  generally  in  small 
"  schools  or  bands  along,  but  some  distance  from,  the  coasts  of 
"  the  United  States  and  British  Columbia.  Those  in  advance  go 
"  through  the  passes  of  the  Aleutian  Islands  on  their  way  back 
"  to  Pribiiof  Islands,  early  in  June.  They  are  moving  through 
"  those  passes  during  the  whole  of  tiiat  month.  By  the  first  or 
"  tenth  of  July  the  entire  herd  has  left  the  North  Pacific  and 
50  "  reassembled  at  their  breeding  grounds  on  the  Islands  of  St. 
"  Paul  and  St.  George.  As  soon  as  the  mother  seals  reach  the 
"  islands,  or  within  a  very  few  days  thereafter,  they  give  birth 
"  to  their  pups  and  take  position  wiM;  the  bulls  by  whom  they 
■  "  have  been  appropriated.  Accord';ig  to  the  evidence  the  pups 
"  require  sustenance  from  their  mothers  for  about  eight  or  ten 
"  woeks.  During  that  period,  say,  during  July  and  August,  the 
"  mother  seals,  in  vast  numbers,  go  out  into  the  sea  in  every  di- 
"  rection,  often  to  tlu;  distance  of  100  and  150  miles,  in  (|uest  of 
"  food  to  su.stain  themselves  and  their  young.  Seals  have  been 
60  "taken  in  the  North  Pacific  in  January,  February  and  March, 
"  but  not  to  any  great  extent.  The  opportunity  for  taking  them 
"  improves  as  tho  season  advances.  The  last  half  of  April  and 
"  the  months  of  May  and  June  are  favorable  for  pelagic  sealing, 
"  particulaily  the  two  months  last  named.     In  Behiing  Sea  the 


305 

(Mr.    Bodwell's    Argument.) 

"  months  of  July  and  August  are  also  very  favorable  for  .seal 
"  hunting.  While  seals  may  be  taken  in  that  sea  during  Sep- 
■'  tember,  it  is  not  as  a  general  rule  profitable  to  pursue  the  busi- 
"  iiess  there  after  August,  or,  at  any  rate,  after  the  middle  of 
"  September.  The  principal  mischiefs  from  pelagic  sealing  have 
"  come  from  the  killing  of  the  seals  in  May  and  June  in  the  North 
10  "  Pacific  while  the  herd  is  moving  northward  to  their  land  home, 
"  and  from  the  killing  in  July  and  August  in  Behring  Sea  of 
"  breeding  females  which  have  left  their  pups  on  the  islands  for 
"  a  time  and  gone  into  the  sea  in  search  of  food." 

It  is  therefore  apparent  that  these  charts  and  affidavits 
convinced  the  learned  arbitrators  that  from  100  to  150  miles  from 
the  Prybloff  Islands,  and  I  think  approximately  within  the  de- 
grees ()f  longitude  which  I  have  stated  to  your  Honors,  the  seals 
were  to  be  found  in  great  bodies.  That  is  exactly  our  contention 
here,  and  I  now  refer  to  some  of  the  evidence  on  which  we  base 
20  that  contetition. 

We  have  covered  the  ground  not  quite  as  fully  as  I  intend 
to  do,  but  to  a  great  extent  in  our  argument  from  pages  00  to 
(!5.  It  is  already  printed  in  the  argument  and  the  reporter  need 
not  take  it. 

Mr.  Fiodwell  here  reads  the  extract  referred  to. 

With  refoti'iice  to  the  statement  as  to  Captain  Warren's 
voyages,  I  have  hail  that  voyage,  as  shown  in  the  evidence  given 
in  the  case,  plotted  on  the  chart  which  I  will  hand  to  your 
Honors. 
30  I  now  read  from  the  testimony  of  O'Leary,  at  page  292, 
line  20  :— 

"  Q,  Will  you  look  at  the  chart  of  Behring  Sea,  now  shown 
"  to  you,  and  say  where  yf>u  found  the  seals  to  begin  with  ?  A. 
"  Well,  the  first  time  I  was  there  I  hunted  ;  you  see  I  have  got 
"  no  log  of  that  year  at  all. 

"  Q.  You  are  giving  this  evidence  now  from  your  recoilec- 
"  tion  ?  A.  Just  from  recollection.  I  struck  the  seal  tlie  thick- 
"  est  just  about  1)1  miles  to  the  westward  of  St.  Paul. 

"  Q.     What  latitude  and  Ion'    tude,  about  ?     A.    About  172 

4(1  "west  and  57  north.     I  struck   im.-  seal  about  west  of  St.  Paul 

"  Island,  perhaps  west  true,  about  !)()  miles  ;  I  hunted  there. 

"  Q.     That  would  be  about  what  time  ? 
"  first  week  in  July,  until  the  22nd  or  2.')tli 
"  there  in  that  place. 

"  Q.     Then  where  did  you  work  ?     A. 
"  there. 

"  Q.     On  what  line  of  longitude,  about  ? 
"  in  about  170  in  the  latter  part  of  July,  about  54J  degrees  north. 

'■  Q,     How   did  you  find   the  seal  as  to  quantity,  when   you 
.jO  "  were  sealing  there  toward  the  end  of  July  ?     A.     1  fouml  them 
'  as  plentiful  as  I  wanted  them." 

Again  O'Leary  speaking  of  his  voyage  in  1887,  on  page  203 
of  the  Record  line  +5,  says:  — 

"  Q.     What  was  the  occasion  of  your  leaving  on  the  17th  of 
August  ?     A,     Well,  I  got  a  little  further  to  the  eastward  than 
"  I  thought  I  was. 

"  Q.  Wheie  were  you  on  the  17th  ?  A.  I  was  otT  what 
"  they  call  HogosloH'. 

"  Q.     How  far  were  j-mi   off  Bogosloff  Island,  and   in  what 

>'iO  "  direction  ?     A.     I  was  to  the  eastward,  and  might  have  been 

"  northeast  of  it      I  was  probably  20  or  25  miles  to  the  east  of  it. 

"  Q.  What  was  the  weather  ?  A.  I  hadn't  been  there  very 
"  long,  only  a  day  or  two,  I  think,  if  I  remember  rightly,  I  had 
"  been  Co  the  westward  and  drifteil  down  to  the  eastward." 


A      Well,  after  the 
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I  went  south  froni 

A.    Well,  I  hunted 


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(Mr.  Bodwell's   Argument.) 

Rainlase  speaking  of  his  voyage  in  1886,  at  page  301,  line  IG, 
says  :— 

"  Q.  Looking  at  the  map,  would  you  be  able  to  show  the 
"  place  where  you  sealed  ?  A.  The  only  thing  I  can  remember 
"  about  it  is  that  I  saw  Bogosloffon  several  occasions 

Reppen,  page  307,  line  30,    referring    to  his   voyage   on  the 
10  schooner  "  Grace,"  says; — 

"  Q.  Would  you  be  able  to  say  in  what  position  your  vessel 
"  sailed  during  the  months  of  July  and  August  of  the  year  1S8G? 
"  A.  So  far  as  I  can  reuiember,  the  captain  showed  me  the  chart 
"  and  we  were  i)etween  the  Prybloff  Islani'f  and  Ounalaska. 

"  Q.  If  you  were  shown  a  chart  as  to  that,  would  you  be 
"  able  to  indicate  approximately  on  the  chart  where  you  kept  ? 
"  A.     Oh,  yes,  pretty  near  it. 

'■  Q.     Point  out  on  the  chart  where  j-ou  were  in  the  month  of 
"  July  ?     A.     I  was  about  55    north    latitude    and   166  and  167 
20  '■  west  longitude. 

"  Q.     You  were  there  in  July  ?     A.     Yes. 

"  Q.  In  August  did  you  remain  on  the  same  ground  ?  A. 
"  At  the  beginning  of  August  we  remaine<l  on  the  same  ground, 
"  and  then  we  went  further  east. 

"Q.  How  much  further  east  did  you  go  ?  A.  About  20  or 
"  30  miles — We  did  not  go  very  far." 

In  cross-e.\aminaiion,  page  309,  line  30,  he  says  : — 

"  Q.     Did  yon  sight  the  Hogoslotf  Volcano  when  you  were  in 
"  the  Sea  ?     A.     We  sighted  it  in  the  Behring  Sea,  yes,  sir. 
30         "  Q.     How  far  away  was  it  ?     A.     I   should  judge   we  were 
"  wpie  about  30  miles  oft'." 

There  is  a  bit  of  evidi/nce  which  my  friends  have  referred  to 
as  to  this  witness  which  I  might  as  well  read  at  this  place, page 
310,  line  45;— 

'  Q.  Are  there  any  particular  hunting  grounds  in  the  Sea  ? 
"  A.  No  sir,  I- do  not  think  it ;  wherever  you  find  the  seals  you 
"  stay. 

"  Q.     Sometimes   j-ou    go    to    the  west  of  the  Islands  ?     A. 
"  Yes  sir. 
40         "  Q. 
'•  sir. 

"  Yes,  sir. 

"  Q.     And  sometimes  to  the  .south  ?     A.     Yes.  sir. 

"  Q.  Are  the  seals  thicker  in  one  quarter  than  in  another  ? 
"  A.     No, 

"  Q.  It  just  happens  that  you  run  acro'<s  a  number  of  seals 
"and  stay  there  for  awhile  ?     A.     \  es. 

"  Q.  And  then  you  go  60  or  70  miles  in  another  direction  ? 
50  "  A.      Yes " 

Tiiat  stafeiiii'nt  is  not  inconsistent  with  the  other  evidence  be- 
cause in  these  directions  are  the  places  where  the  seals  are  to  be 
found.  The  witness  is  spt^aking  of  the  limits  of  the  area,  north, 
west,  south,  and  east  of  the  Islands.  He  is  not  asked  at  that  point 
1k)W  far  in  he  goe-*,  but  the  record  he  has  given  of  his  voyages, 
shows  the  litidts  of  his  voyages  in  these  dirt'erent  directions. 

In  the  evidence  of  Moss,  who  sailed  in  the  the  "  Favorite"  in 
18S(!,  page  335,  line  GO,  we  have  this  testimony: — 

"  t^.  Over  wdiat  ground  did  you  work  in  1887  '.  A.  In  18H7  ' 
(iO  "  Q.  I  mean  gnifrally,  can  you  tell  b}'  looking  at  the 
"chart  ?     A.      I  had  a  navigator  with  me. 

'  Q  Had  you  miiv  idea  yourself'  A.  (Examining  chart), 
"  Yes,  right  along  here.  (Indicating). 

"  Q.     Cm\  you  give  that  by  latitude  and  lotigtitue  ?     A.  Yes, 


And  sometimes  to  the  north  of  the  Islands  ?     A.     Yes, 
And  sometimes    to  the    east  of  PribyloH'  Islands  ?     A. 


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307 
(Mr.    Bodwell's   Argument.) 

"  Q.     Do  so,  then  ?     A.     1C9.30  and  56  and  some  15  minutes. 

"Q.     Did  you  stay  in  one  place  all  the  time?     A.     No,  sir. 

"  Q.     Which  way  did  you  go  from  there?     A.     South. 

"  Q.     Towards  what  point  ?     A.     Towards  Ounalaska. 

"  Q.  Then  did  you  go  any  other  way  ?  The  last  I  sealed 
"  was  off  Unalaska,  about  20  miles  off  Uunalaska. 
10  "  Q.  Have  you  any  recollection  now  as  to  where  you  were  in 
"1886  generally;  I  mean  as  to  your  locality  in  the  Sea?  A. 
"  Somewheres  around  the  same  place.  That  was  Captain 
"  McLean's  place, 

"  Q.  Have  you  gone  into  the  Sea  in  later  years  ?  A.  Yes, 
"  sir. 

"  Q.     How  many  times  ?     A.     Six  times  altogethe;'. 

'  Q.     In  what  capacity  generally  ?    A.  Three  times  as  master. 

"  Q.  Now,  generally,  where  did  you  go  in  the  Sea  ?   A.  I  go  the 
"same  place  as  I  .say  here,  56  north  and  169  west. 
20         •'  Q.     Generally,  that  is  about  the  point  you  make  for  ?     A. 
"  Yes,  sir. 

"  Q.  Have  you  made  a  catch  g'-nerally  ?  A.  Generally 
"  made  good  catches." 

I  will  now  read  from  our  Argument  lieginning  at  page  61, 
where  we  speak  of  the  evidence  of  Captain  Alexander  McLean. 
It  is  printed  in  our  Argument  and  it  need  not  be  repeated  here. 

(Mr.  Bodwell  liere  reads  the  extract  referred  to.) 

My  friends  in  their  Argument  refer  to  this  portion  of  Captain 
McLean's  evidence  saying,  as  the  fact  is,  that  later  on  in  his  evi- 
30  dence  he  stated  that  when  he  went  back  to  the.se  particular 
grounds  he  did  not  find  seals  where  they  were  before.  But  that 
does  not  conflict  with  our  position  at  all,  because  although  he 
did  not  find  them  in  the  exact  degree  of  latitude  and  longitude 
he  found  them  within  a  reasonable  distance  and  always  made 
catches.  So  that  generally  speaking  he  went  to  the  same  place, 
while  particularly  speaking  he  did  not.  That  is  our  case  from 
beginning  to  end  ;  these  are  general  situations,  they  differ  in 
particular  seasons  within  a  certain  definite  area. 

I  will   read   from  the  British  Argument,  page  61,  at  the  bot- 
40  torn  of  the  page  the  evidence  of  Captain  McLean  in  bis  cross- 
examination,  which  need  not  be  taken  by  the  stenographer. 

(Mr.  Bodwell  here  reads  the  extract  referred  to.) 

Captain  Rayner,  another  witness  relied  upon  to  a  considerable 
extent  in  the  Ai-gument  of  the  United  States,  at  page  524  of  his 
direct  examination,  line  65,  says  : — 

"  Q.  What  part  of  the  Sea  did  you  bunt  in,  in  these  various 
"  j'ears  ?     A.     No  particular  part ;  anywhere  I  found  seals. 

"  Q.     Did    you   go    sometimes  to  the  west  of  the  Pribyloff 
"  Islands  ?     A.     Yes,  sometimes  to  the  westwart!    nd  sometimes 
50  "  to  the  eastward. 

"  Q.  Vo  the  north  ?  A.  No,  the  northeast  end  not  the 
"  north  exactly. 

"  Q.     And"  to  the  south  ?     A.     Yes. 

"  Q.  From  yoiir  experience  in  the  Sea  will  you  state  whether 
"  j'OU  did  find,  in  1887-18S8,  that  the  seals  were  to  be  found  in 
"  the  same  place  that  you  had  foiiml  them  in  1S8()  ?  A.  No, 
"  sir,  they  were  not  ;  I  never  found  successive  years  that  I  found 
"  seals  in  the  same  place. 

"  Q.     In  looking  for  soals  out   theie  yon  have  to  take  }our 
60  "  vessel  around  various  parts  of  the  sea  to  come  across  a  bunch 
"  of  seals  ?     A.     Yes. 

Q.     You  do  not    hunt   seals  in  heids,  do  you  ?     They  are 


"  found  in  snuill  bunches,  are  the}'  not 
"  them  bv  two  or  three  at  a  time. 


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308 
(Mr.   Bodwell's  Arjjument.) 

"  Q.  There  is  no  such  thing  as  running  across  thousands  of 
"seals  and  being  able  lo  kill  any  number  of  them  in  a  short 
"  time  ?     A.     No.  sir,  I  never  found  it  so. 

"  Q.  Seals  are  hunted  individually  more  than  collectively, 
"  are  tliey  not  ?     A.     Yes,  sir. 

"  Q.     And  they  are  found  in  bunches  of  two  and  three  and 
10  "  of  bunches  of  ten  and  eleven  together  ?     A.     Sometimes  you 
"  see  them  in  large  bunches. 

"  Q.  But  they  gt'iiurally  awake  and  you  cannot  get  to  them  ? 
"A.  They  have  what  we  call  lookouts  and  are  on  the  guard 
"  when  in  herds. 

"  Q.  When  seals  aie  awake  it  is  harder  to  approach  them 
"  and  of  course  harder  to  kill  them  ?     A.     Yes,  sir. 

"  Q.  The  majority  of  seals  are  shot  when  they  are  asleep, 
"  are  tliey  ?     A.     Yes,  sir." 

But  in  cross-examination  we  find  out  what  the  witness  means 
20  and  it  is  directly  in  line  of  everything  that  I  have  been  saying. 
At  page  yiVt,  line  52,  he  says  : — 

"  y.  Where  did  you  go  in  188G,  what  part  of  the  sea  ?  A. 
"  Well,  I  was  in  various  places. 

"  Q.  Where  did  you  go  first  ?  A.  The  first  time  I  went  to 
"  Unimak  Pnss,  and  north  east  to  the  St.  Paul  Islands. 

"  y  How  far  ?  A.  I  was  about  twenty-four  miles  off  the 
"  Islands. 

"  Q.     Had  you  l)een  there  for  seals  before  ?     A.     Yes,  sir. 

"  Q.     Did  you  find  them  ?     A.     Yes,  sir,  I  did. 
30         -Q.     Did  you  find  them  in  1886?     A.     Very  few. 

"  Q.  Did  you  find  seal  where  you  found  them  before  ?  A. 
"  Some. 

"  Q.  That  was  the  first  position,  and  now  where  was  your 
"  second  position  ?  A.  Well,  I  went  all  over  the  ground  between 
"  the  Pribylort'  and  Aleutian  Islands. 

"  Q.  Within  what  distance  east  and  west ;  within  what 
"  degrees  of  longitude  ?  A.  I  really  cannot  tell  the  degrees  of 
'■  longitude. 

"  Q.     Did  you  keep  a  log  ?     A,     No,  sir,  I  did  not  keep  a  log. 

"  Q.     You  were  master  of  the  vessel  ?     A.     Yes,  sir. 

"  Q.  CJan  you  give  us  an  idea,  suppose  you  drew  a  straight 
"  line  ilown  from  the  Pribylofi'  Islands  to  the  Aleutian  Islands, 
"  1  understand  you  to  say  that  your  first  position  was  longitude 
"  175  and  latitude  o7  ?     A.     Yes,  near  to  Bogosloff'. 

"  Q.     Tlieii  you  went  south,  did  you  ?     A.     Yes. 

"  Q.  Did  j'ou  go  any  further  east  than  171  ?  A.  No,  sir,  I 
"  do  not  think  I  did, 

"  Q.     But  you  went  south  below  ")4  did  3'ou  ?     A.     No. 

"  Q.     Ab(jve  5-t  ?     A.     Yes,  above  .54 

"  Q.  Then  how  far  west  tlid  you  go,  did  you  go  to  165  ?  A. 
"  I  went  as  far  as  Bogoslotl'. 

"  Q.  Here  is  Bogosloff,  latitud-  1G8,  that  is  as  far  west  as 
"  you  went  ?     A.     Yes. 

"  Q.  Between  these  points  was  where  you  hunted  in  1886? 
"  A.     Yes. 

"  Q.  Did  you  find  seals  ?  A.  I  found  scattering  seals  all 
"  the  way  over. 

"  Q.  Did  you  make  much  of  a  catch  ?  A.  I  did  not  make 
"  any  big  catch. 

"  Q.  When  were  you  seized  ?  A.  I  was  seized,  I  believe. 
"  on  the  28th  of  July. 

He  was  seized  the  28th  of  duly,  and  he  did  not  have  time  to 
make  a  big  catch. 


40 


50 


GO 


309 
(Mr.   Bodwell's   Argument.) 

Mr.  Lansing  — On  page  527  of  the  Record,  line  (i,  speaking 
of  longitude  175,  tliat  seems  to  be  an  error. 

Mr.  Bodwell: — Yes,  that  should  be  108,  because  his  answer 
is  that  he  was  near  Bogosloff.  That  gives  us  a  iankmark,  and 
we  can  locate  liim  from  that. 

I   also  read    from    the    evidence    of  Captain   Miner,  who  is 
10  speaking  of  his  voyage  in  1887  in  the  "  Penelope,"  page  547,  line 
10:— 

"Q.  What  course  were  you  making  when  you  entered  the 
"  Sea;  what  was  your  direction  or  destination?  A.  I  entered 
"  the  Sea  from  some  of  the  western  passages,  the  Four  Mountain 
"  Pass. 

"  Q.  Where  did  you  propose  making  for — what  point  in  the 
"Sea?  A.  Somewhere  between  Ounalaska  and  the  Pribyloff 
•'  Islands. 

"  Q,     By  the  time  you  got  to  the  Pass  I  suppose  you  had 
20  "  more  definite  knowledge  as  to  where  you  could  go  ?     A.     I  was 
"  was  going  to  look  until  I  found  the  seals. 

"Well,  you  had  no  idea  of  stopping  your  ship  anywhere? 
"  A.     No,  sir. 

"  Q.     You   were   going  to   sail  until    you  found  seals  ?     A. 

"  Until  I  found  seals. 

"  Q.  What  is  your  course  usually  ?  A.  The  usual  course  is 
'■  through  the  Uniniak  Pass. 

"  Q.     After  you  get  into  the    Pass  you  do  not  go  straight 
"  ahead,  do  you  .?     What  did  you  make  for?     A.     After  getting 
30  "  through  the  Pass  ? 

"  Q.     Yes.     A.     We  then  begin  cruising  about  the  Sea  ? 

"  Q.  Did  you  ever  hear  of  any  feeding  grounds  in  Behring 
"  Sea  ?     A.     No,  sir. 

"  Q.  You  never  heard  of  any  particular  good  grounds  for 
"  catching  seals  in  Beln  ing  Sea  ?  A.  I  have  heard  of  good 
"  grounds,  or  of  gooil  catches  having  been  made  entirely  around 
"  the  islands  in  all  directions  from  them. 

"  Q.     Good  sealing  grounds  ?     A.     Yes,  sir." 

And  then  on  page  548,  line  30,  speaking  of  the  voyage  of 
40  1887:— 

"  Q.  How  far  did  you  get  away  before  you  .sealed  ?  A.  I 
"  didn't  seal  anj'  more  at  all ;  we  ilidn'tstop  the  vessel  after  that. 

"  Q.  Could  3-ou  show  me  on  the  chart,  captain,  about  where 
"  3'ou  were  when  you  got  the  news  of  the  seizures  ?  A.  (Exam- 
"  ining)  I  was  sailing  about  here  (indicating)  from  30  to  7U  miles 
"  from  BogosloH",  Bogoslott'  bearing  south  southeast. 

"  Q.  And  then  you  went  from  there,  you  say  ?  A.  From 
"  there  I  went  directly  west,  away  out  here  as  far  as  Attu. 

"  Q.     And  came  out  in  that  way  ?  (indicating.)     A.    Yes,  sir. 
50         "  Q.     Avoiding  the   Pa.ss  by   wiiich  you  came  in  ?     A.     Yes, 
"  sir. 

"  Q.  For  purposes  of  safety,  is  that  right  ?  A.  I  avoided 
"  the  Pass  ;  I  went  to  the  westward  to  try  and  continue  my 
"  sealing. 

"  Q.  But  you  did  not  go  back  the  old  way  for  an  obvious 
"  reason  ?     A.    Yes,  sir, 

"  Q.     How  many  seals  did  you  take  after  you  started  from 
"  that  position   which  )'0U  gave  me  on  the   chart,  that  season  ? 
"  I  don't  remember  of  taking  a  seal ;  I  might  have  got  two  or 
(!0  "  three,  but  I  don't  remember. 

"  Q.  Did  you  lower  the  boats  ?  A.  No,  sir,  the  boats  were 
"  never  lowered. 

"  Q.  Did  you  search  ?  A.  We  weie  looking  from  the  ves- 
"  .sel,  that  is  all. 


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310 

(Mr.    Boilwell's    Argument.) 

"  Q.  You  did  not  see  any  seal  there  ?  A.  Not  to  araount 
"  to  anything  ? 

We  find  from  that  evidence  that  he  says  the  sealing  grounds 
were  near  Bogosloff.  and  being  frightened  by  the  seizures  he  went 
to  the  west  and  lost  his  sealing, 

I  will  also  read  from  the  evidence  of  this  same  witness,  page 

10   557,  line  15,  speaking  of  the  voyage  in  1889.     This  is  the  year 

he  went  from  the  Russian  side  to  the  American  side.     He  says : 

"  Q.  For  what  point  in  the  Seailid  you  make  ?  A.  Where- 
"  ever  I  could  find  seals,  from  here  over  (indicating.) 

"  Q.     Where  did  you  begin  hunting  ?     A.    I  sealed. 

•'  Q.  For  instance,  where  did  you  start  from  ?  A.  South  of 
"  Copper  Island. 

"  Q.     And  what  course  did  you  make  ?     A.     About  east. 

"  Q.     Where  would  that  bring  you  out  ?     A.    Bring  me  out 
"  about  latitude  55  ;  I  began  sealing,  if  I  remember,  about  longi- 
20  "  tude  west  173. 

"  Q      As  near  as  you  can  remember  ?     A.    Yes,  sir, 

"  Q.  And  where  did  you  then  proceed  ?  A.  I  hunted  a 
"  little  further  eastward  than  tliat. 

"  Q.     To  where  ?     A.    To  about  170. 

"  Q.  Did  you  purjiosely  keep  out  of  the  old  spot  ?    A.  No,  sir. 

"  Q.  Were  you  afraid  of  seizures  in  1889  ?  A.  I  didn't 
"  have  any  fear  of  that. 

"  Q.     Did  you  keep  a  lookout  for  the  cutters  ?     A.    Kept  a 
"  lookout  always. 
30  "  Q.     This  point  that  you  indicate  on  the  chart  is  outside,  or 

"  practicrtll)'  outside  of  tlie  track  of  the  cutters,  is  it  not  ?  A. 
"  As  I  under.'^tand,  they  cruise  the  whole  sea  within  a  radius  of 
"  200  miles. 

"  Q.  You  did  not  understand  they  made  a  more  frequent 
"  cruise  between  Ounalaska  and  the  PribyloH's  ?  A.  Except  as 
"  they  make  their  course  from  Ounalaska  to  the  Islands. 

"  Q.     Do  you  know,  as  a  matter  of  fact,  or  do  you  not  know, 
"  that  they  are  more  on  that  track  than  on  any  other  ?     A.   Yes, 
"  sir,  take  their  course  from  Ounalaska." 
40  I  think  it  i.-s  a  fair  argument  to  say  the  track  of  the  cutters 

when  they  were  attempting  the  arrest  of  sealing  schooners  is 
in  the  track  of  the  sealers.  On  the  same  page,  line  37,  is  this 
further  evidence  : — 

"  Q.  As  a  matter  of  fact,  you  kept  away  from  the  track  in 
"  188!)  ?     A.     No  more  than  I  would  from  any  other  place. 

"  Q.  Asa  matter  of  fact,  did  you  or  did  you  not?  A.  I 
"  did  not  pross  that. 

"Q.     Did  you  make  Bogosloff' Island  in  1889  ?      A.     I  don't 
"  remember  of  having  made  it. 
50  "  Q.     Do  you  remember  of  going  over  that  far  ?    A.    I  think 

"  I  was  that  fai'. 

"  Q.  How  near  did  you  go  to  the  American  side  in  that  sea- 
"  son  of  1889  ?     A.     Do  you  mean  coast  ? 

"  Q.  Foi  instance,  over  towards  this  direction  (indicating)  in 
"  which  you  were  making  towards  the  islands?  A.  Oh,  I  think 
"  proiinbly  abo\it  GO  ci-  70  miles. 

"  Q.  Show  me  on  the  chart  ?  A.  The  nearest  I  must  have 
"  been  was  somewhere  about  here  (imlicating.) 

"  Q.     What  is  that  in  latitude  and  longitude  ?     A.    Between 
CO   "  longitude  l(i9  and  170  west  and  about  55  north  latitude. 

"  ().  Then  you  got  no  nearer  to  Unimak,  for  instance,  than 
"  that  in  liunting?     A.     No,  sir,  not  that  I  can  remember." 

I  also  ask  your  Honors  to  read  his  evidence  at  page  558,  line 
ISii  :- 


311 
(Mr.    Bod  well's    Argument.) 

"  Q.     Did  you  go  to  the  usual  ground.s  ?     A.     Yes,  sir. 

"  Q.  Show  me  where  you  .sealed  in  Bohring  Sea  on  the 
"  chart  ?     A.     I  sealed  entirely  around  the  islands. 

"  Q.     You  mean  north,  south,  east  auvl  we«t  ?       A.     Yes,  .sir. 

"  Q.     How  far  away  from  them  ?     A.     The  nearest  I  wa.s  to 
"  the  islands  was  40  miles." 
]0         Now  we  have  Captain  Miner  saying  that  the  usual  grounds 
wore  over  40  miles  from  the  island.s.     Then  he  goes  on  to  say  : — 

"  Q.  Where  did  )'ou  lower  the  hoats  first  after  going  into 
"  the  Sea  ?  A.  It  would  be  a  hard  matter  for  me  to  say, 
"  wherever  T  first  saw  a  seal. 

"Q.     You  cannot  tell  me  ?     A.     No,  sir. 

"  Q.  No  idea  ?  A.  No,  sir,  I  have  none,  nothing  to  refresh 
"  my  memorj'  with. 

"  Q.     You  cannot  tell  me  where  you  put  the  boats  down  for 
"  the  first  time  ?     A.     No,  sir. 
20         "  Q.     Whether  30  miles  from  the  Pass,  60  or  !»0  ?     A.     No, 
'  sir." 

There  is  also  some  evidence  given  by  Captain  Hackett  on 
page  061,  line  25  : — 

"  Q.  Yon  selected  your  own  ground  for  sealing  ?  A.  Oh, 
"  yes. 

"  Q.  What  is  your  laigest  catch  in  the  season  of  1889  in  the 
"  Behring  Sea  ?     A.     One  hundred  and  seventy. 

•'  Q.     What    was   your    location  ?     A.     Latitude    57.25    and 
"  longitude  173. 
30         "Q.     That  is  to  the  we.stward  of  the  PribyloH' Islands?     A. 
"  About  ninety  mile.s. 

"  Q.  W(;v(i  you  eastward  of  the  Pribyloff  Islands  at  all  that 
"year?     A.     No,  sir. 

"  Q.  Give  us  the  variation  of  your  position  during  the  season 
"  as  near  as  you  can  ?     A.     There  is  not  much  variation. 

"  Q.  You  remained  on  the  same  ground  pretty  much  all  the 
"  time  ?     A.     All  the  time. 

"  Q.     Wliat  was  your  largest  catch  in  1890?     A.     Ninety- 
"  eight. 
40         "  Q.    'What  was  your  latitude  and  longitude  ?     A.      56.43  and 
"  172.40. 

"  Q.  Did  you  change  much  from  that  position  in  1890?  A, 
"  Thirty  or  forty  miles. 

"  Q.  Did  you  fish  anywhere  near  or  in  view  of  what  is 
"  known  as  the  volcano  ?     A.     No,  sir. 

"  Q.  Did  you  sight  more  than  one  vo'cano  ;'  A.  There  are 
■'  three,  I  think. 

"  Q.     Did  you  fish  anywhere  within  100  miles  of  any  of  the 
"  volcanoes  ?     A.     No. 
.iO         "  Q.     You  did  not  fish  within  a   100  miles  of  BogosloflF?     A. 
"  No,  sir. 

"  Q.  Give  us  generally  the  po-ition  in  which  you  seal,  d  in 
"  1888  ?     A.     It  is  somewhere  about  the  same  position. 

"  Q.  You  have  not  got  it  in  your  book?  A.  No,  sir,  I 
"  have  not. 

"  Q.  About  hov  much  further  south  is  it  than  the  places 
"  you  fished  in  1889  and  1890  ?  A.  I  do  not  know,  I  am  sure. 
"  I  was  new  in  the  business  then  and  these  positions  were  given 
"  to  mo  and  I  fished  pretty  near  to  there. 
(iO  "  Q.  Did  you  ever  fish  in  the  tastward  of  the  PribylotI' 
"  Isi.vnds  ?     A.     Never. 

"  Q.  Nor  near  the  Bogoslotf  Volcano  ?  A.  No.  One  year  I 
"  fis'.ied  in  .58.30  and  173." 

At  page  702  of  the  Record,  line  30,  the  latitude  and  longitude 


i 


n 


'M 


1 

[''• 

m 

"iM\ 


!  i 


'  III 


.111 


312 

(Mr.   Bodwell's   Argument.) 

of  the  catch  of  the  "  Triumph  "  is  j^iven  and  you  will  Hml  that 
the  longitude  ranges  from  1G8.10  to  171.20.  I  think  those  are 
the  figures,  and  the  latitude  is  in  the  neighboihood  of  rA  and  5.'), 
Tiiat  comprises  a  period  of  hunting  beginning  on  the  7th  of  July 
and  ending  on  the  20th  of  August. 

In  the  evidence  of  ( .'aptain  Wentworth  Baker,  page  724,  speak- 
10  ing  of  his  voyage  in  the  j'ear  IH'JO,  at  line  10,  he  says ; — 

"  Q.  Captain  Baker,  I  wish  generally  toask  you  one  question. 
"  In  fishing  in  the  years  you  have  mentioned  in  Behring  Sea, 
"  would  you  tell  me  generallj'  speaking  what  part  of  the  sea  you 
'•fished  in.  Take,  say,  with  regard  to  the  PrihyloH' Islands  ?  A. 
"  The  first  two  years  I  sealed  mostly  to  the  .southward  ami  west- 
"  ward  of  the  Islands. 

"  Q.  And  about  what  distance  from  the  Islands  ?  A.  From 
'•  60  to  !)()  miles. 

"  Q.     That  is  in  1888  and  1880  ?     A,     Yes,  sir. 
20         "  g.     And  in   1890  whereabouts  did  you  fish  ?     A.     I  fished 
"  the  first  part  of  the  season  to  the  westward  and  southward  of 
"  the  Islands. 

"  Q.  And  about  what  distance  from  the  Island  ?  A.  From 
"  60  to  90  miles.  The  latter  part  of  the  season  I  fished  to  the  east- 
"  ward." 

Captain  Laughlin  McLean,  speaking  of  1889,  at  page  731, 
line  3(),  gives  this  evidence  : — 

"  Q.  You  stated  that  in  1889  j'ou  were  on  a  more  favorable 
"  ground.  Can  you  indicate  on  the  chart  before  you  on  what 
30  "  grounds  you  went  for  the  purpose  nf  avoiding  seizure.  Indicate 
"  by  latitude  and  longitude  ?  A.  The  ground  that  I  workeii  on 
"  would  be  in  a  direct  line  from  Ounalaska  to  St.  Paul's  Island. 
"  My  usual  sealing  ground  would  be  in  a  direct  line  from  Ouna- 
"  laska  to  St.  Paul's  Island,  about  KJT.oO — 5.").20.:  from  55.15  to 
"  56.30. 

"  Q.  Is  that  where  you  would  have  been  in  1887  and  1888  ? 
"  A.     Perhaps  not  exactly  that. 

"  Q.     Approximately  that  ?     A.   I  would  cruise  around  there : 
"I  don't  say  that  I  would  stop  there. 
40         "Q.     But  Ihr.t  is  what  you  call  the  most  favorable' ground  ? 
"A.     Around  there;  in  that  vicinity." 

In  contesting  this  position  the  argument  for  the  Un'ted  States 
at  pages  215,  'tld,  217  and  218  set  out  extracts,  or  refer  to  ex- 
tracts fron)  tiie  evi<lence  and  contend  that  the  distances  as  dis- 
closed by  tlie  witnesses  who  gave  the  evidence  are  so  great,  that 
it  cannot  be  stated  that  they  constituted  reasonable  lir.^its  for 
.".ealing  grounds;  that  the  distances  being  far  apart  that  one  can- 
not say  there  was  any  chance  of  a  vessel  knowing  where  to  go 
to  find  seals. 
50  At  page  223  of  the  United  States  argument  tliey  attempt  to 

put    this  deduction    in  figures    and    show    what    an    enormous 
space  of  gi'ounil  we  contend  was  covereil  by  the  limits. 

"  A  reference  to  the  evidence  given  shows  that  seals  were 
"taken  every  }"ear,  from  1886  to  1890  inclusive,  lioc^/t,  south, 
"east  anil  (irst  of  the  Pribyloff  Islands,  at  distances  langing  from 
"  60  to  over  200  miles  therefrom.  The  attention  of  the  Com- 
"  missioners  is  particularly  called  to  the  Townsend  chart  for 
'■  1894,  an<l  the  '  Sealing  '  chart,  No.  4,  of  the  case  of  the  United 
"  States  at  Paris,  both  of  which  were  placeil  in  evidence  by  Great 
60  •'  Britain.  The  testimonj'  and  the  charts  demonstrate  that  the 
"  area  where  seals  are  hunted  in  Behring  Sea  extends  from  166 
"  to  175  ^(>est  longitude,  and  from  53  to  HDvorth  latitude,  contain- 
"  ing  from  140,000  to  150,000  .square  miles." 

If  your  Honors  will  refer  to  the  chart  you  have  before  you 


313 

(Mr.   Boilwell's   Argument.) 

will  find  that  my  friends  Imve  done  what  I  suppose  is  fair 
eiHiu^h  from  their  point  of  view,  but  they  have  commenced  our 
.spaling  grounds  at  latitui'e  D^,  which  is  one  and  one-lmlf  degrees 
HDUth  of  Unimak  I'ass,  and  carried  us  up  to  59  and  have  given 
UH  the  extreme  eastern  and  western  limits  mentioned  anywhere 
in  the  evidence,  longitude  105  on  one  side  and  17;")  on  the  other. 
10  'iln're  is  some  evidence  that  seals  were  taken  at  10'),  hut  it  was 
uiidiT  peculiar  circum-.tanei's.  For  instance,  the  "  Minnie  "  took 
jilVw.hut  she  was  driven  out  of  her  sealing  grounils,  hy  reason 
(if  seizure.  The  usual  sealing  grounds  are  within  very  much 
narrower  limits. 

The  United  States  Argument  at  this  point  is  also  hn»o 
\\\r)\\  another  hypothesis,  which,  I  eontenil,  is  not  correct.  The 
calculation  might  lie  useful,  if  it  were  true  tlmt  tlieri^  was  only 
one  small  body  or  even  a  large  hody  of  seals,  one  compact  hody, 
which  nmgt'd  ovt-r  tlie  sea,  hut  the  evidence  is  ditt'erent  from 
20  tlm^.  The  seals,  after  they  leave  the  islands,  scatter  in  all 
(liicctioiis,  and  the  ordinary  limit  of  their  journeyis  from  100 
to  !.")()  miles.  For  instance,  I  take  from  the  Argument  of  my 
iViends  the  distances  that  tliey  give  for  these  vessels  in  l.SfSO  to 
iliiistrati.'  what  I  mean.  The  following  vesst-ls  which  they  have 
named  were  all  sealing  during  the  same  p(.'riod  of  time  in  the 
same  year  in  the  ditferent  positions  mentioned  and  were  all  get- 
ting seals. 

The  "  Vanderhilt  "  was  hunting  north  and  west.  The  "  Path- 
linder  "  to  the  west.  The  "  Favourite  "  to  the  southwest.  The 
30  "Mary  Ellen  "  and  the  "  San  13iego"  and  the  "  PatliHnder  "  to 
tiie  south.  Tlie  "  Thornton  "  to  the  south  and  tlu!  "  JIary  Ellen  " 
to  the  east.  These  vessels  wei-e  limiting  in  ditl'eient  directions 
from  tlie  islands,  ail  were  all  taking  seals  in  large  numhers,  which 
is  a  demonstration  of  tiie  argument  that  there  was  a  large  liody 
of  suals,  hut  that  they  scattered  in  many  directions  from  the 
islands. 

J    will   now  read,  as  a  further  argument  in  support  of  the 

statement  that  the  seals  usually  go  to  a  distance  of  ahoiit  11)0  or 

l.')0  miles    from   the    islaiul,  h'om   the  argument  of  the    United 

40  States  at  page  21."),  where,  speaking  of  the  different  voyages  and 

tlie  distances  that  were  madi',  it  is  said  : — 

"  O'Leary  gives  his  position  in  l.S.Sd,  during  July,  as  90  miles 
"  urd  of  the  Pribyloti'  Islands,  and  in  August  as  120  miles  south 
"  of  the  islands,  covering,  therefore,  an  area  over  200  miles  in 
'  length. 

"  Jlamlase,  on  the  '  Theresa  '  in  18iSG,  gives  her  position  at 
"about  12.")  miles  south-soiithi'dst  of  the  islands. 

"  Reppen    states  that    the  vessel    he   was  upon  sealed    ivext, 
"  north,  cant,  and  south  of  the  islands.    He  gives  but  one  distance, 
50  "  and  tliat  1.50  miles  from  the  Pribylotf  islands." 

And  then  at  page  216  : — 

"  McKiel,  master  of  the  ''Mary  Taylor"  in  18iS7,  gives  no 
"actual  position  as  to  his  sealing  in  that  year,  although  it  is 
"  stated  in  the  British  Argument  that  he  '  Explains  that  he 
"  worked  in  tlie  vicinity  of  oG  north  latitude,  177  west 
"  longitude.'  The  testimony  of  witness  was  that  he  sealed  from 
"40  to  li)0  miles  west  of  a  line  drawn  from  Unalaska  to  the 
"  I'ribyloff.  It  would  appear  that  his|)osition  was  chiefly  sou^A- 
"  irest  and  south  of  the  islands,  and  the  area  he  covered  about  60 
60  "  miles  from  east  to  ivest  and  over  150  from  north  to  ifouth." 

Miner  was  150  miles  .southwest;  Moss  south  from  the  islands 
30  or  40  miles  ;  Baker  GO  to  90  miles  southwest. 

At  page  217  of  the  Aigument  it  is  said  Hackett  of  the 
"  Amiie     Jloore "    was     about    100     miles    northwest.      The 


if^WilH 

:          '^''''i'^ll 

■  ii'         '        'i^"' 

''M;l;iH'» 


'"  i 


m 

111!    !i 


p§'} 


'fil     4 ''I 


H 


I'     ' ' 


(■ '  ■■'* 

.  ■■ . i   '' 

^M' 

%>:V^'' 

;n4 

(Mr.  Bi)(hveir8  Arjjuinent.) 

"  Trininpli "  100  miles  iiorUv  ftinl  sontli  ;  Rnynnr  100  inilcs 
Hoiitl)  ;  liakur  <ll)  to  !)()  iiiil<-s  soutli  iiml  w>!Mtwtinl ;  L'iii;r|iliii 
McTii-iiii  iilioiit  too  uiili'H  Hiiiitli. 

At  |)iii;('  21 M  this  n'f(«rniice  is  madrt  to  Steolc  : — 

"  Sti'ole,    iimNliM'  of    till)   '  Tlioi't'sa '   in    1H!)0,  states   that   ho 

"  Imnteil  to  tlio  iri'sfiC'iril  uinl  hdiiIIih'  tril  of  the  I'riliyloH  Islaiiils 

10  "  (itiil  near  Moi^iislnir     '{'he  extent  of  till!  sea  covered  Uy  lilin  in 

"  his  sent  Imnliiij,' appears  to   havi'   lii'en   over    200   miles    north 

"  ami  xdiifli, 

These  stateineiits  are  ^'eneral  statoiiionts,  the  witnesses 
cannot  N|)ealv  with  exantness,  anil  do  not  profess  to  do  so. 
Kilt  if  wo  were  to  adtiiit  that  the  distances  i^iven  are  exact,  the 
ciiiiclusioii  whieli  my  fiieiiils  have  drawn  from  that  com- 
pilation of  the  evidence  is  liitl'eri'nt  from  the  one  we  ask 
your  llniKirH  fo  iuriv(>  at.  'I'liey  "^eein  to  lie  under  the  impres- 
sion that  these  distanees  »ri>  so  i;reac  that  an  ordinary  sealing 
20  schooner  could  not  expect  to  cover  them  in  the  course  of 
a  sealiiii,'  season.  Kor  instance,  they  refer  to  the  fact  that  a  cer- 
tain ves-el  w'as  fravelliiif;  for  l.'O  to  200  miles  north  md  south, 
and  in  some  instances  they  italicize  the  worils,  slu  w  in;^  their 
idea  to  111'  thnt  the  distances  are  so  i;reat  that  the  position  cmiM 
not  he  called  a  detinite  and  limiieil  ^'rotmd  over  which  a 
schooner  cmild  he  expected  to  operate  in  any  one  season  with 
success. 

In  Older  to  show  that  that  is  a  mistake  I  liavo  had 
laid  out  here  a  su|)posititioiis  Yoyaijfe  on  a  chart  j^iviny  practic- 
30  all}'  the  same  jiositions. 

.Mr.  'widwell  here  handed  the  ('ommissioners  a  chart  upon 
which  was  laid  out  a  supposcl  voya;;e  of  a  vessel  in  search  ')f 
seals,  i,'ivini,'  the  courses  and  distances  which  were  to  he  .so 
travelled  over  in  a  Ljiven  space  of  tiiiiB. 

He  then  said  :  — 

[  will  read  to  your  Honors  the  following;  tahle  .shuwinj,'  how 
these  calculations  are  arrived  at: 


TAHI-E    SHEWINO     TIMK     A    Sf'ltOOXEH    WOULD    REQUIliK    SAll.IKti 
40  FliO.M    .STATION    TO    STATION    A.S    I.AIU    DOWN    IN    CIIAUT, 


50 




Time  re- 

-■  ■ 



qiiirtMl  with 

Moderate 

Fresh 

.Strong 

Station. 

Distance 

ii^lit  wind, 

bri'ozi',  :my 

ItriM'/.e,  7 

liri'C'zu  ID 

Htiy  .'<  knots 

a  knots. 

knots. 

knots. 

per  liour. 
2  lis.  22  l.is. 

1  d.  Ohrs 

From 

zero  toSmtidii  No.  1 

210  niilea 

1  d.  IShrs. 

21  his. 

From 

No.)  toNo.'.'.Stiit'ii 

!)2      " 

lil.lih.  lUni 

IS  li.  24  Ml. 

13  h.  tint. 

IMi.  I2ni. 

" 

'2  to  No.  3  . . . . 

lilfi       " 

2(1. 171i.20ni  1.     1.-).     12. 

ld.4h    -S. 

l!)h.3li" 

" 

:i  to  No.  4 

!)4       " 

111.  Vli.20ni,        IH.    48. 

13  d.  .'6  h. 

0  h.  24  " 

" 

4  to  No.  5  .... 

60      " 

i      20li.  (1.     1        12.       (1. 

Sd.  3.5h. 

II  h.  0  ni. 

" 

,")  to  No.  fi  .... 

ir>:!     " 

2.1.  ;U)li.  0.  11.      6.     .t(i. 

21  d.f)2h. 

Iflh  18" 

" 

(i  to  No.  7  . . . . 

ViS      " 

1  il.2.'li.  0.    1.      3.    36. 

I!ld.  43h. 

13h.  48" 

APPROXIMATE 


IIEAKINOS     AND      DISTANCES,      FROM     S.     W.     POINT 
GEORGE'S    ISLAND. 


Station  No.  1,  S.  by  W.  i  VV.,  say  55°. 

2,  S.  W.  by  VV.  i  W.,  say  120». 

3,  E.  1  N.,  say  78°. 

4,  S.  E.  JS.,  say  118°. 

60  „  5,  S.  E.  by  E.  A  E.,  «ay  157'. 

6,  S.  by  W.,  sa"y  71». 

7,  N.  W.  by  W.  i  W.,  say  96°. 

N.  B. — The  last  named  is  to  Dalnoi  Point, 


•Mr) 

(Mr.  Uodwell'.s  Argument.) 

I  moy  Mtato  to  your  Honors,  tlmt  tlio  liijlit  hroozn  niontionod 
in  tlu'  tnlild  is  a  thren  knot  lirec/.u  ;  tlu«  moiloruti)  liriM'/.o  is  a 
live  knot  liriM'zu  ;  the  frt'sli  liroczi-  is  n  sevon  knot  brci'/.n  ;  (iiul 
the  strong'  l)rfM'zo  is  n  tt-n  knot  iiroMo. 

To  sliow  jour  Honors,  tlmt  tiiis  is  no  work  of  tlit*  imagina- 
tion liut  is  It  f;  ir  rcpri'si'ntiition  of  wliut  ciin  !>«  iloiip,  I  iiavi'  a 
III  ri'fi'rcnfi'  licrc  to  j)lottin;^s  from  tlu^  lo^s  of  tlu^  scliuoiifrs 
seized  liy  tlie  ('litters.  'I'licy  will  ileiiionstrate  in  tlie  first  pliicts 
that  no  soliooner  was  ever  eomiielhMl  to  iiiakt^  tlie  loiijr  distances 
stated  in  tiu>  talihf  I  iwive  just  read  in  searcii  of  seals  exce|)t  on 
special  occasions.  As  a  rule  their  courses  were  very  much 
shorter,  hut  that  they  eoiild  make  tlie  loni^'er  distanci^'.',  and  that 
they  did  so  witimiit  any  trouhle  when  occasion  arosi;  is  demons- 
trated hy  these  plottilii^s. 

In  volume  ,'{  l-nited  States  reprint,  we  have  the  plotti'(l 
course  of  the  schooner  "Ada"  in  I.SS7,  whii-li  was  taken  from 
20  the  lo;4  found  on  lioaril  the  schooner  when  she  was  seized.  1  havo 
hud  thesi  distances  worked  out.  I  will  not  read  the  list  in 
full,  hut  I  wish  to  to  refer  to  a  few  of  the  distances.  For 
instance  from  the  loth  of  .Inly  to  the  lOtli  iluly  that  schooner 
wrnt  (i.S  miles;  from  the  .'JOtli  July  to  the  .'{1st  .fiily  she  went 
42  miles;  from  the  .'Jist  July  to  the  1st  of  Auenst  .'{S  miles; 
from  the  2nd  of  Aiij^ust  to  the  .'trd  of  August  !)2  luilesand  from 
the  (ith  of  Aiij;ustto  the  7tli  of  Au^;ust  4.'}  miles. 

I  refer  your   Honors  also  to  the   plotting  of  the  loj^  t)f  tlie 


;i() 


Alfred    Adams,   roliiiiu!  2  of  the  Aiiiericau  reprint, 
Krom  the  !)tli    to  the   10th    of  July  that   schooner 


10 


schooner 
pat,'e  ")4.S. 

went  8")  miles;  from  the  lOth  to  tlii'  I  Ith  of  July  she  went 
71  miles  hack  over  the  same  course  in  two  days;  from 
the  I.Vth  to  the  Kith  of  .Inly  she  went  44  miles;  and  from  the 
27tli  to  the  2.Sthof  July  she  wrnt  S7  miles  and  from  the  2iHh 
to  the  .30th  of  July  she  wiint  12;{  miles,  and  hack  a<,'ain  the 
next  day  102  miles  covering  the  distance  of  22;")  miles  in  48 
hours. 

'J'he  schooner  "  Annie's"  courses  are  also  plotted  in  the  same 
way.     From  .lime  2lHt  to  tin-  22nd  she  went  74  miles. 

Tho  following  is  a  tahle  setting  all  this  out  in  full ; — 


'I 


',.,     .li  '  '' 


|l     II 


!■*(  •: 


;.:■)■ 


''!' 


•TTTpreprr 


10 


20 


80 


40 


316 

(Mr.  Bodwell's  Arjjuiiipnt.) 


Ciu'isE  OF  U.  S.  Schooner  Annie.    Season  ok  1887. 


From. 

To. 

Sea  Miles. 

June.       21 

June. 

22 

74 

" 

do          22 

do. 

2.H 

;$() 

do.          2.S 

do. 

24 

.54 

do.          24 

do. 

2.5 

24 

do.          2;-) 

do. 

2() 

14 

do.          2() 

do. 

27 

:i 

do.          27 

<io. 

28 

17 

do.          28 

do. 

2!» 

.5 

do.          2!t 

July. 

.-^o 

50 

do.        ;k) 

<lo. 

1 

1.5 

July.           I 

do. 

;{ 

2(i 

do".           ;{ 

do. 

4 

20 

do.            4 

do. 

.') 

14 

do.            .5 

do, 

<; 

27 

do.            t) 

do. 

7 

10 

do.            7 

do. 

8 

10 

do.            S 

do. 

» 

U) 

do.            !) 

do. 

10 

23 

do.           10 

do. 

11 

23 

<lo.          J 1 

do. 

12 

25 

do.           12 

.lo. 

1-S 

20 

<lo.           I'.i 

do. 

14 

.5 

do.           14 

•lo. 

1.5 

20 

do.             1.') 

do. 

1() 

03 

do.          10 

do. 

17 

13 

do.          17 

do. 

1!) 

3.5 

<lo.          1!) 

.lo. 

20 

12 

do.          20 

do. 

21 

0 

do.          21 

do. 

22 

20 

do.          22 

•  lo. 

2:} 

24 

do.         2:{ 

do. 

24 

28 

do.          24 

do. 

2.5 

.5 

do.          2.') 

do. 

2») 

.58 

do.          2(i 

do. 

27 

.58 

do.          27 

do. 

28 

0.5 

do.          28 

Auj,'U8t 

2it 

27 

do.          2!> 

do.       ' 

80 

7 

do.          30 

.lo. 

1 

32 

AujfUMt.       1 

do, 

2 

>2 

do.           2 

.lo. 

.{ 

3 

do.           -i 

.lo. 

4 

12 

do.           t 

.lo. 

5 

18 

i  -1 


817 

(Mr.  Bodwell's  Argumeut.) 


''"W 


10 


20 


30 


40 


CuriSE  OK 

THK  BiuTisH  Schooner  "  Ad, 

V."  Season,  1887. 

From. 

To 

Sen  Miles. 

July. 

15 

July. 

16 

63 

do 

16 

do. 

17 

24 

do. 

17 

do. 

18 

24 

do. 

18 

do. 

19 

18 

do. 

19 

do. 

20 

13 

do. 

20 

do. 

21 

8 

do. 

21 

do. 

22 

13 

do. 

22 

do. 

23 

5 

do. 

23 

do. 

24 

14 

do. 

24 

do. 

25 

32 

do. 

25 

do. 

20 

15 

do. 

26 

do. 

27 

32 

do. 

27 

do. 

28 

37 

do. 

28 

do. 

29 

It) 

do. 

29 

do. 

3(f 

22 

do. 

30 

do. 

31 

42 

do. 

31 

August. 

1 

38 

Aufiust. 

1 

do. 

2 

23 

do. 

2 

do. 

3 

92 

do. 

3 

do. 

4 

4 

do. 

4 

do. 

5 

5 

do. 

5 

do. 

« 

4 

do. 

G 

do. 

7 

3t) 

do. 

7 

do. 

8 

20 

do. 

8 

do. 

9 

13 

do. 

9 

do 

10 

21 

do. 

10 

do. 

11 

13 

do. 

11 

do. 

12 

22 

do. 

12 

do. 

13 

23 

do. 

13 

do. 

14 

18 

do. 

14 

do. 

15 

7 

do. 

15 

do. 

16 

22 

do. 

It) 

do. 

17 

5 

do. 

17 

<lo. 

18 

10 

do. 

18 

do. 

19 

17 

do. 

19 

do. 

20 

18 

do. 

20 

do. 

21 

7 

do. 

21 

do. 

22 

4 

do. 

22 

do. 

23 

48 

do. 

23 

do. 

24 

33 

1i 


-'!;»?' 


■    i! ' 
J!     II 


;4i 


■■'> 


I 


(I 


I 


'  I '} '<vj  WW  I 


318 
(Mr.  Bodwoll'a  Argument.) 

Cruise  of  British  Schooner  "  Amred  Adams."  Season,  1887 


10 


40 


50 


tiO 


20 


30 


From 

To 

Sea  Miles 

July 

9 

July 

10 

85 

do. 

10 

do. 

11 

71 

do. 

11 

do. 

12 

23 

do. 

12 

do. 

13 

13 

do. 

13 

do. 

14 

15 

do. 

14 

do. 

15 

33 

do. 

15 

do. 

1() 

44 

do. 

1« 

do. 

17 

37 

do. 

17 

do. 

18 

26 

do. 

18 

do. 

1 9 

4 

do. 

19 

do. 

20 

16 

do. 

20 

do. 

21 

23 

do. 

21 

do. 

22 

3 

do. 

22 

do. 

23 

12 

do. 

23 

do. 

24 

18 

do. 

24 

do. 

25 

24 

do. 

25 

do. 

26 

12 

do. 

26 

do. 

27 

2 

do. 

27 

do, 

28 

87 

do. 

28 

do. 

29 

13 

do. 

2!) 

do. 

30 

123 

do. 

30 

do. 

31 

102 

do. 

31 

August 

1 

13 

August 

1 

do. 

2 

60 

do. 

2 

do. 

3 

80 

do. 

a 

do. 

4 

9 

do. 

4 

do. 

5 

25 

do. 

5 

do. 

6 

18 

The.se  plottiigs  are  also  a  further  piece  of  evidence  in 
support  of  the  contention  I  make,  because  by  reference  to  them 
your  Honorn  will  ohnerve  that  the  .sealing  was  conducted  within 
the  limits  "f  latitude  and  longitude  to  which  I  liave  been  referring 

In  order  to  further  iliuKtrate  that  contention,  F  have  had,  in 
so  far  as  it  is  poisilile,  taken  from  the  logs  of  the  sehoonerH  in 
question  on  this  ^Miiimission,  the  positions  ami  have  liad  the 
plottings   made  of  tlieir  voyages. 

The  "  l)olphin's"  log  for  the  year  I88(i  is  given  in  the  evi- 
dence, page  281  :  and  the  "  Tho'-nton's  "  log  is  also  here.  We 
have  the  lug  of  the  "  Favourite,'  and  I  have  that  plotted  in  two 
pericids.  iiamt'ly,  from  the  7th  of  .Inly  to  the  31st  of  July,  and 
from  the  31st  of  .luly  to  the  22ii(l  of  Augu.st ;  and  here,  in 
pa.ssing,  I  cal]  youi'  Honor's  attv;'it"on  to  something  that  is 
apjjarcnt  on  the  very  face  of  these  last  mentioned  plotting!!. 
Vonr  Honors  will  observe  that  the  tir.st  one  shows  the  vessel 
work'iiii,' in  almost  tin'  siinic  sjxit  for  24  diiys.  Before  she  was 
warncil  you  will  notice  tliat  her  oi)eriitions  ai'e  confined  as  stated 
there;  and  after  warning  the  course  extende(l  over  ditl'erent 
groinul  entirely.  Our  contention  is  tiiat  she  was  trying  to  keep 
away  from  the  cutters  after  the  warning.  Hefori;  the  warning 
ami  when  she  was  not  intei'fered  with,  nnil  when  she  was  making 
a  big  catch  she  was  sealing  within  very  close  points.  After- 
wards she  covei'eil  long  distances  from  day  to  day. 

There  is  al.so  a  book  1  cannot  say  what  vessel  it  applies  to — 
a  little  book  which  sIk'ws  the  latitude  and  longitudt:  of  one  of 
the  vessels  referred  to. 


319 
(Mr.  Bodweir.s  Argument.) 

Mr.  Lnnsing  : — It  wiih  not  ottered  in  evidence. 

Mr.  Bodwell : — It  was  marked  for  identiKcation  and  was  re- 
ferred to — 

Mr.  Lan.sinij : — But  tiuit  in  not  ott'cred  in  evidence. 

Mr.  Diciiinson  : — The  object  of  puttinjj  in  a  booi<  for  identfii- 
cation  is,  wlien  you    liave  a  witnesH  on  the  .stand  and  not  ready 
10  to  otter  the  evidence,  you  identify  the  book  so  that  lie  need  not 
be  recalled  to  identify  it. 

The  ConniiiH.sioner  on  the  part  of  the  United  States  : — The 
attention  of  counsel  was  called  to  the  distinction  very  carefully 
several  times  at  Victoria. 

Mr.  Bodwell  : — If  objection  is  taken  to  the  book,  I  will  not 
put  it  in  just  now. 

Now,  your    Honors,   these  positions  as    they  are  j)lotted    on 
these  charts  show   that  the  sealinjj   was  carried  on    practically 
over  th(^  same  {ground.     So  far  as  they  j^o  they  are  rij^ht  in  line 
20  with,  everythiiiff  that  i  have  been  srying. 

For  the  purposes  of  further  illustration,  I  have  taken  the 
quotations  of  the  evidence  wliich  are  made  in  the  United  States 
Arfjument  at  pafjes  215  and  218,  and  as  far  as  was  possible  to  do 
it  from  the  statements  in  the  record  there  referred  to,  I  have 
laid  down  the  positions  as  jjiven  by  the  witnesses  on  a  chart.  Of 
course  these  statements  in  the  evidence  are  of  a  very  jveneral 
nature  and  the  positions  cannot  be  accurately  plotted,  but  I 
have  <fivt>n  them,  generally  speaking,  as  far  as  can  be  done  from 
the  evidence.  Th"  vessels  whose  positions  are  so  located  are  the 
,■?()  "Pnthtinder"  in  1880,  the  "  -Mary  Ellen"  in  I88(),  the"  Theresa," 
in  188(),  the  "(irace"  inl88(i,  the  "San  Diego"  in  18Hfi,  the 
"  Marv  Taylor"  in  1887,  the  '  Kate"  in  1887,  the  "  Allie  I  Alger 
in  1887  and  I8!»(),  the  "Viva"  in  1888,  188!t  and  18!)0,  the 
'■  Favourite"  in  1888  and  the  "Triumph"  in  1888 — the  latter  we 
were  able  to  lay  down  accurately  becjiuse  it  is  given  exactly  in 
the  record.  With  regard  to  tiie  ".lames  Hamilton  Lewis"  in 
I88!(,  she  was  only  in  one  position  wlien  she  was  ordered  out, 
.'Mid  that  is  stated  in  the  evidence.  The  voyage  of  the  "Adele  ' 
in  188!t,  is  given  generally.  The  "  Wal'.er  u  Riche  "  in  18i)(), 
40  and  the  "  Penelope  "  in  1887,  1888  an<l  188it,  are  referred  to  in 
general  language  also,  but  they  an>  shown  as  jtrecisely  as  they 
cnn  lie  laid  down  from  what  the  witness  has  said.  I  hand  your 
Honors  these  plottingsand  later  onwiil  furnish  copies  to  Counsel 

I  n(nv  wish  to  notice  a  few  of  the  quotations  from  the 
evidence  in  the  T^niteil  States  argument  in  order  to  ct)mplete  the 
stateiiu'iits  that  are  there  made,  and  to  point  out  any  distinc- 
tions which  I  think  your  Honors  ought  to  observe.  For  instance, 
at  ]iage  21  !•  of  the  United  States  argument,  there  is  this  quota-* 
tiiin  from  the  evidence  of  C'apt,uin  Mcljcan  : — 
,"(J  "(),  Did  j-ou  ever  tind  any  rule  whereby  yoti  could  find  the 
"seal  the  second  time  ?  A.  The  only  rule  I  have  found  was 
"  that  if  they  were  not  in  one  place,  to  go  and    limit   for  them." 

That  statciiicnt  should  be  taken  with  the  qualification  I  have 
already  referred  to,  namely,  that  he  is  speaking  of  hunting 
i;r<)un(ls  within  certain  limits,  but  within  certain  boundaries 
known  to  him  he  would  hunt  for  seals  an<l  he  always  fomul 
tluMi.  Captain  MeliCan  never  missed  making  a  good  catch. 
Other  captains  dill  the  same. 

I  have  already  referred  to  the  evidence  of  Captain  Kayner. 
(i(t  .My  learned  friends  in  their  argument  object  to  th(>  quotation  of 
the  evidence  as  it  is  set  out  in  our  argmnent,  but  they  cannot 
iiliject  to  the  quotation  wbieli  I  now  read,  and  which  con- 
tains till!  whole  of  bis  testimony  upon  this  point.  The  follow- 
ing, however,  should  also  be  read  inty  the  argument  to  complete 


•H-- 


H 


M!!! 
■I! 


>||;l 


h> 


'■'h 

M 

■  '  ih 


'■     l: 


320 

(Mr.  Bodwell's  Argumeut.) 

his  .statement  as  quoted  in  the  United  State.s  argument  at  i)aire 
219.     I  ((note  from  pa^j;e  528,  line  55,  of  tlie  Record  :  — 

"  Q.  Of  course,  ami  you  went  were  you  knew  the  .sealiiij{ 
"  ground  would  be  ?     A.     Why,  certainly. 

"  Q.  So  tliat  tno  .sealinjj  ground  is  confined  to  certain  limits  I 
"  A.  Ye.s,  l)ut  tlieni  limits  is  anj-wheres  from  the  north-east  of 
10  •'  the  inlands  up  to  the  north-west  of  the  islands,  and  to  th<: 
HOutluvnriLs  down  towards  the  Pribyloff." 

And  from  page  52'J,  line  20 — 

"  Q.  Did  you  ever  go  to  Behring  Sea  in  any  year  looking 
"for  .seals  that  you  diil  not  find  them  ?  A.  Do  you  mean  if  1 
"  ever  went  looking  for  them  any  one  day  that  I  did  not  find 
"  them. 

"  Q.  That  is  not  the  question  that  I  asked  you,  and  do  not 
"  think  that  you  caji  iniderstand  it  that  way.  I  ask  you  if  you 
"  went  to  Behriiig  Sea  any  jear  that  you  did  not  find  them  ? 
20  "A.     No,  sir,  I  always  found  some  .seals." 

Captain  Uayner  was  not  a  very  willing  witness  for  us  as 
your  Honors  will  obfjcve  from  the  following  quotation  which  I 
now  make  reading  at  page  528,  line  GO  : — 

"  Q.  How  far  is  it  from  the  Aleutian  Islands  to  the  first 
"  point  of  St.  (leorge's  Island  in  a  straight  line  ?  A.  I  could 
"  not  tell  without  1  had  the  instrument  and  worked  it  out. 

"  Q.  You  have  been  there  three  or  four  years,  and  surely 
"  you  can  tell  about  the  distances  ?  I  do  not  ask  you  as  to  a 
"  mile  or  twenty  mile.s,  for  that  matter?  A.  I  tliink  the  dis- 
30  "  iance  is  somewhere  about  throe  hundred  miles." 

The  exact  distance  is  1!)7  miles  measured  on  the  chart  froui 
the  Point  of  St.  tJeorge's  Island  to  the  center  of  Unimak  Pass, 
in  a  straight  line. 

"  Q.  From  the  Aleutian  Islands  to  the  first  Point  of  St. 
"  George's  Island  ?     A.     I  think  somewhere  about  that. 

"Q.     Don't  you  know  it  is  only  170  miles  ?     A.     I  do  not. 

"  Q.  Would  you  be  surprised  to  be  told  that  ?  A.  I  would 
"  not  be  surprised. 

"  Q.  Did  you  ever  work  it  out  on  your  chart  ?  A.  I  cannot 
40  "say  that  I  ever  did  measure  the  distance. 

"  Q.  Captain,  you  do  not  want  to  give  us  the  impression, 
"  you  being  a  sea-faring  man  and  the  master  of  a  vessel,  that 
"you  ciinnot  come  any  closer  to  the  distance  than  that  in  a  place 
"  where  you  have  been  sealing  for  three  years  ?  A.  I  mean 
"  that  I  ill)  not  know  the  distance  from  the  Aleutian  Islands  to 
"  St.  (Jeorge's  Island,  and  that  I  have  stated. 

"  Q.  You  cannot  tell  us  within  one  hundred  miles  ?  A.  I 
"could  not  state  without  measuring." 

Th(!  witness  you  see  is  not  desirou,s  of  giving  us  information 
and  this  portion  of  his  cross-(;xiiniination  does  not  exhibit 
Captain  H.uyner  in  a  favorable  light.  He  could  not  have  been 
as  ignorant  iis  he  pretends,  and  we  are  forced  to  conclude  that 
he  was  not  answering  fraiikl}'. 

At  page  .'MS  of  the  American  argument  there  is  u  reference  to 
th(!  evidence  of  Captain  William  Cox,  where  he  says  that  in 
18!i0  he  was  all  over  the  sea  going  80  or  !)()  miles  east.  That 
statement  is  to  be  taken  in  the  .sense  iti  which  the  language  was 
used  because  f)tlu'r  portions  of  the  testimony  of  this  witness 
shows  that  his  distance  was  80  or  00  miles  to  the  westward  of 
the  Island,  and  when  he  says  "  all  over  the  sea,"  ho  means  all 
over  the  sea  within  certain  limits. 

Cajjtain  Miner's  evidence,  which  is  referred  to  at  page  21 S 
of  the  United  States  argument,  I  have   already  read,  and  it  is  a 


50 


CO 


321 

(Mr.  Bodwell's  Argument., 

strong  bit  of  evidence  in  our  favor,  because   he   .sealed  entirely 
around  tlie  island.     He  .says,  pa<;e  218  ; — 
'•  I  seivli'd  entiroly  around  the  islands. 

"  Q.     You  mean  north,  .south,  east  and  west  ?     A.     Yes,  .sir. 
•'  Q.     How  far  away  from  them  ?     A.     The  nearest  I  was  to 
"  the  islands  was  40  miles." 
10         That  is  exactly  our  contention. 

Atpa;^e  221  of  the  United  States  argument  there  is  a  quota- 
tion from  the  evidence  of  Cotsford,  one  of  the  hunters  of  the 
'  Carolena,"  and  his  evidence  is  i-eferred  to  as  follows  : — ■ 

'■  Q.  Uo  you  think  that  in  Behring  Sea  there  is  any  place 
or  number  of  places  where  you  can  go  as  a  sure  thing,  and  get 
.seals  every  year  ?"  To  which  he  answered  :  "  1  do  not  think 
there  is  any  sure  place." 

But  his  evidenct!  there  must  be  read   with  his  language  in 
cross-exaiiiiiiation  at  page  .'J.S"),  lines   1   to  (iO — where   he  stated 
:!l)  that  wheneviT  his  ve.ssel  was  out  he  made  a  catch  ;  and  he  also 
gave  this  answer  : — 

"  Q.  It  is  certain  that  you  will  gi't  scdls  there  ^  A.  It  is 
"almost  certain  yoti  will  get  some  seals  there. ' 

At  page  221  of  the  Ihiitcid  Stat';s  ai'gument,  there  is  also  a 
reference  to  the  evidence  of  A.  B.  Alexander,  where  in  his 
evidence  he  says  : — ■ 

"  Q.  Is  there  any  localit)'  whei-e  seals  can  always  be  found  ? 
"  A.   I  knovNof  none." 

Tiiat  must  be  read  also  as  a  qualified  expression  and    with 
no  regard   to  the  rest  of  his   evidence.      For    at  page  48:},  line  (iO, 
he  .says  : — 

"().  ^'ou  admit  that  I'verv  ye.'ii' you  wi'iit  to  iJehritig  Sea- 
"you  foun<l  .1  large  qu.uitity  of  seals  both  in  July  ami  August  f 
\.  Found  a  largei'  quantity  in  the  year  IfSi).")  then  we  did  in 
IS!  14. 

"  (}.  liiit  in  both  years  you  found  a  large  ([uantity  '  A. 
l'"()Wiid  a  considerable  quantity.  ' 

His  evidence  sliows  jdl  through,   that  when  he  uses  the  word 
liieality,  he  is  using  it  not  in  the  broail  sense  in  which  m\'  learned 
4(»   iViends  have  inteijireted  the  evidence  but  with  a  restrict  eil  me;in- 
ing  as  i-eferiing  to  the  ])artieulai-  part  of  a  certain  loc-ility. 

At  ]>age  221  of  the  Amei'iean  brief  there  is  also  a  cjuotation 
from  the  evidence  of  Captain  Folger  : — 

'■(}.  I'^rom  your  experience  in  Behring  Sea,  Cnptain,  will 
"  yiiu  tell  the  Connnissioni'rs  whether  or  not  tlu're  is  anyone 
"  place  ill  Uehriiig  Sea  where  you  will  always  tind  seals:'  A. 
"  Nu.  sir;  not  where  you  will  always  tind  them. 

"  <^).      I.s  there  any  such    jilact'  :■       A.     'I'lie  seals  are    every- 
"  whei-e,  acconling  to  wliere    the  fodil  is;  wherever  the  food  is, 
•")'•  "  that  i.->  where  the  si'als  are. 

'(}.     Hothey  follow  the  food  !    A.    Yes,  sir.  " 
I  call  your  Honors'  attention  to  the  form  of  the  first  (lUestion 
jiut  ill    that  extract.     'I'lie   wor<l    "always"    is    most  importiint 
lidtli  in  the  question  and  the  answer. 

lulViring  now  to  pages  224  and  22.')  of  the  L'niteil  States 
argument  it  is  conteiKhMJ  by  my  learned  friends  that  we  were 
attempting  to  convince  your  Honors  that  there  was  a  stream  of 
seals  travelling  through  Ciiiiiiak  I'ass,  .'iO  miles  wide,  and  pro- 
ceeding to  the  I'libilof  islands.  I  am  not  awai'e  that  there  was 
III'  ever  a  time  in  the  course  of  the  case  that  we  took  such  a 
|iiisilioii  as  that.  We  put  in  the  evidence  of  Mr.  Douglas,  a  pilot, 
who  was  examined  in  bS.Sd.  'i'liere  is  language  used  by  him, 
which  if  not  prope-rly  understood,  might  convey  such  a  nieaiiii.g, 
liiit  It  is  perfectly  plain  that  the  witness  himself  did  not  intend 


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322 


(Mr.  Bodwcll'H  Argmiicnt.) 

to  Cduvcy  tlmt  impression.  The  witness  stiites  tliero 
Was  a  stream  of  s(>als  passing;  tlu'ou;;!)  the  Pass  and  jjoin" 
to  tlie  Pi-ibiiof  Islands  wiien  they  were  on  their  Jourtiey  to 
tiie  Islands.  All  the  oral  evidence  demonstrated  that,  and  the 
charts  indicate  it  as  well.  Pwt  at  that  time  the  seals 
are  travol!in;.f  and  our  cise   alway."<  has  hecn   that   you  cannot 

10  take  the  seals  very  easily  when  they  travellint^.  Our  case  is 
thatthe  principal  Innitinu;  wasiione  a  Fte."  the  seals,  had  reached  the 
islands  and  scatti'red  in  search  of  food.  My  learned  friends 
"appear  to  have  misundei'stood  tim  Lji'ounds  upon  which  wo 
put  in  the  evidence  of  Douglas,  and  the  strenjjtii  which 
it  ou^iit  to  have.  1  explained  that  at  the  openinji;  of 
my  arj.;uinent  on  the  iinestion  of  sealinij  i^rounds,  and  1 
.shall  not  repeat  it  now.  Hut  1  am  sure  your  Honors  have 
understood  it  from  the  lies^inninjr  and  that  our  case  as  pre- 
sented in  our  printed  an^umentand  as  ary;upd  here  and  as  niaile 

20  upon  the  evidence  presented  from  time  to  time,  has  been  sus- 
taineil  from  the  l)e;^iimin<;.  There  has  been  no  clmnife  in  our 
position.  Surel}'  we  oni^ht  to  have  the  credit  of  knowing  what 
our  witnesses  would  saj- ;  and  when  we  were  callinij;  many 
witnesses  to  prove  that  the  seals  were  caujiht  after  they  reached 
tlie  end  of  their  journey  to  th(>  islands,  jmd  were  taken  sleeping; 
and  not  travellinJ,^  wliy  should  we  attempt  to  .show  that  the 
animals  were  fouml  as  a  stream  ti-avellin<;  at  a  rapid  rate,  and 
con.sei|nently  most  difficult  of  capture.  I  am  .sorry  that  my 
leariieil  friends  have   misumlei'stood  it.     I    cannot    perceive   tlu; 

'W  irround  of  their  error.  At  any  rate  we  <lo  not  want  any 
further  misunrhrstandini^.  Wmv  Honors  appreciate  the  posi- 
tion I  am  sure,  and  will  take  in  the  force  of  our  argument 
on  the  i;r<innds  upon  which   it  is  based. 

So  far  1  have  been  dealini:;  with  the  evidence  as  it  has  been 
givt'ii  and  now  1  take  another  point.  As  1  had  occasion  to 
observe  the  othei'  day,  your  Honors  are  not  sitting,'  to  demons- 
trate any  particular  theoi'v.  but  are  heri'  to  form  a  conclusion 
as  to  the  correctness  of  the  claims  for  cei'tain  vessels  from  the 
facts    ill  evidence.      Whatever  may  be  said  as  to    the    sealinjr 

40  j;rounils  or  the  dilHculty  of  Hndinji;  seals,  I  «nbmit  to  your 
Honors,  that  for  all  practical  pin-poses  the  (jUe.tion  does 
not  1)C'come  material,  for  with  n  ference  to  nearly  every 
vessel  that  was  seizecl  it  is  ])i'ovt'd  that  they  were  actually 
nmonn'  the  seals  at  the  time  of  seizure.  Whatever  ditfculty 
thiM'#  mi;.'ht  have  been  in  .somi'  other  years  or  \vi..'t, 
ever  ilitticulty  thi're  may  be  now.  in  tinidni^  the  places  in 
Hehrini.j  Sea  where  seals  an'  to  be  taken,  the  fact  was  that 
oui'      vessels    hail    <iverc()me    that     ilitticulty,     had     discovered 

,.  the  seals  and  were  actually  taking  lareje  numbers  at  the 
moment  of  seizure.  This  fact  is  j)ri)\ei|  beyond  all  ])ossibility  of 
duidit  by  the  positive  stateuK'nls  uf  uur  witnesses,  eori'uborated 
by  the  reports  of  tile  sei-.^in;4'  otlli'ers,  and  when  taken  in  coiniec- 
tion  with  the  olltei'  evidence  it  is  conclusive  to  establish  the  con- 
tention thai  when  a  vessel  found  the  seals  there  was  j)racticall^ 
no  ditHculty  in  stayin;;'  amone;  them,  and  takin;^  them  in  tin  s 
weather. 

I  have  here  a  list  of  the  vessels,  seized  orwarned.aiid  I  shall  now 
ask  j)i)ur  Honoi's  to  eive  your  attention  to  that  portion  of  the  evi 
denci'  which  shows  what  the  vessels  wei'e  doin;^  at  (.!;:■  tiiui.'  they 
tJO  were  so  si.'ized  or  warned,  Theri^  ar<'  one  or  two  vessels  with  refer- 
ence to  which  there  is  a  lack  of  evidence  owinj^  to  the  witne.s.ses 
bcinjf  dead  or  unable  to  attend  tlu'  sittinj^s,  but  in  nearly  eveiy 
instance  we  have  positive  (>vidence  on  the  jHjint  which  is  more 
-sjitisfactory  than    any  attempt  to  woi'k  out  a   theory. 


323 

(Mr.  Bod  well's  Argument.) 

ill  the  "  Carolona"  ease  at  pajje  !)3  of  the  British  argument 
l)i'ginnin<j  at  line  20,  a  ([notation  is  made  from  the  seing  officer 
as  follows  : 

"On  Sunday,  August  1st,  1881),  while  cruising  about  05. 
"  miles  south-east  of  St.  Oeorge's  Island,  the  British  schooners 
• '  Tiiornton'  and  '  Carolena'  were    found    witii    boats   down  en- 

10  "jriigcd  in  getting  fur  seals,  as  each  boat  was  taken  in  the  act. 
"andliatl  freshly  killed  seals  on  l)oard,  the  schooners  W(!re 
"  seized  for  violation  of  section  VMiii  of  the  Revi.seil  Statutes, 
'■  and  taken  in  tow  to  Ounalaska." 

And  again  in  tiie  log  of  the  Revenue  Cutter  "Corwin"  the 
following  appears : — 

"  7. HO  P.  M.  Stopped  and  sei/.ed  the  schooner  "  Carolena  "  of 
'■  Victoria.  Took  all  arms  and  amnuniition  on  board  the 
"  Corwin."  Position  of  the  "  Carolena  "  wlien  she  was  seized, 
"  Ijongtitude  I(i8.1()'  west:  Latitude  .'5.5. :}0'  north," 

20  At  liie  time  of  seizure  she  was  carrying  tlie  iiritish  flag,  an<l 
was  on  good  .sealing  ground  and  had  good  weatiier. 

".John  Cotsford  .says  : — We  were  ail  day  after  the  seals  on 
"the  day  when  we  were  taken.  We  were  catciiing  them.  1  hail 
"some  in  my  canoe,  and  I  bi'lieve  tiu;  otlu^rs  luul  also.  I  think 
"Ned  Shields  had  the  most.  I  tiiink  that  he  (Sliields)  had 
■thirty-four,  but  I  am  not  sin-e  :  Ithink  that  is  tiie  n\nnber  he 
"  liad.  I  don't  know  the  innnber  I  iiad,  but  I  think  it  was  under 
'  twenty.  I  consider  tliirty-four  seals  as  a  veiy  good  day's  slioot- 
"  ing  for  one  boat.     Twenty  is  a  very  good   day,  and   fifteen  is 

30  •  a  good  day,  too.  He  proceeds : — "  I  tliink  we  were  sealing  the 
"day  before,  anil  on  the  ilay  bi'fore  that  too.  We  were  tiii'ii  in 
"  the  same  place.  We  were  becalmeil  three  days  I)efore  we  were 
"  seized,  and  we  caught  seals  every  day  :  we  wen  doing  viTy 
"well.  We  had  not  finished  our  .sealing  that  day  when  the 
".seizure  took  |)lace.  We  would  have  gone  on  more,  and  had  a 
"fair  chance  of  catching  more  seals."  And  again  he  says: — 
"  We  caught  7(i  the  day  of  .seizure."" 

Cotsford's  establishes  boyonil  all  doubt  that  the  "  Carolena  " 
was  in  the  midst  of  the  seals  when  she  was  taken. 

40  As  to  the  "  Thornton,"  the  evidence  is  that  of  Captain 
Abbey  at  Sitka,  page  100  of  the  ISritish  argument: — 

"  1  found  tlie  four  boats  of  the  British  steam  schooner 
"'Thornton,'  of  Victoria,  B.  C,  engaged  in  killing  fur  seal. 
"  Each  boat  had  in  her  from  three  to  eight  freshly  killed  seal, 
"  arms  and  annnunition,  rowers  and  hunters,  who  stated  that 
"  they  belonged  to  said  schooner  "  Thornton,"  and  were  engaged 
"  in  taking  or  killing  fuV  seal.  Some  of  them,  if  not  all,  were 
"  seen' shooting  at  the  fur  seal  which  were  swimming  in  their 
"  neighborhood." 

50  Lieutenant  Rhodes  .said  : — "  I  was  on  the  "  Corwin  "  at  the 
"  time  the  "  Thornton  "  was  seized  on  that  day.  We  first  picked 
"  lip  a  boat,  bearing  the  name  "Thornton."  It  hail  about  eight 
"  dead  fur  seal  in  it.  Tb."  men  in  the  boat  had  breech-loading 
"  rifles.  We  afterwards  picked  up  another  boat,  an<l  then 
"  sighted  the  schooner  "  Thornton,"  and  went  on  board  and  was 
"put  in  charge  of  lier.  We  afterwards  picked  up  two  more 
"  boats.  The  men  in  the  boats  claimed  that  the  boats  belonged 
"  to  the  "  Thornton  "  and  were  put  alioard  of  her.  There  were 
"  between  fifteen  and  twenty  dead  fur  seal  on  deck  and  one  hair 

00  "  seal.  These  seal  were,  the  most  of  them,  bleeding,  and  evident- 
"  ly  recently  killed.  The  captain  and  several  of  the  hunters 
"  said  they  had  killed  twenty-one,  I  think  it  was  fur  seals  that 
'  day,  and  would  have  got  more  if  they  had  had  more  daylight, 
"  and  if  the  cutter  had  not  come  up." 


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324 
(Mr.  BocIwoU'h  Argument.) 

There  cannot  be  any  doubt  of  the  fact  of  the  "  Thornton  " 
beinji;  among  the  tseals. 

Ah  to  the  "  Onward,"  we  have  the  evidence  of  Marketicli, 
page  72,  lino  1  : 

"  Q,     Were  the  boats  out  when  you  were  caught  ?     A.     No, 
10  "  sir ;  tliey  were  aboard. 

"  Q.     And  the  cftnocs  were  aboard  ?     A.     Yes,  sir. 

"  Q.  Was  it  a  good  sealing  day  ?  A.  Yes,  sir,  very  fine  in 
"  the  foi'cnoon  ;  ni'terward.s  very  thick. 

"  Q.  In  the  forenoon  was  a  very  fine  day  ?  A.  Yes,  very 
"  fine,  a  good  sealing  day. 

"  Q.  What  were  you  doing  when  the  '  Cor  win  '  came  along  ? 
"  A.     We  wore  all  ready  to  lower  the  canoes. 

"  < J.     VVi-rj  there  seals  in  sight  >.     A.     There  wore    lots    of 
"  seals  around. 
20         "(J.      How  many  did  you  catch  the  day  before?     A.     (iot 
"something  like  one  hundred." 

"  Q.  And  tliat  da}',  yoti  say,  was  a  good  Hoaling  day,  the 
"second  ?  A.  Tiie  sfcoiid  day  would  be  very  good,  tlie  forenoon. 
"  Till'  afternoon  would  be  v<'ry  thick  fog." 

lie  goes  on,  then,  to  describe  the  circumstances  of  the 
seizure. 

.As  to  the  "  Favourite,"  I  (juote  from  the  I5ritish  argument, 
page  10(5,  as  follows  : 

"  From  duly  the  !Uh,  when  the  '  Favourite  '  commenced  sufil- 
30  "  ing  in  Jiehiing  Sen,  until  the  night  of  August  1st,  when  slio 
"  was  warned  as  above,  "24  days,  she  remained  practically  in  the 
"  same  position  "  (that  is  shewn  by  the  plotting  I  handed  to 
your  Honors  a  few  moments  ago),  "and  took  LSI 7  seals,  an 
"  avenigu  of  7")A  per  day.' 

'I'liere  is  no  (piestion  whatever  but  that  the  "  I'^avourite  'was 
among  the  seals,  mv  friends  will  admit  it. 

.Mr.  Warren  : — .\Ir.  I'oiiweil,  you  do  not  give  the  reference  to 
that,  and  I  do  not  .-ue  whore  you  get  your  figures.     J  would  like 
to   liavf   you  tfll   mu  now — ln'tweon   the  dates  you   have   men- 
40   tioned.     You  diil  not  cite  the  K"Cord. 

.Mr.  Hodvveli  ; — Tliu  scaling  book  is  in. 

.Mr.  Warren  : — If  you  refer  to  the  sealing  book,  that  is  all  I 
want  to  know. 

Mr.  ISodwell  : — Mr.  iSeiiiuc  worked  that  out,  he  will  be  abio 
to  ti'll  you  how  he  arrived  at  the  figures. 

'J'lie  "  Black  Diamond  "  is  a  case  where  wo  elaim  that  we  did 

not  get  to  good  sealing  ground  at  all  on  account  of  the  warning. 

There  is  no  need  of  referring  to  the  "  iJlaek    Diamond  "   now,  it 

will  take  a  little  time,  and  1  will  pass  on  to  the  "  Anna   Beck," 

50   Record,  pag,^  1041,  line  .')0  :— 

"  (^.  When  you  entered  the  .Sja  in  LSS"  how  long  did  you 
"propose  to  remain.  A.  My  intention  was  to  leave  on  the  lust 
"  of  August,  if  the  weather  was  rough,  and  if  a  few  days  tine  1 
"  ndght  remain  a  little  longer. 

"Q.  When  did  you  begin  sealing  in  ],S87  ?  A.  The  30tli 
"  was  my  first  day  lowering,  and  I  lost  a  canoe. 

"  Q.  Did  you  lower  again  ?  A.  Yes,  sir,  for  half  a  day,  1 
"think." 

That  evidence  discloses  the  fact  that  he  was  among  the  seals 

GO  a  day  ami  a  half  fishing  before  the  vessel  was  taken,  and   when 

we  come  to  di.scuss  the  ipiestion  of  the  seizure  of  that  particular 

schooner  wo  can  refer  your  Honors  to  the  number  of  seals  they 

had. 

With  reference  to  the  "  Grace,"  the  evidence  ia  quoted  in  the 


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(Jlr.  Hodwcll'.s  Ar^uineiit.) 

British  Argument  at  piij^B  120.     It  is  the  report  of  the  seizin;^ 
officer  : — 

"  When  boar  led  she  iiad  twelve  canoes  and  one  boat  out 
"  hunting  seal.  Saw  one  seal  shot  and  taken  into  the  boat  while 
"  we  were  near  her.  ('ounted  twelve  seals  taken  on  board  the 
"schooner  from  one  canoe  and  all  the  canoes  contained  more  or 
, ;)  "  less  seal  recently  killed.  The  captain  reported  taking  i)()  during 
"  the  day  and  150  the  day  previous." 

With  reference  to  the  "  Ada  "  1  tjuote  from  the  British  Argu- 
ment, page  125  : — 

"  The  officer  went  back  to  the  cutter  and  shortly  afterwards 
"  he  returned  to  us  with  seven  or  eight  men  and  starteil  in  to 
"  make  ready  to  take  us  in  tow  and  told  us  we  were  seized.  I 
"  told  him,  and  so  did  the  captain,  that  our  boats  were  out  sealing. 
"  He  stopped  for  a  while  and  told  u.s  to  signal  for  the  boats, 
"  which  wo  did.  We  got  the  canoes  on  board — they  had  'Mi  seals. 
-0  "  It  was  just  8  'iO  a.  m.,  and  they  had  gone  out  about  (J  a.  m." 

That  Hhows  the  kind  of  sealing  the  "  Ada  "  was  in  at  that 
time — 38  seals  in  two  hours. 

As  to  the  "  Juanita  "  we  have  the  exact  statement  from  the 
evidence  of  Captain  Clarke,  Record,  page  1341.  She  was  seized, 
as  the  Record  shows,  on  the  31st  July,  Record,  page  1339,  line 
-|.cS.  On  the  30th  July  she  took  IfiO  seals  ;  on  the  2!)th  she  had 
11)  seals ;  on  the  2Gth,  47  seal.s. 

With  reference  to  the  "  Pathtinder,"  I  read  to  your  Honors 
on  Saturday  from  the  evidence  of  Bissett  who  was  on  the 
,!()  "Theresa"  and  saw  the  "  I'athtinder"  seized.  His  statement 
will  be  found  in  the  Record,  page  775  from  line  10,  and  at  page 
776  he  says  that  on  the  "  Theresa  "  they  got  9V  skins  froiu  4 
o'clock  until  7  in  the  evening.  The  "  Pathtinder  '  was  on  the 
same  ground,  doing  the  same  kind  of  work. 

As  to  "Black  Diamond"  for  1.S89,  the  evidence  of  Owen 
Thomas  shows  that  the  schooner  was  seized  about  12  o'clock  that 
day  and  they  had  taken  (Jo  seals.  All  the  boats  were  out  at  the 
time  of  seizure.  Record,  1707,  line  3. 

With  reference  to  the  seizure  of  the  "  Minnie  "  there  is  the 
40  evidence  of  Magnesen,  page  1438,  line  1,  as  follows  : — 

"  Q.  On  the  previous  day  what  kind  of  weather  had  you 
"  had  !  A.  I  don't  know  whether  it  was  the  day  before  or  two 
"days  before,  we  got  the  biggest  catch  we  had,  74  we  had  in 
"  fact ;  it  was  the  biggest  catch  of  seals  we  made." 

That  was  the  day  on  which  they  were  seized  and  their  arms 
taken  away.  Afterwards  they  hunted  in  another  part  of  the 
Sea. 

Mr.  Warren  : — Do  you  cite  that  as  an  authority  for  the  fact 
that  that  was  the  largest  catch  they  got  ? 
."id         Mr.  Bodwell : — That  is  the  statement  of  the  witness. 

Mr.  Warren  : — It  was  corrected  subsequently. 

Mr.  Bodwell: — I  am  not  citing  it  for  that  purpose,  but  to 
shew  that  there  were  many  seals  and  they  had  taken  a  largo 
number  that  day. 

The  "  Ariel "  was  seized  at  a  time  when  she  was  surrounded 
by  a  large  body  of  seals.  Ther.;  is  a  great  deal  of  evidence  as 
to  that  fact,  but  I  will  read  this  from  Captain  Bucknaui's 
evidence,  which  will  be  sufficient  to  shew  your  Honors  what 
kind  of  a  day  it  was.  Record,  page  1462,  line  43  : 
(iO  "  Q.  Please  give  your  entry  for  July  the  29th.  A.  Kirst 
"  and  middle  part  of  the  day,  fresh  breeze  ;  at  4  p.  m.  more 
"  moderate,  boats  out  and  returned  with  18  seals  for  the  day. 

"  Q.  Please  read  your  report  for  the  30th  July.  A.  Very 
"  tine  and  clear  throughout.     At  6  a.  m.  American  cutter  '  Rush  ' 


I  I  !>•  < 


m 


{  '  ( I 


■  .    i! 


-if 


It  ' 


mm 


^ 


10 


20 


30 


n26 

(Mr.  BoiIwi'II'm  Attjuinuiit.) 

"  camo  alonj^-'iile  ami  sent  oHicors  on  Ixjinl  to  examine  and 
"  search  the  vessel. "     Then,  oniittinjj  some  few  words, — 

"At  !)  a.  m.  all  boats  out  an<l  returned  with  120  skins. 
"  Badly  scared  through  the  day,  us  the  cutter  appeared  at  one 
"  time  t(i  be  returning  to  us,  and  our  boats  had  got  far  away, 
"  contrary  to  their  orders,  when  leaving  tiu'  vessel." 

I  also  read  from  line  (i.S  :  "  The  seals  were  so  plentiful  about 
"the  ship  that  I  told  them  they  should  go  only  a  short  distance." 
This  was  after  the  siuzure,  and  the  boats  went  out  anain,  the 
seals  were  so  plentiful.  "  I  told  them  the}'  should  only  go  n 
"short  distance.  I  told  them  the  cutter's  smoke  was  still  in 
"  sight,  and  as  she  might  return,  they  should  not  go  away  frnm 
"  the  ship.  In  their  eagerness  to  net  skins  they  got  away  too 
"  far,  and  I  could  not  see  the  boats." 

It  is  clear  that  the  '  Ariel  "  was  in  an  e.\ceptionally  good 
ground. 

Other  ve.s.sels  were  seized  or  warned,  but  there  does  not 
appear  to  be  the  same  direct  evidence  as  to  the  actual  facts 
at  the  time  of  seizure  ;  l)ut  the  portions  I  have  read  practically 
cover  the  cases  of  all  the  seized  schooners,  and  these  statements, 
taken  in  connection  with  the  .schetlule  which  my  friend  .Mr. 
Peters  handed  in  to  your  Hcmors  shewing  what  all  the  vessels 
did  within  a  limitid  time,  is  I  submit  sutticieiit  for  your  Honors 
to  find  that,  in  so  fur  as  our  schooners  were  concerned,  they 
had  solved  the  dithculty,  if  any  ever  existed,  of  reaching  the 
sealing  grounds. 

Vai.uk  ok  Vk.sski.s. 


I  will  now  proceed  to  discuss  the  evidence  relating  to  the 
value  of  ves.sels  generally. 

Upon  this  point  there  i.s  a  very  distinct  ground  of  difi'erence 
between  the  counsel  for  Great  Britain  and  the  counsel  for  the 
United  States.  The  position  which  we  have  assumed  is  that 
in  view  of  the  facts  which  are  in  evidence,  .sealing  vessels  at 
the  time  in   (juestion  could  not  be  obtained  in  Victoria  unless 

40  they  were  built;  that  if  they  were  purchased  there  was  practically 
only  one  place  at  which  thej'  could  be  acquireil  was  the  Atlantic 
coast.  We  think  wo  have  established  that  by  direct  evidence  of 
witnesses,  of  undoubted  competency. 

Mr.  Siewerd  swears  positively  to  the  fact  that  in  thosj  years 
he  enipiired  for  the  purpose  of  ascertaining  whether  vessels  of 
the  kind  refpiircd  could  be  purchased,  on  Puget  Sound  or  at  San 
Francisco,  that  he  did  not  tind  any  there,  and  in  conse(|uence 
both  he  and  Mr.  Munsie  went  round  to  the  Atlantic  coast  ami 
bought  vessels.     Our  theory,  therefore,   throughout  the    wholi' 

50  case  has  been  that  your  Honors  should  take  the  cost  of  building 
at  Victoria  in  the  years  in  question  as  a  basis  for  the  calculation. 
Our  whole  case  has  been  put  upon  that  ground.  On  the  other 
hand,  the  United  States  take  the  position  that,  at  San  Francisco 
and  other  places  on  the  Sound,  there  was  a  market  for  sealing 
vessels  which  we  should  have  resorted  to,  and  further  that  we 
can  recover  only  the  price  at  which  it  is  said  schooners  of  a 
similar  kind  could  have  been  purchased  in  those  markets. 

At  a  later  stage  of  my  argument  I  shall  contend  to  your 
Honors  that  the  basis  of  val.je  is  an  altogether  ditlerent  one,  that 

00  we  wi^re  not  anxious  to  sell  our  vessels  to  the  United  States,  but 
that  you  are  asked  to  consider  a  case  where  property  with  which 
we  did  not  wish  to  part,  was  forcibly  taken  from  us,  and  that  the 
rule  of  law  with  reference  to  the  measure  of  damages  in  cases  of 
compulsory  sale  should  prevail,  that  is  to  say,  that  we  should  be 


air 

(Mr.  Boilwell'N  Argument.) 

compensated  on  the  basin  of  the  value  which  tlie  jiroperty  liad  to  us. 
.Such  is  the  rule  adopted  in  ail  cases  of  compulsory  takinfj.anil  th((ro 
is  fjenerally  iidded,  in  ca.ses  of  expropriation,  apercentajje  beyond 
the  value  just  asctrtained,  as  compenHation  to  the  man  lor  bein<j 
iiblij^ed  to  sell  when  he  did  not  wish  to  part  with  his  property. 
Heri'  we  have  ves.sels  which  were  useful  to  us  ;  we  desired  to 

in  keep  and  operate  them.  The  United  States  took  them  from  us, 
aj,'niiist  our  will,  and  we  say  that  no  theory  of  compensation  can 
be  just  which  does  not  make  a  return  for  the  full  amount  of 
money  which  we  had  invested.  Even  if  it  could  have  been 
proved  which  we  say  has  not  been  done  that  there  were  places 
where  vessels  of  the  same  class  couhl  be  purchased  at  a  NUialler 
price,  we  did  not  wish  to  }^o  there  and  buy  them  ;  wu  did  not 
want  those  vessels.     We  desired  to  work  those  we  had. 

The  contention  of  the  United  States       that  we  shoulil  accept 
a  sum  based  on  the  value  that  these  vessels  were  to  the  party 

•20  who  wronj^fully  appropriated  them.  That  is  putlinjj  the  matter 
in  e.xactly  the  opposite  manner  from  which  the  rule  is  stated  in  all 
the  authorities.  It  is  the  value  which  the  thing  has  to  the  person 
from  whom  the  property  is  taken  that  it  is  to  bo  ascertaincrl. 
However,  I  do  not  wish  to  dwell  on  that  now,  as  1  will  have  to 
discuss  it  at  a  later  stage.  1  propose  to  hand  your  Honors  a  few 
authorities;  although  the  ride  of  law  is  so  well  settled  that  it 
seems  almost  unnecessary  to  do  more  than  mention  it. 

On  the  theory  which  they  have  advanced,  the  United  States 
complain  because  we  did  not  introduce  evidence  on  the  sales  of 

;)()  vessels  at  Victoria.  Our  contention  is,  that  there  was  really  no 
market  for  vessels  there.  There  were  sales,  it  is  true — sales 
which  have  been  mentioned  incidentally  in  the  evidence — but 
sales  made  to  persons  who  were  buying  vessels  for  the  purpose 
of  operating  them  in  the  sealing  business,  lud  even  these  sales 
were  made  in  many  instances  before  ISSIJ.  The  vessels  bought 
by  the  persons  mentioned  were  not  for  sale  to  anybody  else  ; 
the  purchasiers  were  in  the  sealing  business  anrl  operated  ivery 
vessel  they  acquired  on  voyages  of  that  character.  They  w  •  .uld 
not  part  with  their  property  at  any  reasonalile  price  ;  and  out  ide 

40  the  vessels  which  were  purchased  by  persons  who  were  actually 
engaged  in  sealing,  there  were  no  vessels  in  the  market  at  Vic- 
toria. It  is  useless  to  talk  about  evidence  of  .sales  at  that  period, 
when  vessels  were  not  there  to  be  bought.  Therefore  the  whole  of 
our  evidence  on  this  question,  or  at  least  the  greater  part  of  it, 
was  tlirected  to  the  cost  of  building,  whicli  we  said,  under  the 
peculiar  circumstances  tlien  ol)taining,  was  the  pi'oper  basis  for 
your  Honors  to  take  as  the  mode  of  calculating  the  value  of  the 
vessels  in  (piestion. 

At,  page  20(>  of  the  United  States  Argiimotit,  in  pursuance  of 

."id  their  idea,  and  as  an  attempt  to  shew  that  w,;  miglit  have  proved 
the  sale  of  certain  vessels  at  Victoria,  they  mention  two  vessels, 
which  they  siy  were  sold  in  188")  and  18SG,  although  the  price 
is  not  given  in  evidence —the  '^Alfred  A  lams  "  and  the  "  Black 
Diamond."  The  date  of  purchase  of  the  "  Black  Diainoml  "  was 
we  say  in  1887,  but  however  that  may  be  the  vessels  were  bought 
by  Gutman  and  were  put  by  him  into  the  sealing  business.  They 
were  not  for  sale  to  Captain  Warren  or  Mr.  Munsie  after  the 
"  Carolena  "  and  his  other  vessels  were  seiz'id  ;  in  fact  the  "  Black 
Diamond  "  and  "Alfred  Adams"  were  both  seized. 

(10  In  1880  they  refer  to  the  sale  of  the  "  Active."  The  "  Ac- 
tive "  was  also  b  )uglit  by  Gutman  and  was  put  into  the  sealing 
Imsiness.  She  was  lost  subseipiently.  They  tiien  refer  to  the 
sale  of  the  "  Favourite  "  and  the  "  Kate  "  ;  but  those  sales,  I 
submit  your  Honors,  cannot  be  taken  as  evidence  of   the   value. 


■ 

■■ 

!l.                              >•.;.  i-|'»ir. 

I=m. 


JliflBi'! 


328 
(Mr.  Bodwoll's  ArKuimnt.) 


20 


•M 


40 


50 


60 


A.     I  do  not  reinein- 


Yes. 
A.     I 


chink  so,  but  I 
Was  it  $3,000  ' 


It  wfts  simply  a  tmnsfor  «f  propurty  on  tlm  cessation  of  the 
partnership  l)etween  Spring'  and  Alexander  McLean.  Tli>' 
Hciiooni-rs  constituted  only  a  part  of  the  partnership  assets,  and 
(/aptain  McLean's  interest  was  transferred  to  ('Imries  Sprin;; 
Unless  you  liave  evidence  of  all  tlie  circuinHtancos  of  that 
10  partnership,  the  state  of  the  accounts,  and  all  the  considerations 
whieli  would  affect  the  minds  of  the  partners  in  valuing;  the 
property,  you  cannot  lind,  from  the  fact  of  that  jjarticular  salt', 
any  liasis  for  a  computation  of  value.  It  is  a  case  of  a  particular 
Hale  carried  out  under  peculiar  circumstances.  It  is  conimoii 
experience  that  in  the  .settlement  of  partnership  accounts  there 
is  necessarily  a  !ar<;o  amount  of  jfive  and  take,  ami  property  is 
seldom  transferred  at  the  market  value,  except  where  there  is  a 
winding  up  hy  the  C'ourt.  The  evidence  upon  tliis  point  is  very 
meagre  in  any  event.  It  is  that  of  Mr.  Charles  Spring,  Record, 
page  H<)2,  line  40  : 

"  Q.  At  the  time  of  your  dissolution,  when  it  was  arranged 
"  that  Capt.  McLean  was  to  he  paid  !:fl,100  and  odd,  in  accord- 
"  anco  with  the  dissolution  agreement,  did  you  put  a  value  on 
"  tlie  '  Favourite  '  i 

"  A.     There  must  have  heen. 

"  Q.     Do  you  remember  what  it  was  > 
"  ber  it  oH-hand. 

"  Q.     Is  there  anything  to  shew  f     A 

"  Q.     Where  is  it,  is  it  in  the  book  f' 
"  am  not  able  to  locate  it  precisely  just  now. 

"  i).    I  will  try  and  refresh  your  iiKMnory 
"  A.     I  think  it  was,  but  I  am  not  sure  f 

"  Q.  And  81,«00  for  the  '  Kate,"  is  that  right  ■'  A.  I  think 
"  it  is  about  right. 

"  Q.  What  is  the  valuation  put  upon  them  at  the  time  uf 
"  the  tlissolution  when  you  bought  McLean  out  ?  A.  That  is 
"  the  valuation  put  in  at  that  time  and  brought  about  under  cer- 
"  tain  conditions.     It  was  a  settlement  of  partnership  account." 

The  (JomuMssioner  on  the  part  of  the  United  States:-  \Vha( 
was  that  date  ? 

Mr.  Hodwell : — That  is  1N8().  The  dissolution  of  partnership 
is  in  evidence. 

The  Commissioner  on  the  part  of  the  United  States  : — Did  he 
ever  .stat((  in  his  evidence  what  those  conditions  were  > 

Mr.  l5odwell  : — No,  tliat  is  not  followed  up. 

Mr.  Dickinson: — They  are  all  in  writing  and  all  in  evidence. 

Mr.  Bodwell : — We  will  see. 

Mr.  Peters : — I  think  it  was  read  into  the  notes. 

Mr  Warren  : — It  is  appendix  li,  page  52,  that  is,  it  is  referred 
to  there  ;  it  is  not  printed  in  full. 

Sir  (".  H.  Tupper  : — What  is  the  nund)er  of  the  exhibit  ' 

.Mr.  Warren  : — 34,  Claim  3. 

Mr.  Bodwell  : — This  was  October,  1880,  after  the  "  Favourite  " 
had  been   warned. 

Mr.  Dickinson  :— Does  the  warning  make  any  difference  as 
to  the  value  of  the  vessel  ? 

Mr.  Bodwell : — It  probably  would  in  this  case. 

The  "  Mary  Ellen"  is  next  referred  to,  but  we  have  evidence 
that  the  "  Mary  Ellen  "  was  in  bad  condition,  Record,  page  182, 
line  10.     McLean  himself,  Record,  page  409,  line  10,  says: 

"  Q.  And  what  was  her  age  about  ?  A.  I  believe  between 
"18  and  20  years,  I  could  not  say  exactly,  I  think  less  than  20. 

"  Q.     She  was  built  of  Oregon  pine  ?     A.     Yes,  sir. 

"  (^  And  when  sho  was  sold,  did  they  inchule  her  sails  ?  A. 
'■  Yes,  sir. 


329 


(Mr.  llodweM's   Ar;;muent.) 


Good  comlition  in  every  way  f 
incliiilu  her  buatH  ( 


A. 


A. 


Piotty  fair  cdihU- 
Moats  mill   wliolu 


"Q. 
"  tion. 

"</     Dill    that 
"Ht!aiii)}{  (ititlit. 

"  <^.     It  includi'd  iiur  in  suaworthy  condition,  aiul  her  Hualin^' 
"  outfit  ?     A.     Of  course  slio  w(<nld  not  hu  in  ii  soa-wnrthy  con- 
I'l   ■'  dition  if  nIio  had  had  to  j;o  on  the  dock  to  he  ovorl)(iiil('(l," 

Tlie  OomniiHsioner  on  tiie  part  of  tlie  United  States  :— When 
war*  that  saU',  Mr.  Hodwell  ? 

.Mr.  Hodwell :— That  was  a  Hule  in  IH8(J  at  !?4,500. 

The  ('oinnMHsioner  on  tlie  part  of  the  United  States  : — What 
portion  of  the  year  was  it  ? 

Mr.  Lansing: — It  must  have  heen  in  the  Autumn,  I  suppose, 
on  her  return  froui  the  voyage. 

Mr.  Dickinson : — Ahout  the  same  time  the  "Carolena"  was 
in  such  ])iiMie  condition. 
:>()         Mr.  Bodwell : — The  "C'arolena"  was  u  yood  hoat   and   the 
"  Mary  Ellen  "  was  an  <ild  tub,  that  is  the  ditterence. 

Mr.  Lansing: — The  "  Carolena"  was  older. 

Mr.  Hodwell : — She  was  in  good  condition,  had  heen  practic- 
ally rebuilt  two  years  before. 

The  "  Mary  Taylor  "  it  was  said  was  sold  at  Victoria  in  that 
year  also ;  hut  it  is  not  very  clear  whether  she  was  sold  then  or 
had  been  bought  by  Warren  before.  The  evidence  on  that  is  at 
page  llSCi,  as  follows: 

"  Q.     After  the  .seizure  of  the  '  Thornton  '  did  you  not  provide 
;;()  "  a  vessel  to  take  her  place  in  the  Heet  ?     A.     Yes. 

"V-     What  was  the  one  !'     A.     The  "  Mary  Taylor." 

We  do  not  know  what  the  price  was  then,  but  we  know  she 
was  afterwards  Vujught  by  Munsie  after  Warren  got  into  ilitti- 
eulty  and  had  to  .sell  his  pro|)erty  at  a  sacrifice. 

There  is  the  evidence  of  O'Leary  at  page  291,  line  20 : 

"(}.  What  kind  of  a  .schooner  was  the  'Mary  Taylor:'' 
"  A.     She  was  a  .schooner  of  about  50  tons  probably." 

O'Leary  was  testifiying  as  to  the  condition  of  the  "  Mary 
Taylor  "  when  Munsie  bought  her. 
40  "  (^.     Did  you  examine  lier  for  any  purpose  ?     A.     Yes,  Mr. 

"  Munsie  had  a  notion  of  buying  her  and  he  asked  mo  to  go  on 
'  her  and  have  a  look  at  her. 

"  (j).     In  what  condition  did  you  find  her  ?      A.     In  pietty 
"  poor  condition. 

"  Q.  In  what  respect  !  A.  Her  decks  were  bad  and  her 
'  bulwarks  were  broken  off,  her  rigging  was  bad." 

That  was  her  condition.  She  was  bought  by  Munsie  in 
ISiiO,  who  testified  as  follows,  page  105  : 

"(}.     Did  you  buy  the   'Mary  Taylor'  in  1890  ?      A.     Yes, 
."()  "  she  was  an  old  vessel,  50  tons,  and  she  cosit  about  84,000.     We 
'  bought  her  at  a  private  sale. 

"  <},  Who  did  you  buy  her  from  ?  A.  We  bought  her 
'  from  Mr.  Warren. 

"  Q.  Warren,  I  believe,  had  to  sell  her  at  that  time  ?  A.  I 
"  understand  .so. 

"  Q.  Did  you  think  you  had  a  goo<l  bargain  on  that  ship  ? 
"  A.  Slie  was  an  old  vessel  and  I  gave  perhaps  all  slie  was 
"  worth." 

But  the  fact  is  that  Warren  was  very  hard  pressed  and  had 
lii)  t(j  .sell  on  account  oi!  the  difficulties  he  had  gotten  into  in  the 
sealing  business,  \iunsie  bought  her,  and  I  should  think  from 
what  we  know  of  Mr.  Munsie  that  he  probably  did  not  give  any 
more  than  she  was  actually  worth.  He  is  a  very  shrewd  busi- 
ness man  whatever  else  our  friends  may  say  of  him. 


1 

^^w§ 

i 

■'M 


U  I 


'? 


4 

i 


.    ""•    ^  "".^J^""" 


•es;i, 

pajr, 

-Kil. 

Fenel 

ope  '. 

'      A. 

(    A. 

No 

sir. 

:)30 

(Mr.  Bodwell's  Art'iiincnt.) 

Tliu  "  Juanita  "  is  siiid  tu  Imve  been  sold  on  evidence  fjiven 
by  Ciipt.  McLean  412,  line  28.  Mr.  ])icl<inson  at  that  point  is 
asking  liitn  a  number  of  ([Uestions,  giviiiij  nanie.s  of  vessels  from 
tiini'  to  time,  and  he  testifies  as  vollows  : 

"  i).     The  '  Juanita  ? '     A.     She  was  sold. 

"  Q.     1^0  you  remember  the  rate  ?     A.     No  sir." 
10         I  do  not  tliink  it  is  clear  that  she  was  sold  in  that  year  at 
all,  and  in  the  evidence  given  about  that  ship  I  do  not  r(>member 
any  statement  made  as  to  when  she  was  bought. 

Mr.  Lansing: — We  have  the  register,  have  we  not,  of  thi' 
"  .hianita." 

Jlr.  I'xtdvvell  : — If  that  is  in,  it  will  show.  I  will  finil  out 
(luring  the  adjournment.  The  "  Theresa  "  was  bought  by  Capt. 
Troup  for  tlie  purpose  of  .sealing  and  was  not  in  the  market  at 
all.  We  have  the  record  in  Mr.  Lubbe's  evidence,  and  other 
places,  of  her  sealing  in  those  years.  Slie  was  not  for  sale. 
20  Capt.  McLean  says,   speaking  of  the   "'  Thei 

line  S.)  : 

"  Q.     Do   you  know  anything  aliout  the    ' 
■'  Yes,  I  have  beeji  aboard  the  ship. 

"  Q.      Do  ^        know  anything  about  her  sale 

"  Q.     <.)r  tiie  '  Theresa  i '     A.     No  sir  " 

At  page  413  ('apt.  McLean  says  ; 

"Q.     The 'Theresa'     A.     Sold  in  Victona. 

With  referencr  to  the  '  Wanderer'  the  Fnited  States  Argu- 
ment .saj's  "  she  was  .sold  at  Victoria  by  John  Sabistoii,  (jne  of 
30  "  the  witnesses  swoi'n  on  behalf  of  (Jreiit  IJritain  in  reganl  to 
"  the  value  of  the  vessels.  'i"he  fact  of  this  .sale  was  elicited 
"  from  him  under  cross  examination,  but  on  his  re-direct  e.xani- 
"  ination  witnes,s  was  not  asked  to  this,  but  what  it  C(,..t  him  to 
"  builil  the  vessel." 

Hut  the  evidence  of  the  sale  comes  from  the  witness  in  cross 
examination,  not  in  the  course  of  his  direct  testimony. 

He  testiKes  as  follows.  Record  l)age  211,  line  12  : 

"Q.      Did   you   ever   sell   a  vessel    between   IS(K)  and  l.SDO  ^ 
•■  A.     Yes. 
40         "  <i>.      What  one  was  that  !     A.     The  '  Wanderer.'  " 

"Q.      When?     A.      188()." 

If  my  f  I  lend  wanted  the  price,  why  did  he  not  nsk  for  it  ! 
In  the  re-direct  examination  I  asked  the  witness  what  it  cost  to 
l)uild  the  \essel  and  he  said  S.S.OOO  at  San  Juan  Island.  Thi' 
evidence  does  n(jt  at  tliis  page  diseio.se  the  time  when  the 
"Wanderer"  was  built,  but  there  is  another  bit  of  evidence 
about  this  schooner  "  Wanderer  "  to  which  I  wish  to  draw  j-oui' 
Hotiors'  attention,  and  that  is,  that  vessels  were  in  such  dem.'ind 
that  there  was  ready  sale  for  this  little  Ifj  ton  vessel,  not  tit  to 
")0   go  to  lichriiig  Sea  at  ad. 

The  fnllo\iing  is  in  the  re-direct  examination  : 

'■  (^.  Dill  you  have  any  application  made  to  you  with  rcfer- 
"  ence  to  the  demand  for  sealing  vessels  in  188(5  ?  A.  Well,  I 
"  was  asked  about  1113'  own  schooner. 

"  (j>.  Do  y(Mi  know  the  circumstances  which  UmI  to  your 
"  being  ask('(l  about  your  own  .schooner  ^  A.  Well,  a  man 
"  wanted  a  schooniT  tu  go  trading  to  the  west  coast  of  Vancouver 
"  Island. 

'().  Trading  for  w  hat  '  A.  Fur  seals 
(10  "  (^.  Do  j'ou  know  any  of  the  surrounding  circumstances, 
"  anything  that  oecurrefl  at  that  time'  A.  V\  ell,  tin-  Indians 
"  weie  eatehnig  (piite  a  nur..ber  of  seals  on  the  west  coast, 
"They  tlionght  it  would  lir  ;i  good  business  in  trading  l'<jr 
"  them. 


3:n 


(Mr.  Bodwell's  Argument.) 

"  Q.  And  in  consequence  of  tlifit  lie  came  t<>  you  ulxiut 
"  }-our  own  seliooner  ?     A.     Yes." 

And  tlien  I  asked  liim  what  was  Uie  size  of  tiie  vessel  and 
lier    co.st    to    build,  which    shews    thi    demand  for   vessoK  and 
scarcity*  of  supplj'.     I  refer  j'oiir  Honors  also  to  what  he  sa^-s  at 
|(,  jiii<;e  211,  line  53  : 

"  Q.  Vou  said  you  paid  for  the  huildinj;  of  another  vessel  ? 
■'  A.     Ve.'<. 

•'  Q.     When  was  that  f     A      That  was  in  1X93  or  1894. 

"  Q.     Whe're  was  she  built  ?     A.     In  Victoria. 

"  Q.     What  was  her  size  :'     A.     Kleven  tons. 

"  Q.     What  did  she  cost  ?     A.     as,.5()0." 

Mr.  Lansincr : — Just  hefoi-e  this  yon  will  s.e  when  the 
•  Wanderer"  was  built. 

Mr.  l'cters.-18"2. 
.)^)  Mr.   Bodwell  : — Yes,   a:,-   friend    Sir    Charles   Tupper  hands 

me  the  rejfister  of  the  ship,  from  which  1  read  that  she  was 
l.uilt  June,  1872,  at  San  Juan,  H.  C.  Smith-Burr  builder. 

Refei'rint^  to  the  "  W.  l".  Sayward,"  United  States  Arjjument, 
)iaiTe  2H8,  it  is  said  "she  was  one-half  sold  about  the  time  slu- 
"  was  launched.  Neither  parties  to  the  sale,  who  were  witnesses 
'•  before  the  Commission,  were  (piestioned  as  to  the  incidents 
'  connecteil  with  it,  and  the  only  source  of  information  as  to  the 
•'  consideration  which  passed  is  Alexander  McLean,  who  states 
'•  that  the  one-half  was  transferred  for  8;?, 000." 
;j()  My  friend    has   for;;otten   .something;   there,   beeause,  in   tiu> 

ilcposition  of  Andrew  Lain<;,  which  is  in  the  Kecord,  pa<;o  110+. 
line  ."iO,  we  have  a  reference  to  the  circumstances  in  these 
words  : 

"  Q.  What  did  your  half  of  the  '  Sa^'ward  '  cost  you  at  the 
'  time  she  was  launched  in  I8S1  ?  A.  1  think  she  cost  sonie- 
'  where  about  87,000  before  we  went  out  in  1882. 

"  Q.    That  included  her  outfit  ?'    A     No,  sir:  she  was  built  by 
"  the  day,  the  dearest  way  of  buildinff  a  vessel,  but  we  have  not 
"  ;,'i)t  a  vessel  as  good  fiom  the  East  to-day  as  slie  was. 
^((         "  (^).     How  nuich  did  Mr.  Warren  pav  you  ?     A.     One-half.'" 

'i'he  Connnissiuner  on  the  part  of  the  Ignited  States  : — .\n  idea 
h.is  occurred  to  mr  wiiieh  [  think  you  should  have  an  opportu- 
nity to  meet.  If  I  recollect  tin'  rule  correctly,  wherever  the  net 
\;.ii!  ■  of  freights  is  allowed  and  aNo  the  value  of  the  vessel,  the 
viiluc  of  the  vessel  is  as  she  would  ])i-obably  stand  at  the  time 
i)f  her  arrival.  Now,  if  that  ap])lii's  to  this  case,  it  would  seem 
liiat  the  value  should  be  takt^n  on  their  arrival  from  sealing 
voyages  in  the  condition  they  then  were.  3\Iy  recollection  of 
I  lie  rule  may  not  be  correct,  and  I  do  not  say  it  a|iplies  to  this 
;,(i  lase.  ^'ou  can  easily  iletermiiu!  this  by  refiiring  to  any  work 
on  collisions. 

At  one  o'clock  the  Connnissioners  took  recess. 


('if 

15? 


At  half  past  two  o'clock  the  Commissioners  rcsumeil  their 
-cats, 

Mr.  Bodwell: — With  reference  t)  the  matti'r  which  your 
honor  mentioned  just  before  thr  iKijourinMent  I  have  consulteil 
witii  my  associates  and  we  think  your  Honoris  right  with  refer- 
ence to  the  time  at  which  the  value  should  he  ascertaineil.  It  is 
jierfectly  clear  that  a  vessel  on  her  \dy;ige  woulil  sutler  some 
iiO  wear  ami  tear  and  would  lie  worth  less  on  her  return  tiiaii  when 
she  left.  And  it  seems  to  me  that  this  is  pr.tctieally  tiie  result 
"f  evidence  which  has  beeti  given  as  to  depreciation  :  that  is  to 
siiy  that  it  would  cost  a  certain  sum  to  keep  the  vessels  in  rep.air 
and  that  when  these  repairs  were  done  the  only  other  snliject 


Km 
'M 

m 


iii 


m 


•ii  ill 


Iii,; 


j|:|'>- 


332 

(Mr.  liothvell's  Arj^uuiunt.) 

for  consitleration  would  be  tlmt  wliich  may  lie  styled  the  expuo- 
tation  of  life  of  the  vessel  ;  rJmt  is  to  say,  haviii;.''  reifard  to  tiu' 
nuiiilier  of  years  for  which  she  was  built,  how  inucli  Ioniser  can 
she  bo  expected  to  last.  Tlie  evidence  on  oui'  part  is  that  all  our 
schooners  were  maintained  in  ijood  repair  from  year  to  year. 
10  We  expect  that  your  IToiuirs  will  make  an  allowance  for  the 
depreciation  that  would  occur  upon  the  particular  voyaije  on 
nhich  she  was  en<j!ijj;ed  when  .seized. 

The  Commissioner  on  the  part  of  the  Uniti;<l  States: — It  is 
possible  that  in  the  ary;uments  the  rule  in  such  cases  has  l)een 
cited,  if  not,  will  you  kindly  mention  the  rule.  I  rei'ei' ijenerally 
to  -Maisden  on  ('oUisicm  for  the  rule. 

]\Ir.  lioihvell  : — I  will  try  to  jfet  the  authority  on  the  snlijei-t 
for  your  Honor. 

Just  before  that  di<;ression  to(>k  place  1  was  speakin<j  of  the 

20  "  Say  ward."      It  api>ears  that  Lainj^  and   Warren   were  partners 

in  the  "  Sayward  "  in  this  yoar  and   that  Luin;,^  allowed   Warren 

for  one-half  of  th(?  cost  of  the  vessel ;  that  was  in  the  year  ]HH2. 

At  pa;;e  2(iM  of  the  United  States  Ari^ument,  a  reference  is 
made  to  tlie  sale  of  the  "  Favorite,"  that  is  to  say,  a  partial  salr 
of  the  "  Favorite."  It  is  said  that  Alexander  McLean  jmrchased 
sixteen  shares  in  the  vessel  for  Sl,;};{7.")(),  and  a  rt>mark  upon 
that  is  made  that  he  paid  more  on  account  of  buyinif  a  mastei's 
interest.  That  remark  is  based  upon  a  statement  of  Thornley 
with  reference  t(j  .sah.'s  in  San  Francisco.  There  is  no  evidence 
,'50  that  it  was  the  usual  custom  in  ISritish  Columbia.  I  lio  not 
tiiink  it  has  any  reference  at  all  to  McLean's  jiurchasi'  At  any 
rate  that  sale  was  in  l!S.s;{,  when  tlu^  sealini;  business  w;;..  r;ot  in 
the  condition  that  it  was  in  later  years,  and  the  vessi  i  \iii»  used 
in  comiection  with  the  tradinj^-  which  Spriii^^i^'  Company  iiad  on 
the  west  coast  of  the  Island,  It  could  scai'cely  b((  taken  .as  the 
basis  of  the  v.ilue  of  a  sealinij  schooner  in  1S80  and  l.SS". 

On  the  next  pajje  they  refer  to  the  sale  ol'  the  "  Kate'  and 
the  "  Onward,"  and  this,  as  your  Honors  will  .see  by  referring;  to 
the  evidence  of  Sprinu;,  at  i)a<^e  SSS),  was  a  family  athiir.  Tln' 
40  late  Captain  Sprinj,',  who  died,  had  a  number  of  heirs,  and  fir 
the  purpose  of  settlinj;  up  the  estate,  Charles  Sprin;^  took  over 
the  vessels  and  tradinj^  stations,  for  a  ci'rtain  sum  ;  hut  this  can 
scarcely  be  taken  as  a  criterion  of  the  value  of  vessels. 

-Mr.  Warren  : — Theodore  Lubbe  was  one  of  the  partners  ' 

Mr.  Hodwell  : — Was  one  of  the  executors  of  the  estate. 

Mr.  Lansinj,' : — Mr.  Charles  ,Sprin<f  had  an  interest  in  the 
\essf!. 

Mr.  liodwell  : — I  thiid\  you  are  wron^f  as  to  the  time  in  (|Ues- 
tion.  Theodore  Lubbe  was  wiii<linj(  up  the  estate.  The  I'efereiice 
50   l)ei;ins  at  paj^e  H>ili,  line  (JO  : 

"(^).  William  Sprin<r  &  Co.,  at  tht;  time  of  j'our  father's 
"  death,  did  they  carry  on  business  at  these  dill'erent  trading; 
"  stations  on  the  w.'st  c(jast  '     A.     They  diil. 

"if.     Were  they  also  interested  in  schooners  '     A.      ^  es. 

"Q.  Did  they  also  carry  on  a  j^eneral  business  f  A.  A 
"  tradint;  and  sealing'  business. 

"  (J.  At  that  tiuie  tliere  was  very  little  catching;  of  seals,  it 
"  was  mostly  buyinj^  '     A.     Buying  and  catchin<;  both. 

"  Q.  When  your  I'.ither  died,  was  there  a  (livision  made  as 
(iO  "  lietween  tin'  family,  showing  what  share  \'ou  shouM  get  ^  A. 
"  Ves. 

"().  Was  it  nuide  in  kind  or  in  cash  '  I  mean,  by  giNing 
"  you  certain  property  Ol'  by  giving  you  cash  ;'  A.  It  was  in 
"  properties. 


•  (Mr.  Hodwell's  Ari;iiiiit;tit.) 

"  (i).  You  took  over  certain  proptirtics  as  part  of  your  .sliaru 
'■  in  your  fathor'n  estate  ?     A.     Yes. 

'•  Q.     Did  tiie  otlier  lieirs  do  tlie  same  '.     A.      No. 

"  Q.     Ainoni;st  otliers,  you  f^ot  your  [atlier's  interest   in  cer- 
"  tain  properties.     Did  you   i^et   any   interest   in  tliese   tradinj; 
"stations  '.      A.     Ye.s,  I  took  tlioni  over. 
\  I         "  (^.     Where  were  they  '     A.     Fcidft,  Hes(|uoit  and  t'layo- 

"  (|UOt. 

"  (^.  Yon  took  ovei-  your  father's  interest  in  the.-.e  trading; 
■•  posts  '.      A.      Yes. 

"  <j).      And  also  in  certain  \essels  /     Ye>i. 

'■  {}.      What  vessels  ;'     A.     The  'O'lw.ird  '  and  the  '  Kate.' 

"  ().  Were  the  traflinj^  posts  more  or  less  speculative  sort  of 
"  thinjrs  :•     A.     Yes. 

"  (j).     And  you  took   them  over  at  a  certain  valuation  f      \. 
"  Ves. 
■2{)  '().     An<l  you   took   the  schooners  over  at  a  certain   valu- 

"  atioii.     A.     ^'es. 

■'(.).  Was  the  ol<l  tirni  of  William  S[)rinj^  it  Company  tiieu 
"  woi'iid  up  C(jnipletely  '.      A.      Not  coni|)letely  at  that  lime. 

■'  (^).      Did  it  cease  to  he  a  <;oin^  concei-n  ?     A.      It  did. 

"  Q.  And  it  was  left  to  he  finally  wound  up  by  whom  '  A. 
"  Mr.  Theodore  Lubbe. 

"  Q.     This  was  only  a  partial  windinj;  up  of  it  ?     A.     Yes, 

"  Q.     The  rest  of   the  business  was  left  in   Jjubbe's  hands  to 
"  wind  up  ?     A.     Yes. 
;;()  "  Q.     And   1    j)resume   in   the  course  of   time  he  did  wind  it 

"  u))  ?     A.      Yes. 

"  Q.  And  under  that  arrani;;enient  you  took  over  these  pro- 
"  perties  ?     A.     Yc>. 

"  (.).  And  at  the  same  time  did  you  i;o  into  i)artiieiship 
'•  with.  .Mel^ean  ^     A.     1  did. " 

Mr.  Warren  : — I  call  attention  to  pai^e  SSO,  line  (i:{. 

Mr.  Warren  reads  : 

"  Q.     Who  was  in  partnership  with  your  father  at   the  time 
'■  of  his  death  '      Mr.  Theoclore  Lubbi'  and  who  ■  Ise  ?     A.     Peter 
[O  "  Fi'ancis. 

■' <J(.     And     lliat     partiiersliip    owned     the    '  Jnwai'il  '  ;■      .\. 

Mr.  Warren  : — Now  read  at  paj^e  NHl,  line  I  : 

"  <L>.  So  that  when  this  sale  was  made  to  yourself,  or  to  ;,lie 
"  partnershiji  of  ('.  Spring'  \'  ("oiiipany,  composed  of  Alexander 
•'  .McLean,  I'eter  {''rancis  and  yourself,  Mr.  Theodore  Lubiie  con- 
•'  seiited  to  a  sale  of  the  '  ( )nw"ard  '  at  S2,20()  ?     A.      Yes. ' 

Ml-.  Hodwell  :    -No,  you  are  mistaken  ;  that  was  the  partner- 

shi[)  formed    after  Sprini;'    bouji;ht  the    vessel.      He   went    into 

.'0   partnership  with  McLean  and  I'eter  Francis,  and  Lubbe  was  the 

party  who  really  was  the  vemior  of  the  ve.s.sel,  that  was  in  his 

capacity  as  e.\ecutor. 

.Mr.  Lansin;;':  —  Who  was  tin;  "Company"  of  William  Spriuij 
,i!id  Company  ' 

Mr.  J)(jdwell  : — It  is  true  that  i^ulibe  had  an  interest  in  that 
|iartnership — he  was  survivinj;  |)artner,  but  it  was  really  a 
tiimily  affair. 

MV.  Warren:— Here  it  is,  paj,'e  MSI,  line  4>S  ; 

"  (^.  Theodore  Lubbe  only  received  his  interest  at  ?2,200, 
(iO  "did  lie?  .\.  N'es,  he  was  satisfied  to  let  it  ;;o  throu^di  my 
"connections;  only  in  th.it  way. 

"  Q.  What  was  his  interest  in  the  paitners'.iip  of  William 
'  Sprinjf  anil  Company  i*  A,  Une-third.  This  he  did  not  con- 
'■  sider  a  very  serious  point  with  him. " 


!     ■'  il 


.i|;C- 
'i  : 


■III 


■  V,.' 


'   i: 


■^ 


<"'""r^ 


'WJiJU^IUllUM  ukiM9K4#  ■ 


m;  ': 


(Mr.  Bodwell's  Arfrument.) 

Mr.  Hodwell :— Well,  cvon  in  that  I'viilence  he  says  that  ho 
(lid  not  consider  it  a  very  serious  point  with  him — tliat  is  tlie 
(|iu'stinn  of  tlie  full  vahie  of  the  vessel :  and  in  any  event  tlii^ 
was  in  18S4.  two  years  before  the  soilincj  business  began  to  lie 
of  importance,  and  the.  only  use  for  vessels  was  in  connection 
with  tradin<j  on  the  west  coast  of  Vancouver  Island,  at  a  time 
10  when  se(\Iin<j  was  in  a  depressed  condition,  as  .«hown  by  the 
evidence.  !5esides  all  that,  I  also  maintain,  that  the  evidence 
when  read  all  toi;ethor,  shows  that  it  was  th(^  intention  of  that 
whole  arrangement  to  sell  Charles  Spring  tlu;  whole  estate  at  a 
low  \iilnation,  because  he  was  taking  the  risk  of  the  specula- 
tion in  order  to  work  it  out  for  the  benefit  of  those  interested  in 
the  William  Spring  est  ite.  I  do  not  say  that  the  evidence  (}f 
that  transfer  has  no  weight,  but  it  cannot  be  taken  as  a  fair  criter- 
ion for  value  during  the  next  two  years,  when  the  condition  of  af- 
fairs had  altogether  changed  and  especially  as  to  sales  v-liere  the 
20  vendor  was  endeavoring  to  g.t  all  he  could  out  of  th>-  property. 
'I'lie  case  of  the  "  Mountain  Chief"  is  of  no  weight,  because  that 
was  a  little  vessel,  was  iaiilt  bv  the  Indians  ;  it  was  not  a  vessel  of 
the  same  class  at  all  :  heic  is  .lacobscm's  evidence,  at  page  27!S, 
lino  .So  : 

"  Q.  Let  me  ask  you  in  the  first  phice  who  built  the  '  Moun- 
"  tain  Chief':'  A.  Some  Indians  up  north  on  the  A'aus 
"  rivei',  somewlu'ie. 

"<,).      Who  did  they  build  her  for'     A.      Well,  themselves,  1 
"  snppo.se. 
.'50         "  Q.     Was  there  any  white  men  employed  about  the  bnild:ng 
'•  of  the  ship  >     A.     1  think  there  was  one  who  kept,  a  store  for 
'•  the  Iniiians  together  with  them. 

"  (^.  Were  there  any  skill(Ml  workmen  employed  on  her  '  A. 
"  No. 

The  price  at  which  that  vessel  was  sold  cannot  have  any 
ett'ect  upon  your  Honor's  mind. 

Then  in  1S89  the  sale  of  the  'Triumph'  by  E.  C.  Baker  is 
referred  to  ;  but  when  Baker's  evidence  is  read  you  find  what  that 
vessel  cost  Baker  delivered  at  Victoria  in  18H8  in  exact  figures. 
40  The  whole  account  is  in  the  record  at  pages  14'2S,  1425  and  1427. 
The  sale  of  that  \essel  which  is  referred  toby  the  United  States 
is  one  month  after  rb.e  had  l)een  seized.  It  can  scarcely  be  taken 
as  a  criterion  of  the  value,  because  in  that  case  the  United  Stutes 
wo\ild  lie  gaining  b}'  their  own  wrongful  act.  For  if  the  pric<' 
obtained  after  they  had  .seizoil  that  vi'ssel,  ami  destroyel  its  valur 
the  purpose  for  which  she  had  biren  originally  brought  to  Victoria, 
is  taken  as  the  true  basis  for  value,  then  the  Ignited  States  will 
gain  an  advantage  bv  their  own  wrong  and  pay  according  to 
tiie  state  ol  thing-:  which  tliej'  had  created  by  their  illegal  act. 
5(1  At  the  bott(jm  of  page  2()!),  in  the  Argument  of  the   United 

States,  we  have  tiiis  statement : — 

"  In  the  j'ear  ISSI),  there  appears  to  liav(;  been  vessels  actually 
"engaged  ill  scaling,  from  the  port  of  Victoria.'  Of  this  number, 
"  12  had  their  poi'ts  of  origin  on  the  Facitic  t 'oast  of  the  United 
"  States,  1  on  thr  Atlantic  Coast  of  the  United  States,  1  in  Nova 
'Seotiaaud  S  in  liritish  Coluinlna  ;  of  which  latter  number  but 
"  H  were  built  at  Vict(jria,  and  these  in  the  years  18HI  and  1882. 
"  It  is  apparent  that  the  chief  source  of  supply  for  the  Victoria 
"  sealing  fleet  in  I8S6  were  the  shipyards  on  the  l'a':;itic  Coast  of 
(JO  'the  I'nit.-d  States,  and  it  is  a  matter  of  conunon  knowledge  that 
"  Sin  I'  rancisco  was  the  pi'inci|)al  market  for  vessels  on  that  coast. 
"  I'nder  these  circumstani'es  the  market  value  of  sealing  craft  in 
"  188(1  and  iSST.atthe  latter  i)oit,  with  the  ciistoiii  duties  on,  and 
"cost  of  delivery  at  \'ietoi'ia  of  vessels  of  that  class,  is  material  in 


335 


ID 


I'll 


:!() 


-U) 


(Mr.  Boclvvell's  Arfjunient.) 

"  (Ifterinining  tlio  pricf  obtainiiiij  at  Victoria  durinr;  the  period 
"  wlien  tlie  seizv.rnH  were  made  in  the  Hehrini;  Sea." 

Such  a  conclusion  cannot  ho  based  upon  evidence  wlticii  i.s 
thore  referred  to,  beoause  when  carefully  examined  it  shews  a 
\ery  ditferent  state  of  thin<;s.  In  the  first  place,  instead  of 
I  here  beinj;  22  vessels  mentioned  in  the  exhibit,  there  are  41 
\  essels. 

Mr.  Warren  : — All  cleared  for  sealinj;  :■ 

!\Ir.  Bodwell  :— There  are  a  n'linber  of  vessels  mentioned 
there  Appendix  K,  Jiaj^e  :^7.     The    headini;  of   that  .schedule  \:. 

•  Vessels  at  the   I'ort  of  Victoria  available  for  Sealinj;  in  188tJ 

•  i»nd  18H7."  My  friends  have  only  taken  the  list  on  one  side, 
and  wlien  analyzcil  that  list  of  vessels  is  very  important  and 
xpi'V  much  in  line  with  my  present  ari;ument.  In  the  rirst 
]ilace,  41  vessels  are  meniioneil  instead  of  22.  These  were 
liuilt  in  the  following;  places  : 

Victoria 7 

Other  places  in  British  t'olumbia 11 

San  Francisco 'i 

Other  ports  on  Pacitic  coast — 

Dunj^eness 1 

Ft.  Franklin 1 

Seattle 2 

I't.  'I'ownshend 1 

Whatcom 1 

Ft..  Maddison 1 

rtsalady 1 

I'iast  Sound 1 

Washinjjton 1 

California 1 

—  11 
Atlantic  Coast  — 

Kiii(;stoii,  N.  B 1 

Essex,  Mass 1 

Chester,  N.  8 I 

Fort  Clyde,  N.S 1 

Shelbur'ne,  N.  .S 2 

—  () 

Yokohama 1 

San  Salvador 1 

Unknown  1 

—  .S 
Total —  41 


i!r 


1'  ■Im 

'.        ■    "       I' 

...  II 


I      I 


!,  I 


..      ' 


So  that  practically  the  i;reat  majority  of  vessels  in  that  list 
were  built  either  at  Victoria  or  British  Columbia,  or  in  those 
.")()  jilaces  innnediately  across  thr  Straits  in  Washinjfton  Territory. 
Kvery  one  of  the  I'nited  States  ports  other  then  .San  Francisco 
;ire  in  Washinj^ton  Territi*ry,  on  Fu^jet  Sound.  There  are  only 
.'i  in  ,San  I'^'ancisco,  1  in  Cilifornia.  and  only  11  in  all  the  ports 
iif  the  Facitie  coast  outside  of  San  Franciseo, 

So  far  ns  that  evidence  jrocs,  it  shows  the  very  opposite  of 
what  the  l^iited  States  are  eontendini;.  It  demoiistr-tes  that 
Situ  Franciseo  wns  not  the  i  lacf  of  oiiijinof  that  class  (.1  vessels, 
liut  that  l'ai;et  Sound  and  British  (.^oluiiibiM  were,  and  no  ])ort 
liiid  so  jjreat  a  n\ni)bei'  as  \'ieti>riii.  \o  place  had  more  thati 
•  ;o  two  except  Victoria  and  S.ui  Francisco.  San  l''rancisco  hail  M, 
\  ictoria  had  7. 

The  arjijuiiient  for  the  I'nitid  .States  then  proceeds  pajje  207 
lo  ipiote  fi><m  the  evidence  of  Mr.  Thornley  as  lo  the  state  of 
atl'iiirs  rtt  Sim    I'ranciseo.     This  witness  <iid  not  profess  to  spe<ik 


ipF 


'!  ili';A"J^t""4JllL^l.l|WLIwjl!iliiiXiBii.!!it 


:53() 


20 


30 


(Mr.    Bodvvell's    Ari»ument.) 

from  liiH  own  knowledge  or  infoniuitioii  as  to  sales  ;  or  perliii]js 
it  would  1)0  more  correct  to  siiy  that  ho  did  not  profess  to 
liiivo  any  knowledyo  himself  of  the  actual  value  of  vessels  about 
wiiich  he  jjave  evidence.  He  did  the  actual  price  paid  in  some 
instances,  hut  he  could  not  .say  whether  that  p'  ice  was  I'ea.sonable 
or  not.  He  i;;av('  his  evi(ieiic(!  from  the  records  he  had  made 
10  at  the  shippiuff  port  of  San  Francisco,  from  the  rejjistry  of 
shippinj^  tliere,  and  to  f  ii  intents  his  evidence  has  just  tln' 
same  w(Mfjht  as  if  'he  Secretary  of  this  Commissi(jn  had  i^onc 
to  tln^  reifistrar  of  shipping  at  San  Francisco  and  had  made  up 
the  same  list  and  placed  it  before  yoiu'  Honors. 

In  support  of  this  I  call  your  Konor's  attention  to  the  evi- 
dence on  |)nt,'e  17>Si) :  — 

"  ().  Do  you  considiT  i?l,000  the  full  value  of  the  '  Ani^'cl 
'■  Dollie  '  \.  I  mu-t  aLjain  say  that  I  cannot  answer  that 
'■  (|uestion. 

"  Q.  So  that  .so  far  as  any  o()inion  of  valuer  is  concerned  we 
"  are  to  umlerstand  that  it  is  not  your  business  to  know  them  ? 
"  A.    Yes,  si)-." 

That  evidence  in  substance  is  repeated  by  Mr.  Thornley  on 
two  or  three  occasions.  I  think  your  Honors  will  remember  how 
careful  the  witness  was  to  say  that  he  liid  not  profess  to  fio  any- 
thing more  than  to  ;,'ive  the  actual  price  and  when;  he  did  not 
know  that,  the  price  that  ajipeared  in  the  bill  of  sale. 

In  onier  to  siiow  how  very  little  weii^'ht  that  class  of  evidence 
has  as  a  l)a.;is  of  vahie,  I  wish  to  analyze  some  of  the  prices  that 
Mr.  Thoridey  has  referred  to.  I  submit  it  will  clearly  appear 
thai  unless  you  have  the  conditions  and  the  circumstances 
under  which  the  sales  were  niatle  you  cannot  jui'i(e  whether 
the  price  paid  was  the  market  value  of  the  vessel  or  not. 
It  seenis  to  me,  with  reference  to  this  particular  class  of  vessels, 
the  circumstances  were  altoL;elher  ditt'erent  from  those  which 
obtain  ordinarily.  There  was  nothin;^  which  would  create  a 
market  i)iice.  There  was  no  place  on  the  Pacific  Coast 
it  appears  wliere  this  class  of  vessels  were  built  in  numbers. 
At  San  I'raneisco  vessels  were  constructed  suitable  for  seal- 
iiij,',  but  they  were  not  built  for  sealinLT.  They  were  built 
upon  special  orders  to  ^o  to  the  Sandwicli  Islands  anil  the  south- 
ern coast  of  California  to  trade,  anil  were  used  jj;enerally  by  the 
persons  who  ordered  them.  If  a  man  wished  to  buy  a  vessel  foi' 
sealintj  it  was  necessary  for  him  to  find  some  person  who  had  a 
vessid  of  this  class  and  who  was  not  using  it,  and  therefiUL' 
wished  til  sell. 

Sunpose.  therefore,  that  Captain  Warren  had  been  desirous 
of  oblainin;;  a  vessel  to  replace  one  of  his  that  had   been  seized 

50  at  San  Frartrisco.  he  would  have  been  otiliged  to  iuipiire  for  a 
trailing'  vessel  owned  by  some  man  who  had  not  made  it  ])rotit 
ab'e  and  who  wanted  to  sidl.  When  it  is  remembered  tiiat 
Uiany  persons,  at  the  very  time  in  (|uestion  residing  in  San 
I'rancisco,  were  anxious  to  engage  in  the  sealing  business,  it  will 
ha  seen  how  little  chance  he  would  have  had  to  pick  up  a  bargnin 
there  in  ISSO  or  IS«7. 

Ml'.  Tinner,  who  was  the  Sat-  Francisco  builder,  says  that  in 
lS8(iheonly  built  six  vessels,  and  in  18X7  five  vessels.  Mr. 
Turner   was    the   largest   builder   in    San    Francisco.       None  of 

(10   tliese  were  built  for  sealing  but  on  special  order  for  trading. 


40 


he 


....  following  comparison  of  prices,  given  hy  Mr.  Thoinley 
also,  indicates  that  the  class  of  evidence  given  by  him  is  of  verv 
little  assistance  to  your  Honors. 


10 


■20 


337 

(Mr.   Bodwell'a   Ar};;unient.) 

You  will  SCO  how   the  prices  vary  within  short  periods  of 
time : — 

"  Angel  Dolly,"  19  tons  ..April  29,  1887 $1000 

March  8,  1888,  \  at  8,=i00 2000 

Dec.  24,  1888,  whole  vessel 700 

"  Alton,"  84  tons March  28,  1887 3000 

Feb'y  28,  1888,  jj  at  ?4000 5333 

Feb'y  14,  1889,  J  at  81200 6000 

"  San  Diet^o,"  46  tons Octoher  12,  1885 3950 

Oct.  23,  1885,  i  at  8 1200 4800 

Jan'y  12,  1887.  \  at  81050 4200 

November  C,  1890 Private. 

"  Ivanhoe,"  114  tons Jan.  30,  1886,  J  at  8500.  .84000 

Julv  16,  1887,  iV  at  8300 4800 

Oct.  10,  1887.  T!>g  at  81000 .......   3200 

"  Page,"  104  tons Dec.  24,  1886,  ^  at  $1000.  4000 

FeL'y  2,  1 887,  ^  at  $433 5196 

Feb.  11,1 887,  ^4  at  S21 6.66 5 199 

Dec.  8,  1886,  W  at  81600 4800 


30 


Ino,"  93  tons 


Jan.  28,  1885,  i  at  81500. 
July  14.  1886,  i  at  $1000. 


6000 
2000 


"  Iruia,"  92  tons 


March  1 2, 1 885,  J  at  81000 8000 

May  5,  1886,  J  at  8800 6400 


"  John  M.  Ingalls  "  . 


91  tons. 


Feb.  15,  1886,  J  at  8500 4000 

March  8,  1887,  i  at  $700 4200 


,i.j..i-: 


It 


||  ii 


40        "  Lizzie  Derby," 
93  tons. 


Feb.  4,  188S,  i  at  8775 6300 

Feb.  8,  1888,  ^  at  $11.57 4628 

Jan.  20,  1889,  i  at  8600 4800 

The  following  vessels  are  also  named  by  him  : — 

"  C.  H.  White,"  84  tons  .  .June  11, 1 890 cost  810,000 

"  Helen  Blum,"  63  tons "        7800 

.-,0         "  Lila  &  Mattie,"  100  tons..Oct.  10, 1888,  h  at  $6000.      1200.00 

Again,  to  further  illustrate  the  same  contention  I  read  to 
your  Honors  Mr.  Thoniley's  evidence  wIkmc  Ik;  docs  know  the 
special  ciicuinstances  of  one  ship.  You  will  observe  how  the 
conditions  changed  from  time  to  time.  On  page  1789  he  gives 
the  liistovy  of  the  "  San  Jose;"  as  follows  : — 

'  Q.     Take,  for  instance,  the  '  San  Jose?'     A      I  was  very 
"  familiar  with  tlv^  'San  Jose. 

"  Q.  You  giivi,  hdw  many  fales  i)f  her  there  ?  A.  Siie  was 
(iO  "  built  in  1886  :  in  .  S!S6  1  have  one  transfer  of  James  O  Hanlon 
"to  James  Griffin,  ti.at  was  1887;  in  1886,  that  is  when  E.  W. 
"  Nowth  sold  three-six  "enths  to  James  IJrilKn  :  Newth  was  the 
'■  master  of  the  vessul  ;  'i  sold  tlnee-sixteentlis  for  81,050;  tlien 
"  Captain  Lee  took  cliar^,    of  the  vessel  and  he  bought  a  (juaiter 


338 

(Mr.    Roilwell's    Argument.) 

"  otr  Mr.  Oiirtiin  ;  Griffin  wantuil  to  j^et  Captain  Leo  hocanso  Lee 
"  was  n  gooil  liuntoi' ;  lie  wanteil  to  have  liiin  on  tlio  vessel  so  he 
"pave  liim  a  (]iiiirter  for  !?1, ()•">() ;  lie  was  anxious  to  f»ot  Captain 
"  Lee  because  lie  was  a  f^ood  hunter  and  ho  saved  the  getting;  of 
"  an  extra  man  ;  then  Joim  T.  Sullivan  went  in  at  the  reque.st  of 
"  Ca|itain  (jrillin  ;  Sullivan  was  a  shoemaker  near  my  office  ;  he 
10  "  didn't  care  to  put  any  more  money  in  to  fii  out  the  vessel,  so  he 
".sold  one-sixteenth  for  l?:n'2..")l). 

"  (.).  .Mr.  Sullivan  ilidn't  want  to  put  u])  any  more  money 
"  for  ex]H'nses  !  \.  No,  sir,  he  didn't  caie  aliout  that  class  of 
"  business,  he  saiil. 

"  Q.  The  next  transaction  ?  A.  Mr.  O'Haidon,  a  clothing; 
"dealer,  found  he  was  earryinj,'  more  of  the  vessel  than  ho  wanted, 
"  and  he  sold  a  sixteenth  to  Mr.  CJriffin  :  Oritfin  wanted  to  j,'et  a 
"  con  troll  ill  J,'  interest  in  the  vessel,  as  ho  wanted  to  put  in  a  part}- 
"  as  master  ;  the  otlieis  didn't  care  aliout  him.  They  didn't  con- 
20  "  sider  he  was  a  competent  man  for  master.  I  heard  these 
"  matters  iliscussod. 

"  Q.  There  was  a  dispute  between  them  ?  A.  Yes,  .^ir. 
"  Mr.  Crifliri  wanted  to  yet  a  controUinLf  interest  in  the  vessel 
"  and  put  Captain  Paul  in  command  ;  he  did  so  and  ho  sold  a 
"  (]uarter  to  tlu?  cnptain  for  81.250. 

'■  Q.  When  was  that  salt;  ?  A.  That  was  on  tho  1 1th  of 
"November,  INSIJ,  after  Mr.  (Iriffin  had  bouL,dit  of  O'Manlon. 

"  (,).  Did  that  end  the  whole  transaction  connected  with  that 
ves.sel  ?  A.  In  ISi'SG  it  did,  in  l!S!S7  there  was  some  more  trans- 
30  "  fers  ;  in  1>SS7  there  was  ii  tiansfer  where  O'llanlon  transferred 
"  one-eij,dit  to  (iriflin. 

'  ().  What  Were  the  eiieumstances  there  ?  A.  I  am  unable 
"  to  explain  that,  there  was  simply  a  transaction  ;  they  came  in 
"  to  have  the  doemiients  drawn  without  explanation. 

"Q.      Was  she  sold  aoain  ?     A.     Yes,  sir. 

"  g.  In  18«,S  !  A. "  In  1888,  that  is  tho  time  Captain  Leo 
"  was  put  out  of  tho  vessel  ;  there  was  a  transaction  with  tlie 
"  '  An^el  Dollio'  in  that  matter;  Captain  Lee  sold  to  Gaivin  a 
"  quart(.'r  for  81,300;  Captain  Lee  they  thoujjht  was  too  old,  ho 
40  "  was  a  very  stout  man  ;  they  put  him  out  and  Captain  Paul  in, 
■'  he  was  a  hunter. 

"  Q.  That  .schooner  in  1S88  sold  at  the  rate  (  f  80,000  for  tho 
"  whole  vessel  ;  a  (piarter  for  81,.'j00.  A.  81,300,  at  the  rate  of 
"  8.-).200." 

I  .submit  with  all  deference  that  Mi:  Thornloy's  evidence  is 
useless  as  a  criterion  of  market  value.  Take  any  one  of  tho 
vessels  in  his  list,  which  price  are  you  to  consi<lor.  The}'  vary 
from  81.000  to  82,000  in  the  course  of  a  year.  Will  you  say  that 
the  special  circumslances  made  the  hii,'h  price,  or  that  the  special 
no  circumstances  made  the  low  price  ?  Where  can  you  rest  and 
.say,  that  sum  is  the  value  of  the  v(!ssel,anil  fur;her  how  can  you 
say  that  a  piice  so  uncertain  in  itself  is  a  fail'  b.i.sis  of  value  in 
Victoria  where  diflferent  conditions  altoi,'ellior  prevail. 

Proceeding',  my  fiieiids  have  j,dven  a  tabulated  list  at  pajfes 
272  and  273  of  their  ai j,'iiment,  ami,  of  course,  as  one  woulil 
expi'ct,  tlii'V  havi'  taken  in  every  insiance  tho  vorj'  lowest 
price  mentioned  n.>  the  tij^ure  upon  which  tho  value  of  tho 
vessels  is  to  bo  determined.  I  submit  that  such  a  list  is 
valueless  to  your  Honors  because  you  cannot  suy  that  it  reports 
GO  the  correct  condition  of  the  market,  even  if  it  can  be  saiil  that 
there  was  a  market,  cither  at  San  Francisco  or  Victoria  for 
vessels  (^i'  the  cla^s  mention(!d. 

Tli'ft'i'ririi'  Mi'ain  to  that  part  of  tho  aiLruni«nt  which  montions 
.Mr.  Tlunnley's  (Midi/nce   my   friends  set  out  a  number   of   sales 


339 

(Mr.    Bodwell's    Aifijument.) 

wliicli  lie  has  roportcil.  In  l.SS(!  you  Imvu  {j  vosst'ls  referrod  to. 
Tlio  "  Addio  C.  lifizultine,"  tlio  "  (Jolilon  (jate,"  thu  "  San  Jose," 
tlie  "  lima,"  tlio  "  Tvanlioo  "  nnil  tlio  "Paj^o." 

I  will  roail  wlmt  Mr.  Tliornlcy  says  about  tl.cse  vcs.'iel.s  at 
jm^'o  ITf^fl,  line  40  : — 

"  <^.     ('an  you  yourHoif  toll  then  whethoi-  these  vessels  or  any 
10  "  nuiiiher  of  tl'.oni   wore  or  wore  not  suitahio  for  it  ?     A.     Tho 
"  '('itv  of  San  Dioi^o'  was  suitable  for  it. 

"  (.}.  Was  sho  a  sealer?  A.  Yes,  sir,  she  was  bought  by 
"  Brown  Brothers  for  sealinjf  purjioses. 

"  (}.  The  '  Iinia  V  A.  I  don't  know,  I  wouldn't  say  what 
"she  wa.s  suitaliie  for:  they  have  what  they  call  center  boards 
"and  keel  vessels,  and  I  ean't  aiiswoi'  what  these  vessels  were 
"used  for;  the  'Addio  C!.  Hazeltine'  was  a  keel  vessel  enfja^ed 
"  in  foreiij^n  trade  ;  lost  down  on  the  South  Sea  Islands  ;  she  was 
"  not  enga;;eil  in  sealini,'. 
20  "Q.  (io  throui,di  the  list  and  ttdl  us  just  wlmt  you  can  speak 
"  of  ns  beini,'  enj^agod  in  senlinfj;  ?  A.  The  schooner  '  San  Jose  ' 
"  was  enj^ai^'od  in  sealing,' ;  the  '  Anj^id  Doilie,'  she  was  bou^^dit  by 
"(iritlin  a!id  others  and  went  into  tho  soaiin;:^  businc^ss  in  1SS7  ; 
'■  the  schooner  '  (iolden  Gate,'  she  was  a  keel  vessel,  ',}')  tons;  the 
"  schooner  'J..ily  L  ,'  she  ivas  built  for  tlio  purpose  of  ;;oint;  into 
"  sealinjr  ;  the  schooner  '  San  Jose  '  atjain  ;  in  1X88  tho  schooner 
"Lily  L.'  was  en^'nged  in  sealinjj; ;  tho  schooner  '  Lizzie  Derby,' 
"  she  was  a  keel  vessel  ;  she  went  to  tho  South  Sea  Islands,  she 
"  could  have  been  used  for  soalinr;  ;  the  schooner  '  O.  S.  Fowler,' 
3(t  ■'  she  was  enga;,'ed  in  sealinjj  ;  the  schooner  '  San  Jose  '  af^ain  ; 
'■  she  was  oni^aLfod  in  sealing;." 

Th(^  evidence  or  Mr.  Turner  is  that  most  of  the  vossols 
of  this  class  were  employed  as  tiaders,  On  pac;e  171  ■!•  is 
Mr.  Turner's  evidence,  which  is  more  to  the  point  than  .Mr. 
'i'hornley's  can  po.ssibly  be.     Bef,'inninj:j  at  lino  22  he  says  ; — 

"  Q.  Now  j'ou  have  told  us  that  you  have  built  a  great 
'  numlier  of  vessels  and  have  given  us  the  number,  have  been 
"  kiiul  enough  to  give  nio  j'our  book  and  I  have  gone  over  some 
"  of  it.  Now,  in  IS.HO,  I  think  you  said,  you  built  six  vessels 
40  '  suitable  for  sealing  purposes.  Is  that  correct  ?  A.  I  think 
"  so. 

"  Q.  Can  you  tell  me  for  whom  these  vessels  were  built  ?  A. 
"  I  caniiot,  but  I  think  by  looking  at  my  book  I  can  tell  some  of 
'  them. 

"  Q.  The  nami's  are  in  here,  are  they  ?  •  A.  'San  Jose'  is 
"  tho  first,  there  were  several  owners. 

"  Q.  Was  she  a  sealer  '  A.  She  was  built  for  a  trader  and 
"  sealer. 

"  Q.     Which  was  it,  a  trader  or  a  .sealer,  or  both  ?.     A.     Both 
"lO  "  purposes. 

"  (l  I  see  a  vessel  here  called  tho  '  Pearl,'  Who  was  she 
•  built  for  ?     A.     The  Alaska  Commercial  Company. 

"  (l     What  for  >     A.     For  pearl  fishing. 

"  Q.  Not  for  seal  fishing  ?  A.  No,  but  she  was  that  style 
'  of  vessel. 

"Q.  That  is  what  she  was  built  for  .^  A.  That  is  what  she 
■'  was  built  for.  She  was  sent  out  to  hunt  for  pearls  that  never 
"  existed. 

"  (),.     Tho    '  Moi   Waliino,'    who  was    she    liuilt  for  '     A.     I 
liO    '  liiiilt  her  for  a  lumlKM-man. 

"  Q.     Was  she  a  sealer  ? 

"  Q.     Was  she  a  sealer  ? 


A.     She  was  for  people  in  Hawaii. 
A.     That  vessel  was  fit  for  a  scaler 


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"  <^.  As  a  matter  of  fact  sho  was  not  built  for  sealing  > 


A.  No. 


,iiM|niipii||i 


340 


A  tiailur  ill  tlio  South  Sea  Islamls. 
'  Lovina  '  built?     A.     For  Turnur 


& 


(Mr.    Bodweil's   Argument.) 

"  Now  then,  the  '  Mateata  '  was  she  built  for  soaliny  ?  A. 
"  Xo,  Mir. 

"  Q.     Was  she  included  in  your  li.it  ?     A.     1  believe  so. 

"  Q.  Who  was  she  built  for  ?  A.  Huilt  for  Andrew 
"  Crawford. 

'•  Q.     What  for  ?     A. 
10         "  For  whom    was  the 
"  Chapman  of  Taliiti. 

"  Q      What  for  ?     A.     For  a  trader  among  the  islands. 

"  Q.     Not  for  a  sealer  ?     A.     No. 

"  Q.     The  '  Berwick  "     A.     Shu  is  a  scow. 

"  Q.     She  is  not  in  your  list  I     A.     No. 

"  Q.  Then  there  is  the  '  Reliance,'  I  thiid^  ?  A.  The 
"  '  Reliance  is  a  steamer. 

"Q.     She    is    not   in    your    li.st   either?     A.     Molil    on,  the 
"  '  Reliance  is  a  hiinber  schooner. 
20         "  Q.     Not  a  sealer     A.     No,  but  she  would  maUo  a  tolerably 
"  good  sealer. 

"  Ij.    Did  you  count  her  among  tlie  si.\  ?    A.  I  don't  think  so. 

"  Q.     How  many  did  you  say  for  J. SSO  ?     A.     Five. 

"Q.  And  as  a  matter  of  fact  the  only  one  built  for  a  sealer. 
"  wa.s  the  '  San  Jose  ? '     A.     E.xpvessly  for  a  sealer,  yi's. 

"  Q.     The  '  Azteca,'  is  that  one  ?     A.     Verj-  likely. 

"  Q.  I  cannot  find  any  tonnage  for  her  ?  A.  She  was 
"never  measured  b^'  United  States  measurement. 

"  Q.     Was  slie  a  sealer  ?     A.     No,  sir,  she  was  of  that  class. 
30         "  Q.     As  a  matter  of  fact  you  have  no  particulars  in  this 
"  book  ?     A.     No. 

"  Q.     Not  the  tonnage  ?     A,     Not  the  tonnage. 

"  Q.  The  vessel  cost  what?  A.  S."),SOO  ;  she  was  never 
"  registered. 

"  Q.     Now,  the  '  Undina  ? '     A.     That  is  not  one  of  them. 

"  Q.     Very    well,    the    '  Emma  ? '     A      The    '  Emma  '    is    a 
"  Me.xican  ves.sel  ;  she  was  built  for  trade  on  the  coast  of  Mexico, 
"  Q.     Was  she  built  for  a  sealer  ?     A.     No. 

"  Q.     The  '  Lizzie  Merrill,"  is  she  one  of  the  six.     A.     No,  I 
40  "  think  not. 

"  Q.  What  was  she  built  for?  A.  She  was  built  for  a 
"  coaster  and  would  have  made  a  very  good  sealer. 

"  Q.     She  was  not  used  as  a  sealer  ?     A.     No. 

"  Q.  The  '  Grace  B.  Ricliaidsun,'  was  slic  built  for  a  sealer? 
"  A.     She  was  not. 

"  Q.     The  '  Navigator,'  was  she  built  for  a  sealer  ?     A.  No, 

■'  Q.  And  the  '  Domatilla,'  was  she  built  for  a  sealer  ?  A. 
"  No,  sir. 

"Q.     As  a  matter  of  fact,  in  188,5,  did  you  build  any  ve.ssels 
50  "  for  sealers  ?     A.     I  don't  think  there  was  anj-  that  went  into 
"  ths  sealing  busincsa. 

"  Q.  None  of  those  vessels  in  1885  and  only  one  in  1S8G 
"that  j'ou  built  went  into  the  sealing  business  at  all  ?  A.  The 
"'  Pearl  '  went  into  the  sealing  business  finally. 

"  Q.     1  mean  in  those  vears  ?     A.     Not  that  year. 

"  Q.     More  than  that,  out  of  those  vessels  that  j'ou  built  in 

"  1885  and   1880   but  one  of  them  changed  hands  in  either   of 

"  those  years  that  you  know  of,  or  did  the  parties  for  whom  you 

"  built  them  keep  them  ?     A.     I    don't  know  about  this  '  San 

00  "  Jose,"  she  has  changed  hands  fre(juentl\'." 

It  seems,  your  Honors,  tlierefore,  that  practically  nil  the 
vessels  built  in  those  yea.s  were  for  pui'pose.i  otiier  tluin  that 
of  sealing,  and,  as  a  matter  of  fact  that  they  did  not  go  into 
sealini;  busiress. 


841 

(Mr.   noilwfir.s   Arj,'uiiient.) 


Mr.  Dickinson: — Of  tliose  vessels  on  your  own  cuntention 
could  you  It'll  how  many  of  tlioiii  wi-ru  Imilt  for  sealing  pur- 
jiuscH  in  IHSO. 

Mr.  Hodwt^ll  : — Tluvt  is  not  the  point  I  nni  nmkin;,',  What  I 
say  is  that  tht'si-  vt'ssels  weie  not  liuilt  for  sfniin;^  purposes, 
thoy  weru  liuilt  for  trading  purjiosus  and  the  ownurs  did  not 
10  iillow  thein  to  <^o  into  soalinf^.  What  usu  is  it  to  us  to  say  that 
then)  wure  vessels  in  San  Francisco  ntn'A  for  Iradinj^  purposes 
when  we  could  not  huy  thent  for  sealiit},'  purposes.  It  does  not 
sluiw  that  Captain  Warren  or  Mr.  .Munsie  or  any  hody  else  could 
have  replaced  vessels  seized  hy  the  United  States  at  a  certain 
tij,'ure  ;  in  fact,  it  sliows  the  contrary  and  it  corrohorates  tliu 
evidence  upon  our  side. 

.Mr.  Dickinson : — The  point  is,  that  in  order  to  supply  the 
place  of  that  sealinj,'  vessel  you  would  liave  to  j^'ct  some  vessel 
that  was  out  of  commission  and  laid  up. 
•JO  Mr.  Bodwell: — Kxactly  ;  we  would  havc^  to  find  a  uum  who 
had  a  vijssel  that  was  enj;n;^re(l  in  a  husiness  that  was  not  paying 
and  who  was  ready  t(j  sell  it. 

Mr.  Dickinson  : — And  otherwise  yon  could  not  f^o  into  tlio 
valuation  of  vessels  and  the  (ju(!stion  of  valuation 

Mr.  Hodwell: — I  say  that  the  evidence  you  have  iriven  on 
that  point  does  not  lielp  us.  It  does  not  show  that  the 
jirice  you  state  was  the  price  at  which  we  could  replace  the 
vessels  you  took  away  from  us.  I  contend  that  uidess  you 
prove  that  you  ar(!  not  showing;  the  l.'oniuussioners  an}-  j,'round 
30  upon  whicli  they  could  hase  a  compensation  that  would  he 
a  reparation  to  us  for  our  loss.  You  nuiy  as  well  tidl  us  that 
some  one  in  ISISI)  hou^ht  a  horse  in  Halifax  for  one  hundred 
dollars,  as  to  say  that  in  San  Francisco  during,'  the  y(!ar  you 
seized  the  "  Dolphin,"  a  man  liouj,dit  a  vessel  for  trading  pur- 
poses for  a  certain  sum,  and  after  that  used  in  that  business. 

Mr.  Dickinson  : — That  depends  on  the  valuation. 

Mr.  Bodwell  ; — ^I  am  ci'iticizing  the  argument  you  have  given 
here,  and  I  am  arguing  that  you  do  not   estahlish   a  basis   for  a 
fair  valuation  for  the  vessels  which   were  seized. 
40         Mr.  Dickinson  : — On  the  theory  that  the  basis  of  the  valuation 
uuist  be  what  it  is  worth  ? 

Mr.  Hodwell  : — Yes,  that  is  the  point  I  am  making. 

Mr.  Dickinson: — That  is  what  I  want  to  understand. 

Mr.  Bodwell: — We  have  given  your  Honors  as  a  basis  of 
valuation  the  cost  of  building  vessels  in  Victoria.  Mr.  Turner 
also  gave  evidence  as  to  the  cost  of  building  vessels  in  San 
Francisco,  and  at  page  1GS4,  line  40,  he  says  that  his  shipyard 
was  the  largest  shipyard  in  San  Francisco.  With  ri'ferenco  to 
the  building  of  vessels  in  San  Francisco,  page  IGScS,  line  20,  be 
hO  says  : — ■ 

"  I  haye  not  made  an  exact  calculation,  but  my  impression  is 
"  that  what  vessels  1  built  at  that  time,  ranging  from  .'!()  to  100 
"  tons,  or  a  little  over,  would  average  about  !i^lOI  or  S102  a  ton. 
"  I  perhaps  ought  to  have  made  this  average  before,  because  the 
"  large  vessels  cost  much  less  j)er  ton. 

"  Q.  Now,  we  will  take,  if  you  please,  a  vessel  of  about  .'50 
"tons?  A.  I  should  saj'  about  1?115  per  ton  would  be  the 
"  average  for  that  sized  vessel,  accordini'  to  my  book  here." 

It  must  be  remembered  that  these  were  prices  which  obtained 
(iO  iu  a  city  where  there  was  every  facility  for  building  vessels  and 
purchasing  cheap  material;  an  J,  moreover,  his  pi'ices  were  made 
under  the  keenest  comjietition.  The  livahy  was  so  great  that 
some  of  the  men  in  San  Francisco,  in  opposition  '.o  Mr. 
Turner,  were   driven  to  the  wall,  and  made  a  failure    of  their 


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342 

(Mr.   Boilwell's    Argtiment.) 

business.  Mr.  Turner  says  he  does  not  think  that  he  over 
olitaincd  more  than  the  vessel  was  worth,  because  the  competition 
was  so  keen.  When  a  business  man  makes  a  statement  of 
that  kind,  tliat  he  was  obliged  to  cut  prices  and  sell  nt  the 
smallest  margin  of  profit,  your  Honors  no  doubt  will  under- 
stand that  ship  building  was  then  carried  on  at  a  very  low 
10  figure  in  San  Francisco. 

A  very  diderent  state  of  things  existed  in  Victoria,  as  is 
explaine<l  by  Mr.  Walker. 

In  our  argument  we  refer  to  the  special  cofiditions  obtaining 
in  Hritish  C'oliiiiibia  at  the  period  in  question,  and  your  Honors 
will  see  liow  great  a  diflerence  it  would  make. 

(Inr  argument,  at  page  H'i,  beginning  at  tlie  bottom  under  the 
heading  of  "  Special  eenditions  atPecting  value  of  the  vessels," 
.says:— 

"The  witnes>ies  callod  on  behalf  of  (treat  Britain  make  this 
20  "  very  plain.  'I'hey  all  agree  tliat  labour  was  scarce  and  dear, 
"  84  and  ?.")  a  day  lieiiig  the  ordinary  rate  of  wages  for  a  ship- 
"  Wright.  The  witness.  Walker,  who  had  an  extended  experience 
"  in  that  biisinc.ss,  snys  that  in  18.S()  in  Victoria,  in  consequence 
"  of  the  .scarcity  of  work,  shipwrights  had  practically  to  be 
"  imported  for  every  jub,  and  left  when  the  particular  piece  of 
"  woik  on  which  they  weie  engaged  for  the  time  being  was 
"  fitushcd. 

"  This  fact  restdttd  in  a  particular  increase  of  expense  which 
"  is  Worthy  of  note.  The  witness  says  that  in  large  places 
30  "  win-re  a  (|tiHntity  of  ship  building  is  in  progress,  ordinary 
"  carpenters,  whose  wages  are  much  less  per  day  than  that  of 
"  shipwrights,  may  bu  employed  to  perform  much  of  the  work 
"  upon  a  vessel  luicler  construction.  In  Victoria,  however,  at  the 
"  time  in  (piestion,  when  a  builder  employed  a  shipwright,  he 
"  was  obliged  to  keep  him  at  work  continiuilly  or  lo.se  his  .services 
"  altogetluT.  The  conse(|Uence  was  that  these  skilled  laborers 
"  perfornu'd  not  only  what  pertained  particularly  to  their  trade, 
•'  but  also  did  all  the  work  upon  the  ship,  in  every  instance  the 
"  account  for  wages  being  inen^ased  accordingly. 
40  "  Again,  lumber  was  verj'  expensive,  costing  as  much  as  !J14 
"  p(jr  thoii.sand  as  compared  with  $H,  the  price  at  the  present  day. 

"  All  fasteiungs  were  imported  from  the  United  States  and 
"  piiiil  a  high  rate  of  duty.  It  is  true  that  these  articles  were 
'•  for  sale  in  other  jiaits  of  Canada,  but  in  thosi;  days  coinmiuu- 
"  cation  between  iJritish  Coiundiia  and  Kastern  ('anada  was  rare 
"  and  ilitHeult.  This  uuirket  was  little  kiu)wn  and  in  practice 
"  not  resorted  to.  Ship  chandlers  kept  no  Canadian  good.s  in 
"  stock,  and  tile  result  was  that  about  'M  per  cent,  of  the  cost  of 
"  a  ship  was  nwide  up  of  articles  paying  a  duty  ranging  from  17J 
50  "  to  2.')  per  cent. 

Again,  from  the  fact  that  only  a  few  vessels  were  built  and 
"  at  such  infre(|uent  intervals,  much  expense  was  incurred  in 
"  matters  of  detail  which  would  not  happen  at  all  under 
"  ordinary  circiimstanci-s.  Fresh  models  were  prepared  for 
"  every  ship,  and  time  was  lostaixl  expense  entailed  in  preparing 
"  moilels  and  moulds,  and  in  waiting  for  their  inspection  and 
"  approval  by  the  prospective  pureliaser.  When  all  this  was 
"  done,  suitable  places  for  working  out  details  ha<l  in  each  case 
"  to  b(!  specially  arrangecl  for,  and  generally  all  the  prclindnary 
(iO  "  steps  in  cotuiection  with  the  construction  were  taken  under 
"  circumstances  of  consideiable  inconvenience,  and  with  much 
"  more  thati  ordinary  difiiculty  and  expense." 

Mr.  Turner  tidls  us  that  in  San  Francisco,  where  these  difii- 
culties  were   unknown,  vessels  of  the    largest   size   suitable   for 


343 

(Mr.   Bodwoll's   Argument) 

sealinpr  cost  from  $102  to  9103  per  ton,  and  tliat  the  price 
incn'aserl  rapidly  as  tlie  tonnage  went  down.  Indeed,  the  very 
point  I  am  making  is  made  for  us  in  the  United  States  argument 
at  page  280,  for  in  noting  the  evidence  of  Hubert  J.  Cook,  the 
counse)  for  the  United  States  ,ays  : — 

"  The  capacity  of  the  shi|)yard  managed  by  Cook  is  shown 
10  "  by  Ids  statement,  that  in  1878  it  took  him  eleven  months  to 
"  partially  rebuild  the  Thorlon,  while  Matthew  Turner  testified 
"  that  in  bis  yard  at  San  Francisco  a  100  ton  vessel  usually 
'•  took  sixty  days  to  build  '  reaily  for  sea,'  but  could  be  completed 
"  at  increased  e.vpenso  in  thirty  days." 

That  shows  perhaps  as  strongly  as  any  piece  of  evidence  could, 
the  disadvantages  that  existed  in  Victoria  in  those  years  in  build- 
ing vessels,  and  therefore  it  is  in  favor  of  mj'  argument  that  our 
charge  for  the  cost  nf  building  vessels  in  Victoria  is  not  at  all 
unreasonable.  The  statements  of  our  witnesses  receive  additional 
20  weight  from  the  evidence  of  Mr.  Turner  that  with  all  the  facili- 
ties in  San  Francisco  and  untler  the  keenest  competition  his  prices 
were  not  less  than  J102  or  8103  per  ton  for  vessels  of  the 
largest  s'ze  he  referred  to. 

Mr.  Lansing  : — New  ? 

Mr.  Bodwell : — New,  of  course  ;  but  our  vessels  were  new 
when  they  were  built,  and  they  were  in  good  repair  and  as  good 
as  new  to  us  when  they  were  seized.  We  do  not  expect  to 
ilraw  inferences  for  the  court.  We  mendy  give  the  court  the 
facts  and  to  aigue  on  these  facts.  We  do  not  think  that  your 
30  Honors  will  allow  tl,  same  price  for  an  old  vessel  as  for  a  new 
vessel,  liii'  we  state  the  fact  of  the  cost,  and  we  ask  you  to  con- 
clude that  the  value  which  we  put  upon  them  at  the  time  of 
seizure  is  not  excessive. 


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The  argtnnent  of  the  United  States  then  proceeds  at  pages 
27()  and  277  to  criticize  the  competency  of  the  witnesses  who 
were  called  on  behalf  of  Great  Britain.  I  wish  your  Honors  to 
add  to  the  statement  they  have  made  some  extracts  from  the 
evidence  in  order  to  .show  that  these  criticisms  are  not  fair  to  the 

40  witnesses.  For  instance,  they  speak  of  Walter  Walker  as  follows  : 
"  Walter  Walker,  termed  in  the  argument,  '  .shipwright  and 
"  proprietor  of  shipyard,'  and  cited  as  to  the  value  of  the  '  Caro- 
"  lena,'  'Onward,'  '  Anna  Beck,'  '  Crace,'  ami  'Dolphin,'  was  a 
"  J(nn'7iei/man  nfilj)  en rpenter.  It  does  not  appear  that  he  ever 
"  liuilt  a  sealing  schooner  or  worked  upon  one  in  course  of  con- 
"  struction,  nor  docs  it  appear  when  ho  became  interested  in 
"  '  Trnhey's  shipyard,'  of  which  he  claimed  to  have  been  the  pro- 
"  prietor  ;  but  in  1883  he  was  working  as  foreman  in  repairing  a 
"government   schooner  and    left    his  trade   in    April,   1884,  to 

.iO  "  become  measuring  siu'veyor  of  the  port  of  Victoria." 

Your  Honors  will  observe,  by  referring  to  the  evidence,  that 
Walker  was  very  well  ([ualitied  to  speak  of  the  matters  to  which 
he  deposed.  It  is  said  that  he  never  built  a  sealing  schooner. 
Hut  it  appears  that  be  built  a  great  many  other  ships, 
and,  as  I  said  the  other  day,  there  is  no  magic  in  the  word 
"  sealing."  If  it  is  shown  that  a  man  has  l)een  engaged  in 
liuililing  schooners,  he  is  surely  competent  to  give  his  opinion  as 
to  the  cost  of  them.  It  does  not  follow  that  l)ecauso  he  did  not 
build  a  sealing  .schooner  he  is  to  be  described  as  a  journeyman 

CO  carpenter.  I  read  to  your  Honors  .Mr.  Walker's  experi- 
enci!  to  show  bow  unfair  this  criticism  lA,  from  page  174  o(  the 
t'vitlence.     I  quote  the  following: — 

"  tj!.  Ml-.  Walker,  what  is  your  business  ?  A.  I  am  a  ship- 
'  luililer. 


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344 

(Mr.    Bodwoll's  Argument.) 

"  Q.  Where  liiJ  you  serve  your  apprcnticcsliip  to  the  trad*  ? 
"  In  a  shipyard  in  Scotland. 

"  Q.  Wliere  was  that  ?  A.  In  Barton  on  the  Clyde  ;  Den- 
"  nis'  was  ihc  name  of  the  sliipyard. 

"  Q.     For  how  many  3  ears  were  you  an  apprentice  there  ? 
"  A.     For  Hve  years. 
10         "  Q.     After  that  where  did   j'ou  work  ?      A.     I  came  out  to 
"  Canada  in  1S71  ;    after  I  came  to  Canada  I  stayed  in  Toronto 
"one  summer,  mid  then  I  came  up  on  the  Dawson  route. 

"  Q.  What  did  you  do  on  the  Dawson  route  ?  A.  We  liuiit 
"  two  steamers  at  a,  place  called  Port  Francij,  one  above  the  falls 
"and  one  below  the  falls. 

"  Q.  After  that  where  did  you  work  ?  A.  In  the  Ret!  River 
"  countrj'  down  on  Luke  Winnipeg;.  I  was  workin;;  on  a  screw 
"  priipcllor  for  the  Hudson  Ba)-  Company. 

"  Q,     rrobttbly  the  first  propelior  built  on   that  water  ?     A. 
20  "  Yes  ;  and  I  worked  on  the  first  side-wheel   steamer  ever  liuilt 
"on  that  river,  for  the  .McArthur  Brothers. 

"  Q,  Where  (lid  you  work  after  that  ?  A.  I  came  to  Oakland 
"  Caiifornia,  and  worked  there  for  one  summer. 

"  Q.  What  were  you  doin;;  there  ?  A.  Buil<lin<r  a  steamer, 
"  and  I  a!s(;  woikei!  on  the  ilocks  in  California  for  a  while. 

"  Q.  Where  were  these  docks  ?  A.  There  was  one  called 
"  the  North  Point,  and  the  other,  Hunters  ;  one  was  at  the  north 
"  end  of  San  Franciso,  and  the  other  was  down  at  the  south  end. 

"  Q.     What  sort  of  work  were  you  doiny  there  ?     A.     Repiiii  - 
30  "  ing  ships. 

"  Q.  And  fiom  there  you  came  to  Victoria  ?  A.  Yes,  right 
"  to  Victoria. 

"  t^.  About  what  time  did  you  come  to  Victoria  ?  A.  1 
•'came  in  January,  1^75. 

"  Q.  From  that  time  along,  what  ha.s  been  your  business  ? 
"A.      I  was  engaged  until  about  lfSfS+  in  ship  buil<ling. 

"  Q.  Up  to  liSS.")  you  were  engaged  in  shipbuilding  and 
"  repairing  vessels  here  ?     A.     Yes,  sir. 

"  Q.     Did  you  know  the  Star  shipyard  ?     A.     Yes,  .sir. 
40         "Q.     What  had   you  to  do  with   that?     A.     Well,  I   was  a 
"  partner  with  a  man  by  the  name  of  Colvin  ;   we  were  the  first 
"  to  put  ways  there. 

"  (^».  You  were  the  proprietors  of  the  Star  Shipyard  ?  A. 
"  It  was  called  Trahay's  shipyard. 

"  Q.  1.S83,  had  you  any  repairing  to  do  on  any  particular 
"  vessel  A.  Oh,  yes,  I  had  charge  of  the  government  steamer 
" '  Sir  James  Douglas.'  I  hauled  her  up  and  put  20  feet  about 
"  the  middle  of  her  and  inadi^  her  larger. 

"  Q.     In  what  capacity   did  y(ju  act  in  connection  with  that 
50   "  Work  f     I  was  foreman. 

"  Q.  What  sort  of  work  did  you  carry  on  in  Trahey's  sliip- 
"  yard  ?  A.  Repairing  small  steamers  and  schooners  when  they 
"came  back  fr.jm  whenever  they  had  been.  There  were  not  very 
"many  schooners  in  the  port  at  that  time. 

"  t^.  You  were  building  small  steamers  and  repairing  vessels 
"from  time  to  time?  A.  Yes.  I  might  also  state  that  I 
"  worked  up  (>ti  the  Skeena  River  in  l!s7(i :  we  built  a  tug  boat 
"for  McAllister  Bros,  and  she  was  cjuite  a  large  ship,  and  plied 
■'  here  as  a  tug  for  eight  or  ten  years. 
(iO  "  Q.  In  your  shipyard  have  you  had  occasion  to  overhaul 
"and  repair  sealing  schooners  ?     A.     Yes,  sometimes." 

It  appears  that  in  liS.S4  Mr,  Walker  was  appointed  Measuring 
Surveyor  for  the  Port  of  Victoria  and  has  been  engaged  in 
shipping  for  all  these  years.    Then  at  page  ISO  of  the  evidence: — 


34.') 
(Mr.    noilwell's    Argiiiiieiit.) 

"  Q.  Did  you  l>ny  h  vessel  yourst-lf  ami  hring  lior  here  at 
"  that  time  !*     A.     The  steam  schooner  '  Misnliict'.' 

"  y.  Whiit  was  the  t()iiiiii<;e  of  th(!  'Mischief'?  A.  The 
" '  Mix'hitsf  '  WHS  M  tons  re>^ister. 

"  Q.     When  (litl  yon  Imy  that  vessel  ?     A.     In  1S!)2. 

"(f.      How  oM  was  she  !     A.     She  was  linilt  in  \HS(',. 
10         "  t^.     What    wiiniil    she    cost    in     |.Sh(i  !•     A.     It  was    con- 
sideieil  aliout  SIO.OOO  witii  innehinery." 

There  is  a  i|notrtiion  in  thi'  J'niteil  States  ai^nunent 
wiiieh  yives  a  wron;^  ini|  n^slon  of  Mr.  Walkei's  i-vidence. 
There  shoniil  lii!  a  space  in  the  ijiiotatiiin  in  the  tir>t  |iorli()n 
n'-pniilnceil  from  pn^^e  ISI.anil  the  next  ipiistion  and  answer 
is  at  pHj^e  |S.'>  in  tlw  evjili-nee,  and  the  latter  is  not  at 
idl  ecinieeted  with  tiie  previous  .|ne-liun  aiiii  aiiswer.  It  would 
look  here  as  it'  his  evide!ic('  iiail  all  iieen  yiven  at,  one  tinn'. 
Vonr  Honors  should  look  at  pijje  IMI,  line  40  for  the  first  por- 
20   lion  wldch  is  as  follows  : — 

"  <,^)  Vou  can  only  ted  what  it  wouhl  eo»t  to  Imild  a 
'  schooner  here  in  Victoria  where  ihey  clid  not  iiave  the  ship 
"chandlery  niulei  iai,  and  where  they  wnuld  have  tu  pay  a  hij^h 
'■  price  if  they  did  L;et  it.  That  is  nil  yon  propoM-  to  till  f  A. 
•'  That  is  all. 

And  at  pa!,'e  IS.'),  line  .'l-'),  the  in'Xt  two  questions  :  — 

'  ().  Vou  do  not  know  anythini,'  almut  the  price  that  was 
"  paid  for  her  f      A.       No. 

"  i}.      Do  you  reinenilier  that  the  •  ( iraeie  '  ahil  the  '  I  >.ilphin' 
;;i)  '   were  sold  in  INS(!  :'     A      I  do  not  know,  iait  I  i|o  not  think  it 
"  was  a  puhlie  sale. 

"  (^>.  Wliev  yon  t"stiliid  as  to  tlie  value  of  ships  in  l.SSC 
■you  were  not  very  familiar  witli  vessels  that  weie  sold   in  that 

■  \ear,  were  yon,  or  familiar  with  ihidr  |>riees  !     A.      No. 

'•  (^.      It  was  not  part   of  \onr  lii.sjiicss  to  keep  posted  as  tu 

■  the  sales  ?      A.      I'nless  just  eomirii;   in  contact  with  those  who 
'  wer>'  huyiiii,'  and  wen'  peisonal  friends  of  mine. 

"  (^l.      Vou  have  no  special  oppin tuniiies  tu  liiid  out  the  prices 
•  of  tiie  scah's  f      A,       Not   unless    I    was   ealleil   in   to  make    a 
40    '  \aliiation 

"  (}.  Were  you  caiieil  on  in  Issi!  to  make  a  valuation  of  any 
■'of  these  .schooners  ?      A.      No,  not  anv  of  these  scliooners. 

"  ((),     So  that  not  having  made  inijuiries,  or  not  havim;   1 m 

'called    in    to    survey    or  e-timate  ycai   clo  nut  know    what   the 

■  valuation  of  schooners  in  l.S.'Sli   was  ^      A.      Well,  only  lo-ariiijj 

■  ahout  what  they  cost. 

"(i.      And    youi^    knowled;,'e  of    the    cost  (Mines    fi-oin  the  esti- 

■  mate  of  the  lahor  and  the  cost  of   Imildirii;  here  ,'      A.      Ves.' 

This  man  had  sdme  information  alMiiit  the  prices  ami  this  is 
.10  all  he  was  testifyiiii,'  to.  His  was  heiisay  knowledge  and  there 
is  no  inconsistency. 

With  refeience  to  tin-  liist  i|notaticai  which  is  taken  from 
pii^'e  IMI ,  line  4."),  your  Honors  should  also  ri-ad  the  evidence 
which  fidlows  immeiliately  after: — 

"  (.J|.      Do    yoii    not    intend     to    tell    the    Commissioners    the 

■  markt't  value  of  a  schooner  linilt  for  sealin;;  purposes  in  the 
'  Port  of  Victoria  in  ISM.")  or  iNMi  :'  Do  you  ti.ink  you  have 
■sullicient  kiiowled<.'e  to  tell  that.'  A.  I  never  was  pricin;^ 
■'  schooners    for    sealers,   hut    I    have    heard    of  iiar^ains    heinjj 

tiO  '■  ohtaim-d  liy  j^oini;  down  helow. 

"  Q.     Yon    have  heeii   here   ami  henril  the  testimony  of  the 
'  other  witiuiss  ns  to  th','  value  of  this  schooner  ?      \.     N'l). 
'■  <.^.     Vou  have  just  come  here  ?     A.     Just. 
"  Q.      Vuii     .said    .something    ahout    the     value    uf    sealing 


.■i! 


1 1 


':>-i 


11 


I 


h  it 


r:--|- 


4 


m 


:'i 


J'i    ,1 


i 


III 


PI 


lip-  i 


■'   iji! 


i'Si 


i. 


!■': 


[^•! 


346 


(^fl•.  Modwfir.s  Ar;juin(<i»t.) 


scl 


lin-cf. 


•'xaiiiiiiiition.     What,  did   voh   km: 


schortiu'rH    in  voiir  i 

'al>.)Ut   tilt!   viiliii"  iif  si'iiliiif,'  sd'.iioiM'i^   ill    l.SHO,    wlictlicr  tl 
'  wt-ro   liiiilt  in    Sin   l-'rancisco,  nr  Nova  Scotia  or   in  Vict 

A.     It 


U'V 


"I'lft 


was  soini'tliiiii;  ii"*s  tlian  in  tin?  first  years    I  cnnic  hen 


'I'lif  wai'is  wi'ic  down  1()  alioiit  !?4  a  day  in  liS.Sti. 


Q     Tl 


II'  wni,'i's  \v 


'I'l"  li'ss  ill  San  Kriini'isco  >     A.     V( 


10  Mr.  I  )ickiiisoii  :      W'lial  is  it  yuii  tliiiik  oiiylit  ti>  lie  added 


Mr.  lindwi'll  :    -Till-  iiii'cri'iicc  is  I'roni  llu'   cvi 


li'iuT  as  <|iiu|i'i| 


ill  yoiir  areiiiiii'iit,  tlnit  li uld  uniy  tell  wiiat  it  would  rost   li 

huild  a  s"li(ioiit'r  in  \'icloria,  wiicrcas  tlie  very  next  jiait  <>1'  ilir 
evidi'iici'  sliDWs  tli.it  III'  liiid  knuwlc'd;,'i'.  at  any  rate  as  ;;uih|  a> 
tlir  Tnite'l  .StMti's  witiii'Nsi's,  uj' si'llinj;  jirict's  I'runi  liaviiij;  lii-ard 
ol"   l):ir;;;lilis. 

Iiis  ti'stinionv  wlieri 


Mr.  hifkinsuii ;     'I' 


ii'i'i'  is  not  a  ]ilttri 


it  is  sliii'.vii  tiiiit  III'  i'\ir  |iiii-('lias('d  iiiiiti'ri.il  or  kept  tin-  tinii'  d" 


hnild 


inir  a  siiii), 


lii 


20 


Mr.  Iiodwi'll; — It  is  not  staled  that  lie  did  in  so  many  words 
but  tli.it  inilst  Ilea  i>,irt  of  the  hiisiness  of  a  iiimii  who  is  tin 
pro|iiiitMr  ol'  a  shipvard. 

Ml.  ].> 
.ship  tlieri 


insiii 


riieii'  is  nutliiii'Mo  show  that  lie  evir  liiiilt 


Mr.  r>o dwell  :      I  have  read  the  uvidi 


it 


uieiit  on  lioth  sides  I  sii 


IS  open  tl)  con 


PI" 


It  is  said  of  Orlando    Wariii'i-   that   he  was  only 


a    lonrnev 


man  ship  cariienter.  F,et  us  ri'iid  Mr.  Warner's  cv  ideiicc  and  scr 
wli.it  kiiowleij^ri'  lii.  had  of  ship  liiiildin;^-  and  what  his  I'xju'ii^ 
•SO  ciu'i'  was.  Ill'  ti'll>  lis  hi'  h.i-,  Ih'cu  In  N'ii'toria  'I'l  years,  Hcconl 
pa;;i'  IMil:  th.il  he  h.is  liri'ii  in  that  Inisinrss  thirty-oin' or  I  liirty- 
twi)  years:  that  lir  liee;Mii  his  hiisiiifss  in  l'n;,'wasli,  ( "iinilirrland 
County,  Niiv.i  Scot  in  ;  that  he  w;isa  joui'iicyman  there,  that  then 
he    left   No\a    .'^int  ia  .uid  came  to    San    rraneisco,  coiniin'    to 


Victori;i  tweiit  v-li\ 


e    \i'ars  a''o 


that  sinci'that  time  hi-  has  had 


less   to    do  in  the    sliipliliiJdin;,'  lillsincss  «  hcllrxcr  tl 


ii'i'i 


was 


40 


anythin;;  to  do  in  that  line;  that  he  was  connected  in  |iar(- 
iieiship  with  .Mr.  Sniit  h  in  the  Star  .Shipyjird  ;  that  he  owiiid 
the  St;ir  .Shipy.'ird  iiiidthat  tiny  were  four  years  in  ))ai'tiiers|iip. 


At  pajre  l!l(i,  line  :i() 
Q.     l)urin^   your    exjierieiice   as    a  shi|)wri<,dit,    liavi 


'worked  ill 
sciiliiij^  vessi 
'thr. 


•I  inn  wit  h  the  liuiMiiii;  or   re|iairiii;i  of  in; 


Is  'A.      I 


my 
ia\e    woikeil    in    the    ciinstriictiun  of 


.■JO   "hi; 


<).      dust   irillie  llniii,    ple.lse  '       A.       'rili'l-e    is    the    't'ailolti 
■  C<>\.'  the  '  |)i,lll,l'  ;ll|i|   till'     l>ulphill.' 

"<^).       ^'oU  Were  workili;,'  <Pll    the    r  "list  met  ion  of      the     'Ciir 

lottii  Cox  '      A.     I  wascontrai'tor  t'l-i  her. 

Q.      \'oii     Were    (he    contractor    for  the    luiildiii'j  of    tin 


.\.      \'es.  I  li.'id  tli.it  contract. 


•  (,).      WIh'Ii  did    von  luiild 


A.      In  th 


le  siirinir  ol 


I  tl 


|.S!I|. 


link  It   w.is  1 

(.,).      What     toijii.i'fe 


s  in  l"'eliiii;ir\'.  I'S'.M.  if   I  leiiienilier  riniit. 


he  '       A.      She    W.IS    .s:{     tons    1 


bcii 


(}.     And  yoii  had  the  contract  for  doin;4;wlial  on  licr  :'     A. 
I  had  the  contract  of    the  hull  and  spars,  without  doine;  jmy  of 


the  caliiii  work    or  the    fmecastli 


d    I    had    to    furnish   ii; 


'•sleei'ine;  ;;ear.      1    furnished    her    with  one  to|)niast.  bill  not   a 
"a  fore-topmast.     The  in.iin-topmast  I  had  to  furnish  and  I  laid 
(iO   "  the  spars  alonj;side  her  atloat  in  the  harlMir. " 

Now  can  it  he  .said  that  that  witness,  who  has  been  2")  years 
in  Victoria    connected    with    shipynrds.    biiildinj,;   ships  and  in 

period,  is  not 


rtiiershii)  as 


f  sh 


])  .IS  an  owner  ol   shi|>yari|s  (turin 


ds  di 


that 


eonipeteiil  to  pronounce  upon  the  cost  of  biiildini,;  a  ship  in  \"\ 


347 

(Mr.  B(vlwi'II'«  Arjoimont.) 

toriit  cf  tlif  cImms  liiTf  iimliT  ooiiHidcnition.  Of  wimt  mhc  is  it 
((>  N])i'ai\  1)1'  (litit  iniiii  as  n  Joiirncvinaii  sliip  carpfiitiT  (  ||  is 
lint  a  I'air  slatrmfiit  nl'  tlic  man's  r.\|>i'ririi('<'.  IWru  it'  lir  was 
n()tliiii<;  more  tliaii  tlial,  In-  lias  liccn  ('ii;fa;;i'ii  all  tliusf  yi'ars  in 
tliat  l>iisiiii'SH.  all)]    is  it  not  to  Itr   inl'iTrril   tliat    In-    wniilij    lie  a 

(■iiin|li'ti'llt    witlH'SS  as  In  til"'  cusl    iil'    liiiili|ili;r    scliniilMTs  '       What 

ID   wiiiilii  an  i>i'<iinai'\'  man  tiiiil  mit  in    2')   vrars    al    llial  Kiisincss  < 


Also  1  rct'iT  to  liis  crDss-rxamiiiatiiHi,  |ia;^i'    lOJi 


I.  Mill'  .)')  : 


(,).     What  is  vniir  Imsinrss 
h 


I 


rkiii;^ 


'  niiw  as  a 


jiiiii'tK'yman  slii|i\vii;;lit. 
"  (,).     Am!  Iia\i'  I II  I'liiliDW  iiiaiiv  vi 


(,).     I  think  Villi  liiiilt  tv 


sh 


s  '      A.     Si  lire  JKi;.-). 
Twii  schiiiiiii'iw  hi'l'i'. 


(.).     Aiiil  till' .'stiiiiati' III'  till' ('ii>t  Villi  III  iili'  witii 


''11  r 


I  t. 


tlii'si'  was  I'iiuikI  til  1 ri'iiiii'iiiis,  so  (Imt  ymi  lust  iiiniii'V 

I    |l)><t    IIHIIlI'V." 


Mr.   I)i('kinsi)n  : — Is  it  unfair  t'l  call  him  what  he  sai'l  lir  was 


•JO   at  the  tiiiii'  111-  was  mi  the  staii'l  f 

Mr    hinlwi'll  :     It  i-<  niifair,  lic<'aii->r  the  man  wa* 
man.   tn  ilniw    llu-  iiitcrffri'iii'i'   that   li 


a  |i)Ui-iH'V- 


:'.n 


-ill 


i;ii 


> II'    was    ?sim|ily  a    wurkiiiL; 

man  ami  imt  ciiinpiti'nt  tn  sprak.  withniit  ti'lliii:^'  the  cniii't  tliu 
iitliiT  circiimstaiici's  ciniu'ctril  with  his  I'Nprrii'iici'.  1  am  nut 
Liiiiii;.;  til  (piarrcl  with  niy  frii'iiil  as  tn  wlictlicr  it  was  unfair  nr 
nut,  ami  1  will  nut  use  tliat  worij.  It  is  my  lai-^iin'ss  to  placi- 
lirforc  your  llnmu's  tlu' othi'r  i'irciimst:ini'''s  cunm'cti'il  witli  his 
I'Xpi'rit'nci'.  ami  i  say  that  hi'  was  wi'll  ipialitii'il  to  tell  yoiu' 
jjiiiinrs  iiliiiiit  till'  ciwt  iif   liiiildiiiL;   vcs-ds  iIhti'. 

M:.  I  lifkiiisiiii  :  Tln'ii.  «s  ymi  iisp  tin-  wnnl  'unfair."  an- 
not  all  till'  farts  si't  foitli  in  tlw  iii^'uiiiriit  fur  tin'  I'liiliil 
Siati's  :* 

Mr.  Iiiiilwi'll  :— Vim  liavi' hoanl  tlu'  cviili'iu'r  anil  1  h'avi'  ynii 
tn  ih-aw  yi.iir  own  t'onr'ln-.iiPiis. 

.Mr.  I)i('kinsiin  ;  — Kvi'i-ythiii^  yon  have  .so  far  stati'il  i~i  in 
till'  I'nitt'il  .stati's  .\ii,niiiiiiit,  liotli  as  to  his  i.^prricni'i'  ami 
rviTythiii'.,'  cKi'. 

.Mr.    I'loilwi'll  :  —1  think  not. 

.Mr.    I>ii'kinsiin  :     We  taki'  issm-  with  yon  tiu'ii'. 

.Mr.  Hiiilwill  :-  Oriaiiilo  Warni'r  is  i-iti'il  as  tn  the  value  of 
•.i\  vi'sst'ls — till'  '■  ( "aroli'iia,"  " 'I'liorntnn."  '  ( >i,ivaril,"  "  .\iina 
i'lick,'  '■  (ir.-ici'"  iiinl  •■  |)iilpl'.iii."  I  am  i|U'>tiiiL;  from  till' I'niti'il 
.■stati's   Ar^umi-nt  pai,'i-   •J7''^  :  - 

"  111'  also  was  f/  Jdii riiniiiKt II  shi/i  in rjifiilrr  iu\<\  was  for  four 
"  yi'ars  inti'ri'sti'il  in  a  .'d.ipynril  in  \'ictoria  ;  as  hi'  wa-^ -.o  in- 
'■  ti'iTstciJin  l.SiM,  hi- was  l)Uta7"n»/'("'//im(//  in  iSSoniiil  |NS7.   His 

■  I'Xpi'ririici'  in  luiililiii'^i'  si'.-iliiii;  vrsscis  (•on,si.'<ti'il  in  woikinj;- as  a 
iuiiriii'ymaii  on  till'  ■•|)iilphin"  in  ISSI.  ami  in  IS!M)aml  1S!)|, 

"  I'olist  nirl  ill;;  Unili'l'diiit  r;ul    till'  hulls  iif  two  scliDolli'l's.     Iirl  Wii'll 

■  till'  Vi'.irs  Is.sl- ami  iss.S  inclusiv  r,  hr  linili  no  \  issds.  " 

.Villi  ihi'ii  llii'V   i|Unti'  his  i'\  iihiici' : 

"  In  ri';;aril  to  the  \alui'  of  tin'  "t'arolimi  "  he  ti'stilinl  :  -- 

"if.      Now.  wlii'ii  yiiu  put  her  price  at   SIl.SOO  or   -S-l-.ddO,  are 

you  thinking;  of  what  it  wniiM  cost  to  linilil  her'      A.     That  is 

my  iilea  ;  yes.  sir. 

"if.     'I'll  liiiiM   her  new  :'     \.     Yes,  sir. 

"<>).     Ami  you  liase  your  estimate  on  that  ^     A.     Yes." 

.\s  a  witness  upon  the  ipiestimi  of  the  value  of  the  "(irace,  " 

■  |)olpliin,  "  "Anna  lieck  "  ami  "  W    I'.  Say  ward,  '  he  testified  : — 

•  ••*••• 

"  It  is  contended  that  the  testimoMy  of   this  witness  can   possi',s.s 

■  no  wei^flit  in  determining;  the  value  of  the  vessels  seiz- d.  " 

The    next    witness  referred  to  is  (ieorye   W.  Cavin.     As  my 


Hi 


r      1 
■t  ,   f 


i  I 


(.:„■(;■ 


hi:  i\ 


•!iU    ( 


m 


in. 


ii   -M 


!:l 


1I-:     : 


"■  in 


it": 


mW'V, 


.'U8 

(5lr.  nodwclI'M  Ar^iiiiu'iit., 

fritindN  hccim  t<»  ohjirt  to  my  iimkiii^  iiiiy  Htatcmcnt  iw  tn  ciri'ct 
of  tlii'ir  ur;;(iiiniit,  I  will  nwl  (liiMviilciirc. 

Mr.  hickiiiHoii  :  \\>u  will  not  liiivc  Hiiy  troiililc  :  hut  when 
you  Ntiitt'  (lint  the  iir^iiiiifiit  of  tlic  Uiiitfti  States  in  not  fair  in 
Nome  oiiiiNNioii,  wi-  call  nttciition  to  your  niiNtak^*.  Aiiotlicr 
Htalriut'iit  you  liavL'juMt  made  wi-   »'all  your  attt-iitioii  to,  that  it 

10  is  Ntatfil  ill  the  Aiiicricaii  ar;;iiiiiriit  that  thit  witiu'HN  you  liavc 
just  citccl  never  coiistrurteil  any  veMHel,  whereas  it  is  stated  in 
the  Ainei'icaii  ar<,;iiiiient  that  he  huilt  tlu'  IiuIIh  of  two  vessels. 

Mr.  Modwell  :  Keferrin;;  lo  |ia;ie  2S(>  <if  the  I'liited  States 
ar;;uiiieiil  there  is  this  critieisiii  nf  the  evidence  of  Huhcrt  .1. 
('<M)k  :  - 

'■  HiihiTt  il.  Cook  citeil  in  the  .\r;;iinient  on  hehalf  of  tlie 
"  claimants  as  to  the  value  of  the  " 'riiornton,"  "Onward  "  and 
"  .\iiiia  he'k,"  us  '  a  slii])wrie;lit  ami  jnoprietor  of  shi|)yai'ds 
"for     many       years      at       \'ietoria '    and       '  ar       I'xperien I 

■2(1  "  !)nil(h'r.'  was  ]ii'o|irietor  of  a  s|ii|iyai'd  jaior  to  l.ss;!, 
"in  which  year  'rmpel  rented  it.  and  whr,  at  the 
"time  of  his  examinatiiiji  was  workiii;;  as  a  Jiiiiriii'i/nin h 
"  i 'niin;;  the  sixteen  years  he  ulaims  to  ha\'e  lieeii  en;;iij,'i'c|  ill 
"  iiiiiidiiii:  he  never   coiistriicte(l    any    sealiii;;    sclKtoners,  hut  lie 

"  calclll.ltes  the  value  of    a   vessel   ill    j.S.Sdon   the  hasis  of    V\li,l(    it 

"  would  cost  to  liiiiM  one  at  that  time. " 

I  vviji  read  the  evideiiee  1)11  that  point  of  II.  .1.  ( 'ook,  pa;;e  .S2ll 
of  the  llecord  : 

"  <»>.      \'iiii  are  a  ship  carpenter  i"      \.      \'es,  sir. 

•  to  "t^l.      .\nd  liave  I n  I'Ver  since  ymi  came   into  the  count r_v  !' 

"  A.      ^'eN.  sir. 

"  Q.  What  sliipyard  !'  \.  I  had  the  shipyard  that  'rilipel 
"  has  now  for  jti  years. 

"  (}.  1  helieVf  you  hllilt  a  pretty  lai;,'!-  ship  there  f  .\. 
"  Well.  I  huilt  a  steanilioat  tlieii'  at  oin'  time. 

'   <,'.      \ini  huilt  sloops  as  Well  '     .\.      \i-s  sir. 

"  *,).  I  )o  yiai  know  the  sti'aiii  schooner  '  Thoriiton  i',  .\. 
"  \  es,  sir.' 

Then  he  ^niis  on  to  say  vv  hat  he  had  to    ilo  with  t  he    ■  'j'iiuiii- 

40   ton;    and  altlioiiijli  it  isinie  that  he  did  not  constiuet  a  sealing 

sehouiicr  there,  yet  he  Ijiiilt  sloops  and   slii]is.    ami  sinclv   that  is 

slltlicient  to  ;;ive  a  man  kllowledj^r,.  (if  the  cost  of  iiuilcjine;  ves- 
sel.-., and  lie  would  lie  a  coiiijietenl  perscin  to  promninci'  as  to  ihr 
cost. 

Ivefeiiiii;,'  to  this  witness  the  fiillowili;;  i|IH  latloil  is  liiadi'  at 
pa;,'e  'l>i\  of  till'  I'liiteil  .States  ar;;iimeiii  : 

■<J       How  do  you    know  what    it    would    cost  in  IH.Sti  i*     A. 

'■   IJecanse   I    knew   what    the  Jilices  well'. 

"  (f.  ihiw  do  you  know  anythin;,' almiit  the  market  value  nf 
')0  "lioalsin  J.S.SI)  :■  A.  .So  far  as  that  j,foes  there  was  no  real 
"  market  value. 

"  (,>.  lint  iioats  were  iransferred  from  oiii'  person  to  another 
'at  that  time  :'  A.  \'es.  we  used  to  hiiy  .some  vessels  from  Sail 
"  i'"i'anci.st'o  and  some  came  nut  from  the  Kast. 

1  siihiiiit  that  that  evidence  is  iiij;ht  in  line  with  the  evidence 
I  have  lieeii  rcailin;^  to  your  Honors  this  afternoDii,  yet  this 
criticism   is  made  of  it : — 

"  As  nine  sales  in  Victoria  during;  IS'^O  wer(>  testified  to 
"  heforc  tin.-  Hij;h  ( "ommis.'^ion,  its  already  shewn,  the  incom- 
(!0   "  petency  of  this  witness  is  apparent." 

As  I  hiivi;  aln-ady  Hr;,'Ui;d  that  was  .scarcely  one  those  iiim; 
transfers  that  could  he  called  a  sale,  and  the  wdioiis  of  them  put 
toj^ethcr,  under  the  circumstances  which  took  place,  were  not  of 
a  kind   which    would  ercute  a   market,  nor   would  they  justify 


:i4!) 


^Mr.  IVmIwcHs  Arguinont.) 


nnyliody  in  snyiii};  tliat  the  prico  ut  wliicli  tlicy  sold  was  the 
iimi'kot  valiiu ;  aii<l  I  Ntiluiiit  tliut  Cook  is  peri'uctly  riijht  wiien 
)iu  snys  that  tlu>r(>  whi  no  real  nmrktt  vaiut:  in  Victoriu  that 
n  vessel  wus  worth  just  wJ'iit  it  cost  to  get  her,  UM(1  if  yju 
wanteil  a  vpssel  you  IiikI  to  huihl  her,  generully. 

Mr.  HeiMiett  is  also  criticised.     His  uviilence  is  ut  imije  M)'M, 


lit  line  <)()  as  follows  ; 


•>(( 


:;o 


40 


().     Mr.   Hennett,  how    Inii^  have  you    livecl   in  \'ictoria? 
A.     Somewhere  ahout  twenty  years. 
"  t^.     What  are  you  doin;;  '     A.     Ship  liuiidin;;. 
•'  if.     Where  did  yon  come  from  '     A.    I  eame  from  Ontario. 
"  i^.     And    you  followed  your  traile  rii;ht  alonjf,  have  you, 


'  since  you  have  hean  in 


Viet 


orui 


I    A.    \i 


i).     What    is  ymn-  poNiiion  to-day 


A.     I 


man  at  present. 


am  a  journey- 


*^i 


I  on  < 


li.l 


som 


e  work  on  the    "Dolphin  "  and  '  (.iraee"? 


A.     I   connnenced    liv   lavin;'  them   down,  ami  maUin;'  their 


mou 


Ids 


Hhl  workeil  on  them  until  they  wei'e  tinished. 


U.     AI>out  what  time  was  that  ("     A.    If  1 


■(•UK  inlier  I'i 


,d.t. 


iiil 


"till'  "  druee"  was  liuilt  in  Is.SI  anil    the  "  Dolphin"  in  1;>S2." 

Suri'ly  a  man  who  has  l.ceii  i'ni,'a;.4eil  for  twenty  years  iu 
ship  litiildin^  reipiires  neeesvacily  a  knowleily;e  of  the  value 
and  the  cost  of  that  kind  of  work,  in  cro.ss-e.xaminatiun, 
lii'cord,  pai.,'!'  lO.'J.S,  line  (iO.  he  says  :  — 

"  <^.  V,)u  have  always  lieen  enj,'a;,'ed  in  .ship  carpentering? 
"  A.     I  liave. 

•' Q.     Tlias  is  your  trade  :•     A.     'i'hat  is  my  trade,  .sir. 

■•  (f.  And  you  have  always  worked  as  a  joui'neyman  ?  A. 
'•  No,  not  ahvayH. 

"  < .,)  Have  you  lieen  a  master  litiilder  ,'  A.  A  contractor 
"  and  master  huilder. 

'■<).  .\iid  when  was  that!'  A.  \\'atsiin  ai.J  I  huilt  the 
"Minnie,"  liuilt  the  "Princess"  for  the  ;;ovei-nmeii(,  liuilt  the 
•steamer  ".Muriel."  imilt  the  "  M.-iy  lielle,'  and  I  liuilt  the 
•' "  Siidii' 'ruijii'l  "  and  I  liuilt  the  steamer  "  Standard. ' 

"  (,  Did  you  I'uiid  the  •' Sadie  Turpel"  ('  A.  1  was  fore- 
"  man,  <ind  lail  her  down  and  laiilt  her  for  Tiirpel. 

"  (}.  What  was  your  Imsiness  in  coiniection  with  the  huild- 
'  ing  of  them  f  A.  I  was  foreman  for  Turpel  tm  the  "  May 
"lielle"  and  the  "Sadie  Turpel." 

"  (,),  What  was  your  liusiness  in  connection  with  the  others  ! 
"  \.      lie  and  I  wei-e  contractors  on  the  "Standard.' 

"  <^.  What  did  you  do  about  the  building  i"  A.  I  superin- 
"  tended   the   building. 

•'{).  What  became  of  tlio  "  Standard  "  ?  A.  She  was  sunk 
"  hire  up  north." 

And  yet  the  inference  is  drawn  at  page  2S2  of  the  I'nitcd 
States  Argument  that  "  the  knowledge  and  c.xpei'ience  of  this 
"  witness  are  entirely  insutlicient  to  give  his  opinion  us  an  expert 
the  slightest  value." 

Alexander  Watson  is  also  criticised. 

In  speaking  of  him  the  following  language  is  used,  "  He 
"was  It  Jouriici/iiKin  xliiji  anpfiiltr,  w\\a  built  on  conti'act  the 
"hull  of  one  sealing  vessel,  tlie  "  Minnie  "  in  IfS.St).  He  stated 
"  that  he  knew  of  no  sales  of  .schooners  in  KSS+,  IHS."),  l.SStj  or 
"  1.SS7.  His  ignorance  of  values  and  his  incompetency  as  an 
•  expert  are  shewn  by  extracts  from  his  examination,"  page  2S2  : 
'  Q.  How  »io  you  know  what  tiie  "  Curolenu  "  woultl  have 
"  .sold  for  ?  A.  I  do  not  know  what  she  would  Imve  sold  for. 
"  (^.  How  do  you  know  liow  much  she  was  worth  ?  A.  I 
"  gave  my  opinion  of  her  value. 


I 


§ 


'\'.i 


I 


.;t|*i' 


n 


.  \]'\' 


'k' 


',,  It 


■  ■  1 


H: 


■"FTT 


PITT? 


n.'5o 


(Mr.   HoiIwi'H'h  .\r;;iiiiicnt.) 

"  Q.  Iliiw  ronld  yon  foruinn  opinio  i  <if  licr  vnluf  when  ymj 
"(Idti't  kiiiiw  wliiit  tlif  iiint'i<i't  |)rici'  was?  A.  I  cdiiIiI  tell  liy 
"  wimt  I  iii'iinl  of  Vessels,   it  was  only  liear-suy  ol'  eiinrse. 

"  Q.     You  can  statt' what  she  cost  to  liuil<l  !"     A.     Yes. 

"  Q.     That  is  your  own  opinion  ?     .\.     Yes. 

"  ii-  YoM  ilo  not  know  of  a  sin;;le  sah'  of  a  vessel  in  thi-se 
10  "  years  '  .\.  No  there  inijjht  havo  iieeii  sales,  hut  I  don't  know 
"  anyfhin','  al«nit  them." 

"  He  stiiti'il  ihiil   he    knew    what   il   WollM    have   cost   lo  hlllM 

'•  the  '  ( 'arolena'  in  IHHd,  luit    upon  hein;;  askeij   wha(    Muel si 

"  woulil  IniVe  lieen,  he  relilieil  liial  lie  Wou''l  luive  to  have  Ihi- 
"  speeitiejitions.  anil  llmt  lir  iliil  n<<l  kmnf  tin  Ii'ik/IIi.  hn'H'ltli,  iintl 
"ill /'til  III'  liiilil  of  llif  '  diiriil'ii'i.' ' 

Well,  thai  is  true  enon;;li.  hecnuse  the  tii.'in  iliil  not  know  t he 
"  ( 'arcileiiii"  II I  el  was  imt  ;;i\  in;;  his  cv  iileiiee  as  to  her  ;  hut  w  hen 
lie  was  asked  tn;,d\ea   value,  hi'  saiil   he    would    '/Wf    the    cost  ul' 

'20  such  a  \essel  to  liuild.  and  naturally  enoiiidi  he  asked  for  the 
iliinensions. 

This  is  what  he  said  in  cross-e\a in i nation.  pa;je  I!  10.  line  |.">  ; 

"(.}.  What  would  it  liave  cost  lo  have  liuilt  a  vessel  likethe 
"'Caroleiia'  in  ISKti'  .\.  Wni  vvoidd  have  to  ;;ive  nie  the 
"  Mpeciliealions  of  the '( 'arolena'  iiefore  I  could  tell  that  exactly. 

"  Q.     I)o  you  know  liow  Ion;;  the '( 'arolena' was  <     A.      .No. 

"  Q.      I>;.  you  know  her  hreadtli  '     \.     .No. 

"Q.      I)oyi)U  know  herdepih  of   hold'      \.      No. 

"Q.  J)o  you  know  aiiythin;;  alMUil  her  in  particular  '  .\. 
"  I  have  seen  her,  hue  I  did  not  measure  her. 

"  t).  How  could  you  lix  your  valuation  then  f  \.  I  nieaii 
"  lur  tonna;;e. 

"Q.     What  was  hei' tonnao;e  ^     \.     :{.*>  tons. as  I  underslund. 

"i}.  How  much  did  il  cost  tohuildthis  ;{.")  ton  re;;isterei| 
"  t()nna;;e  Vessel  '      .\.      AIhiiiI  :t.!IOO  odd  dollars. 

'<}.  Was  that  in  ISStl  :'  .\.  Yes.  The  i;vera;;e  vessel  mi;;lit 
"  run  lii;;lier  and  they  mi;;ht  run  lower:  it  all  depends  on  tin- 
"  class  of   vessel. 

"  Q.  .And  if  she  was  only  27  tons  re;;ister,  what  would  ymi 
"sjiy  she  was  worth  !     A.     She  would  he  worth  lovvei'. 

"Q.     And    if  vou    were  told    I  lie   '('arolena'    was   27    tons 

I 


30 


40 


50 


"re<;ister,  what    would    you  .say    her    value    was   then.'     .\ 
"would  have  to  fie;ure  that  out. 

'■  Q.     Well  ti;;nre  it  out  on  your  own  opinion." 

And  he  does  ti;;ure  it  out  and  ;;ives  an  ansvei-  of  !*:{.:17.').  and 
.says,  "that  was  allowin;;  she  was  a  ;;ooil  avera;;e  vessel." 

Mr.  I..ansine;:  —  I  ask  \ou  to  I'cad  in  that  connection  at  pa;;i' 
1«:{.  line   |L>:  - 

Mr.  Hodwell  :— "  Q.  Kut  from  tlie  knowledge  that  you  then 
"acijuircd  of  the  vessel  what  wiaild  you  estimate  her  value  to 
"  be  then?  A.  Well,  of  coiu-se  tho  vahie  varies,  hut  I  could 
"gjvoj'ou  a  ;,'encral  valuation;  it  would  he  ahoiit  i^+.OOO,  m- 
"perhaps  a  little  lower,  hut  .somewhijrc  ahout  thai." 

All  the  witness  is  professing;  to  do  is  to  ;;ive  a  ;;eT»eral  idea  ; 
and  is  it  fair  to  say  of  evidence  of  that  kind,  ;;ivm  as  it  was. 
that  it  discloses  "incompetency  and  i;;iiorance  "  on  tho  jiart  of 
the  witness,  yet  the  Argument  for  the  Uniteil  States  proceeds  : 
"  He  stated  that  he  knew  what  it  would  have  cost  to  hiiild 
"  the  Caroloim  "  in  l.S8(i,  and  upon  hein;;  asked  what  such  cost 
60  "  woultl  have  hceii,  he  replied  that  he  wouM  have  to  have  tho 
"  specification. '  ami  that  he  iliil  not  knoir  tlif  li-nijth,  bremlth  mid 
" flenth  of  hiAil  of  the  Carolenit,"  and  the  latter  word.s  are 
italicizcii. 

Then  we  come  to  the  evidence  of  Samuel  McCullougli  Smith, 


nsi 


(Mr.  BtMlwi'll'M  Ar;,'unii'!it.  )■ 

anil  hrro,  Ih'ciui^l'  tlic  witiioNs  u'm'ii  a  C(illo(|uinl  uxpros^ioii,  a 
wiifil  not  nrtistimlly  mi  reel,  yoin-  Honors  arc  aski'il  to  infi'itlint 
llii'  witn<'ss  was  prcvMricatin;,'.  It  is  coinnion  for  a  witni'ss  to 
■•iiy  "  I  iniajiinc'  "  instcail  of  "  1  tliink,"  ami  yi  his  I'viclcncc  in 
-pokt'ii  of  as  a  work  of  tin*  itiiH<^ihaton.  It  is  critii-i/ol  at 
\>ntH'  2S.'{  of  the  IJniti'il  Statfs  Ari^iinii'nt  as  follows: 
|()  "  III'  is  not  cili-ij  in  tin-  Ar;;iiiiii!nt  in  tin-  casi'  of  tlio 
■  "  Caroli-na  "  prrsinnalily  eitlii'r  out  of  ilflVrrni-c  for  liis  ni<*tliiiil 
"of  valuation  or  lifi-ausi- his  iiiia'.;inatioti  was  not  stron^'  rnoii<{ii 
"  to  liriiii;  his  tl'^uri's  as  liii^h  as  tlii'  otlirr  witncssi-.s  sworn. " 

Sniitli  is  n  man  wi-ll  known  an<l  rr^iH-ctnl  in  Vicloria,  who 
lias  livi'cj  thi'i'i'  till-  ;.,'ri'ati'r  part  of  his  lift",  an<l  simply  lin-ausi' 
tlii'ro  ix  tliis  I'olloipiialisin  in  his  I'viiii'iici',  this  inartistic  worij, 
wonl,  his  tfstiuiony  is  spoken  of  us  mrri'  inni;{inntinii  wlii-u 
tliiTi'  is  not  oni'  imtonsi^ti'iit  or  rxai^jifruli'ii  stati  iii'nt  in  it. 
Now  as  to  Mr.  Smith's  ipialitications,  we  liuvi-  his  eviilonco, 
•It)   Kieonl,  payi'  l!M,  as  follows  :  - 

"if.     Whirr  clo  itsiilf,  Mr.  Smith  (•     A.     In  Victoria. 

"if.  I  hcli-'vc  you  liavc  hccn  in  the  shiplmiliiin;;  laisincss 
"  for  a  ioni;  timn  ?     A.     For  a  numhcr  of  years. 

'  if.     For  how  many  years  I     A.     For  :i.')  years. 

"if.  Where  iliil  you  la-j^in  to  work  insliipsi'  A.  At 
"  .Maitlanil,  Nova  Scotia. 

'  (f.     That  is   where  all  {^ooil  Hhip-liuililors  come   from.      I 
"  lieliuve  you   ha<l    ipiite    a   lon^  experience    in    Nova  Scotia  ? 
"  A.     Yes,  I  hail  a  loni;  experience. 
;tn         "  if.     Vou   were  a  master  ship  buililer  in  Nova  Scotia,  were 
"you  ?     A.     Yes  sir. 

"  t^.  For  how  many  years  before  you  left  there  ^  A.  For  a 
"fjoitil  many  years. 

"if.  You  liuilt  some  ship*  before  j'ou  left  there  !  A.  J  believe 
"  four  ships  as  master  buililer. 

"  (f.  1  believe  they  were  hxr^e  ^hip^  :■  A.  From  .')()0  to  1000 
"  tons. 

"  (f.     When  you  left  Nova  Scotia,  iliil  j'ou  come  here  liirect  ? 
•  A.     1  came  here  ilirect. 
4ii         'i.f.     That  is  how  many  years  ago  ^     A.     I  came   here    in 
••  |H7(i. 

"  (f.  Anil  since!  you  have  been  here,  have  you  been  buililing 
"  ships  also!'     A.     Mostly  alto;;ether. 

"(f.  Were  you  in  partnership  in  the  biLsines.s  with  any  one 
"  else  in  this  country  ?     A.     Yes  sir. 

"if.     Who  were  you  in  partnership  with  ?     A.     Well,  lirst  to 

"  a  small  extent  I  iliil  some  work  with  Mr.  Tur|)el,     Later  oit  I 

"  was  in  business  with  Mr.  Warner. 

-()         •'  if.     Are  you  now  en;;a<ieil  in  shi|ibuililer  :•     A.     I  am  now 

'■  en;»aj5eil  as  Superintemlent  of  the  Marine  Railway  at  Ksipiinnilt." 

The  Ciimmissioner  on  the  part  of  the  I'niteil  .States  :  —  Before 
we  risr,  I  woulil  like  to  hear  what  Mr.  .Smith  .saiil  as  to  the  enst 
of  buililinj;  a  seventy  or  eijjhty  ton  vessel.  Whatilo  you  claim, 
Mr.  iJivlwell,  was  the  cost  in  IHHii  anil  1MH7  of  buililinjj  a  00  or 
"(I  Ion  sealer  at  Victoria  ? 

Mr.  liiHlwell ;  The  evidence  <;iveH  it  at  from  12.'»tol.")0 
ilollars.  I  think  ?12.'>  is  alnnit  the  lowe.st,  anil  some  of  the  wit- 
iii's.ses  say  SIT."). 

The  ('oinini.s.sioner  on  the  part  of  the  Uniteil  States  : — What 
ti(t  ill)  you  say  for  a  vessel  of  2.')  or  'M)  toim  f 

Mr.  H<>(hvell  : — Well,  I  <Io  not  think  any  witne.s.s  speaks  of 
the  cost  of  buihliny  a  vessj'l  of  that  size. 

The  ConnniHsioner  on  the  part   of  the   United    States  : — You 
value  the  "  Sayward,"  I  sec,  at  ?7,000. 


I  ' 


.t,i' 


'4  ■ 


rti  :i 


t  * 


m 


u,-: 

m' 


!).  ■  * 


1    \-  h  I 


1  ! 


sn 

(Mr.  IVmIwi'II'm  ArjjiiiiH'nt.) 

Mr.  I<<mI\v('II  :  -  I  liiivi*  imt  workpil  out  tln'  conI  {trr  ton  ;  tluii 
WAH  lii-r  iictiial  <'(iNt  It)  liiiilil. 

Till-  ( 'DininiHMiiiiier  (III  (In-  |iiir(  of  tlic  I'liiti'"!  SlatcH  :  'I'Iu'M' 
vchni-Im  tliiit  ciiiiii'  antiiii)!  rruiii  Nuvii  .SiMitiii  cost  &lNiiit  ?l()0  u 
tonal  Victoria,  <lii|  llicy  not  ! 

.Mr.  ISoilwi'll :  I  tliink  \vc  iiiiiHt  u<li|  to  that  figure  t lie  cnsi 
10  of  lirin^in;^  (lu>in  nnninil. 

Till-  C'Dmnii.ssioiici'  on  tlic  part  of  tlic  I'liitcd  States : — 1 
(liink  not. 

y) ..  Moilwcil  :  I  ilo  not  ipcuk  witli  very  inucli  contiilciipc  ns 
to  t' at  licrniisc  I  Imvc  not  worki-cl  it  out.  It  was  sonicwliiii. 
flicapiT  ;  it  pai'l  in'ttcr  to  l>iiy  a  vcsi-l  on  the  Atlantic  eoa^t, 
mill  liriiiL;  licr  ni'otiii<l.  tlian  to  ImiM  at   N'ictoria. 

The  ("iiininissioiier  on  the  part  of  the  I 'nited  States  :  Mr. 
Turner  says  it  cost  him  to  liuiM  a  ;li»  ton  \f>sei  alioiit  f<l  I.')  pi  r 
ton  ;  H  ?••  ton  vcs.sci  alioiit  .**!•()  per  tiui ;  now  it  seenis  to  iii> 
20   those  are  very  close  to  your  ti^'ures 

.Ml-,  liuijwell:  I  think,  your  Honor,  that  there  is  very  little 
(litlerence  ai'ter  ii'liliii;;  the  duty.  The  N'ii'toria  price  very  nearly 
nj^rec'*  with  the  San  l''ranci>i'o  price. 

The  ( 'oniiiii^-.ioiiercin  the  pint  of  llu'  I'nit'  il  States:-!  mean 
the  cost,  not  the  value.  The  value  of  coui'>'i',  invohcs  other 
i|Uestions.  'dii  maintain  that  the  cost  is  tin-  way  of  i^ettin,'  at 
the  value.  There  seems  to  he  very  little  ilitlereliee  lietweel.  the 
pounsel  and    Mr.  Turner.      While   I     do    not    undi'rstand   yiair 

tiLtnres  t"  1m'    S|*J.">  pi    ■     ton,  Imt   almUt    !*l(Kl.       All    these     vessels 

•  >(•  fjoin^'  around  from  Nova  Scotia  cii>'t  apiiruximutcly  !<1()()  a  ton  at 
N'ielnria.  and  ihe  ".Suy  ward. "  which  you  ralue  at  5f7,'>i)t>,  a  little 
loss  than  SI(M)  per  ton. 

.Mr.  iioilwell  :  -That  is  the  cost  of  huildini^. 
The  t'limmissioiier  on  the  |)art  of  the    I 'nited    States: — Yuu 
make  yoiu'  values  on  the  cost.     I  was  tryiii;;  to  lind  out    how 
nill'  h  dillel'ence  tllPl'e  was     hetween  you   and  the  counsel    of  thr 
United  .Stales  nil  the  lllel'e  mutter  of  cost. 

Mr.  ilodwll : — 1  will  try  to  i,'.t  that  into  shape. 

Mr.  I)ii'k  son: — llefore  the  ( 'ommis>.iiiners  rise,  your  lioimr 
40  nskrd  in  co.ncction  with  .Mc('ulloui;h  .Smith,  who  was  the 
Marine  Railway  man,  what  was  his  testimony  as  to  the  cost  of 
vessels;  and  in  that  connection  I  will  read  his  answer  to  the 
(piesti::ii  as  to  which  he  was  called,  it  was  in  the  "  t'arolena  " 
case,  and  the  (|Uestioii  is,  lleconl   paj,'e  l!i.">:    • 

"  (}.  Vou  have  heard  the  vessel  descrilied  a>  heiii;^  rc|iairi'il 
"  in  I. SMC  f     A.     Yes. 

"  y.  You  heard  that  deserihed  hy  .Mr.  Uohinson,  n  witness 
'=  here  i-     A.     Yes. 

"  y.     Having;  heai'd  tlmt,  and  fts.suniinif  the  "  Curoleim  "  to  lie 
50    "  somewhere  uhout  .'to  tons,  1  ask  you  if  she  were  ottered  for  sale 
"  in  I  MM)    for  a  sealiiij;  vessel,  in  your  opinion  what  W(jiild    she 
"liBve  liriiui,dit  f" 

That,  after  some  discussion,  was  'inswered  as  follow.s  hy  the 
witness.   Record  pa^^e  11(4. 

"  The  witness  :--!  am  not  nhio  to  ^ive  the  value  of  that 
"  vcssid  of  my  own  kiiowledij;e.  I  cannot  hy  any  means  make 
"  it  out  even  satisfactory  to  myself.  I  never  .saw  her,  Imt  1 
"  imajiiuH  the  vessel  wonhi  be  worth  ahout  !?;Mit)()  or  8:1,700,  or 
"  .sometltinj^  ahout  that." 
GO  \Ve  submit  wdiether  it  is  just  rij^lit  to  charjje  us  with  unfair- 

ness in  our  criticism  of  his  use  of  the  word  '•imagine,"  when 
he  uses  it  in  that  connection  and  states  it  as  ticcessarily  imnj,'iii- 
ation,  he  never  having'  seen  tlie  vessel,  never  having  iioard  of 
her  valuation,  and  therefore  speaking  from  imagination. 


353 


(.Mr.  IUhIwi'H'n  Ai'^'iiini-iit.) 


Mr.  Hdilwell :— Thin  In  wlint  I  nh\vvl  to.  Mr.  Dickinson. 
Ih-rc  is  ycMir  iirjiiimciit ;  "Mi'  i>  iiotcit.il  in  the  nr;,'uiii('iit  in 
I  lie  CUM-   (if  till' "  ("iirolfiia,"  pnsuiimlily  i-illirr  out  of  ilcfi'nco 


I'nr  liis  ini'tlioil  of  valiintioti  or  liccaiHi!  Iiis  ii 


nii<riiintiiiii  WHS  not 


-Iron;;  t'non;,'li  to  lirin;;  lii>«  tii,'ur(  s  uslii),'li  astlu'  otlii'r  witni'h«.c'» 
--\\.)ih."     Now  wliat  till  you  mraii  Ity  tliat  !'     Wliat  is  tlm  inxin- 
|()  nation  ? 

Mr.  Dickinson; — Tlio  insinuation  is  Hint  you  lalliil  tliis 
witness  t'Xpi'ctini;  liini  to  swfiir  tliattlic  '  Carolina"  was  worth 
S.'>,()0(»,  III' iliil  nut  I'oini'  up  to  tin'  murk;  Im  stati'il  a  oasi- of 
iiiiai;iiiation  puri'ly,  itml  even  on  iniai.;ination  In-  iliil  not  come 
up  to  your  valuation. 

At  luilf-past  four  o'clock  the  Conimissioncrs  rose. 


ji » 


P 


c- 


ii       11 


k 


r  > 


lit 


'7* 

mm 

Plfm'' 

'1  i  , 

i'  -■  f." 

Commissioners  under  the  Convention  of  February  8th, 

1896,  between  Great  Britain  and  the  United 

States  of  America. 


LcyiHlativf  CoviiK'il  I'liaiiibfr,  Provincial  nuildin^'. 

At  Halilax,  N.  .S.,  .Si-ptciuhcr  7tli.  lS!t7. 

At  1 1  A.  M.  till-  ('(iminissioiuTs  took  tlu-ir  scats, 

20  Ml".  Htxlwcll  continues: — Yesterday  your  Honor  asked  nie  to 

verily  the  rule  as  to  the  time  when  the  value  of  the  vessel  was  to 
he  taken  in  cases  were  tVei;;ht  was  allowed.  I  find  at  l>a;;i. 
Ill  ol"  Mar.sden's  C't^llisious  at  Sea,  Third  Kdition,  these 
words  : — 

"II'  she  was  earninji  l'rei;;lit  lie  is  entitl(Ml  to  the  estimated 
"  value  ol"  the  shij)  at  the  end  of  her  voyaj^e,  tojjether  with  tlir 
"  freii;ht  she  would  have  earned,  less  the  cost  of  comnletiuf,'  the 
"  voyap',  and  interest  on  the  whole  frcau  the  prubahle  end  of 
'■  the  voya<;e," 
t\0  1  think  that  is  the  way  yoiu'  Honor  stated  the  rule. 

Heferrin;:  for  a  moment  to  the  ijuotation  from  the  eviclence 
of  Alexander  Wat.son,  in  th<'  I'nited  States  Ari;ument  at  pa^^e 
2K2,  I  wish  to  read  from  the  l>ej;inniti;j  of  the  evidence  of  this 
witness.  He  is  a  witness  called  Ity  us,  a  shipwri;;ht  and  ship- 
huildcr  at  Victoria.  At  JMi^j^e  187,  line  40,  he  .says  that  he  was  a 
shipwri^rht  and  had  hei'ii  occupied  in  that  husiness  since  1874: — 

■Q.     On  your  own  account  :*     A.     No,  not  lately. 

"  You  were  apprenticed  to  that  trade  :*     A,     Yes. 

"  f).      How    lonj;    have  you     Iteen     workinj;    on     your  own 
40  "Account?     A.      18H(i   was    the    first  Jol)    1    took    on    m^-   own 
"  accomit. 

"  CJi.     Was  your  father  in  the  .same  business  ?     A.      Yes. 

"  i).  And  were  y>iu  workinij  with  him  for  several  veurs  ' 
"  A.     Yes. 

"  Q.  I  suppose  you  have  a  ^^ood  deal  of  experience  in  the 
"  value  of  Vessels  f  A.  Well,  I  have  been  workiufj  at  them  all 
"  tlie  time,  it  is  all  the  work  I  ha\e  done. 

"  (^.     What  is  the  class  of  vessels  that  3"ou  have  constructed 
"principally?     A.     Mostly  steamers  ;  1  have  worked  on  schoon- 
ryO  "  ers  and  built  schooners 

"  Q.  How  many  vcs.sels  have  you  built  ?  A.  Do  you  mean 
"  myself  ? 

"(.).  Yes  ;  or  worked  on  the  bni!din<^  of  them  ?  A.  I  have 
"  worked  on  vessels  of  ;(()()  tons. 

"  ii      Do    you  know  the  "t'arolena?"      A.     Yes. 

y.  Did  you  ever  do  any  work  on  the  "  Carolena  ?"  A.  I 
"  worke<l  on  her  once,  I  tlii'ik. 

'  Q.    When  was  it?    A.    When  she  was  repaired  after  comiiii,' 
"into  collision  with  a  steamer  condnj^  into  Victoria  Harlior. 
(to  "  Q..     For  what  purpose  was  she  Used  tht'i!  ?      :\.     She  was  a 

'  Pilot  boat  I  think,  but  I  would  not  be  positive  on  that. 

"  Q.  In  what  year  was  that  ?  A.  I  cannot  <»ive  it  to  you 
"exactly,  but  it  was  about  18H2  or  I88;{. 

"  Q.     Dill  you  see  her  out  of  tlie  water  then  ?     A.     Yc". 


■20 


"  was 

"  ( 
"  vahi 
"  I  d. 
"  time 

■' t 
"  vessi 
"  Well 
■'  valni 
••  but 

Th 
evideii 
l.s.s,  1 
1 888 

A( 
witne: 


40 


lid 


•II 

'he    h; 

"  Victo 
"  calcul 

'•  tllKt  c 

"at  fro 
The 
disclose 
ness,  is 
."(I   evidenc 
ation  U| 
I  sidimi 
\'ictoriii 
ton   to 
statetl 
by  Mr. 
I  lie  com 
respecti' 
Turner, 
"I  h 
"  is  that 
■   100  to 
'  ton.     ] 
"  becaus( 

■Q. 

'  tons  ? 
"  averajfi 

"  ^  es,  si 

A      Th 

'  ihi'  los 
" tons  / 
"  Vessels, 

■•  'i- 
"  have  ni 

"  which  i 

If  M: 

not  be  ar 
and  Ljreal 
il  be  said 
\  ictoria 


(Mr.  BoihvcU'.s  Arfjmiiont.) 

"  Q.  Hnil  _V(ni  occiision  then  in  sih-  in  wlmt  condition  slie 
"  WHS  I*     A.     Yes,  we  ciMiiil  see  pn-tty  well  wlmt  siie  was  liixc. 

"  Q.  IIiul  yon  any  occasion  to  form  an  opinion  as  to  licr 
"  vulnc  ?  A.  Well,  \vi'  could  sec  what  the  vessel  was  like,  hut 
'■  I  don't  know  as  1  formed  any  opinion  as  to  iier  value  at  that 
■■  time. 
Ii'  "  Q.  Hut  from  the  knowledjjc  that  you  then  acquired  of  tlic 
"  vessel  what  Would  you  estimate  her  value  to  he  then  >  A 
"  Well,  <if  course,  the  value  varies,  hut  1  c(juld  ^ive  you  >\  general 
valuation:  it  would  he  ahout  !?4()0(),  or  perhaps  ii  little  lower. 
"  hut  somewhere  ahout  that. 

Then  he  is  asked  if  he  knew  the  •'  Carolena,"  and  I  read  the 
evide!K'(?  upon  that  point  yesterday.  In  cross-examination,  page 
1;SS,  line  .")(),  he  savs  that  he  huilt  the  hull  of  tlie  "  Minnie,"  in 
KSNS  and  tinished  her  in  l.S,S!t. 

At  page  2S."{  of  the  United  States  Argument,  referring  to  this 
-II   witness,  it  is  saiil :  — 

"  In  his  examination  as  to  the  value  of  the  "  Onward,"  which 
"  he  liad  never  worked  on,  hut  liad  seen  in  the  Harhor  of 
"  Victoria  in  IfSS.'),  he  stated  that  his  valuation  was  hnsed  on  a 
"  calculation  of  !*l"2."t  iier  rcgistereii  ton  ^) /<('//</ «  iwir  rcssrl  of 
'•  thill  clitns  in  iN.Sli;  and  on  this  hasis  he  valued  the  "  Onward  ' 
"at  from  S4,:{-J:)  to  !:?."),t)()()." 

The  suggestion  that  his  valuation  of  the  "Onward" 
discloses  the  incompetency  ami  ignorance  of  the  wit- 
ness, is  not  justified  upon  a  consideration  of  the  whole  of  the 
."id  evidence.  Your  Honors  will  ohserve  that  he  is  basing  his  calcul- 
ation upon  the  cost  of  construction  of  a  new  vessel  of  that  class  and 
I  snhmit  that  all  the  eviilence  corrohorates  his  statement  that  in 
N'ictoria  at  that  period  of  time  it  would  have  cost  at  least  812")  a 
ton  to  huild  a  vessel.  It  further  appears,  as  I  have  already 
stated  that  our  witnesses  on  this  point  are  eorrohorated 
hy  Mr.  Turner,  especially  when  you  take  into  consideration 
the  conditions  which  prevailed  at  San  Francisco  and  Victoria 
respectively.  Let  me  reacl  an  extract  from  the  evidence  ol'  Mr. 
Turner,  page  Iti.SX,  line  2t). 
40  "I  luive  not  mudi^in  exact  calculation,  hut  mj'  impression 
"  is  that  what  vessels  I  huilt  at  that  time,  ranging  from  :U)  to 
'•  100  tons  or  a  little  ovc  r,  would  average  ahont  8101  or  §102  a 
'  ton.  I  perhaps  ought  to  have  made  this  average  hefore, 
'■  hecause  the  large  vessels  cost  much   less  per  ton. 

"  Q.  Now,  we  will  take,  if  you  please,  a  vessel  of  ahout  .SO 
"tons!'  A.  1  should  say  al)0ut  !*ll.i  per  ton  would  he  the 
"average  for  that  sized  vessel,  according  to  my  hook  heri>. 

"  ti).  And  is  that  the  cost,  or  valuation  of  delivery  >  A. 
"  Yes,  sir. 

"  Q.     From  yom'  shipyard    all  c(piij)ped  f     A,    All  eipiipped. 

"  i}.  That  is  what  wouhl  he  coming  to  the  ship  huilder  ^ 
"  A.     That  is,  with  protits  included. 

{}.  Take  a  vessel,  if  yon  please  of  M)  tons  ^  I  sujipose 
'  thf  cost  per  ton  inei-eases  until  yo\i  get  down  as  far  as  thirty 
"  tons  /     A.    Yes,  it  increases  very  rapidly  as  you  get  to  snuiller 

"  Vessels. 

" ',).  Does  it  incr^'iise  helow  30?  A.  Yes,  continually.  I 
"  have  notlung  here  of  40  t(/ns,  I  have  one  of  50,  huilt  in  1S8S 
"  which  cost  S4,.S0()." 
lilt  If  .Mr.  Tui!i"r  thought  81 1.'>  a  ton  in  San  Francisco  would 
not  lie  an  uid'air  price,  especially  in  view  of  the  competition 
iiml  great  ailvantages  there  were  for  huilding  at  that  place,  can 
ii  lie  said  midcr  all  the  conditions  proved  to  have  existed  at 
\  ictoria  that  a  valuation   of  8l2o   a    ton  tliscloses  anj-  incom. 


.lO 


ill'' 


J         ■   i  I   -  -  . 


■^1 


I,!  "I 


II 


WmW 


856 

(Mr.  Bodwell's  Argument.) 

pc'tiMicy  or  i<j[norancL'  in   tho    person  e.xpre.s>*in|^   the    opinion  ? 

I  .'suttinit  if  tliiit  is  to  be  siiid   it   must  iilso    l>o  stilted    tiuit  .Mr. 

Turner  is  ivlso  incompetent  itnd  ignorant:     Your  Honors   wid 

doulitiess  lie    satisfied  tiuit  Watson's   estinnte   was  fair  and  a 

proper  one,  iiaving  regard  to  all  tlie  surrounding  circumstances. 

.\ly  friends  also,  at  page  i.*s:{  of  tlieir  Argument,  criticise  witli 

10   some  severity  the  evidence  of  John  J.  Uohinson,  a  witness  callcil 

on  iii'half  of  Cireat  Britain.    The  principal  ohject  in  calling  this 

witness  was  to    prove  the  repairs   made  on  the    "  Cnrolena"  in 

ItSiSj-,  but  incidentall)'    he  was  asked  for  an    opinion  as  to    tin; 

value  of  that  vessel,  and  he  gave  it  fairly  and  frankly,  statin:,' 

that  it  was  formed    simply  from    his  eoiuiection    with  the  ship 

b'.iililing    business  in  the  city  of  Victoria.     It    is    ni>t  c  aimeil 

that  it  has  any  more  weight  than  lie  attached  to  it  wlien  he  was 

examined.      \Vc  say,    how(>ver,  that  a  man  who  has  been    in  the 

ship  iiuilding  business  in  Victoria,  a    joui'neyman  if  you  please, 

'20  nnist  necessarily  form   an  opinion  as  to  the  cost  of  building  a 

vessel   there  which  is  worthy  of  attention.      This  witness  in  the 

onlinary  course  of  things  would  ac(iuire  a  consiilerable    know- 

led''e  of  shin  buildinir.     .At  uixw  I.')'?,  line  ol.'is  the  followiiiii : — 

"  (.,>.      Your  name  is  John  J.  Hobinson  ?     A.     Yes. 

"  Q.     You  live  in  Victoria  :'     A.     Yes,  sir. 

"  if.     Anil  are  a  ship  carpenter  ?      A.     Shipwright  ami   ship 

"  builder. 

"  Q.     How  long  have  you  been  in  Victoria  ?     A.     Ever  since 
"about  1S77, 
30         "  {}.     [lave    you  been    working  at  your  trade    during  that 
time  ?     A.     Ail  the  time.  " 

He  is  then  asked  about  the  "  Carolena  "  and  at  page  1.).'), 
"  line  10.  he  says  : — 

"Q.  Have  yon  an  opinion  as  to  her  value  ?     A.     Ye.s. 
"  Q.      What  is  that  o]iinioiias  to  her  valui;  in  ISS-t  and  188.5? 
"A.      Well,  about  ^r>Sm). 

"  Q      iiavr  you  an  opinion  as  to  the  cost  of  building  vessels 
"  per  ton  in    N'ictoria  at  that  time    and  prior  to  that  time?     .\. 
'  Uh,  I    sn|ipose  all    the  way  from  S\'>0  up,  builtlers'  measiue- 
40   "  meiit.  " 

Hi-  is  not  attem|>tin4  to  speak  with  authority,  his  evidence  is 
valuabh-  because  it  is  given  so  frankly,  .\tthe  very  top  of  page 
I .").")  he  is  askecl  : — 

•  ().  In  the  course  of  yoiu'  liusiness  here  have  you  aecpiired 
"a  knciwleilm'  of  the  value  of  ves.>eis  !  A.  No,  I  could  not  say 
"tliMt  I  have,  I  have  Ljeneral  ideas  all  roinid.  " 

He  is  tc'stifyi.ig  from  the  general  knowledge  he  hacl  iiec|uin'd 
in  I  he  course  of  all  these  years  of  residi'iiee.  lie  had  an  opinion 
as  to  the  \alue  of  the  "("arolena,"  :ind  that  opinion  is  supported 
50  by  the  other  eviilenee  in  the  I'eeoril.  It  is  based  upon  the  cost 
of  building.  He  says  it  is  Si oO  a  ton,  .MeCullough,  Smith. 
Tin  ptl  ainl  others  who  has  e  had  experience  and  ha\enot  the 
slightest  iiiliresl  in  this  ease,  who  wei'e  taken  away  from  their 
business, and  were  \ery  unwilling  witnesses,  gave  your  Honors 
praetieally  the  same  price  as  the  cost  of   building. 

The  ('lanmissioner  on  the   jiart  of  the    I'nited    States: — At 
what  tiguie  does  Turpel  put  the  cost  (if  building  ^ 

.Mr.  liodwell :     At  Si 7.")  to  ><-M)  a  ton.     That  is  at  page  l(i!>. 
line  -JO. 
00         'i'lie  Commissioner  on  the  part  of  the  rniti-d  .States  :--That 
incliiiles  the  mittit.     What  iloes  Smith  .say  about  it  f 

.Mr.  hodwell :  -He  ptits  it  at  i<I.JO  per  ton  I  think,  but  I  will 
make  certain. 

The  Commissioner  on  the    part  of  the    I'nited   States: — Ac- 


■■!| 


307 

(Mr.  Bodwell'H  Ar^inent.) 

cording  to  the  Unitetl  Stiitt's  Arjfuint'iit,  Mr.  Watson  sceniH  to 
lmv(  J)wn  an  exiMTifnctMl  man  as  far  as  s)ii|)l)iiil<lin<r  was  con- 
eornt'd.  Ho  liasis  liis  valuation  of  tiic  "Onward"  at  a  cost  of 
iif  12:')  pi'r  rc<ristt'r<Ml  ton,  to  build  a  new  ship  of  that  class  in 
lHK(i.     The  "  Onward"  was  a  vessel  of  2:1  tons. 

Mr.  Hodwell  : — M").2()  tons,  as  j^iven  in  llie  evidence. 
1()  The  Connnissioner  on   the  part    of  the    I'nited  States  : — Mr. 

Turner  puts  the  cost  of  huildin^'  a  siniiiar  vessel  at  !:*11.)  per  ton. 
How  inueii  diHi-renee  is  there  in  the  evidence  of  these  two 
witne.sses  :■ 

Mr.  Hodwell  : — Well,  ahout  SIO  per  ton  and  that  leaves  out 
of  aceoiuit  the  duty  and  inerease<l  ti'onhle  of  liuildin<;  in  Victoria, 
and  I  nuiy  .say  they  |)raetieally  a;j;ree. 

The  Connnissioner  on  the  part  of  the  I'nited  States: — You 
have  witnesses  who  te.stifv  that  it  cost  !*17.")  or  S20()  per  ton.  I 
am  not  makini;  any  sui;i;estion  as  to  the  eo.st  j)er  ton,  hut  assmii- 
•Jo  injj  that  you  are  rij^ht  and  that  that  is  the  test,  I  want  to  see 
how  near  you  eonii'  to  what  perhaps  mi^ht  lie  called  the  leading 
witne.sH  for  the  I'liited  States. 

.Mr.  Hodwell : — We  .sny  the  weij^ht  of  evidence  is  in  favor  of 
the  following  proposition,  and  it  is  the  len;;t!i  to  which  we  ask  the 
("onnmssioners  to  go.  On  page  HI,  line  ■'{(),  of  the  Hritish  Argu- 
ment, we  .say : — 

"There  is  an  abundance  of   competent   and  ri'lialile  evidence 

"  introduceil  on  liehalf  of  (Irejit   liiitain,  which  estahlishes  coti- 

■■clusively  that  undei'  the  circnnistances  ahove  refei'rccl  to,  ves- 

;)()  '•  sels  to  the  class  used   for  sealing  could  not    have    heen  huilt  at 

•■  N'ictoria  for  less  than  about  f*li")()  a  ton." 

That  is  our  proposition  as  the  result  nf  all  the  evidence. 

'i"he  ( 'onimis.siuner  on  the  part  of  tie'  I'nited  States  :— Is  not 
that  a  little  inconsistent  with  yuur  slatiiiient  as  l,o  the  value  of 
the  'Saywai'cl'  which  you  place  at  ."^T.ODO  :■ 

.Mr.  Hodwell:  -I  think  the  "Say  ward  is  made  up  on  the  basis 
(if  her  iu-tual  cost  in  IN,S:{.     .She  was  iiuilt  later  than  any  of   the 
dtliei' schoonris  liilnnging    to   Capliiiii    Wamn,   l.Ucr    than    the 
"  (Irace, '  "  l)(il])liin"  oi'  "  .\inia  Heck,' 
40  The  ( 'omniissioner  on  the  part  III'  the    I'nited    Slates: — Tlie 

pcriiid   we  lijive  to  deal  with  is  I.S.SIi. 

-Mr.  Hodwell  : — That  is  true,  but  we  give  our  friends  the 
lirneHt  of  the  fact  that  slie  was  built  later  and  did  not  cost  so 
nineh.     She  was  built  in  baing's  shipyai-d  in  Victoria. 

.\t  p.ige  2S.")  of  the  I'niti'd  ,St  ites  .Argument  then'  is  a 
criticism  upin  Sieward.  We  put  him  forward  as  a  witness  to 
wluMu  we  wish  your  Ibmors  to   pay    more  than  ordinary  atten- 


fi'oni     the     Kei'oril     to     show 
which    wo    claim    that  he  is  a 
His    testimony    will   be    fouii 


tion    to,     a!id      I      shall     read 
your   tloncas  the  ground    upon 
.■)!)   expert  on  the  value  of   vessels, 
upon  page  1  "i"  :  — 

'  Q,     Where  do  you  li\e,  .Mr.  Sieward  ?     A.     Victoria. 

"  C^>.     "  What  is  ymir  occupation  at  the   present   time?     A. 
'•  Master  .Marint'r. 

"  Q.     Are  you  ingaged  in  the  sealing  busincs  ?     A.     Yes  sir. 

"  C^.     i  believe  you  connnand  a  .sealing  ve^.sel  ?    A.     Yes  sir. 

"  y.      .Vnd  1  dare  say  you  are  interested  in  them  ^     A.     Y'es. 

"  i).     Have  you  any  interest  in  any  of  the  claims  before  this 
"  Ciinvention  ?     A.     None,  sir. 
(i(t         "  l^.     How   long  had  you  anything  to  do   with   the  .sealing 
"business  in  Victoria  C     A.     I  started  in  1S.S7,  in  Septend)er. 

"  Q.     In  who.se  employ  diil  jou  go  at  that  time  ?     A.     Hall, 
"  Uoepel  iSl'  Co. 

"  Q.     At  Victoria  ?     A.     Yes  sir. 


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358 


^ 


(Mr.  Boilwell's  Ar<;uineiit.) 

"  Q.  Were  they  enijajjeil  in  the  st'uliiig  biisinosH  ?  A.  Yos 
"  sir. 

•'  Q.  Flaij  tlu'y  any  nhips  wlien  yon  went  there  ?  A.  They 
"had  an  intcri'st  in  the  schooner  "Sapphire,"  nml  al.so  in  tlie 
"  Juanita." 

"  Q.     I  liflicvc  v<iiirci»iiii<(<tion  \vi».h  the  firm  of  Hall,  (loepci 
10  "&  Co.  no  l(.n.,'.T  <".\ists  !     A.     No  sir.  I  l.'ft  tiiein  in  I.Si>l. 

"  Q.  Wliilst  yon  wen-  witii  ilull  ( iocpi'i  A:  Co.,  diil  they  pur- 
"  chase  any  si'hipiiiii-is  tjU'l  il'su.  Iiow  uiaiiy  '  .V  i  went  east  three 
"times  I'ortlicm  nii  i  |i  iiii-ii.is"!  i  in' -.cliiMiin'r  '  Aiironi,"  "Ocean" 
"Belie"  an.!   '   ( ;.ii.'\  .i, "  in   JN^".  INMI  an.i   l.S'.IO. 

"i^.  W'licrc  lii'l  yn'i  -  1  li  iiiiii:i.i-.c  tlii'si-  «clio()nors  ?  .\, 
"To  llaiifax.  Nova  Scnti.i,  ini.i  lin^n  to  Ijunenlmr^. 

"Q.     That  isin  1N.S7  :"     .\       Vrs  sii.  lli.>    ■  Anrora." 

"  Q.     Now  it'  yon  will  ti'll  hk'  tin-  tonna^i,'  :"     A.     Aliont  7() 
"  tons. 
20         ■'  Q.     Was  slie  a  new  vessel  when  yon  iKtiijjlit  lier  !  A.  Aliont 
"six  years  oM  ;  she  iiaij  heen  a  lisherniun. 

"  Q.  Wlint  was  her  initial  price;'  A.  The  first  cost  was 
"  Si24()(). 

"  B.  What  (li<i  she  staml  von  before  you  left  IJalifa.K  with 
"hcr^      A.    ^esC.dOO  or  tiierealionts. 

"Q.  What  iliij  it  cost  to  lirinj;  lier  aronml  here  ?  A.  Ahout 
".?1200. 

••(^.     So  that    with  thoso    ti^nres  she   stood  yon  iiere  aliont 
"§7S()().     A.     Aliont  that ;  yes  sir. 
i\0         "  Q.     sill' was  afterwards  I'ni^a^i'il  in  seal  fishing  !'     A      Ves, 
'  sir. 

"  ij.  Tile  iifxtvi'sscl  tliatyongot — yon  ini'iitioned  three  vessels 
"—did  yon  liiiy  more  than  three;'  A.  1  lioiight  the  fonrtli  one 
"  Dora  Siewani." 

"Q.  Ill  wl.al  yeardiil  yon  Imv  her  ?  \.  In  the  year  ISltJ  ; 
"Octoher,  1S<H.     ' 

'•  ().  V<iu  honght  her  where  !  A.  I  lioiight  lier  at  Linienlnn';,' 
"  likpwise. 

"  Q.     Was    she  on  the  stocks  when  yon  lionght  lier^    A.    She 
40   "  was  new  on  the  stocks,  yes  sir 

"Q.  What  cli.l  that  Vessel  cost  yon  when  yon  left  Halifax;'  .A. 
••■  When  I  left  Halifax  she  cost  SS74.H. 

'Q.  What  did  she  stand  your  firm  when  she  was  lanileilhere^ 
"A.  Landed  here  on  .\pril  21.  Crews  wages  paid  in  full,  total 
"  cost  of  .scho;incr  delivered  at  Victoria  was  ^7,t>."{l),2().  Tiiis  in- 
"  chides  new  sjmrs.  new  fon'sail  and  jili,  conlage,  also  one  hunting 
"  boat  and  a  stern  boat. 

"  ()      < 'oiild  ynii  give  me  her  tonnage  ;'     \.     D.'Hons. 

\tmv  tiriii    in    the  seiiliiig 
•1  vV  Co.,  but  li\' 


'i.      Mie  was   also    elllpi 
oO    "bllsiii.'ss'     .\.      ^'es,  sir.        Not    by    Hall,  (i 
"  another  eoiiiniinv  1  formed  afterwjirds. 


The  •  Ocean  Belli 


(J.     Did  you  takeanotiier  ves.sel  t 
as   next,    "she  was  Ixaiglit  in  I.S!)()  at  a  first  cost  of  !?2,4()(); 


.she   was 


SO  t< 


W 


as  siie  new 


istei-. 
A.     Sii 


bet 


ween  si.x  a 


nd 


'  old. 


.seven  yeai> 


(iO 


'Q.  Where  wa.s  she  bought;'     A.     .\t  Lnnenhnrg 

'Q.  Originally  co,st  !^2,4()(>  ;'     A.     Originally  co.st  i?2,400. 

'Q.  Cost  leaving  Hal il'ax  ;'     A.     S^d.^OO. 

'Q.  Stood  yon  when  liere  '     A.     i:<H,()()()  or  a  little  over. 

'  Q.  .She  was  used  by  Hall,  (loepel  vV  Company  as  a  .seal 


nil' 


VCSSe 


A. 


Q.     Yon  have  another  o 


th 


'C 


ieneva  i 


I  es,  sn'. 


'Q.     Where  was  Hhe  bongiit  ?     A.     At  Ltinenbnrg  iikewi 


1(1 


;')(> 


4(1 


(Mr.  Bodwell's  Argument.) 

"Q.     By  yourself/     A.     Yes,  sir. 

"  Q.  What  (lid  she  cost  (  A.  .She  cost  in  the  neighlwrhood 
"  of  SH.700  landed  here. 

"  Q.  Her  tonnage  i.  A.  Her  tonnage,  I  think,  was  about 
"  1)0.     Slie  co.st  ?8,()()0  first  cost,  whs  tive  years  old. 

"Q.  Now  we  have  then  front  the  statement  that  you  in  the 
"  eourse  of  your  experienee,  have  gone  to  Lunenburg,  Nova 
"  Scotia,  to  buy  no  less  than  fovn-  scluKiners.  I  want  to  *-x])lain 
"  to  the  (,'onnnissioners  why  you  took  the  trouble  of  going  away 
"  aroiMid  there  f     .\.     Well,  ut  the  tinii-  we  foinul  it  thi'  cheapest 

■  way  to  get  a  good,  reliable  vessel,  notwithstanding  the  risk  of 
"  bringing  her  around.  Building  here  was  rather  costly  in  those 
"  days  an<l  we  found  it  cheapest  to  go  there. 

"  C^.    Just  take  thi>se  four  vessels  we  have  spoken  of  that  \'ou 

'  yourself    brought  around  from     Lunenburg,  if   you  had    been 

"  asked  to  sell  them  here   at  tin;    verj*  tigin-t;  that  they   cost  you 

20  "  lande<l  here,  would  you  have  .sold  them  at  that  price  '.     A.  No, 

"  sir. 

"  Q.  Were  they  as  a  matter  of  fact  saleably  worth  more  ? 
"  A.     They  were,  sir. 

"  C^.  .\n<l  if  you  at  that  time  had  built  vessels  of  that  des- 
"criplion  here  in  Victoria,  could  ^'ou  have  built  them  for  those 
"  figures  or  would  they  have  cost  you  more  '.  A.  They  would 
•  have  cost  considerably  more  in  the  earlv  part  of  1SK7  and 
•'  1HH!». 

"t^.     .\nd  would  tilt;  siune  remark  apply  to  I  HS(i  i*    A.     Well, 

■  it  would  naturally,  bei-aiise  before  the  ('.  I',  U.  was  openeil  labor 

■  was  scarce  here. 
'■  Q.     As  a  matter  of  fact,  can  yi>u  build  vessels  cheaper  now 

•or  the  last  few  years  from  18!K),  than  you  couM  in  l^iH7  '.  A. 
•  Considerablv,  I  think. 

"  Q.  Suppiisitig  you  lin\-e  a  vessel  of  say  !>0  tons,  and  a  ves- 
"  sel  of  sa\'  -ii)  tons,  and  you  come  to  figure  what  they  I'ost  per 
'■  ton.  wouM  the  small    vessel  cust  niKri-    pei' ton   than    the  large 

■  vessel  :•      \.     The    small  vessel    woulil    cost  ciaisiderably    more 

■  pi'r  ton. 
"  (^      Befori-  goiiiLj  to  the  trouble  of  going  around  to  Lunen- 

'■  burg  to  get  these  Nova  Scotia  schooners,  did  y<iu  make 
"  en(|uiries  as  to  whether  jou  could  get  suitniile  vessels  on  this 
'■  side  ?  A.  V(;h,  sir,  I  eiKpiired  at  San  Francisco,  and  likewise 
"  corresponileil  with  parties  on  the  Soinid. 

'  Q.     Of  cotiise,  now    1  refer  particularly  to  the  year  1NS7: 

■  at  what  time  did  you  inquire  >  X.  Hefoi'e  1  went  east  the  first 
"  tinn-,  my  firm  had  left  it  with  nie,  ami  I  wanted  to  do  what 
'■  was  riglit  auii  '(ft  tti)thiit<j  undone  to  inform  uiyscff  wln'ri'  the 
"  lit'iit  ntiitirt  nviild  lie. 

"  (.).  And  having  loaile  those  entpiiries,  you  conclu<!ed  that 
"  it  v^'as  the  che'ipot  way  to  go  east  i'     \.      I  did. 

"  (j.  You  considered  that  a  good  business  tronsactiou  ?  A. 
"  1  did.  For  illustration,  in  the  year  ISill  the  sciiooner 
'  "  Victoria"   was  built  here  :  she  cost  over  SI  1. 000. 

"  (,^>.      How  nnich  tonnage  ?     A.  About  7")  tons. 

"  Q.     Was  she  built  for  sealing  ?     A.   Yes,  ,sir. 

"ii.  Wiio  built  her  ?  A,  I  think  .Mr.  .McDonald  and  Mr. 
"Clark  ;  one  of  the  local  builders  any  how. 

"  Q.  In  addition  to  thi-  actual  cost  of  l>rin'.;ing  them  around 
"  from  Halifax  is  tliere  any  considerable  risk  of  their  being  lost  ? 
■'  A,    Yes,  sir. 

"  Q,  As  a  matter  of  fact  have  some  of  the  vessels  been  lost 
"  coming  around  (    A,    Yes,  sir. 

"  Q.     How    long  does  it  take   one  of  these  vessels  to  come 


III) 


'J 


|!' 


u 


r,'  r 


hii.l|il' 

I'M 

:  m 


i'.m> 


ilii;-;l 


1    'I 


S'ti  • 


I 


180 

(Mr.  Bodwcll's  Avfjuinent.) 

"around  ns  a  rule?  A.  I  went  one  time  in  108  days,  ninl 
"  another  time    in  157. 

"Q.     You  hroujjlit  them  aiound  yourself  ?     A.   Twoof  tin m 

"  Q.  I  believe  you  wvw  not  personally  ac(iuainted  with  the 
"  "  (^arolena  "  ?     A.     No.  1  wa.s  not. 

"  Q.     lint  from  your  kiK.'wIedjfe  of  vessel.s,  take  a  vessel  in 

10   ••  1H.S7  suitnliie  for  scalin;,'.  and    of  the    tonnajje  of  32   tons  up 

"  therealiout.",  would  \o\i  con.sider    ?4,()()()  n  hij^h  or  low  valnn- 

'■  tion  ?     A.     I  sho\iId  e<ln^i^er  that  a  very  rea.sonahle  valuation 

"consifierin;;  the  exju-rienee  I  had  afterwards  in  liuyin_<(  vessels. 

■■  Q.  Vou  state  as  a  matter  of  faet  that  yim  never  saw  the 
'■"  Cnrolena  /  "     A.     1  will  say  that  in  1«!»1  I  paid  i?:},2()()  for  a 

"  vesM'l  ahout  30  years  old. 

"  (^,     What  tonna<{e  was  sIh-  ?     A.  40. 

"il     And  that   was  in   l.S!)l  ?     A.     18!tl  or  the  l)«j,'inninfr 
"of   I,s!t2." 
20  If  your  HonorH  are  Halisfied  of  hi.s  credihility,  as  I  tliink  yon 

must  have  heen  on  hcariii;;  '''■">  V""  have  the  very  hest  evidenof 
you  ean  j^et  as  to  the  .state  of  tiie  market  in  1880  for  .sealiii>,' 
ve.s.sels  in  Vietoria.  He  ft)und  the  only  place  to  jjet  veH- 
sels  jiropiT  I'oj' sealing;  purpoHcH  was  on  the  Atlantic  eoa8t.  ami 
he  tells  you  they  were  not  f(ir  sale  in  San  Franeiseo  or  on 
I'ujjet  Sound. 

The  ( 'ominisHioner  on   the    part  of  the    Tnitefl    States: — l)ii 
you  reiie'inher  whether  the  iuHuranee  around   the  Horn  was  ui- 
cluded  in  the  eo.st  ( 
30  .Mr.  I^cmIwcH  : — 1  eannot  tell  you  from  memory. 

Sir  Charles  Tupper:  -I  do  not  think  is  was. 

Mi-.  Mddwell  :  111  the  I'liited  States  .\rj;umeiit  referrin;;  to 
to  tlie  evidence  cif  this  witness,  they  sny  that  he  was  a  sealiii^r 
eapiiiiii  and  hud  nolhiiii;  to  do  with  liie  sealinj,'  liusiiiess  prior  to 
liS.ST.  I  hiive  read  your  Honors  the  evideiiee  and  you  will  see 
to  what  extent  that  eritiei^m  is  justilied.  Further  down  in  the 
I'nited  .Sinles  .Vrj^unient.  they  say  : — 

"Ili.>  eA|.erienee    in    purcliHsin;,' Vessels  luid  his  i;;noranee  of 
"  tlie  "Afla,"  for  which  he  niaile  an    otler  in  I8S7,  show  that  his 
■J-0   "  viilu.ilion  of    her  is  mere  speculation." 

I  will  read  the  (evidence  to  your  Honors  on  that  point.  He 
stateii  that  he  knew  .Mr.  (Jray  and  saw  tie'  "Ada"  in  1887.  lie 
says  at  line  10,  page   1242:  - 

"  l>irect  examination  : — 

"t^.  Captain  Sieward,  you  know  Mr.  (iray  who  waH  just  in 
"  the  witness  hox  f      \.      Ves. 

"  Q,      Were  you  in  Vietoria  in  1887^     A.      Yes,  Sir. 

"(J.     1  >id  you  know  the  .\da  ^     I  ilid. 

"<,•.      Did  you  exaniini' that  vessel  /     A.      Yes,  Sir. 
50  '•  (,^).     J)id  you  have  a  conversation  with  .Mr.  (iray  with  refer- 

"  ence  to  the  Ada  ^  A.  I  had  a  eonverMation  with  Mr.  (!rav,  in 
"  the  ])re.seiice  of  .Mr.  ].,inidlier^,  some  tinn'  in  the  midiile  of 
"  April,  IK,S7. 

"  (^.  What  was  it  i  A.  I  asked  him  the  question  whether 
"  he  would  accept  eii^dit  or  nine  thousand  ilollars  for  the  Ada. 
"That  is  ten  yeai'^ano.  anil  I  would  not  he  positive  whether  it 
•'  was  eiffht  oi-  nine  thousand  dollars  He  said  ;  "  I  <io  not  take 
"  ten  thonsniid  dollars  for  her:  I  am  Koinj.;  to  send    her  .sealini;.' 

"  if.      Were  you  lookinf^  for  ships  then  !     A.     I  was  at  that 
GO   "  time.     It  was  the  Hrst  year  that  I  went  into  the  husines. 

'•  (^.  Was  that  a /)()7(ff  //(/^  otl'er  on  your  part  /  A.  Well,  of 
"course,  his  answer  cut  the  nej^otiations  short. 

"  y,^.  Would  you  at  the  time  that  you  made  him  that  otler 
"  have  jjiven  him  eijjht  or  nine  thousand  ilollara  for  the  "  Ada/  " 


3«1 

(Mr.  Ikxlwell'H  Argwincnt.) 

"  A.  I  was  at  that  time  intending  t<»  Imy  a  vessel,  and  I  subso- 
"  '|ueiitly  iKuijjlit  Olio  in  SepteiiilHir  of  that  same  your.  My  otter 
"  in  that  respect  ini^lit  be  coiiHiilercd  houa  tide. 

"  Q.    Wlmt  do  you  believe  that  the  iiliip  was  worth  then  as  she 
"Hto(xl?     A.     First  and  foremost  she  Wi<>(  a  well  built  ship,  well 
•'  found  and  in  {;oo<l  condition,  and  there  and  then  read}'  to  start 
10  "  the  season.  " 

"  Q.  What  was  she  worth  at  that  time  ?  A.  To  my  notion 
"  she  would  have  been  worth  oiyht  or  nine  tbouHaiul  dollars, 
"  more  particular  as  we  had  the  season  rij;ht  before  u.s.  " 

And  in  cross  examination  ••*,  pajje  124.'}  he  says,  iii  order  to 
show  what  oii(|uirieshe  had  mHde,an<l  what  invcstifjation  he  had 
gone  to  before  he  made  the  otter  : — 

"  A.  I  did  not  se(>  her  hauled  out.  She  f^ot  a;;round  in  the 
"  harlxiur  one  day,  ami  I  saw  her  on  the  mud. 

"  Q.  You  had  never  seen  the  "Ada  "  hauled  out  before  you  had 
•20    "  this  conversation?     A.    No  ;  but  I  was  told  alMiut  her  by  .some 
"  who  had  seen  her  in  Yokohama. 

"  Q.  How  mail}'  dayi  had  the  '  Ada  "  been  in  port  when  you 
■  had  this  conversation  with  Mr.  (Jray  ?  A.  Aljout  a  week,  I 
"  think.  She  arrived  in  the  early  part  of  April  and  this  was  the 
"  middle  of  the  month. 

"  Q.  (.'annot  you  remeiiil)cr  whether  it  was  eight  or  nine 
"  thousand  dollars  ("  A.  I  cannot.  It  is  ten  years  n^o  now  and 
"  theiM  was  no  writing.     I  would  not  swear  to  it. 

"  Q.     Did  you  have   any  instructions  from  your  firm  to  buy 
'M)  "  that  ves.sel  !     A.     The  tirm  was  !iot  organized  then. 

"Q.  Din'tyou  tell  me  a  moment  ago  that  you  were  a  member 
"  of  the  firm  at  that  time  <  A.  I  was  at  the  time  I  went  East  for 
"  the  "  Aurora.  " 

At  line  8G  of  the  same  page  be  says  as  follows : — 
"Q.     You  did  not  buy  any  vessel  until  September  ?     A.  No, 
"  sir. 

"  Q.     You  do  not  mean  to  say  that  there  were  no  vessels  here 

"  in  Victoria  in  the  spring  of  1887  that  }  ou  could  have  Ixiugbt  ? 

"  A.     I  tio  not  know  of  any,  and  furthermore,  after  the  sea.son 

40  "  commenced  I  did  not  look   for  anything   until  the  close  of  the 

"  season." 

The  Commissioner  on  the  part  of  the  United  States : — What 
j-ear  was  that  ? 

Mr.  Bodwcll  ;~In  18S7.  At  page  28.-)  of  United  States 
Argument  there  is  a  criticism  upon  the  evidence  of  John 
Sabist;  n.  Mr.  Sabiston  was  called  by  Great  Britain  to  testify 
as  to  what  be  knew  about  the  sailing  qualities  of  the  "Carolena." 
He  was  incidentally  asked  some  questions  as  to  the  value,  and 
lie  makes  a  statement  with  regard  to  that  with  frankness.  His 
.jO  eKiimate  of  the  cost  of  building  a  vessel  like  that,  namely 
85,000  is  quite  correct,  having  regard  to  the  experience  which 
lie  had  had  in  building  ves.sels.  He  built  a  vessel  of  1(1  tons  at 
San  Juan  Island ;  she  cost  him  1?3,000.  A  man  with  that 
experience  if  asked  as  to  the  cost  of  building  a  vessel  in 
Victoria,  would  be  likely  to  say  that  a  thirty  ton  vessel  woulil 
cost  ?.5,000.  He  did  not  pretend  to  give  evidence  except  from 
his  knowledge  and  experience,  and  having  regard  to  that 
knowledge  and  exporience,  I  submit  that  h\»  evidence  is  quite 
consistent.  It  is  not  denied  that  Mr.  Sabiston  built  the  vessel 
()()  he  mentions  at  the  time  he  did,  and  that  it  cost  him  the  money 
which  stated. 

The  next  criticism  in  the  United  States  Brief  to  which  I 
shall  make  reference  is  that  on  the  eridence  of  RicliRrd  Collister 
ut  page  287  of  the  United  State  Argument.     Mr.  Collister  could 


II     r 


I 


!• 


fjj;;l 


,*ij|;i! 

if ' 


362 


(Mr.    BodweU's   Arnumont.) 

have  no  oliject  whatever  in  giving  exaggerated  evidence  before 
tlie  Coinniission.  He  has  no  interest  of  any  sort,  and  lie  is  n 
public  official.  At  page  1312,  line  HO,  we  liave  this  statement 
as  tlie  result  of  ids  own  experience  ; 

"  C^.     Mr.  Collister,  you  are  at  present  inspector  of  bulls  ? 
'  A.     I  am. 
10         "  Q.     For  the   Dominion    government   in   tbe    province  of 
"  British  C'ohunbia  ?     A.  Yes. 

"Q.  How  long  have  you  held  that  office  ?  A.  Nearly  l.'J 
"  years. 

"  t^.  What  was  your  occupation  previous  to  that  ?  A.  Ship 
"  builder. 

'•  Q.     Where  did  you  build  sliips  ?     A.     Liverpool. 

"  Q.  And  when  did  you  come  to  the  province  of  British 
"Columbia?     A.     Twenty-one  j-ears  ago." 

"  C^.     And  you  have  reside<l  in  that  Province  ever  since  >     A. 
20  "  Yes. 

"  Q.  In  IMS?  you  had  something  to  do  with  the  "  Ada  "  had 
"  joii  not  ?     A.     I  surveyed  her  in  April,  l.S<s7. 

"  Q.     For  what  purpose  ?     A.     For  insurance  purposes. 

"  Q.  Have  you  a  copy  of  your  report  with  you  ?  A.  I 
"  have. 

"  Q.  What  insurance  company  were  yoii  siirveyinir  for  ? 
"  A.  Lloyd's  Utiderwriters,  San  Francisco,  the  Hoard  of  Undor- 
"  writers. 

"  Q.     Did  vou  make  a  thorough   exannnntion   of  the   ship  ? 
30  "  A.     I  did. 

"  Q.  Had  you  in  l.SJS?  a  knowledge  of  the  value  of  ships 
"  anil  tlie  cost  of  ship  luiilding  in  the  port  of  Victoria  ?    A.    Ye.s. 

•  (}.  What  in  your  opinion  was  the  value  of  tbe  "Ada" 
"  when  vou  survevi'd   lior  ^     A.     Iti  18.S7   siie  was  worth  fully 

"  suooo.'oo. 

And  at  line  35,  page  1313,  in  cross-examination  says  : — 

"  Q.  So  that  your  survey  of  the  "  Aila  "  was  not  an  official 
"  one  ?  A.  It  was  not  an  official  one  for  tbe  Board  of  Under- 
"  writers 
40  "  Q-  1  mean  as  inspector  of  bulls  ;  your  official  designation 
"  is  inspector  of  steam  hulls,  is  it  not  ?  A.  Likewise  .Marine 
"  Surveyor. 

"  Q  But  what  is  your  official  di'signntion  ?  A,  I  have 
"just  given  it  to  you.  I  am  inspector  of  bulls  for  tbe  Domiidcm 
"  Government,  au'l  likewise  I  am  surveyor  for  the  Underwriters 
"  at  San  Francisco,  and  for  tbe  Lloyds." 

In  tbe  United  .States  argument  it  is  stated  that  bis  official 
duties  were  confined  to  the  inspection  of  vessels  using  steam. 
That  is  so,  but  it  is  ndsleading  nevertheless,  because  in  his 
50  capacity  for  IJoyd's  Underwriters  be  bad  experience,  and 
foinied  i)|nnions  as  to  tbe  value  of  all  classes  of  vessels.  At 
tbe  same  (lage  of  the  record,  at  line  5S,  he  gives  tbe  following 
evidence  : — 

"  C^.  Do  you  know  anything  about  what  tbe  cost  of  tbe 
"  Ada"  was  ?     A.     I  have  no  idea. 

"  (}.  And  in  fixing  tbe  value,  do  you  estimate  the  cost  to 
"  rebuild  her  at  Victoria  ?  A.  I  estimated  her  at  what  she 
"  would  s"ll  for  at  that  tiuie  in  Victoria. 

"  Q.     You  are  quite  familiar  with  tbe  sales  of  other  vessels  ? 
(iO   "  A.      I  knew  vessels'  value  at  the  time. 

"  Q.  How  dill  you  learn  that  ?  A.  liecause  they  ivere  in 
"  (jiritt  (le)H'ivid. 

"  Q.  Hut  were  you  fannliar  with  any  sales  in  Victoria  ?  A. 
"  I  didn't  know  any  sales." 


868 

(Mr.   Bodwell's   Argument.) 

As  a  matter  of  fact,  there  were  really  no  sale?.  There  were 
a  few  transfers  of  .special  vessels  under  special  circumstances, 
but  really  no  sales.  At  page  1314  he  gives  the  following 
evidence : — 

"  Q.     Do  you  know  of  anyone  buying  here  ?    A.    Not  exactly. 

"  Q.     I  am  asking  you  about  other  vessels  ?     A.     No,  because 
10  "  there  were  none  for  sale." 

And  at  line  UH  the  following  ; — 

"  Q.  Have  you  been  concerned  in  building  any  other  ships  ? 
"  A.  I  don't  know  exactly,  I  have  been  repairing  a  number  of 
"  ships  here. 

"  Q.  Did  you  build  any  other  ship,  or  assist  in  building  any 
"  other  ship  ?     A.     I  don't  know  that  I  have. 

"  Q.  Did  you  assist  in  rebuilding  any  other  ship  except  as 
"  a  journevnian  carpenter  upon  it  ?     A.     Yes,  sir,  I  have. 

"  Q.     What   one  ?     A,     I    have   had   several   contracts    for 
20  "  vessels  since  I  have  been  here. 

"  Q,  Name  one  ?  A.  I  almost  forget.  I  had  the  '  Barbara 
"  Hoscowitz '  for  one  ;  I  did'nt  have  her  as  a  contractor ;  I  did 
"  that  for  the  Underwriters. 

"  Q.     Repaired  her  ?     A.     Yes. 

"  Q.  After  she  was  wrecked  ?  A.  After  she  was  capsized 
"  on  the  ways  here. 

"  Q.     You  helped  repair  her  then  ?     A.     Yes. 

"  Q.  And  you  had  a  contract  to  help  repair  her  ?  A.  No, 
"  I  did  it  for  the  Underwriters  ;  I  superintended  the  work." 
30  I  submit  that  Mr.  Collister  has  .shown  a  very  good  qualitica- 
tion  for  passing  on  the  value  of  vessels.  He  had  all  these  years 
of  residence  in  Victoiia.  Moreover,  his  oHicial  position  and  his 
priictical  experience  in  building  and  rebuilding  and  repairing 
slii|)s  for  Lloyd's  Umiorwriters,  would  give  him  a  knowledge 
sufficient  to  render  his  evidence  of  more  than  of  ordinary 
value. 

At  page  28S  of  the  United  States  argument  there  is  a  refer- 
ence to  the  evidence  of  John  Clark.  His  evidence  in  the  United 
States  brief  is  (luotcd  from  page  217,  line  4,  of  the  record,  but 
40  that  quotation  .•should  he  continued,  because  as  it  is  given  in  the 
Ignited  States  case  it  does  not  fairly  represent  the  with  'Ss.  He 
was  asked  by  Mr.  Dickinson  if  there  was  any  building  of  teal- 
ing  .ships  in  Victoria  in  1S84,  1885,  16SC  or  1887,  and  he  says 
no.  But  the  evidence  goe.s  on,  and  is  to  be  found  at  line  35, 
page  'in  of  the  record  : — 

'  Q.  You  don't  know  do  you  from  any  actual  building  of 
"  sealing  ships  whether  the  price  had  increased  or  decreased  up 
"  to  1892  ?  A.  I  think  there  was  one  schooner  built  here  about 
"  188S. 
.''0  "  Q.  Sealing  schooner  ?  A.  I  tiunk  so,  I  would  not  be 
■•  positive. 

"  Q.  You  are  not  positive  about  it,  of  any  ships  that  were 
"  built  of  Ibis  class  ?  A.  The  schooner  '  Minnie  '  was  built 
"  about  that  time. 

"  Q.  Has  that  been  in  your  mind  in  giving  your  testimony 
"  as  to  increase  and  decrea.se  ?  A.  Not  until  you  called  my 
"  attention  to  it. 

"  (j.     Then  you    have   no   liasis  on   which   you   estin)ate  an 
"  increase  or  decrease  in  the   cost  of  the  actual   building  of  a 
•iO  "  ship  ?     A.     In  1887  I  was  in  the  repairing   luisiness.     I  had  a 
"  chance  to  know  what  niateiial — 

"  Q.  What  material  you  put  into  repairs  ?  A.  Lumber,  and 
■  the  like? 

"  Q.     But  you  did  not  have  in  the  building  of  sealing  ships 


iSn^ 


i'  ' 


(Mr.    Bodwell'H    Ari^uiiipnt.) 

"  alto^etlier  the  Name  timber  that  you  une<l  in  tepairiii);  ?     A. 
"  Oh,  t))o  timliurH  were  all  iilioiit  ()u>  same. 

"  Q.  There  Ih  Nume  ilirtVirence  in  coHt  between  yetting  eiioufjli 
"  limber  to  keep  up  repairs,  anil  enou^jh  to  builii  an  entire  new 
"  ship  ?     A.    Oh,  certainly. 

"  Q.     You   cannot  tell  nnythin;^  about  the  cost  of  a  ship  in 
10  "  1884,  1^85,  1N86  anil  1887  i    A.    Uh,  I  liad  nothing  to  <lo  with 
"  thent  at  that  time. 

That  is  to  say  with  sealing  schoonerH  an  is  shown  immediately 
afterwards  by  his  re-direct  exnuiiiuition  :  — 

"  tj.     In  the  answer  which  you  have   jjiven  to  the  last  que? 
"  tion,  have  you  in   mind  sealit'g  vessel  cir  vessels  of  all  sorts  ? 
"  A.     1  merely  answered  the  (|Uestion  (hut  I  had  nothing  to  do 
"  with  sealing;  vessels  at  that  time.      I  w  is  repiiiririj,'. 

"  y.     But  in    188r),  in    lS8(i,  and   all  Hlon<f  to  this  date  you 
"  have  been   woikin^at  building  other   vessels?     A.      Workiiifj 
2J  "  with  the  contractors  here. 

"  Q.  And  therefore  you  have  had  experi-nce  as  to  the  cost 
"  of  such  vessels  ?  A.  1  knew  about  what  tht.  co>t  of  material 
"  was. 

"  Q.  Would  that  enable  you  to  Hx  a  value  as  to  sealinj^  ves- 
"  sels,  the  experience  you  have  had  all  alonj;  with  other  vessels  ? 
"A.  1  know  the  cost  in  \H^'2,  and  I  think  that  they  slij;htly 
"  decreaseil,  I  "  uulil  say,  since  18S6. 

"  Q.     But  I  an>  asking  you  as  to  whether  the  experience  suu 
"  hav«  had  in  the  buildin;;  of  vessels  ^{enerally   would  lu'lji  you 
30  "  in    formin<r  an  opinion  as  to  the   value  and  cost  of  sealiu); 
"  schooners  (     A.     Certainly,  yes. 

Upon  that  evidence  I  do  not  understand  why  my  learned 
friends  italicize  this  statement  in  their  arj^ument  at  page  288  : — 

"  The  ordy  value  of  the  testimony  of  this  witne.ss  is  to  show 
""  that  (i  ju lime ipnan  xfiipwrif/ht  in  iiicnmprtent  to  give  e.tpvti 
"  testiinony  (18  to  vitlues,  diid  that  one  eti'/difi-.d  in  repair  -irorl: 
"  had  little  or  no  knowledge  of  the  cost  of  build:uo  a  fennel." 

It  appears  to  me  that  the  portion  I  have  read  has  completely 

answered  that  proposition.     If  you  want  to  know  whether  Mr. 

40  Clark's  experience  is  such  as  to  enable  him  to  give  your  Honors 

information,  because  he  was  a  contractor,  you  have  that  evidence 

at  page  210,  line  55  of  the  record  : — 

"  Q.  You  stated,  Mr.  Clark,  the  contract  price  for  the  ves.sel 
'  Victoria'  as  being  l?8,750  ?     A.    Yes,  sir. 

"Q.  Will  you  say  whether  it  was,  from  your  experience,  a 
"  fair  price  or  not  ?  A.  A  fair  price.  I  was  the  lowest  tenderer 
"  any  way. 

"  Q.     Did  you  repre.sent  the  value  of  the  vessel  fairly  then  ? 
"  A.     I  think  .so. 
50         "  Q.     You  built  it  under  contract  ?     A.     Yes,  sir. 

"  ii.  Will  you  say  what  it  included  ?  A.  It  included  the 
"hull  of  the  vessel,  spars,  standing-rigging,  nnining  gear  and 
"  sails,  two  anchors,  chains  ;  I  think  that  is  about  all.  No  Hags, 
"  no  siile  lights,  no  riding  light,  no  log  line,  log,  nothing  of  that 
"  kind,  that,  was  extra. 

"  Q.      No  outfit .'     A.      No  sealing  outfit." 

It  goes   without  .saying  that  a  man  of  ordinary  intelligence 
engaged  in  shipbuilding,  even  if  he  wa.s   not  actually  a  contrac- 
tor, would   necessarily,  in  a  small   j)lace  like  Victoria,  aci|uire  a 
GO  great  deal  of  information  as  to  the  cost  of  material  ;  his  natural 
curiosity  would  lead  him  to  ascertain  such  pai  tieulars. 

San)Uel  Sea  is  also  referred  to  at  page  28!(  cf  the  United 
States  argument ;  he  is  called  a  ship  carpenter.  I  do  not  know 
exactly  why  my  learned  friends  have  changed  their  phraseology 


3fi5 

(Mr.   BixIwoH'm   Ar;j;uMient.) 

here,  l>ecaiisp  if  th«  others  wore  journeymen,  Mr.  Sea  in  certainly 
eiititletl  to  thiit  iBnk  from  liis  own  evidence.  Thin  witness' 
)|iialiKcntion  is  to  he  found  in  the  evi(h>nre  at  pa^o  S'lU.  He 
states  that  he  lives  in  Victoria  ;  is  oit  years  of  a;,'e  ;  is  a  ship- 
wri^lit  and  f')iiphiiil(h'r ;  has  heen  <'mployed  in  tliat  work  since 
ahoy  14  years  of  a^e  ;  that  lie  has  heen  enj»njjed  in  repairini; 
10  and  hiiildinj;  vessels  of  various  kinds,  and  has  worked  on  vessels 
such  as  those  used  for  sealinif.  He  saj's  he  has  contracted  f'lr 
them,  aTiil  has  huilt  two  sealinjj  schooners.  Your  Honors  will 
oliserve  that,  these  men  were  huildin<{  or  repairin;;  sliips  all  the 
time,  hut  as  a  matter  of  fact  thi""  man  oidy  huilt  two  scaling 
schooners.  He  huilt  one  in  Victoria  and  one  at  Alherni.  One 
in  IMfi.S  and  one  in  !K(KS.  He  says  lie  has  not  huilt  any  for  the 
past  ten  j-ears.  He  knows  the  "  Onward  ;"  has  seen  her  anil 
workeil  on  her  several  times  wluin  he  first  came  to  Victoria.  He 
was  not  hoss  of  the  jol)  then  hut  worked  for  .Mr.  ('ook,  anil  fi'om 
20  his  knowlcdije  he  ;»ives  his  opinion  that  at  that  tiiiH'  she  would 
he  "nrth  84,r»()0.  II.'  is  cross-examined  then  as  to  tin,'  vessels  he 
has  actually  huilt,  and  at  paj;e  S.')7,  line  +0,  he  is  asked  wirh 
reference  to  the  Onwaril  :" — 

"Q.  When  did  you  work  on  her  luider  Mr.  Cook  ?  A.  I 
"  think  it  was  in  ISJS  or  l.S7!). 

"  Q.  And  you  have  not  heen  \'-  ikinf{  on  Miiy  otln-r  ship 
"  j-ince  ?     A,     Yes,  lots  of  them. 

"Q.     Of  the  samu  clas.s  the  '  Upward  '?    A.     Pretty  much  the 
"  sami;  class. 
30         '''.J.     II. iv    -rnny  do  you   think  you  have  workecl    on  iiince 
"  187H  I     A.     I  snppoi(^  20,  it  miijht  he  more  or  less." 

The  aifum.  n>  of  the  United  States  at  pii^je  2S9  challenLfes 
liis  cvidenct  \\\'\\  reference  to  his  valuation  of  the  "  (Jnward  " 
on  the<,'round  that  lie  has  not  seen  liei'.  The  conclusion  is  drawn 
that  his  incompetency  is  apparent,  hut  it  appears  clear  that 
havinj.;  wo''  mI  on  tlit-  "  Onward  "  durinj^  several  years,  and 
Iwivin;^  seen  her  coming  in  and  out  of  port,  he  would  accjuire  a 
knowle<|ije  which  would  enahle  him  to  speak  with  a  }jreat  deal 
of  weijjht  as  to  the  value  of  the  vessel.  It  certainly  cannot  be 
40  said  that  liis  incompetency  i.s  apparent. 

Ml.  Lansinj^  : — You  did  not  read  his  evidence  upon  which  we 
base  the  statement  that  his  incompetency  is  api)arent  ? 

.Mr.  Hod  well  : — Thi.s  is  your  quotation  from  his  evidence. 

"  Q.  Have  you  seen  the  '  Onward  '  since  you  worked  on 
"  her  I  A.  Yes,  I  have  seen  her  since  she  used  to  come  into 
"  harhour. 

"  Q.     Have  you  heen  upon  her  ?     A.     Yes. 

"  Q.     Have  you  seen  her  since    IMHG  ?     A.     I  cannot  .say  I 
"  have  seen  her  since  \HH{]     I  mi, 'lit. 
.JO         "  Q.     Are  you  po.sitive  you  ^  iW  her  between  LS8()  and  1886  ? 
"  A.     I  think  I  have. 

"Q.  Well,  are  you  positive  ?  A.  lean  not  swear  exactly, 
"  hut  I  am  almost  sure. 

"  Q.  Are  vou  about  as  sure  that  you  saw  her  since  188C  ? 
"  A.      Yes." 

Now  then,  188(1  i.s  the  year  in  which  that  vessel  was  seized, 
and  he  was  speak in<j  of  the  time  prior  to  that  and  of  the  know- 
ledije  he  acquired  by  repairinj;  the  "  Onward  ",  ami  .seeinj^  her. 
I  referred  the  other  da'  in  criticizing^  the  evidence  to  Captain 
tiO  Alexander  McLean,  tot  |  i  linGaudin.  He  has  been  in  Victoria 
vitice  18(j().  He  held  a  masters  certificate  from  the  Roard  (Jf 
Trade  in  London  before  that  tiiise  ;  he  has  been  connected  with 
shipping  all  that  'me  and  is  now  holdiiifr  ofiice  tiiuler  the 
Domiiiiun  (JoveiiiuR'nt  as  the  agent  of  the  Marine  and  Fisheries 


I! 


M 


Si'    i 


■  'I   1 


A  U 


.1 


II   II 


\-i'-, 


frn^ 


(Mr.    Hoilwt'H's    Ai^Miiiifiit.) 

Dt'pnitiiicnt.  Tlic  niticiMin  in  tlic  Unitt'il  Stittf^arijiiinvnt  U|)oi) 
hJH  evidcnco  is  not  Jiitttitifil  wiitm  tlit-y  "iiy  : — 

"  Jhiim-h  (iiiiiilin,  swoiii  in  rflution  to  tli)>  eonilitioii  nnil  vnliin 
"  (if  till'  '  Alia,'  WHS  tlic  MiiiHterdf  tlie  vi'»sfl  nml  iin  allcm-il  iiiM'sniial 
"  claiiiiunt  iicfdri-  tiif  C'liiiiniiN.tiun.  Ili'  isnniy  citi'ij  in  tlit>  iiri;)!- 
"  uiiMit  lis  to  Ills  stiiti'iMfnt  that  tlu'  '  Ailn'  was  tin-  ln'st  s)>alin)r 
10  "  sclnniru'i'  in  tlu!  IiiiiImii- of  N'ictoiiii  in  lliat  year.  Mis  opinion  „, 
"  to  lii'i'  value  iloi-s  not  iippi-ur  to  lie  it'licil  upon.  NoatttMnpt  was 
"  nindu  to  ijuaJify  liini  as  an  expert,  on  tin-  value  of  vfss<'is,  and 
"  liis  t>vii|i;nc(!  (lisi'lost's  |ii>  luicl  nc  knowl»'ilj;c  on  wliicli  to  Imsii  an 
"  opinion.  As  this  cruise  on  the  '  Aihi '  wjis  his  tiist  ami  only  ex- 
"  pei'ience  witii  sriilini;  ciaft,  his  statement  us  to  the  superior  ity  of 
"  tliii  ves.st'l  [los.ses.iies  no  wei;;lil  as  cviilence.  I[e  is  clearly  in- 
"  competent  to  ),'ive  any  ti.stiniony  iis  to  value.' 

I  sulmiit  with  all  ih-fiMice,  that  his  evi<lenee  iliscloses  nothin;^' 
nf  the  sort,  if  a  man  like  ( 'aptain  Moliean  is  taken  to  have  a 
20  kriowleilj^e  of  these  thiuL,"*.  how  much  iiioro  shoiihl  Captain 
(iainlin,  who  po»ses»es  every  quiililicatiou  that  I'ajitain  .MeLean 
can  he  supposed  to  have,  and  who  has  hi'sides  a  Ion;,'  experience 
in  the  poll  in  which  the  action  itiose. 

Mr.  Laiisin^^r :  ^-iliiw  muny  vears  has  Captain  (iaudin  heeu 
senlinu  i* 

Mr.   Ijodwell  ; — He  has  hrun  connected  with  sliippinu;  nH  his 


life,  and   has  heeu   in    Victoria  >iiice    1S(1(1.      II 


e  Went    sealil|('    ill 


th 


\<U 


in     IIS^?;    and     he    was    master    of    the    steamer 


"<j)uadia"  liefoie  lie  Was  prom  ited  to  he  theaijont  of  the  .Maiine 
30  and   h'i!<heries   Uepaitment. 

At  pHL,"'  -!'l)  nf  the  I'niteil  states  Art:"        ilt,  the  eviclence  of 


Captain  Warren,   Mr.  .Munsit 


Ml 


the  ''round  tiial  thev  are  claimants  hefon 


is  attacked   upon 


(  onniiission 


It 


savs  ; 


'I'll 


le  evidence  of  these  witne>ses,  who  jiossess  a  Common 
interest  in  eiihancin;^  the  value  of  sealin;,'  vessels  at  Victoria,  and 
especially  the  schooners  seized,  mu.st  he  receiveil  with  the  nliuost 
caution.  That  all  of  them  po.s.se^s  n  cei  (ain  amount  nf  expi'rience 
as  to  the  value  of  vessels  is  un(|nestioiied,  hut  that  they  did 
40   under  the  circumstances,  and  in  view  of  the  douhtful  cnslihility 

sclosed    hy  poiti.iis  of  their 


(as  cli 


)f  the   three  first  nieiitioneil 

testimony,)  ;,'ave  a  fair,  undiased  opinion    of  the  value  of  the 


vessels,  as  Ui  whit 


h  tl 


ev   Were  examiliei 


1,  i-^ 


not  p 


)l>ahh 


That  statement   is  not  at  all  iustilied   hecaiise  oiilv 


a  portion 


of  ti.eir  testimony  has  heeii  ipioted,  aiii|  upon  that  partial  ipiotii 
it  is   prediciitpd   that   their  creilihility   is  douhtful — when 

not   (pioteil    in   the   \'.  S. 


tion 


Vuur   honors   read    the    part   w 


>'liich 


,'uiiient,  ami    which    follows    immediately    after   the  extracted 
|i(irtion,  you  will  liml  that  tht^  evidenct;   is  ipiite  consistent  anil 


50    that  the  witness  has  not  at 


liei'u   iliscrei 


ite.l. 


It  happens  of  course  in  the  case  of  many   of   the  claims   that 


)hli:;ed    ti^     he     their    own    witne  ses. 

I 


persons    interested 

No  other  evidence  is  ohtainahie ;  hut  with  reftu'enje  to  al 
of  these  men,  I  would  call  your  Honors  attention  to  the 
following'  undisputed  facts,  'i'hey  «re  men  of  standin;^  in 
the  community.  They  have  lived  in  Victoria  for  a  jjreat  many 
years.  Charles  Sjirin;;,  Mr.  Munsie  and  Captain  Warren 
have  hiisiness  connections  there  of  a  considcrahle  extent, 
they  w(?re  j,'ivin;;  their  evidence  amon^  their  own  neighhors, 
60  and  in  a  place  where  those  who  were  listenin^j  to  them,  had 
nearly  as  much  knowled^jo  of  the  ni;;ttcrs  referred  to  as  they 
themselves  had.  Is  it  prohahle  that  men  uniler  these  circum- 
stances Would  injure  their  whole  future,  destroy  their  hiisine.ss 
stanJing,  and  risk  their  respyctahility   hy    giving  false    or  ex- 


fore 
in    tl 
when 
|()  rredi 
simila 

the  r 

pursii 
.Mcl,ei 

that 
It   sei 

no  CO 

i;ivin 

is  hei 

I'lt        .M 


.%7 

(Mr.    Bodwt'H's    Ari^'uiiiunt.) 

«UH«'iatncl  oviili'MooHiiii|>ly  fill-till'  piirpo.sf  of  cnlinncin^  td"  valtio 
(if  It  ft«w  vi'N-tils  in  wliicli  tlu>y  witd  ihtiT('»<ti'(|  ns  clniiiiiinu 

I  Hiiltniit  tlmt  tliiit  kind  nf  ftr>,'iiiiu'iit  is  to  ho  d.nrccatcil  Im- 
foro  your  HotK.is,  unices  xt  cnn  In-  nIicwii  tlmt  tlurro  u  Honiftliinif 
in  tin-  Kfconl  itMt-lf — sonu-  Nliitcment  of  tim  witiiis^—wliicli, 
when  I  niii^rlit  In  pontmst  with  >turr(iiiniliii^;  ciictuiistnn'-'-i,  dis- 
11)  ort'ilitx  him.     I  hnvo  rffmint-d    lhrui>>.'hout  fioin    nmkiii;^ 


30 


iO 


■JO 


iinili 
tlin  I 


any 
r  ciihuiii'iit  ii|iiiii    tlit>  wiinfHscs  who  hnv«i  hcun  cullfd   liy 


thu  I'nitfd  Stati'.N,  nlthoii;,'h,  if  that  line  of  iir>,'iiiiifnt  were  to  I 
|pin-sni'd,  11  ;,'niit  dcnl  nii^lit  l-ii  Muid  with  icftniici'  to  Ciiptain 
Mcht'uii,  t'liptiiin  lUyimr  and  other  witiiexscH ;  hut  I  l.flicvod 
tlmt  your  llonoii  would  not  fncoinin'i'  a  diHoussioii  of  that  M>rt. 
It  Mi'ciiis  lieiiciith  tilt*  ili^'iiitv  of  this  ('i)niiiiiMsi 


on. 


eniiti-nd  tlmt 


2i» 


no  comnu'iit  .should  In-  allowed  on  the  fact  alone  that  the  witiies.s 
yiviii;;  evidence  happens  to  have  an  interust  in  tlio  claim  which 
is  hfiny;  presented  to  your  Honors. 

.MrLiinsinif: — 'I'hat  was  the  line  followed  at(ieneva,wns  it  not? 

Mr.  Hcidwell  : — It  apiears  to  he  fmni  the  (|Uotatioii  ;,dveii 
111  r«,  and  I  suppoK'  there  was  evidence  on  which  that  argument 
could  he  hased  ;  and,  if  my  friends  here  can  point  out  to  your 


Hf 


I'hich 


onors  eviilence  winch,  wiien  ipioted  fairly  and  fully,  justifies 
an  assertion  of  this  kinij,  I  would  he  ipiite  vvillin^r  to  concede 
tliat  it  is  a  [>roper  arL^ument  to  present.  Hut  when  they  ipiote  a 
p  irtion  ''f  a  man's  testimony,  and  say  that  that  contrndicis  other 
parts  (if  his  evidence,  and  it  then  a|ip>  ars  hy  reading  the  whole 
of  the  evidence  that  llieie  is  no  contriiiliction  and  no  iiiconsistcncj', 
I  say  it  <  not  liyht,  upon  sueii  an  ineumplete  rendering;  to  make 
IX  .statement  that  his  claim  is  so  lai'i^e  that  he  must  he  taken  to 
he  exai;t,'eratiiij.{  from  the  mere  fact  of  his  interest. 

Now,  then,  your  ilniiors  will  perceive  from  portions  of  the 
arijument  to  which  I  have  referred,  how  closelj-  the  witnessrs 
for  (ireat  Hrituin  have  heeii  criticized.  W't;  are  told  that  men 
who  Imvo  lived  tifteen  or  twenty  years  at  Victoria,  and  who 
have  heeii  eii;,'ii>;ed  in  huildin<;  vessels,  are  not  evi'li  competent 
to  yive  an  opinion  to  youi  Honors  as  to  the  cost  of  huild- 
iiij,'  a  ves.sel.  Kvory  witness  called  here  is  criticized  upon  every 
ground  ujii'ii  which  critici.-<iu  can  he  hased. 

The  Commissioner  on  the  part  of  the  United  States  : — I  do 
not  ipiite  understand  it  so.  I  think  there  is  some  misnnder- 
standiiii^  ahout  tlmt  matter.  Take,  for  example,  the  witness 
Watson;  you  must  rememher  that  you  and  the  counsel  for  the 
United  States  are  looking  at  these  (piestions  fiom  a  different 
point  of  view.      Where  is  the  reference  to  Watson  > 

Mr.  Hodwell : — Paye  2H'.\,  your  Honor;  his  testimony  dis- 
closes the  incompetency  and  ij,'i!orance  of  this  witness. 

The  Commissioner  on  the  part  of  the  United  States: — Now 
look  at  pa^je  2^2 — "  his  ij^norance  of  value  and  his  incompetenc}'' 
as  an  e:ipert  " — there  he  does  not  testify  ahout  value,  he  testifies 
ahout  cost 

Mr.  Bodwell : — He  was  not  called  as  an  expert  upon  the 
value;  he  was  only  called  to  >,'ive  evid  'iice  of  cost. 

The  Commissioner  on  tlie  part  of  the  United  States: — You 
and  the  counsel  for  the  United  State  .  are  approachinij  this 
matter  from  different  standpoints.  They  are  lookint;  at  the 
i|ue>ti()n  of  values  ;  you  are  lookinj^  at  the  qu- Uion  of  cost  as 
laying  the  basis  of  the  ipiestion  of  values.  It  •  eems  to  me  that 
"0  there  is  something;  of  a  inisunderstandiiif^  Oetween  you  as  to  the 
ciiinpetency  of  the  witnesses. 

•Mr.  Bodwell  ; — It  may  he  so,  your  Honor.  Of  course  I  did 
not  undei stand  the  laiiijuai^e  that  way  ;  hut  if  that  is  its  mean- 
ing, what  I  have  said  does  not  apply  ?o  strongly. 


w 


u 


H 


'\    i 


\fy 


IHi 


!!<• 


^WWT 


-^^ 


3G8 


(Mr.    Bodwell's   ArfjfUinent.) 

The  Coniinis.sinner  on  the  part  of  the  United  States  : — You 
cannot  very  well  read  what  appears  on  pajje  2'S3,  without  read- 
ing in  connection  with  it  wiiat  appears  on  page  282. 

Mr.  Bodweii  : — Th^iy  are  .speaking  on  page  282  of  another 
witness. 

10  Ti>e  Conjinissioner  on  tl>e  part  of  the  United  States  : — I 
reineniher  the  question  came  up  at  Victoria,  and  that  I  suggesteil 
to  the  counsel  for  Great  Britain  that  the  ordinary  way  of  getting 
at  the  value  of  vessels  was  to  ascertain  their  sales  ;  and  Mr.  Beique 
carefully  e.xplained  that  your  position  there  was  peculiar  and 
therefore  you  could  not  get  the  values  in  that  way,  and  must  get 
them  by  shewing  cost.  That  does  not  at  all  change  the 
fact  that  you  and  the  counsel  for  the  United  States  have  lieeii 
looking  at  the  matter  from  diflerent  standpoints  from  that  time 
to  till-  present. 
20  Mr.  Bodwell  :  —  I  would  he  very  sorry  to  misaii<lerstand   niv 

friends  or  to  make  any  remarks  which  are  not  iustitieii  hy  whiU 
they  have  stated  in  their  argument. 

The  ("ommissioner  on  the  part  of  the  Uniteii  States: — I  do 
not  say  that  you  have  or  have  not,  !)Ut  merely  call  your  attention 
to  the  fact  that  you  cannot  read  from  one  page  without  reading 
I'rom  the  wtl'.or. 

Mr.  Bodweii  : — And  it  is  quite  possible  that  with  the  explan- 
ation which  your  Honor  has  given   our  statements  may  stanil 
together. 
30  I  was  about  to  turn  my  ottention  to   the  evidence  as  to  the 

qualification  of  the  witnesses  called  by  the  United  States  and 
introduced  to  yoiu'  Honors  as  experts  up(ui  value.  I  have 
alreiidy  referred  to  the  evidence  of  .Nlr.  Thortdey.  His  own  state- 
ment was  that  hisstateuu'iit  of  values  was  from  records  in  theShij)- 
ping  Othci',  and  occasionally  on  prices  he  actually  knew  about. 
Jlr.  Turner's  evidence  I  have  also  dealt  with,  and  I  have  contended 
that  practically  it  does  not  differ  as  to  cost  of  vessels  from  the 
evidence  given  by  us.  Captain  Anderson  I  have  not  mentioned 
for  two  reasons.  In  the  first  place,  his  evidence  does  not  profess 
40  to  be  any  more  particular  in  its  character  than  that  given  l)y  .Mr. 
Thornley.     It  is  a  weak  repetition  of  Mr.  Thoridey's  evidence. 

The  Commissioner  on  the  part  of  the  United  States; — Is 
Captain  Aniierson  referred  to  in  either  your  case  or  that  of  the 
United  States  ? 

Mr.  Bodwell  : — He  is  referred  to  in  the  Uinte<l  States  case  at 
page  2L!9,  but  your  Honors  will  observe  on  reading  his  evidence, 
ami  especially  his  eross-exanunation,  that  he  was  speaking  froui 
memorantla  he  obtainecl  principally  from  Mr.  Thoridey  while 
they  were  tiavelliiig  together  from  San  Francisco  to  Victoria; 
he  was  not  professing  to  give  any  original  evidence.  Any- 
thing we  say  as  to  the  character  of  Mr.  Thornley 's  evidence 
apjjlies  also  to  that  of  L'apt.  Ami.  •  son.  More  than  that,  the  witness 
in  his  cross-examination  did  not  appear  to  be  nearly  so  frank  and 
open  a  witness  as  .Mr.  Thornley. 

There   are  practically   only   three  other   witnesses  who  are 

rel'fd  on  liy  the  Uidted    States  on  the  question  of   the   value  of 

vessels.     The  first  is  ('apt.  Alexander   Mcljean.       I  have  dealt 

with   his  evidence  at  length,  especially  that  part  of  it  relating 

f;0  to  values  of  vessuls,  and  I  shall  not  repeat  my  observations. 

The  next  witness  relieil  nu  is  Captain  llaynor.  Now  (Japtaiii 
Haynor's  experience  is  this;  he  has  some  lu'aisay  kfiowledge  with 
reference  to  values  of  vessels,  and  supeiinfendecl  the  building  of 
the  ■'  AUie  1.  Algar  "  in  Seattle.     With  reference  to  his  general 


50 


i^:Nto- 


369 

(Mr.    Bodwell's   Argiinient.) 

knowledge  of  values  we  liave  it  stated  hy  himself,  Record,  page 
492,  line  (iO  :— 

"  Q.     Were  you  acqiiaiiitcd  with  the  general  market  for  the 

"  sale  of  vessels  of  the  class  largely  used  for  the  purpose  of  sea'- 

"  ing  in  the  years   \SH(i  and    18X7?     A.     Well,  I  have  a  general 

•'  knowledge  of  it.     I  never   hoiight  an}-  of  this  kin<l  of  vessels 

10  "  myself  or  sold  any  of  them. 

"  Q.  Were  you  posted  as  to  the  current  prices,  or  reporteil 
"prices,  in  these  years?  A.  Yes,  I  iicard  it  talked  about 
"  sometimes." 

1  submit  that  a  man  who  i.s  not  buying  and  selling,  unless  he 
is  of  a  peculiar  turn  of  ndnd,  does  not  carry  information  of  this 
character  with  him  in  such  a  form  as  to  make  his  statement  the 
basis  for  an  accurate  estimate.  At  page  oOS,  after  stating  that, 
he  bases  the  value  of  the  "  Carolena "  upon  prices  of  other 
vessels  in  San  Francisco,  he  gives  this  evidence  : — 
'20  "  Q.  You  did  not  have  accurate  knowleilge  of  the  market  at 
"  Victoria  during  these  years  ?      A.     No,  sir,  I  did  not" 

My  friend,  Sir  Charles  Tupper,  calls  luy  attention  to  the  fact 
that  his  whole  experience,  whatever  it  was,  related  to  San 
Francisco  and  Seattle  oidy,  in  the  building  of  the  "  Allie  I. 
Algar.' 

This  evidence,  which  I  have  just  qiuited.is  at  page  50S,  line 
45,  as  follows  :-- 

"  CJ.     In  t'orming  your  idea  of  the    value  of  the  '  Caroii-na,' 
"  what  do   you   base   that   value   upon  ?     A.      I   base    the    vilui; 
.'iO  "  upon  the  pricss  of  other  vessels  of  the  same  tonnage,  or  nearly 
"  the  .same  tonnage. 

"  Q,  In  what  ports  ?  A.  In  San  Francisco  and  two  or 
"  three  Scund  ports. 

"  Q.  Kxcluding  or  including  Victoria  ?  A.  E.xcluding 
"  Victoria. 

"  Q.  You  did'nt  have  accurate  knowledge  of  the  market  at 
"  Victoria  during  those  years?     A.     No,  sir,  1  did  not. 

"  Q.     To  shew  an  exjierience  in  this  regard,  Captain,  did  you 
"  inspect  the  '  Ada '  when  she  was  sold   at   Port  Town.shend  to 
40  "  Mr.   Nickel Bon  ?     A.     I    inspected   her  before   she    was  gold  ; 
"  y  3s,  h\v. 

"  Q.     AikI  for  Mr.  Nickerson  ?     A.     Yes,  sir. 

"  Q.     F.  r  what  j)urpose  ?    A.    For  the  purpose  of  buying  her. 

"  Q.     For  the  purpose  of  informing  Mr.  Nickerson  ?    A.    Yes, 


sir. 


Q- 


i;o 


As  to  her  value  ?     A.     Yes,  sir." 

Now  here  is  a  good  illustration  of  how  infirmity  tells  on  a 
man's  uk  iiior','  as  to  matters  in  which  he  has  no  personal  interest. 
Page  ')Ui,  line  2  :— 

"  Q.  Do  vou  know  what  the  '  Lillie  L. '  sold  for  in  San 
"  Francisco  ?  '  A.     Well,  1  have  heard  that  she  sold  for  SI,H()0. 

"  Q.     What  was  her  tonnage  ?     A.     Something  over  ()(), 

"  y.  In  what  year  was  she  sold  ?  A.  I  believe  it  was  in 
"  LSfS')  or  Ifs.SO;  I  coidd  not  ju.st  tell  which. 

"  l^.  Do  you  know  who  bought  the  '  Lillie  L. '  ?  A.  C.  D. 
"  La.ld." 

Let  me  call  your  Honors'  attention  to  Mr.  Thornley's  evidence, 
Recold,  page  172H,  he  sh5's  this  ; — 

"  One-thirteenth  of  tlie  schooner  '  Lillie  \j.,'  in  October,  18,S7, 
"  was  sol.l  by  .laiuvs  W.  Todd  to  C.  1).  Ladd  fo-'  S400.  The 
"  vessel  was  built  in  1S.S7,  G:{  tons.'' 

Now  the  vessel  was  not  built  until  lMN7,yet  Captain  Raynor 
thinks  she  was  built  in  ISS')  or  1M«8,  and  was  sold  for  iflSOO, 
which  is  vor^'  ditlerent  from  Mr.  Thornley's  evidence.     It  shews, 


370 


^^'\^-i 


(Mr.  Bodwell's  Argumet.) 

wlien  a  man  is  speaking  from  casual  information  that  his  recol- 
lection and  memory  are  very  little  to  be  relied  upon. 

With  reference  to  the  "  Allie  I.  Alger,"  which  was  the  vessel 
he  superintended   the  construction  of,  Record,  page  509,  line  40, 
we  find  that  she  was  n  vessel  of  75  tons  built  at  Seattle  in  188fi, 
and  that  she  cost  §10,500  to  build. 
10  Mr.  Alexander  is  also  relied  upon  as  another  person   whose 

valuation  of  ves.teU  is  to  be  relied  upon  by  your  Honors.  Mr. 
Alexandei's  qualifications  .seem  to  be  these  :  referring  to  page 
409  of  his  direct  e.xanunation,  you  find  that  he  lived  at  Glou- 
cester from  lcSG4  to  1.S73,  and  from  1873  to  187(i  at  Lynn,  and 
then  again  in  Gloucester,  up  to  1888.  During  these  years  he 
was  a  school  boy,  having  no  occupation,  but  in  his  vacations 
went  on  board  some  American  fishing  vessels,  and  when  not  so 
employed  he  was  working  as  a  sailmakcr  in  his  father's  shop, 
who  was  a  ship's  carpenter.  He  says  he  had  an  approximate 
20  idea  as  to  the  cost  of  vessels  during  that  time,  but  it  mtist  have 
been  a  very  limited  knowledge.  He  was  employed  in  1880  on 
the  United  States  Fish  t'ommission  ;  bis  duties  there  were  as 
clerk  and  private  secretary  to  the  captain.  In  the  month  of 
May,  1888,  he  joined  the  "Albatross"  at  San  Franci.sco,  and 
since  that  time  he  has  been  going  to  Alaska  everj'  j-ear  in  the 
summer  time,  and  in  the  winter  to  the  coast  of  .Mwxico  and  the 
isiatiiis  (if  the  Pacific. 

At  i>age  400,  line  ;)0,  he  gives  this  evidence: — 

"  Q.  On  coming  off  the  coast  in  1888  did  you  make  any 
30  "  exandruicion— niiy  notes — in  regard  to  the  construction  of  fish- 
"  ing  vessels  on  tlie  Pacific  Ocean  ?  A.  Well,  I  noticed  the 
"  difience  in  the  rigging  generally,  and  the  construction  of  vessels 
'on  this  coast  as  compared  with  those  of  the  Atlantic  Coast, 
"mid  I  took  mental  notes,  an<l  I  took  .some  notes  down  at  the 
"  time  for  getieral  comparison. 

"  Q.  What  was  your  reason  for  <loing  that  ?  A.  Well ;  for 
"  two  reasons.  My  interest  in  vessels,  comparing  the  two  builds 
"and  general  construction  and  so  fc.iili,  and  also  as  I  thought  it 
"  might  be  a  part  of  my  duty,  J  might  be  called  on  sometime  to 
40  "  answer  such  (juestions  for  the  Fish  Conunission,  which  has  been 
"  th(!  case." 

1  submit  that  there  is  very  little  in  Mr.  Alexander's  history 
and  expeiience  to  qualify  him  as  an  expert  on  the  question  of 
value. 

This  sums  up  the  evidence,  I  think,  for  the  United  State"  on 
that  question,  with  the  exception  of  Captain  Miner  to  v^diom  T 
will  refer.  His  evidence  on  that  point  is  at  page  535,  and  we 
have  there  this  statement,  line  40  : —  , 

"  Q.  Now,  if  you  estimate  the  value  of  a  sealing  vessel 
50  "  have  you  bad  any  tin  ig  to  tlo  with  the  piice  in  buying  a  sealing 
"  vessel  yourself  !  A.  I  have  dickered  with  other  vessels,  I 
"  have  never  bought  one  myself,  iiut  I  have  had  an  interest  in 
"  one.  I  never  bought  one  outside,  but  I  have  bargained  for 
'  vessels. 

"  Q.     For  others  i'     A.     For  myself. 

"  Q.  You  know  something  as  to  how  to  keep  posted  on  the 
"  cost  and  value  of  vessels?     A.     Yes,  sir. 

"  (),.     From  what  time  ?     A.     From  about  1888,  after  I  went 
"to  San  Francisco.     I  tiiought  then  of  getting  a  small  vessel  for 
00   "  mysi'lf  to  go  north  otter  hunting,  and    I  .spoke  then  to  .Mr. 
"  Turner. 

•'  Q.  Are  you  fauuliar  with  the  cost  and  value  of  vessels  ef 
"  the  charter  used  in  sealing  ?     A.     I  think  I  am." 

I  .submit  that  the  evidence  shews  that  Captain  Miner's  busi- 


371 

(Mr.   Boilwell's    Argument.) 

ness  was  principally  sailing  vessels  and  not  buying  and  selling. 
After  stating  that  when  he  came  to  California  he  thought  it  was 
a  strange  thing  that  vessels  were  valued  at  registered  tonnage 
instead  of  liuilder's  tonnage,  he  says  : — 

"  That  was  1888,  I  an:  not  familiar  with  any  vessels  sold 
"  at  that  time." 

10  So  that,  on  his  own  statement,  Captain  Miner  is  not  a  witness 
as  to  values  in  1886.  At  page  549,  line  1  to  10,  he  says  he  had 
no  knowledge  whatever  of  Victoria  prices.  He  came  to  Victoria 
a  stranger  ;  he  was  three  months  in  1880,  and  again  in  1887,  and 
had  no  occasion  to  make  enquiries  as  to  ships. 

At  page  551,  lines  1  to  10,  your  Honors  will  observe  that 
lie  is  answering  from  hearsay  knowleilge  about  vessels,  the  names 
of  which  were  read  to  him  liy  the  counsel  examining  him. 

It  is  said  in  the  United  States  argument  that  his  opinion 
as  to  the  value  of  vessels,   on  account  of  his  !ong  experience 

20  is  very  vahiable.  Perhaps  that  statement  to  a  certain  extent 
is  justified  with  reference  to  conditions  since  1888,  but  it 
caimot  be  said  of  Captain  Miner  that  his  opinion  is  impor- 
tant as  to  values  in  1880,  when  he  himself  says  he  has  no 
knowledge  of  sales  at  San  Francisco  in  that  year. 

At  page  290  of  the  United  States  argument  there  is  a 
statement  that  there  were  no  vessels  built  at  Victoria.  That  is 
a  mistake.  It  is  true,  perhaps,  that  there  were  no  sealing 
vessels  built ;  yet  I  do  not  know  that  even  such  a  conclusion 
would  be  correct.     There  were  a  great  many  tugs,  steamers  and 

30  other  vessels  built.  Tiie  stiitement  is  also  repeated  at  page  297. 
I  have  no  doubt  that  my  friends  mean  to  say  that  there  were  no 
sealing  vessels  built. 

I  have  followed  this  argument  at  this  length  out  of  deference 
to  my  frienils  and  have  discussed  it  in  all  its  bearings  from  the 
ditfeient  points  of  view ;  but  I  conteml  your  Honors,  that, 
for  the  practical  purposes  of  this  Commission,  the  question  may 
lie  confined  within  a  much  narrower  range. 

As  I  stated  at  the  outset,  the  contention  we  make  is  this, 
■to  that  these  vessels  are  to  be  priced  at  the  values  which  they  had 
to  the  men  who  owned  them  at  the  time  they  were  taken 
from  them  against  their  will.  That  principle  of  valuation,  I 
state  to  your  Honors,  is  one  which  has  always  been  followed 
ill  cases  of  compulsory  sale.  I  refer  to  ('ripps  on  Compensation, 
(tliird  e<litifin),  where  it  is  said  on  page  112: — 

'  The  basis  on  which  all  compensation  for  lands  required  or 
"  taken  should  be  assessed,  is  their  value  to  the  owner  as  at  the 
"  date  of  the  notice  to  treat,  and  not  theii'  value  when  taken  to 
"  the  promoters.  The  question  is  not,  what  the  persons  who 
"lO  "  take  the  land  will  gain  by  taking  it,  but  what  the  person  from 
'  whom  it  is  taken  will  lose  by  having  it  taken  from  him." 

At  page  1 1  -t  it  is  said  : — 

"  The  value  to  the  owner  can  bo  a.scertained  either  by  a 
"  valuation  oi  the  lands  taken,  with  the  aildition  of  compensa- 
"  tion  for  incidental  injury,  or  by  what  is  known  as  the  rein- 
"  statement  principle." 

At  page  117  : — 

"  A  fui'ther  item  to  be  taken  into  consideration  is  the  prob- 
"  alile  diminution  in  the  value  of  the  claimant's  good-will  in  his 
•10  "  trade  on  the  taking  of  the  j)remises  in  which  such  trade  is 
"  carried  on." 

These  quotations  are  a  general  statement  of  what  the  law  is 
upon  the  subject— a  proposition  which  is  familiar,  no  doubt,  to 
your  Honors  from  your  experience  with  that  class  of  litigation. 


"ilir 


m\  .1] 


V'. 


li 


ni" 


372 

(Mr.  Bodwell's  Argument.) 

A  familiar  illustration  of  this  principle  is  in  the  case  of  Ripley 
V.  Great  Northern  Railway  Company,  Law  Reports,  10,  Chan- 
cery Appeals,  435.  In  that  case  the  head  note  discloses  the 
state  of  atfairs. 

"  A  railway  company  took  lands  on  which  cotton  mills  would 
"  probably  have  been  built;  the  owner  had  other  land  on  which 

10  "  he  had  built  a  reservoir  from  which  watei-  might  be  supplied 
"  to  such  cotton  mills  when  built.  In  proceeding  under  the 
"  Lands  Clauses  Act  to  ascertain  the  compensnUon,  the  umpire 
"  received  evidence  as  to  the  piofits  which  might  have  been 
"  derived  from  sujiplying  water  to  the  mills  when  built,  and 
"  awarded  conipeniiatiun  for  the  loss  of  those  prospective 
"  profits  :— 

"  Hdil  (affirming  the  decree  of  the  Master  of  the  Rolls)  that 
"  the  umpire  was  right  in  receiving  the  evidence  and  in  award- 
"  ing  such  CDiiijiensation." 

20  The  judgment  of  Sir  G.  Mellisli,  L.  J.,  page  439,  is  as 
follows : — 

"  It  appears  that  Mi'.  Ripley  had  constructed  these  reservoirs 
"  for  the  e.xpress  purpose  of  supplying  water  to  mills.  Then,  by 
"  an  Act  of  Parliament  he  was  prevented  from  selling  watfr 
"  except  for  the  supply  of  mills  or  buildings  erecteil  upon  his 
"own  land.  In  th:it  petition  of  things  a  large  portion  of  his 
"  land  is  taken,  anil  of  course  it  necessarily  follows  that  a  lar;jc 
"  portion  of  the  value  of  the  reservoirs  is  taken  from  him.  it 
"  seems  to  me  quite  clear  that  his  prop<^rty    in    the    reservoirs 

30  "  being  prejudiced  b}-  reason  of  his  otlv  r  Jiuid  being  taken  by  the 
"  railway  companj',  that  loss  is  a  propL>r  head  of  compensation." 

Thus  it  was  his  actual  loss,  not  the  value  to  the  promoters 
who  took  the  prujierty,  that  was  to  be  considere<l. 

Another  case  which  illustrates  the  same  thing  is  White  v. 
the  CouHuissioners  of  Her  Majesty's  Works  and  Public  Build- 
ings, 22  Law  Times,  page  .5!H.  nml  the  facts  were  these  ; — 

"A.  carrie<i  on  an  old  established  bu»iuess  at  11  Parliament 
"  street.  His  lease  of  those  premises  being  about  to  determine, 
"  he  purchased  the  lease  of  No.  10  in  the  same  stieet  with  the  inten- 

40  "  tion  of  transferring  his  business  to  No.  10  upon  the  determination 
"of  his  lease  of  No.  11.  Hefore  such  transfer  was  etieeted,  the 
"  Commissioners  of  Her  Majesty's  Works  and  Public  Buildings 
"gave  him  notice  to  treat  with  respect  to  No.  10  under  the 
"  poweis  of  the  Public  Offices  Sites  Act,  18G8,  which  incor- 
"  porates  the  provisions  of  the  Lands  Clauses  Consolidation 
"  Act.  The  question  of  the  amount  that  the  commissioners  were 
"  to  pay  him  for  the  compulsory  taking  of  No.  10  was  referred 
"  to  arbitration  under  the  Act.  The  artiitrator  admitted  evidi'tice 
"  of  the  profits  that  he  had  been  making  at  No.  11,  and   .wardi d 

50  "  to  him  the  sum  of  .£1,000,  in  respect  of  good  will  attaching  to 
"  or  loss  of  piofits  which  might  or  would  have  been  made  at  No. 
'  10  Parliament  street,  if  the  premises  had  not  been  taken  for 
"  the  purposes  of  the  Act." 

I  give  the  judgment  at  page  .")03  which  is  short:  — 
■'  The  arbitration  took  place  under  the  Lands  Clauses  Con- 
"soli<lati()n  Act,  ami  by  the  terms  of  the  submission,  which  was  in 
"accordance  with  the  Act,  the  arbitrator  was  to  iletermine  what 
"compensation  was  to  b(>  paid  to  the  claimant  tor  damage  or 
"injury  caused  by  the  taking  of  tbi-  messuages  in  qut-ii.iri.      He 

CO  "awards  jCIOOO  in  respect  of  such  enuipensation.  It  miist  be 
"  taken  that  the  arbitrator  has  come  to  tlieeonelusi(Ui  that  loss  to 
"  this  extent  was  really  sustained  by  the  claimant  by  reason  of  his 
"  being  preveiited  fi'om  carrying  on  his  business  ;.t  No.  10.  This 
"  lo.ss,  it  is  true,  would  not  begin  to  accrue  till  the  termination  of 


373 

(Mr.    Boilwell's    Argument.) 


"  his  interest  in  No.  11,  but  this  does  not  seem  to  make  any  dif- 
"  ference  in  principle." 

Here  isaca.se  of  Bourne  and  another  v.  tlie  Mayor,  Aldermen, 
and  Burgesses  of  Liverpool,  33  Law  Journal,  Queen's  Bench, 
page  1  "> : — 

"The  plaintiH's,  who  wore  hrewers,  were  the  owners  in  fee  of 
li)  '■  a  public-house,  which  was  let  for  an  unexpired  term  of  seven 
"  years,  and  there  wn.s  in  tiie  lease  a  covenant  by  the  tenant  not  to 
•sell  on  the  premises  any  beer  other  than  that  purchased  of  the 
'•  plaintiH's  :  the  defendants  were  empowereil,  by  their  special  act 
"(  with  which  was  incorporated  "  The  Lawds  Clauses  Con.solida- 
"  tion  Act.")  to  take  the  premises: —  Hell.that  in  ascertaining, 
"under  section  liS  and  (>'i,  the  amount  of  purchase-money  and 
"  compensation  to  he  paid  by  the  defendarits  to  the  plaintiH's,  the 
"  a<lditional  value  cf  the  premises  to  the  plaintiffs  by  reason  of  the 
"covenant  to  sell  the  plaititiHs'  beer  only  was  to  be  taken  into 
•20   "  consideration." 

At  page  Hi  is  found  the  Judgement  of  Judge  Wightman  as 
follows  : 

"  I  am  of  opinion  that  the  award  is  good.  By  the  terms  of 
"  the  act,  the  plaintiHs  areentitled  to  compensation  for  the  damage 
"  that  may  be  sustained  by  them  by  reason  of  the  execution  of  the 
■■  (iefenilant's  works." 

The  piinciple  of  all  these  cases  is  tliat  the  damage  is  to  be 
the  loss  to  the  person  by  reason  of  the  compulsory  taking  under 

;i()  the  Act.  The  Act  gives  the  privilege  of  taking  after  the  pay- 
ment of  compensation  :  that  where  compensation  is  to  be  en- 
(juired  into,  it  is  the  loss  of  the  man  whose  property  is  taken, 
above  the  value  of  the  property  to  the  Company,  which  is  ascer- 
tained.     1  continue  the  (piotation  : — 

"  The  defendants  have  taken  this  public-house,  and  the  value 
'  of  the  house  we  find  is  t!3,!(00.  But,  independently  of  that,  the 
"  plaintiHs  sa}'  that  the  public  house  is  of  gi-Mter  \alue  to  them 
"  iiy  reason  of  the  covenant  in  the  lease,  and  that  by  the  loss  of 
"  the  advantage  of  that  covenant  which  they  sustain  by  the  pro- 

40  "  perty  being  taken  away  and  the  house  pulled  down,  they  sustain 
"  a  further  loss  of  £400.  I  cannot  see  any  reason  why  the  arbitra- 
"  tors  were  not  at  liberty  to  take  that  into  consi<leration,  and  to 
"give  the  plaintiH's  that  increased  value  of  the  premises, — aright 
"to  them  arising  from  the  benefit  which  they  derive  from  this 
"  particular  covenant.  As  long  as  the  premises  were  in  their 
"  hands,  they  would  have  tlie  benefit  of  it ;  and  they  are  damnified 
"  to  the  extent  of  X40()  by  the  premises  beins;  taken  away  by  the 
"defendants.  It  seems  to  me  that  the  award  is  perfectly  good." 
Blackburn  .1  ,  page  17  : — 

.")()  "  I  am  of  the  same  opinion.  I  think  tlie  question  turns  upon 
"  what  we  understand  the  arbitrators  to  have  found.  It  is  not 
"disputed  by  Mr.  Mellish, — and  it  could  not  be  disputed— that  in 
"  givini;  compensation  for  the  value  of  the  land,  the  arbitrator  is 
"  to  give  the  compensation  for  the  value  of  the  land  such  as  it  was 
"  to  the  plaintiH's." 

I  have  not  referred  to  many  authorities  on  tiu>  point,  because 
it  is  such  II  well  known  principle  of  law  that  I  thought  I  woidd 
only  be  taking  up  time  needlessly  bj-  discussing  it  at  further 
length.     The    point  is  this.     The.se  ships  were  taken  from  us. 

(10  We  did  not  wish  to  sell  them.  What  value  can  be  just  that  does 
not  return  to  us  an  amount  suHieient  to  ciuipensate  us  for  our 
loss.  Take  as  an  illustration  the  case  of  a  man  who  has  a  beau- 
tiful residence  and  spends  a  large  amount  of  money  planting 
and  preparing  grounds.     They  may  not  be  of  value  to  the  partj' 


li 


1 

1? 

"'II  (M 


«'« 


i  i|s'| . 


!iii. 


n- 


;,:  r 


!'      l! 


I 


pwil'-IU^ 


•\7i 

(Mr,  Boflwell's  Argument.) 

who  takes  tlio  property,  but  it  is  tiie  home  of  the  man.  He  does 
not  wi.sh  to  .sell,  but  it  is  oxpropriiited  say  for  a  railway.  In  a.ssess- 
iiifi  compensation,  would  not  a  jury  be  instructed  to  consider  all 
the  circumstances  and  award  a  .sum  which  would  reinstate  the 
vendor  as  far  as  possible  in  the  position  in  whic'i  ne  would  have 
been  if  he  ha-'  not  been  deprivetlof  liis  property  Very  often,  in 
10  order  to  ncci-mplish  this  result,  a  percentajje  is  allowed  in  order 
to  cover  the  lo.ss  sustuinetl  by  a  man  beinfj  forced  to  .sell  at  u  time 
when  he  does  not  want  to  part  with  his  ])roperty. 

Now,  if  we  apply  that  ])rinciple  of  valuation  to  tiiesc  vessels, 
the  pro])osition  works  out  simply.  Take  the  ves.sels  that  were 
seized  in  1H,S6,  the  "  C'arolena,"  the  "  Onward  "  and  the  "  Thorn- 
ton." 'I"he  "  Carolena  "  was  bou<;ht  by  Munsie.  It  is  a  (piestion 
of  fact.  Did  he  pay  the  price  he  says  he  did  ?  Your  Honors 
would  be  justitied  in  assuming  that  a  prudent  man  would  not, 
pay  more  than  the  vessel  was  worth. 
20  'i'ake  the  "  Onward  " — Charles  Spring  .says  in  his  evidence,  nt 
page  Hii'.i,  line  ,")0  : — 

"  i).  Now,  at  this  point  I  will  ask  you  what  value  did  you 
"  put  on  the  ve.ssel,  as  she  was,  prepared  for  sea,  outside  of  th'j 
"  sealing  outfit  ?  A.  I  put  her  down  at  84,000,  considering  that 
"  she  was  worth  every  bit  of  that  to  me  at  that  special  time  ;  nt 
"  that,  time  I  considered  that  I  got  her  at  a  very  low  figure,  being 
"  the  beginning  of  the  sealing  business  practically  in  Behring 
"  Sen.      Kverything  looked  bright  ahead  of  tis  at  that  time." 

(,'iin  your  Honors  come  to  any  conclusion  but  that  she  was 
30   worth  at  least?44()()Otohim. 

The  "  Thornton  "  was  re-built  at  Victoria  in  I.S81  :  the  "Say- 
ward  "  was  rebuilt  at  Victoria  in  1882  ;  the  "Anna  Heck  "  was 
rebuilt  at  Victoria  in  188.'i ;  iind  the  "  (Jrace  "  and  "Dolphin" 
re-built  at  Victoria  in  1882.  Vom-  Honors  have  in  the  evidence 
the  actual  money  invested  by  Wai'ren  in  the.se  buildings  and 
re-buildings.  Js  it  to  be  saiil  not  only  that  his  property  is  to  be 
taken,  but  that  he  is  to  sutler  the  lo.«s  of  money  actually  disbursed 
without  sutlicit.'iit  compensation.  How  can  any  theory  of  repara- 
tion be  just  which  does  not  reinstate  him  in  as  good  a  position  as 
40  he  occupied  before  the  injury  was  caused.  Suppose  the  ves.sel 
cost  bin!  more  than  it  ought  to  have  cost  him — nevertheless  he 
paid  the  money  and  the  ves.sel  was  worth  that  much  to  him 
because  he  could  make  a  profit  b}'  operating  it. 

The  "Alfred  Adams"  returned  to  Victoria  and  the  "  Sea- 
ward '  was  relca.sed  from  custody  on  bonds,  so  that  the.se 
schooners  stand  in  a  ilifteivnt  position. 

In   regard   to  the  "  Ada,"  there  was  a  price  actually  offered 
for   her  before   going  out  on  her  voyage.     I  submit  that  yon 
could  not  have  better  evidence  tlian  that  as  to  her  value — that 
50   is  the  exact  price  that  we  have  claimed   for  her,  SJD.OOO.OO. 

I  submit  that  there  is  a  very  ea.sy  way  of  arriving  at  the 
value  if  you  believe  Munsie  and  Spring.  Spring  is  a 
witness  whose  credibility  is  not  challenged  at  all  by  my  frieniis. 
Spring's  own  statement  when  he  .says  that  she  was  worth  8*4,000 
to  him  must  be  taketi  as  correct. 

The  {'onunissi<jner  on  the  part  of  the  United  Slates: — Can 
you  give  nu?  the  page  where  the  cost  of  the  "  Ada  "  is  shown  ! 

Mr.  Hodwcll: — Page  784  and   line  40,  and   page   78,').     The 
evidence  as  to  the  ofl'er  is  at  page  122."). 
GO  Mr.  Lansing:— It   will    be    found  better    in   the  exhibits  at 

pages  18.'l  and  184. 

Mr.'  Dickinson  : — That  was  a  case  where  the  ves.sel  was 
valued  abroad  in  Japanese  yens. 

Mr.  Hodwell : — Upon  the  (|UeHtion  of  depreciation  there  is  a 


S75 

(Mv.  Brtdwell's  Argument.) 

stiitenieiit  iit.  the  oiid  of  tlit'  iiri;umeiit  ol"  tin;  Unitoil  Stiiti-s,  ut 
pnjje  29!).     Tlie  point  is  put  tiii'rc  on  tins  basis  of  tliis  evidence  : 

"  Q.  WImt  would  the  ordiniiry  wear  and  tear  lie  ?  A.  The 
'  ordinary  wear  and  tear  would  Ih!  10/. 

'The  (^oiiuiiissioner  on  the  part  of  Her  Majesty: — Do 
"  you  deduct  10%  for  wear  and  tear  on  a  vessel  two  years  old  ! 
"  A.  It  is  the  custom  to  allow  that  on  the  nvera^^e  every  year 
"  as  we  f^o  alonjj." 

Mr.  Siewerd  says  practically  the  same  thinj;,  but  I  subnut 
that  that  evidence  must  be  understood  in  this  way  ;  that  it  cost 
10^  of  the  value  of  the  vessel  to  keep  her  in  a  state  of  repair. 
The  life  of  a  vessel  of  this  ela.ss  is  thirty  years  and  in  fact, 
several  of  tiie  vessels  spoken  of  were  that  aye  and  were  jjood 
then.  With  reference  to  our  evidence  we  iiave  proved  that  these 
ves.sels  went  out  every  year  in  a  thorouj^h  state  of  repair.  In 
addition  to  that  there  would  be  a  percentajje  based  on  the 
expectation  of  life.  That  is  a  very  small  percentajfe.  Practically, 
for  the  purposes  of  the  sealinj;  business  it  would  not  be  worth 
eonsiderin<;.  I  tlnnk  Turner  saiil  that  the  tirst  year  the  percent- 
a<je  was  much  (greater  than  in  other  years. 


ir 


Value  ok  Sf..\!,  Skix.s. 

I  liave  a  few  remarks  to  make  with  reference  to  the  chapter 
on  the  value  of  .seal  skins.  The  arj^ument  for  Great  Britain  upon 
,30  that  point  is  from  pajje  88  to  the  end  of  page  Ho.  At  pajje  Hi, 
we  say  that  we  claim  a  value  in  1880  of  S7.()0  a  skin  :  in  1887  the 
])rice  claimed  is  !?fi. 50  ;  in  1888  the  price  is  812.2"),  althoufjh  I 
think  there  are  no  actual  claims  for  that  year  ;  in  188!)  we  claim 
the  hij;hest  price  which  the  evidence  shows,  Si  1. 00  which  repre- 
sented the  proceeds  of  one  shipment  made  by  Jfunsie  ;  in  1890 
skins  were  worth  between  §15.00  to  SKi.OOand  in  18!)2  the  .skins 
were  wortli  814.00. 

I  may  tell  your  Honors  that  both  sides  place  jjreat  reliance 
on  the  evidence  of  Theodore  Lubbe.  There  was  some  evidence 
40  with  reference  to  account  sales  put  in  by  Munsie  and  consid- 
erable evidence  {jiven  by  Warren  and  Sprinjj.  In  188G,  we  base 
our  price  upon  the  testimony  of  Mr.  Lubbe  and  on  paj;e  259  of 
the  United  States  Argument  there  is  a  (piotation  from  Lubbe 's 
evidence  where  it  is  .said  : — 

■'  Q.     j\Ir.  Lubbe,  there  were  purchases  of  the   Behring  Sea 
catch  in  Victoria  in  188G  ?     A.   Yes,  sir. 

"  Q.  Can  you  tell  me  what  they  were  sold  for  '  A.  The 
'  highest  I  know  was  S7.00  and  the  lowest  Sti.oO." 

Then  the  argument  procee<lH  : — 
.")0         '  The  market  value  of  the  seal  skins  in  the  market  of  Victoria 
"  in  the  j'ear  1886  is  cherefore  definitely  fixed  as  between  $().50 
"  and  87.00.     The  clanuants  demand  the  highest  price.     They 
•  should  be  allowed  the  average  market  price." 

That  is  the  United  States  argument.  The  evidence  that  Mr. 
Lubbe  gives,  in  the  portion  quoted,  is  a  slip,  becau.se  he  had 
previously  testified  at  page  1890,  line  40,  as  follows  : — 

"  Q.  In  the  j'ear  1880  you  liave  given  us  that  you  purchased 
'  16,797  skins  /     A.  Ye.s. 

"  <^.     But  of   that  only  239  were  Behring  Sea  skins  f     A. 
(iO  "  Yes,  sir. 

"  Q.     What  did  you  pay  for  those  Behring  Sea  skins  :'     A. 
87.50." 

And  again,  on  the  same  page  of  the  reconl,  line  65,  he 
states ;— 


\H 


m 


'I  \> 


m  i 


^nm 


37fl 
(Mr.  KuilwoH's  Argiuin;nt.) 

"  Q.  Wliiit  price  were  ni'ssinj^er  dt  Company  pnyini;  timt 
"  year  '     A.     From  !j*(i.50  to  $7.00. 

"  Q.  The  coast  eiitcli  comprises  ii  very  liirjje  proportion  of 
"  f^ray  pups,  does  it  not  :*     A.     Ves,  sir. 

"  Q.     Clin  you  tell  me  out  ol'  that  lot  of  1G,7!>7  .skins,  how 
10   "  K'ay  pupM  there  were  :*     A.    2,972." 

In  that  same  year  Munsie  sold  for  87.00  per  skin,  as  appears 
l»y  the  Record,  l)e;;innini;  at  tlie  bottom  of  pa^je  1 10,  as  follows  : — 

"  Q.  Did  you  ilispose  of  those  seal  skin.s  that  year,  and  lU 
"  what  price  ;'  A.  Yes,  I  sold  them  for  ^^7.00  per  skin  as  they 
"  ran. 

"  ().  Did  j'ou  sell  them  in  the  summer  oi-  in  the  fall  of 
"  l.SNO  !  A.  I  .sold  them  on  the  arrival  of  the  '  Pathtinder '  that 
"  same  year. 

"  (^.     Who  did  you  sell  them  to  :'     A.     I  sohl  them  to  Joseph 
20   "  Hoscowitz,  who  is  engaged  in  the  business  of  buying  furs. 

"  Cj).  And  did  you  actually  receive  for  them  ?7.()0  per  skin  ' 
"  A.     Ves,  S7.00  per  skin 

"  Q.  If  3'ou  liad  received  tlie  catch  of  the  '("arolena,'  could 
"  you  have  sold  them  at  the  same  price  '  A.  Well,  I  could  not 
'•  swear  that. 

"  i}.  What  is  your  opinion,  is  there  any  reason  why  you 
"  should  not  i'     A.     There  is  no  rea.son  why  1  should  not." 

So  that  1  say  we  are  (|uite  justified  in  asking  your  Honors 
to    allow   !*7.0()    per   skin.     Lubbe    bought   at    that   price   and 
30    iMunsie  sold  at  that  price.     Bessinger  and  Company  were  paying 
from  ?(i.r)0  to  i?7.0(). 

The  argument  then  proceeds  to  deal  with  the  price  for  liSH7. 
At  page  259  this  statement  is  made  : 

"  In  the  year  1887  there  were  no  skins  sold  directly  by 
"  owners  of  sealing  vessels  in  any  other  market  than  the  markets 
'■  of  Victoria  and  San  Franci.sco." 

This    is   not   quite  correct,   because  Jacob.son    in  that    year 
shipped  skins  to  London,  and  it  is  important  to  call  attention  to 
that  fact.     At  the  Record  page  27G,  line   2G,  the   following  evi- 
40   dence  is  given  : 

'■  Q.  Would  j'ou  tell  us,  generally  speaking,  without  going 
'■  into  particulars,  how  did  that  turn  out  as  to  the  profit  you 
"  made  that  j'ear  ? — ;just  give  it  in  round  figures.  A.  Do  you 
"  mean  the  sea  and  the  coast  catch  too  ' 

"  <i>.  Yes.  A.  I  think,  as  far  as  I  can  remember,  I  made 
"  between  ?+,000  and  .Sfj.OOO. 

"  *}.     That  is  net  profit  !     A.     Ve.s. 

"  i)      To  whom  did  you  sell  your  seal   skins  in   1887  >     A. 
"  The  first  I(jt  I  shipped  was  sold  bj'  a  man  named   McLagan. 
50  "  *).     He  shipped  them  to  Lonilon  for  you  ;'     A.     Yes. 

"  (,).  What  did  the}'  realize:'  A.  They  realized  between 
"  eight  and  nine  dollars  a  skin 

"  Q.  Would  that  first  lot  be  what  you  called  your  const 
"  catch  :'     A.     The  coast  catch." 

It  is  true  that  this  shipment  was  composed  of  the  coast  catch 
))ut  it  is  important  to  know  that  in  that  j'oar  tiie  London  market 
was  a  place  known  to  jiersons  outside  the  actual  buyers.  The 
sealer  Jacobson  had  knowledge  of  it. 

Mr.  Warren  : — Read  the  next  line  on  that  page. 
GO  Mr.  Hodwell,  reading  : — 

"  (/  What  did  you  do  with  your  Hehring  Sea  catch  :'  A. 
"  I  sold  them  to  Mr.  Davies  or  Mr.  Moss,  I  do  not  remember 
"  which  of  the  two. 

"  Q.     What  (lid  you  realize  for  them!'     A.     That   I  cannot 


•M7 

(Mr.  Hodwoll's  Aij^timciit.) 

"  reineiiibe''  but  it  wiis  somewhoro  between  !*().()!)  iiinl  SSTOO  for  (be 
"  Hobrinj^  Sea  seals." 

It  is  true  the  Hebriiij;  Sen  cntcli  was  mdM  in  Victoria,  Ijiit  I 
merely  wanted  to  make  tbe  point  that  the  l.iunilon  market  was 
known  at  that  time  to  persons  outside  the  trade. 

Mr.  Warren  : — It  makes  the  United  States  Argument   rijihf 
lu  as  to  the  Hehrin^  Sea  catch. 

Mr.  Bo<lweil : — Weil,  you  say  no  skins  were  shipped,  and  that 
is  incorrect.  Mr.  Hoscowitz  also  shippeil  2000  skins,  and  these 
were  Hehrinif  Sea  skins  as  appears  at  pai;e  IKH.'J,  litie  42.  Mr. 
Lubl)e  is  being  •■.samined,  as  follows  : — 

"  Q.  Mr.  Bo.scowitz  bouifht  some  skins  that  year  :•  A.  Ves, 
"  sir ;  it  does  not  include  the  coast  catcli. 

"<^.     And  he  boufjht  the  skins  that  came  otl'  the  '  Wurren 
"  .schooners  f     A.     I   think   .so,  I   think    they   were   shipped    by 
"  .Foseph  Ho.scowit/  to  London. 
-0     ,    "  ().     And  that  was  the  only  siiipinent  to  London  that  year 
"  so  far  as  you    know  f     A.     Kxcept  the    Alaska  Commercial 
"  I'ompany. 

"  Q,  Wait  a  irioment.  That  was  from  San  Francisco.  I 
"  am  speakinj;  now  about  Victoria.  A.  I  do  not  think  the 
"  Alaska  Conunercial  tJompany  had  any  here  that  year. 

"  i}.     In  the  year  18S7,  all  tiie  skins  that  were  taken  in  the 

"  Hehrinj;  Sea,  with  tbe  exception  of  about  one  siiipinent  of  2000 

"  .<kins  to  London  by  Joseph  Hoscowit/ — which  were  tbe  skins 

"  taken  ott'  the  '  Warren  '  .schooners— were  sold  riyht  here    in 

;i()  '■  Victoria — were  they  not,  Mr.  Lubbe  ?     A.    Yls,  I  think  so." 

As  to  that  shipment,  I  desire  to  refer  to  tbe  evidence  of 
Warren  at  pajje  ls70,  line  70;  and  1H71,  line  1  to  10,  to  show 
tliat  they  realized  as  a  net  return  in  Victoria  So. •")(). 

Mr.  Warren: — Do  you  say  that  those  skins  were  Hoscowit/. 
skins. 

Mr.  Hodwell: — Mr.  Lubbe  says  that  it  was  not  the  coast 
catch.  Skins  were  transferred  in  Hehring  Sea  to  other  .schooners 
and  I  do  not  think  that  Mr.  Luljbe  would  talk  about  a  shipment 
that  was  not  of  the  coast  catch  unless  lie  knew  of  it.  Warren 
40  speaks  of  it  in  his  evidence  on  that  point  as  if  th(;y  were 
liebring  Sea  skins,  and  he  is  not  cross-examined.  His  evidenci; 
is  at  pajje  1871,  lines  1  to  10.  So  far  as  that  statement  of  Lubbe 
is  concerned,  Boscowitz  might  have  been  buying  from  other 
per.son.s.  At  page  1870,  Warren  gives  this  evidence,  at  the 
bottom  of  the  page  : — 

"  Q.  In  tbe  year  18<S7,  what  did  you  do  with  the  skins  that 
"  you  got  ?     A.    They  were  shipped  to  England. 

"  <^).     How  many  did   you    ship  ^     A.     Between    2.200  and 
'•  2,300. 
.")()         '  Q.     What  did  they  net  you  here,  after  paying  all  expenses  ' 
"  A.     S(i.30." 

If  the  witness  does  refer  to  the  coast  catch,  it  gives  additional 
value  to  tl'ie  Behring  Sea  skins  that  year,  because  all  the  evi- 
pence  is  that  tbe  Behring  Sea  skins  brought  a  higher  value  than 
the  coast  skins,  and  I  have  therefore  the  right  to  a.ssume  that 
our  value  of  S6.50  is  well  within  tbe  mark. 

At  one  o'clock  the  Connnissioner.s  took  recess. 


(i() 


At  half  pfVHt  two  o'clock  the  Comnii.ssioners  resuineil  their 
seats. 

Mr.  Bodwell : — When  the  court  adjourned  I  was  referring  to 
that  part  of  the  United  States  Argument  which  appears  at  page 
25!>  with  reference  to  tbe  year  1887,  where  it  is  stated  that  the 
only  witness  sworn  as  to  the  market  value  of  skins  in  tbe  city 


■m 

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37.S 

(Mr.  Botlwoll's  Argument.) 

of  Victoria  in  the  year  IN87  was  Tlu'odori"  Lubbe,  wlu)  ti'stiHc(| 
that  lie  purcliasod  i'loni  Cliarlus  Spring  \'  Co.  on  tlio  lOtli  ol" 
Octolu-r.  1887,  l(i25  .seal  skins  at  S4  5()  iwli. 

That    was   tlio  cargo  of    the  "  Kato,"  hut  Mr.  Mun'<it'    also 

HoM  skins  (hat  year,  as  appears  by   his  eviilencu  on  page   IIM, 

line  ()-2  :  — 

JO         "  i}.     Now  leaving  out  the  amount  of  seals  you  got  in  1887, 

"  can  you  tell  me  the  price  of  seal  skins  in  1887  :'     A.     About  8'). 

"  (j).  Where  ilid  you  .sell  your  seal  skins  that  year,  and  to  whom 
"did  you  sell  thorn  i*  A.  I  sold  2,320  to  Jos.  l^hlman,  of  \ew 
"  Vork,  or  to  his  agent  here.  I  see  that  -1.93  wero  sold  in  small 
■  lots,  but  I  have  forgotten  whom  they  wero  sold  to. 

'■  Q.  All  the  skins  you  dealt  in  that  year  wen^  the  .skins 
"  from  the  '  Pathfinder '  '     A.     Yes." 

Charles  .Spring  also  in  addition  to  the  .sale  of  the  cargo  of  the 
"  Kate"  sold  the  eargo  of  the  "  Favoiu'ite  "  to  Morris  Mossat!?7. 
20  I"  the  United  States  Argument  it  is  said  that"  if  Charles  Spring 
"sold  any  skins  that  yi'ar  at  !*7  it  was  much  earlier  in  the  year 
•'  than  the  eargo  of  skins  from  any  of  the  vessels  seized  wonlil 
"  have  been  landed  in  Victoria."  I  think  that  statement  is  not 
([uite  exact,  because  at  page  874,  lino  15,  we  have  his  evidence 
upon  that  point. 

■  (,>.     What  was  the  price  of  skins  in  18S7  that  you  received  ' 

"  A.      !*". 

"  Q.     What  was  the  market  price,  or  what  you  got  :•    A    Th.it 
'  is  the  best  price  that  I  got. 
;}()         "(,),     Voii  got  them  from  what  ship  '     A.     The     Favourite. 
In  1887  '     A.     In   1887. 

Then  you  .sold  to  whom  :'     A.     To  Morris  Moss. 
What  did  you  reali/.o  foi-  Hohring  Soa  catch  ;'     A. 
Did  von  sell  any  at  a  less  price  than  S7  in   1887  ? 
"  Yes,  I  did. 

"  Q.     For  what  price  ?     A.     For  $5. 

"  Q.     That  was  the  spring  catch  ?     A.     That  was  later  on  in 

"  the  same  year.     Lite  in  the  season,  a  considerable  time  after 

"  all  the  schooners  had  arrived  in,  cjuite  a  few  skins  had  arrived 

40    '  here,  and  mine  being  the  last,  of  course  everybody  had  been 

"  supplied. 

••  Q.  In  the  early  part  of  the  season,  what  time  did  you  sell 
"  for  .*!7.00  '     A.     To  the  middle  of  Soptembcr,  I  think. 

"  <,*.     Did  you  have  any  coast  catch  that  yisar  ^     A.     Yos, 
"i).     Did  you  sell  that  '     A.      Yes. 
"  Q.     When  !'     A.     During  the  spring. ' 

So  that  that  was  actually  a  Behring  Sea  catch,  liaving  been 
sold  the  middle  of   September,  and  it  was   possible  that  one  of 
these  vessels  might  liave  returned  by  that  time. 
50  '^n  the  same  page  (2()())  of  the  United  States  Argument  there 

is  a  statement  which  is  not  very  material,  j'et  it  .should  be  cor- 
rected. It  is  said  that  Lubb(!  bought  the  "  Penelope's "  collec- 
tion of  1,.")0()  skins  at  85. .oO,  and  then  it  says  below  that  other 
skins  were  bought  from  the  '  Pathfinder"  at  So. 50  and  from  the 
"  Penelope  "  and  the  "  Theresa  "  at  !?").25.  That  is  a  mistake,  I 
think,  in  taking  Mr.  Lubbe's  evidence  down,  for  at  page  188:{, 
line  30,  he  says  : 

"  J.  Uhlman,  of  New  York,  bought  the  'Pathfinder'  collec- 
"  tion,  2.;J77  skins,  .at  $6.  Of  cour.se,  I  am  taking  this  from  a 
GO  "  letter  I  wrote  at  the  time  to  New  York.  Amongst  these  2,377 
'■  there  may  have  been  10  or  15  grey  pups,  which  would  change 
"  my  figures  sliglitly.  but  would  not  amount  to  anything.  1 
"  bought  the  '  Penelope'  collection  of  1500  at  85.50.  Liebes  & 
"  Company'  and   the   Hud.son   Baj-  Company  and  others  bought 


!?7. 

A. 


M7!) 


(Mr.  Uoilwell'M  Argument.) 

".sonic  of  tlie  skiii.s  tluU  yeftr,  making  ii  total,  iicconliny  to  tlieno 
"  Kyiiros,  of  10,200  in  Hulirin);  lleii." 

Mr.  Warren  :— At  paye  IMSI,  line  '),  lie  ;,'ivi's  the  price  of  tlio 

•  Penelope  "  skins  at  85.2"). 

Mr.  HfMlwell : — Ye.s,  anil  I  say  that  is  a  mistake  of  the  sten- 
o;,Mapher  or  the  printer  or  somebody,  as  is  shown  by  the  otiier 
Iti  evidence  of  Mr.  Ijublie. 

At   paije  2til   of   the    United    States    Ar;;ument    tlnre    is  a 

■  |iiotatiou  from  Mr.  I^ubbe's  letter  book   in    which   he  says  i\\n*, 

riilnuin  appeared   to   have  enough.     Davis  (I'hlnian's  aj^ent) 

•  eonid  have  bonjjht  a  lot  at  .S5." 

His  evidence  is  also  ((noted  at  pa;;e  MY.V.i,  line  30. 

Mr.  I..ul)i)e  was  at  the  portion  of  his  examination  so  ex- 
tracted speaking  of  the  whole  northwest  coast  catch,  hut  the 
iivera^^e  price  of  the  l-iehrinj;  Sea  catch  cannot  he  avera<;ed  by 
liikinji  the  whole  northwe;<t  coast  catch,  for  this  season 
20  llie  northwest  coast  catch  is  a  ti^rm  invented  by  Lampson  and 
liikes  in  the  whole  catch  of  tiie  northwest  coast,  includin<^  the 
I  it'll rini^  Sea  catch.  In  the  coast  catch  proper,  there  are  a  very 
;:reat  number  t)f  j;rey  pups.  Mr.  Lubbe  statin;j  it  to  be  as  hiijh 
lis  hS  per  cent.,  whereas  1  per  cent  is  a  hiyh  averaf^e  for  {^rey 
imps  in  the  Hehrini;  Sea  catch.  The  witness  at  this  point  is  refer- 
liiij;  to  that  very  thing.  He  is  being  examined  b}'  Mr.  Oickinscn 
and  this  is  the  evidence  on  page  liKl.S,  beginning  at  line  2-i:  — 

"  Q.     Will  you  please  state,  Mr.    Lubl)e,   whether   in    1H86, 

"  from  your  own  knowledge  of  the  price  of  skins,   taking  .seal 

;iO    '.skins  as  they  ran,  including  grey  pups,  coast  catch,  and  all, 

•  whether  in  the  market  at    Victoria,  purchasing  as  you    were 

*    '•  purchasing,  and  as  ].,iebes  was  purchasing,  right  here,   i<i.W) 

"  would  be  a  fair  average  ?     A.    Yes,  for  the  coast  catch. 

"  Q.     For  ail  :*     A.    For  the  coast  catch  only,  Mr.  Dickin.son. 

"  Q.  In  18H7,  would  S.").,')0  be  a  good,  fair  average  '  A.  I 
"should  think  so  ;  yes,  sir. 

"  Q.     For  all  ?     A.    Yes,  sir,  for  all. 

"  Q.     In  1888,  would  !?5.75  be  a  pretty  fair  average  for  all, 
"  including  IJehring  Sea  ^     A,    No. 
40         "  Q.     It    would   be  a   fair  average,  would   it,  for  the   coast 
'  catch  !     A.    Yes,  not  for  the  Hehring  Sea. 

"  Q.     And  that  would  give  a  fair  average  for   liehring  Sea, 
and  altogether  in  1888,  including  Hehring  Sea  and  the  coast ' 

■  A.     Yes,  I  think  it  would  be. 

"  Q.  Now,  for  188!),  for  all,  would  #7.20  be  a  pretty  fair 
"average,  taking  them  as  they  ran  ?  A.  Yes,  I  should  think 
"  so.     It  would  depend. 

"  Q.     Taking  them  as  they  ran  ?     A.    You  cannot  do  that. 
'  If  you  take  7.5  per  cent   Hehring  Sea,  and   2o  per  cent,  coast 
.■)0    "  catch,  the  average  would  be  more  than  S7.20. 

"  Q.  Hut  as  they  ran  in  188!),  from  your  knowledge  of  the 
"  market,  S7.20  would  be  a  fair  average,  would  it  !  A.  Yes,  I 
"  should  think  so." 

Now,  at  page  1035,  line  30,  he  .saj  s  :  — 

"  Q.  Now,  you  said  the  ^mer  day  that  in  the  year  1880,  for 
"  the  spring  catch,  there  was  a  percentage  of  seventeen  and  a  fi'ac- 
"  tion  of  grej'  pups  out  of  a  ctjrtain  lot  of  skins  ;'     A.     Yes,  sir. 

"  Q.     Speaking  now,  from   your   knowledge,   was    that  an 
'  unusual  percentage  of  grey  pups  :'     A.    No. 
00         "  Q.     You  said  also,  immediately  afterwards,  that  there  was 

■  no  such  percentage  of  grey  pups  in  the  Hehring  Sea  catch  ^  A. 
"  Yes,  sir. 

"  Q.  Can  you  tell  me  what  would  be  the  percentage  of  grey 
"  pups  in   the    Hehring  Sea  catch  !     A.    T   have   never  seen  as 


>M-   i. 
'*|i  I, 


'  Hi 


mil 


'Ml . 


<M, 


:^^- 


u  ■    \i 


m^^r^wT 


;ts(» 


(Mr.  linilwfH's  Aryiiiriiit.) 

"  iiuiiiy  UH  i)iif-i|iiiirtt>i' of  Diiu  pur  cent,  i  will  Htiito  here  tinw 
"  timt  it  would  not  ln'  jiossihit'  to  t'.xct'cl  dih-  per  cont. 

"  if      Now,  tlu'ii,  if  ymi  wi'i'c  tryiii;;  to  ;;ct  lui  iiv('nij»i'  prior 
"  for  Hi'lirin;;  Sen  skiiiH,  iloyoii  tliiiik  you  could  ;;i't  a  fiiir  iivcrii;;.' 
"  j)rict'  liy  taUiii;,'  tlu-  whole  of  llic  iiortliwi'st  coii'^t  cutcli,  as  y.iu 
"  Imvf  descrilicd  it,  hiuI  avt'rii<;iiij;  tlii'in  '     A.     No. 
10  Q      You  would  1)1'  tiikin;^  in  tlion  nil  tliis  lar;;i!  pcrfcnta;;!' 

"  of  ;;i'i'y  |>n|i'^,  wliicli  would  l)riii;f  the  i)ric('  down  on  that  lot 
"  very  mui'h  '  A.  Mi;;ht  he  '.M  pi-r  cimiI.,  2.'i  or  (iO  of  pups  ;  it  is 
"  no  criterion." 

lie  also  Haiti,  Just  Ih'forc  that,  on  the  s;inh)  j)ij,'i',  at  line  .'11  .  - 

"Q.  Vou  .Haiti  n  inouu'iit  ai,'o  that  the  northwest  const  catch 
"  was  ti  term  invented  liy  Ijain))son  :'     A.     Yes. 

"  ii.  It  incluiles,  does  it  not,  all  the  .skins  that  are  caught  t)n 
"coast  from  California  to  Alaska  ^     A.    Yos,  .sir. 

"if.     The  spi'ini;  catch  also  jjoes  in  as   tlu-   noi'thwest  coasi 
20  "catch  in  liUinpson's  salt;  '     A      N'es,  sir." 

Your  IIt)nor.s  will  sec  that  such  ,a  comparison  will  not  j^ive 
the  averaije  ])rice,  even  if  {\u\  I5ehrin;;  Sea  skins  he  inclnileij  in 
the  amount  represent  in;,'  the  t,n-oss  .sum  receiveil  for  the  whole 
northwest  coast  catch. 

The  eviilenco  of  Ca)itain  Warren  is  also  referral  to  at  pa;,'e 
201  (d' the  Uniteil  States  Arjjument,  wliere  he  says  that  S.'i.oO 
was  til"  price  the  ilt^alers  were  i)ayin;j  at  Yi('tt)ria,  in  IHST 
(/Uptain  Warren  was  a  partner  of  Mo.scowit/.,  who  was  ship|iin<,^ 
to  Loniloii,  anil  1  ipiote  his  evidence  from  paj^e  1.S71,  line  •_'. 
no  whei'e  he  says  he  realized  !*(i.H()  for  the  skins  shippml  to  Li)ndon 
that  year;  that  is  tlio  net  price  at  Victoria. 

At  the  hottom  of  jiafife  2(11,  of  my  frienil's  ari:;ument,  it  is 
sail]  :— "  The  value  of  se/il  skins  in  the  year  ISS.S  is  ixjt  directly 
"  involveij,  ami  the  testimony  is  ntit  important."  Hut  we  ctiu- 
teml  that  the  year  ISHJS  is  important,  hecause  it  shows  that  in 
that  j'ear  nearly  all  the  owners  were  shippinij  their  skins  tt) 
Lonilon  ;  so  that  after  IX.SS  there  is  every  reason  tt)  say  that  the 
ortlinary  ship  owner  would  .sell  in  Lonilon.  In  Mr.  Luhbe's  evi- 
ilence,  page  IHS-l-,  line  20.  it  i.s  said  : — 
40  "  Q.  In  the  yi.Nir  1S,SS,  who,  hi'sides  yourself,  wa.s  purchasini; 
"skins  in  Victoria:'  A.  That  is  pretty  hard  tt)  titnl  out.  I 
'thiidv  there  were  very  ft?w  skins  sold  here  that  year.  They 
"were  all  shipjietl  by  the  owners." 

After  18HS  we  say  there  was  no  tpie-ition  about  the  Lontlon 
price  beinj^  the  price  of  sial  skin.s  taken  by  vessels  operatini,' 
from  Victoria.  There  were  instances  before,  but  after  IHHH  they 
were  nearly  all  shipped  to  Lumlon. 

At  pa<j;e  'IViZ  •;?  the  Tnitetl  States  Ari,'uuient  there  is  antither 
statemi.nl  iliat  \> : .  Liibbe  say.s  the  price  in  Victoria  was  ?7.20 
50  per  skin  ft)r  eoji  sfc  catch  ;  that  the  highest  market  price  of  skins 
in  Victoria  to'  1881)  was  between  i:<7.7.')  and  §7.<)0.  Mr.  Liibhe 
was  not  puiL'ha.sintf  any  skins  in  188'J.  That  price  is  from  his 
eviilence  as  j^iven  on  page  1880,  line  (12.  It  is  from  a  report 
report  made  to  his  owners.  The  letter  was  read  into  the  notes  at 
page  1888,  lines  20  to  .'50,  and  in  that  report  he  says  to  his  prin- 
cipals:  •' Y'esterday  in  London,  Culverwell,  Brooks  &  Company 
"  sold  the  catch  of  the  '  VMva  '  at  47  shillings,"  which  he  trans- 
lates into  our  money  as  about  ijicm.  He  arrives  at  the  Vic- 
toria price  by  deducting  (>0  cents  a  skin  for  freiglit  ami  packing. 
tiO  That  principle  of  calculation  is  stated  by  him  in  his  evidence  at 
page  IDS.j,  lines  25  to  GO. 

Immediately  after  this  there  is  a  statement  in  the  Uniteil 
States  Argument  that  llr.  Lubbe  afterwards  stated  that  he  made 
a  sale  in  London  in  1889  at  $7.7C  per  skin,  but   the  sale  that  is 


Ill 


•20 


;)o 


40 


.•)() 


CD 


<)0  cents  a  <<kiii 
*7.7«. 


(Mr.  Hoil well's  Arf(uiiK>nt) 

tluiio  lofirri'il  to  was  not  a  salt'  hy  I^nliW',  liut  ii   one    lie  read 
iilhtul.     On  piit;f  iy:iM,  lini'  27  : 

"  (j.  That  M  $D.2(>,  IM  it  not  (  A.  No,  it  \h  iHM.  That  Im 
"  no  criterion  of  the  valiu-.  and  then  you  innst  take  the  freight 
"  oir,  too, 

"  Q.  You  take  the  freight  off  tliiit  of  tiO  cents  a><kin'  A. 
"  (iO  cuntN  IM  full,  liut  take  it  off'. 

"  i,i.     How  much  does  that  leave  !     A. 

"  if.  That  was  a  Lindoii  sale  in  the  yoir  1S89,  in  the  fall  ? 
"  A,     Yes,  sir. 

"  Ke-cro.ss-exaniiiiation. 

'•  (^.  In  the  year  KSKi)  you  hon^^ht  a  h)t  of  how  many  skins  > 
'  A.     These  were  not  my  skin.s. 

"  Q.     Was  that  not  your  lot  (     A.     No. 

"  <.^.  What  skinH  were  thos(!  f  A.  I  cannot  tell.  Someone 
•'  had  shipped  northwest  coast  skins  and  they  realized  US 
"  shillingH. 

"  Q.  Was  it  your  sale  ?  A.  Oh,  no  ;  they  may  lielonjj  to 
"  anyliody. 

"  Q.  How  many  skin.s  were  there  (  A.  The  telegram  read, 
"  '  -i.OOO  at  MM  siiiliinKM.' 

"  ii.  And  you  do  not  know  the  circumstances  as  to  whether 
"  these  were  culls,  or  otherwi.se  f     A.     I  cannot  tell  that. 

•'  ',!.  Would  that  sale  be  any  criterion  of  the  market  ?  A. 
"  No,  it  would  not. 

"  Q.  The  average  price  of  the  Hehring  Sea  catch  that  you 
"  ;jave — how  did  yon  arrive  at  tlie  averajje  which  you  gave  for 
"IMS!)?  A.  In  the  autumn,  October  nOth,  1H8!),  there  wen; 
"  two  sales  in  Limlon,  one  of  l'),000  skins  lor  C.  M.  L'lnjpson  & 
"  Company,  avera<»injj  -t.")  ihillinfis,  and,  on  the  .same  day,  Oulver- 
"  well.  Brooks  &  Company  solil,  I  think,  10,400,  nod  the  average 
"  was  44  shillings  and  (J  pence." 

At  page  2(52  of  the  United  States  Argument  it  is  stated  : 

"The  highe.st  market  price  of  skins  in  Victoria  in  lHH\)  was 
"  between  S7.7r.  and  .?7.()0." 

"  On  page  1H!)3,  line  '<iO,  Mr,  Lubbe  says  : 

"  Q.  Will  you  tell  the  lowest  price  for  the  same  year  ?  A. 
"  I  think  they  were  all  87.G0. 

"  Q.     All  about  !?7.C()  ?     A.     Yes. 

"  Q.  And  that  is  for  the  skins  as  they  n  n,  including  grey 
"  pups,  just  like  the  London  sales  ?     A.     Yes,  sir. 

"  Re-cro.ss-cxamination. 

"  Q.  Mr.  Lubbe,  who  ma<Ie  that  offer,  do  you  know  ?  A,  I 
"  think  Uhlman — yes,  I  have  it :  '  Uhlman  appears  anxious  to 
"  buy  at  87 .7").' 

"  Q.  Were  there  many  skins  ?  A.  The  total  collection  for 
•  18S!)  would  not  be  less  than  2;i,000  ami  might  reach  33,000, 
"(refering  to  book).  The  prices  offered  hero  j'esterday  (4th  Sep- 
"  tember,  1889)  by  Uhlman  and  Boriies  was  ?7.7o  aud  S7.G0 
"  respectively. 

"  Q.  Now,  Mr.  Lubbe,  the  4th  of  September  would  be  about 
"  the  first  vessel  that  arrivetl  — the  beginning  of  the  season  f  A. 
■•  Yes. 

"  Q.  Is  it  not  within  your  knowledge  that  prices  went  up 
"  in  1889  very  rapidly  from  that  time  on  ?     A.     Yes. 

"Q.  So  that  was  the  lowe.st  price  that  was  offered  in  that 
"  year  ('     A.     Ych. 

"  Q.  And  that  was  the  reas  )n,  was  it  not,  that  the  sealers 
'  themselves  shipped  to  London,  because  they  found  the  prices 


V  i| 


If 


:A 


M 


i.* 


■4 


..MtI 


382 
(Mr.  BiMUvell's  Aijjument.) 

"  there  were  hijjlier  ?     A.     Ves." 

W'u  know  tlmt  tlie  prices  went  up  becnuse  we  have  Mr. 
Miinsie  that  year  with  his  account  sales  .showing  that  he  soltl 
10  the  "  Viva  "  catch  in  London  at  ?ll.  That  it  appear.^  on  pajifu 
1S(!8,  .ine  'AO,  and  on  ISCi't,  line  1.  There  were  some  .sales  at  the 
smaller  price  also  made  by  JIunsie  and  we  have  Mr.  Liibho 
sayini;  that  prices  went  up  and  that  the  shippers  beffan  to  send 
skins  tt)  l..ondon. 

The  Commissioner  on  the  part  of  the  United  States  : — Ought 
we  to  take  the  prices  at  the  close  of  the  season  or  the  middle  of 
the  season  ?  In  one  year  you  have  got  it  in  the  early  part  of  the 
.sea.son  and  in  another  at  the  latter  part  of  the  season,  which  are 
we  to  take  i 
20  Mr.  Bodwell : — The  early  part  of  the  season  was  the  price  at 
Victoria. 

The  Commissioner  on  the  part  of  the  United  States  : — No, 
the  prices  changed  at  Victoria.  Mr.  Munsie  testified  that  he 
sold  the  last  part  of  the  season  for  ?5  and  he  explains  that 
and  yon  have  already  read  his  explanation.  Now,  which  part 
of  the  season  arc  we  to  take,  we  must  do  the  same  by  each 
season. 

Mr.  Bodwell : — No,  I  do  not  think  so,  not  in  a  special  instance 
like  that.     That  was  the  special  occasion  of  the  dealers  having  a 
go  supply  and  he  had  to  take  what  he  could  get.     That  was  not  ii 
lest  of  the  market  price  for  that  year. 

The  Commissioner  on  the  part  of  the  United  States  : — Should 
not  we  take  the  price  of  skins  at  tht^  time  the  ves.sel  would  havr 
arrivt'd  if  she  had  not  been  interferred  with  :* 

Mr.  Bodwell: — If  you  take  the  Victoria  price,  yes.  But  it' 
you  take  the  London  price,  no,  because  the  London  sales  took 
place  in  October  or  Noveinb(>r.  Lampson  only  had  two  sales  a 
year. 

The  Commissioner  on  the  part  of  the  United  States  : — But 
40   the  higher  price  in  Lindon  was  the  close  of  the  season.     Munsie 
says  that  he  Hrst  got  between  87  and  !?S  and  later  in  the  season 
lie  netted  Sll. 

Mr.  Boiiwell : — I  think  I  can  explain  that  apparent  discrep- 
ancy in  this  way.  .'?7.7(i  was  rt^ferred  to  as  the  Victoria  price. 
Skins  went  up  and  they  were  shipped  to  London  and  $11  was 
the  London  price. 

The  (Commissioner  on  the  part  of  the  U^nited  States:  —  But 
Mr.  Minisie  testitii'd  that  his  early  London  sales  wore  $7.!)2  an^l 
then  his  later  sales  were  $11. 

Mr.  Bodwell  :  — I  think  your  Honor  is  (|uite  right  in  saying 
that  Munsie  got  a  higher  price  in  the  latter  part  of  the  season  of 
that  \'ear,  i)Ut  we  think  we  oiight  to  get  the  best  price  that  was 
obtainable. 

The  Commissioner  on  the   part  of  the   United  States  : — -But 

looking  at  it  from  a  reas)nabl((  stanilpoint  should  not  you   gnt 

the  best  price  that  seal      cins  would  connnand  when  the   vessel 

1  pr(jl)Libly  have  arrived   if  she   ha'l    not    been    interferred 


.•)() 


WOUJi 

with. 


Mr.  l5odwi'll  : — Yes,  but  in  that  event   they  would  get  thei 
(!()   shipments  to  London  in  time  for  the  November  sales. 

The  Commissioner  on  the  part  of  the  United  States:  — Yoii 
lerstand   that    $11.00    was    the  net 


un< 
ehar<r(!s  ? 


pric 


aft 


er    |iayinj. 


all 


Mr.  Bodwell  :  — Yes,  that  is  sworn  to  as  being  the  net  price. 


:{.s:? 


(Mr.  Hotiwt'll's  Arj^iimcut.) 


Till' C'omiiiiMHioiu'r  on  tlii'  jmrt  of  tln' riiitcd  States: — At 
|inj;('  l(S();{,  line  ol,  of  tlii-  Ri't'onl,  tlii'  ciiloilatioii  is  to  sliow 
■  wliat  tilt' skills  cost.  "  slioiild  that  not    lie  "  net  f" 

Tlic  Coniiiii.ssioiii'r  on  the  part  of  (Jrcat  iM'itaiii  : — 'I'liat 
word  is  a  slip  nodoulit,  it  should  he  ''what  they  brought." 

Mr.  lioiiwi'll ; — If  your  Honor  will  rt-ad  a  few  liiu's  jirt'ci-din;; 
|(i   limt  I  think  you  will  see  it  means  net  price. 


lown   as 


■10 


riie    Comniissioner    on    the    part    of    Oreat    Mritain 
evidently  a  clerical  error  in  the  Ueconl. 

Mr.  I'etei's  : — On  the  face  of  the    document    it    is  sli,,,,..   „.. 

•  net."  1  rememlier  your  Honor  asked  tlwit<[ue.sti()n  particularly 
at  Victoria. 

Mr.  Hodwell: — In  the   Tnited   States  Arj;ir.iient  at  pn^e  2(>;{, 

in  s\nnniin>;  up  this  (picstioii  they  use  the  followin;;  lanijuaye: — 

"Till'  claim  is  made  for  the  market    price  at    London,  in  the 

■  ar^jument  on  hi'half  of  Oreat  Britain.     There  is   no  testimony 
of  the  market  value  of  skins  in  London  in  the  years  l>i8ti  and 

■  liSH7.  There  is  no  evidence  of  any  direct  shipment  hy  sealers 
"to  London  in  the  year  IHS7.  The  statement  is  made  that 
'  Captain  Warren  shipped  skins  to  London  in  IHS7.     The  fact  is 

•  that .).  Hoscowitz,  who  was,  and  had  heeii  for  a  i;reut  many 
"  year.s,  purchaser  of  seal  skins  in  N'ietoria.  sent  his  skins  to 
"  London,    where   they    were   sold   at    the   auction  sales  t"or'  his 

•  account." 

That  is  ei|uivaleiit  to  a  st.'itement  that  t'aiitaiii  Warren 
sold  skins  in  London,  hecause  the  evidence  is  nncoiiti'adicteil 
:i()  that  Warren  and  Ho.scowitz  were  [)artners  in  the  result  of  the 
voyaije  in  these  years,  and  as  Ho.scowitz  was  shipping;  to  Lonilon, 
Warren  as  a  matter  of  law  was  entitled  to  one-half  of  the  |)rotit. 
There  is  evidence  that  .lacohsoii  shipped  to  London  in  !S,S7, 
Mithiaijj;li  it  was  not  a  Melirin;;  Seacatcli. 

( ienerally  with  reference  to  the  i|Ui'stion  as  to  whether  or 
Mill  the  Lomlon  price  should  lie  taken,  I  think  I  may  repeat  the 
ntiservations  I  made  with  reference  to  the  value  of  vessels, 
namely,  that  the  i|uestion,  on  the  evidence,  is  contined  to  very 
narrow  limits.  I'pon  the  jfeneral  sul)ject  we  have  cited  the 
40  authorities  and  evidence  at  pa;;i'  S.S  and  the  top  of  piiy;e  'S4  of 
o'lr  ari;ument,  in  which  we  show  from  ijuotations  from  tlu' 
I'liited  States  case,  and  from  the  evidence  of  Luhhe,  that  the 
London  prices  was  the  yovci iiini;  price  at  X'ictoria.  Mr.  Luhhe 
'^HyH  positively,  that  the  London  [irices  i^overned  the  Victoria 
price.". 

lint  your  Honors  ari'  not  driven  to  draw  any  very  tine 
'listinctions  u,  jii  this  point,  hecause  it  heeomesvery  simple  when 
I  lie  evidf.ic^'  is  fairly  cmsidered. 

With  leference  to  the  year  iSSti,  the  ipiestioii  does  not  arise 
at  all,  hecause  ilie  value  that  we  are  claiming  is  hased  on  the 
\  ictoria  pliee.  I'liere  is  no  eviilence  with  reference  to  tic 
Li  "..io;<  ix'ice  of  tiiat   year. 

.\s  to  the  year  IHS7,  there  is  a  claim  for  the  value  of  seal 
^l\ills  on  account  of    the   "Sayward."    the   'Anna    Meek,'    the 

■  l>ol]iliin,"  ■■  the  '  ( Jra'.'e,"  ttie  ".\lfred  Adams,' the  "Ada"  ami 
till'  "Triumph"  Kour  of  these  vessels  helonij;  to  Warren,  and  I 
lia\e  Just  stated  to  your  Honors  that  the  i{ecia-d  discloses  that 
III-  was  a  jiartner  of  Hoscowitz  who  was  huyinj,'  and  shippini^'  to 
London,  atid  Wai'l'en  would  ;;et  one  iialf  of  the  London  priei'. 
That  is  heyond  all  contradiction. 

It  was  shown  hy  the  evidence  (hat  .lacolison  was  shippin;^  to 
I.I mdoii  that  year,  and  we  think  il  is  a  fair  (liinj;  to  say  that  the 
owners  of  the  "Adams."  '  .\da  "  and  "'I'liumph'  would  have 
knowled;;e  of  the  London  prieeR,  and  if  (hey  ilid  not  tl'et  as  ^iiod 


."id 


:.,.  V-t 


|l      V 


'  :lw. : 


l(-  \i 


H' 


11. 


3S4 

(.Mr.  Hodwell'H  AryuiiuMit.) 

pricoH  in  Victt)riii,  would  liiivc  sliipped  to  l..oiulon  as  otlier.s  were 
doing. 

Ill  18SK  the  ((Uestion  lioeH  not  nriHe  becausf  the  owners 
then  began  to  ship  to  London  an  a  con.stant  practice. 

With  reference  to  the  vessels  for   which    claims  are  made 

in  liSSt),  the  evidence  is  still  more  distinct.     We  know  from  the 

10  evidence  of  Hall,  page  1873  of  the  Record  that  the  catch  of  the 

Juanita  wouM  certainly  have    gone  to  London.     At  the  top  of 

page  1874,  he  says  as  follow  : 

"  Q.  Had  you  previous  to  that  time — previous  to  the  seizure, 
"sold  any  of  your  skins  in  London  ?  A.  We  shipped  in  1888 
"  ex  .Juanita. 

"  Q.    To  London  :'     A.    To  London. 

"  t^.  In  1879,  was  it  in  }-our  mind  to  ship  to  London  also  ? 
"  A.     We  had  that  in  contemplation. 

"  Q.       Did  you  communicate  with    parties  in  London  about 
20  "  it '.     A.    Yes,  we  had  been  to  the  London  market. 

"  y.  That  was  before  the  seizure  ?  A.  Before  we  know  of 
"  the  seizure. 

"  Q.  And  I  believe  you  originally  put  in  j'our  claim  for 
"  S8  00  >.    We  put  in  our  claim  for  .S8.00." 

Mr.  Wan-en: — He  got  skins  off  the  Juanita — d' 1  1  ; -i..,il 
them  to  London  > 

Mr.  Bodwell  : — These  skins  were  sent  to  San  Fnii.  .c)  um. 
sold  to  the  United  States  authorities. 

Mr.  Warren  :^N'o. 
JIO  Mr.  Bodwell : — I  think  so.     If  what  my  learned  friend   says 

haii  been  the  case,  it  certainly  wouM  have  been  brought  out  in 
his  cross-examination;  but  in  any  event  there  was  only  a  vory 
small   lot. 

The  "  Pathfinder  was  owned  by  Mr.  Munsie  and  he  was 
shipping  to  Loiiilon  beyond  all  (juestion.  Mr.  Lubbe  speaks  of 
him  as  the  pioneer  shipper  to  London,  as  far  back  as  1887  he 
was  disposing  of  the  catches  of   his  vessels  in  this  way. 

Mr.     Jacobson    of     the    '  Minnie"    had  shipped     to    Lon- 
don in  I8N7,  and  it  is  verj'  reasonable  to  suppose  that  he  either 
40   would  have  shipped  to  London  or  got  the  London  price. 

The  "  Kate  "  was  owned  by  Mr.  Spring.  Mr.  Spring  must 
bi^  taken  to  have  had  all  the  information  in  the  posse.ssion  of 
Mr.  Munsie  and  Captain  Warren,  and  he  would  either  have 
received  the  London  prices  or  would  have  sliipped  there. 

The  "  Black  Diamond  "  and  the  "  Lily "  were  owned  liy 
Morris  Moss.  Morris  Moss  w'as  Mr.  Liebe's  agent  in  N'ictoria. 
He  bought  for  Liebes  iV;  (yo.,  who  were  dealing  directly  with  ihe 
London  market.  It  is  beyond  all  question  that  Morris  Mi)s> 
would  have  got  the  London  prices  for  his  skins,  because 
"jO  he  must  have  known  it  from  his  cori'espondenc«  with  his  prin- 
cipals. 

The  "  Triuin|ili '  was  owned  by  Iv  Crowe  Baker.  There  was 
a  contract  made  with  reference  to  these  seal  skins,  and  we  have 
set  out  our  views  on  that  in  the  Argument  on  the  "  Triumph  " 
case,  I  will  not  takt;  up  time  because  that  will  necessarily  have 
to  be  discussed  when  the  "  Triumph  "  .seizure  is  taken  into  con- 
sideration. 

This  leaves  only  the  •'  Anel  "  and  the  "  Wanderer, ''  and  it  is 
reasonable  to  argue,  that  in  view  of  the  fact  that  everybcdy 
(iO  practically  was  shipping  to  London,  the  owners  of  these  two 
vessels  would  have  done  as  well,  and  that  we  .should  get  the 
iiondon  price  for  them.  I  submit  that  under  tiiese  circumstances 
the  burden  would  be  upon  the  Uni* "d  States  to  convince  your 
Honors  that  theie  were  some  special    •  ason  r'dating  to  these  two 


'**: 
.;»•' 


385 

(Mr.  Bodwell's  Aifjuiiient.) 

vessels  which  would  prevent  their  cargoes  of  skins  going  to 
London.  In  the  ah.scnce  of  any  .such  proof  it  wouiil  be  only 
riglit  that  the  cargoes  should  bo  placed  at  the  same  value  as  if 
they  had  been  so  shipped. 

Jlr.  Warren  : — Were  the  844  skins  of  the  "  Ariel  "  .sold  in 
L.indon  ? 

10  Mr.  Bodwjll  : — I  say  it  onlj'  leaves  the  "  Ariel  "  and  the 
••  Wanderer" — even  if  that  were  so,  it  would  not  detract  any 
from  the  force  of  my  argument.  Here  you  seize  our  vessel, 
bring  us  back  to  port  in  a  state  of  more  or  less  distre.ss,  and  the 
iiwnerinust  realizeon  his  caigotbebestway  he  cat).  Huclian  action 
iiitei'rupts  the  whole  course  of  business,  and  no  inference  can  be 
drawn  from  what  a  man  does  under  such  ciix-umstances  as  to  what 
his  cour-e  would  have  been  if  these  special  comlitions  had 
not  existed.  If  these  vessels  harl  been  left  alone,  if  the  seal 
m&i'ket  ha<l  not  been  interrupted,  if  these  seizures  had  not  taken 

20  place,  all  the  evidence  is  in  the  direction  that  the  shipments 
woidd  have  been  made  tu  London  or  that  the  London  price 
would  have  been  realized. 

in  1H!)0  a  claim  is  made  with  respect  to  the  "  Pathfinder." 
That  is  Mr.  Munsie'.s  vessel,  and  he  wa.sdealiny  with  toe  London 
ni.'U-kct  during  all  these  years. 

In  the  ycai'  lS!)-2,  it  being  the  setth^d  pi'aetice  of  all  the 
owners  to  KJiip  to  London,  surely  the  London  price  must  betaken 
;iO  ,is  the  mai'ket  value  of  any  skins  which  are  ieferr«'<'  to  in  any 
(if  t)ir  claims  for  that  year. 

Page  •i(i4  of  the  I'luted  ."^tiites  .Arguuient,  says: — 

"  No  rule  of  law  is  more  tii'udy  established  than  that  which 
"declares  that  in  ease  of  a  loss  of  cargo  before  a  voyage  at  sea 
"  is  completed  the  value  of  the  cargo  is  dett;rmined  by  the 
•■  murket  Vidue  ruling  at  tlie])ort  of  ilrpintiu'e." 

.\o  authority  isiit.'d  for  that  projiosition,  and  I  think  your 
Honors \\iilrcei'i\t'  suelia  st.iti'mrnt  of  law  with  nolittle  sur(),.ise. 
'Hie  marki't  value  of  an  artiele,  I  eontend,  must  be  the  ])riee  at 
-10  till'  place  where  the  article  is  to  be  clispciscd  of,  and  not  the 
jirice  at  the  port  of  departure  of  the  shi]).  It  is  a  (piestion  of 
i'.iet  to  be  detei'uiined  on  thr  evideni'e,  whether  or  not  the  market 
|irice  foi'  seal  skins  in  N'ietoria,  was  the  price  which  dealers  paiil 
,ii  X'ietoria  exufcting  to  m.aki' a  profit,  or  the  prices  at  London 
which  were  known,  and  which  was  the  market  resorted  to  by 
individuals  who  were  not   buyi'rs,  but  vessel  owners. 

MKTII()I>    I'Dlt    (■(t.VIl'lTIM;    KSTIMATKI)   (ATCII. 

.")0  In  the  iirgument  for  thel'iiiteil  States,  there  is  also  a  verv 
(■unsid(!rable  amount  of  criticism  upon  a  rule  which  we  have 
.idopteil  as  the  method  for  eomi)uting  the  estimated  catch, 
Tliiit  subject  is  veiy  f\illy  dealt  with  in  our  printed  argument, 
begiindiig  at  piige  7!t ;  and  what  has  been  stated  there, 
lias  been  su])plemented  by  th(>  remarks  svhich  has  been  made 
by  my  leiirned  friend  .Mr.  Peters  in  his  opening  argument.  I 
ijii  not  think  under  the  circumstances  I  wtadd  be  justitied  in 
iiccupying  ymn'  time  at  this  stiige  with  any  lenitthcned  discus- 
sion of  our  method  of  computing  the  estimated  catch,  especially 

tio  ill  view  of  the  fac'  that  the  United  States  have  not  suggested 
in  their  argument  liny  betti>r  plan.  The  method  of  computation 
may  be  a  dilHcult  one  to  settle  but  that  is  not  a  reason  why 
the  Uniteil  States  shoidil  be  freeil  from  making  compensation 
under    the    head    of     estimatecl    catch.       We     contentl    tleit 


;l  ,;   .     :!    !v 


1    1 


MM 


I:    11 


V 

:i'    1 
i. 

1 

\l\ 

1 

i''"    si-' 
m 


m 


m 


.H>': :  li 

1  '^  i  ■  ■  i; 


i;:;! 


li 


h^  S' 


t;^^; 


w 


m 


mwwm 


386 


.')() 


(.Mr.  Bodwell's  Ar{;uinent.) 

that  tlie  duty  of  arrivini:;  at  some  basis  is  cast  upon  your 
HonoM,  auii  wo  have  done  tlie  I)ost  we  can  to  {^ive  you  a  rule 
whicli  will  enable  you  to  arrive  with  reasonable  certainty  at  the 
result.  It  seein.s,  with  all  deference  to  my  learneil  friendH,  that 
they  might  liave  done  a  little  better  tlian  to  have  taken  tl>e 
very    smallest    catches   whicli    have    been   reported   and     used 

10  them  as  means  of  refuting  the  argument  which  we  have 
ailvanced  with  regard  to  the  '  Mary  KUen."  Wo  say  tliat  the 
"  Mary  Ellen,"  her  voj'nge  being  unititt'rrupted  in  IJSSU,  sliould 
be  taken  as  a  type  of  what  would  have  happened  in  any  other 
vessel  had  it  not  Iwen  interfered  wiih.  To  show  how  reason- 
able our  calculation  in  that  respect  is,  the  statement  which  was 
put  in  by  Mr.  Peters  is  very  useful.  It  demonstrates  that 
while  the  "  Mar}-  lillen "  in  that  particular  year  had 
about  IjOO  skins  more  than  some  of  the  other  vessels,  yet  she 
had  not  liy  !in\'  miians  a   higher  percentage  of  catch    per    boat. 

20  Several  of  the  vessels  whose  catches  are  maile  up,  per  boat  or 
prr  e.iiioi",  average  ei[UalIy  if  not  beyoml  the  average  oi  the 
■'  Jl.iry  Ellens"  catch  per  boat  in  that  year. 

It  is  true  that  the  witness  Bragg  saiil  that  the  "  .Mary 
Ellen's"  catch  was  a  very  exceptional  one,  but  wt'  have  already 
dealt  with  that  in  our  Argument  at  ])age  SO,  where  we  show 
lliat  there  were  a  great  many  other  eatclu'S  which,  when  taken 
in  eonnecticn  with  the  siu'iouiiditigeireumstunees,  wen.' not  very 
far  beyond  tlie  "  Mary  I'^llen's"  eatcii.  Kor  instance,  we  say:  page 
SO  of  i)ui-  .Vrgument  :  — 

'■'riic    "  I'^i\ ourite "  in    ISSd,  with    an  oiittlt  of   10  canoes,  , il- 

■  tbuugli  iier  vuy.igi'  was  int^'riupted  by  the  cutter,  took  2l>74 
••  sells  between  tile  7tli  .luiyand  the  loth  August,  in  1SS7, 
"  the '■  i'atiiliiidef, "  with  a  erew  of  ti  boats,  eaptnred  2200  bi'- 
'  tv.'crii  the  2Stli  of  .luiie  and  the  ITtli  .August,  and  would 
"  doubtless  have    a dilrd  l.irgely    to  the    number    if  she   had  not 

■  til. '11  lii't'n  frigliti'Ui'd  from  tin-  gi'ouiid  1)\'  her  pro.simity  to  the 
■'  traek  of  tin'  cutters.  In  the  same  year  the  "  Mary  KUen"  took 
■   I.ViO  seals    between    the    ISth    of  July  ami  the    IHrli  August. 

■  Till'    •■  l'',ivonrit('"    took     ls:i4    between  . I idy  lOtb  and  .Vugust 
2titli.      In    ISSS,    t!ie   "Moiuitain    ( "liicf,"  with    o  canoes  and  a 

'strni  e.inoi',  caught  000    from  the     1st  of   .\ugust  to  the  :h'd  or 

■  7th  of  Srptemb.'i-.     So  ill  !N.S!(.  till'   ••  \'iva'  eauglit    2IS()  with 

■  six  boats,  ix'tweeii  the  (itll  of  .llllv  and  tie'  21st  of  August,  and 
•in  ISIK)  hrr  eateli  was  201.")  lirtween  7th  duly  and  12tli 
'September  with  six  boats,  'i'le'  "  .Miiinii'"  in  that  year  also  got 
"  1400  with  eight  canoes  and  one  boat  between  the  middle  nl' 
•■  .Inly  ami  the  2."itli  August." 

'I'lii'se  e.itelies  having  regard  to  tlir  eireiimstanees  which  siii- 
louiidi'd  lluiii,  compu'r  very  favorably  with  that  of  the  "  .Mary 
Ellen'  1  siibiiiit  that  on  all  the  exiili'iiec  we  are  justitii'd  in 
a.ssumiiig  that  t  he  "  .M;ii'_\-  I'^llcn  "  was  simply  an  a\ei;ige  \i'ssel 
and  that  her  c.itcli  would  have  bcm  ei|iialli'd  by  other  vessels 
dining  the  same  peiioil  bad  there  been  no  interruption  of  the 
xciyages.  ill  reference  to  this  matter  the  .\rgument  of  the 
fniti'd  States  says: — 

"  That  we  have  involvt.'d  the  (piestion  b\-  the  referenei's  to 
"  the  lowering  days,  and  that  while  we  stated  that  factor  as  an 
"an  eh.'iiient  fur  making  the  calculation  we  did  not  use  it.  It  is 
"certainly  an  error,  whatever  infeiences  my  friends   draw  from 

■  the  tigures,  because  these  lowering  days  are  in  every  case 
"ado|)ti'das  the  basis  foi- arriving  at  the  lowei-ing  days  which 
"  wc  consider  the  other  vessels  woul  I  have  in  during  t(j  the  time 
"  they  remained  in  the   Sea.   " 

Mr.  Lansing: — What  is  the  object  of  stating  it? 


40 


.JO 


flO 


387. 
(Mr.  Bodwell's  Argument.) 

Mr.  Borlwell: — We  set  out  the  number  of  lowering  days. 
'Phis  is  said  in  our  Argument  at  page  81  : — 

"  The  number  of  seals  taken  in  August  by  the  individual 
"  hunters  is  given  in  tlie  evidence,  and  may    be  summarized  as 

"  follows : 


^0  DeFries,  hunting  1 5  whole  days,  3  half  days,  took 

Jacobsen,     "  1.5       "         "      4     "       "        " 

Julian,         "         18       "         "4     " 
Lorenzo,      "  1.5       '•         "       4     '• 

Dillon,         "         10       "         "      4     "       '■ 


Seals. 
, .  220 
. .  17.5 
..231 
..179 
,.1.53 

9.58 


"In  that  month  the  stern  boat  took  47,  hunting  on  the  Ist, 
"3rd,  4th,  Oth,  Stii,  lOth,  12th,  15th,  lt)th  and  24th.'  This  num- 
"  hi-r  is  not  taken  into  account  in  the  calculation  which  immeili- 

•20  '■  ixUAy  follows. 

The  practical  deduction  to  be  maile  from  tliese  facts  may  bn 
stated  thus  : — 

"The  "  JIary  Ellen"  had  Hve  men  who  were  in  the  scaling 
"  waters  24  days  in  An^^iist.  This  wonld  be  equal  to  one  man 
'for  2120  days.  But  there  wcM-e  .51  A  days  in  wliich  no  bunting 
"was  done,  leavimj  (isA  actul  working  days  for  om;  man. 

"  During  these  (JHl  ilays,  !)5S  seals  were  taken  (not  including 
"  till'  47  taken  by  the  stern  boat  in  ten  days).  This  is  ecjual  to 
"  14  seals  per  day  for  the  one  man  power  at  work." 

;j')  If  you  take  our  calculation  in  any  one  of  the  individu'il  claims 

yon  will  find  we  >>et  out  the  numlier  of  days  the  vessel  was  in 
the  sea.  We  take  the  ilay  slu;  entiM-e(l  and  the  ilav  she  wouhl 
have  left  if  she  bad  not  been  interfere-d  witli.  We  say  on  the 
]iro]i()rtion  of  lowering  days  that  the  '•  Mary  Ellen  "  had,  tliat 
another  ve>s<'|  would  have  h;id  so  many  lowering  days,  had  shi' 
lieeii  rtlloweil  to  remain  in  the  sea  :  an  1  on  the  pi'oportion  of  the 
iMteh  of  tin'  '■  Mary  h'.llen  "  in  the  year  l.SS(i,  we  say  that  vessel 
would  taken  so  many  skins  jier  boat  or  ]ier  canoe.  A  vessel  is 
ill  sea  from  the  1st  of  .\ngust  until  the  l.'ith  of  Septi'mber.    \N  e 

40  ilo  not  say  that  she  will  hunt  every  'lay.  but  we  the  a  eraize 
hunting  days  of  th  "  '■  Mary  Ellen,"  ami  upon  that  basis  we 
coiiclude  the  hunting  days  of  this  vessel,  for  the  time  she  was 
ill  the  sea.  would  b:>  so  many  lowering  days.  It  seems  to  me 
iiiipossilile  to  make  a  proper  caleiilatioii  without  that  factor. 

Mr.  Lansing:  -  If  you  try  it  without  that  faetor  wuidd  you 
get  at  the  same  .' 

Mr.  Hodwell  : — That  would  be  altogether  on  a  dillereiit  b.isis. 
Take  the  whole  number  of  days  that  the  vessel  was  in  the  Sea, 
as  Mr.  I'eters  iliil.  an<l  aver.ige  that  with  the  number  of  boats  ,iiid 

."id  her  eati'b.aiid  you  gel  a  b.isis  of  eoiaiiirisoii,  it  is  true.  Ibit  I  do 
not  see  bow  yon  eould  maki'  up  one  coinparison  by  the  us(\ 
111'  two  ealeulatioiis.  If  you  st.-irt  on  one  basis  you  must 
r,iii-v  it  through  to  the  eml ;  ami  if  you  start  on  tin'  basis  that 
out  of  120  days  in  the  Sea  there  wouhl  be  an  avi'ivige  of  o!U 
working  days,  you  must  earry  that  calculation  on  wiieii  you 
compare  the  eat'di  of  iiiiy  vessel  hunting  for  a  similar  period  in 
the  s.ime  vear.  Otherwise  you  wouhl  get  no  result  which  could 
he  proved  in  mathematics. 

.Mr.  Lansing :  -1  call    yiuir    attention    to    the  calculation  at 

(10  |iaL,n'  24S  of  our  .\rgument,  and  ask  you  is  not  th.at  our  formula  ;' 

Mr  Hodwell:— 1    inu.st  say  that    I  <io  not   follow  that,  but  1 

Mill  waiting  with  a  good  de.il   of  interest    to    hear    Mr,   Lansing 

explain   it,      1  would    rather  not    pass  an   opinion   tmtil    I  bear 

what  he  ban  to  sav  about  it.      It  seems  to  me  that  we  have  made 


i    ill 

I    ill 


!i  li' 


I 


I  I 


li:. 


11  i      il 


ifli;  :l 


!:i     = 


.Hi    '■    ! 


''  ^  ii. 


m 


It    i 


■'Ml- 


|P!flfffPP 


388 

(Mr.  Bodwell'd  Argument.) 

the  computation  ou  a  very  simple  basis,  provided  tl»e  premiseH 
are  admitted  tliat  tlie  "  Mary  Ellen"  is  a  representative  vessil, 
and  that  the  time  is  to  be  averajjed  on  that  basis  for  the  catili 
of  the  other  schooners  in  the  Sea.  If  my  learned  friends  can 
HUfjjjest  any  more  satisfactory  moda  wliich  would  do  ub  justice, 
we  are  prepared  to  yield  to  their  better  knowledge  of  figures. 
10  Mr.  Warren: — We  could    not  give   you  so  much    any   other 

way. 

Mr.  Bod  well  : — I  submit  with  all  <leference  tliat  we  are  not 
getting  anything  more  than  justice  on  the  calculation  we  have 
made. 

Yoiii-  Honors,  I  think  I  may  now  relieve  you  from  the  labor 
of  listening  to  an\'tliing  fin-ther  from  me.  With  every  desire 
to  economize  the  time  of  the  Commission,  I  find  I  have  occupiecj 
many  hours  more  than  I  at  first  intended.  I  have  to  thank 
your  Honors  for  the  very  patient    attcntioTi    with   which  jnu 

20  have  follo'.v'ed  my  remarks. 

Bifore  inking  my  scat  I  desire  to  join  in  the  expressions 
which  have  fallen  my  lemlers  who  have  preceded  me.  It  is  a 
fact  of  peculiar  signilicaiict' tlmt  this  old  city  of  Halifax,  in  the 
surrouiulinjjs  of  which  there  is  so  much  so  remind  us  of  the 
triumphs  of  war,  should  hiive  been  chosen  ns  the  place  for  tlic 
filial  sitting  of  a  triliunul  organized  for  tl;f>  purpose  of 
concluding  an  imiicnlile  adjuslmeiit  of  a  contn  ersy  between 
(Jrcat  Ihitiiin  and  the  United  States.  It  need  not  be  stated  to 
your   lionoi'H  that  the   (juestions  which    are  here   presented  fur 

30  consideration,  are  of  an  iniportiuiee  whicii  renders  them  worthy 
of  the  jitteiition  of  those  holdiui,'  the  distinguished  olKcos  whie'i 
you  occupy  in  tlie  eomitries  which  you  resjiectively  represent. 
-Mfiy  We  not  hi  pe  that  the  I'esult  ol  these  proceedings,  wiiieli 
irom  their  inception  iiave  lieen  so  harnionious  and  well-ortlered, 
will  foiMi  iin  iniportiint  hind-mark  on  the  road  to  the  peaceful 
solution  of  n.'innnal  disputes, — n  road  which  we  believe  will 
eveiitiiallv   Ijeconie  Llie  hiniiway  of  the  nations. 


!'-■   . 


Commissioners    under   the   Convention   of   February  8th 

1896,  between  Great  Britain  and  the  United  States 

of  America. 


20 


(Not   fully   levisefl.) 
Sir  Charles  Hibbert  Tiipper : — May  it  piciise  Your  Honors :  — 


Following  in  the  order  siii^jjesteil  by  the  leadin;;  couhsl.  for 
Her  Majesty,  I  propo-^e  to  deal  as  brieHy  as  I  can  with  some 
aspects  of  the  case,  if  for  no  other  reason,  for  reasons  of  grati- 
tude to  your  Honors  for  tin,'  patience  already  shesvn  to  counsel 
in  the  presentation  of  Her  Majesty's  case.  Recogniziiifj,  as  I  do, 
the  sjreat  ability  and  ieaiiiini,'  of  the  distin;4nished  leadin<{ 
counsel  for  tlie  United  States  Cioverniiienf,  "restless  liut  ready" 
in  every  sense  fioin   the  befjinnini;  of  chis  investigation  to  the 

30  present  moment,  kiiowiniij,  as  I  do,  how  ably  anil  loyally  he  has 
been  supported  in  the  work  committed  in  his  bands,  it  is,  perhrps, 
a  siniTular,  but  happy  accident  that  over  the  deliberations  of  this 
tribunal  there  have  been  apjiointeil  such  repiesintatives  from  the 
two  countries  concerned.  I  ilo  not  wish  to  embarrass  your 
Honors  by  flattery  ;  indi  td,  it  would  i)e  as  unneeossury  as 
improper  at  my  hands  on  such  an  occasion  ;  Imt  in  connection 
with  some  of  the  consiilerations  that  I  have  to  brinif  to  your 
notice,  I  venture  to  sui,'i;<'st  that  it  is  a  happy  accident  that,  in 
comiection  with  what  seemed  at  the  outset  a  mere  asse.ssinent  of 

40  damaii[es  by  two  ("ominissioners  learneil  in  the  law,  there  are 
liei'ort!  us,  holdinj,'  at  this  time,  after  many  months'  experience, 
the  contideiice  of  all  concerned,  of  counsel  for  the  Uidted  States 
as  well  as  of  counsel  for  (.beat  l^iitain,  two  men  distinguished  as 
jurists  in  the  two  jfreat  nations  to  whieb  they  beloni,'.  Vou  have 
indeed  come  here  as  representatives  of  no  particidar  nation,  but 
as  aibitrators  on  what  has  developed  into  an  important  interna- 
tiimal  tribunal,  ready  to  hear  this  case  on  its  merits  and  decide 
it  aeeorijini;  thereto. 

1  refer  to  the  theory  of  this  convention,  so  to  speak,  a.s  it 

,50  was  at  the  outset ;  and  I  do  so  for  the  obvious  reason  that  here, 
at  the  end  of  a  lon<j;  record,  we  find  ourselves  face  to  face  with 
many  interestiriif  and  intricate  q\iestions  of  international  law 
resurrected  almost  from  the  very  tribunal  from  which  this 
tribunal  may  be  said  to  have  sprunj];.  In  one  or  two  particulars, 
as  I  shall  shew  before  I  sit  down,  some  of  the  self-same  (luestions, 
ajiparently  not  Hmilly  settled  by  the  Paris  Arbitrators,  are  here 
for  (inal  adjudication.  Those  questions  concern  primarily  that 
fjreat  (]uestion  which  was  put  in  the  fore-front  by  iter  Majesty's 
counsel  in  the  proceedings  at  Paris,  where  (Jreat  Britain  appeared 

CO  to  vindicate  the  freedom  of  the  seas.  It  was  not  necessary,  as 
my  learned  friends  have  more  than  once  pointed  out,  that,  in  the 
mere  question  of  jurisdiction,  a  specific  judgment  should  be 
given  on  each  and  every  one  of  the  points  incidentally  raised. 
Ill   connection    with  that  question,   the    imlependence   of    the 


M'  rid 


.11= 


J!|; 


r*  1 


ji  ■  li 


;,.(:: 


390 

(Sir  Cliai'lt's  H.   Tiipper's  Argument.) 

(litfureiit  sovi'it'ifjntit's,  tlii'  inviolability  or  sanctitj*  of  ii  national 
Ha^,  llie  iniiniinity  of  national  ships  on  tliu  hi;ili  soas — those 
•  [■.iL'stions  were  certainly  gone  into,  Imt,  if  tliere  lie  anything  in 
my  learned  fiiend's  contcrition,  in  a  largo  part,  and  touching  a 
very  important  aspect  of  this  case,  we  came  from  that  trilmnal 
without  a  final  juilgment.     Those    (|uestions    have    lieen   raised, 

10  those  (piestions  have  heen  <lisc\issed,  and  tho-ie  (piestions  must  ho 
settled  hy  your  Honors.  It  is  a  suhject  that  has  more  than  onco 
threatened  the  peaceful  and  happy  relatiotis  that  for  the  greater 
part  f)f  the  last  ninety  years  at  any  rate,  have  existed  between 
the  two  countries  now  concerned. 

In  our  written  argument  we  have  refeired  to  the  changes  of 
front  lespecting  the  seizures  that  took  place  in  ISSfi  and  follow- 
ing years.  They  were  referred  to  at  Paris  for  obvious  reasons, 
and  iuive  been  adverted  to  in  the  argument  that  has  been 
addressed  to  ycui  by  my  loarnoil  colleagues.     [  refer  t)  change.s 

20  of  front  on  (piestions  of  jurisdiction  ;  and  it  was  not  uidmportant, 
nor  did  the  endiient  counsel  of  Paris  consider  it  unimportant  to 
dwell  to  some  extent  on  those  changes  as  indicating  the  acti(jn 
taken  liy  the  Fnited  States,  indicative,  too,  of  the  weakness 
of  the  |insition  assumed  by  the  Tnited  States,  their  liesitancy, 
theii'  viicillation,  tluir  {'onduct  in  conneetion  with  the  disputes 
and  in  the  disctission  of  the  riwtsons  upon  which  those;  seizures 
were  biis<".l.  Those  incidentally  became  important,  I  submit,  in 
the  Consideration  of  the  ipiestion  of  jurisiliction.  On  that  wo 
v(;iitured  to  submit  a  ]iiis'i!!g  referetict'  in  the  argument  for  Her 

30  Mfijivsty.  The  Unite(l  States  counsel  ill  thi'ir  reply,  at  [lagi;  (i,  I 
think.  foun<l  fault, — at  any  rati;  pointed  nut,  and  to  some  extent 
correctly,  that  the  lefeieiices  given  in  the  liiitish  case  were  not 
wliolly  accurate.  1  will  do  no  more  now  than  attemi.t  generally 
to  correct  the  references. 

In  volume  4  of  what  we  know  as  the  United  States  Reprint  of 
the  Paris  Tiibiinal,  pages  !)2-10;!,  and  in  volume  13,  pages  .5-8, 
there  will  be  found  the  reasons  u|)on  which  Her  .Majesty's  govern- 
ment charged  before  that  high  tribunal,  that  there  had  been 
vacillati(jii  and  changes  of  front;  and  I    will  venture   to  supple- 

40  nient  that  by  calling  your  Honor.s'  attention  to  facts  now  beyond 
dispute.  For  instance  I  will  ask  your  Honors  when  did 
w(;  ever  understaml,  or  did  the  world  for  the  first  time  hear,  that 
tlie  I'liiteil  States  had  a  property  interest  in  or  a  right  of  pro- 
tecting the  fur-seals  i:i  the  Hehring  Sea  ?  Was  it  before  lSS(i, 
was  it  in  l.S.S(i,  or  was  it  after  ISSO  >  l)id  not  that  become,  after 
all,  the  gi-eat  (loint  upon  which  the  United  States  case  was  hung  f 
And  yet  had  it  anything '■o  do  with  the  seizures  which  took  place 
ill  18.S(i  ?  Was  the  subject  referu'd  to  in  the  solemn  judgments 
passed  uniler  which  fh'se  British  ships  were  condemned,  or  was 

■")0  it  an  afterthought  ?  Was  it  an  ini,'eiiious  theory,  suggested  at 
iibiiut  the  time  the  ai'liilration  pniceeiliiigs  were  begun  in  1S!)1 
anil  !M)2,  and  tlen  rai>eii  and  ably  argued  by  the  I'liitiMJ  States 
counsel  before  that  arbitration,  to  find  in  the  end  that  it  was  not 
only  a  novel  but  an  unsupportable  theory  and  an  unsup;iortable 
ground  for  the  action  taken  or  for  anj'  claim  of  jurisdiction  in 
connection  with  those  shi|>s  ?  And  so  coming  from  that  which 
is  an  introiliictory  statement  and  an  intrcjductory  point,  we  come 
to  what  is  more  germane  to  the  (juestions  with  uhicli  we  have 
iii'inediati'ly  to  deal,  and   we   find  again  changes  of  front.      We 

CO  (ii.'d  changes  of  front  not  only  in  the  histoi}'  of  this  transaction 
at  idle  times  to  which  I  have  already  referred,  but  we  find  them 
all  through  the  record,  from  tlie  pleadings  down  to  the  written 
argument,  and  we  are  now  face  to  fac(\  I  venture  to  say,  with  a 
very  ingenious  and  very  plausible  theory,  supported  by  no  less  a 


891 

(Sir  Charles  H.  Tiipper's  Argument.) 

man,  no  less  (listingtiisliod  counsel,  than  our  learned  friend  oppo- 
site and  his  associates,  hut  it  is  a  (juestion  which  was  never 
seriously  discussed.  Head  the  diplomatic  correspondence  lietween 
M''.  HIaine  and  Lord  Salishury.  Read,  imleed,  ihe  corresponderce 
hetween  Mr.  Bayard  and  Lord  Salisbury  hefore  that;  continue 
the  reading  of  that  eorrespomlence  down  to  the  time  of  the  treaty. 

10  Head  the  argument  at  Paris.  Read  the  written  argument  put 
in  liy  the  United  States  counsel  at  Paris  You  will  find  no  such 
argument  and  no  such  theory,  I  suhmit,  and  as  I  hope  to  he  ahle 
to  shew  liefore  J  get  through,  as  you  finil  in  the  written  argument 
of  the  United  State.s  counsel  here.  They  did  not  refine  ;  they 
did  not  come  ilown  to  the  very  delicate  and  dillicult  point  which 
my  learned  friend's  coiuagt;  has  enahled  him  to  present,  hut  they 
put  tlieir  case,  so  far  as  the  ownership  of  these  vessels  was  con- 
cerned, on  an  entirelj-  ditl'erent  ground  from  the  techidcal  ground.s 
that  are    for  the  first  time  sul  initted   for  consideration  in   the 

20  iiresent  argument.  They  juit  tliex?  grounds  upon  fraud  ;  they 
put  forward  a  ground  that  would  naturally  ap])eal  to  any  self- 
respecting  nation,  and  which  certainly  "vouM  at  all  times  appeal 
to  the  gooil  faith  and  integrity  of  a  nation  like  (iri'at  Ih-itain,  and 
in  words,  voiced  as  they  were  hy  alile  men  in  the  senate  when  these 
atliiirs  were  discusseil  and  these  treaties  wer(!  heing  considered  ; 
and  all  through  that  correspondiMice,  anterior  to  the  evidetice 
hrought  out,  there  was  the  serious  contention  that  AmiM'ican 
citizens,  men  owing  ftill  and  uuilivided  allegiance  to  the  President 
of  the  ITjiited  States,  or,  piu-haps.  to  he  more  correct  I  should  sa}', 

30  to  the  United  States,  had,  in  defiar.cc,'  of  their  own  laws  and  of 
their  own  nationality,  come  under  the  flag  of  (ireat  Britain,  and 
there,  hy  fraud  and  tricki-ry,  ol)tained,  illegally  iiiid  iiiiproper'y, 
the  protection  of  the  J-Jritish  flag  in  order  to  violate  the  laws  of 
their  own  cotuitry.  And  I  do  not  hi'.sitati>  to  e.xpress  the  helief, 
standing,  as  I  am  permitted  to  do,  on  this  occasion  and  speaking 
for  the  British  government,  that,  as  in  a  similar  case  to  which  I 
will  lafei  on  refer,  when  it  was  hrought  to  the  attention  of  the 
I'liited  States  authorities,  had  those  facts  at  any  time  been  proved, 
ntid   had  the  government  of  Gnvat  Jhitain  been  convinced   that 

40  tlieii'  flag  had  been  abused,  and  had  been,  so  to  speak,  and  in  the 
langua^re  of  the  hooks,  prostituted  to  that  purpose,  that  they 
woidd  not  be  here  to  claim  at  your  hands  protection  for  those 
men,  or  ask  the  United  States  to  pay  Great  Britain  anything  '  y 
way  of  damages  or  compensation  for  men  who,  under  those  c'  - 
einiistances,  although  technicallj-  they  might  have  the  right  to 
the  protection  of  the  flag,  would  not  have  the  right  to  demand 
anil  secure  that  at  the  hands  of  any  self-respecting  government; 
and  so  1  say  the  evidence,  whatever  may  be  the  result  in  this 
ease,  has  certainly  established  this  ;  that  there  has  been  no  fraud 

■)()  practised  upon  the  government  of  (iieat  Ihitain,  and  that  in  con- 
i.i'Ction  with  the  sliipping  laws,  tlici'e  has  been  the  ordinary 
every  day  practice  in  connection  with  the  history  of  the  ports  of 
British  Cohimltia,  as  in  the  case  of  mnny  other  potts  of  thi.s 
eonntry,  so  far  as  regards  the  diveis  interests  and  complication.s 
that  often  surroiuid  registry. 

Foreigners  may  bo,  an<l  have  been,  directly  or  indirectly 
iiitereste(l  in  a  British  ship,  and  foi'eigners  have  been  interested, 
directly  or  indirectly,  in  voyages  of  a  British  ship  and  the  ventures 
of  a  i'ritish  ship. 

()(>  But  this  idea  of  frainl,  T  ventun-  to  submit  again,  has  entirely 
disappeared,  and  we  are  face  to  face  with  a  novel  proposition,  novel 
in  every  sense  of  the  word,  a  proposition  never  advanced  in  the 
diplomatic  correspondence,  nor,  as  I  venture  to  sa\%  at  Paris. 

It  is  put  forward  bj'  the  counsel  for  the   United  States,  and 


m 


ii  I-  ;!' 


i!  *#/ 


I'll: 


MU 


H 


1      '» 


■m 


■    l! 


#: 


Mi 


lifWfMf  II' 


:rjrr^  , 


nfl2 


(Sir  Clmrles   H.  Tupper's  ArjjiiinLMit.) 

it  is  to  this  effect,  that,  if,  in  tho  ivilministmtion  of  a  British 
inuiiicipiil  law  reiatiiij;  tosliippinijf,  them  is  any  irii't,'uiarity,  con- 
nected with  citizens  of  the  United  States  it  lies  with  tlie 
United  States  (lovernnient  to  claim  jurisdiction  over  thi  '  ship 
when  found  on  the  liit;h  seas;  or,  in  other  words,  as  it  is  put  iit 
other  plnces  in  the  United  States  ari^nnient,  to   interfere   with 

10  that  shij),  to  seize  that  ship,  to  take  that  ship  into  their  own 
ports,  to  tear  ofl'  the  iiinsk  of  its  re^jister  and  tear  down  the  tlnff 
of  the  British  nationality,  and  to  say  to  (iroat  Mritain,  should 
she  complain  of  the  violation  of  the  immunity  of  her  liaj,',  of  the 
disre<;ard  for  her  national  certificate,  the  ship  lielonjfed  in  whole 
or  in  part  to  a  citizen  of  the  United  States  and  under  those 
circumstances  you  have  no  claim  at  oui'  hands, 

I  inn  not  exaiji,'eratinj,'  the  position  with  which  1  am 
nttcniptiii;;  to  deal  when  I  say  to  your  Honors  that  a  more 
dangerous  proposition  could  not  he  put  forwanl,  either  in  the 

20  interest  of  the  United  States,  in  the  interest  of  Great  Britain,  or 
in  the  interest  of  any  shippinj^  power  in  the  world.  It  is  as 
dan;.nM-ous,  as  it  is  novel. 

Tim  United  States,  at  Paris,  lost  on  all  j^rounds.  Tliere  were 
the  claims,  first,  of  jurisdiction  over  a  hirj,'e  ex])anse  of  water, 
if  not  the  whole  of  tht^  eastern  side  of  Hehrini,'  Sea  :  second,  the 
claim  of  a  ris^ht  to  protect  the  fur-seals  which  were  in  the  haliit 
of  fre((iientinij;  the  PriliyloU'  Islands;  and  there  was  the  third 
and  other  claim  of  the  property  rii,dit  in  such  seals.  On  all  tln'Ne 
coiitentiniis  t!ie   United  States   lost;    and  it  would   seem  under 

30  those  circinnstances  there  was  nothinj^  left  hut  to  have  the 
amount  of  the  liahility  ascertained  for  seizuies  nuide  on  such 
jj;roiui(ls  and  to  jiay  the  amount  withotit  further  (piestion. 

Our  learned  friend,  tlu;  leadinj,'  counsel  for  the  United  States, 
led  ine  to  suppose  at  Victoria  that  his  mission  was  simply  to 
ascertain  in  the  (piicUest  j)ossili|e  and  most  satisfactory  manner 
how  much  this  action  on  the  jiart  of  the  United  States  involviMl 
to  the  United  States  treasury,  later  sui;i:;estiii;,',  as  we  will  see, 
the  question  as  to  whether  these  ships  were  Jlritiuli  ships.  That 
settleii,  I  understooil  my  learned  fiiend's  position  to  lie,  that  there 

40  was  nothing  left  hut  to  ascertain  the  amount;  hut  no  one  can 
read  the  written  arLlunient,  the  very  ahle  and  ingenious  arL,'un!(^iit 
presented  to  this  trihtnial  liy  the  United  States,  without  lindiiii,' 
there  yrave  claims  asserted  in  its  hehalf,  and  the  United  States 
counsel  j)ro|)oses  to  ar;;ue,  that  a  very  lari,f(!  nunilier  of  these 
ships  which  have  always  heen  treated  as  British  ships,  which 
were  condemned  as  liritish  ships,  and  referred  to  all  throiifih  the 
<liploniatic  discussion  as  British  ships,  and,  as  1  shall  show,  found 
at  I'aris  to  he  British  ships,  were  not  British  iiecaiise  of  the 
intei'est  in  them  on  the  part  of  United  States  citizens. 

50  Now    on    the  (piestion    I   piopose  to  consider,   1   put  at   the 

heyituiinj^  of  my  ari,'ument  so;ne  references  that  have  hei^n 
already  introduced,  but  which  ai'e  essential  to  a  clear  under- 
.standiiifi  of  thi  points  I  wish  to  ai'(i;ue.  1  wish  to  read  into  the 
]{ecord  aLjain  from  the  Findinj,'s  of  fact  found  hy  the  Trihunal 
at  I'aris.     1  take  this  pariiffraph  from  the  Findinj^s: — 

" 'J'hat  the  several  searches  and  .seizures,  whether  of  .ships  or 
"of  <foods,  anil  the  several  arrests  of  masters  and  crews,  rispec- 
"  tively  mentioned  in  the  schedule  to  the  British  case,  pp.  1  to 
"  (iO  inclusive,  wc^re  made  by  the  authority  of  tht!   United  States 

60  "Government.  The  (piestions  as  to  the  value  of  the  said  vessels 
"or  their  contents,  or  either  of  them  and  the  (juestion  as  to 
"  whether  the  vessels  mentioned  in  the  .schedule  to  the  British 
"case,  or  any  of  them,  were  wholly  or  in  part  the  actual  prop- 
"  erty  of   citizens  of  the  United  States,  have  been  withdrawn 


Ml 

(Sir  Charles  H.  Tapper's  Argument.) 

"  from,  and  have  not  been  considerml  hy  tlio  tribunal,  it  b^ing 
"  understood  tiiat  it  is  open  to  tlie  United  Sttites  to  raise  tliese 
"  questions  or  any  of  tiiem,  if  tliey  thinl<  lit  in  any  future 
'■  negotiations  as  to  tiie  liability  of  the  United  States  Oovern- 
"  ment  to  ])ay  the  amounts  mentioned  in  tliu  schedule  to  the 
"  Uritish  case," 
10  Passing  over  paragraphs  2  and  3  to  paragraph  4  of  these 
findings,  1  read  as  follows. — 

'  That  the  several  orders  mentioned  in  the  schedule  annexed 
"  hereto  and  marked  '  C,'  warning  vessels  to  leave  or  not  to 
"  entt^r  Behring  Sea  were  made  by  public  armeil  vessels  of  the 
"  United  States,  the  commanders  of  which  had,  at  the  several 
"  times  when  they  were  given,  like  instructions  as  mentioned  in 
"  rinding  'S,  and  that  the  vessels  so  warned  were  engaged  in  sealing 
"  or  prosecuting  voyages  for  that  purpose,  and  that  such  action 
"  was  adopted  by  the  tJovernment  of  the  United  States." 

id  The  annex  "  C  "  to  that  award  is  ns  follows,  and  1  call  par- 
ticular attention  to  the  distinction  between  a  British  vessel  and 
a  vessel  owned  in  part  or  in  whole  by  a  citizen  of  the  United 
States,  and  I  submit  the  proposition  more  definitely,  that  a 
vessel  may  be  a  Uritii^h  vessel  and  justiciable  tmly  in  liritish 
courts  for  acts  done  on  the  High  Sens  and  owned  in  whole  or  in 
part,  lis  a  matter  of  fiict,  by  any  individual  in  the  world.  Annex 
"  C  '  reads  as  follows  :— 

"  The  following  table  shews  the  names  of  the  Jiritinh  nculing 
"  i'c,s.sri'.s  neized  or  warned  by    United    States   revenue   cruisers, 

HO  ■  1  StSG- 1  iS!)0,  and  the  appioximate  distance  from  hind  when 
"  seize<l.  The  distances  assigned  in  the  cases  of  the  '  I 'arolemi,' 
'■'Thornton'  and  'Onward,'  are  on  the  authority  of  United 
"States  Naval  Commaiuler  Abbey,  (see  .'lOth  Congress,  2iid 
"  St^ssion,  Senate  Kxecutive  Documents,  No.  1(1(5,  pp.  '10,  'M),  40). 
"  The  distances  assigned  in  the  cases  of  the  '  Anna  lieek,'  '  \V.  F. 
"  Say  ward,'  'Dolphin,'  and  'Grace,'  are  on  the  aniliority  of 
"  ("uptiiin  Shephard,  U'niteil  Stati's  Revenue  Marine,  (hliie 
"Book  United  States,  No.  2,  !«!)(),  pp.  «0-82.  See  Appendix, 
"  vol.  iii)." 

40  A  little  research  will  shew  that  that  table  was  taken  from 
the  British  case  and  is  biise<l  upon  the  authority  of  these  United 
States  orticers,  who  in  their  reports,  referred  to  these  vessels  just  as 
thev  were  always  referred  to  up  to  the  time  the  United  States 
were  beaten  on  every  other  ground,  as  British  vessels, 

1  think  I  can  shew  from  the  United  States  argument,  that 
nothing  has  occurred  in  connection  with  the  drafting  of  a  single 
phrase  in  the  Claims  Convention,  umler  which  your  Honors  sit, 
and  that  nothing  has  been  done  by  the  Oovernmeiits  to  warrant 
your  Honors  in  condng  to  any  decision  which. conflicts  with  a 

•'0  -ingle  proposition  or  |)rinciple  of  international  law.  Your 
Honors  are  appealed  to,  on  behalf  of  the  United  States  i,^  ■■■ell 
as  on  behalf  of  Her  Majesty's  Government,  to  deeide  ev  m  ■  : '  ing 
under  the  (,'laims  Convention  upon  the  well  known  and  well 
settled  principles  of  international  law, 

I  have  referred  to  the  origin  of  the  suggestion  that  has  fouml 
its  way  into  those  findings,  and,  as  some  impoitance  1  think 
attaches  to  that  history,  1  wish  to  deal  a  little  more  fully  with 
the  ideas  which  prevailed  in  the  United  States,  and  the  grt)und 
upon  which  the  IJnited  States  ought  to  take  advantage,  in  some 

liO  way  or  at  some  time,  of  the  fact  that  their  citizens  had  lieen 
defying  their  laws  by  a  fraudulent  use  of  the  British  Hag  to 
protect  vessels  really  owned  in  the  United  States  We  rind  first 
at  Paris  under  the  heading  of  "  damages "  an  allusion  to  this 
subject,  and  I  take  it  from  some  of  the  language  used  that  it 


." 

1! 

■Il 
''[ 

;■! 
1.1 

] 

■i 

1 

1  ! 
1     ( 

I 

,1 

!  .i 
I  !' 

.'1 

I' 

1, 

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4i 


II. 


II    r 


i'     !l 


l;li:  a 


S94 

(Sir  Charles  H.  Tupper's   Argiiiiiont.) 

mi^'lit  have  boon  put  forward,  ntid  a  Hi'iitence  of  Mr.  Plmlps  in 
tiic  argument  confirms  tluit  supposition,  l)y  way  of  riMJuction  of 
(lamajjes ;  liy  way  of  extenuation  of  a  wn>nj,'ful  aot  of  tin; 
United  States,  or  r)f  a  tet'iinically  wron;,'ful  apt  ;  and  fliat  it 
niif(lit  atlect  tlie  minds  of  the  triliunai  nt  i'lu-is  jiiid  tliey  licen 
presseil  to  award  dama^'^'s  ;  or,  again,  liavini,'  referenec  to  (lie 
10  wtdi  known  case  of  tlie  "  Virginius,"  wliicii  is  nieniioned  in  tlie 
hriefs  liotii  for  tlie  Uniteil  States  ami  for  <ireat  liritain,  it  may 
have  Ijii'ti  put  tliere  liy  way  of  appeal  to  the  honor  and  gooil 
faith  of  (Ireat  Ihitain,  and  the  ITnitecj  States,  having  an  oppor- 
tunity in  that  regard  of  liiinging  forward  their  evidence  to 
prove  tliat  there  liad  lieeii  a  fraudulent  resort  to  our  registry  hy 
way  of  ap])eal,  I  say,  to  the  lii)ii()r  ami  integrity  of  tin;  (Jovern- 
inent  of  (Jrent  Britain  to  press  no  further  claims  uiiiler  such 
circumHtances. 

Art^  these  extravagant  assumptions  on  my  part  that  the  (pies- 
2)  tions  of  owiu'rship  had  reference  to  fraud  and  fraud  upon  tlie 
United  States  :'  1  will  give  yo\ir  Hoix.rs  the  grounds.  Refer- 
I'iiig  to  volume  1."),  of  the  i'roceidings  at  Paris,  I  would  like  to 
call  your  nttrniiou  to  an  (ilisiivatioii  made  there  \<\  Mr.  Pliil|vs, 
in  his  argument,  fur  the  United  States  at  |i.'ige  ;{.      He  said  :— 

"  Now,  sif,  what  are  the  i|Uestions  jirnjiosed  liy  the  Treaty  for 
"  decision  ?  'I'hej-  are  chietly  two,  the  one  the  alternative  of  the 
"  other.  Tlie  first  i.s,  (and  in  one  view  of  the  ca^^e  it  is  tlie  only 
" question)  whether  the  Cimadian  sealers  ainl  the  renegaile 
"  Americans  who  seek  thi'  piotection  of  the  liriti'h  flag  in  order' 
30  "  to  defy  with  im|iunity  the  laws  of  their  country,  have  a  rii;lit 
"  to  which  the  United  States  must  suhmit,  ♦  i  Continue  tlit; 
'  destruction  in  wliieh  they  have  lieeri  engaged. 

And  Mr\  Plieljis,  I  need  not  say,  was  not  only  a  man  d  guislied 
in  his  profession,  liut  a  nrm  who   weigheil    vei'y  ca  every- 

thing that  he  said,  and  on  that  occasion  was  not  on  ,  lait  to 

nry  knowledge,  ahly  and  thoroughly  iristi-ucted.  Vov  iiistance, 
again  in  that,  aiguineiit,  speaking  of  an  act  that  heen  inti'odiiod 
into  Congres.s,  extending  the  prohihition  from  Hehring  Sea  over 
other  parts  of  tlu^  North  Pacilic,  so  far  as  regai'ds  American 
40  citizeii.s.  Senator  Morgan  askeil  him  olxiut  this  and  he  .said  : — 

"Mr.  PIrelps: — It  is  very  r-ecent — just  as  we  were  coming 
"  here  it  was  passed  through  Congress.  And  now,  in  order  to 
"seal  in  the  Northern  Pacific  a^  well  as  in  the  Hehring  Sea  it 
"  will  be  necessai'v  foi'  that  class  of  American  citizens  who  want 
'  to  go  into  that  business  to  gt^t  their  vessels  registered  in 
"  Canaila  or-  sail  irr.'der  airother  flag."  • 

And  Senator  Mcigan,  one  of  the  arbitrators  named  by  the 
United  States,  said  et  tliat  stage:— - 

"  I  sirpfiose  it  woild  be  as  well  to  say  that  Congress  was  not 

50   "aware  irntil  a  recent  peiio(l  that   citizens  of  the  United  States 

"  were  obstructing  the  policy  of  their  own   country  by  putliriLt 

"  their   monev   niider-   trie    Hiitisb    ting   in    oi'der  to  seal   on  this 

"  herd." 

I  have  another  ref'reiice  under  that  head  fr-om  Mr.  Phelps. 
I  dwell  on  it,  as  I  hope  your  Honors  will  under'.stand,  in  order  to 
show  what  was  the  real  object  of  this  clause  in  the  convert! ion. 
Later  on,  in  1803,  in  a  letter-  to  Mr.  tiresliain.  which  is  published 
in  "  Executive  Documents,  Senate  No.  (i7,"  olh'd  Congi'e.ss,  Mr. 
Phelps,  discussing  tiie  future  in  conni'ction  with  the  past,  said  : — 
CO  "  If,  therefore,  Canailian  sealers  should  propose  to  avail  them- 
"  selves  of  the  protection  of  the  Hags  of  othiir  governments  to 
"  prosecute  a  business  in  which  the  subjects  of  such  govcrnuients 
"  are  not  engaged,  it  can  mil}'  be  accomplished  by  ol)taining 
"  fraudulent   registi-ations  of  their  vessels  in  those  countries,  so 


20 


30 


(Sir  Charles    H.   T  upper's    Argument.) 

"as  to  evado  the  laws  of  tlieir  own.  Tliis  would  involve  u  con- 
'•(livnncp  on  the  part  of  the  n.itioiiN  allowini^  such  ro({istratioiis, 
"which  is  not  to  ho  pn-Hiuiieil  of  any  sovfri'ii,'n  powor." 

An  ohservntion  inmli!  \>y  His  Honor  iIiKl^e  I'utfiant,  a  day  or 
two  ajjo,  worrants  nio  in  dwellinj;  for  a  nionii-nt  on  the  gravity 
of  the  point  that  is  raised.     Mr.  Phelps  said  that  the  protectinn 

10  of  a  ting,  in  a  case  such  as  alleged,  could  oidy  he  ohtained  hy  a 
liaudulent  connivance  on  the  |)aitof  a  frien<lly  ])()\ver,  and  there 
is  much  to  support  him  in  that  statement.  I^ritish  counsel  was 
interrupted  hy  His  Hdnor  here,  who  spoke  on  that  occasion,  I 
venture  to  say,  not  f(ir  the  I'nited  States,  hut  spoke  as  a  judge 
in  an  International  'I'rihunal,  representing  neither  the  United 
States  nor  Oreat  Britain,  when  Ik^  said  that  he  did  not  consiiler 
tlint  either  juclge  in  this  trihunal  was  here  to  listen  to  charges  of 
had  faith  or  charges  of  fraud,  I  follow  this  up,  and  I  t'mi)iia- 
si/.e,  if  I  can,  the  ohsurvation  liy  pointing  out  that  the  argument 
.III  the  part  iif  the  United  States,  under  the  general  language 
used  in  the  Conventiofi,  anil  to  which  !  will  give  another  con- 
slructiiin  later  on,  consistent,  as  I  lielieve,  with  the  law  of  nations 
and  the  practice  of  nations,  involves  at  once  your  Honors 
iidjudieating  upon  theRdiiiinistration  of  tin-  Ihitish  shipjiing  laws 
hut  investigating  and  adjudicating  upon  the  good  faith  on  the 
part  of  th(!  Hiitish  governuieiit  in  the  administration  of  these 
laws.  It  involves  the  very  serious  cliHrg(>  of  fra'id  and  had 
fiiith,  which,  as  Judge  Putnam  considt^red,  ami  I  helieve  rightly 
eiiiisidered,  are  e.Ncluded  from  the  coiiHideration  of  such  a  trihunal 
as  this.  But  I  stop  now,  for  at  another  |)eriod  of  my  argument 
I  will  point  out  that  this  is  not  the  only  danger,  if  yon:-  Honor.s 
sui>ported  the  extreme  contention  in  this  regard  put  forward  on 
tilt'  part  of  the  United  States.  It  is  not  the  only  instance  of  the 
confusion  that  would  occur  if,  under  any  excuse,  in  times  of 
])euee  one  nation  were  permittid  on  the  high  seos  to  administer 
till'  police  over  tliii  shipping  of  another  nationality.  I  hove  said 
that  all  these  impressions  in  regord  to  framl  in  fact  had  lieen 
cleared  away  hy  the  evidence.  I  think  I  shall  he  ahle  to  support 
that   hy   references  to   tlie   record.      And   so   the   Uniteii   States 

■to  counsel,  as  I  have  already  ];erhaps  intiiimtsd,  has  heen  ohiiged  to 
come  to  clean,  clear  cut,  propositions  of  international  law,  wholly 
disconnected  with  the  cliarges  wliicli  gave  I'ise  to  the  language 
that  has  been  inserted  in  the  Claims  Convention  respecting  this 
question  of  ownership. 

May  I  ask  your  Honors  to  remember,  for  the  purposes  of  my 
aigiimeiit,  that  I  approach  this  cpiestion,  treating  it  as  a  question 
having  to  do  with  ships  rather  than  witli  men. 

I  approach  this  ([uestion  of  ships  as  cases  siii  generis  in  that 
aspect,  having  no  connection  with  domicile,  so  called,  "  double 
allegiance  "  or  that  class  of  cases  to  which  my  learnt!d  friend  has 
so  often  referred  in  his  brief,  having  to  do  with  claims  where  no 
ship  was  concerned,  wheie  no  laws  relating  to  ships  or  connuerce 
of  ilid'erent  nationalities  were  involved,  but  Ctt.ses  which  had  to 
ilo  with  persons  only.  I  contend  that  your  Honors  have  to  do, 
in  the  consideration  of  this  subject,  with  such  questions  as  these, 
— when  you  talk  of  the  "  Thornton,"  or  the  "  Warren  "  ships,  or 
iho  "  Carolena  "  or  the  ships  in  which  the  McLeans  were  inter- 
ested, and  using  always  the  language  of  the  books,  from  which 
my  learned  friends  have  drawn  their  authorities  : — Of  what 
navigation  did  they  form  a  part?  What  was  their  home  port  ? 
Whence  did  they  hail  ?  Of  what  territory  might  they  be  con- 
sidered to  form  a  part  ?  To  what  sovereign  di<l  they  pertain  ? 
Also  I  might  suggest  to  your  Honors,  that  in  dealing  with 
the  contention    of  the   United   States,  there  is  this  interestinrr 


.•|0 


(iO 


1  » i 


■  1 ' 


■•;.  ■  I ' 


I 


fip! 


w 


W 


39C 

(Sir  Charles  H.  Tupper's   Ar{»uinent.) 

question  to  consider — that  wheic.*.-,  liie  LTnited  States  claims  the 
right  to  forfeit  to  the  United  States — to  declare  to  be  United 
Slates  property,  any  ship  where  a  United  States  registry  1ms 
been  obtained  by  fraud  or  illegality,  and  Great  Britain  has  luiil 
for  sometime  in  statutes  relating  to  shipping  clauses  whereby 
the  moment  a  foreigner — a  United  States  citizen  or  the  citizen  of 

10  any  other  country  in  the  world,  obtains  a  British  registry  at  an 
English  por^  that  that  ship  ipso  fucto  bcconas  the  property  of 
the  Briti-ih  Crown, —  I  beg  to  submit  if  their  argument  be  right, 
you  will  have  to  conclude  that  these  laws  conflict  with  the  laws 
of  nations.  If  the  fact  that  a  United  States  citizen  whs  inter- 
ested in  that  property  called  a  ship,  gave  the  United  States  the 
right  to  take  that  shi|»  on  the  high  seas,  the  right  to  look 
behind  a  British  registry  transaction,  surely  the  position  of 
(jreat  liritain  and  the  position  of  the  United  States,  so  long 
un(iUcstioned,  are   not  compatible  with   the  law  of  nations.     I 

20  have  said  tliat  the  rec(U"d  shows  that  the  transactions,  whatever 
they  were  and  whatever  interest  Mr.  Bechtel,or  the  McLeans,  or 
Boseowitz,  or  Cooper  might  have  had  in  th«m,  were  hoiui  fidi' 
transactions — they  were  transactions  wholly  apart  from,  and  dis- 
connected with,  these  interesting  questions  I'aised  by  the  United 
States  as  to  the  fur  seal  fisheries  in  the  Behring  Sea.  That  in 
many  of  these  cases,  if  not  in  all,  American  citizens  had  been  for 
a  long  time  resident  under  the  Biitish  flag,  doing  business  in 
their  own  legitimate  waj'  with  British  subjects  and  without 
liearing  in  mind  these  ventures  at  all ;  that  now  and  tlien  a  firm 

30  with  which  one  or  the  other  might  be  connected  liought  a  ship, 
without  regard  to  any  particular  voyage  and  without  regard  to 
any  particular  business,  and  it  was  only  by  the  accident  of  that 
suddtMi  develo|iment  of  interest  in  Behring  Sea,  when,  so  far  as 
we  know,  ttu'i'e  had  been  no  claim  in  connection  with  the  fin' 
seals  or  right  to  protect  that  particular  free  swimming  animal  — 
these  sl'.ips,  having  the  British  registry,  cleared  from  a  JSritish 
port,  carrying  tin;  British  liag,  happened  to  go  into  these  seas. 

This  is  the  sinu  and  substance  (>f  the  evidence  and  therefore 
the  idea  of  anj'  fraudulent  atteuqjt  upon  what  was  or  was  under- 

40  stood  to  be  the  law  of  the  United  States  has  entirelj'  disap- 
peared. 

Now,  in  regard  to  the  shifting  positions,  inilicating.  as  I 
think,  a  weakness  on  the  part  of  the  b'nited  States  contention 
here, — suggesting  it  as  an  after  thought  and  giving  sujiport  to 
my  assumjilion  that  it  was  not  the  reason  for  the  seizure — tliat 
it  was  not  the  reason  which  induceil  tlu;  government  of  the 
United  .States  to  touch  ime  single  ship  Hying  the  British  tlag, 
I  wish  to  brietly  refer  to  Volume  3  and  one  or  two  other  volumes 
of  the    Record  at  Paris, — -to  trace  (piickly,  the  history  of  that 

50   sul)ject. 

For  instance,  in  the  report  published  with  the  United  States 
case,  but  not  referred  to  in  tlu^  case  at  all  in  connection  with  any 
point  put  f(;rward  \ip  to  liH<)2,  liy  the  United  States,  there  is  tlie 
first  indica'^ion  that  the  ()uestion  of  ownership  was  invoKcd 
directly  or  indirectly.  At  volume  ',],  page  oO."),  there  is  a  report 
of  Mr'  Williams  <lated  October  1N,S<),  which  says  that  the 
'  Thoiiiton  "  was  owned  half  by  Boseowitz,  an  American  citizen 
and  registered  in  the  name  of  Captain  Warren.  Tlien  in  the 
Ignited  States  counter  case  Movember  liS!)2,  (  the  date  the  counter 

(iO  case  was  served  on  the  agent  of  Her  .Majesty  ),  at  page  ]'M, 
volume  1 ,  it  is  stateil  that  the  "  Thornton  "  was  in  War:en's  name 
but  he  bad  no  real  interest  ami  tiiat  Boseowitz  was  the  re«l 
owiu'r,  and  Boseowitz  is  referred  to  as  a  citizen  of  the  United 
States.     The  statement  is  that  the  '•  Thornton  "  was  in  Wnrr^n's 


10 


•JO 


307 

(Sir  Chailes  H.  Tapper's    Ari,'miient.) 

name  ^vllO  had  no  real  interest,  iind  that  the  otlier  "  Warren  " 
vessels  were  registereil  in  the  name  of  Cooper,  who  ii!i<i  no 
interest  in  tlieni.  In  vnltiiiio  !»,  pr,<res  217,  22it,  of  the  Uniteil 
States  arii;unu'nt,  it  is  cliari^'j;'.  that  the  Warren  vessels  were 
owned  in  fact  by  Boscowit/,  and  were  registered  iii  Cooper's  name 
for  the  purpose  of  enahlini,'  Hoscowitz  and  Warren  to  sail  under 
the  British  Hajj;.  The  question  relates,  so  fur  as  ownership  is 
concerned,  only  to  ve:-.sels  not  to  car<:;o  and  tlie  rpiestion  of 
iialiility  occurs  oidy  where  it  appears — tiiat  a  llniird  Stalcfi 
i-itizen  (  not  a  citizen  of  .rny  particular  Siatt;  hut  a  United 
States  citizen  )  was  the  artiud  owner  in  wdiolt;  or  in  part  of  the 
vessel.  I  refer,  in  this  connection,  to  the  Record  at  pai;;e  o,  for 
the  purpose  of  callini;  attention  to  the  position  of  tiie  learned 
counsel  for  the  Uidted  States,  even  as  late  as  when  we  opened 
this  case  at  Victoria,  by  way  of  contrast  to  the  present  position. 

Mr.  Dickinson  said  to  you  : — 

"  Othei  questions  reserved  by  the  Award  of  the  Tribunal  are, 
"  whether  the  property  claimed  to  have  been  seized,  and  claimed 
"  to  have  been  owned  by  Britisl;  subjects,  was  in  fact  the 
"  property  of  British   subjects,  or,  on  the  other  hand,  was  the 

■  jiroperty  of    Americans — or  citizens    of  tlie   l.^nited  States — 

■  wdio,  under  cover  of  the  Briti.sh    Hag,  defied  the   laws  of  their 

■  country,  were  caught  at  it,  and  their  property  seized." 

In  referring  to  the  evidence  taken  on  the  trial  I  have  oidy  to 
call  to  your  Honor's  attention  tliat  in  accordance  no  doubt  with 
the  learned  counsel's  instructions,  and  I  do  not  mean  to  imply 
iO  (for  in  his  case  it  was  impossible  to  suppose  it),  that  he  was 
contined  to  any  particular  line,  but  was  invested  with  the  largest 
|)ossible  discretion  ;  you  v.iil  remember  the  strenuous  and  pertin- 
acious attempt  on  his  part  to  prove  that  this  theory  was  right — 
that  l'>oscowitz  was  really  the  owner  of  the  Wari'en  vessels,  ancl 
vou  will  recollect  in  that  connt^ction  thai  that  coiitetition  was 
followed  up  as  late  as  the  last  sitting  at  Montreal.  For  instance, 
where  the  learned  counsel,  seeing  that  the  defence  stood  upon 
the  ground  of  actual  ovvneiship,  not  registered  ownership, 
recognizing  that  all  through  until  the  evidence  was  closml,  and 
10  the  time  came  to  review  the  evidence  and  alter  his  position, 
siiid  : — 

'  My  friends  will  coi»tend  that  he  h.-id  no  half  interest  in  the 
■'  ship.  We  shall  contend  that  he  had,  itml  wr  propose  to  show 
"  it  before  we  finish  the  case." 

.Mr,  Dickinson  : — Where  is  that  f 

Sir  ('.  H.  Tupper  : — That  is  in  the  Record,  but  not  at  Mon- 
treal. This  was  before  the  evidence  bad  closed  at  Victoria,  and 
al  a  time  when  my  learned  friend  was  dealing  with  some  of  the 
pleadings  in  n  suit  betweei\  Boscowitz  and  Warren.  Then  I 
''0  would  like  to  call  attention  to  the  Record  of  what  occurred  at 
Montreal.  My  learned  frienil's  position  is  'iiscussed  at  Montreal. 
He  sail!  at  page  two  of  what  I  ndglit  c.'.'l  the  Montreal  Record 
of  the  evidence  : — 

"  The  evidence  as  to  his  citizenship  had  been  put  in  as  soon 
"  ns  found,  1  think  three  weeks  before  the  close  of  the  session 
'  at  N'ictoria. 

1  call  attention  to  that  as  the  counsel's  own  admission  as  to 
what  his  case  was  at  that  late  period  of  the  enquiry  as  to 
oxvnership: — 

"  It  liad  been   charged    in   the   pleadings,  evidence  of  it  had 

1 n  adduced  on  cross-i^xandnation  six  weeks  before  the   close 

lit  the  session.  But  the  final  testimony  of  the  admission  of 
Joseph  Hoscowitz  under  oath,  in  the  proceedings  where  it  was 
essential  for  him  to  make   out   his   American   citizenship,  was 


(io 


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10 


20 


30 


40 


(Sir  Clmrles  H.  Tupper's  Arjjument.) 

"  not  found  ivnd  piotluced  until,  I  think,  three  weeks  before  tiio 
"  close  of  the  session.  This  thing  was  raised  in  tiie  record  from 
"  the  beginning  of  the  seal  arbitration  in  Paris  in  1S92,  and  it 
"  was  continued  in  the  record  all  through  down  to  tlie  close  of 
"  the  session." 

Now,  on  page  8,  skipping  what  is  not  material  to  my  point, 
and  lit  the  bottom  of  the  page,  I  find  as  follows  from  the  learned 
counsel'"  addr'.>ss  : — 

"  Under  liiese  circumstances,  taking  into  consideration  the 
"  time  at  which  Joseph  Boscowitz  was  called  before  the  Cou:- 
"  missioners  at  Victoria,  taking  into  consideration  the  time  at 
"  which  he  should  have  been  called  and  submitted  to  examination, 
"  taking  into  consideration  the  fact  that  the  United  States  had 
"  rested  upon  the  oath  of  Joseph  Boscowitz  in  testimony  that 
"  was  material  and  in  litigation  where  he  had  sworn  that  he  was 
"  an  American  citizen." 

I  do  not  know  that  it  is  necessary  for  me  to  do  more  for  my 
purpose,  which  I  hope  fully  to  develop  as  I  go  on,  than  to  refer 
to  the  facts  that  I  have  already  adverted  to  in  order  to  show  the 
position  so  far  as  the  "  Warren  "  vessels  were  concerned,  at  any 
rate  up  to  that  date. 

Mr.  Dickinson  : — But  at  Montreal  you  remember  the  argu- 
ments had  been  filed  and  po.sitions  taken  on  the  facts. 

Sir  C  H.  Tupper  : — The  counsel  is  quite  right.  Before  this 
evidence  >vas  taken  the  United  States  had  filed  an  argument 
which  was  significant.  I  do  not  know  whether  my  interpreta- 
tion of  the  significance  be  right,  but  it  was  significant  for  tiie 
omission  to  r;fer  to  Mr.  Boscowitz  in  any  shape  or  form.  I 
think  that  Air.  Boscowitz  disappeared  for  the  first  time  since 
liS92  from  the  Record.  But  here  1  may  sa}'  that  it  would 
shorten  my  argument  if  ni}'  learned  friend  had  no  objection  to 
tell  me  now  what  is  his  contention  in  regard  to  Boscowitz,  that 
is  to  say,  whether  Boscowitz's  connection  with  the  Warren  ships 
will  be  relied  on  by  hint  in  any  particular  in  connection  with 
the  Warren's  claims  and  to  their  prejudice. 

Mr.  Dickinson  : — Yes,  that  is  wliy  we  took  the  testimony  at 
Montreal. 

Sir  C.  H.  Tupper  : — So  that  I  will  go  on  to  refer  to  the  facts 
in  connection  with  Boscowitz,  ami  I  will  give  the  reference  at 
the  end  of  each  statement  : — 


Bo.scowitz  was  born  at  Floss,  Bavaria  .  .page 

Attended  school  there 

("ame  to  the  United  States  when  young.,     n 

Lived  with  his  father 

Came  to  Victoria  in  18G2 

50  Dill  not  know  that  his  father  had  been 

naturalized    ■■ 

Was  never  naturalized  as  an  American.  .     •■ 

Never  applied  for  it .. 

Never  took  the  oath 

Never  vt)teil  in  the  United  States m 

Married  in  1  Hd!) 

Began    dealings    with    Warren,  IHfiG   to 

IMOK 

Supplied  him  with  funds  and  continued 
60                   to  supply  him  till  1.S77,  when  Bosco- 
witz left  for  Great  Firitain 

Nothing  to  do  with  Thornton " 

In  liSSi  renewed  dealing.''  with  Warren..    •• 
Advanced  money  to  Warren 


1!)()4 
1970 
19(i.-) 
1971 
196(i 

1980 
19(i8 
1978 
1978 
1978 
19f)7 

1970 


1972 
1951 
1972 
1937 


399 
(Sir  Charles  H.  Tapper's  Arfjuiuent.) 

And  now  I  will  trouble  your  Honors  with  a  letter  that  was 
put  in  evidence  from  Boscowitz  to  Warren  in  1884,  it  is  at  page 
1967  of  the  llecon). 

Mr.  Dickinson  : — Do  not  misunderstand  me  in  my  reply  to 
]()  tliecolloquy  just  had.  The  relation  of  Boscowitz  in  the  matter 
will  bo  used  in  no  manner  to  detract  from  the  ownership  of 
Cooper.  It  will  be  used,  and  the  testimony  was  taken  in  that 
regard,  in  Montreal,  to  show  a  probable  reason  for  putting  tho 
ownership  in  Cooper.  That  is  what  we  will  maintain  from  the 
beginning  to  the  end,  as  stated  in  the  brief — that  Cooper  is  the 
owner  as  to  the  United  States  and  (Jreat  Britain. 

Sir  C.  H.  Tuppei': — May  I  ask  my  learned  friend  whether 
Boscowifz  was  an  American  citizen. 

Mr.  Dickinson: — I  do  not  know.     If  you  can  find  out  from 
•2(1  the  Record  I  wi>h  you  would  state. 

Sir  C.  H.  Tapper : — Your  Honors  will  see  how  difficult  my 
learned  friend's  position  has  been.  Here  he  is  with  the  Record 
to  which  I  have  referred,  and  unable — certainly  from  his  written 
argument  there  i.s  a  confessed  inability — and  now  I  understand 
that  he  admits  that  he  is  unable  to  tell  me  what  nationality 
Ho.scowitz  has  a  right  to  claiu). 

Mr.  Dickinson  : — Can  you  ?     I  speak  from  the  Uacord. 

Sir  C.  H.  Tupper  :  — He  certainly  never  was  a  citizen  of  the 
I'nited  States. 
;j(l         Mr.  Dickinson  : — On  the  other  hand,  you    will    not  contend 
that  Boscowitz,  at  the  time  he  registered  in  Cooper's  name,  couhf 
have  registered  in  his  own  name 

Sir  C.  H.  Tupper  : — We  never  contended  that.  We  asserted 
that  all  his  rights,  as  that  of  other  citizens,  were  perfectly  safe 
under  the  British  Hag. 

Mr.  Dickinson  : — But  he  did  not  havo  a  register,  and  the 
(|uestion  is  whether  he  could  have  had  a  register.  You  would 
not  contend  that  he  couM. 

Sir  C.  H.  Tupper : — No,  we  do  not  claim  for  a  moment  that 

40  as  a  Bavarian  he  liad  a   right  to  regi'^ter,   hut  that   he  had   the 

right  to  have  a  mortgage  my  learn<       rieml  will  not  deny.     I  do 

not  understand  my  learned  friend  l^     kmin   that  he  had  the  right 

to  be  mortgagee  of  a  British  ship. 

This  letter  is  of  some  importance  as  showing  the  position  of 
Hoscowitz  ((uoad  these  Warren's  ships — that  he  was  for  a  long 
time  putting  his  money  in  the  hands  of  the  owner  of  these 
vessels  and  taking  security.  These  vess-ds  were  only  part  of  a 
concern  in  which  the  money  of  Boscowitz  went.  There  were 
other  vessels  that  never  went  to  Behring  Sea,  and  there  was 
.")0  property  situate  in  British  C'olumbia,  not  connected  at  all  with 
shipping,  that  formed  security  which  Boscowitz  obtained  for  the 
advances  he  made.  The  letter  is  dated  the  5th  of  March  and  is 
read  into  the  Record  at  page  1974. 

At  half  past  four  o'clock  tlie  Commissioners  rose. 


!::i 


m 


Mlli 


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4'h 


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!«•' 


'■Ai;fi-,| 


W^,: 


Commissioners  under  the  Convention  of  February  8th, 

1806,  between  Great  Britain  and  the  United 

States  of  America. 

Legislative  Council  Chamber,  Provincial  Building, 
10  At  Halifax,  N.  S.,  September  8th.  1897. 

The  Conimissioneis  took  their  seats  at  ten  o'clock,  a.  m. 
Sir  Chas.  Hibbert  Tupper,  continuing  : — 
The  letter  of  Boscowitz  was  datoil  the  .ith  of  March,  188:5, 
and  written   from  11    Lansdowne  Place,  Brighton,  En^jland,  to 
Captain  J.  D.  Warren.     That  letter  which  is  to  be  found  at  page 
1074  of  the  record,  reads  as  follows  : — 

"11  Lansdowne  Place,  Brighton, 
"oth  March,  1883. 
"  Friend  Warren  : — Your  letter  of  the  1st  February  came  to 
20  "  hand  this  morning,  and   I  at  once  cabled  you  40  as  follows  : 
"  '  Will   advance  twenty   thousand  dollars  (.^20,000) ;    caution  ; 

"await  letter.' 

♦  «  #  » 

"  You  cannot  hope  to  find  any  one  to  loan  you  money  unless 
"you  have  the  security.  I  an)  (juite  willing  to  advance  you  the 
"  820,000  more  on  this  condition  :  In  addition  you  transfer  all 
"your  interests  to  me  in  the  following  property  :  — 

"  Steamer '  Sardonyx  ' 815,000 

"  Steamer  '  Pilot ' 1(5,000 

SO  "  Steamer  '  Gertrude  ' 2,.i00 

"  Steamer  '  Beaver  ' 1,000 

"  Steamer  '  Grappler ' 1 ,000 

"  Schooner  '  Bonanza ' 2,000 

Total 838,.500 

"Then  you  are  to  give  me  a  mortgage  on  the  following  prop- 
"erty:  .Steam  schooner  '  Grace,' schooner  'Barbara  Bo.scowitz,' 
"schooners  'Dolphin,'  'Thornton,'  'Anna  Beck,' real  estate  in 
"  Victoria,  on  the  west  coast.  Five   Stations,  Salmon   Canneries, 

40  "  \aas  River,  X.  W.  C,  8.50,000  ;  transfer  of  life  policies  signed 
"  by  Mrs.  W,,  82,000  ;  transfer  of  Lodge  certiKcate  signed  by  Mrs;. 
"  Warren. 

"  .My  reason  for  asking  for  this  security  is,  I  do  not  consider 
"  the  schooners  enough  in  case  anything  should  happen  to  you. 
"  I  could  not  gi)  out  uikI  run  theui,  and  if  they  should  be  sold  at 
"auction  they  would  not  bring  half  what  they  cost.  Besides,  I 
"don't  think  you  are  the  man  to  own  such  riskv  and  dangerous 
"  property,  and  it  i^  my  intention  to  otter  all  these  interests  for 
"sale  l)y  jirivate  ti'iidiT  or  public  auction.     This  is  the  only  way 

50  '■  to  free  yourself  fioiii  all  the  steamboat  interests.  I  wish  you 
"to  ri'turn  again  to  your  legitimate  business  as  fur  trader. 

"The  time  is  not  far  oH'  when  your  schooners  will  be  worth 
"all  your  interests  in  the  steamer-*,  and  1  wish  yt)u  to  trade  on 
"  the  west  and  niu'thwest  coast  for  mink,  marten  and  other  furs. 
"The  prospect  is  very  good  for  a  change  of  the  natural  furs 
"coming  into  fashion  again.  Seal  will  be  used  oidy  as  a  garment 
'■  for  use,  not  fashionable,  as  it  has  been,  and  I  wish  your  entire 
"  attention  in  Htting  out  your  schooners.  I  think  I  can  sell 
"  thosi  interests  better  this  distanct;  from    here   than  you   and  I 

CO  "  would  advise  your  friends,  unle.ss  they  are  steamboat  men,  to 

"sellout.     However,  that  is  their  business. 

•  •         •         • 

"  I  have  written  to  C.  K.  Fooley,  of  Davie  ii  Pooley,  to  draw 
"  up  the  mortgage  and  make  the  transfer  of  the  steamers,  real 


30 


401 

(Sir  Cliarles  H.  Tapper's  Argument.) 

'  ( -tate,  cannery,  life  policy,  ami  the  certificate  of  the  Lodge  A. 
'  ().  U.  VV.     Mr-i.  Warren  will  have  to  sign  the  last  two  with  you. 

*  •         «         » 

'■  Perhaps  yon  think  me  hard  in  asking  for  all  your  property 
"  Imt  I  think  it  safer  in   my  hands  than    in  yours.     It    is   my 

10  "  intention  to  otter  the  steamers  for  sale  by  private  tender,  and, 
"  il'  not  sold  that  way,  to  advertise  them  and  have  them  sold  by 
auction.  You  have  nothing  to  say  in  the  matter,  and  whenever 
you  have  any  spare  money  place  it  on  interest ;  it  will  pay  you 
"  lietter  and  is  much  safer  than  steamers.  You  can  have  the 
"  money  for  one  or  two  years  interest  at  five  per  cent,  per  annum. 
"  You  have  the  right  to  pay  the  entire  amount  at  any  time,  or 
"any  portion  and  if  we  continue  in  business  togetlier  any  profits 
'•  will  be  placed  to  your  cretlit  against  the  mortgage.  If  you 
"don't  wish  to  transfer  the  steamers  I  hope  you  will  then  secure 

•21)  "  me  by  mortgage  for  the  twenty-four  thousand  dollars  now  due 
"  me,  with  interest.  You  will  give  me  the  real  estate  in  Victoria, 
"  life  policy.  Lodge  certificate,  and  a  mortgage  on  the  '  Grace  '  and 
"'Dolphin.'  You  may  have  this  money  for  two  years  at  the 
"  same  rate  of  interest.  I  cannot  tell  you  how  bad  I  feel  to  ,see 
"your  money  invested  in  such  foolish  property,  besides  the  large 
"amount  of  interest  you  must  have  paid.  I  almost  think  if  you 
■'  could  give  it  away  it  would  be  better  for  you.  I  do  not  care 
"  iiow  much  money  they  have  made  or  are  going  to  make.  I  do 
"  not  want  you  to  have  any  steamers. 

*  »         *         » 

"  I  want  you  to  make  a  separate  mortgage  for  ten  thousand 
"  dollars  (!?1C,000)  for  three  months  against  any  money  you  may 
"  liiive  drawn  for  the  sealing  season. 

'■  Yours  trulv, 

"J.  BOSCOWITZ." 

In  connection  with  that  letter  I  might  read  the  following 
I'vidence  given  by  Bo.scowitz,  as  it  occurs  on  page  1975,  of  the 
record  : — 

'  Q.     Mr.  Peters — At  that  time  on  the  5th  of  March,  were 
40  "  yoLi  in  London  i     A.     Yes,  .sir. 

"  Q.  In  pursuance  of  that  letter  did  you  make  the  advances  ? 
"  A.     Yes,  sir,  I  did. 

"  Q.     While  you  were  in  London  ?     A.     Yes. 

"  (}.     And  that  was  the  original  arrangement  ?     A.     Yes. 

"  i).  And  that  went  on  until  Captain  Warren  had  to  assign  ? 
".\.     Yes. 

■  Q.     Do  you  remember  when  that  was  ?     A.     In  1885. 

"  Q.     Were  you    in    \'ictoria  or  in  England  at  that  time  ' 
'  A.     I  was  here. 
.")0        ■'  Q.     You  came  out  here  when  ?     A.     I  came  out  in  1884. 

"  (^>.  I  believe  you  obtained  a  judgment  against  Captain 
■  Warren  ?     A.     I  did. 

'  Q.     And  the  sum  of  the  judgment  was  I  believe  !?G5,000  ? 
A.     Very  near  that. 

'(^>.  And  this  was  the  result  of  your  transactions  up  to  that 
'  puriod  ?     A.     Yes. 

"  Q.     You  made  further  advances  ?     A.     Yes,  sir. 

'  Q.     Mr.    Warren   having  assigned    Mr.    Griffith    was   the 
'  assignee  ?     A.     Yes,  sir. 
(iO         "  {}.     The  position  of  affairs  then  was  that  Griffith  was  the 
'  nominal  owner  of  the  vessels  and  you  had  the  mortgages  ?     A. 
"  Yes,  sir. 

"  Q.  Did  you  cause  the  vessels  to  be  sold  under  your 
"  niurtgages  ?     A.     I  did. 


,,  ■     <■    '.     :f!.     J 


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402 

(Sir  Cliarli'H  H.  Tupper's  Aiffunieiit.) 

"  Q,  And  uniler  that  sale  they  were  tmnsferred  to  Mi. 
"  Cooper,  I  believe  f     A.     Yes,  sir. 

"  Q.     Mr.  Warren's  brother-in-law  ^     A.     Yes, 

"  Q.  What  was  the  object  of  that  i  A.  The  object  of  it 
"  was  to  jjive  Captain  Warren  the  control  of  the  vessels,  and  in; 
"  had  always  had  the  control. 

"  Q.  T)id  yon  take  mortgages  on  the  vessel  from  Mr.  Coopor  f 
10   "  A.     I  did. 

"  Q.     These  are  the  mort(;ages  I  believe  i     A.     Yes,  sir. 

"  Q.  There  were  just  three  were  there  ;'  A.  There  were 
"  more  than  tliat  originally.     There  were  Hve. 

"  Q.  Hut  you  took  mortgages  on  the  Anna  Heck,  tln' 
"  Dolpiiin  and  the  Grace  :'     A.     Yes,  and  the  '  Sayward.' " 

In  connection  with  that  I  refer  to  the  registers  in  evidence. 
For  instance  in  the  "  Thornton,"  on  the  registry  there  is  eiitori'il 
the  first  of  December  1S83,  a  mortgage  from  Warren  to  Hns- 
oowitz  for  i?4.,000.  On  the  "  Grace  "  May  Jkd.  1883  for  $8,000  ; 
•20  and  again  on  the  Grace  December  188.S  for  ^•l',000.  On  the 
Dolphin  the  date  is  the  same  as  that  on  the  Grace,  and  the  smuk' 
amount  of  the  mortgage,  in  favor  of  Hoscowitz;  on  the  Anna 
Heck  the  mortgage  to  Hoscowitz  was  on  the  14th  August,  1SS4, 
and  was  for  SC.OOO  ;  in  the  case  of  the  Sayward  the  mortgage 
was  October  llUh  1884.  It  will  not  be  disputed  that  at  that 
time  there  was  no  suggestion  from  Hoscowitz  to  Warren  or  from 
Warren  to  Hoscowitz  that  these  vessels  were  to  be  useil  in 
connection  w  ith  the  fur  seal  fisheries  in  Hehring  Sea.  I  ret'er 
also  to  the  evidence  on  the  Record  page  1108,  simply  to  cm  11 
30  your  honors  attention  to  the  fact,  that,  although  Hoscowitz 
wished  to  hold  the  mortgage  on  the  Sayward,  he  was  obliged  to 
release  it.  The  money  was  formally  tendered  to  him  after  the 
the  .seizure  it  is  true  ;  but  nevertheless  in  connection  with  that, 
and  as  some  corroborative  evidence  of  the  explanation  given  as 
to  this  being  a  bona  fide  mortgage  transaction,  lioscowitz  desir- 
ing to  hold  that  mortgage  and  not  to  release  it  and  to  have 
further  connection  with  the  Sayward,  was  compelled  to  roloiise 
it  when  the  money  was  legally  and  formally  tendered  to  him. 

(.timing  to  the  end  of  references  to  Hoscowitz  only,  I  would 
40  like  to  read  the  section  of  the  United  State.^  Statnte.s,  and  i|uoto 
the  authorities  in  connection  with  some  of  the  ([uestions  which 
have  come  up  about  the  naturalization  of  Mr.  Boscowitz's  father, 
and  about  his  nationality.  Section  2172  of  the  United  States 
Revised  Statutes,  reads  as  follows  :  — 

"The  children  of  persons  who  have  been  duly  naturalized 
'■  under  any  law  of  the  U.  S.  or  who  previous  to  the  passing  of 
"any  law  on  that  subject  by  the  government  of  the  U.  S.  may 
"  have  become  citizens  of  any  one  of  the  States  under  the  laws 
"  thereof,  being  unrler  the  age  of  21  years  at  the  time  of  the 
,50  "  naturaliziition  of  their  parents,  shall  hn"e  dwelling  in  the  U.  S. 
"  to  be  considered  citizens  thereof." 

Mr.  Hoscowitz,  born  October  l.^th,  183."),  woulil  be  21  years 
of  age  on  October  1.5tl),  185(!;  so  that  to  come  within  the  pro- 
visions of  the  foregoing  statute — should  my  learned  friends  be 
successful  in  their  efforts  to  show  that  there  was  a  compliance 
with  that — Aaron  Hoscowitz  the  father  of  Joseph  Ho.scowitz  must 
have  been  naturalized  before  October  1. 'it h,  1850.  I  submit  your 
Honors  that  the  evidence  in  connection  with  the  naturalization 
(pf  Aaron  Hossowitz  has  entirely  failed.  It  has  simply  been  put 
(iO  in  evidence  that  Aaron  Hoscowitz  had  filed,  in  the  State  of  Wis- 
consin, a  declaration  of  intention  to  become  a  citizen  )f  the  United 
States. 

The  ('ommissi(jner  on  the  part  of  the  United  States:— What 
is  the  flate  of  that  declaration  ^ 


403 

(Sir  Charles  H.  Tapper's  Arfruinent.) 

Sir  Charles  Hibbert  Tupper : — I  will  tell  your  Honoi  in  a 
moment. 

Mr.  Dickinson  : — 1852. 

Sir  Charles  Hibbert  Tupper  : — My  learned  friend  says  the  date 
is  1852.  Under  the  law  of  that  State,  which  is  peculiar  I  believe 
to  some  7  or  8  States  of  the  Union  only,  by  filing  a  declaration 
\Q  of  intention,  an  individual  obtains  nearly  all  the  political  riffhts 
appertaining  to  nationality  exercisable  in  the  State  where  that 
declaration  is  filed.  For  instance  in  the  State  of  Wisconsin,  by 
filing  that  declaration,  I  believe  an  alien  could  hold  and  transmit 
property  and  could  vote  at  most  of  the  political  elections. 

Mr.  Dickifison : — In  Wisconsin  an  alien  could  anyway,  with- 
out regard  to  his  declaration  of  intention,  and  that  is  true  of  any 
other  State,  except  one. 

Sir  (Miarles  Hibbert  Tupper : — The  organic  law  oi  Wisconsin, 
adopted  the  20th  of  April,  182C,  as  the  Constitution  of  the  State, 
20  P'^B*'  ^^'  Volume  I,  of  the  Annotated  Statutes  of  Wisconsin,  has 
reference  to  this  question.  Page  47  sets  out  those  who  are  quali- 
fied to  vote,  including  those  who  have  <leclared  their  intention  to 
become  citizens.  In  that  connection  I  would  like  to  call  your 
Honors  attention  to  the  Treaty  between  the  United  States  and 
Havaria  which  concerns  naturalization.  That  treaty  was  ratified 
in  18(i8  —  and  article  one  contains  this  clause  —  "Citizens  of 
"  Bavaria  who  have  become  or  shall  become  naturalized  citizens 
"of  the  United  States  of  America,  and  shall  have  resided  unin- 
"  terruptedly  within  the  United  States  for  five  years  shall  be  held 
;jQ  "  by  Bavaria  to  be  American  citizens,  and  sluill  lie  treated  as  such. ' 

Then  there  is  the  reciprocal  clause  which  I  need  not  read  to 
your  Honors.     At  the  end  of  Article  I,  there  is  the  following: — 

"  A  declaiation  of  intention  to  become  a  citizen  of  the  one  or 
"the  other  country  has  not  for  either  party  the  efiect  of  mitur- 
"  alization,"  So  that  under  the  law  and  according  to  the  express 
treaty  Aaron  Boscowitz  the  father,  never  became  a  citizen  of 
the  United  States. 

ik'fore  passing  from  that  point  I  will  refer  your  Honors  to  a 
case  in  the  Wisconsin  Reports,  re  Conway,  17  Wisconsin,  p.  .')26, 
4Q  where  it  is  held  that  the  children  of  aliens  born  and  endgniting 
in'.o  the  State  during  minorit}'  d.>  not  become  citizens  until  the  full 
naturalization  of  the  father.  I  sul)mit,  your  Honors,  that  having 
faile(l  utterij'  in  their  contention  as  to  iioscowitz,  my  learned 
friends  occupy  as  hopeless  a  position  in  cotinection  with  Cooper. 

The  present  Argunn^nt  filed  by  the  United  States  refers  to 
Cooper  as  a  civil  citizen  of  the  United  States;  and  what- 
ever that  argument  may  amoimt  to  in  the  end,  and  no  matter 
how  strongly  niy  learned  friends  may  press  the  various  points  in 
their  brief  touching  Cooper,  it  is  absolutely  impossible  for  my 
5Q  learned  friend,  Mr.  Dickinson,  to  bring  Cooper  within  the  langungo 
of  th(!  treaty  in  regard  to  this  (juestion  of  ownership.  That  refers 
to  a  case  of  an  actual  owner,  a  case  where  the  actual  owner  is  a 
citizen  of  the  United  States — not  a  citizen  of  any  one  particular 
State — and  there  are,  as  your  Honors  well  know,  these  distinctions 
obtaining  to-day  in  the  United  States,  where  a  man  may  be  a 
citizen  of  one  State  and  yet  not  a  citizen  of  the  United  States. 

The  Claims  Convention  contemplates  no  character  such  as 
Mr.  Cooper  is  said  to  possess  ;  as  for  instance,  of  civil  citizenship. 
As  we  will  see  Cooper  is  referred  to  in  manj-  character-!  in  the 
(jQ  course  of  the  written  argument  of  the  United  States.  In  con- 
nection with  Cooper  I  call  your  attention  again  to  the  allegation 
in  the  counter  case  filed  at  Paris,  in  1802,  where  the  charge  was 
that  Joseph  Boscowitz  was  a  citizen  of  the  United  States,  that 
Joseph  Boscowitz  was  saiil  to  be  the  real  owner  and  the  counter 
case  of  the  United  States  uses  this  lansiuasie : — 


.  f      ! 

ii  i 

i ' ' 

') 

^ 

(          ':        . 
■      J^        i' 

m 

i ' 

1:.,;.  tli 

4^ 


;!|(!l|;f''    ' 


i>    '!l 


404. 

(Sir  Chailes  H.  Tupper's  Arijumeiit.) 

"  Ami  that  Thomas  H.  Cooper,  in  whose  name  the  clahiis 
"  growin)»  out  of  tlio  seizures  of  tlie  schooner  '  W.  P.  Sayward  ' 
"  and  of  tlie  steam  Mcliooners  Grace,'  'J)o!phin'anil  'Anna  Beck' are 
"  iiiadi',  had  in  fact  no  interest  therein  and  Invs  in  no  respect  heen 
"  dainnitied  or  sustained  loss  by  the  seizures  thereof,  eitlier  as 
"  owner  of  iliese  seliooners  and  steam  schooners,  their  outfits,  or 
10  "  tiieir  catches,  the  same  being  mortgaged  to  their  full  vabie  to 
"Joseph  Boscowitz,  above  referred  to,  pnd  iiaving  been  conveyed 
"  to  Thomas  H.  Cooper,  without  consideration,  for  the  sole  pur- 
"  pose  of  giving  them  a  registry  as  British  vessels." 

Mr.  Blodgett,  one  of  the  counsel  for  the  United  States,  in  his 
written  argument  made  use  of  this  language :  "  Cooper,  a 
"  Britisli  subject  residing  in  San  Francisco" 

We  have  tlien  this  e.xtraordiiiary  position,  that  whereas  the 
contention  of  the  United  States,  on  practically  the  same  evidence 
in  connection  with  the  same  transactions,  charged  at  Pariv, 
20  Cooper  as  liaving  no  interest  as  owner,  yet  the  argument  pre- 
sented to  your  Honors  by  the  counsel  for  the  United  States  on 
this  occasion  charges  him  as  set  forth  at  page  52  of  their  Brief 
with  being  "  the  legal  owner  of  those  vessels."  Tiie  United 
States  Argument  at  Paris  page  218,  volume  9,  charged  (hooper 
with  b(!ing  "a  British  subject  residing  at  San  Francisco,"  and 
tiuit  is  followed  by  the  argument  presented  by  the  same  govern- 
ment at  Halit'a.^  (page  ")2  of  their  argument)  charging  Cooper 
witli  being  an  American  citizen.  In  this  argument  at  Halifax  it 
will  perhaps   not   be   without  interest   to    refer  to   the  different 

30  characters  given  to  Mr.  Cooper.  In  the  Halifax  argument  of  the 
I'niteil  States  we  find  at  page  14  that  tliis  man  is  described  to 
be  "a  foreigner  perinanentlj-  djuiiciled  in  the  United  States  like 
the  claimant  Cooper,"  at  page  40  Cooper  is  described  as  "  an 
original  subject  of  Creat  Britain,  still  owing  that  nation  qualified 
allegiance  ;  "  at  page  41  "  the  domicil  of  Cooper  as  owner  is 
conclu.sively  against  him;  "  at  page  45  "that  he  i.s  a  citizen  by 
doniieil  ;"  at  page  4()  that  he  is  "  a  domiciled  foreigner;  "  at  page 
4.S  as  "  stranger  commorant ;"  at  page  50  "  a  British  subject  by 
reason  of  allegiance  don)iciled  in  tlie  United  States;"  at  page  52 

40  "  the  legal  owner  of  these  vessels  and  an  American  citizen ; "  at 
page  80  it  is  charged  that  "  the  entire  ownership  of  the  '  Grace,' 
'Dolphin'  and  the  'Sayward'  was  in  Thomas  H.  Cooper;"  at 
page  153  that  "  the  sole  owner  of  the  'Sayward'  was  a  civil 
citizen  of  the  United  States;"  at  page  1()0  Cooper  is  again 
referred  to  as  a  British  subject ;  and  at  page  JJ82  it  is  again 
stated  that  "  the  '  Sayward  '  was  owned  by  Cooper  a  civil  citizen 
of  the  United  States." 

[  wish  also  to  refer  to  the  charter  in  connection  with  the 
Warren    ves.sels  in  iSSO,  pages   !)4;{  and  1185  of  the  Record.     I 

50  shall  not  do  more  than  give  that  reference  to  the  charter  from 
(Jriftiths,  tire  assignee,  to  Warren.  I  will  also  read  from  the 
decree  that  was  put  in  evidence  at  Victoria  : 

"  His  Lordship  doth  find  that  sometime  before  the  month  of 
"  March,  1880,  the  schooners  '  Grace,'  '  Dolphin,'  'Thornton,'  half 
"of  the  '  W.  P.  Sayward,'  thL  '  Anna  Beck'  and  'Rustler,'  were 
'■  the  property  of  the  said  James  Douglas  Warren,  subject  to 
"certain  mortgages  thereon  in  favor  of  the  plaintitl',  Joseph 
"  Boscowitz,  ami  that  the  said  schooners  (subject  to  the  saiil 
"  mortgages)  having  become  the  property  of  John  GrifHths  by 

00  "  virtue  of  an  assignment  for  the  benefit  of  creditors,  dated  18th 
"  day  of  Si'ptember,  A.  D.,  188.),  were  chartered  from  the  said 
"John  GrifHths  by  the  plaintiff  for  the  par[)ose  of  sealing,  were 
"  fitteil  out  by  the  plainfiti'for  the  purpose  of  a  sealing a<lventure 
"  and  were  by  the  plaintiff"  sent  to  sea  uniler  the  management  of 
"  the    said    James    Douglas    Warren,   to  whom  the  said  Joseph 


10 


20 


30 


40 


50 


00 


405 

(Sir  Charles  H.  Tapper's  Argument.) 

"  Boscowitz  promised  that,  in  conslrleration  of  the  care  and 
"  attention  of  the  said  James  Douglas  Warren  to  the  concerns  of 
"  the  plaintiff  in  respetit  of  the  said  sealintj  adventure  that  he, 
"  the  said  plaintiff,  would  give  to  the  said  James  Douglas  Warren 
"  an  amount  equal  to  one-half  of  the  net  profits  of  the  adventure. 

'That  the  schooner  'Thornton'  was,  during  the  sealing 
"season  of  188C,  seized  l»y  t!ie  Government  of  the  Uniteil  States 
"  for  an  alleged  infraction  of  International  law,  together  with  the 
"  cargo  of  sealskins,  hut  that  the  other  schooners  returned  in 
"  safety,  ami  the  said  Joseph  Boscowitz,  in  pursuance  of  his 
"  promise,  allowed  the  saitl  James  Douglas  Warren  in  account  an 
"amount  equal  to  one-half  of  the  proHts  of  the  adventure. 

■'  And  this  Court  doth  further  Hnd  that  the  remaining  vessels, 
"  that  is  to  say,  the  '  Grace,'  '  Dolphin,'  •  Anna  Beck  '  and  the  one- 
"  half  of  the  '  W.  P.  Say  ward,'  wore  offered  for  sale  and  were  sold 
"  by  the  said  Joseph  Boscowitz  in  the  month  of  October,  1886, 
"  under  the  power  of  sale  in  the  mortgages  to  the  Defendant, 
"  Thomas  Henry  Cooper,  who  purchased  them  ns  a  Trustee  for 
"  the  said  defendant,  James  Douglas  Warren,  but  had  no  beneficial 
"  interest  iit  the  said  vessels  himself,  and  that  the  said  Joseph 
"  Boscowitz  chartered  or  hired  the  said  ves.sels,  and  also  the 
"  schooner '  Mary  Taylor,' from  the  said  Thomas  Henry  Cooper,  and 
"  in  the  year  1887  sent  them  upon  a  sealing  voyage  in  charge  of  the 
"  defendant,  James  Douglas  Warren,  and  agreed  to  give  to  the 
"  said  James  Douglas  Warren,  in  consideration  of  his  services  in 
"  the  premises,  an  amount  equal  to  one-half  of  the  net  profits  of 
"the  adventure;  and  that  the  vessels  'Grace,'  '  Dol[)hin  '  and 
"' Anna  Beck,' and  '  W.  P.  Say  ward,'  were  in  that  .«ame  year, 
"  1HS7,  seized  by  the  United  States  authorities,  together  with  the 
"cargoes  of  seals  on  board,  but  the  said  '  Mary  Taylor '  returned 
"  home  with  a  cargo  of  seals  which  were  received  and  sold  by  the 
"  said  Joseph  Boscowitz." 

I  now  read  from  the  United  States  argument  the  extract  from 
the  evidence  on  page  lUi)  of  that  argument. 

Warren,  testified  relative  to  Cgoper's  residence,  (Record 
0-iO,  94.1),  as  follows:— 

"  Q.     He  is  an  American  citizen,  is  ho  not  ?     A.     No. 

"  Q.     Lives  in  San  Francisco  ?      A.     Lives  in  San  Francisco. 

",Q.  How  long  has  Cooper  lived  in  San  Francisco  ?  A.  Well, 
"  he  lias  lived  there  a  number  of  years. 

"  Q.  He  has  lived  there  about  twenty-five  yer*rs,  'las  he  not  ? 
"  A.     I  think  likely. 

"  Q.  Now,  in  regard  to  Mr.  Cooper,  he  is  your  brother-in- 
"  law,  is  he  not  ?     A.      Ves. 

"  Q.      He  has  been  living  in  San  Francisco  ?     A.     Yes. 

'  Q.  You  produced  the  other  tlay  a  power  of  attorney  of 
'  T.  H.  Cooper.  A  similiar  question  was  asked  in  the  Thornton, 
"  but  not  in  these  cases.  Wheie  does  Cooper  live  ?  A.  San 
"  Francisco. 

"  Q.  How  long  has  he  lived  there  to  your  knowledj'e  ? 
"  He  is  your  brother-in-law,  is  he  not  ?  A.  Yes.  I  e.xpecfc  it 
"  must  bo  getting  close  oi   thirty  years. 

And  at  page  3  of  the  British  reply  it  is  .said  : — 

"  In  connection  with  the  observations  directed  against  Thomas 
'  H.  Cooper,  in  addition  to  what  has  been  already  said  bearing 
'  on  the  point,  (ante,  p.  2),  attention  .should  be  calletl  to  the  fact 
'that  the  party  beneficially  interested  was  C.ipt.  J.  D.  Warren, 
'  who  meely  used  Cooper's  name  for  the  purpose  of  holding  the 
'  title  to  .lis  .schooners.  Cooper's  evidence  on  this  point,  (11.,  p. 
■  18:i7,  line  38),  is  as  follows  :— 

"  Q.  Your  name  appears  in  connection  with  these  ships  as 
'  registered  owiier  !     A.     Yes. 


f  k' 


'■>* 

'% 


Hiji' 

i^ 

m^ 

II  li 


.ir-\' 


400 

(Sii    ClmrleH    H.  Tupj)ei's    Argument.) 

"  Q.  Had  you  any  real  interest,  or  whonj  difl  you  represtnt 
"  in  these  transactions  >     A.     Captain  Warren. 

"  Q.  You  allowwl  your  name  to  lie  used  in  connection  with 
"  the  reffistered  ownersiiip  I     A.     Yes. 

"  Q.  Hut  you  did  that  in  the  interest  of  (^aptain  Warren  ' 
"  A.     Yes. 

10         "  Q.     And  at  liis  request  ?     A.     Y'es. 

"().     I  suppose  you  Iviiow  next  to  notliinir  aliout  any  of  the 
"  questions  concernin;.;  tliese  rey;isters  ?     A.     Nothinj,'." 
Cross-examination  hy  Mr.  Dickinson: — 

"Q.  Y'ou  did  not  l\now  uiucii  ahont  tlie  .sliips,  did  you  Mi, 
"  Cooper  ?     A.     No,  sii'. 

"  Q.  And  liardly  enquired  why  he  wanted  you  to  take  tiu' 
"  title  ill  your  name  ?     A.     Nevei'  hud  luiv  interest. 

"  Q.  Dill  not  know  except  that  Captain  Warren  asked  voii 
"to?     A.     That  is  all. 

20  "Q.     You    did    not  know  whether  Captain   Warren  wanted 

"  3'ou  to  take  the  title  to  hold  for  him,  or  to  hold  for  sonieoin' 
"  else,  did  you  :'     A.     Ho  wanted  it  for  him.ielf." 

Then  on  the  point  that  lie  held  for  I'ajitain  Warren,  there  is 
a  reference  at  (la^e  it40  of  the  record  which  1  wisli  your  Honor.-, 
to  note,  and  also  a  reference  at  paj^"  !t7')  of  the  Record.  [  wish 
to  add  to  this  part  of  my  arj^iuiient  that  we  have  in  connection 
with  Coojier  the  fact  that  he,  a  Biitisli  suliject  residinij;,  or  domi- 
ciled, if  you  like,  at  San  Francisco,  went,  as  he  had  a  rif^lit  to  do, 
to  a  British  port  to  olitain  the  registry  of  vessels  in  liis  own  name. 

30  In  the  Cniti'd  States  brief,  Cooper's  domicil  is  said  to  hefatnl 

in  connection  with  the  ships  which  were  reijistiTed  in  his  nmiic, 
I  shall  do  my  hest  to  avoid  travelliriL''  o'ver  the  ;^round  so  well 
occupied  hy  the  learned  counsel  with  whom  I  nm  as.sociated,  liiit 
in  connection  with  that  question  of  domicil  and  the  reference  to 
it,  at  paj^e  il  of  the  lJnite<l  States  Ari^ument,  I  will  stoj)  to  ask  : 
Why  should  there  lie  any  fatality  connected  with  the  domicil  that 
Cooper  undouhtedly  enjoyed  in  the  State  of  California  ?  It  was 
suf^gested  that  because  he  was  domiciled  there,  that  he  cannot 
invoke  the  aid  or  a.ssistance  of  the  countr)-  of  his  orii,'in  and   the 

40  country  to  wdiich  it  cannit  he  denied  he  still  owes  allegiance. 
My  learned  friemls,  it  seiiiis  to  me,  forget  or  overlook  the  fact, 
that  we  are  not  dcalin<;  here  with  ("ooper: — for  that  matter  I 
suliiiiit  we  are  not  dealii'j,'  with  individuals  except  the  individuals 
,so  far  as  connected  wi'ii  the  ship  either  in  the  navifjiitioii  of  it 
or  the  interests  j^rowiiij;  out  of  it.  I  suhmit  that  in  the  list  "f 
claims  referred,  the  ships  are  properly  and  jiointedly  mentioneil, 
anil  tiiat  the  law  in  regard  to  domicil,  complicateil  ami  ditliinih 
thoui^h  it  may  lie,  has  no  place  projierly  in  the  determination  of 
the  action   of  the   United   States  quoad  the.se  ships.     I  submit 

50  that  the  relations  and  diH'ereiit  connections  between  the  ships 
and  citizens  or  subjects  of  any  country  whatever  they  may  be, 
by  way  of  ships  security  or  by  wa}-  of  direct  interest,  or  by  way 
of  any  domestic  concern,  liave  nothintf  to  do  with  the  question 
of  the  liability  of  the  United  States  and  the  amount  of  clainai,'e.s 
the  United  States  should  pay. 

As  it  seems  to  me  the  (piestion  is :  was  the  action  of  the 
United  States  connected  with  a  British  Ship  on  the  High  Sens 
in  a  time  of  peace  ;  was  the  action  of  the  United  States  in 
connection  with  that  British  ship  according  to  the  law  of  nations  ( 

60  If  we  are  to  ascertain  the  damages,  then  the  question  is  :  what 
was  done  with  the  ship,  what  was  the  value  of  the  ship,  and  what 
the  value  of  the  interests  affected  by  that  improper  treatment  of 
the  ship  ?  I  shall  endeavor  to  make  that  plain,  but  let  me  first 
ask  this  question  :     What  law  of  the  United  States  iJid  Cooper 


407 

(Sir   Clmrles    H.   Tupper's    Ar<,'uiiient.) 

break  ?  What  law  of  the  United  States  did  Coojier  offend  ? 
Were  wo  arguing  tliis  (|ue.stioii  before  tlie  <iecision  at  Paris  tliero 
niiglit  be  dirticuity  in  utis\verinj»  that  (juestion,  hut  argning  this 
question  after  tlio  award,  after  the  interpretation  lias  been  put 
upon  that  award  liy  the  courts  of  the  Uniteil  States,  I  tliiiilc  I 
can  asli,  and  it  will  be  ditticult    for  tlie  otlier  side   satisfactorily 

10  to  answer ;  what  law  did  (,'ooper  violate?  If  I  can  nuike  out, 
as  I  think  I  can,  that  the  ships  with  which  be  was  connected 
were  British,  and  thnt  the  ships  registered  in  his  name  belonged 
to  British  eoinnierce,  and  were  ships  of  Hiitish  natioiudity, 
what  law  of  the  United  States  then  woulil  Cooper  viidato  iiy 
going  on  the  British  registry  ?  Is  it  against  the  law  of  the 
United  States,  for  instance,  for  an  American  citizen  himself  to 
be  the  owner  of  a  foreign  ship  ?  In  the  language  of  Judge 
Hopkinson  in  Fox  vs.  Ladonia,  (Jrabbe,  p.  ilCi:  "  Is  there  any- 
'  thing  unlawful  in  an  Amtu-ican  citizen  beeoudng  part  owner  of 

•20  "  a  foreign  ship  ?  Certainly  not."  In  this  case  as  has  been 
already  forcibly  put  to  your  Honors,  it  is  not  the  case  of  an  Ameri- 
can citizen,  but  it  is  the  ca><e  of  a  British  subject  domiciled  in  a 
State  of  the  Union,  owing  a  certain  duty  it  is  true  to  thecountrj* 
in  which  he  is  domiciled,  but  having  the  right  in  the  country, 
from  a  sovereign  to  whom  he  has  never  changed  his  allegiance, 
having  the  right  there,  as  has  been  shown,  according  to  the 
niiiiucipal  laws  of  his  own  country,  to  bo  the  registered  owner  of 
a  British  shi|). 

1  submit  moreover  in  connection  with  the  Claims  Convention, 

30  under  the  treaty,  and  under  the  circumstances  of  the  case,  it 
cannot  successfully  be  said  that  (hooper  was  thu  actual  owner. 
The  actual  ownership  of  these  ships  were  certaiidy  not  in  Cooper 
whose  name  was  used  fur  the  puipose  mentioned  by  all  the 
parties  to  the  transaction.  Neither  was  he  a  citizen  of  the 
United  States. 

I  refer  to   pages  (il  and   ()2  of  the  Uiuted   States  argument, 
to  show   what  I  think  is  on  the  whole  well  put  in  connection 
with  the  principle  ncmu  potent  exiierc,  putrldin,  as  follows  : — 
"Now,  until  the  joint  resolution  of  (Congress  ot   the   United 

40  "  States,  in  liS68,  declaring  the  right  of  expatriation,  which  was 
"shortly  followed  by  the  treaty  between  Creat  Britain  and  the 
"  United  States  of  lh70,  providing  for  naturalization,  it  was  held 
"  by  both  (Jreat  P>ritain  and  the  Uiuted  States  that  a  citizen 
"  could  not  throw  oti' his  original  allegiance. 

"  In  the  United  States,  the  inclination  of  the  judiciarj'  has  been 
"  to  follow  the  rule  of  the  Knglish  common  law,  ami  to  hold  that 
"  neither  a  native  or  naturalized  citizen  can  throw  oH'  bis 
"  allegiance  withi;ut  the  consent  of  Ins  State.  (Kent's  Com., 
"241);  Story  on  Constitution  III,  3,  Note   I;  Wharton's  State 

•id  "Trials  G54  ;  Opinions  of  Attorney  Generals,  Vol.  VIII,  157.) 
"  The  doctrine  of  original  allegiance  remains  the  same  in  both 
"  countrie.s  in  every  respect  except  in  the  case  of  actual  and 
"  formal  naturalization. 

Lord  Chief  Justice'Cockburn,  in  his  "  Nationality  "  (pages 
214-21")),  after  a  fidl  review  of  the  whole  subject,  says :  That 
'  under  a  sound  system  of  international  law  such  a  thing  as  a 
"double  nationality  should  not  be  suttered  to  exist ; "  and  that 
nothing  short  of  actual  naturalization  carried  out  by  solemn 
and    formal  act  as    the    law   of    the    particular    country    may 

60  require  will  have  the  ati'ect  to  divest  the  subject  of  his  former 
allegiance  ;  "  that  renunciation  of  former  allegiance  or  rights 
"  will  not  sutHce  to  give  the  character  of  citizen  or  subject  of  the 
"  country  of  adoption,  which  can  be  ac(|uired  only  by  the  act  of 
"naturalization  itself;  and  that  the  effect  of  the  naturalization 
"  is  prospective  only  and  has  no  retroactive  operation." 


I 


;  '•:;' 


1 1 


l|!rqir^r' 


i 


i 


40S 

(Sir  v^'harlt's  H.  Tiipper's  Arj^umont.) 

I  liavi'  a  furtlicr  ict'cri'iicc!  to  Cock  hum  on  tliis  point  wlicvc 
lie  (Iciils  with  till'  law  of  Kii^'liind  iiinl  tin-  l^niti'ij  Stuffs,  (p  O;}, 
"  Cocklmrn  on  Niitioniility, "  Ktijjiisli  mlition  IMH!).)  "  it  varies 
"in  this  ri'spfct  witli  tip'  laws  of  ail  oivilizi'il  nations;  tho  law 
''  of  Knylanii  foliowi-il  ns  will  presently  l>e  atteinpteil  to  lie  shown 
"  tiy  that  in  tlie  United  States,  asserts  as  an  uni|Uestionalil(^  rule, 
10  "  that  no  Britisli  suhject  can  pnt  off  his  country  or  the  natnral 
"  alle^'iance  he  owes  to  the  sovereitjn,  even  with  the  assent  of 
"  the  soverei;,'!!.  In  short,  that  natural  allegiance  cannot  lie  (jot 
"  rid  of  liy  anything,'  else  than  an  Act  of  the  Ijeifishitnri',  of  which 
"  it  is  lii'iieved  no  instance  has  occurrt'd. "  He  cites  the  opiniotis 
of  such  ;,'reat  le;,'al  authorities  as  .ludjje  Stoiy,  Mr.  ('aieliCiisli 


HI''  am 


I   Ch 


Kent.      I'resiileiit  t'leveland  in   his  uiessa-'e 


to  Coiiiires.s  in  ISS.'i,  deals  with  the  suhject  freciuently  averted 
to  hy  I'residents  of  the  United  States  in  coiuiection  with  the 
luisatisfnctory  conditiin  of  the  United  States  laws  on  that 
20  Milijcct — anil  the  fact  is  at  present,  that,  otie  enjoyinj,'  the  ri;,dits 
of  a  citizen  and  heiiu,'  a  citizen  of  ii  State  may  not  he  a  citizen 
of  the  United  States,  and  inarkin;^  the  distinction  so  clearly  luiil 
pointedly   as  to   apply  to   the   case  I  am    dealinj;  with.      1   shall 


i;ivc  your  honors  that  reference  later  on. 
There  is  an  interestini'  reference  in  tl 


le  case  o 


f  M 


anenstern 


v.  L^-mnn    in  the    Uniteil   States   Reports.     The  facts  are   lirietly 
put  in  the  jiid;rment.     It  is  said  : 

'The    pliiintitl's   in     error    are  all    citizens    of    Switzerland, 
"  the  deceased  was  also  a  citizen  of  that  country  and  removed  to 
HO  "  Virjjinia,  where  he  lived  and  acijuiied  a  property  to  which  this 
controversy   r'  lates  and   where  he  died.     The  validity   of  his 
"  ■         i/.'d 


e  is  in  (piestion.     There  is  no  pioof  that  he  denational 


titl 

himself  or  ceased  to  he  iicitizen  or  suliject  of  Switzerland.     Hi 


riL'iiml  citizen.shii)  is  therefore  iiresumed   to  have  1 


I n    cd'i- 


tinued.      AccordiiiL;  to  the  record,  his  doiiiieil  not  his  cilizensh.i/ 
was  chan;,'ed.     'J"he  testimony  of  the  heirship  of  the  plaintilf's 
in  error  is  entirely  satisfactory,  etc." 
I  point    to  that  as    an  aiithoritv  in    the   line  of  the  others 


mentioned,  which  distin<rnishes  lietwi 


the  case  of  donucil  ain 


40   citizenship,   and    I   sulmiit  that  in   tliis  case  W(!  are  dealinif  not 


ith  ill 


micd  wdieii  the  fpiestion  ot  ownership  comes  up, 


hut 


are  dealing;  with  United  States  citizerislii|i.  I'residi'Ut  (Cleveland, 
I  said,  drew  attiMitinti  to  the  distinction  lietween  a  citizen  nf  a 
State  of  the  Union  and  a  citizen  of  the  United  States.  I  lielieve 
thi.s  was  Ids  tir.sfc  annual  messa;je,  and  no  douht  my  learned 
friend,  tin;  ieadin;.;  counsel  for  the  United  States,  ma\'  have 
advised  in  connection  with  this  interestinir  suhject  when  he  was 
one  of  the    advisiirs  of   I'resiik'iit  Cleveland   that  yi'ar.     I  reail 


his  f 


list  annual  mesvai'e  ni 


1  ss- 


follows  :  — 


The  liLrhts  which  sprinij  from  domicile  in  the  United  States, 
eciallv    when    coupled    with    a.  decliiration   of    intention  to 


especially  when  coii| 
"  hecome  a  citizen,  are  worthy  of  deiinition  hy  statute.  The 
'•  stran;jer  coniiii;,' hitliei'  with  intent  to  rpiiiain,  estaMishini,'  his 
"  residence  in  our  midst,  contrihutiny;  to  the  L;cneral  welfare,  and 
'  hy  his  voluntary  act  declarini,'  his  piirjiosc  to  as.sume  the  responsi- 
"  hilities  of  citizenship,  therehy  gains  an  inchoate  status  which 
"  legislation  may  properly  define.  The  laws  of  certain  States  and 
"  'I'l'iritories  admit  a  domiciled  alien  to  the  local  franchise,  con- 
"  ferrinj,'  on  him  the  rights  of  citizenship  to  a  degree  wliieh  places 
flO  "  him  in  the  anomalous  position  of  heitig  a  citizen  of  a  State  and 
"  yet  not  of  the  United  States,  within  the  purview  of  Federal  and 
'•  Inlei  national  law  .  It  is  important  within  the  scope  of  national 
'■  legislation  to  define  this  i-iglit  of  alien  domicile  as  distinguished 
'■  from  Keijeial  naturalization." 

One  of  my  learned  friends  wd-o  preceded   me  dealt  with  the 


409 

(Sir  Cliarlei  11.  Tiippor's  Arf^iiinont.) 

qiievtion  of  tlw'so  lu-in^,'  national  claims,  aivl  [  ilo  not  proposo  to 
worry  your  Honors  witli  any  ii'n^^thy  rcfcn^nco  to  tliat.  1  desiro, 
liowcvcr,  to  add  t<i  what  has  i)i>(>n  said  liy  refcrrin;^  to  tho  two 
trnatips,  thn  Treaty  of  1HJ)2  and  tlio  (!hiin»s  Coinniission,  for  the 
|)iMposc  of  calling'  attrntion  to  Arficlo  M  in  the  Treaty  of  1H1)2, 
and  Articii'  1  in  tho  <'l,iinis  Conniiission. 

10         Art ich' ><  is  as  follows  : — 

"  The  hii;h  contractitiLf  parties  haviii;,'  found  tht-uist'lves  unable 
"  to  aLjriM-  upon  a  rcfcrcnci'  which  shall  include  the  (pit^stion  of 
"the  liahilify  of  each  for  thr  injuries  alleged  to  havt;  heen  sus- 
"  tainecj  by  the  otlwr,  or  by -its  citizens,  in  connection  with  the 
"claims  presented  ami  iirj^iMl  by  it;  and,  bein<j  solicitous  that  this 
"subordinate  (juestion  should  not  interrupt  or  lon;,'er  ilelay  the 
"  submission  and  diiterniination  of  the  main  ([uestioTis,  do  ajfree 
"that  either  may  submit  to  the  arbitrators  any  ([uestion  of  fact 
"involved  in  •<aid  claim-i  and  ask  for  a  tiiidinr;  thereon,  the  ([iies- 

20  "  tion  of  the  liability  ''  either  jjovernment  upon  the  facts  found 
"to  be  the  subject  of  further  nei,'otiation." 

An<l  Article  1  of  the  Claims  Convention  is  as  follows:  — 
"  Th((  hii,'h  contractinj,'  parties  a^jree  that  all  claims  on  account 
"of  injuries  sustained  by  jiersons  in  whose  behalf  (beat  Britain 
"  ia  entitled  to  claim  compensation  from  the  United  States,  and 
"arisinc;  by  virtue  of  the  treaty  aforesaid,  th(;  award  and  the 
"  tindin;,'s  of  the  saiil  tribunal  of  arbitration,  as  also  the  additional 
"clninm  specitieil  in  the  fifth  para^jraph  of  the  prcambli!  hereto, 
"sliall  be  referred  t(<  two  commissioners,  one  of  whom  shall   be 

:i(l  "appointed  by  Her  Britannic  Majesty,  and  the  other  \>y  tlio 
"  Pi-esident  of  the  I'nited  States,  and  each  of  whom  shall  be 
"  learned  in  law." 

Take  Mr.  Blod;,'ett's  arrfuinent,  V^)luuu■  !)  of  the  Paris  series, 
paije  220,  wheri^  he  puts  the  construction  u])on  Ailiclt!  <S  of  the 
Treaty  of  1802,  showin;,'  that  the  claims  are  national,  because,  a.s 
he  says,  '  they  unL;ht  be  for  all  on  whose  behalf  the  British 
"fiovernment  can  i-laim  whether  on  the  part  of  siilijects  of  the 
"  Queen  or  on  tlu;  part  of  the  (^*ueeu  herself."  In  addition  to 
this  lanj;uaj;e  of  .Mr.  Blod^'ett,  one  of  t'le  counsel  for  the   United 

40  States  at  Paris,  let  tis  take  from  the  lips  of  my  learned  friend, 
Mr.  Dickinson,  when  the  case  was  opeiu'cl  at  Victoria,  his  inter- 
pretation of  this  treaty,  atid  I  think  he  accurately  tjives  the 
construction  of  the  Claims  t'onvention  at  that  time.  He  said: — 
"  These  claims  are  not  presented  separately.  A  claim  is  made 
"  by  Her  Majesty's  Clovernment  upon  the  Government  of  the 
'■  United  States  for  a  sum  of  money  claimed  to  be  due  for  damaijes 
'resulting'  to  British  subjects  by  certain  uidawful  seizures  made 
"  by  the  (lovernment  of  tht;  United  States.  It  is  true  that  in 
"  the  Convention  the  evidence,  to  a  certain  extent  which  i,'ots  to 

oO  ''  make  up  that  claim,  is  pointed  oi:t  by  a  certain  schedule  namini» 
"the  ships  beyond  which,  an<l  beyond  the  items  named  in  the 
"  schedule — or  the  ile^cription  of  the  ship-  named  in  the  schedule 
"  — Her  Majesty's  (Jovernnient  cannot  '^o,  before  the  Commission. 
"That  was  the  object  of  the  list  of  ships  appended  to  the  Con- 
"  vrntion  and  the  list  of  claims  pointinj;;  out  the  evidence  tending 
"  to  support  the  one  claim  of  Her  Majesty's  Government  for  a 
"sum  of  nionej-  ajjainst  the  United  States.  It  would  be  against 
"  the  theory  of  thi.s  (Convention  to  hold  that  the  Government  of 
"  tli(>  United  States  should  close  its  case  in  defence,  in  this  assess- 

Gl)  "  nient  of  <lamages,  in  Victoria.  The  theory  of  the  Convention,  as 
"tiiially  agreed  npon  is,  that  the  evidence  to  establish  and  verify 
"the  claim  of  Great  Britain  should  be  put  in  at  Victoria,  in 
"  British  (.'ohnnbia." 

And  at  page  10  of  the  Record  my  learned  friend,  Mr.  Dickin- 
son, states  : — 


II  I, 


■i 


.1!   il 


t 


i 

'. 

t 

,  I 


■l(  • 


J' 


'   fj 


ii-' 


410 

(Sir  Charles   H.  Tapper's  Arfjiiinent.) 

"There  is  no  iliffieiiity  in  my  learned  friends,  representinj,' 
"  Her  Majesty,  ptittin;;  in  their  entire  case,  i'or  it  is  a  mere  assess- 
"  ment  of  damaj^es  in  the  ordinmy  '.vay." 

On  the  line  of  tii&t  interpretation  let  me  read  from  Wharton, 
page  727,  volume  2  : — 

"  Thus,  while  all  claims  uiij;ed  liy  one  nation  upon  anothei  are 

10  "technically  speakinjjf,  'national',  it  is  convenient  to  use  collo- 
"  nuialJv  the  words  '  national  ',  and  '  individual'  as  distiiiy;uishinLr 
"claims  founded  upon  injury  to  the  whole  people  from  tliose 
"foiuided  upon  injury  to  particular  citizens." 

It  was  clearl)-  in  the  mind  of  uiy  learned  friend  Mr  Dickinson 
at  Victoria,  that  thest  claims  are  technicalU',  if  j-ou  like,  but 
strictly  speiikin^  aiul  in  the  sense  of  that  Convention,  nothiiiir 
else  thiiii  tiiitional  claims,  and  no  lanifuaije  has  been  use<l  in  the 
treaty  to  ehauije,  (liy  tlu'  consent  of  both  parties,  which  woidd 
be  necessary,)  their  national  character;  for  otheiwise   we  would 

£0  have  a  court  of  claims  estab!ish>^d,  the  Treaty  would  refer  to 
claims  of  individuals  oidy  and  woidd  jjjive  the  claimants  a  status 
before  the  Claims  Commission,  and  wotdd  re(|uire  them  to  put 
them''elves  into  a  certain  position  to  come  within  the  treaty  as 
iiidivi<lual  claimants.  Of  course  in  that,  case  they  would  have 
the  rij^ht  to  bo  represented  before  this  Claims  Commission,  lint 
it  never  has  been  disputed,  from  the  moment  that  it  was  sui,'- 
geste<l  by  your  Honors  at  Mritish  Colundiia  that  no  private  party 
has  any  loriin  utiiuili  in  this  court. 

This  is  an  international  court.      Your  honors  are  tletermiiiiiij; 

;iO  national  claims,  which  are  to  be  presenteil  liy  and  on  behalf  of 
the  (Joverimient  only  ;  and  the  individual  claims  are  referred  to 
collo(iuially,  as  tlu'  aiithotities  citeil  by  Wharton  |iut  it,  for  the 
purpose  of  obvious  convenience.  That  the  nationality  of  these 
ships  was  Ibitish  I  think  there  can  be  no  manner  of  doubt.  I 
suiimit,  that  all  that  it  is  necessary  for  us  to  jirove  in  coiuieetion 
with  the  ownership  of  these  shi|)s — that  any  other  ownership  is 
immaterial — is  national  ownership  and  not  private  ownership, 
which  enters  into  the  tiuestion  of  the  seizure,  le;;al  or  illeeaj,  on 
the  hijj;h  seas  in  a  time  of  peace. 

■  40  In   the  iliplomatic  correspondence,  and  it  was   leniftby,   ex- 

tendiiiij;  o^-er  years',  conducted,  on  the  side  of  Ci'eat  Britain  and  on 
the  side  of  the  United  States,  by  men  of  si;,'nal  ability  and  j;reat 
diplomatic  expeiience,  thtue  was  no  qiU'stion  imt  tiiat  they  were 
dealine;  with  ships  whose  natiiiiuility  was  HritiNh.  I  almost 
hesitate  to  im|iose  on  the  patience  for  wiiich  your  Honors  have 
been  so  remaikable  duiitii^  tliis  heariiiij;  by  readine-  much  of  that 
corresiionileiice  ;  liut  1  refer,  tlioULih  not  at  leiiiith,  to  the 
authorities  under  that  head.  Kor  instance,  in  volume  .')  the 
correspon<lence    is    set    forth    between    Mr.    Hayard    and     iiOrd 

50  Salisbury  at  pa^jes  24ti,  247,  24!)  and  257  ;  Appendix  to  the  ease 
of  (ireat  Hritain,  volmue  5.  pa<,'e  ;}()0  ;  the  British  case,  volume 
4,  yiHiH'  5  ;  the  United  States  case,  volume  2,  paf^e  .'501  ;  the 
United  States  case,  volinnt!  2,  pai^es  UOl  and  ;is:j ;  volume  1, 
Appendix  to  the  United  .States  case,  paf;es  «,'{,  IDS  and  10!) ; 
volume  7  of  the  United  States  case,  pai,'e  834  ;  and  the  table  of 
vessids  seized  in  liehrini;  Sea,  volume  2,  pa^je  1()!S  of  the  United 
Status  case;  also,  imij)  No.  5,  Uiuted  States  case,  volume  S; 
Unite<l  States  case  table,  jiajfcs  o!)!),  5!)1  ;  chart  No.  5,  United 
States  case,  volume  li,  paij[e  4!).'{ ;  the  United  States  counter  case, 

GO  volume  7,  pai,'e  .S.'U  :  volume  12,  pages  11,  12,  34,  .S.'),  107.  As  I 
saj',  these  contain  reports  of  .seiztnes  of  British  vessels,  the 
record  of  conilennuition  of  British  vessels,  ([uesiions  asked  about 
the  seizuies  of  these  identical  vessels  as  British  vessels,  answers 
given  as  to  the  treatment  of  these  British  vessels ;  reports  to 


411 

(Sir  Clmrli's  H.  Tupper's  Ar<;uiiient.) 

l^onsjiass  ill  reiijard  to  tliesii  vessels  as  British  vessels  anil  the 
uliole  |)ositi()n  of  the  ITnited  States,  ii<i;lit  or  wron<(,  starts  upon 
till'  priinarj'  fact  that  British  vessels  and  no  otliers  wery  con- 
cimiukI. 

The  fiiuiin^s  of  fact  I  iiave  referred  to.  The\'  followed  after 
the  argument  at  Paris,  and  I  say  that  no  (luestioii  of  national 
ownership  was  reserveti,  (anil  a  i|uestion  of  private  ownership 
10  only  was  reserved,)  for  what  it  was  worth. 

Mr.  (ireshani,  Secretary  of  State*,  in  reportin<^  to  the  Speaker 
in  House  of  ilepresentiitives,  .'):tril  Congress,  Unl  session,  ivxecu- 
tive  Document  132,  had  the  same  idea,  as  an  examination  of  his 
report  will  slu)w.  lleferiiiii;  to  Article  N  of  the  C'unvention  of 
JMI-J.  he  says  : — 

"  Under    this    article    the    arliitratois    unanimously     found 

"iliat   a    nunilier    of    British    sealini;    vessels    were    seized    in 

'■  I'lelirinjj   Sea   or   warned  therefrom  liy   cruisers  of  the   Tnited 

"  States  on  the   days  and   at  tlu^    places   in    the   special   tiiidin>;s 

20  ■  iiientioneil,  leavinj;  foi-  future  determination  tlie  ipiestions  as  to 

the  value    of    the    said    vessels  or    thi'ir   contents   or   either    of 

■  them,  ;inil  the  i|Hestion  as  to  wliether  the  vessels  mentioned  in 
"  the  schedide  of  the  'ISritish  case  or  any  of  tliem  were  whnlly 
'  or  in  part  the  tictual  proporty  of  citizens  of  the  United  States," 
ilrawinj;  aijain,  as  I  sulimit,  the  distinction  between  national 
ownership  and  private  ownership. 

Let  ine  refer  a^jain  to  the  laniiuatie  of  niy  learned  friend  who 

is  condiietino;    the   cise    hefore    this    har   foi     the    United    States 

;,'overiuni'nt.     Speakiiif,'  at   Victoria   the   learned  coinisel  said  : — 

.'iO         "  That    tiilmnal    of    arhitration    settled    the   ipiestion  of    the 

■  seizure,  so  far  as  British  vessels  were  coneerned,  as  illeo;al. 
'  When  they  .settl'  (luit  she  was  seized  heyond  the  le;,'a!  distance 
"fiom  land  they  have  settled  that  the  condemnation  must  there- 
'■  fore  have  heen  ille^ral.  Those  i|Uestions  are  adjusted,  idhI,  if 
"flic  in  (I  liiifish  irnxi'l,  llic;/  liiiir  sdllcil  tlmi  the  xolr  iincntioH 
"  irnitiiiii));/  is  i(.s  /o  llif  ditmuiiv  tlnif  (tccnwd  to  tlic  oirntr." 

1  do  not  intend,  if  1  can  possilily  avoid  it.  to  say  one  word 
other  than  what  may  he  ahsohitely  necessary,  so  an.Kious  am  1 
to  close  111)-  ary;ument  as  soon  as  possilile  ;  hut,   I    must  mention 

40  in  this  cotniection  the  release  in  lMS(i  of  the  jhitish  vessels  when 
tlie  United  States  (iovertiment  treated  these  vessels  as  British 
vessels.  If  tin  present  contention  of  my  leannd  friends  liail 
ever  entered  into  their  minds  at  that  time,  it  is  impossible  to 
I  elieve  that  these  oi'ders  would  have  j,'one  forwa'-d  at  the  reqm'st 
of  (lieat  liritain  ;  ai\d  so  all  the  tran--actii)ns  as  to  the  hoiidin;,' 
of  these  vessels  related  to  the  hondin;,'  of  these  identical  ve-sels 
in  the  character  of  liritish  vessels.  References  to  the  release 
are  in  volume  .'i,  pai,'es  o7  and  nH,  Fehnnirv  .Srd,  1!S87;  tho 
liondini;  of  British  vessels  volume  j,  pajj^es  !)('),  24.S,      1   shall   not 

')0  read  them,  hut  1  ask  your  Honors  to  he  ijood  eiiouoh  to  take  a 
Mote,  In  the  British  arLjument,  pai;es  )•  and  7,  where,  for 
instance,  the  seiziiio  otHcer  wrote  front  Sitka,  Alaska,  tin-  Mrd  of 
Septemher,  188(1,  to  the  Secretary  of  the  Treasury  repoitinif  the 
seizures,  and,  on  the  2()th  of  Januarv,  1887,  the  United  States 
(lovermneiit,  heino  in  possession  of  all  the  facts,  caused  tin-  fol- 
lowinjj;  tclei^rant  to  he  sent  to  the  .Indite  and  District  Attorney 
at  Sitka  : — "I  am  diiected  by  the  President  to  instrur  you  to 
"  discontiinie  all  further  proci'eiline;s  in  the  matter  of  the  seizure 

(10  "of  the  liritish  vessels  '  Uaroluiui,'  '  Dnward,'  and  '  Thorton,' '" 
and  so  on. 

There  is  an  interesting;  case  in  ('ranch's  repoi  ts  on  this  point, 
(that  of  the  schooner  "(tooil  Catherine"  v.  United  States,  7 
I 'ranch,  .'Ui)),  where  the  Supreme  Uotnt  of  the  United  States 
held  suh.stanlially  what  I  have  siibmitteil,  that  althouglt  a  vessel 


:i 


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11.  Jl: 


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412 

'Sir  Charles  H.  Tiipper's  Argiunent.) 

were  privately  owned  iti  the  Uniteii  States,  she  still  might  Lo 
British  in  nationality.  This  was  a  case  where  a  vessel  of  the 
United  States  was  captuied,  condemned,  sold  and  purchased  hv 
her  former  master,  a  citizen  of  the  United  States,  who  obtained 
a  Danish  hurghers  hrief,  and  who  cleared  out  of  a  port  of  the 
United    States  as   a  Dane.       It  was  decided    by  the    Supreme 

10  Court  of  the  United  States  that  that  vessel  was  a  foreit^n  vessel, 
within  the  .5th  section  of  the  Act  of  the  !)th  of  January,  LSOS, 
snpplementarj-  to  the  Einbar;,'o  Act,  although  really  owned  by  a 
citizen  of  the  United  States.  That  Act,  or  the  part  of  it  in 
point,  is  set  out  in  the  case  :—"  If  any  foreign  ship  or  vessel 
"shall  take  on  board  any  specie,  or  any  goods,  wares  or  merchan- 
"  dise,  other  than  the  provisions  and  sea-stores  necessary  for  the 
"  voyage,  such  ship  or  vessel,  and  the  speeit!  and  cargo  on  board, 
"  shall  be  wholly  forfeited."  She  was  carrying  this  foreign 
registry,  and  sailing  under  that  flag,  although  .she  was  ownnl  in 

20  the  United  State.s.  Her  nntionality  was  considered  by  the 
United  States  Supreme  Court  to  be  that  of  her  registry  and  not 
that  of  her  owner. 

Mr.  Dickinson: — Where  was  tlie  owner  domiciled  in  that 
case  i' 

Sir  Charles  H.  Tu]ir  r  : — Well,  the  report  is  so  short,  I  am 
afraid  it  is  imjiossible  to  answer  the(|Uestion  my  learned  friend 
so  properly  puts.     It  simply  saj-s  here: 

"  She  was  originally  an  Amei'ican  vessel,  but  had  been 
"  ca])tured  and  condemned  as   a   pi-ize,  and    purchased  by  Hurst, 

30  '  her  former  master,  an  American  citizen.  She  took  on  board 
"goods  other  than  the  provisii)?is  and  sea-stores  necessary  for  the 
"  voyage,  MUil  cleaied  out  as  a  Dane." 

\Ve  submit  that  we  obtaineil  at  I'aris  all  the  findings  neees- 
.sary,  outside  of  the  question  of  actual  damage,  for  the  judgment 
of  your  Honors.  The  United  States  will  argue,  and  will  have 
the  right  to  argue,  that  this  question  of  owneiship  is  vital;  but 
when  one  eonsiilers  the  nature  of  the  act,  and  the  claim  under 
which  thest'  ships  were  taketi,  title  becomes  to  the  minds  of 
lawyers  absolutely    immaterial.     The   United   States  admittedly 

40  stan<l  in  the  position  of  wrong  doers.  They  did  what  they  had 
no  right  to  do,  and  no  justification  for  doing,  to  these  ships  fiying 
the  Ih  itish  flag,  and  as  I  have  subndtted  cnjoj'ing  the  benefits 
of  liiiti>h  nationality  on  the  high  seas.  They  ilid  not  take 
thos(!  ships  as  propeity  of  the  United  States,  or  under  a  claim  of 
title,  or  under  a  color  of  title.  They  took  them  on  entirelj' 
ditl'ereiit  grounds,  which  have  been  held  unjustifiable;  and  there- 
fore, as  against  a  wi'ong  doer,  we  could  refer  to  such  cases  as 
Sullon  V.  linck,  which  was  one  of  a  seizure  of  a  ship  with(jiit 
color  of  title,   wheie   the  ])ossession   was  sutHcient  against   the 

oO  wrong  doet.  This  is  reporteil  in  2  Taunton,  .'{O.S.  Also  we 
might  r(d"er  to  the  well  known  rule  in  c(jiinection  with  actions 
of  tiover  and  tresjiass.  The  point  1  ha  "  to  niak('  is  that  there 
is  ill  this  Reconl  a  similarity  in  the  position  before  3'our  Honors, 
as  in  that  case  between  piivate  parties;  that  here  there  was  im 
such  (piestion  originally  raised,  and  that  it  is  too  late  in  any 
event  to  raise  it  now  with  eti'ect.  True,  they  can  rais(\  it,  but 
your  Honors'  minds  must  revert  to  the  (U'igituil  seizure  and  to 
the  ^'rounds  upun  which  the  seizure  was  nnide  ;  and  in  coiuiectiun 
with  that  1  suliuiit  that  the   I'nited  States  occupy  in  the  eye  of 

(jO  the  law  at  this  time  the  position  of  mere  wrong  doers.  Before 
leaving  that  ]ioint  I  would  like  to  refer  to  v(dume  o,  pages 
()4.'{,  1)44,  where  Mr.  Blain(,'  makes  a  reference  to  this  subject  in 
December,  I (SDO,  after  years  of  discussion  of  all  the  phases  of  the 
ipii'stion. 


413 

(Sir  Cliarles   H.  Tupper's  Argument.) 

"  The  United  States  desires  only  such  control  over  the  limited 
"extent  of  the  waters  in  Bohring's  Sea,  t'or  a  part  of  each  j-ear, 
"  as  will  be  sufficient  to  insure  the  protection  of  the  fur  seal 
"fisheries,  already  injured,  possibly,  to  an  irreparable  extent  by 
"  the  intrusion  of  Canadian  vessels,  sailing  with  the  encourage- 
"  merit  of  Great  Britain  and  protected  by  lier  Hag.     The  gravest 

10  "  wrong  is  conunitted  when,  (as  in  many  instances  is  the  case), 
"  American  citizens,  refusing  obedience  to  the  laws  of  their  own 
"  country,  having  gone  into  partnership  with  the  British  flag  and 
"  engagetl  in  the  destruction  of  the  seal  fisheries  wliich  belonged 
"  to  the  United  States.  So  general,  so  notorious  and  so  sliame- 
"  lessly  avowed  has  this  practice  become,  that  last  season, 
"  according  to  the  report  of  tlie  American  Consul  at  Victoria, 
"when  the  intruders  a.ssembled  at  Ounalaska  on  the  4th  July, 
'■  previous  to  entering  Behring's  Sea,  the  (hij-  was  celebrated  in  a 
"patriotic  and  spirited  manner  I)}'  the  American  citizens,  who,  at 

20  "the  time,  were  protected  by  tiii^  IJii'ish  flag  in  their  violation 
"  ot  the  laws  of  their  own  country.'' 

And  I  say  that  where  a  statesman  of  the  standing  of  Mr. 
Blaine  at  that  stage  of  the  discussion,  having  heard  of  all  those 
rumors  in  1800,  hearing  all  that  had  been  said  as  to  the  abuse  of 
the  flag,  as  to  the  misconduct  of  the  American  citizens  and  as 
to  their  shelter  under  the  British  flag  to  tiefy  the  laws  of  the 
Union,  when  he  himself  in  a  lai'ge  part,  as  he  undoubtedly  did, 
drafted  the  treaty  afterwards  ratified,  and  known  as  the  treaty 
of    lX!t2,   without  0   single   leference  to  the  point  now   pressed 

:{0  upon  your  Honors'  attention  in  connectio!i  with  those  seizures  ; 
and  when  under  tlie  supervision  of  Mr.  Blaine,  and  again  under 
the  supervision  of  his  successor,  Mr.  Foster,  who  became  the 
agent  of  the  United  States,  their  case  at  Paris  was  |)resented 
without  a  single  suggestion  or  single  reference  in  the  case  to  this 
point,  it  is  clear,  1  venture  to  argue,  that  these  able  and  astute 
statesmen  did  not  think  there  could  be  i  question  as  to  the 
piotection  of  the  flag. 

And  no  matter  how  annoying  it  niig  it  be  to  the  United 
States,  and  how  much  these  facts  might  apj)eai  lo  the  arbitrator.s 

40  in  other  coiuiections,  they  could  not  att'ect  the  question  of  right 
or  wrong  as  regards  the  seizure. 

That  no  such  circumstances  as  those  would  justify  the  action 
taken  relative  to  vessels  uu  the  high  seas  flying  the  British  flag, 
1  thiid<  I  am  borne  out  to  some  I'Xtent  by  a  reference  made  to  Mr. 
Phelps  l)efor(!  the  tribunal  at  i'aris,  vohnne  I.'),  page  22;}.  'I'here 
is  a  reference  to  this  subject  of  ownership.  The  president  of 
the  tribunal  seems  to  have  asked  .Mr.  Phelps  a  straight  question 
and  to  have  received  a  straight  answer.  Slv.  Phelps  read  from 
the    counter   case    on    the  subject  of    ownership,  and   it  is  not 

;")(,■  peiluips  irrtjlevant  for  me  to  call  your  Honors'  attentiotr  to  the 
curious  manner  in  which  that  subject  was  first  mentioned  at 
Palis.  Thi^  ease  of  the  Uiuted  States  luid  been  presented,  as  I 
have  already  said,  without  any  ground  being  suggested  of  this 
nature  in  connection  with  the  seizures,  but  this  liad  occurred  : 
the  llussian  correspondence,  which  went  far  to  make  the 
strongest  ground  for  the  Unitei!  States  contention  as  regards 
their  jurisdictional  rights  over  the  waters  of  Behring  Sea,  was 
discovered  to  have  been  largely  forged  fr'oin  the  original  Russian 
docuruents,    to   have    been    intet]iolated   by  an  employee  of  the 

(10  (iovernment,  a  translator,  and,  of  eoiu'se,  to  the  diseond'orttire  of 
the  I'liited  States  ;  these  facts  appeai'ing,  there  was  alisent  what 
would  have  been  a  very  ftirmidaiiie  basis  for'  their  contention.  It 
was  after  that  prop  had  gone  that  the  suggestion  as  to  owner- 
sldp  first  ajipeared.      It  came  under  the  heatling  of  "damages," 


414 

(Sir  Charles  H.  Tapper's  Arnriiiuent.) 

if  my  inemorj'  serves  me  rifrlit,  and  it  was  wliile  reading  from 
tlie  counter  case  tliat  Mr.  Phelps  was  iiiteirupted  hy  the  Presi- 
dent— the  passage  is  familiar  to  your  Honors  and  I  shall  not 
repeat  it — where  he  referred  to  Bo'jcowitz  and  Bechtel  and  all 
those  various  individuals  who  were  saiii  to  he  citizens  of  the 
United  States,  "You  argue  that,"  said  the  President,  "only  as  a 

10  moral  consideration  ;  it  does  not  ch.mge  the  legal  point  of  view," 
and  Mr.  Phelps  atiswered  :  "It  does  not  change  the  legal  point 
"of  view  as  to  the  general  propositions  that  have  heen  advanced, 
"  but  it  does,  I  respectfully  suhndt,  enter  into  tiie  general  char- 
"  acter  of  this  .Act  when  it  is  weighed  as  a  part  of  tlie  freedom  of 
"  the  sea."  There  has  been  a  construction  put  upon  the  language 
wdiere  one  is  the  actual  owner,  or  part  owner,  and  is,  at  the  same 
time,  aciiizeii  of  the  United  States. 

Mv  learned  friends  in  their  argument  refer  to  the  case  of  the 
I'nited  States  vs.  Hrune,  2  Wall.  Jr.   264,  2C7,  and   I  will  refer 

20  to  tlii't  case  as  well,  in  support  of  the  proposition  that  tliere  is  a 
distinction  between  national  ownership  and  private  ownership. 
This  is  a  happj-  citation  for  us,  it  seems  to  me,  and  is  directly  in 
point  in  C(jnneetioii  with  this  phase  of  the  case.  The  head  note 
is  as  follows  : — 

'■  On  an  indictment  under  a  law  which  makes  criminal 
"certain  acts  done  on  hoard  a  vessel  owned  in  whole  or  in  part 
"  Ijy  a  citizen  of  the  United  States,  an  American  registry  is  not 
"even  pniiKi  facie  evidence  of  such  ovvnershi|) ;  though  such 
"  registr}'  is  made  by  the  Goverinnent  only   on   the  pre-supposi- 

oO  "  tion  of  such  ownership,  and  after  oa'h  by  one  or  more  persons 
"of  such  ownership  by  ihem.  Nor  is  general  reputation  of  such 
"  ownership  any  evidence  of  it.  Ownership  in  such  a  case  is  a 
"fact  to  be  proved  as  other  facts." 

The  case  was  deciiled  in  1S52.  Ju(ige  Grier  says  : — 
"The  very  gist  of  this  iiriictment  is  the  owrnMship  by  a 
"citizen  or  citizens  of  the  (Jniteil  States.  The  act  of  Congress 
"  makes  it  so.  The  indictment  properly  alleges  it,  and  it  must 
"of  course  be  proved.  The  registry,  though  it  may  perhaps  be 
"evidence  of  ownetship  for  some  ])urposes,  is  not  even  ^)/'(ma 

40  facie  evidence  of  it  in  a  criudnal  prosecution  like  this;  nor 
"  would  connnon  reputation  be.  You  must  sh(!W  the  fact  of 
"  owi'er.ship,  as  you  generally  shew  other  facts;  proving  it  by 
"  witnesses  whom  the'  defendant  may  cross-e.Nandne.  The  man, 
"  who  swears  that  he  owns  the  vessel,  may  have  .sworn  an 
"  untruth,  and  she  nuiy  not  be  owned  either  '  wdiolly  or  in  part 
'  iiy  anj-  citizen  of  the  I'tdted  States'  at  all.  And  even  if  the 
"  persons  set  foi  th  in  the  icgistiy  as  owners,  were  owners  at  the 
"  (lati!  of  it,  their  o.vnership  may  in  point  of  fact  have  ceased 
"  before  the  alleged  piracy,  though  the  proper  entry  or  uo  entry 

50   "  nuiy  have  bee!i  made  at  the  custom  house. 

"If  the  act  hail  ordained  that  the  detention,  etc.,  on  any 
"  vessel  '  donunated  and  <leeined  a  vessel  of  the  United  States,' 
"should  be  ])iracj',  the  case  might  bi;  dill'erent.  The  register, 
"  wlu'ther  (granted  on  a  true  or  false  oath,  settles  that.  That  is 
"  the  distinction  between  the  case  of  national  ownership  of  a 
"  vessel,  the  national  character  of  a  vessel,  and  private  o'.vner- 
"  ,s])ip.  But  the  act  re(iiiires  that  the  vessel  be  owned  by  a 
"citizen  or  citizens  of  the  United  States,  a  ditlerent  thing  and  a 
"  fact,  of  which   the  oath  before  the  collector  of  customs  is  no 

(lO  "  more  evidence  ni  a  case  like  this  than  an  oath  befoie  any  other 
"  person  would  be.  It  was  extra-judicial,  and  in  this  case 
"ex  jxnii',  and  without  a  single  re<iuisiie  to  make  it  evidence." 

The  Judgment  being  short  I  read  it  in  full.  The  language  of 
that  Act  and  the  language  of  our  Convention,  I  submit,  refer  to 


415 

(Sir  Cliarles  H.  Tupper's  Argument.) 

private  ownership,  ami  I  shall  argue  tliat  private  ownership  in 
a  case  of  this  kind  is  wholly  immaterial.  The  word  "actual"  is 
important  too,  and  should  not  be  overlooked.  It  is  defined  by 
Webster  as  follows  :  "  Real  or  effective,  or  that  exists  truly  and 
nlisolutely  ;"  so  that  you  have,  according  to  tlie  language  of  the 
( 'onvcntion,  when  this  ijuestion  of  liability  is  raised  as  to  owner- 
Id  ship  to  ileal  witii  an  actual  ownership,  as  distinguished  from  any 
technical  or  formal  ownership ;  and  you  have  to  deal,  as  I  have 
already  said,  with  the  question  whether  that  actual  ownership 
is  in  a  citiz(!n  of  tlu'  United  States,  in  a  citizen  of  a  State,  or  in 
a  Uritish  subject  douiiciled  in  one  of  the  States. 

On  the  sulijeet  incidentally  lefcjrred  to  j-osterday,  where 
foreigners,  under  the  shii)ping  laws  iif  England,  are  permitted  to 
hold  mortgages  on  a  British  ship,  1  shall  do  no  more  than  refer 
to  page  45  of  the  Hritish  Argument,  where  we  have  set  out 
authorities  under  that  iiead 
•20  That  the  register  is  not  a  document  of  private  title,  seems  to 
be  admitted  by  the  United  States  argument,  pages  7(i  and  77. 
At  those;  pages  authorities  are  mentioned  :  first  Uniteil  Status  v. 
Ihune,  already  referi'eil  to.  As  I  read  from  those  two  pages,  the 
United  States  regard  this  register  smnewhat  in  the  same  way  as 
I  have  done,  as  a  national  certiticate  touching  the  connnerce  to 
which  a  ship  holding  the  register  belongs. 

it  might  lie  interi-sting  to  ii'i'er  to  liussey  v.  Allen,  G  Mass.,  Ui'.i 
as  one  of  a  large  class  of  cases  where  the  actual  owner  was  not  on 
the  register  ;  but  1  takt;  it  that  is  hardly  necessary,  as  1  do  not  suj)- 
:>()  pose  for  a  moment  that  my  learned  friends  think  to  the  contrary. 
I  now  refer  to  the  United  States  argument,  pages  1!)  anil  20, 
where  a  principli!  is  laid  down  having,  I  think,  general  concur- 
rence ill  this  tribunal  : — "  In  this  controversy  all  questions  must 
"  b(!  eoiisldereil,  weighed  and  decided  liy  international  law." 
That  is  the  language  at  page  10 ;  and  at  page  20  : — 

"  The  United  States  do  not  expect  here  a  ditlerent  application 
"  of  the  ru!es  of  international  law  from  those  whicli  liave  been 
'■  applied  to  their  disadvantage  in  their  past  history,  nor  will  they 
"  seek  a  reversal  of  those  rules  which  they  have  heretofore  suc- 
|il  ■■  cessfully  invoked  io  their  advantage,  although  their  application 
••  to  the  present  contioversy  would  be  unfavorable  to  them." 

It  is  clear,  thi-'U,  tliat  tli(>  principles  of  international  law  are  to 
])ievail,  and  in  that  connection  the  most  serious  qiiarr'd  I  have 
with  my  learned  friends  is,  that,  while  ap|)arently  ready  to  how 
Io  these  principles,  they  have,  in  a  large  measure,  in  connection 
with  this  argument  as  to  ownership,  departed  from  principles 
which  the  United  States  have  vindicated,  and,  as  I  shall  bi;  able 
to  conclusively  shew,  vindicated  against  the  pi'etension  of  Gieai 
liiitain  herself ;  and  from  the  day  on  which  that  vindication 
■()  took  place,  1  do  not  know  of  an  instance  until  the  present  where 
it  has  iieen  attempted  to  depart  from  such  |)rinciples,  the  settle- 
ment of  which  without  doulit  prevented  very  serious  consetjuences 
to  liotli  these  great  powers. 

In  the  written  argument,  page  Oi),  a  very  pertinent  (piestion 
i^  iisl<e<l  by  my  learned  friend  as  to  the  object  of  the  language 
used  in  the  (Jonvention,  and  there  is  a  suggi'stion  that,  if  our 
view  of  its  construction  \n'  correct,  it  was  a  wholly  vain  thing 
for  tiie  two  nations  to  agree  to  the  language  in  the  Claims  t'on- 
\iiition  which  I  have  I'ead  ,  I  submit  that  having  put  the  ipiestion, 
(in  they  have  answered  it.  1  adopt  their  answer,  as  found  on  page 
(ill: — "That  the  C'onvention  opened  the  door  to  the  empiiry, 
■  li'aving  the  ((Uestion  of  citizenship  to  be  determined  on  the 
"  testimony  by  the  Cominissioners  a.s  a  matter  of  fact."  I  call 
imrtieular  attention  to  this  part  of  the  answer  coming  from  my 
learned  friends  ; — "  And  tin;  question  of  liability  on  that  deter- 


r 
ii 


i   i 


■'■■  ?F':''M 


I' ill*! 


:<l«' 


>..  ir   ■         I 
'    111, 


!!':■' 


.(.' 


iS^M' 


ii!!f':""Mr 


416 

(Sir  Clmrles  H.  Tapper's  Aif^ument.) 

"  ininntion  of  fact  to  lie  Heciiied  hy  tlie  Commissioners  as  a  matter 
"  of  iiitL-niatioiml  law."  I  claim  that  tlie  words  in  tiie  Conven- 
tion allow  nothing  more.  The  lanfjunf^e  would  have  been  entirely 
ditierent  hml  nij-  learned  friend's  interpretation  been  correct,  or 
if  it  lie  correct  now,  that  at  the  moment  they  proveil  that  tlie 
[)rivati'  interest,  in  whole  or  in  part,  of  anv  of  these  ships  was  in 
10  an  Aniericfin  citizen,  at  that  moment  tlie  lialiility  of  the  United 
States  should  cease  to  that  extent. 

Accord inj^  to  the  princiiiles  of  international  law,  can  my  friends 
obtain  that  advantage  ?  The  United  States  pressed  for  the  right 
to  raisi'  tliiit  (]uestion,  and  Great  l^ritain,  not  unwisel)',  agreed 
that  this  ([Ufstion,  with  the  otliiM-;,  miglifc  be  raised.  My  learned 
friends  now  liappily  say:  "  That  (juestion  must  undoubtedly  be 
'■  deii'rmiiu'd  as  a  matter  of  international  law."  For  what  pur- 
pose might  it  lie  raised  >.  Take,  for  instance,  as  one  possible 
purpose,  the  case  of  the  "Virginius,"  which  I  mentioned  yesterday 

20  lleforc    dealing    with   that  case,  let  us  see    again    what  Mr. 

Pheij.s  and  Sir  Cliailiss  Russell,  who  is  referred  to  in  the  argur.ient 
iiere  in  this  ver}'  connection,  said  on  that  subject.  Ii'  "'Idition 
to  what  1  ahead}'  (juoled  in  volume  l.S,  pages  4<',  47,  48,  49,  50, 
31,  there  are  referetic.  s  to  the  subject,  and  Mr.  Phelps  afterward, 
at  j)ag('  (i!),  says,  '•  Wluither  some  of  the.'.e  vessels  were  the 
"  iD'opi'ili/  of  lirithli  Hiihji'd.i  (it  (ill  was  a  (luestioii  of  fact."  At 
page  70  of  tlie  Unite  I  States  argument  iny  learned  friends  refer 
to  a  Colloquy  th.it  took  place  in  that  argument  at  Paris,  where 
the  present  |j onl  ('hiuf  Justice  of  England  said  : — 

30  "  Tlie  tiiidiiigs  iliat  the  vessels,  the  names  of  which  appear  in 

"  the  case,  have  been  seizeil  while  exercising  a  legal  rigiit  would 
"  not  iiielude  the  liability  of  the  United  States  to  pay,  if  for 
"  instance,  it  turned  out  that  some  of  those  vessels  were  owned 
'■  by  citizens  of  the  Uiiiteil  States  and  subject  to  the  laws  of  the 
"  United  States." 

Had  Sir  ('liarles  Russell  stoppi^l  at  the  word  "  St  ites  "  and 
said,  that  the  liability  woidd  not  be  concluded  if  "it  turned  out 
that  some  of  those  vessels  were  owned  by  citizens  of  tlu^  United 
States,"  we  woulil  be  placjd  perhaps  in  an  awkward  position  to- 

40  day  b\'  ,irguiiig  anything  to  the  contrary  :  lait  lie  took  very 
good  em;  not  to  stop  there.  He  adileil  :  "and  suliject  to  the 
laws  of  the  United  States".  In  other  words,  that  they  were 
parts  of  the  United  States  commerce — a  ^lart  of  the  United 
States  shipping — and  that  then  it  might  well  be  argued  before 
this  bar,  or  before  any  legal  tribunal,  whether  the  United  States 
should  lie  made  to  ])ay  any  damages  for  intiM'fering  with  ships 
that  weie  -ubjt.'Ct  to  the  United  States  laws. 

Ill  the  ease  of  the  "  Virginiws  ',  for  instance,  when  my  learned 
friends  ask  ;  wli)'  rais(!  this  (juestioii  when    we  are   not  to  take 

.")0  advantage  of  it  f  Why  have  we  gone  into  all  this  eviilence,  if 
your  contention  be  that  you  cannot  go  behind  the  tl  ig  and  the 
registei  f  I  answer  that  by  .saying  that,  according  t)  the  agree- 
ment, as  a  iiiattei  of  evidence,  permission  has  been  given,  your 
Honors  have  properly  allowed  evidt!tiC(^  subji'ct  to  all  objeetions, 
as  what  c()iisei|iiences  follow  under  the  pi  iricijiles  of  international 
law,  or  according  to  practice  among  nations,  inider  these  facts, 
can  the  United  Stati's  resist  the  claim  offbeat  Britain  ?  A  great 
deal  of  evidence,  my  learned  frii^nds  say,  has  been  taken  and  an 
enoniioiis  amount  of  time  .spiint  in  investigation,  and  yet  tlii;y  sa}' : 

(iO  "  nothing  came  of  it,  not  even  ridlridan  »H(tv,  only  vacuum  an<l 
'•  no  birth  ",  to  cplote  from  their  brief. 

Well,  in  tilt!  case  of  tlu;  "  V'irginius "  what  was 
done?  I  intimated  yesterday  that  this  evidmice  brought 
'lorward  by  tin;  United  States  would  have  enabled 
{jicat     liritain     herself     to     exercise     that     discretion      which 


417 

(Sir  Charles  H.  Tapper's   Argument.) 

the  United  States  exercised  in  the  case  of  the  "  Virginius." 
What  was  done  there  ?  The  "  Virginius"  was  owned  wiiolly  l)y 
citizens,  not  of  the  United  States,  hut  suhjects  of  Spain,  a  vessel 
fradulently,  and  contrary  to  the  laws  of  the  Uniteil  States,  on 
the  shipping  list  of  the  United  States,  registered  as  an  American 
ship,  and  Hying  the  American  Hag.  She  having  lieen  interfered 
10  with,  the  United  States  allowed  a  mass  of  evidence  to  be  taken, 
and  that  evidence  is  worthy  of  regard  because  the  case  bears  an 
analogy  to  the  present  and  is  dealt  with  by  both  briefs.  In 
Executive  Documents,  House  of  Representatives,  1873-7'!,  First 
Session,  43  Congress,  the  facts  in  connection  with  the  "  Vir- 
ginius "  are  made  to  appear.  Hear  with  mo,  your  Honors,  while 
I  refer  to  the  evidence  to  show  the  character  of  the  case  of  the 
"  Virginius."  On  page  102  of  the  volume  to  which  I  have  just 
referred  there  is  an  examination  of  one  Sheppard,  and  he  says 
there  : — 
20  "  I  did  have  conversations  with  Patterson "  (that  was 
the  name  of  the  registered  owmr)  "  on  that  sulject.  He 
"  said  that  the  vessel  would  go  in  his  name  ;  anrl  he  at  that 
"  time  and  afterwards  expressed  to  ine  regret  at  allowing  his  name 
"  to  be  used  in  connection  with  the  ownership  of  the  vessel." 

Vt   page   109,  when  one  of  the  (.'aptains  is  examined  he  is 
ftslvi  d  ;  — 

'  Q.     When  you  took  command  was  thei-e  any  Hng  on  board 
"  t'lie  '  V^irginius  ? '     A.      \o,  sir. 

'■  Q.     Of  no  nationality  ?     A.     No,  sir." 
30         At  page  110:— 

"  You  took  command  of  the  vessel,  tlieji, 
"  was  owned  by  tlie  ('ubans  ?     A.     Yes,  sir. 

"  Q.  But  sailing  her  under  the  AmiTiciin  lla^ 
"  be  a  vessel  of  American  ownership,  and  intended  as  such,  to  be 
"  used  in  landing  arms  and  munitions  upon  tlie  Island  of  Cuba, 
"  against  the  consent  of  the  Spanish  government  ?  A.  Yes, 
'  sir." 

At  page  114,  witness  Smith  testifies  ;-- 

"  Q.  K'^w  did  you  happen  to  be  in  Puerto  Cabello  and  to 
40  "  take  commaid  of  the  'Virginius'?  A.  [went  to  Laguayra 
"first  as  a  mate  from  a  brig  from  Piiiladelphia,  and  from 
"  Laguayra  I  went  to  Puerto  Cabello  and  there  I  heard  that  tiiis 
"  steiimer  was  there,  and  that  she  was  witliout  a  master,  and  I 
"  applied  for  the  situation  and  got  it." 

Later  on,  on  being  asked  where  the  expedition  was  to  go,  he 
said : — 

"  y.     To  Cuba.     A.     Of  couise  they  did  not  tell  me  that  the 
"  first  day,  but  it  was  all  understood 

"  y.     When  you  took  command  of  the  '  Virginius '  diil   you 
"0  "  tind  any  ship's  papers  on  board  ?  and  if  so,  what  papers  ^     A 
"  1  found  nothini;  on   board  but  the   log  book,  and  that  was  not 
"  written  up,  but  I  did  find  the  papers  at  tlie  consul's. 

"  Q.  Describe  as  correctly  as  you  can,  what  papers  belong- 
"  ing  to  the  .ship  you  found  at  the  American  consulate  in  Puerto 
"Cabello.  A.  As  near  as  I  can  recollect,  I  found  a  certificate 
"registry  with  no  official  number  markeil  on  it,  and  no  crew  list. 
"  1  found  a  bottomrj'-bond  attached  to  the  papers  for  about 
"810,.i00  American  gold,  purporting  to  have  been  given  at 
"  Aspiiiall  by  Captain  Bowen. 
(10  '•  Q.  Describe  what  flags,  if  any,  yon  found  on  bnaid  the 
" '  Virginius  when  you  took  command,  A.  I  found  an  old 
"  Venezuelan  flag,  and  an  old  American  ensign. 

"  y.     Any  of  (Uiy  other  <le.scription  '.     A.     No.  sir   I  did  not 
"  find  them  at  that  time ;  they  were  on  board  of  In  r.  though,  but 


iiilieving  that  she 
purporting  to 


n 

I 

.'I 

0.1\ 


■fi('(1 


m.i 


)  :'. 


i.l 


r^ 


A-yli 


■I!       J!' 

ii-' 


■WP 


418 


(Sir  Chillies  H.  Tupper's   Arj^ument.) 

I  dill  not  not  fiiul   tliein  then.     A  few  ilay.s  afterwards  I  was 
sliew  the  ('uban  Hairs  on  lioard." 


At  payfe  ll'i,  he 


savs : 


Q.     Whom,  at  Puerto  (.'ahello,  did  you  consider  tlie  owner 
of  tlu!  '  Virfiiiiiiis '  (     A.     1  always  considered  that  Alfaro  was 


tl 


le  owner. 


10 


"  Q      Did  you  ever  have  any  instructions  or  connnunication 
'  from  Patterson  into  the  '  Vir^inius  ?'     A.     1  never  hail  a  word." 


At  pi 


IIG 


bott 


'  Q.     For  what  was   the  '  Virj^inius' sold  ?     A.     Under  the 


omiv-honc 


'■  Q.     J)o   you    know   whether    there    were  any    proceeding's 
before  a  juiiieial    officer  in    Puerto  (Jabello  ?     A.     Yes,  there 


were. 


'  Q.     After  the  sale  did  the  En;,'lish  Consul  at  Puerto  Cabello 


say  anythinii;  to  j-ou  in  respect  to  it ;  am 


1  if  so,  what  ?     A.  Ye 


-0  "the  Kni;lidi  t.'oiisel  mtjt  me  the  next  day  after  the  sale,  I  think, 
"  but  I  am  not  certain  aliout  dates;  it  was  shortly  after  the  sale. 
"  He  siiid  to  me,  '  You  are  fj;oinu;  to  hoist  the  Knj,'lisli  Hiii;  '.'  He 
"  said,  1  have  a  teh'i;ram  from  the  Kni,disli  Minister'  at  Caracas 
"  to  sinze  her  for  ii  jiirate,  if  she  hoists  the  Knj,'Ush  Hajf.' 

"  Q.  Did  you  have  any  conversation  with  the  Aniei'ican 
"  Consul  subse(|uently  about  the  sale  '.      A.     Ye.s. 

"  Q.  \\'hat  dill  he  saj-  >  A.  He  told  lue  the  shi()  was  sold  ; 
"and,  said  he,  '  Captain,  I  will  have  to  take  your  ri';,'ister  and 
"cut  it  in  twi',  send  orie-iialf  to  the  Department  at   \VashiiiL,'ti)ii, 

•SO  "  and  j,nve  you  the  otle'r  bait.'  He  also  said  to  me,  '  (Japtain,  don't 
'•  boisi  the  American  tlii;;;  au;ain.'  The  moni'y  for  the  pui'ehase 
"  was  tu  be  [)aiil  in  three  days  and  I  asked  the  American  Consul 
"if  I  b*id  the  ri;jht  to  hoist  the  American  tliij;  before  that  time 
"  wa.s  up,  and  he  said.  No." 


At 


\i'.\,  another  witness  is  examiii 


'  Q.      What  bappeneil  m-xt  ?     A.      We  took  the  powder,  shot, 
slieij,    and   ammunition    out    of  her  and   put  it  on   board   the 


^'ir!'inius.      Mv     tiremen     turned     to    at    it. 


T 


le    nit-n    were 


I)rondseil   a  dollar   an  hour  in  f;old."     And  so  o 


Att 


oil 


41.)   (Jeneial    Will 


lams,  in    siimminir  up  the   whole  o 


.'h. 


)f  th 


ley 


e   evulence 


ly.s.  at  pa^jf  I'OS,  at  the  bottom  of  the  pai,'e  : — 


Ih 


\ 


ii'dnius  '  was  rei'istered   in    New  York   on  the  2Gth 


September,  bSTO,  in  the  name  of   Patter 


son,  who  maile  oath  as 


ith 


"  itipiired  iiy  law,  but  the  despositions  submitted  abiindantlv 
"  show  that,  in  fact,  Pattei'son  was  not  the  owner  at  that  time 
"  l)Ut  that  the  ship  was  the  propertj'  of  certain  Cuban  citizens  in 
"  New  York,  who  furnished  the  necessary  funds  for  her  purchase. 
"  J.  E.  lSlii'|ipenl  who  eomiiianded  the  ve.ssel  when  .she  left  New 
'  York  with  a  certifieate  of  her  rejjister  in  the  name  of  Patter- 
')0     '  son,    teslities   |)ositively    that    he  entered  into  an  aLjreemellt  to 


command  sanl  vc,>ssel   at   an  interview 


betv 


Qi; 


da,  Ml 


"  Patteisiiii,  and  otlieis,  at  which  it  was  distinctl}'  understood 
"that  the  Yirjfiiiius  beli)n:.;ed  to  Quesada,  Mora,  and  other 
"  Cubans,  and  that  said  Mora  exhibited  to  him  receipts  for  the 
"purchase  money  and  for  the  repairs  and  supplies  upon  said 
"  .steamer,  and  explained  to  him  how  said  funds  were  raised 
"  amoiii^  the  Cubans  in  Ni!W  York.  Aiioipho  J)e  Varoiia,  who 
"  was  the  Secretary  of  the  Cuban  Mission  in  New  York  at  the 
"time  the  '  Vii^dnius'  was  purchased,  and  afterwards  sailed  in 
(10   "  her  as  tjiiesada's  chief  of  stall",  testifies  that  he  was  acijuainted 


ith 


the   details   of  the  transaction,   and   knows  that  the 


\ 


ir;,'iiiius  was  purchaseil   wi 


th   th 


mils  of  the  Cubans,  and 


with  the  understaiidini,'  and  airan{,'ement  that  Patterson  should 


appear   as  the   n 


linal 


own 


er,  because   foreii'iiers    could   not 


419 

(Sir  Charles  H.  Tapper's    Argument.) 

"  obtain  a  United  States  register  for  the  vessel.  Franci.s  Rowen, 
'Charles  Smith,  Edward  Greenwood,  John  Mcl'ann,  Mattliew 
■'  Murphy,  Audirose  Rawlings,  Thomas  Gallagher,  John  Furlong, 
'  Thomas  Anderson,  and  George  W.  Miller,  who  were  em|)ioj'ed 
"  upon  the  '  Virginius  in  various  capacities  after  she  was 
"  registered  in  the  name  of  Patterson,  testify  clearly  to  the  effect 
10  "  that  thev  were  informed  and  understood  while  they  were  upon 
"  the  vessel  that  she  lielonged  to  Qiiesada  and  the  Cuhans  repre- 
'■  rented  by  him,  and  that  he  navigated,  controlleil,  and  treated 
"snid  vessel  in  all  respects  as  though  it  was  his  property." 

These  then  were  the  facts  in  connection  with  the  "  Virginius," 
lUid  though  stiehail  all  kinds  of  Hags  and  Hew  different  Hags  at 
rliti't'rent  timei,  she  happened  to  he  Hying  tlie  American  Hag 
wiii'M  that  vt'ssel  was  seized  by  the  authorities  of  Spain. 

Mr.  Dickinson  : — And  having  an  American  registry  ? 

Sjr  C  H.  Tufiper  : — Yes,  and  having  an  American  registry. 
•20  III  tliat  case  the  United  States,  as  the  coirt'spondence  will  show, 
(III  furtiier  investigation,  took  very  good  care  that  it  should 
never  he  said,  upon  the  transactions  leading  to  that  register  and 
the  use  of  that  flag  conse(|uent  upon  it  any  other  power  should 
pns-i  judgment  than  the  United  States,  hut  they  allowed  the 
S|i.iiiish  government  to  examine  these  witnesses  in  New  York 
without  prejudice,  and  to  collect  all  |)ossilile  evidence  and  submit 
the  results  to  the  United  States,  agreeing,  iu)t  that  Spain  siiould 
infiiet  any  ])iinishment  or  take  aiij'  action  witli  regard  to  tlio 
-.liip.  supposing  tiiere  had  been  a  fraudulently  obtained  registry. 
,So  but  that  the  Unitfd  States  would  follow  iij)  in  tlieir  courts  and 
miller  their  laws  the  vessel  for  anj'  infringement. 

.Mr.  Dickinson  : — Hut  before  you  Hnisb  that  yixvt  1  wish  to 
stiitc  that  Spain's  counsel  was  permitted  to  intervene  ami  show 
tliOM'  facts. 

Sir  C.  H.  '{'upper: — No  doubt.  I  shall  cleal  with  that  phase 
(if  it  at  a  later  stage.  .My  learned  friend  says  that  Spain  was 
allowed  to  show  these  facts  and  so  here  all  these  facts  have 
liceii  shown  without  prejudice  in  either  case,  but  it  was  never 
iilipaiently  dreamed  or  thought  that  any  other  power  than  theUni- 
40  tcii  States  should  administer  the  law  of  the  United  States  where  it 
liml  been  shown  to  have  been  violated.  Now,  on  that  particular 
])i)iiit  to  which  mv  friend  calls  attention  1  wish  to  cite  from 
the  book  to  which  I  have  just  referred,  a  letter  which  the 
b'liiled  States  Secretary  of  State  wrote  the  Spanish  represen- 
tiifive  on  the  'Ht\\  November,  \K7'A,  acknowledging  the  notice 
;;ivcii  by  the  Spanish  representative  on  tlie  taking  of  the  testi- 
iiKiiiy  before  the  United  States  circuit  court,  respecting  tlie 
ownership  of  the  "  Virginius,"  and  intimating  that  a  represcn- 
liitive  of  the  United  States  government  would  attend  the 
.'lO  examination  ;  the  United  States  Secretary  says  : — 

"  'I'he  undersigned  feels  sure  that  Admiral  Faulo  will  agree 
"  with  undersigned  that  neither  party  contemplates  substituting 
■  such  pioccedings  in  the  place  of  iliplomatic  discussion  of  the 
"  grave  (piestions  involved  in  the  seizure  of  that  vessel  on  the 
"  high  seas  wdiile  sailing  under  the  flag  of  the  United  States." 

.And  again,  in  that  correspondence,  I  Hnd  the  Attorney 
(ieiieral  saying  in  an  opinion  froui  which  I  have  already  i-ead  ; 
that  Spain  "  has  no  jurisdictioii  wdiatever  over  the  question  as 
"  to  whether  or  not  such  a  vessel  is  on  the  high  seas  in  violation 
(iO  ■  lit  any  law  of  the  United  States.  Spain  cannot  rightfully 
"  i.'iise  that  (juestion  as  to  the  '  Virginius,'  but  tlio  United  States 
"  may,  and,  as  understand  the  protocol  they  have  agreed  to  do 
"  it,  and,  governed  by  that  agreement  and  without  admitting 
"  that  Spain  would  otherwise  have  any  interest  in  the  question, 


|iii- 


420 

(Sir  Cliarlt's  H.  TuppLi's   Ari^iiment.) 

"  I  (li'ciile  that  tlio  '  Virginius  '  at  the  time  of  her  ca|)tnre  wiis 
"  without  right  ntnl  improperly  carrying  thu  American  ting." 

The  similarity  in  tlie  two  cast-s  is  tliat  my  learned  fricinj 
could  raise  this  (|Uestioii  of  ownership,  Iml  as  inj'  learned  t'rieiiij 
admits  once  (he  facts  arc  lu-fore  yon,  you  are  to  apply  to  tlmsc 
fact>4  the  principles  of  international  law. 

10  Mr.  Dickinson: — l5eforo  you  leave  this  part  of  tlie  ease  docs 

it  not  appear  also  tliat  on  the  investigation  tliat  this  slii|i, 
althoiiL'li  there  was  no  lefercuee  and  no  private  claim  made — the 
only  claim  made  was  an  aimlogy  for  the  insult  to  the  iiatiniml 
dignity  and  Hag — does  it  not  also  appear,  on  it  appearing  tlmt 
.she  was  not  an  American  owiumI  vesstd  and  was  improperiv 
registered  as  such,  tliat  the  United  States  waived  the  apology 
and  ilisavowal  tliereliefore  demanded. 

Sir  C.  H.  Tupper : — That  does  not  concern  the  point  1  him 
maitiri;.'.     More  than  tliat   appears  ;  as    1    hefore   intimateil  this 

20  transaction  was  covered  with  fraud,  that  the  vessel  was  in  no 
sense  the  propel  ty  of  an  American  citizen,  tliat  all  nianiiers  nf 
Hags  were  used,  that  the  vessel  was  the  property  of  suhjects  uf 
Spain  living  in  the  United  States,  neveitlieh'ss  the  position 
taken  by  the  United  States  was— no  tnattcr  what  fraud  or  wlmt 
prostitution  of  Hag — while  we  will  waive  the  apologj*  to  the 
IJnited  Stales  l)ecaus(!  Spain,  titider  these  circumstances,  in  self- 
defence  really  (though  lliey  diil  not  put  it  on  that  ground)  fnr 
the  purpose  of  self-dcfi-nce  interfered  with  tliat  piratical  triuiip 
on  the  high  seas  ;  yet  evi-ii  so  the  United  States   insisti'd  that  it, 

30  alone  li;i  I  jurisdiction,  saying  in  effect  we  alont'  have  jurisdictinn, 
and  we  will  not  under  any   circumstances   hand   vou   over   tlie 


your  sulijects  own  her   and  our  registry   was 


L'lit 


ship,  til 

by  fra..  i,  it  is  in  the  United  States  courts  alon(!  that  punishiiieiit 
can  he  imposed  for  improper  use  of  the  Ameiican  Hag,  and  the 
ship  owned  by  Sfianiards  was  delivered  up  to  the  States. 

That  was  thi!  jiosilion  of  the  United  States  then.  Hut  it 
cannot  be  said  to  be  the  position  of  the  Uniteil  States  to-dii\-. 
For  instance,  r.uder  that  head  I  will  call  your  attention  to  what 
we  cited  on  pnge  44  of  our  argument,  paragraphs  327,  408,  40fl. 

40  The  Commissioner  on  the  part  of  the  United  States  : — Wlint 

volume  is  it  ? 

Mr.  Dickinson  : — The  quotation  they  make  is  veriHed  in  the 
United  States  argument  as  correct,  'i'hey  did  not  cite  the  page 
but  we  did. 

Sir  C.  H,  Tupper  ; — The  reference  is  volume  3  of  Wharton, 
parnj,'  .plis  40.S  and  400;  40!)  reads  as  follows  :  — 

'■  A  certificate  umler  the  authority  of  the  United  States 
"  must  he  taken  by  foreign  powers  as  genuine,  and  can  be 
"impeached  by  them  anly  by  application  to  the    Oovernment  nf 

50  "  the  United  States.  'I'lii^  has  been  hehl  as  to  naturalization 
"  certificates  (supra,  174  a),  an(i  the  same  principle  as  was  held  in 
"  the  '  Virginius  '  case  (su])ra,  327)  applies  to  papeis  certifyiuL; 
"  under  tlu^  authority  of  the  United  States,  that  the  vessel  hold- 
"  iiig  them  is  a  vessel  of  the  United  States.  If  such  papers  are 
"  fraudulent,  the  parties  forging  or  wrongfully  using  them  art' 
"  liable  to  piuiishment  in  the  Utiited  States  ;  and  the  I'niteii 
"States  will  not  permit  tliein  to  be  employed  as  a  basis  of  a 
"  claim  against  foreign  powers.  Hut  the  United  States  must  !"■ 
"  the  sole  judge  of  tl; 'ir  validity,  so  far  as  concerns  proceedings 

(30  "  on  the  high  seas.  \o  f<ireign  power  can  he  permitted  to  deter- 
"  mine  as  to  such  validity." 

My  learned  friend  himself  claimed  on  the  Record  (page  107'"') 
that  that  wa-  ;he  principle  in  regard  to  naturalization  ceititi- 
cates.      It  is  true  that  he  has  drawn  a  distinction  between  tlioin 


421 

(Sir  Cliarli'H  H.  Tiipper's   Argmnenl.) 

Ill  the  iirf];uinuiit,  in  so  far  as  one  represents  tin;  iiiil<;nient  ol'  ft 
court,  and  tin?  otlior  is  not,  liti  says,  of  so  liij^li  a  cliiiracter, 
tiK)n),'h  it  seems  to  nio  that  tho  text  writer  tiiere  is  ri(,'l»t  in  con- 
sideriii);  that  tiiese  are  iioth  national  certifieates  Now,  I  have 
ventiireil  to  say  that  tlicsu  vessels  were  pan  of  the  British 
coiiiiiieice  anil  in  no  sense  could  they  he  said   to   he  part  of  the 

1(1  United  Stales  coniiiieice.  A  passin;^  lefeiciin!  to  Kent  on  that 
which  is  not  cited  in  our  arymnent  I  now  desire  to  make.  In 
Volume  .'i,  star  |>at{e  142,  I  tiiul:  -"  No  vessel  is  to  lie  deemed  a 
"  vessel  of  the  United  States  or  entitled  to  privile^eK  of  one 
'  unless  ref^istered  and  wlujlly  owned  and  commanded  hy  a 
"citizen  of  the  Unitcl  .States." 

The  (.Jommissioner  on  the  part  of  the  United  States  : — That 
is  a  little  hroad,  a  little  inaccurate. 

Sir  C.  H.  Tupper  :— It  is  a  little  liroad  ;  0  United  States 
minister  to  thi."  Spanish  minister  in  the  "  V'ir;;iiiius  "  case,  said  :  — 

20  "  The  undersij^'tied  has  heretofore  declared  anil  he  now  repeats 
"the  declaralioii,  in  the  name  of  his  ircivnrnment,  that  the 
"  '  Virffinius  '  was,  at  the  moment  of  hef  capture  on  the  hit;h 
"seas,  a  re;,'ulaily  dociniienteil  American  ship.  The  assertion  of 
"  a  j,'nvernmi'nt  which  has  accorded  to  a  vessel  the  rii^dit  to  sail 
"  under  its  Haj;,  is  the  hest  (evidence  of  her  nationality.  Kveiy 
"such  ship  is  iei,dNter''(|  in  the  puhlic  archives." 

The  CumiiiissioMii'  on  the  purl  of  the  United  States  :  -I'roh- 
ably  he  meant  t"  ii^"  the  woril  "  register"  in  a  hroad  sen-". 
.Mr.  Dickinson  :  —  In  the  sense  of  a  sea  letter  or  ceit|ticato. 

'M)  Sir  C  11.  Tupper: — In  tlmt  <'"M.' ciion,  hid'ore  1  deal  witli 
the  i|Uestion  of  immunity  of  the  natit'iial  tla;;  there  is  a  refei- 
ence  to  the  ship's  papers  I  wish  s.  iniike.  The  su;,';;estion 
mii,dit  naturally  occur  to  the  minds  of  your  lioiiois,  in  followiiij; 
my  arj,'ument — of  what  value  are  these  ship's  ]  ipers  f  Why 
nn,'  they  referred  to  if  the  first,  po>ition  we  take  i-  correct — that 
the  tlai;  is  the  protection,  Wel'ster,  in  a  cori'iwpoiulence  which 
liKik  place  with  the  British  (Jovernment  in  1S4:{,  refers  to  the 
value  of  these  pajiers.  They  constitute  not  oidy  a  national  cer- 
tificate K'^''"n  t"  '■'"'  holder  the  ri^^ht  to  fly  the    tlaij  and  enjoy 

40  th:'  protection  that  the  tlajj;  ^ives,  hut  they  are  in  modern  days, 
almost  ahsolutely  necessary  whore  the  ships  helong  to  the 
United  States  or  Kn;;laud  in  connection  with  their  treaties  and 
in  times  of  peace  in  connection  with  the  mutual  right  to  search 
so  often  mutually  conceded  : — 

"Nor  can  the  United  States  Government  agree  (wrote  Mr. 
"  Welister  )  that  the  term  right  is  j  istly  appliiMl  to  such  exercise 
'  of  power  as  the  ihitish  tiovernment  thinks  it  indespensahle  to 
"  uuiintain  in  certain  case's.  The  right  asserted  is  a  right  to  ascer- 
"  tain  whether  a  merchant  vessel  is  justly  entith  d.   to  the  pro- 

,50  "  teetion  of  the  flag  which  she  may  happen  to  have  hoisted,  such 
"  vessel  being  in  circumstances  which  lender  her  liahle  to  the 
"  sus|)icion  first  that  she  is  not  entitled  to  the  piotection  of  the 
"  tlag ;  aiul  secondly  that  if  not  entitled  to  it,  she  is,  either  hy 
"  the  law  of  England  an  Knglish  ve.ssel,  or  by  '  the  provisions  of 
"  tieaties  with  certain  European  power.s  subject  to  the  super- 
"  vision  and  search  of  British  cruisers.' 

"  If  visit  or  visitation  be  not  accompanieil  by  search  it  might 
"well  be  in  most  cases  merely  idle.  A  sight  of  papers  may  be 
"  deiiiandeil,  and  papers  maybe  produced.     But  ii  is  known  that 

(iO  "  slave  traders  cany  false  papers  and  difl'erent  -  ■:^  of  papers.  A 
"■search  for  other  papers  then  must  bo  made  where  su-^picion 
"justifies  it  or  else  the  whole  proceeding  would  be  nugatory.  In 
"suspicious  ca.ses  the  language  and  geneiil  appearance  of  the 
"  crew  are  among  the  means  of  ascertaini  ig  the  national  charac- 


:l 


iJ 


'Ilr 


)l;l 


m 


1  ^ 


II  (I 


I 


T'- 


422 


(Sir  (^mill's  n    'rii])|)i'i's    Aijfiimont.) 


'  ter  (if  iluf  vesm'l.     Tlit'cnrnoon  lionnl  nlso  imliuutcH  tho  conntiy 
fniiii    whicli  slic  cdiiH's.     Mcr  Idj^IiooU  sliowin^f   tin;  pnniou 
coil 
iM|ui)itii('iit    lire  all    t'viilciiccs    for  1 


isi'  ami    fVfiits    (if  licr   vdyam'    '""''  intcrnnl    titiiii'iit    ni)<l 


t    III 


1. 


10 


Iff  or  nt,'niiiHt  tier  on  licr 
all('>.'nticiii  of  clinractcr  Tliest'  mattirs  it  is  oliviiui.H  ciui  only 
be  asccrliiiiii'ii  liv  vi;,'oroiis  Ncarcli. 

"  It  inivy  li(>  (islct'il,  if  a  vcmhcI  may  not  lie  I'lillcil  to  nIkiw  licr 
papcrH  ?  No  (loiilit  nIk'  may  ln'  cnlli'il  upon  to  sliow  lier  piipfis  : 
liiit  tilt'  (|iiL'stion  i.s  wlii'rc,  wlu'ii  ami  liy  wliom  ?  Not  in  time 
of  pi'jicc,  on  tlic  lii;,'li  seas,  wIutc  licr  i'ij,'lilH  are  ('(pial  to  tlio 
ri^'lits  of  any  otlicr  xos.scl  ami  wlicic  noiu'  lias  a  rij,'lit  to  molest 
'  111  r.     'i'lif  use  of  lu'r  piipiMs  is  in  tinit!  of  war  to  prove  lier 


■utialitv   wlicii   visiicil   liy   li('lli''crciit  cruisers,  and  in 


liiitli 


peace  ami  war  to  sliow  lu-i-  national  oliaracter  ainl  tin-  liiwfui- 
icHs  of  lier  voyaj;e  in    those  ports  of  other  coiintr'es  to  which 


shi 


(I  f( 


slit?  may  proectMl  tor  purptiscs  ot  traiU 


f  tr 


20  'l"he  re^'isti'i  is,  strictly  s|)('akini,'.  I  think  jieculiar  to  the  laws 
of  Kiii,'hinil  and  the  I'nited  States  ami  is  in  itself  a  Custom 
House  (iiieiinieiit.  It  is  so  ri'ferriii  to  Ky  Kent,  vohime  .'{,  piiee 
i;i!l  and  141;    -I  niav  mention  that  the  notes  there  I'ive  the  his- 


toiv  o 


f  tl, 


rej.'ister  in  Kiij;land  atn 


the  rnited  States,  and  in  it 


;,'ard  to  that  there  is  not  much  dith'reiice  lietweeii  the  jiiisitioii 
of  the  I'liited  States  and  our  own.  'riiiit  it  seciirus  the  protec- 
tion of  the  nation's  tla^',  we  Inivt?  shown,  I  think,  on  |iaL;e  44  of 
the  Ihitish  Argument;  and  to  show  that  it  is  a  ci'itificale  of 
iiatioiial  ownership  I  would  leftn-  also  to  tl 


le  auihoritic-i  <  iii  d  on 


JiO   paL,'e  44  the  Ihitisii  Aii,'umeiit.      In  lliat  connection  I  wmilil  refer 
m;;iuii  to  the  case  of    the    United    Slates    (W     Mriille,    reported   ill 
Wallace,  pMi,'e  2t)4,  whcieit   is  said  : — 'It  is  not  rc()iiired   hy 


Inw  of  nations  as  iiti  cxiiression  of  national  characte 


rea.soii 


that 


and  tl 


I  is  that  in  times  of  pence  the  Hai;  siifliciently 
expresses  the  iiMtioiial  cliaiacter.  The  ninnici]ial  law  aloiii!  le- 
(]iiiies  the  Hegisteiy,  where  for  instance  revenue  vessels  and 
where  veHsels  of  a  nation  to  which  the  siiip  litdonjrs  for  manv 
purposes  in  the  at'.ministration  of  municipal  allairs  maki>  it 
necessary  that  this  re;,nstry  should  ht;  on  hoard.     See  Kent  on 

40  star  ptij,'e  14!(.  A  passage  in  the  United  States  Arynment  pai,'es 
7-'{  and  74  ; — shows  that  on  this  tlicrt!  is  not  much  dis|>ute  ;  so 
that  I  collie  at  once  to  what  tlie  national  tlajj  amounts  to— what 
its  |)rolection  ami  ininiunity  from  interference  is  worth  in  times 
uf  |-eace,  and  what  the  position  of  the  I'niteil  Slates  has  Keen 
in  that  connection  for  many  years,  if  not  always,  until  perhaps 
now- — and  what  the  position  of  Kn<,'land  has  heen  certainly  since 
l.M.ig,  after  a  very  loni,'  and  thoroue;h  threshiiit,'  out  of  that  (]ues- 
tion  with  the  Tnited  States  Government  itself.  If  nij^  position 
he  correct  it  sweeps  away  every  consideration  of  these  domestic 

")0  matters  surrounding  the  dirterent  ships  and  the  conm>ction  of 
the  Havaiian  as  a  mortgage!!  'if  a  Ihitish  ship,  or  the  connection 
of  any  citizens  domicileil  in  I'ritish  territory  as  partners  or  in 
any  other  cafiacity.  There  is  an  interesting  return  laid  liofore 
the  parliament  in  England  containing  the  correspondence  with 
tlie  United  Statts  on  tin;  ([uestion  of  tlie  right  of  visit.  It  is 
piililished  in  the  hlue  hook  entitled,  ''  Accounts,  papers.  Navy 
l!So7-'>M,  Vol.  8!(  ".  I  would  like  to  call  particular  attention  at 
the  outset  t(j  the  very  signiticant  language  used  in  this  discii.s- 
sion. 

(JO  In  a  letter  from  the  Consul  Ceneral  at  Havana,  dated   May 

iStli,  l)S')fS,  to  Mr.  Appleton,  he  says: 


It 


to  the  world  tlat  we  have  always  contended 


for  the  freedom  of  the  seas  and  have  insisted  that  the  flag  of  an 
'independent  nation   home  by  a  vessel  shall  give  her  immunity 


10 


•10 


42n 

(Sir  Charlo.H  H.  Tupimi's  ArKumont.) 

"  af^iiiiHt  stnnpu^i)  or  aniKiyAiioii  for  piirjiDscs  of  visitalion  or 
"  si'urcli.  Wli('n  such  is  flm  prinriplr  annnunccii  by  uh  it  can 
"  liut  be  matter  of  ninrtiliciitioii  to  ail  wlio  fci'i  an  itit('r('>it  in  our 
"  (lay  to  si!n  till!  pi'inciplu  violatud  uonstaiitly  almost  lu  sij^lit  of 
"  our  own  slioii's. ' 

Mr  Dickitison  ;— Who  is  that  Consul  (it'ncrai  ?  What  is 
Ills  iiaiiif  ! 

Sir  ( '.  If.  'I'uppi^r  :  — A.  K.  lUythc  l.onl  Napifr,  who  was  the 
ri'picsiutativi'  of  (iicut  I'lrit'iin  at  Washington  in  IMoH- -writing 
III  any  rati'  from  Washiiij,'t(m  in  iSoM,  says  in  a  report  to  IjohI 
Malinsliiiry,  "  referring  to  ihu  iliscussion  with  (ieiwral  t'nss  who 
was  the  Unitrd  States  Secretary  of  State  at  the  timo  : — 

"  I  have  ailverteil  to  the  same  sulijcct  in  conversation  with 
■  tlie  Secretary  of  the  Navy  anil  willi  several  f)thcers  of  tlie 
"  American  si'rvice.  The  general  impression  certainly  appears 
"  to  he  tliat,  tlie  vessel  of  war  is  justitied  in  enforcing,'  the  ex- 
■  hiliition  of  a  flai,',  hut  not  to  ),'o  any  furthei  in  ascertaining; 
"  whether  the  tin;,'  is  justly  assumeil." 

Tiiere  is  aiiotlier  interesting,' citation  which  shouM  l)e  hrou^jht 
foi'ward.  In  the  correspondence  pioduceil  at  I'aris  hy  the  Fnited 
States  Government,  (Volume  H,  pn^'e  !J.S7),  there  is  an  historical 
leFerence  to  the  liussiaii  Aichives,  an  extract  from  a  letter  fi'om 
Mr.  l{icord,  wheie  the  protection  of  the  l\ussian  lla^' at  that  time 
and  the  value  of  it  is  hrotiyht  out  I  shall  not  read  the  whole  of 
it.  It  shows  the  practice  hm;,'  aj,'()  as  understood  hy  Russia,  "  the 
'•  stipidution  that  whalers  shoulii  he  allowed  to  lly  the  Hussian 
;j()  "  Ihi;,'  is  very  ailvantaj^'eous  to  us  from  a  political  point  of  view." 
That  is  sijrned  by  tlu-  (iovernor. 

Mr.  Hickinson  : — What,  is  his  name  ?' 

Sir  ('.  H.  Tiii)per  : — Count  Jaco  Lambert,  Vol.  '■],  Wharton, 
contains  a  passa;,'e  which  is  useful  (para},'raph  327,  pa^it^  128), 
where!  Mr.  Forsyth,  Secretary  of  State,  writinj;  to  Mr.  Stephens, 
on  tlu!  representative  of  the  United  States  in  (Ireat  Hritain  in 
1  .S4(),  says  :— 

"  It  is  a  inattiM-  of  re<;ret  that  this  practice  of  fraudulently 
"  iisinj,'  the  tlni.'  of  the  United  States  to  cover  slavers  has  not 
'  (dread}'  been  abandoned.  The  President  on  learnin;^  the  abuses 
"  which  had  i,'rown  out  of  it,  and  with  a  view  to  do  away  with 
"  every  cause  for  its  lonj^'er  continuance,  luivinj,'  now  directed  the 
"  establishment  of  a  competent  iwival  force  to  cruise  alon^'  those 
"  |)iirts  of  the  African  coast  wdiich  American  vessels  are  in  the 
"  habit  of  visitin;,'  in  tlio  pursuit  of  tlwdr  lawful  commerce,  and 
"  where  it  is  alle;,'ed  that  the  slave  trade  has  l>een  carried  on 
"  luider  an  illei,'al  use  of  the  tla^'  of  the  United  States,  has  a  riyht 
"to  expect  that  positive  instructions  will  be  gi'en  to  all  Her 
'  Majesty's  oHicers  to  forbear  from  hoardinj;  or  visitinj^  vessels 
"  und-r  the  American  lla:;," 

That  was  in  1840.  There  is  a  reference  in  the  British  Ariju- 
iiient  to  Mr.  Hayard's  o|)inion  in  IfSMd,  (at  pa^e  42  of  the  British 
Ar;,niment),  where  he  wrote  to  the  British  ambassador  in  the  case 
uf  the  "  Ij.  M.  Merritt,"  as  follows: — 

"  By  the  Law  of  Nations  as  it  is  understood  in  this  department, 
"  the  citizens  or  subjects  of  a  particular  countrj'  who  are  owners 
"  of  a  shij),  are  entitle<l  to  carry  on  such  ship,  when  at  sea,  the 
"  Ihij;  of  such  countiy  ;  and  Siich  tlai,'  is  to  he  rei.;arded  by  all 
"  forei;;n  sovereigns  as  tlie  bad;.,'e  of  nationality." 

This  is  the  case  of  a  vess(d  wdiich,  if  I  remember  rie;ht,  (and 
1  had  the  advantajje  of  seeini,'  the  papers  respectini;  it  from  the 
Department  of  the  Secretary  of  State,  which  I  can  furnish  my 
trained  friend  if  he  cares  for  them),  was  comini»  to  port  without 
any  ship's  papers.     The  position  of  Mr.  Bayard  was, — "  That  is 


40 


')() 


(iO 


^11: 


II    ll 


'    Ijl: 


424 

(Sir  Charles  H.  Tupper's  Argument.) 

"  no  concei'n  of  yours  in  time  of  peace,  that  vessel  is  carrying  an 
"  American  Hag  hihI  this  cjuestion  of  ship's  papers  is  a  matter  of 
"  domestic  concern." 

Mr.  J)ickin  ion  :— He  saiil,  however,  that  citizens  or  suhjects 
who  are  tlie  owners  of  a  slii|)  iiave  the  right  to  carry  the  ting. 
Sii'  C  H.  Tapper: — Ves.as  against  the  nation  giving  the  right, 

10  but  tiiat  iloes  not  (h'stroy  the  force  of  mv  reference  which  is  a 
reference  to  tlie  value  of  the  flag  once  given  ;  tiiat  was  never  a 
qnextion  for  a  foreign  nation. 

The  Commissioner  on  tlie  ]mrt  of  tiie  United  States: — How 
<liil  tliat  ease  come  up  and  wliat  was  done  with  the  vessel  ? 

Sir  (.".  H.  Tiipper: — She  had  entered  a  Canadian  port  and  slie 
l.,i;!  no  papers,  anil  it  was  a  (piestion  at  the  time,  whether  as  the 
United  States  were  contending,  they  could  license  vessels  for 
certain  purposes  in  eoinieetion  with  tiie  late  Hsheries  treaty,  and 
some   <liseussio:i   had  taken   place.      I   thiid<  in  connection    with 

20  that  the  authorities  in  Canada  contempliited  the  exercise  of  smiie 
supervi>ii)ii  over  her  ship's  papers.  Finding  she  hiid  not  any, 
the  communication  referred  to  was  written,  and  Mr.  Hayard 
answered  in  etl'ect  : — "  She  had  the  ting,  and  that  is  enough  for 
yon." 

I  refer  now  to  the  c'iplomatic  corres|iondence  in  thi;  Paris 
Record.  l''or  instance  iln- nations  iiignged  in  these  very  matters, 
i'n  connection  with  the  protection  of  the  seal  Hsheries,  saw,  all 
through,  as  the  evidence  shows,  what  a  jiossiiile  dangt  r  there 
was,  no   mattei    how  much  (^ireat  Hritain  and  the  Uniteil  States 

:>()  might  be  in  accord  in  coiniection  with  the  seal  tisheries.  True, 
wi'  may  agree  to  prohibjt  l-nited  States  and  English  ships  seal- 
iie;  in  these  waters,  but  what  will  that  do?  It  will  drive 
Canadian  sealers  and  United  States  sealers  to  Hawaii  and  Japan 
and  they  will  obtain  their  registry,  not  Ihitish  and  not  of  the 
United  States,  but  iMiiler  the  protection  of  those  (lags,  these  vessels 
will  contiinie  the  business  regnrdless  of  regulations  \v{'.  ado]it 
That  was  the  view  sulimilted  and  discnssecl.  It  is  impossible  for 
us,  once  declaring  this  Sea  to  be  free  to  the  world — it  is  inipossilile 
for  two  powers  to  etl'ectively  police  that  sea.      Mr.  Blaine  denl- 

40  ing  witli  it  on  one  occasion,  declined  to  consider  thnt  as  material. 
Russia,  he  said,  for  obvious  reasons  would  prevent  the  Russian 
Hag  from  lieing  use<l  ;(iermany  had  only  ajipeared  once  and  it 
was  a  remote  contingency  to  suppose  her  ships  would  come,  and 
in  connection  with  the  other  poweis  the  United  States  and 
(ireat  Hritain  would  succeed  in  oiitaining  from  such  powers  a 
promise  to  ]>revent  tlu'ir  flag  from  beiitg  used.  Phis  correspond- 
ence indicates  that  th"se  nations  recognized  what  might  be  done 
inider  cover  of  another  Hag  nnd  the  impossibility  of  either  of 
these  two  gi   at  powers  going  behind  that  Hag  in  order  to  pre- 

")()  vent  Americim  cii'zeiis  or  Hritish  sniijects  from  enjoying  its 
protection.  For  ir.stance,  in  I.S!ll,.lnly  2.'!,  .\lr.  Whaiton  wiiting 
to  Sir  Julian  I'auncefote,  |iage  l,S-J.2,  N'olume  5  of  I  lie  I'aris 
Series,  discussing  another'  phase  of  the  (|nestion  says  : — 

"The  United  States  might  well  insist  that  Her  Miijesty's 
"(lovernmenl  should  admit  nv.ponsibilit j  for  the  acts  of  the 
"Caniidiun  scalers  which  it  has  so  dji-ectly  encouraged  and 
"  promoted,  precisely  as  in  the  projjosal  the  United  States  admits 
"  the  lesponsibility  for  the  acts  of  its  revetun.'  vessels,  Ihit  witli 
"a  view  t  ■    ■  uiovi;  what  seems  to  be  the  last  point  "f   (litleieriee 

(JU  '  in  a  disei:^-lon  which  has  been  vt'ry  much  protrjicted,  the  I'resi- 
"  dent  is  willing  to  modify  his  proposal  and  directs  me  to  otfer 
"  tlie  following  : 

"  I  he  (ioveiiniient  of  (ireat  l^ritain  having  |)resented  the 
"claims  of  its  subjects  for  conrpensation  for  the  seizure  of  their 


42.-) 

(Sir  (;iiailfs   H.  Tuppui's  Argument.) 

"  vessels  l)y  the  United  States  in  Heliriiiif  Sea,  and  the  j;()vern- 
"  nient  of  tlie  United  States  having,'  ])res'  iited  on  its  own  lieiialf 
•  as  well  as  of  the  lessee  of  the  ])iMviley;e  of  taking  seals  on  tlie 
■'  I'lihylott  Island  claims  for  compensation  hy  reason  of  the  kill- 
"  in<{   of  seals  in  the    iiehrin^  Sea  hy   persons  actiiiij   under  thi^ 

■  protection   of  the    British    llajjf,    the    arliitiators    consider  and 
10  "decide  upon  such  claims  in  aeeonlance  with  justice  and  e(|uity, 

"and  the  respective  ri;,'hts  of  the  hi;,di  coiitraetin^   parties," 

On  December  7th,  hSDI,  pay;e  !)l)l{,  the   MaKiuii  of  Saiislmry 

wrote  Sir  .luliaTi  I'ouncefdte  as  follows  : — 

"  Her    Majesty's    (lovernment    do  not    tear  that  ret,'u!ations 

"  which  linv(!  heen  made  hy  the  Aritrators  will  he  rejected  liy  any 

■  of  the  maritime  powers  ;  but  tliej-  think  there  is  nnich  ground  for 
'  apprehension  that  those  powers  may  refuse  to  accept  treaties 
"  framed  for  the  purpose  of  .''-.rJilinf;  our  cruisers  to  arrest  ships 
'  which  are  violating  the   regilations  while  sailing  under  theii' 

20  "  Hag.      It  must  he  expected  tiiat  under  the  circumstances  sealing 
"  will  lie  pursued  under  their  (lags  during  the  close  times." 

On  Deceuiher  1st,  KSiU,  Sir  Julian  I'ouncefote  wrote  Mr. 
I'llaine  as  follows  : — 

"  'I'here  is  nothing  to  prevent  such  third  ]H)wer,  (Russia,  for 
"  instance,  as  the  most  neighhoring  nation),  if  unpledged  from 
'  stepping  in  and  securing  the  fishery  at  the  very  seasons  and  in 
"  the  very  places  which  uuiy  lie  closed  to  the  scalers  of  (lieat 
"  liritain  and  the  United  States  hy  the  regulations.  CJreat 
"  circumspection  is  called  for  in  this  direction  as  British  and 
;!()  '  Auieriean  sealers  might  recover  their  freedom  and  evai'e  all 
"  regulations  hy  simply  hoisting  the  tlag  of  a  non-adhering 
"  power."— Executive  Document,  Senate  No.  (i?,  page  24. 

Mr.  Phelps  wrote  to  Mr.  (Iresham  a  letter  which  I  read  yos- 
ter<lMy.  In  adilition  to  that  Mr.  Carter  one  of  the  United  Slates 
eotmsel  in  writing  to  the  Secretary  of  State,  J'age  2(!,  ot  this 
volume  of  Senate  Documents  .slid  : — 

"  If  it  should  turn  out  that  the  regulations  have  destroyed 
'  the  profits  of  pelagic  sealing  or  reduced  them  to  so  low  a  ])oiiit 
■'  as  to  afford  little  temptation  for  the  Canadian  and  American 
4(1  ■'  vessels  to  engage  in  it  their  lirst  resort  will  he  to  seek  the  pro- 
"  lection  of  anotlier  flag  and  this  may  easily  he  ohtained  indess 
"  all  t''  '  Maritime  powers  should  he  inducetl  to  adopt  and  enforce 
the  re,_,ulations." 

And  again  Mr.  Hayanl  wrote  Mr.  Gresham,  on  Nc)vemlier  1st, 
I.SD.'J,  page  41,  of  that  volume  of  Kxeentive  di)cuineuts,  saying  : — 

'  And  at  the  proper  time,  and  m  such  mode  as  may  he  deemed 
"  most  advisable,  such  co-operation  will  lie  claimed  by  the  Ignited 
"States;  but  at  the  ))i'esent  writing,  the  point  1  desire  to 
"  make  is  the  word  of  a  friend  by  notification  and  caution  to  .lapaii. 
."itl  "  ("orea  and  the  Sandwich  Islands,  lest  the  use  of  their  tlags  might 
"  be  obtaineil  by  the  solicitation  of  fur-seal  hunters  from  the 
"  United  States  or  (!reat  Britain  and  her  colonies." 

And  again  Mr.  ( iresham  at  iiage4.'>  of  the  same  vohiuie,  cabled 
to  the  L'nited  States  representative  at  'I'okio,  as  follows  :  — 

"  It  is  reported  that  American  and  Canadian  seal  lishery 
■  vessels  may  be  placed  iiiider  the  .lapaneso  (lag  next  season, 
"Comity  will  naturally  counsel  Japanese  (iovernmeut  to  defei;t 
"  any  such  atteinpto<l  abuse  of  friendly  flag  to  evade  results  of 
"  I'aris  arbitration." 
•  ;()  Now  it  appears  during  the  argument  that  the  subject  was  so 
dealt  with,  (Vol.  [>,  page  lo!*);  I  mean  the  written  argument 
tiled  before  the  Paris  Tributuil.  "  Nm-  ii-'  the  sea  free  to  any 
"vessel  whatever,  not  carrying  the  flag  of  some  comitry  and 
"shown  by  its  papers  to  be  entitled  lo  carry  that  flag." 


•i<. 


■k- 


'f'm 


il      ! 


mmmp^ 


iii«.iiVJ|^wij.  „..j.,,^._^4 — 


■lUJU^IU-i-i-  , 


42*1 


(Sir  CliiU'los   H.  Tujipt'r's  Ar^niineiit.) 


-Mr.  I'helps,  ill  that  ar-nnient,  at  paj,'es  222,  22.S,  224  and  '.Ul , 
niHilo  olisorvations  wliieli  ]  tliinU  wo  ail  would  liicp  to  have 
bet'oii'  lis  in  coiisidpring  this  suKject.  He  says,  in  discussing  fcjr 
instance,  pirae\',  and  tl\e  jurisdiction  of  nations  in  conncotiiMi 
witli  that  crime,  in  rej^ard  to  siiips  forming  part  of  ditl'erenl 
jurisdictions  : — 
10  "  ^^'^y  '*■  *'•"'  taken  away  in  the  case  of  piracy  i*  In  tlie  casi' 
"  of  nuirdt'i-,  of  rohhery  at  sea,  whicli  is  what  piracy  really  is, — 
"  why  may  a  man  ho  taken  to  any  port  if  the  country  chooses  to 
"  exercise  the  Jurisdiction  and  lie  trird  and  condemned  and 
"executed  f  Siin])ly  hecause  the  protection  of  nations  reipiireit  ; 
"  simply  hecause  in  the  days  when  jiiracy  was  more  fre(|Ueni 
"  than  it  ever  can  he  ai,niin  owinijto  improvements  in  navipjatioii 
"  it  was  necessary  to  the  protection  of  the  world  and  of  maritime 
"nations  whose  ships  were  afloat  upon  the  sea  that  they  should 
•  he  required  to  wait  for  the  slow  and  possihly  tlie  reluctant 
0()  "  ]iio('ess  of  the  nation  from  wliom  the  pirate;  came,  to  |>roceid 
"  and  enforce  it. 

"  The  same  rule  prevails  ahoiit  carryinj^  a  tlai,'.  What  is  the 
"  reason,  pray,  why  I  may  not  jnit  to  sen  in  a  vessel  of  my  own 
"  upon  some  honest  and  innocent  pursuit  without  carrying;  a  tla.; 
"  t)f  my  country  or  any  other  / 

■'  Senator  Morj^an  : — May  you  not  ? 

"  Mr.  I'helns  : — \o,  I  may  not.     I  understand  it  to  he  settled 
law  that  a  vrss(d  may  he  overhauled    l>y   the   armed    vessel  of 
'■  another  nation  unless  it  carries  -iouu'  known  tlajr. 
;{()  '■  Seiiiitor  Morijan  : — Overhauled  hy  the  armed  vessid  oi  n  i\ 

'■  nation  ' 

"Mr.  Phelps: — Yes,  unless  it  carries  some  known  (la;4  and 
"  hails  from  some  known  jiort. 

"  Mr.  .rustice  Harlan: — Will  you  state  the  proposition  airain  ' 

"  Mr.  I'helps  : — That  a  vessel  is  recpiired,  or  may  be  rccpiired 
"  on  the  high  sea  lo  sail  under  the  tlag  of  souu)  nation  which  she 

■  is  authorized  to  carry. 

"  The  President :  —  If  there  is  a  /uv>/<»c  Mag.     It  must  he  under 
"  the  (lag  of  its  nation. 
•iO  '■  Mr.  Phelps: — Yes,  so  that  she  'hails,'  as  the  seamen   say, 

"  from  somewhere. 

'Lord  Hannen:— I  think  the  Senator's  douht  was  one  that 
"  parsed  aci-oss  my  mind,  whether  it  was  olihgatory  litei'ally  to 
"  carry  a  tl;ig,  wliicii  means  a  flag  of  some  nation. 

"  Mr.  Phelj)' : — 1  used  the  word  '  flag'  tignratively.     I  mean 

■  to  say  it  must  he  registered— legall}-  set  forth.  When  I  say 
'■  'carry  '  a  tlag,  of  course  I  do  not  mean  that  she  would  never  he 
'  fcjund  at  sea  without  a  tlag  flying. 

'  Senatiu-  .M(  rgaii  : — It  must  have  a  license. 
")0  '  Mr.  Phelps  : — It  must  have  a  license — it  must  have  a  home 

"  — it  must  have  papers." 

The  iiwnership,  as  the  President  [lointed  out,  was  only  a 
moi-al  eonsidiM-ation,  (at  page  224).  In  connection  with  the 
li'gislation  that  .Mr.  Phelps  said  was  going  through  Congress,  a 
eon\ers!)tion  which  'onk  ])lace  het ween  Senator  Morgan  ami  hiui 
in  regard  to  it.  At  [lage  l.'JlT,  discussing  the  regulations,  Mr. 
Phelps  was  talking  of  siigge'stions  of  th.e  Uritish  government  as 
heing  unsuitalile  or  impraeticahle  and  he  said  : — 

■  Now,    stup    a    moment    and    reflect.       Here  you  are  in  the 

(il)   "  I'ehring  Sea.      There   is   no   Au.eriean   jiort   nearer   than   the 

"  I'liiled  States,  an<l  no  P>ritish  port    nearer  than  Hritish  Coluni- 

'  Ilia.       The    Tnited    Stales  cruiser  seize.s  a   vessed  caught   red- 

■  handecl  in  thi'  act,  —  a  crinnnnl  vessel,  so  to  speak,  if  that  is  a 
"(■iirn'C;  expression,  and   lake-  her  pajieis  and  sends  them  home. 


427 

(Sir  Charles  H.  Tapper's  Argument.) 

"  There  is  no  mail  from  there.  You  have  to  keep  them  until 
"the  United  States  cruiser  reaches  some  American  port,  where, 
'•  by  some  American  official,  these  papers  can  be  forwartie'l  ta 
"  Canada.  Where  is  the  vessel  in  the  meantime:'  You  are  deal- 
"  ing  I  say  with  a  vessel  that  is  out  for  the  purpose  of  violating 
"  the  Uw  and  regulations.       You  are  not  dealing  with  a  re.spon- 

10  "sible  ship.  You  are  dealing  with  a  tramp  of  the  oeea  >.  I.s  it 
"going  hack  to  surrender  itself  at  Briti.sb  Columbia  for  the  sake 
"of  being  condemned?  What  interest  is  tb.ere  in  a  countr)' 
'  where  all  the  sympathy  is  all  the  other  wiy,  i;i  prosecuting 
"  thi-<  vessel  < 

"  The  President : — They  are  registered  vessels  an  i  covered 
"  by  a  flag. 

"  Mr.  Phelps:— Yes. 

"  The  President ; — If  thej'  do  harm  in  one  year  they  will  not 
"  continue  to  do  it  indefinitely. 

20  "Ml  Phelps; — If  they  are  not  condemned  they  will  nut  go 
"  home, — no  ship  of  that  character.  I  do  not  deal  now  with  a 
"  vessel  on  an  upright  errand,  which,  having  a  false  charge 
"  brought  against  it  would  go  home  and  meet  it  at  once. 

"  Tli(!  President :— But  a  ship  cainiot  become  a  vagrant  on 
"  the  higli  seas  unless  it  is  n  pirate. 

"  Mr.  Pliflps  : — No,  but  it  can  go  to  some  other  port  and 
"  shelter  itself  under  another  Hag.  I  pointed  out  the  other  day 
"  what  we  meant  as  to  these  vessels  having  a  different  owner- 
"ship  from  the  place  of  registry," 

30  There  is  an  interesting  bo,)k  published  l)y  William  DeBurgh, 
of  the  Inner  Temple,  in  1HG8,  on  the  Elements  of  Maritime 
International  Law,  and  on  page  6  of  that  work  he  says : — 

"  The  fact  of  a  .diip  at  sea  being  subject  to  the  jurisdiction  of 
"  the  state  under  whose  flag  she  sails,  is  a  most  reasonable  and 
"advantageous  regulation  ;  if  not  amenable  to  the  jurisdiction  of 
"their  own  state,  to  whom  w<)uld  the  crews  of  ships,  at  sea,  be 
■'answerable?  And  if  they  were  amenable  to  no  t 'ibunal,  the 
"sea  wojld  be  a  place  where  every  crime  might  be  committed 
"  witli  impunit}'. " 

iO  111  Davis  on  International  Law,  published  in  1887,  page  379, 
it  is  said  : — 

"  The  belligerent  right  of  search  has  never  been  seriously 
"  questioned,  and  is  accepte<l  by  all  nations  as  a  fact  inseparably 
"connected  with  the  existence  of  war.  A  right  somewhat 
"  resembling  it,  called  the  right  of  visitation,  has  been  asserted 
"  to  e.tist  in  time  of  peace,  but  has  never  received  universal 
"sanction,  and  is  now  generally  abandoned,  save  in  a  few  cases, 
"  where  it  maintains  a  lingering  existence  by  treatj'.  In  the 
"  long  controversy    which   was    carried  on    as  to  the    assumed 

,')0  "legality  of  this  right,  during  the  early  part  of  the  present 
"C(Miturv,  iMigland  and  the  United  States  were  the  principal 
"  contestants. 

"  It  was  maintained,  on  the  part  of  the  Hritish  Government, 
'  that  the  right--  of  .seHicli  and  visitation  wen.'  entirely  distiiu't 
"  from  each  other,  having  a  dilVereiit  (uigin  and  purpose.  The 
"  right  of  search  was  peculiar  to  a  state  of  war.  The  right  of 
"visitation  existed  in  peace,  and  consisted  in  such  an  examiii- 
"  ation  of  merchant  vess.ds,  on  the  high  seas,  as  was  necessary 
"  to  deternune  their    natioDality,  the  suffieieiicy  anil    regularity 

tiO  "  of  their  []aper:>,  and  the  legality  of  the  undertaking  in  which 
"they  were  engaged. 

"  (_)ii  the  part  of  the  United  States,  it  was  contestecl  that  the 
'right  of  search  was  an  incident  of  belligerency;  that  it  existed 
"only  during  the  continuance  of  war,  and  not  only  did  not  exist 


1: '  l( 


ma 


i»!ijy!Mf||!ji  Mil'  .w»i 


428 

(Sir  Charles  H.  Tupper's  Argument.) 

"  in  time  of  poaco,  but  an  attompt  to  excirciso  it  was  an  invasion 
"of  soverrtiiftity  which,  if  not  lii^claimoli  woiiM  constitute  a  just 
"  cause  for  war.  " 

There  is  a  litti."  book,  a  suniniiiry  of  International  L'lw  from 
these  authors,  puliii>!iieci  by  Herbert  Wolcott  Bowen,  in  1890,  in 
New   York  ami    Lin^lon,  ami  it  is    an  attempt  to  present    the 

10  principles  of  International  Law  simply  anil  concisely.  It  is  a 
codification  of  notes  taken  on  treaties,  municipal  laws,  ami  the 
works  <if  publicists,  especially  Whcaton,  Woolsey,  and  Wharton. 
I  am  pleased  to  find  in  the  opinion  of  this  writer,  that  we  are 
supported  in  the  position  I  am  endeavorinj^  to  take.  At  page 
f>7,  paragraph  181,  he  says  :— 

■'  As  a  rule  the  nationality  of  a  shi|)  is  determined  by  the 
"  domicile  of  the  owner,  unhiss  she  sails  uiuler  the  flag  and 
"  paper.i  (crew-list,  shipping  artich's  and  register)  of  a  natio'i  in 
"  wliich  he  is  not  domiciled,  in    wliich  case    sIk;  is  deemed  to  be 

20  "of  the  nationality  of  such  Hag  and  piip.irs.  The  Hag  only  oH'ers 
"prima  facie  uvidence  of  nationality;  the  papers,  however, 
"  must  be  accepted  on  the  high  seas  as  valid  by  all  nations,  un- 
"  less  the  nation  that  issued  them  <lecides  that  they  wore  secured 
"  in  contravention  of  its  laws.  Each  nation  has  the  right  to 
"  regulate  the  documentation  of  its  ships,  and  to  legislate  as  to 
"  whether  or  not  it  will  ailmit  foreign-built  vessels  to  the  privi- 
"  lege  of  being  registered  and  of  paying  equally  light  duties 
"  with  those  made  at  home. 

"  The  United  States  do  not  admit  foreign-built  vessels  to  that 

30  "  privilege ;  but  such  vessels  when  owned  by  citizens  of  the 
"  United  States  are  entitled,  if  they  were  pin-chased  in  good  faith, 
"  and  if  the  ownership  is  absolute,  to  be  regarded  and  protected 
"as  American  propertj'  and  to  Hy  the  flag  of  the  United  States; 
"  and  tlie  consular  officers  of  the  United  States  in  the  ports  in 
"  which  such  foreign-built  vessels  were  purchased  may  make 
"records  of  the  bills  of  sale  in  their  oflicial  registers,  authenticate 
"  their  execution,  and  provide  the  purchasers  with  certificates  to 
"  that  effect,  and  endorse  o;i  the  certificates  the  fact  thnt  the  jiur- 

■  cbaserH  are  citizens  of  the   United   States.     These    certificates 
40  ■■  furnish  prima  fucie   evidence    that  the  sale  was    bona    tide. 

"  Home  made  shijis  of  the  United  States  are  entitled  to  be 
"  registered,  if  employed  in  foreign  commerce,  and  to  be  enrolled 
"and  licensed,  if  employed  in  the  coasting  trade  or  fisherie.", 
'  provided  they  are  wholly  owned  liy  citizens  of  the  United 
"  States.  Wht^n  owned  wholly  or  in  part  bj'  foreigners  the\'  are 
"  entitleii  to  be  reconied,  iiutnotin  general  to  be  registeied  or 
"  enrolled  and  licensed  (Act  of  17!>2).  As  international  law  does 
"not  prescribe  the  documentation  of  ve.«se|s,  the  nations  in  order 
"to  avoid  difliculties  with  one  anotluM'  generally  have  stipu- 
oO  ■  lations  in  their  treaties  to  the  etrecttliat  if  one  of  the  parties  to 
"the  treaty  is  engagecl  in  war  the  ships  of  the  other  party  shall 
"  be  furnished  with  sea-letters  or  pnssj)orts. 

In  Wharton,  Volume  111,  page  (it):},  paragraph  410,  it  is  said; 

"Ownership  is  the  basis  on   which  n.itioiiality  rests;  owner- 

■  ship  is  evidenced  by  bill  of  nale  and  guaranteed  by  the  Hag 
'■.the  ship  carries;  foreign  nations  will  not  look  into  the  question 
"of  title,  nor  examine  bow  far  municipal  laws  have  been  com- 
"  ])lied  with  so  as  to  enable  th(!  ship  for  municipal  purposes  to 
"carry   the  flag;    a  certificate  or  passport,  tiierefore,  from    the 

60  "  sovereign  of  the  flag,  or  a  certificate*  from  one  of  his  consuls, 
■'  that  the  vessel  is  owned  by  one  of  his  citizens  or  sulijects,  will 
"be  a  sufficient  assurance  that  the  flag,  for  international  pur- 
"  poses,  is  rightfiHIy  carried.  Si-a-letters,  as  issued  b;.  the 
"  Oovernment  of  the  Uniteii  States,  are  in  this  view   simply  an 


42!  • 
(Sir  I'liarle-*  H.  Tiippei's  Ari^imu'nt.) 

■  .I'^suriince  l)y  the  (lO'.eriiiiiont   i-<siiini;  tlioiii,  hiisod  (ni  owiier- 

■  ^liip,  of  protection  on  tlie  liij^li  seas.      Municipally  such   U'tters 
•  hiive  no  ertect.     Internationally  they  merely  extend  to  the  ship 

I  lie  protection  which  each  sovereiijn,  when  not  otherwise  hound 
iiy  treaty,  is  authorized  by  international  law  to  fjive  the  ships 

■  nl'  his  sulijeets  or  citizens  on  the  hii;h  seas." 

'{'here  is  on  paj,re  -l-;}  of  the  Mritish  Ar<,ninient.  a  very  itnpor- 
l.-.iit  statement  by  the  Secretary-  mI'  tin  United  States  Navy. 
I'iscd  upon  the  position  I  am  takni;;,  and  on  the  construction  I 
,iiii  putting  upon  the  Law  nt'  Nati(jiis  apiilicalile  to  ships  on  the 
liii,di  seas  in  tin»e  of  pence.  The  Commander  of  the  United 
.Suites  Navy  in  the  Fieln'iui;  Sea,  in  I.S!)4,  in  order  to  eH'ectually 
I  n force  the  rej^ulations,  drafted  instructions  he  proposed  to  }^ive 
to  ihe  patrol  v<^ssrls,  and  he  sent  tiiein  to  the  Secretary  of  the 
N.ivy.  The  instructions  read  as  f()llows,  aniunij  other  thinjjs  : 
■  It  is  not  believe(l  that  any  friendly  power  wonlil  permit  its 
llfli,'  to  be  used  as  a  cover  for  the  further  perpetration  of  such 
'  wronifful  acts." 

"  Should  yon   fall  in    with  a  sealing;;  vessid   flyini;  any   lla;^ 
"  other  than  the  American,  or  the  Eni^lish,  or  clainiin«;  to  beloni^ 

■  to  ,niy  other  country,  or  producini;  pajiers  in  proof  of  such 
"claim  *  *  *  you  will  proceed  to  warn  him  not  to  seal  any- 
■•  where  within  the  limits  si)ecitied  in   the  I'resident's  proclama- 

■  lion." 


t 


0 


|ii 


!l  ^§ 


,'il)         ■  Any  such   vessel,   previously  warned,    found    to   have  been 

■  en^jajfed  in  sealin"'   within  the  limits  referred   to,  whether  he 
'  has  accepted  a  license  or  not,  you  will  seize,  kc,  kc." 

lie  quickly  received  orders  to  cancel  such  instructions. 

'  Kevoke  immediately   your  circular   letter  of  i[ay  "iS,  \o. 

14.     (.'losely  confine  self  to  instructions  from  the  department: 

"  seize  under  the  award  only  'Tnited  States  vessels  and  British 

"  vessels.     Do  not  interfere  v.'ith  the  vessi'ls  of  other  nationality 

"  if  colours  anil  papers  are  rejj^ular,  kc,  kc" 

'J'here  is  the  celebrated  case  of  The  LeLouis,  and  before  call- 
1-0  ini,'  attention  to  the  Judj^ment.  1  would  refer  your  Honors  to 
p,i;,fe  i\'.\  of  Volume  2,  Dodson's  Ke})orts,  in  coiuiection  with  the 
lads  : — 

"  Advertinjf  to  the  character  of  the  vessel,  they  adnutted  that 
'■  she  was  French  ;  liavin<r  a  rej^ister  as  such,  and  bearini;'  the 
"  French  Mag.  Hut  she  had  likewise  i->rilish  colors  on  boanl, 
"  and  had  recently  been  the  propei'ty  of  British  subjects;  and 
"  therefore  there  was.  on  the  most  limited  grounds,  a  special 
■'justification  to  ])ersons  under  British  authority  to  examine 
"into  her  national  character.  It  was  not,  from  a  mere  idle 
50  "curiosity   that    this  e.Kamination    was  resorted   to;  for  it   wa^ 

■  I'xpressly  certified  that  the  vi".-<il  lutd  been    British,  and  there 
"  w.is  nothing  but  the  mme  a-isuniption  of  tlag  to  distinguish  he;' 

as  having  acipiired  another  char.-icter." 
That  statetuent  is  in  the  arguni'Mit   nl'  counsel,  and  counsel 
M'liiiit,  as  appears  on  page  215  : 

That  the  courts  of  one  country  are  not  authorized  to  take 

■  cognizance  of  breaches  of  the  iiii^re  nuuiicipal   law  of  another, 
'  but  contended  that  thi'  present  was  a  case  of  a  very  ditterent 

licscription." 
Ill)         Then,  at  page  21U,  Lushington  said  : — 

'   If,  then,  thert>  exi.sted  no  right  of  search  and  detention,  all 
I  hat  had  been  iU>ne  wis  mere  lawless  violence  ;  unjust  ab  initio 
mil  a  \  iohition  of  the  law  of  nations," 
I'oniiiig  to  tlu"  judgment    Lord  Stewell,  on  page  2;<!t,  says  : — 


pif 


4;i(» 


(Sir  (JImrli's   II.  THpjier's  Argument.) 

"  Neither  tliis  l^ritisli  act  of  PiU'liameiit,  nor  any  coimiiissi,   j 
"  i'oiiiuleil  on  it,  ciui  aticGt  any  rij^Iit  or   intcrost  of  forriynci 
"  unles.s  they  are  fonnileil  upon  [jrinciplesand  inipose  rei^ulatimis 
"that  lire  eon.si.stent  witli  tlie  hnv  of  niitions.     That  i.s  tiie  on;, 
"law   wliieli  (ireiit   Hritain  can  applj'  to  tlieni  ;  Mnd  tlieijenii 
•' alit^'  of  any   terms  employed  in  an  act  of  parliament   nnisi  ],.■ 
10   "  nairoweil  in  oon.struction  liy  a  relijjious  adlierence  tliereto." 
On  page  242  he  further  sa/.s  :  — 

"  As^mning  tlie  fact,  '.vhicl;  i.s  indistinctly  proved,  that  tliriv 
"  was  a  demand,  and  a  resisi,in.<,  o  producing  tin;  deplonihle  resul:^ 
"  here  ilescribed,  I  tlnnk  that  tlie  natural  order  of  things  eoiupii- 
"  me  t(>  enijuire  lirst,  whether  the  party  who  demanded  had  , 
"  right  to  search  ;  for  if  not,  then  not  otdy  was  the  resistanci'  t  . 
"  it  lawfid,  lint  likewise  the  vei'y  fact  on  which  the  other  groiiivl 
"  of  condemnation  I'ests  is  totally  removed.  For  if  no  right  ii 
"  visit  and  seai'c  i,  thi'n  no  nItiTior  right  of  seizing  and  hringin- 
20  "  in.  and  proceeding  lo  adjudication  ;  and  it  is  in  the  course  of 
"  those  jiroceedings  alone,  that  the  facts  are  [)rodnced,  that  sin  is 
"a  French  ship  trading  in  slaves;  and  it'  these  facts  are  m.hl' 
"known  to  the  seizor  i)y  his  own  unwarrante<l  acts,  he  cinimi 
", avail  hiuiself  of  discoveries  tluis  r.nlawfully  produc.d,  nort.ik' 
"  advantage  of  the  e(jnsei|Uences  of  his  own  wrong.  ' 
And  on  ]>age  2V.]  : — 

"  Upon  the  tii'st  (piestion,  whether  the  right  of  search  e  Jn|s 
'  in  time  of  peace,  I  have  to  observe,  that  two  [)rincil>les  of  pulil  ii' 
"law    are   generally    lecognized    as    fundamental.     One    is    iln 
.SO    'perfect  e(juality  and  entire  inilependence  of  all  distinct  .Stiitrs, 
Relative  magnitude   creates   no  distinction   of   right;  rel,i(i\' 
iudiecility,  whether  permanent   or  casual,  gives   no  addilion:il 
right  to  the  more  powerful  neighbor  ;  and  .any  advantage  seizi'd 
upon  that  ground  is  mere  nsuri)ation." 
And  on  page  2-H),  speaking  of  rights  of  search,  he  says  :  — 
■  For  till  the  ship  is  searched   it  cannot   bij   known   whether 
"  she  is  a  slave  trader  or  not,  and  whether  she  belongs  to  a  nation 
■  which  admits  the  act  to  beerinnnal.  or  to  one  which  niaintain- 
it  to  be  simpiv  eonnnercial.  and  1  say  h'gally  crinnnal,  becausi 
40    '  neither  tM»  court  nor  any  other  can  carr}-  its  ja-ivate  appre 
"  hensi(.ins,  independent  of  law  into  its  public   jiidgmeids  on  the 
"  ipmlity  of  actions. ' 

I  have  no  doniil  th.it  while  1  have  ipioted  to  your  Honors 
from  te.\t-books,  an<l  from  ■ther  authorities,  these  principles,  il 
has  occurred  to  your  llonor~  that  I  am  laboring  to  upliold  ii 
pi'inciple  not  dispute  I,  a  principle  ditiicult  to  conti'adict  at  this 
day,  and  a  principal  \"iy  tanuliar  to  jurists  ;  but  to  show  tli.il 
there  is  a  Ii  licult}'  and  end)ariassment  in  connection  with  thi- 
\ei-,-  jj'opositiou,  inifxirtaiit  to  this  case,  I  must  read  two  ni 
.")()  ihiee  passages  in  the  United  States  Argument  that  havt;  made 
till  couu'.el  ft)r  Her  Majesty  consider  it  their  duty  to  go  ovei 
this  gro'ind  sn  often  travelled  bid'ore,  anil,  as  I  have.said,  groinid 
which  luust  lie  familiar  to  your  Honors,  in  lader  that  it  may  U"! 
be  said  that  we  lia\e  not  suppurted  otn'  position,  and  given  (Ih 
answer  to  tie?  opposing  contention  as  completely  as  pos.sil)le.  'I'm 
show  what  issue  is  raised  by  counsel  for  the  LTnited  States,  take 
page  72  of  their  argument  wlnire  there  is.  I  venture  to  say,  witli 
sinciM'e  respect  i'or  the  learning  and  ability  oj'  the  counsel  for  tie 
I'liiteil  State-i,  a  startling  proj)osit  ion, 
(iO  •  The  i|Uestion  here  is  as  to  the  right  of  Aineric  in  authorilv 

•  to  lake  an  American-owned  shi]),  wdiate\-er  her  registry." 

Tlii'n  again  on   |)age  Si,  they  say: — "It   follows  on  Ihil  i--!. 
"and  .American  authority  alike,  that   ownership,  and  bona  lid- 
uwiieiship  and  not  registry,  confers  the  right  to  c'lrry  the  lla;: 


431 

(Sir  Cliarles   H.  Tuppcr's  Ai'i,'Uiiient.) 

Bet'ofe  ruiidiiij;  t'litilier  I  would  like  to  say  tiiat  this  luttiT 
[jruposition  wouM  hu  purfcsctly  tnu!  as  ajfaiiiHt  tlu'  tuuiun  ol* 
re^fistry,  hut,  from  authoritiuH  hefore  citud,  and  IVoui  many  of 
thesu  liriot's,  I  venture  to  say  a  stat'^inent  not  correct  as  au;ainst 
any  other.     Then  my  learned  friend  says  on  paj^e  Si  : — 

"  The  position  of  the  United  States  here,  as  ulw.-iys,  may 
10   "  ajrain  he  repealed. 

"  Tiiat  nation  asserts  without  i|ualiKcati'.ii,  and  with  empliasi.s, 
"  li\at  where  the  tla^f  floats  over  a  ship  in  tiine  of  peace:  any 
"  other  nation  invades  the  fleck  undiir  it  at  its  peril," 

Keadin;,'  that,  however,  with  the  Hrst  statement,  youi'  Honoi's, 
1  think,  will  consider  our  construction  not  at  all  e.xtreme,  that 
the  I'uiteil  States  mean  to  say  that  "its  peril"  means  this, — 
that  havinjf  disreijirileil  the  Hiiff,  hiivini;  ijone  on  to  the  deck 
notwithstandinj^  the  Hay  of  another  nation  Hoated  i.t  the  must- 
head,  then  tile  peril  involved  is  simply  that  if  the  vossel  turns 
i!(l  out  to  l>e  the  hona  tide  pro])ei-ty  according,'  to  the  ilaj^,  a  claim 
for  damaijes  follows;  hut  if  the  vessel  tuiiis  out  t)  lie  the 
pnjperty  of  an  American  citizen,  though  havinj;  a  rc^^istry  in 
the  country  of  the  Foi-eii.'Ti  tla};r  which  he  is  llyinj;;,  then  there  is 
no  wi'oni^. 

On  pane  <S2  of  the  United  States  arifument,  there  is  this 
further  statement  :  — 

"  'I'he  tlaj;,  and  not  the  rejjistry,  should  he  prima  facie  evi- 
"  dence  <if  ownership.  If  it  should  turn  out,  however,  that  the 
"  tliig  does  not  truly  represent  the  actual  ownership,  there  is  no 
;!()  "  i^round  for  reclamation  on  behalf  of  tlu-  owners  who  turn  out 
"  to  be  actual  citizens  or  subjcetH  oi'  the  nation  .so  invadinjj  the 
"  ship." 

How  (leliifhted  would  the  Eaolish  jfovernment  of  Lord 
Maliiieshury's  or  Lord  Aberdeen's  time  have  been  with  lanjfuajfe 
of  that  charaet>-r  coming  from  the  United  States  of  America. 

The  I'euson  for  the  trouble  was  this,— lMi<.;lan<l  said  to  the 
United  States,  as  I  shall  show  a  little  later  on  :— "  We  have 
tn^aties  with  Spain,  treaties  with  PortUi^jal,  for  suppressinjj  the 
eruel  and  inii|uitous  slave  tratlic  on  the  Afric-in  coa«t.  Under 
Mi  those  ti'eaties,  Sjiain  and  I'ortufjal  ayree  that  we  may  se  ich  ships 
llyiuLi;  their  tlai;s  in  oriler  to  suppress  this  t  rathe  ;  but  we  tinl 
these  Vessels  Myini;  the  American  tlay,  and  we  ask  and  (;laim  the 
rio'ht  to  visit  the  ship,  not  to  j:;o  behind  the  papers,  but  when  we 
tin(i  the  ship  Hies  your  Hag  we  claim  tlie  rii^ht  to  board  the  ^'essel 
and  if  Hnd  liy  her  papers  she  belongs  not  to  the  Uiiiteil  Slates 
but  to  I'ortU'^al  or  .Spain,  to  take  hor  witho;it  nivinif  you  a  cause 
tor  (|uarr<d  or  f^rievanet'.' 

The  United  .States  position  to  the  I'ontr-iry  was  taken  and 
\  indicated,  and  it  is  the  position  of  tireat  Ih'itain  to-day — that 
.")!)  the  lla;;',  e\en  under  these  (londilions,  would  make  it,  in  times  of 
peace,  a  wronij  for  any  other  power  to  int(M-fere. 

ContinuiniT  as  to  the  position  of  my  learn. ■(!  friend,  takepa;;es 
III  and  ')2  of  the  Unite  1  States  Arguim'nt,  where  it  is  siid  :  — 

"  It  follows,  that  if  (b-eat  Hritain  shall  shift  from  (he  yr.juiid 

"  lu'retofor(i    taken,   that    ownership    in    ih.it    nation's    [)olitieal 

subjects  is  concluded    by   showin;^  a   ship's   riiris'.er,  and    now 

'  claim  the  rij,dit  to  protect   Ameriean  citizens  as  agairjst    their 

"own  country  becai;  ^e  of   their  domicde   (a   proposition   nevor 

'  ii,,ii(i   of   before,  ex:  ![)t   in    the   aiiru  uent    heri'),  the    eh.inge 

HO   "  sho\dd  start  frtun  the  i^ostidate  as  to  them,  that   tln'ir  domicile 

liy  residence  has  been  eMiclusi\ely  shown,  b  ith  at   the  tuu'  of 

"  the  seizure,  and  at  the  t.i'ie  of  the  Ire.ity  and  ]iresenta:ion  of 

■  the  claims. 

"The  (piestion  remains  a    to  the  etl'i-L't  of  p.irt  owui'iship   by 


"  m 


H^ 


.1 1 


N    !' 


1'    |i' 


liU 


fm 


■w 


4:{-J 


(Sir  Charles  H.  Tapper's  Ari^iiiiient.) 

"  ail  Ainericim  citizen  with  a  Britisli  siibjopt.     If  joint  owners  or 
"  partners,  tlie  whole  claim  must  fail  beyond  (|UeHtioii." 

So  that  1  say  that  the  |K)sitioii  of  my  learned  friend  is  not 
only  contrary  to  the  well  settled  doctrine  of  law  and  practice  of 
nations,  but  is  a  doctrine  frau;;ht  with  the  {gravest  possibU^ 
dan^'er,  and  inconsistent  with  the  imlependence  of  the  nations 
10  and  with  their  i!xehisive  rifjht  in  all  municipal  concerns.  My 
learned  friend,  a  moment  aj^o,  su<rj;csted  to  me  the  cause  of  the 
dirtieulfies  that  broiij^ht  to  a  head  the  discussion  which  at  times 
became  dani;erous  between  (ireat  Hritain  and  the  United  States, 
(■reat  Britain's  efforts  to  su|)press  the  slavi?  traffic  i)ei;an  at  a 
veiy  early  ])eriod  in  this  centur}-.  Her  enerj^ies  were  remark- 
able ;  C-t()(),()()')  were  paid  Spain,  practically  to  obtain  the  rijjht 
to  visit  and  search  vessels  carryintj  the  Spanish  tlajr  that  were 
eii^aijed  in  the  slave  trathc. 

It  is  to  till!  crisis  that  occurred  between  (Jreat  Hritain  and 
20  the  United,  States  in  1>H4!,  that  I  wish  to  particularly  refer.  It 
j^rew  out  of  the  action  that  had  been  taken  under  the  circum- 
stances already  mentioneil,  where  the  United  States  tlajj;  was 
usi'il  by  vessels  not  owned  nor  belon<,'in<;  to  the  United  States, 
but  owned  and  beloiiiiinjf  to  nations  which  ha<l  agreed  that  Kiii;- 
laiid  could  search  tl'eir  vessels,  and  should  take  them  if  en<faued 
in  slave  tratlie. 

Ilistoricus  (pawl's  IS2:  and  IH.S)  says: — 

"The  rif,;ht  of  search  is  exclusively  a  belligerent,  right. 
"  Neither  the  American  nor  any  other  (iovernment  has  ever  dis- 
J{0  'jjiitedthe  right  of  search  in  war.  What  the  American  (Jov- 
'  eminent  denied  in  the  discussions  on  the  subject  of  the  slave 
"  trade  was  the  right  of  search  in  time  of  peace.  In  this  dis- 
"  cussion  the  Americnn  (iovernment  was  un(|Uestlonably  right  in 
"  point  of  law.  The  English  (iovernment,  without  maintaining 
"  explicitly  the  right  of  search  in  time  of  peace — a  pretension 
"  which  would  not  liear  argument — had  contended  for  a  iiiodi- 
"  tication  of  tiiat  i-ight  disguised  under  the  name  of  a  right  of 
'•'visitation,'  which  it  was  contended  was  neeessaiy  for  the 
"  purpose  of  verifying  the  /w)(ri  Jiili'n  of  the  ship's  thig,  and 
40  "  ascertaining  her  nationality.  This  doctrine  was,  however, 
"  found  on  examination  to  be  unsustainalile,  and  the  (lovern- 
"  ment  of  Lord  Deriiy  in  1S.'),S  very  properly  intimated  to  the 
"  Americans  their  formal  abandonment  of  the  pretension." 

The  foll"wing  words  are  from  the  speech  of  Mr,  S.  Fitz- 
gerald, the  Under  Secretaiy  of  Koreign  Affairs,  July  1-,  bS.hS. 
(Mansard,  vol.  l.")!,  p.  1:^07)":— 

'•  As  I  stated  to  the  House  not  long  ago,  as  soon  as  Her 
"Majesty's  (iovernment  found  that  the  right  which  we  have 
"  hitherto  as.serted  of  verifying  the?  national  flag  was  one  which 
no  "  w(!  were  not  entitled  to  put  forward,  they  thought  it  only  be- 
"  coming  the  dignity  of  a  great  nation  at  once  to  say  so,  and  not 
"  to  ])ut  forward  a  right  which  we  could  not  justly  ami  legiti- 
"  inately  assert.  " 

Lord  Lyiiilliiirst  in  the  same  volume  (p.  '20S2)  exposes  the 
absurdity  of  the  distinction  between  visit  and  search.  He 
says  :— 

"  What  is  the  use  of  visiting  if  you  can  do  nothing  '  The 
"  moMieiit  you  ask  a  single  (|uestion  it  l)ecomes  a  seareli.  Hut 
'■  suppose  a  party  visits  only  in  the  strict  seiisi;  of  the  word,  wliat 
<iO  'right,  I  ask,  has  any  person  to  go  on  board  a  vessel  to  visit  it 
"  without  the  eonse'.t  of  the  master  ?  Lord  Castleroagh  in  IS  I.") 
"applied  to  the  Flench  (iovernment  to  establish  some  mutual 
'■  systiMii  by  which  cruisers  could  visit  the  vessels  of  each 
"country;     but    the    Due    ])e   Richelieu     replied    that  France 


4a» 

(Sir  ('liiii'lcs   II.  Tiiinici's  Ai'^iiiiiiciii.) 

WDuld  iii'V.T  (.'oii^uiit  ti)  IV  uuiriiiiiii!  i)i)lii.'i'    ln'iiii,'  cstjiljli^ilu;  1  on 
ll"l'  own    suhjucts,    I'XJcpl    \ry    [,,  ;•  ..>ii.,    '...  Ii.n^in^    i,i.    li.;,     D'.VIl 


lUiitrv. 


jiatiDiulitv    I) 


IHMctioal 
f  tl 


liilii'ultii-s    ill    till 


•rlniiiiiiL'    tlis 


II'      Vl'SSl- 


vvtTi'    iiisi-.ti'il    iiiMin    IpV    tlic    r<ii: 


I'l 


iiiii'iit  ;  Uiit  tl 


Liiu'ficaiis  ri'hi-^oi 


,111  I    r^'l'iisoil    ,MiC('('«s- 


1(1   liilly.tii  iitliiiifc  Lliis  us  niiy  i,'i-i)iiiiil  tor  ile|iiutuit^  I'ruin  tin-  rulo  of 

llUV.        Ill      till!     Nfimo     ijl'lilltl'      IjIIIiI      MmIiii  — ■     r_.   ,    (;..    I  ih\,} )     HHul, 


llUV.        Ill     til 
uilllllllt 


•tlllll 


Till-  Aiiirriciiii  inncriiiiii'iit  ussiTt  timt   tiifv  iiu'i  ii  riirlit  to 


iiiiiiiitaii'.  tiii'ii'  own   |iiiii(M 


if  till'    Aiiii'riciiii 


il    timt,   wimf'Vir   nii;;liL    in'    nii 


II 


i'^iiL  lo  visit  it.     'rii"y   sniii  llial  tiicy   (_•  )ii-;t;;iitly  carricil  out 
itatioii  liy  tiicir  own  |>i)lici',  umi  tliry  wmiid  not  In-  rrici 


was   llyiiij,'    wt'    liiiil    no 
a 

'I 

itti  liy  any  otiicr  conntry. 

In  timt  siiiii>>  yi'ar,  thine  IS.'i.S,  tlic  Unit  'd  States  Minister  at 

■>i)    i.niiilon,  writiiii;  to  lionl    Maiiiiesliury,  (tlie   letter  is  I'ouiid    in 

(lie    liiiie  lioolv,   voilliuo  .'{',),   Navy,   lti.'i7-'iM    uses  ant  Inntniiii^e, 

i  ie  says  :-— 

'■  liy  tlie  tVaiiiiiiieiit  iirostitiitioii  of  tiieir  tla^',  to  eovei-  a  tnuie 


wliu'li,  as  res|ji 

tiie  penalties  of  jiiraey 


•ets  tlieir  own  liti/.en- 


tlii-r 


lllte 


tli 
State 


•y 


ll. 


•ele 


to 


liceiitioii.s  msok'iiee    to    winch  al 


hap 


ire    treatt.'il    with  a 
nall\ 


nations    aii;   eiinally    liable 


])ily,    liDwm'er,   only  from     tlii>     leclvlessiy     ei'iinin 


T( 


resiiit,  an  ),  if  ])ossil)le,  to  piinisii  unci  prevent   that    insolunct', 
is  a  (liitv 


exeliisiveiy   ineniiilient  upon   tlieir  own  s 


t-re,si)( 


'Ct; 


:!ii 


41)  .1 


r.o 


(iO    • 


ami  their  exertions  to  etleet  that  oliject  in  I'Very  loLritiiiiuto 
way  are  constant,  nnwearieil,  anil  sincere,  lint  can  it  ln^  pre- 
ti'iuleil,  for  tl  iiioiiieiit,  that  tile  wroiij^  thus  intlictC'l  hy 
I'oiispirator.s  ami  outlaws  siioiihl  constitute  a  luotivu  for  the 
American  ifovernmeiit  t  >  yielil  their  L'([iiaiity  amoni,'  nations; 
lo  forci.^o  tlieir  aclviiowleiljieil  rii,'lits  iiiuler  the  Law  of  Nations; 
to  siiliject,  voluntarily,  their  commerce  toafoieijuii  iiiaiitiiue 
police,  and  .so  siiiiendtr  their  I1.il;  Lo  the  doiiiili.'  indignity  of 
'  misuse  liy  tlie  wielded,   ami  clialleli;;e  liy  tile  .stroll!.;  i'  " 

tieneral  Cass,  then  Secretary  of  State,  in  tlie  same  month, 
iiiU'.  IS-VS.  writini;  to  Mr.  I)allas,  says  in  laiiL;iin:^e  wliicli  can- 
iil  he  misunderstood  : — 

'Tlie  President  is  aware  of  the  aluisrs  to  wliicli  the  fraU'hi- 
leiit  ussum|ition  of  tlie  tla:,'  of  om-  oower  liy  the  citizens  or 
siilijer'ts  of  another,  may  j;ive  rise,  ami  lie  di'i'i)ly  regrets  that 
llie  Ihl'.^  of  tin.'  lillited  .Sl;ates  has  ever  heell  prostituted 
to  uiiwortliy  puiposes  liy  such  a  reprehensible  proceed- 
ing. At  the  same  time  he  eiitert.iiii.s  ii  .stroni:; 
loiix  iclion  tlitit  the  oecasional  alnise  of  llio  llaj;'  of  any  nation 
is  ;u!  e\  il  f.ir  less  to  he  deprecated  than  would  he  the  e.stah- 
lishmeiit  of  a  preti'iiKion  lil\e  this,  which  i.s  iiieom]).itil)li'  with 
t  111'  free  lorn  of  the  se.is.  Hut  while'  fi\  ijwin;;  t  his  eiin\ietioii, 
lie  instructs  me  to  s;iy  tliat  the  Unilivl  .States  .-ire  not  less 
s'ljieiious  than  (Ireal  ISiitain  tli.at  a  remedy  should  lie  found 
for  I  lii.s  false  I'luploymeiit  of  national  colours,  to  wliieli  J.iOrd 
Maiiueshiiry  reft.'i'.s  in  just  teriii.s  of  condemnation,  and  the 
I'residelit,  thoUj,di  not  prepared  to  make  any  sut;'ji'estioii  iifion 
tlie  sulijeet,  i.s  yet  re.-idy  to  receive  any  propositions  which  the 
I'liitisli  ( iovernmeiit  may  feel  disposed  to  make,  and  to  con- 
sider them  with  an  earnest  hope  that  the  objei't  may  be  hafely 
.'iiid  satisfactorily  attained. 

"  liiil,  wliile  coinmunieatine  to  his  Lordship  tliese  faNoralile 
seiiliiiiellls  of  the  Presicleiit.  it  is  due  to  the  oceasioii  ti  i  Hji  y 
that  there  are  j^rave  dillieulties  in  tlie  way  of  recoiicilin^r  any 
kind  of  ex.iiiiiiiation,  loolviiiiJ' to   tlie  detention    of    vessels,  with 


ill 


jl     Ii 


!   U 


TWifsif" 


l^wi^n^^ 


4:t4 


(Sir  ('IimiIi's   II.  'rii|i|)c'i''.s  Ari;uiiifiit.) 


tliiit  I'lilirt'  immiiiiit\'    w  liii'li  is  sn 


•riiitfil  Sl;lt. 


tu    t  lie    Iieu|)lc  of   tlii 


mikI  Mil  iiii|iiii'tMiit  til  nil  I'niiiitii'ni.'il  iiiitiuiis. 


1 1 


jiract  iciil  i|iirHtiiiii  wlmsf  n;  Jiitinti  ri'i|iiir('s  iiiwrli  ciiuliuiis  enn- 


'  siilcfiUiiiii.  tiMii  ;ill  tlif  iiMsiii'iiiici'  tliiit  ciin  imw  lir  jrivoii 


I'y  tl, 


IN 


«' 


vcrmiii'iit  is,  tliiit  if  hIiiiII  litMliMciisstHl  witli  iinaiixiniiH  dcsin 


tliiit  it  iiiiy  111'  MM  iiijjiist  i'll  as    tu    |ii'cs('iit    tlio  evil  tu  lii'  cmii- 
10   "  plaiiii'ij  of,  wiiili',  Mt  till'  sHiiH- tiiiii',  till' ucoaii    hIiiiII  lir  ji't't  I'li'i. 
'•  tl)  till'  iiii'i'i'liMiit    vi'ssi'ls  III'   all    iiatiiiiis,   I'acli    iiiaiiitainiiij,'    its 
"iiwii  iiiilici'  witliiiiit  till'  iiiti'i'fcri'iici' III"  iitlii'i's." 


A;;aiii 


irlli'ni 


I  ('ass  writ  ill!'  in    Is")!'  tu  Liird  l/Voiis: 


I^L'aviiiir  (lilt  111'    vii 


h  li 


I'W  ttic  cniiK' Ml    jiiiacy,  \\  liicli  lia|i|iily  is 
now  .si'liliiiii  cnininitttMi.  tlii'  niily  instance  (t-xi'i'iit  ninliTtrcatvi 


111  wtiich  a  slii| 


if 


war  may  ')•'  fxcnsi'il   in  visiting,  ili'tainn 


'  arri'stiiij;.  (ir    si'i/inj,'    miy    niiTcliant    vcssi'l    lii'aiiii^  a    I'liri'iL'M 
'  tiai',  is  wlicn  Hiicli  vessel    is,    for  irooij    ami   siiMl'-ie'it     ri'i'-j""; 


Ijclieveil     to    lieloiiif, 


fact,    to    till'    coiiiitrv    of    the    visit- 


20 


lie 


I  localise 


slii|i.      A    slaver  cannot   lie  iletiiineil  liy  a    forei<;ii   vessel 


it  is  a  .slaver,  unless   the    rii;ht  of   detent 


ion     111  Sllcli  ;| 


case 


ha.s    been    conferred    liy    the    j;ovei'iiineiit    te    which  t 


furei;;ii  vessel  l)elon;,;s.      Ivxcejit  so  far  as  it  may   have   parted 


itii  it   liy  treaty,  every   nation    Iihh 
own  llaij  iijiiin  tle'hi^li  seas 


th 


e  exclusive  care  o 


f    it^ 


In  this  return  their   is   an   interestinj;  draft  of   the  proposid 


iiist  met  lolls 


to     \li 


riven    should    the   rnited  States  airree  for  ii 


visit  and  scare; 


"  1< 

'M  thi 


Kii;;laiiil  forwarded  draft  instructions,  and  sa 


Kl 


ranee   ai 


ml   oiirselveN.  and   the  other    I'owerH,  are  ai;rceiii'r  to 


And  what  wi.re  they  ?      'I'he   rnited  States  was  tijrht 


llie 


for  the  immunity  of  the  llai;,  and  declined   to  allow  or  coni'iHe 
to  KiiLrland  to  verifv  the  i'i>dit  to  carry  the  AmericMii 


lermission 


,  hii'li 


you,    was  to  he  deterinined   liy  the  {lapei 


hoard    the    ship.        Knj^dand     did     not    even    a.s 


k    to    j^o    III 


hind     the     p,'i|iers.        The     instriictioiiH     agreed     to      by     tli 


powers 


■aloiis,  and     I      believe 


propi 


■rh 


il( 


every    power   was   of  awy  claim  of  pretence   beine;  made   liy  a 


f(i 


orHiiiii  iiower 


';;•>  1 


to    interfere   with  their   ship.s 


uiifier  tlie 


Ntroiijri.st    possible   circumstaiici's.      I  will  read  the  jiroposed  ii 


40  struct i( 


As   soon   as   the   niereluint    vessel    by  hoistiii;,'  her  lla;;.  Ii: 


established    her  nnti 
no  authority  over  hei 


itv,  the   foreii'ii   man-of-war  can 


Til 


e  utmost  wliiel 


th 


e  latter  c 


ail  d( 


Uncertain  cases,  to  cl.'iim  the  rijjjlit  of  Hpcakiiig  with  lier;  that 


is  to   sny,  to   ask    her   to  rejily  to  i|iiesti 


ddn 


d   to  h 


throu^^h  a  speakin;,'  trumpet,  but  without  interferrint;  with  In 


coursi'. 


With  th 


llljeet 


it  shall  be  sent  toth( 


rhicli 


lall   h 


bi 


I'll    1 


ireviouslv 


haili 


SlISJ 


lec 


ted 


vessel 


to    annouiice    tin 


intended  visit.     The  \r.|-i(icatioii  shall  consist  rif  the  examination 


of    the 

exhibit! 

All  I'doi 


if  tl 


1 


roviiii 


the    ii,'ilionalit\'  of  the    vessel.       Tli 


lese  docuinelits   is  a 


II  t 


lat   can    be  desired.     All 


ito  tl 


le  11,'itliri 


if  th 


or,  ill  a  word,  I'li   nii\'  other 


oared, eiimnierciMl  ojieiatiiuiH, 
it    but    that    of   iiatioiialit V,  all 


eh 


o|-     Vlsl 
itlici'i'    intiiist'' 
jroeei'diiiLfs   wit 


t    of    an\-   kind,  are  absol'itel v   forbidden.     Tl 


ith    the   veritication    oii'dit   t 


o  com 


lilet     his 


it    di 


CO 


Ve  the   \ 

■1-in^  to   enter 


iscretion  and   with  all    courli'sy,  ami 

111  .'IS     the  \e|-ilic;it  ion    has    been    ell'erti'il. 


ill    the    shlli 


Stan 


if  th 


Ni'i'ihcation,  am 


jis    pai 


iMtiers   till 


fact, 


and    circinii- 


I  tl 


motives  which   deterniiiii 


h 


iiii  to  resort  to  it. 


-M 


I  )ickinsoii 


Tl 


If  Jiroposed  iiist  ructions  were  never  aj^ri 


Ill 


4nr, 

(Sii'  Clmrli'N   II,  'riipjji'i'.H  Ai';;umi'iit.) 

Sir  ('liiirli'H  Mibhcrt  'i'lipjuT  :  —  No;  Imt  my  |p()iiit  is  tlic 
ri'iisonaliiiMit'Ks  of  tlio  rtMiiifst  iiiiili,'!'  tin-  circiiiiistimcds,  imil  tticii 
ilii'  position  of  till'  Uiiitt'd  Stati's  iiotwitlistftmlin;,'  all  tlicsf  sufc- 
Ljiianls.  "  Wi!  ciiimot  on  (iccoimt  of  oni'  or  two  nioi'i-  tiiifortnnat" 
iiTi'Lfulftritics  and  aliases  yiuM  a  saff-^'iiaril  alisolntrly  essential 
to  tlie  indepence  of  tlu;  niuritinio  interests  of  tin;  United 
StatoH." 

It  was  not  until  18(12  that  tiie  United  Status  wert)  prepared 
to  make  an  arranv;ement  of  tliat  diaracter,  as  w«  shall  ueo,  with 
tJreat  Mritain,  applieahle  only  to  a  limiteil  part  of  the  African 
coast,  so  jealous  Wert!  tliov  of  any  interference  or  an\'  attempt  of 
nations  to  ^o  hehind  the  Aniorican  tla;,'. 

At  one  o'clock  tiia  Comniissiuners  arose. 


-"  At  half-past  two  o'clock  the  (.'omuiissioneis  r(>snmeil  their 
seats. 

Sir  Charles  Ilibbert  Tupper   (continuinj.;) : 

I  mentioned  a  little  whih^  as^o  that  it  was  in  I.S(!2  after  these 
(|iiestions  that  J  had  referred  to  had  been  threshed  out  between 
the  two  poworn,  (ireat  J^ritain  and  the  United  States,  that  the 
United  States  were  at  last  reaily  to  enter  into  an  arranj^«'meiit 
and  to  ti.x  the  terms  upon  which  they  would  permit  tlie  (iovniii- 
inent    of  Great    Britain  to  interfere    with    ships  earryinj,'  the 

30  American  tlajr.  In  the  volume  entitled  "  Treaties  am]  Con- 
ventions between  the  United  States  and  other  powers,  177G  to 
JSS7  "  at  pa!4e  4.")4  will  be  found  the  result: 

.Mr.  ])iekinson  ;— The  Ashburton  Treaty  in  1842  had  first  the 
general  provisions  as  to  slavers. 

Sir  Charles  Hibbert  Tupper  : — Yes  ;  and  the  trouble  was  that 
in  connection  with  that,  England  pressing  all  the  tiine  for  some 
eli'ective  power  in  coiniection  with  the  detection  of  these  slavers, 
the  United  States  would  not  consent,  and,  as  tln>  corresp-indence 
undoubtedly    shows,    would  not  permit  the  warships    of  Creat 

40  Britain  to  touch,  interfere  with,  visit  or  search  any  ship  whether 
Spanish  or  Portuguese  in  reality,  which  in  a  time  of  peace  was 
carr3'ing  on  the  \nfi\\  seas  the  American  tla^'.  But  in  1S()2  these 
pnvers  reached  Homethini;  delinite,  and  (at  ]iajj;e  4")4)  thei'e  is 
the  treaty  of  18(i2  reached  by  these  powers  for  tlie  siippiessioi\ 
of  the  African  slave  trade.  In  adilition  to  the  observations  I 
made  this  mornini;,  I  call  attenlion  to  the  fact  that  in  that  treaty 
tlie  United  States  took  the  Lrreatest  possible  care  that  even  tho 
permission  to  visit  or  interfere  with  .ships  carryint,'  their  ilai,' 
should     be    limited     to  a  comparatively     small    porlinn    of  the 

•"lO  waters  of  the  (ilobe,  and  in  connection  only  with  this  one  tratlic 
which  both  ])owers  desired  to  discountenance,  and  in  refei'- 
ence  to  which  the}'  were  in  entii'e  accord.  We  see  how 
jealous  the  United  .States  was,  and  properly  so  T  submit,  of  the 
indepence  (jf  their  tlai;.  Tiie  greatest  possible  cure  is  taken 
here  that  iMii^land  under  that  tn;at_v  should  not  i;o  bi'hind  the 
papers  althou;,di  she  was  )iermitteil  to  j^'o  l.i'hind  the  flau;.  Tlio 
articles  are  set  out  in  this  treaty,  anil  considerini,'  the  loo'^  time 
that  we  have  necessarily  occupied  in  the  discussion  of  all  these 
matters,  1  do  not  intend  to  trouble   the  (\)iiimissi()ii  b\-   readiiii; 

liii  into  the  record  of  this  art!umi>nt  thesu  provisions,  I  merely  call 
your  Honors  attention  to  th(Mii  knowing  that  they  will  be  fully 
examined  by  3'ou. 

The  Commissioner  on  the  part  of  the  United  States  :-~riease 
refer  briellj  to  the  provision  on  which  j'ou  lay  the   most  strus,' 


■1.      M 


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IMAGE  EVALUATION 
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■u  IM    122 
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^   bS    12.0 


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IL25  III  1.4 


1.6 


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«^ 


23  WEST  MAIN  STRIET 

WEBSTER,  N.Y.  M5M 

(716)  173-4503 


4:t(i 


(Sir  ("liiirlcs  II.  'riipiiir's  Ar^umciit.) 


Sir  C'liftfli's  Hililu-rt  Tiiitpcr :   -TlK-y  are  nil  set  out,  if  your 


I ' 


4.H. 


Tlif  ('omiiii-sioiR'iMiii  tln'  part  of  tin-  United  States; — HricHv 

■r  '  '  ■  !!■  (Ml  wliicli  yoii  rely  tlie  iiiont. 

Sir  (Iharles  llil)liert  Tiipper:  -Artioie  one  I  think  covirs  all 


tlmt  1  l!e^ilt'  to  refer  to. 


10 


Mr.  Dickinso: 


.Vrticle    si,\    vvotiM    fiive   tlie    evidence,  on 


V,i  i'  ••  _       1    ii,h>l   net  uIm). 

Sir  ('luirifs  llililieit  Tupper  :— .My  learned  friend  i-efers  to 
article  si.x,  wliicli  deiil>  with  them  erchant  vessels  detained  when 
fonnd  equipped  with  certain  thing's  such  as  shackles  and 
nianHoles,  whicii  would  tnidoniitedly  ^'o  to  show  that  the  ship 
wa-^  iLsed  for  only  one  purpose. 

Mr.  ])iekinson  :- They  were  made  prima  facie  cvidcnc  of 
the  vessid  lieinj;  a  slaver. 

.Sir  ("!;;irli's  Hilihei-t  Tiiiipei- : -I  a;;ree  in  that,  lint  article  one, 
20    for  my   purpose,   is  the  article   to  which     I  refer    in  that  trealv 


(iO 


•ili.iwiii.T  liiiw  very  careful  these  nations 


that 


even    111 


that  extreme  case,  which  is  the  most  extreme  that  couM 
be,  when  they  are  allowinj,' this  riylit  of  vi.sit  and  search,  it  pro- 
vides that  wdieii  the  papers  were  all  rii;;ht  then  the  foreij;ii 
jiower  .should  lie   satislied,    and    any    irrefjidarity    heyoiicl  these 

the   ;i<ivernmiMit    e;ivin;;  these 


pap 


'IS  was  a    matter    solelv    lor 


national  papers  or  national  certitieates.  Hut  itdid  not  lie  in  the 
forei;,'!!  ^^ovcrniiieiit  to  <io  lieyond  these  doeumentK. 

The  ('(inimissioner  on  the  part  of  the  I'liited  States: — I't^-- 
'.\0   haps  you  would  re;id  into  the  evidence  which  you  rely  on  f 

.Sir  Charles  Hililiert  Tujiper :— I  am  much  ohlij^ed  to  your 
Honor  for  that  sn;,';;estion. 

Article  I,  reads: — 

"The  two  liij^li  contriictinj;  parties  nnitnally  consent  that 
"  those  .(hips  of  their  r>s]ieclive  navies  which  shall  lie  proviled 
'■  with  Hiiecial  instruction  for  that    iiuriiose,  as    hereinafter  iiieii- 


lioned,  may  visit  such  merchant    vessels  of  the  two  nations  as 


"  mav.  uiKiii  retisoiiabie  jfrounds,  lie  susiM'ctiu  i,,    _  ,  ii^ain'il 

"in  the  .\friejin  slave  tiiide,  ur  of  havinjj;  been  fitted  out  foi'lhat 

40   "purpose;  oi- iif  haviii;,'.  d'M'in;;   the  voy!i;;e   on  which    lln'yaie 

"met  by  the  said  cruisers.  Ih'cii    en;ra^'ed    in    tin-    African   slave 

inlrary  tothc>  provisions  of    this  treaty:  and  that  such 


trai 


cruisers  mav  detain,  and  send   or  carrv    awa\'.  such  vessels,  in 


order  that  they  may  be  bi(iu;;lit  to  tri.il  in  lie'    iiiaiiner  leTiii 


ifl 


er  a^leeil  Upon. 


Ill  ordi'i' 111    tix    the  reeiproc'il    rii,'ht    of    M'areh    in  such  a 
liner  as  shall  be  .'idapteil  in  the    attainment  of  the  object  of 


manner 


this  treaty,  and  at  the  .same  time    avoid   di 
coiiiplaiiils,  the  said  ii;,dit  of  se;ireh    shii 


mills,  cjispiit 


aiH 


Ulldelstooil   in  llie 


oO   "  ni.uiiier  and  acedidinjr  In  the  im 


les  f. 


First,      It  shall  never  In 


low  my; 


exi'l'elseil  e.v.iM'jit  liy  V 


ds  of 


war, 


RUlhori/ed  expressly  with  I  hal  obji-ct.  aeeoidiiij;  to  thi'  sti]Uil 
tionsof  this  treat\'. 


'  .SiToiidlv.     The  ri'dil  of  se.ireh  shall  in  no  ease  I 


with  respect    to   ,1     Vi'KM 


I     of     till'     lia\  V     of   elliiel' 


le  exercised 
>1     tilii     iwo 


powers,    but  shiill  be    exercised   only  as  re;;ards  nierehaol  \i 


•Is 


it  sll.lll  not  be  exercised  bv  a  Vessel  uf    Wiir    of   I'itlier 


'  eoiil  racliii^;  pa 


'I \  within  til    limits  of  a  settlement  or  iiort.  noi 


.itliin  the  territorial  waters  of   the  otiiei-  party. 
ThirdK'.      When"  \er   a   nn'iehant    vess 
f 


IS  seart 


1" 

bed  1 


>V  ■ 


shiii  ot    war 


the  coiiimander  of  the  said  ship  shall,  in  the  act  of 
HO  doiii;;.  exhibit  to  I  he  ccimmaiider  of  lln'  merchant  vessel  the 
sjiecial  inst  riielioiis  by  which  he  is  duly  authori/ed  tti  .search  : 
imd  shall  deliver  to   such    commander   ii  eertiticate,  siyned  by 


437 

(Sir  C'lmrlcH  H.  'I'uppor's  Arguim-iit.) 

"  liiiiiM-lf,  Htatiii^  luH  rntik  in  tlu;  iinval  Hcrvice  of  hin  country, 
"  uikI  tluMiiiiiU' of  the  vcssi'l  lu'  (i<iirni<iiiii.-<,  nin!  tti.^u  tK'cliP'iiig 
"  tliiit  tlic  only  ol>i<'ct  of  tlic  Ht'iiicliiH  toflsrcrtain  wlictluT  the  vcs- 
"  hijI  is  eniployffl  in  the  African  Hlavi'  ii;i('i'  rr  is  f'ttpil  tip  for  tiie 
"Hiiid  trade.  Wlicn  tlic  st^arcli  is  inailc  hy  an  olfict-r  of  the 
cruiser,  who  is  n<it  the  connnnnihT,  sncli  otKcer  sinill  <-xiiihit 
|0  "  to  the  I'iiptain  of  the  iiuTohant  vessel  a  copy  of  the  hefore- 
"  niuntioneil  sipecial  inntruetions,  si^nifu  '•»  *' r  coiiiiiiaiiiipr  of  the 
'•  cruisei' ,  Mnil  he  shall  in  like-manner  ileliver  a  certificate  signed 
'  hy  himself,  stating  his  rank  in  the  navy,  the  name  of  the 
"  couniiancler  liy  whose  orders  he  |)r(iceeds  to  make  tin;  search, 
"  that  of  the  cruiser  in  whicli  he  sails,  and  the  ohjeet  of  the 
"  search,  as  ahove  descrihed.  If  it  appears  from  the  searcli  that 
"  the  papers  of  the  vessel  are  in  rej^ular  order,  an<l  that  it  is 
"  employed  on  lawful  oljects,  the  oHicer  shall  enter  in  the  lo^'- 
•'  book  of  the  vcf.ssel  that  the  search  has  heen  made  in  pursuance 
'jD  "of  the  aforesaid  special  instructions;  and  the  vessel  shall  he 
"  left  at  lihert}-  to  pursue  its  voyoin-.  The  rank  of  the  oHicer 
"  who  makes  the  search  must  not  he  less  than  that  of  lieutenant 
"  in  the  navy,  uidess  the  commiind.  either  hy  reason  of  death 
"or  other  cause,  is  at  the  time  held  l>y  an  otlicer  of  inferior 
'  rank 

"  Fourthly.     The    reciprocal   ri^ht   of  search  and   detention 

"  shall    he  exercised   only   within  the  distance   of  two  huncJred 

"  miles  from  the  coast  of  Africa,  and   to   the   southward  (jf  the 

"  thirty-se    >nd    parallel    of  north    latitude,  and    within  thirty 

;{('    ■  leajiues  from  the  coast  of  the  island  of  C'uha." 

That  is  the  point  of  my  reference  to  this  treaty.  Once  they 
have  allowed  an  ofKcer  of  a  foreign  power  to  j^o  on  boartl  u  ship 
tlyinj;  their  Haj^,  and  that  hy  treaty,  after  havinj^,  as  1  have 
shown  this  morning,  denied  their  ri^ht  without  treaty  to  ^o  on 
hoard  a  vessel  tlyinjj;  their  Maj^ — the  moment  the  papers  on 
hoard  that  vessel  are  found  to  lie  in  regular  order  and  that  the 
V()yaf,'e  of  the  vessel  is  lawful,  then  all  further  enipiiry  and 
inijuisition  is  at  an  end. 

Till!  C'onnnissioner  on  the  part  of  the  United    State.s: — Does 
4(1  the  treaty  nnike  a  provision  for  sending  in   a  vessel  for  condem- 
nation :' 

Sir  t'harles  Hihbert  Tapper: — l'vn,  there  is  a  special  jiro- 
vision  for  the  prosecution. 

The  ("onnninsioner  on  the  part  of  the  United  States: — Where 
were  they  to  be  seen  / 

Sir  Charles  llibbert  Tiipi)cr: — Article  •!■,  I  think,  fixes  the 
lovuii  of  the  courts— the  place  of  the  trials.  Wharton,  (vol.  2, 
paragraph  II,  pu;,'e214)  sets  out  a  circular  by  the  Department 
of  State  for  the  United  States  toiichini,'  the  information  reijuired 
.")(!  by  the  citizetis  of  the  I'niteil  States  wherever  a  ehiim  arises 
against  a  forei^'ii  jrovernmeni  and  the  citi/.eii  invokes  the  aid  or 
suppoit  c)f  his  national  (iovernm.-nt ;  at  paragraph  il  I  tind 
thi"  clause  : — 

"  When  the  claim  arisi's  from  the  seizure  or  loss  of  any  shiji 
"or  vessel,  or  the  carj^o  of  any  ship  or  vessel,  a  certitiu'l  copy  of 
"  the  enrollment  oi  registry  of  such  ship  or  vessel  shall  be  pro- 
"  duced,  totjelher  with  the  original  clearance  maidfestit,  and  all 
"other  papers  and  doctnnontH  required  by  the  laws  of  the  United 
"  States  which  she  possosed  on  lier  last  voyage  from  the  United 
tiO  ■  States,  when  the  same  are  in  i,lie  possession  of  the  clainntnt  or 
'can  he  obtained  by  him,  and  when  not,  certified  copies  of  tlie 
"  same  should  be  prmlucod,  together  with  his  oath  or  atiirmation 
'  that  th«*  origimiis  are  in  his  possessiun  and  cannot  be  obtained 
••  by  him." 


''    I 


M! 


fk^ 


Mil  it;  ^ 


II    ii 


if^ 


^. 


mM'f  ■■■■ 

:>^    i        : 


i ,   ;.  1 


4:iM 

(Sir  C'linrli's  H.  Tii])|)cr'.s  Ar^^iiinciit.) 

TImt  \%  tlitf  circular  issued  Ijv  tlio  Stato  DHpurtincnt  of  the 
Unit'''!  Statt^s,  tiiucliiiii;  the  pfirtii'iilars  r(ir|uiru<l  by  timt 
<lc{>ui°tiiii>iit  wlii-r*!  a  claim  lias  liccii  8«tit  to  it  to  lie  |ir)-f(>rrt''l 
u;{:iiiist  II  forfii;!!  pDWiT,  aiiil  relates  to  any  olniin  arisiiiij  frnin 
seizure  or  lo^-s  (if  ii  sliip.     In  tliiit  case,  in  ucconliiiice   witli   tlie 

imi,'    liti'- lit"   ailllmriries,  :)ll  tluit  tl\e   l"'ei|fnil  aiitlioritv  wishes  to 
10    kii  i\v  fiMUi  tliiit  |)ai'u;^ni|ili  is  whether  thechiiiiiant  in  (Miniieetinn 
with  the  ship  had,   wlmt  I  have  taken  the  lilii'rty  of  riilliiii;,  ainl 
I  think  with  the   Rnthnrity   of  jurists  —the    national    ci-rtifieate 
of  the    sliip.      i'lesident   (Jrant's  inos.viiffi  is  of  iinpurtanee.      It 
is  fonni  lit  tia'.'es  1  anil  2  of  the  Kxei;utivi>    Doeuinents   of    the 
■t.'Jnl  (."oniiri'ss   Himhi;  of  liejiresentutives,  1st  Se.ssion,  No.  Hi)  in 
th"  '•  V'r^ouins  "  ease       I'eiiiiit  me  to  call  particular  attention   to 
the  I'ln  ;!!;we    'vhicli.  in  this  year.    1H74,  thi!    President    used.-- 
.....    .1,    ...•,!.    I....  ,,f  s,.pteiiil.er,  I.S7(»,  the  ••  Vir^'iuius  '  was 

'..■....;.♦...•,, I  ill  tile  ( 'iistiim   House  at   New  York    as   the    pi-opiTtv 

20  "  (jf  n  citixi.'ii  of  the  l^iiteil  States,  he  havin;^  tirst  made  oath,  as 
•'  .  ••:■••  )  ),y  |,i\v,  that  lie  was  the  true  and  only  owner  of  the 
".said  vessel,  and  that  there  was  no  sidiject  or  citizen  of  nnv 
"  forei;,'!!  jirinee  or  stales  directly  or  indir-ctly.  Iiy  wa}'  of  trust, 
"  enntidenee  or  otherwise,  interested  therein. 

"Having'  complied  with  the  reipiisitcs  of  the  statiite  in  that 
"  liehalf,  she  cleared  in  the  Usual  way  for  tlii'  jiort  of  ('uraeini. 
"  and  on  or  uliout  the  4.tli  day  of  Octolier,  1S7<)  sailed  for  that 
"  port.  It  is  not  disputed  that  she  made  the  voyaeje  accordin;^' 
"  to  her  clearance',  nor  that,  from  that  day  to  this,  she  has  not 
•i<i  •'  i'.. turned     within  the  tiM'ritorial    ,jurisdicti()n    of    thr    United 

■  S>.-»..s.  If  is  alsii  understood  that  she  preserved  lier  Anieriean 
'•  jiapers,  and  that  when  within  foreij{ii  jiorts  she  made  the 
"  practice  of  puttinj^  forth  a  claim  to  American  luitionality, 
"  v,!.i,;!i  'A  as  ircoi.'ni/.od  hy  the  authoriti*!s  at  such  ports. 

•  When.  theref<)i-«',  she  left  the  port  of  Kinf^stoii,  in  Octoher 
■■  last  umli  r  the  lla<;  of  the  I'nited  States,  she  would  aiijn'ar  to 
"  have  had.  as  !'i.'aiii«t  all  powers  except  the  I'nited  States  the 
"  i'i;4;ht  to  lly  thai  tia;;.  and  to  claim  its  protection,  as  eii,ioyedliy 
nil  rej;ularly  iloeumeiiteil  vessels  re;;i.slered  as  a  part  or  oii.i 
'  ciiiiimercial  m.irine. 

'■  No  st.-ite  of  wai'  existeil.  conferrinj^  upon  a  maritime  power 

•  the  ri;;ht    to    mole.xt    an<l    detain    upon    the  hi;,di   seas  a  doiii- 

•  iiH'iited    vesKel:  and    it    cannot    he    pretended    that    the  '  \'ir- 

■  e;inius'  had  plaeed  hi-rself  withont  the  pale  of  the  law  hy  acts 
'of  piiaey  a;^ainst  the  human  race. 

"  If  her  pijiers  were  iire;;nlar  or  fraudulent,  the  otlence  w.-is 
one  a;,'aiiist  ihi-lawsuf  the  I'nited    States,    jnstitialile  only   in 
'  their  trdiuiials. 

Skipping,'  a  ])ara;;i'aph,  I  read:  - 

•  Tie  principles  upon  which  these  demands  restecl  conld  not 
'•  111- sriiiiusly  i|UeNtione(|,  hnt  it  was  sn;,fj;ested  liyihe  Spanish 
'■  ;;overnnient  ih.at  there  were    ;,fr!i\e  donlils   whether   the  '  \'ir- 

■•  ;;inins' was  eiil  iilid  tutl haiaeter  ei\en    her   hy  her  jiapers  ; 

"aiidthat  thei-efure.  it  nii^dil  he  jnoper  for  the  I'niled  .Siatis, 
"aftei'  the  snriendiT of  the  vessel  and  the  survixdis,  todispen.se 
"  with  the  salute  to  the  lia;;',  should  such  fact  lie  estalilished  to 
"  their  satisfaetion.     This  seemed  reasonahle  and  .just.      I  tiiere- 

■  fore  asst.nted  to   it.    on    the  assnranee    th.at    .Spain  would  I h<  ii 

■  deelare  th.it  no  insult  to  the  lla^  of   the  I  'nited  .Stales  had  I u 

<)l»    ■•  int.nd.d." 

A;,'ain  skippiiiLC  a  ii.iia;;raiih,  I  read: — 

"The  surrender  of  the  vessel  anil  the  survivors  to  the  juris- 
"  diction  of  the  trihunals  of  the  I'niled  States  was  an  admission 
"of  the  principles  upon  which  oiu'   demand  had    lieeu  foundefl." 


40 


.)(» 


(Sir  I'lmrlfs  H.  'rnppci's  Arf^iiiiifnt.) 

'I'lint  tMiviTs  llii-  cviilriKV  l(»  wliicli  I  ailvt'i'ti'i]  this  n.oriiin;;: 
llii'i'viilciK  I- ix'li'.'ir  iiikI  ii<>(  ili^piili  ;I  tli;it  IVaiiil  Inn!  iMTiiprdcliscii 
iij)i)ii  tlio  liiws  of  till'  I'liilril  Stud's;  tliiit  SpiiiiitinlH  wimt  tin- 
ri'ul  nwiii'i'M  iif  lliitt  vi'Hsi'l  ;  tliiit  tliiit  vrsHi'l  ImviiiT  Dlitniiii'il  ii 
tiHiniult'iit    it';;iMtiy    I'loiii    tlin    riiiloij   Stiili'.s,  iiinl    Irailiili'iitly 


•■siiiiii'il  till-  flu  1' 1)1'  till'   riiitfl   Stat 


.■!•;  cliri'ctr:]  with  mii 


(I  ami  niiiiiiiiiiitinii  ii;,'niiiHt  tlir  Suvi'ici^fiify  uf  Spain.  Willi  all  tliiU 
i'\  iilt'iici'  hi'l'diT  liiiii.  I'l'i'siiji'iil  ( irant  ili'ciiii'il  it  ]ii'npi'r,aMii  I  lliink 
was  aliuii<laiitly  jiistiii'ij  liy  iiiti'i'imtional  law.  to  say  tliiit  tln'si' 
iiialliTs  wi'fn  for  till'  I'.xcliisivi'  lurisilicl iiiii  ami  cuirni/.aiK'i' ul'  tlii' 
I'll  it  I'll  Stati'H  ( iiiviTiniifiit.  It  wiis  (lirir  IIiil;  dial  was  iiisiilti'il ; 
it  WHS  llii'ir  (!uniitry  wliicli  slutiilil  a\i'ii;;r  llii'  msiiJi.  aiiij  sluiiilij 
piiiiisli  till'  wruMj,'  -III)  iiialtiT  wliiTi'  (he  artn.il  uwinTsliip  woiilij 
that  wlii'i'i?  t'li'  lla;j  was  iisi-il  Inr  assimiiiic^  this    iial  iniialitv 


'iilarlv 


anil   M.iiiriiiM'i 


Iv   tl. 


'f  tl„.   I! 


I'ml 


Im 


M'cn  wriinj^i"!  was  tin'  iiatnMi  tn  tak"  ni'tmn. 


•>() 


S(i  I  WDiilil  ri'l'iT  ill  this  ciiiini'i'tinii  to  ('alvn.  panij^raph  I  14. 
'j'lii' I'llitinii  I  liitlij  is  ill  l'"ri'iii'li  aii'l  I  .nii  not  snllirii'iillv  satis- 
ticil  with  my  kii<iwl«'i|;fi' of  that  laii;;na;;t' or  even  with  my  pi'o- 
iiiincialioii  of  Kri'iich—to  rcaij  it  into  Kii;;lisli  or  in  Kri-nch.  Hut 
I  am  iihli' to  say,  or  I  vnitui'i'  to  say,  that  ('alvo  lays  it  ilown 
llnTi' that  it  is  for  vai'h  Stair  to  fix  thi'  roniliiions  upon  which 
llii'V  may  lit'obtaiiu'il,  and  jnilfirs  of  tin'  nationality  of  that  Stati', 
Su  in  till'  cast'  of  thi'  "  Monlijo,"  in  Hritish  and  Korci;;!!  paprrs 
Mil,  (Ifi,  |>a;;i' 4(>0,  I  tind  tlu'  followiii;,;  laii^^naj^c  : 

"  TliiTi'  I'l'mains  to  hi'  noticed  tlii'  allt';;alions  of  the  ( 'olumliian 

;}()  ■■  .Vrliitrator,  that  tin-  "  Moiitijo"  w.is  mu  mtilli'd  to  Ins  rrpiiti'd 
'as  an  Aini^ri<'an  vcssi'l,  lii'caiisc  onlv  a  third  of  Iiit  crfw  wiTi' 
"  .ViiH'ricaii  ('iti/»'ii!4.  and  that  this  is  a  violati<.>n  of  a  law  of  the 
"  I'liiti'd  Stall's.  'I'lif  iindri'si;,jiii'd  must  ri-maik,  first,  that  this 
"  is  rathiT  a  ipii'stion  for  '.lie  ( iovcnnnciii  "f  tin'  I'niti'd  Slali'S 
"tliniifor  this  Trihunal  of  Arliitration  ,  ami,  si'con<lly,  timf  it 
"  I'diistHiitly  liappi'iis  that  (hi'  niiiiiiiiiii'iii--  oi'  mu'Ii  a  law 
"I'Miniot  1)1' carriril  out,  owiiif,' to  liii'  impossihilitv  of  prorurini; 
"  such  citi/.t'iis.  The  intsuiiii;^  of  the  law  is  that  I  lie  vessel  when 
'sill'  leaves  an    .Ainerinan   port,  shall   have  a  certain  proportion 

40    "of  the  crew  of  the  class  provided  liy  its  provisions.      Il    would 

■  he    ahsurd    to    condeliin     a     vessel     to  enforceil     idleness     in      a 

"  Korei;,'!!    port,   hecaiise.  owinjr  to  the  descrlion   or   death,   or 

"any    other  cause,    that    |)ro])ortioii    had    I u    disturhed,    and 

".\tiierican  citizens  could  not  he  ohtained  to  supply  their 
"places.  I  {('fore  the  rejieal  of  the  liritish  Navi'.;atiou  Laws,  the 
"  same  coiiilitioii  was  cxaeteil.as  rcLjanls  Hritish  vessels  hut  it  was 
"  .'ilway  iinderstocid  that  "  circumstances  alter  cases,  "  and  that  a 

■  vissei  mii^lit  lawfully  naviy;ate  with  such  a  crew  as  she  could 
"  :ret  at  a  distance  from  home.     The  undersigned  cannot  l'"  he- 

')*>  "  hindtlieundi>ulite(|  fait  that  the*  lovernilientof  the  I 'ni  ted  States 
'  cipiisiders  the  '  .Montijo  "  as  an  .Aiiieriean  sliip.      I  )n  this  point 

"  it  is  the  sole    lud'^e.  " 

The  ( 'oiiimissioiier  on  the  part  of  the  United  Slates; — What 
p,l;,'e  is  that  ' 

Mr.  Dickinson  :     It  was  cited  first  in  our  hrief. 

Sir  ( 'liarles  llilihcrt  Tupper  :  -It  was  cit'd  in  the  I'liitcd 
."srates  lirief  on  the  ipii'stioii  of  catch. 

.Mr.  nitskinsoii :     ^'es 

Siri'harles  llihheil  Tupper:  -  I  have  L,'iven  some  authority 
lilt  Im  show  that  no  matter  what  privah'  interest  were  iiiNolved, 
iiiid  no  matter  how  under  the  municipal  laws  p.nties  dealt  with 
tlii'se  ships,  ,))•  what  securities  may  have  lictu  ohtained  upon 
tlieiii,  the  ships  were  liritish  ships.  I  refer  ai,'ain  to  the  case  \ 
iiiciitioiiid  this  morning',    hut  I  do  not  think    I  ',,'ave  the  paL;e — 


•'•Il  I" 


!'#• 


■  it*'' 


-..ii 


Hi 


440 


(Sir  Cliarlt'M  II.  'I'lipiitTH  Aij,nniH'iit.) 


tlint  tliu.se  liL'iiij;   Hiitisli    .sliijis  could  only  l)i>  .'^laliji.'ct  to    Hritivli 


Mr.  Difkiii.soM  :--  Ht'fort'   yon  loiivi'  l\w.  "Mctntijo, "   iit  pi 


4U*J,  I  wi-li  t  )  shitf  tlic  |Miiiit.s  aliout  wliicli  luitli  ariiitnitors  wen 
njiri'Pil.     "  Till' .'<liip  was  (jwikmI  liy  Scc^^cr  Hros.,  uitizi-iis  of  tin 


I'liiti'd  Statfs. 


10 


Tliat 


wns  c'on(•l^l^iv^•  as  Id  in  r  ii.iiiuiialit v. 


>Sir  Charles  llililicrt  Tiippcr  :  — Yes,  luil  it   was  in  eoniu'ctitm 
[liiiioiii  that  have  hccii  j;ivi'n  in  tlio  other  cases  that  1 


referred  to  tie   lainjiiaj^e  of  the    iiiiipin 


til 


Mont 


I  here  the  umpire  is  rel'errinj^  to  this  verv  princip 
At  paije  4()J): 


IJO       case 


The  uiniersii.'ned  cannot  Lfo  I  vhind  the  undoiiiitod  ('net  that 


the  ( ioverniiient  of  the  I'nited  ■■states  considers  tli 


Monti 


"as  an  American  shi|i.     (hi  this  jioint  it  is  the  sole  jiiilije.  " 

It  wa.s  not  merely  ttecan.se  the  evidence    was  one  way  or  till 

iitli'T,  liut  it  was  in  line  with  the  aiithoi'ities  I  have  referred   ic 

20   that  that  national  certiticate    was    ;;iven  and    in  times  of  peiKi 

that  that  iiiitiniiiil  eerliticati'  is  alisolntelv    conclusive.     It  is  tl 


es,  e\en   ni    ciise  u 


f    tl 


ic 
ejilies. 


riiifii)!  il'i'trr.      it  is  that    which    >^'w 

tlie  value  of  rej;istry,  secnrin;;  as  it  iloes  protection  nt  the  hand: 

of  the  country  which  j^iants  the  naticaiality  certificate. 

To  sup]>ia't  the  |)roii<isiti(ai  that    the  sliij)s   clothed  with  tin 
character  of  nationality  are  subject  alone  to  the  jiower  yrantin; 


th 


dstration.  and    that    th 


esi'  Ve.s.sels,    rilf 


:lit 


or    wronj;.  con- 


stitute a  part  of  Piritisli  ccanmerce.  and  under  the  laws  as  undi 
stood  in  the  I'nited  States  and  (ireat  I'iritain.  they  had  receiveil 

fiO  at  thehandsof  (ireat  Paitain  a  certiticate  of  national  character. 
I  referto  the  lan;;nae;eof  Lord  Stowell  in  the  case  of"l.,e  Louis." 
where  it  is  said  at  ]>ae;e  20M,  2  |)od.son;    - 

"  Advertin;^;  to  the  character  of  the  ves.scl,  tliey  admitted  that 
"  kIic  was  French  ;  having;  a  re^^istei-  as  such  ami  Iwarinj;  the 
"  l''rench  tla;X-  ''"•■  ""l"'  '"'■'  likewise  iiritisli  colors  on  lioanl  ami 
"  had  recently  lieen  the  projierly  of  Uritisli  sulijects,  anci  there- 
"  fore  there  was  on  the  niost  limiteil  ;;rounds  a  ;.pi  i  i,il    jiistilica- 

"  tiiai  to  |iersoiis  under    lliitish    autlioiily  ii>  • into  hri- 

"  national  character,     it  was  not  from  a  meie  idle  curiosity  that 

40   "  this  examination  was  resoited  to;  for  it 


that  the  v. 


had  heen  Mritish,   and    tli 


was  expressly  certitieil 
was    nothiiii:'  Imt 


"theniei-e  assuniplitai  of  tlaj;  to  distinijuish  her  aH  liavin;; 
"aoiiuired  anothei'  characti'r.' 

Nevtrtlieless  tins  vi>it  was  held  to  he  without  lii^ht.  Wliintnn 
says  (p.  727  vol.  11,  24.S.) 

" 'I  reaty  or  no  ti'i'aty  a  foreign  nation  cannot  1 1-  permitt'd 
"  to  confiscate  an  American    Meichant  man  cnea;jed  in  le^itmate 


'  commerce  upon 


th.'h 


ccau^e 


hi 


s   crew 


list 


■fulfil  tl 


le  noui 


rments  of  that  nation's  local  oi'dinances,' 


■'}()  In    the    I'nited    States  are;nmeiit    we   find    on   pai,'i'  7'. 


Ui.t, 


{\i< 


foil 


owini,' : — 
The  (ille- 


tion  here  is  as 


to  the  ri.;ht  of  Ameriia  t.)  tii 


'American  ship  whatever  her  rej;istry. 
A^rain  on  jphlIc  M  and  jia^c  H2 : — 
"  i'liat  the  position  of  the  I'nited  States  lieie  as  al\Na\s  iim  \ 


aLjani  !"■  repea 


ted.     That  nation   as>crts   without    (lUalilii 


nd  with    emphasis  that  where  the   tla;;   floats    over  a  ship  in 
'  the  time  of  peace  any  other  nation   invailes   the  deck  und'^r  il 
t  its  peril.     The  tla;,'  and    not   the  rei^istry    should    in-  prnna 


(iO    "  facile  evi<lence  of  owiiershij).      //  it   .•</niiilil    t 


t  In 


lint  oiil  iii)w<  11 1 


tliiil  III!'  ftiiif  (Iki's  )I(iI  Irnli/  iri>risi'iil  tlir  iictiial  oinierxliifK  thvri' 
in   110  ijniiuiil  for  mliniiiitiini    oh  Iii'IkiU  oJ  tin'    oniiii.-*    n'lm 
fnrn    out   to  hr  (ictuul  ciliziiis  or  .sal)jcct'<  of  I  In'    ivilioii   .■"> 
'  invmliiiy  the  xliiii." 


441 


■it 


(Sir  Charles  H.  Tiipper's  Argument.) 

This  position  cannot  lio  supportud  by  authority.  It  \h  in 
direct  contradiction  of  the  povition  succe.sRfuily  asHerted  by 
the  United  states,  us  I  have  more  than  once  said. 

If  your  Honors  will  indulge  me,  I  propose  to  refer  rather 
fully  to  a  book  published  by  n  distinguished  man  in  the  United 
State*.  I  refer  to  William  Beach  Lawrence.  He  was  the  eiiitor 
10  of  VVheaton's  Elements  ,.f  International  Law.  He  reviewed  the 
whole  subject  of  visitation  and  search,  which  so  ininiediately 
concerns  us  in  dealing  with  the  proposition  the  United  Ktiitis 
have  advanced  on  the  pages  I  have  nientioiieJ.  I  venture  to 
compare  his  reference  to  thin  interesting  hi.story  of  the  relations 
iii'tween  (ireat  liritainand  the  United  States,  with  those  passages 
which,  practically,  resurrect,  for  the  lir»t  time,  the  position  of 
(irest  tiritain,  resisted  .so  liotly  by  the  Uniteil  States,  ami,  as  I 
have  argu«'d,  tinally  settieii  between  these  two  nations  in  accord- 
ance with  the  United  States  views,  and  never  ijuestioneil  from 
20  1H')1>  liy  either  nation  down  to  the  pre^eut  day.  I  quote  fn)m 
this  book  :  — 

On  page  HH.  Lord  Palmerston  claimed, August  27th,  1841,  the 
right  to  search  vesseU  "  to  ascertain  by  an  inspection  of  papers 
"  their  nationality,  and  that  the  United  States  tlag  should  only 
"  e.xempt  a  vessel  from  scaieh  when  she  had  proper  papers." 

France  denied  the  right  of  verification  except  in  tinic  of  war 
and  elaimetl   that  "  vcMsels  sailing  under  the  French   Hag  eoiilii 
"  not  be  regularly  seizeii  and  proceeded  against  unless  by  French 
"Cruisers."     (Page  4W.) 
:!()  Instructions    were   given   by   the    British    (.iovernment    I2tli 

December,  1841},  to   visit  a  vessel   having   American  colours   lo 
a.seertain  nationality.     (I'age  G(<.) 

Lawrence  observes : — 

"  The  privilege  of  the  Hag  is  the  privilege  of  the  State  ;  <ii,<l 
"  }ilii'u  there  i»  inula  Jules  m  the  (vrouijdoers,  the  Stnt"  thniuijh 
"  coitilexi/  tritivcn  itn  privilcije,  and  either  permits  the  State  whitii 
'"  has  been  injured  to  avenge  the  breach  of  its  laws,  through  it.s 
"own  tril>unal-i,  or  will  assist  it  to  obtain  redress  against  the 
"  wrongdoers  before  the  courts  of  thel/  own  C(»untry,if  they  have 
4(1  '  in  any  way  made  themselves  amenable  to  punishment  ftjr  a 
'  breach  of  their  own  laws.     (Pages  74  and  "iJ.) 

"  liautefeuiile  is  quoted  as  follows  : — 

"  l!»  time  of  peace,  the  flag  of  a  ship  is  a  sign  of  its  nation- 
'  ality,  not  merely  priiixi  j\tclf,  but  absolutely,  lor  all  foreign 
■  ships.  The  cruisers  of  the  nation  to  whom  the  ting  belongs 
"have  exclusive  jurisdiction  over  it  including  the  power  lA 
"  veriticalionand  enciuirj"  (enquete).  The  only  exception  is  in  case 
"of  piracy.  As  to  the  words,  '  the  slave-trade  and  other  unlaw- 
"  ful  commerce,'  of  which  the  Treaty  of  iM+i)  spi'aks.  they  are 
.')()  "  without  meaning.  The  slave-trade  is  not  an  unlawful  com- 
"  merce  on  the  part  of  a  Frenchman,  except  so  far  as  French  laws 
'  ni'ike  it  unlawful.  It  is  only  so  with  respect  to  F'rance.  What 
"  I  say  as  to  the  slave-traile,  1  say  of  all  other  kinds  of  commerce. 
•  without  exception.  In  time  of  peace  there  is  not  any  unlawful 
"commerce  as  regari  Is  foreign  states,  unless  the  individual  or  the 
"  vessel  that  is  carrying  on  the  trade  is  within  the  custom-house 
"  limits,  upon  the  territory  nu«l  under  the  jurisdiction  of  the 
"  foreign  state.  Thi.s  principle  is  absolute,  and  admits  of  no 
"  exception.  (Pages  70  and  77.) 
(iO  "  (jieneral  ()ass  concentrateil  in  his  reply  of  April  10,  ls.')S, 
"  the  arguments  which  had  been  so  eti'ectii  >  in  France,  sixteen 
"  years  before,  with  the  results  of  experience  and  recent  investi- 
"  gation.  He  declares  that  '  the  ilistinction  taken  between  the 
'  right  of  visitation  and  the  right  of  search,  between  an  entry 


Mii 


XW. 


\* 


'1  I' 


;<!!■ 


1^ 


in, 


448 

(Sir  Ghnrlt's  II.  Tuppor'n  Argument.) 

"  for  thi!  purpose!  of  oxnininiii;*  tlio  iintioiml  character  of  u 
"  ves,s('l  (ind  nii  t-iitry  fur  tlio  purpose  of  ixiiriiiiiin>{  into  tin- 
"olijnctsof  her  voyii;{i',  cannot  l)0  Justly  nntiitainccl  upon  iiiiy 
"  rft'oj,'nir.L'(l  principle  of  tin-  liiw  of  nntions,'  T!ie  United  Stnti'M 
"  tliMiy.  lie  repents,  '  tlte  rii,'lit  of  cruis-rs  of  any  power  whatever 
"  t.i  entiir  their  vessels  ijy  foroe  in   tinii'  of  pence,  niueli  less  cm 

10  "  they  permit  foreign  oHieers  to  exiiniino  their  piipers  nml 
"  ailjuiiieiitc  upon  their  nutionnlity  ninl  whetlier  titey  are  navi- 
"  niited  necorilin^j  to  hiw.  No  ehun^e  of  niiuie  run  cliun^^o  tiie 
"  iile;;iil  eliiinieter  of  the  iissuin|)tion.  Seiireh  or  visit,  it  is 
'•  eiiualiy  an  H.ssault  up  »n  the  iuiiepetnienee  of  nations.'  "  (I'aj;eN 
S^  and  ^!t ) 

Lord  .Mahiiesliury  said  :- - 

'■  Not  Ion'.;  aijo  he  (the  Karl  of  .Malnieshury)  endeavoured  to 
"  ol)tnin  from  all  eivilizccl  eonnti°ie>'.  some  a};reenient  l)y  wliieh 
"  Hritish  oHieers  nii;;ht  know   exactly  how  far  they  coulil  ^o  in 

20  "  e;ises  of  stron;^  suspicion,  and  he  protected  hy  t!io  «;jreenient. 
"  lie  was  antiei|)ated  i>y  tlie  French  ( ioverinncnt,  wiiich  laiil 
"  down  this  law  :  That,  in  time  of  ])eace,  no  French  Hhip  hIiouIiI 
"  hi.'  detaineil  or  searclied  or  iioarded.  hut  that  certain  forms 
"should  he  j(one  throuj^h  without  detainins'  the  ves.sel,  wliich, 
"  to  a  certain  de;;ree,  thou;;li  to  a  small  decree,  might  enahh?  the 
'■  nati(>nalit3'  of  the  ship  to  be  ascertained,  anil  her  rij{ht  to  the 
"  tlai.;  she  carried,  lie  had  no  reason  to  conceal  what  ho  had 
"  done  since  recent  events,  llr  hdil  iiiliaitli'il  the  interntituniiil 
'•  liiii'  <is  liiiil  iltiii'ii   hji  tlif    Aiivri'dii    Minister  for   Fiirri(in 

30  "  Aff'tilrn.  Ilmitiili  not,  of  roiirsi',  icilliont  fichii/  foitijit'il  Inj 
'th<'  oi)inioiin  of  till'  liiir  oliiriTx  of  the  crown,  Imt,  liavini; 
"  admitted  that,  lie  had  put  it  as  stron^^ly  as  possible  to  the 
■'  American  (Jovernment,  that,  when  it  was  once  known  that  th« 
'•  American  Hai.;  covered  the  carj^o.  (!very  pirate  and  slaver  on 
"  the  face  of  the  sea  would  carry  the  American  (la;;,  and  that, 
"instead  of  the  honour  of  the  country  beiuL;  vindicatt-d,  that 
'■  every  fact  must  hriu'^  dishonour  on  the  American  nation,  if  an 
"  obstinate  adherence  to  its  present  declarations  were  persistisl 
■■  in,  and  the  American    tla^j   would    hi'   prostituted    to  the  worst 

40  'purposes.  Il(^  had  urned  that  it  was  necessary  in  thes(^  civi- 
"  li/ed  times  that  there  should  be,  if  not  a  ri^ht  by  international 
"  law,  some  a'.,'reement  amon'4  tlie  maritime  states  as  to  how  far 
"  their  otKeers  niii;ht  ijo  to  rrrifij  tlm  iiiit'uj»id\lij  of  re><nt>(n  ond 
"  til'-  li'il'iliti/  of  lh'i}'fiii(i."—ii^\\  lOS,  l()!t.) 

In  1^+4,  in  the  House  of  Coinmons,  Mr.  I'  t/^orald  stated  the 
views  (if  her  Majesty  s  government  : — 

"  Mr.  FitZi^erald  would  now  inform  the  hi  nouruble  f^entle- 
"  man  wliat  the  views  of  Her  Maji-sty's  f^overiiiuent  wim'o  as  to 
"  the  claim  of  the  American  ;5overnmi'nt  that  the  ri^jht  of  search 

50  "or  of  visitation  should  be  renounced.  This  ri;;ht  had  no 
"  iloubt  been  a  constant  sourci-  of  irritation  between  the  two 
■  nations,  and,  whatever  mij^ht  have  been  the  practice  of  precfd- 
"  ine  governments  of  this  country,  it  had  never  been  aiimitteii 
"  by  the  Auioricans.  It  hail  become  the  duty  then  of  Her 
•'  Maje.sty's  (government,  in  conse(|uenco  of  thu  unfortun.ite 
"  circumstances  which  had  recently  transpired,  to  enquire  what 
"  were  our  rij^hts ;  whether,  if  we  had  such  rij^hts,  wo  should 
'■  be  prepared  to  stand  b^'  them  ;  and  whether,  if  we  had  them 
"  not,  we  oui^ht  not  at  once  candidly  to  disclaim  them.     Tht^y 

GO  "had  accordingly  taken  the  advice  of  the  law  oHicers  of  the 
"  crown,  whose  decided  opinion  was  that  by  international  law 
"  we  ha<l  no  right  of  search — no  right  of  visitation  whatever  in 
"  time  of  peace.  That  being  *»,  he  need  not  say  that  they  had 
"  thought  it  would  be  unbccuining  in  the  British  governntent  to 


10 


20 


30 


40 


443 
(Sir  Cliarlt'H  H.  Tupper's  Argument.) 

"  declare  for  one    tnoinont    the  avowal   of    thi.s  conclusion." — 

(I'lll). 

Lord  Malniesliury  HuiH  : — 

"  Altliou{{li  all  Hi^riiu  tiiat  tliu  ili^iiity  of  our  scvcnil  iiiitious 
'  woulil  l)e  Mioro  or  less  couipromlsul  hy  n  rlf^ht  of  search,  I  ilo 
'  (Ml  think  tlieru  can  ho  any  douht  of  tlu;  nuccssity  of  uitahiish- 
'  iii.r  miint)  HDrt  of  si-curity  ai^aiust  tin;   fraudulent  usa    of  the 

■  imtional  fla;^.  We  have  jjone  no  further  than  this  ;  we  hnvo 
'  iiliandonud  the  ri<;ht  of  viitit  and  search  ;  and  the  American 
"  (icivernnient  have  a^jreed  to  entertain  n.nd  iionx'ulei'  any  fUKjijes- 
"tiiiii,  iv  miif  nuike  to  oltt<iin  sfctirity  aijuinHt  the  frauiiulent 

iixi'  i>f  llir  flofin  o/t'Uhrr  mttion.     The  French  Oovernnii-nt  are 
"  ready  and  anxious  to  assist  U4  to  obtain  the  yanio  ends."— 

(p.  i.sr)) 

Mr.  Lawrence  concludes  : — 

"  This  debate  may  wed  terminate  the  chapter  on  Visitation 
'  and  Search  in  our  diplomatic  history.  It  leaves  no  room  for 
"  doubt  aH  to  the  abandonment  of  the  British  claim,  while  the 
"  ililjicult;/  of  convi-ntiondl  (nljtiHtmi'ut  which  doea  not  concede 
"  /()  erfi'y  country  an  exclusive  polux  over  He  veineU  Heems  to  be 
■ud,iiitted."—{\,.  188.) 

"  The  Htatoment    by  Lord    Lyndhurtt   of  the    law    as    now 

■  acknowledged,  and  which  concedes  to  us  anexcluHive  police  over 

■  ihe  veaseln  under  ourjlufj,  with  the  admission  of  Lord  Malmesbury 
"that  the  in.structions  of  1843,  which  vested  in  the  naval  otficers 
"a  discretion  that  extended  to  the  suarchin^;  of  the  vessel 
'  rnquire  to  be  changed,  will  show  how  much  has  been  gained  by 
"  the  late  negotiations.  The  immunity  of  the  Hag  is  |)laced 
"  beyonil  cavil,  in  consequence  of  the  course  adopted  by  the 
"  United  States;  and  though  a  total  withdrawal  of  the  existing 
"  instructions,  with  a  repeal  of  obnoxious  statutes,  might  liave 
"  better  accorded  with  a  just  regard  for  the  rights  of  ull  nations, 
'  we  do  not  think  it  possible  that  tlie  order   '  to  respect  the 

American  flag  under  any  circumstances,'  will  ever  be  with- 
drawn."—(p.  191.) 
Yet,  after  the  observations  of  that  learned  authority,  and 
after  that  exhaustive  discussion,  your  Honors  are  face  to  face 
to-day  with  a  position  absolutely  the  contrary  of  that  which  was  so 
successfully  maintained  by  the  United  Slates  Ciovernment ;  and 
wo  are  not  dealing  with  crime,  not  dealing  with  fraud  or  with  an 
oihince  against  cither  the  laws  of  the  United  States  or  the  laws 
of  (ircat  Britain,  as  was  the  case  when  Great  Britain  so 
energetically  endeavored  to  got  behind  the  tiag.  The  United 
States  comes  before  you  with  the  claim  of  right  to  invc«tigate 
every  ship  carrying  the  British  flag,  having  a  British  register, 
wherever  there  has  been  any  irregularity  committed,  and 
0  wherever  they  are  able  to  say  that  the  British  authorities  ought 
not  to  have  been  given  that  register,  or  to  have  allowed  the  ship 
to  carry  its  flag,  becuu.se  of  American  interests.  There  could  not 
be  stnmger  cuntradiction,  there  could  not  be  two  po.sitions  more 
diametrically  opposed,  than  the  position  of  the  United  States  in 
1H!)7,  and  the  position  of  the  United  States  from  the  beginning 
of  their  in<iependence  down  to  the  time  of  these  and  other 
seizures  in  1886. 


At  half-past  three  o'clock  the  Commissioners  rose. 


it 


;i 


;'v. 


.!(!*■ 


*i 


n 


60 


Commissioners  under  the  Convention  of  February  8tli, 

1896,  between  Great  Britain  and  the  United 

States  of  America. 


Fj(';,'i>lutivi'  Ciitiiicil  ( 'Imiiilii'i-,  I'lMviiiciul   JiiiiMiiii,', 

At,  llalil'ax,  N.  S.,  Sr|itciiilii'r  !ttli,  1.">!I7 


20 


At  11  A.  M.  tlie  ( "oiiimis-iiiiiii'r-i  t( 


til 


SiiC.  II.  T 


"!'!"■'•: 


W'lii'ii    I   '*tii|i]if.l   my  ar^jiiiiicrit   yf>t('i-ilay  1  Iwi'l  nnclicil  tl 


I  lull 


soiiicwiui 
"  Vir^'iiiiiis.' 


(•iiii>j>ii'rali(iii    I    [irnpi'M^  tn  i,'ivi'    tln'  ci 


.1   II 


'M 


Iiffiii'i-  (ifuiitii,'  witli  till'  iicDni  us  ili;vi'lii|),  (1  i,, 
tlio  t"oii!.'r('s>iiiiial  liiH'iiiiii'iits,  F  call  utti'iition  to  tlic  coiistnii' 
tiiiii  III'  tills  casi'  ill  ilir  I'liitiMl  States  Ari^iiiii*  nt,  (|.a','i'  77),  mil 
I  I'lialli'iitii'  till-  coiTictni'ss  1)1"  tliul  (■oiistructiuii.  Tin'  I'liitnl 
Stall's  (  'oiiiisi'l    say  :     ■ 

••(III  |iiirsiiiii;,'  tln'  liistory  of  tin'  "  Viri^iiiius "  casr,  in  .'! 
'  Wliaitnii's  Intii'iiatiniial  Law  |lii;t'st,it  appears  tlmt  ii|miii  tin' 
'/>/'/((((<  /!/('/('  casi'  |ir('M'Mtcil  till'  '  \'iri;iiiins '  was  the  projiiTty  nl' 

a  citiziMof  the  I'niteil  States,  wlio  was  the  true  and  only  uwiic; 

if  the   vessel.      ISiit,   it   liaviiii;^  appeareil   thnt   the  '  \'i|Miiiii 


was  nut  DWiu'il  in  fact  hv  citi 


if  the   rniti'.l  Stat.-s  tl 


M" 


,'V  frmii  Spain  ainl    the   salute   tu  the   thi'"  <'f  the    lliiili 


'  Statis  Were  (lispelis.ij  with,  as  it  was  cunci'ileil  hy  the  Uliitt 
States  that  Spain  had  a  ri^lit  to  aiMiice  ])roof  to  slmw  that  tli 
'  Vii'iiinius'  was  nut  riL,'htfnlly  carr\inn  the  tiai,'  of  the  I'liiin 


40  "State 


I    hnve    more    than  once   aiheited   to  the   case 


th 


v: 


j;inins"  and  it  will  he  ;i|ipaient  from  what  I  Irive  said,  wheniii 
1  think  that  this  inte:  pi-.-tation  was  not  enrrect.  I  propose  nuu 
to  ^'o  ihrollj;!!  the  record  of  the'  "  \'ir;;inills  "  us  it  was  hroll^lit 
to  till."  attention  nf  ("on''rr-s. 


A  t: 


elC'Taiil    I 


ate 


rth 


from     the     lliiLid 


States    Secretary  of  St.ite  to  tiie   I'nited  States   Minist 


er  caIN 


attention  to  the  capture  on  the  hi^h  seas  of  a  M'ssel  liearin;^'  lln' 

American    tia::    -('I'ht.'   ( 'on^ressidnal     document,  pa^je    1  .">  >.      At 

")()   pa.re    Is    the    I'nitid    States   .Minister   wind   the    I'niteil   States 


IS    toHows: 


Tl 


Secretai'V      of    Stat"     Noveniher     Mil,      In7' 

Tornado  had  exceeded  her  jurisiliction  in  iiiiclertakin;;  to  capture 
u  ship  under  a  foreign  lla;,'  in  the  open  sea,"  and,  (i  skip  a  part  ) 
this  iunntniity  of  every  known  llai^  on  the  ocean  was  a  principle 
that  Spain,  in  common  with  all  maritime  nation^  had  an  eipinl 


niterest  in  maHit.iminLr  in\r 


ilati 


CO 


1  call  paitiridar  attention   to  a.   note   from  the  I'liited  Slates 
Secretary  of  State- to  the  I'nited    States   .Minister  of  Novemln  r 
12lh,  l.S7''{,  pa:,'!'  22,  ("on^'ressional  Deicuinents  of   the  4:ird  Con 
I'ss    First  Session,  Kxecutivc    Uocinnent,  No.   HO,  (tlie  pa;,'e>  I 

lieu 
lar  attention  to  the  date  of  this  note,  hecause   at  that  time  the 


liave  mentioiu'd  are  the  pa;;es  in  that  document.)     I  call  pai' 


I'liiteil    States    j^overnmeiit    was    apjirised  of  the  douht    as    to 
wdiether  the  "  Vii^Lrinius  "  had,  as  ULrainst  tlie  I'nited  States,  the 


(Sir  Cliarli'H    H,   Tiippcr's    Arjjiimeiit.) 

ri^ilit  to  carry  her  (Im;,  ninl  the  niinistor  is  toM  that  I'lKiiiiry  is 
liiinir  inadti  in  tlmtiliicctioii.  NovfrthcioH",  on  Mit'  1+tli  Novi'in- 
lii'T,  1H7.S,  tlit!r«  was  a  ttdo^rani  to  tin-  Uniiidl  Statt.'s  Minister  to 
ilfiimnii  tii«i  restoration  of  tlic  "  Vir;,'iniiis, "  ami  ti\-n  to  insist  tlmi 
tlic  riajj  of  tiie  Tnitfii  States  1h«  siilutiMJ.  'i'hat  is  at  pa^n  20. 
( >n  tln!  I7iii  of  Novcinlicr,  ]HT.\,  the  ^'overnnient  of  Spain,  thrnn<;li 
1(1  tlie  Spanish  Minister  of  Stale,  in  a  coniniuiiinalion  to  the  I'niteil 
States  Minister,  i|iii  stioneil  wiieiher  tiie  "  Viryinitis  "  was  nut  a 
lej^niarly  liociinientiMi  Anieri(*an  sliip.     For  insfimce,  the  position, 

I  lal\e  it,  from  tliat  letter  is  tliis  :  the  IImk  of  thr>  Tniteil  Stiiti-s 
limy  iiave  iieeii  llyirii;,  hut  we  are  nsrertaiiiiii;,'  wlietlier   she  wiis 

II  ri'i^iiiarly  (hieuineiiteil  Aineiican  sliip.  On  tlie  shiiik  point 
there  is  a  eoiniiiiinication  of  tiie  |,sth  c.f  Noveniher.  IM7H.  pii;,'es 
H'  aii'l  4.'>,  wiiere  tlie  llnited  .States  Siinister  leh-^raplis  the 
I'niteil  Statfcs  Secretary  of  State;  "Spain  declines  to  art  until 
•  sill'  ascertains  otleiici*  c<  iiiniitteil  against  tiii-  tlai^  of  the  Uniteij 

•Jl»  'States;"  j)ai;e  4S,  the  Uniteil  States  Minister  teie.'raplis  the 
I'liiteil  States  Secretary  of  State  on  the  li)th  of  Noveniher; 
'■  iMii^'iand  declined  j,'ood  otHces  toSpiiiii  unless  on  hasis  of  iiinpli' 
"  reparation  to  tiie  United  States;"  pa;;i-  01  and  (>2,  the  rniled 
"  States  Minister  CDniniunicatei  as  follows  to  the  Spanisli  Minister 
"  20tli  of  Noveniher,  IST.'J: — "The  undersii;iied  has  licietoi'ore 
"  ileelaied.  and  he  now  repents  thv'  declaiation.  in  the  name  of 
'  liis  j,'i)vernment  that  the '•  Virj^inius  "  was  at  ttie  monieiit  of 
"  her  capture  on  the  hif;li  seas,  a  re;,'ularly  <lociinieiited  American 
"  ship.  Tlie  assertion  of  a  j,'()verniuent  which  has  accordi-d  to  a 
:)(!  ■'  vessel  the  ri;,dit  to  sail  under  its  tlai^,  is  the  hest  evidence  of 
"  her  nationality.  Kvery  such  sliip  is  registered  in  the  puhlic 
"archives.  It  cannot  he  supposed  that  any  respectatile  state 
"  would  volunteer  its  protection  to  tiiose  havin;,'  no  rii,'ht  to  claim 
"  it  Nor  is  it  usual  when,  in  a  case  lil<i'  thi^t.  the  injured 
"  t;overiiiiient  aHiiiiis  the  nationality  of  the  ship,  to  put  that 
"  averment  in  issue  and  demand  proof  as  a  pridimiiiaty  to  the 
"consideration  of  reclamations  for  an  atlVont  utli-red  to  its  Ha<;. 

"Tilt!  undersii^ned,  therefore,  suhniits  to  the  enlightened 
"  judijmont  of  Mr.  Carvajal,  that,  in  liarinony  willi  the  usnj^e  and 
40  "  comity  of  nations,  Spain  may  well  dismiss  all  controversy  as 
"  to  the  nationalitj-  of  the  "  Viij^inius, 'accepting;  as  indisputahle 
"  the  fact  that  she  was  a  rejjuhirly  documented  American  ship, 
"  and,  moved  liy  the  traditions  of  a  frienilship  uninterrupted  for 
"a  century,  proceed  at  once  to  accord  to  the  United  States  that 
"  measure  of  reparation  which  she  has  already  loyally  reco>i;nized 
"  as  liefittinj^  her  own  dij»nity  ami  due  to  an  ancient  ally." 

The  Spanish  Minister  replies  to  the  United  States  Minister, 
Noveniher  2iSth,  1H7*<,  paye  G2  of  the  correspondence  : — 

•'  Mr.  Jose  I'olo  de  Bernabe,  duly  autliorized  liy  Mr.  Mamilton 
."lO  "  Fish,  infurms  me  tiiat  your  government,  animated  hy  the  hest 
"  desires  of  conciliation,  would  ailmit  a  settlement  on  the  hasis  of 
"the  immediate  return  of  the  '' Virginiiis"  and  the  survivors, 
"  reserving;  tlie  salute  of  the  Hag  to  be  performed  if  tlie  Spanish 
"  (,'overnment  do  not  prove  to  the  satisfaction  of  that  of  the 
"  United  States,  before  the  2'>th  of  Decemlier  next,  that  the 
"  Viri,'inius"  had  no  rij,dit  to  carry  the  American  tlajj.'' 

At  pajjes  6.'}-{j4,  the  United   States   Secretary   of  State  t<de- 

1,'raphs  the   Uniteii   States   Minister,  Deceml't-r   1st,  1M73.     The 

telegram  states  that  the  ship  and  survivors  of  the  passengers  and 

liO  crew  are  to  be  restored   forthwith,  the   United    States   flag  to  be 

saluted  by  Spain  on  the  25tli  of  December,  and  saj's : — 

"  If  Spain  before  then  satisfies  the  United  States  that  the 
"  '  Viiginiiis'  was  carrying  the  Hag  at  the  time  of  capture  without 
"  right,  the  .salute  will  be  spontaneou.sly  dispensed  with  :    but 


1     .     .  (   ■ 


'.'  Il 


44(t 


(Sir  Cliiirlcs  li.  Tiippi'i's    ArjjuiiK'iit.) 

"  Spftiii  in  xiicli  cam'  U  to  diHclniiii  nn  iiitunt  i)f  iiiiii^nity  (o  our 
"  Haj;. 

"  III  tlif  siiiiic  event  ilie  Uniteil  States  will   insiitiile  ii)<|uiry 

"  nnti    l(il(i|(t    lei;al    proct'edin^H    n/^'nilltt  tlie    ves>.e|,  if    it  lin    fiillllil 

"  Nile  lias  viiiliileil  any  liiw  of  tlin  Uniteil  Stales." 

At  pii^e   7l>  tlii'ie  i'4  a  c..inniiinicatii)ii  t'loni    the    AsMisiaiit 
10    rniteil  Slates  Seeretaiy  of  Stale,  Mi',  Atlee,  tlieii  ami  now  AsMist 
ant  Secietiiiy  of  State,  ilateil  Docenilier  .'Mst,  l.s7.S,  as  follows  ;  — 

"  Spain  liavini;  ailiiiitteil  (a.s  cimiIiI  not  lie  seriously  tpiestioneil) 
"  tliill  a  li'iriilaily  iliieiiniellteil  vessel  of  tlie  I'nited  .Stales  is 
"  sulijeet  nil  I  lie  lii;,'li  seas  ill  time  of  peace  oiil\  to  tlie  poliee  jiiris- 
"  ilictiiili  iif  llie  power  fidlll  wllicll  it  receives  its  papers,  it  seemeij 
"  to  tlie  I'tesiilent  that  the  United  St/lles  should  not  refuse  to 
"  concecle  to  her  the  riylit  ti)  ilddlice  proof  to  sl;i)W  that  the 
"  Viryiiiiiis  "  WHS  not,  ri„dilfiilly  carrying;  our  flaK-  When  the 
"  i|iiesliiiti  of  national  honor  was  ailjiisted  it  also  seemed  that 
2J  "  there  WHS  a  peculiar  propriety  in  our  consenting,'  to  an  arhitra- 
'  tion  on  a  ipiesiidn  of  pecuniary  dauia;;es." 

At  paLjes  74-"),  a  iiieiuoiunduni  appeavs  of  an  interview  he- 
tweeii  Admiral  I'oio  ami  Mr.  Ki-.li,  "Jlst  of  N'ovemlier  1H7.'I: 

"  .Ml.  Kish  iiiiiaiked  that  while  the  irovi'iiimeiil  of  the  Uniiecl 
"  Slates  we  most  sincerely  nnd  earnestly  desirous  of  an  amicahh; 
"and  hiuiourahle  ailjiistuicnt  of  the  (piesiion  and  was  ready  to 
"  refer  to  arliitiation  all  ipiestioiis  which  ar.'  projierlv  siilijects  of 
"  reference,  the  i,iii'stion  ctf  an  indignity  to  the  ll  i'.,'  of  the  nation. 
"  ami  the  capture  in  time  of  peace,  on  the  hiyli  seas,  of  a  vessel 
I'iO  ■■  lii'ariiiij  that  tl  it;  ami  liiivin^;  also  the  register  and  papeis  of  an 
"  Ameiicaii  ship,  is  not  deemed  to  he  oiu'  wliieh  is  referahh'  to 
"other  povvcis  to  dcti'iniiiK! ;  tliat  a  imtioii  must  he  the  judue 
"  ami  tli(  custodian  of  its  own  honor,  and  that  hi-  could  not  doiiht 
"  that  Spain  herself  ever  siuisitive  to  the  protection  of  her  own 
"  honor,  aiiil  ready  to  do  justice,  would  appreciate  the  impossi- 
"  liiliiy  of  the  reference  of  such  a  cpiestion.  and  that  initil  atdiie- 
'■  ineiii  1-  made  to  ih.'  wounded  <ii>rnity  and  siverei^iily  of  this 
"  ;,'ovcri.  eiit,  it  (Mi'inot  enlerlaiii  a  proposition  of  arhitration  hy 
"  ref4'ii'n<;t!  to  other  powers." 
40  At    paijres    7")-(;,    umler  date    of   Noveml.er    "JMrd,    1S7:{,    tho 

Spanish  representative  yives  iiotici?  of  the  takiiif^  of  testimony 
liefore  a  coinmissidiier  of  the  United  Stales  circuit  court  respecl- 
iiiL,'  the  ownership  of  tin?  Vir^jinins. 

At  pajfe  7<>,  the  United  States  Secretary  of  State  to  the 
Spanish  representative,  24th  of  Novciuher.  lfs7M,  acknowledi{es 
the  notice,  and  intimates  that  a  ropresentativu  of  tlit!  United 
Stales  government  woiihl  attend  the  e.\aininalion,  and  adds:  — 

"  The  iinili'r->i;.'ne>l  feels  sure  that  Admiral  Polo  will  a^jree 
"  with  undersigned  that  neitluu-  party  contemplates  snlistitutinj; 
"  such  proceed iie.^s  in  the  placH  of  diplomatic  discussion  of  the 
"  jr.-ave  ijUestioiis  involved  Ml  the  seizure  of  that  vessel  on  the 
"  hi;,'h  seas  while  sailing;  under  tho  llaj^  of   the  United  States." 

At  pn;,'cs  7''<-!*,  Noveinher  2rith,  \H7i),  there  is  a  iiieini)randum 
of  a  conversation  hctwecn  Mr.  Kish  and  Admiral  Polo,  as  fol- 
lows : — 

'  The  United  States  in  their  own  interests,  as  well  as  in  tho 
'  interests  of  all  niaritimo  powers,  cannot  admit  tho  ri<;ht  of 
"  anv  other  power  to  capture  on  tho  hi<;h  seas  in  time  of  peace 
CO  "  a  documentetl  vessel  hearin<;  their  Ha<^.  Tho  tla<(  which  they 
"  j,'ive  to  II  vesiel  must  ho  its  |irotoctioii  on  the  hij^h  seas  a^'ainst 
"  all  avf^rression  from  whatever  ipiarter.  and  tlicy  reserve  to 
"  themselves  the  riifht  to  eiKpiiru  whether  the  protection  of  that 
"  Hai'  has  l)een  forfeited. 


50 


447 

(Sir  C'liarlt'M  II.  Tiippi  r's  Ainument.) 

'  They  av-eit  the  ri;,'ht  nut  only  in  thoir  nwn  inttTcut,  luit  in 
"  lliit  intfi'cNt  iif  nil  niaritiiiu-  powcrN,  Spnin  luTHcIf  incliKlcd, 
"  altliiiii;;!)  niiw  it  In*  atxTtcii  uppnrt-iitly  ui^'ain^t  Spiiiii. 

"On  this  {ri'diinii  tiicy  rt'scrvt!  in  tlifuisclvcs  thf  riyht  id 
"  iii(|iiiii'  into  tlic  M';,'nliirity  of  llu-  pnpiTs  of  tlic  \'irj,'iiiiiis,  and 
"  tiu'V  Hi'i-  pri'pait'ii  to  ninlvc  this  i-n(|iiiry,  on  thu  cX'  'ution 
10  ■  iniiifuti'd  ill  the  ti-h-^iiipiiic  ilt'spiitch  from  liis  ^oviTnincnt.JiiNt 
•  now  it'ail  liy  A(lini«al  I'nio,  of  the  nparution  to  the  indii^nity 
'■  conimitti-d  to  lliL'ir  i\n>^. 

■'  Thf  iillfmd  di^ci-fpnncy  hetwct-n  thu  description  of  tlio 
"  vessel  and  lii'i'  piipi'iH  is  tcehnicnl.  It  nmy  1"'  that  the  vcsm  1 
"  may  have  siisiuini-d  damn^'t*  rt'ipiiriii;;  ri'pairs,  which  may 
"  huvi'  involved  somo  cliaii;,'e,  as  is  sii;.'!,'es|ed  in  licr  desciipiion  ; 
"  liiit  it  i-(  tlie  saim"  vessel,  and  slie  has  not  hfcn  within  tliii 
"Jurisdiction  of  the  Tnitcd  States  since  a  date  immediately 
afti'i'  that  of  her  ref,'ister,  and,  tlu^refore,  coidd  not.  have  »ncli 
2(t  •■  chan!,'es  noted  on  that  re;,'ister. 

■'  Hei'  papers,  therefore,  niUNt  coiiir  to  j«ive  lier  a  national 
"  chaiacter,  and.  with  her  tla;,',  must  he  'i   i  protection." 

At  |iai;es  .Sl-2  of  the  correspondence  there  is  a  protocol  of 
('cinfiMcnci',  'Jlllh  Novemher,  \H7',\  uliich  provides  for  the  restor- 
ation forthwitli  of  vi.'ssei,  survix"  >  of  her  passei:j,'ir.s  and  crew, 
and  to  salute  the  tla>{  of  the  rniiud  State  on  tlii-2')th  Deceinher. 
It  says  : — 

"'If.  however  hefore  that  date  Sjiaio  shouM  prov(!  to  the 
"  satisfaction  of  the  <  loveiiinieiit  of  the  I'niled  Slates  that  the 
3(1  '  \'ii|,'inius  was  ••ot  ei. '.itled,  iS:c.,  fhesahitt-  will  he  spontaneously 
'  dispenseil  with  '  .  .  .  Later  on,  ipiotini;  from  the  |)rotocol, 
"  '  hut  the  I'nitei)  States  will  expect,  in  such  ca»e,  a  (li-claiiuer 
"  of  intent  of  indiuiiity  to  its  tia;,'  in  the  act  which  was  coni- 
"  niitted.'  This  protocol  provides  also  in  the  event  of  it  lii'ini; 
"  made  to  appear  to  the  satisfaction  of  the  I'nited  Slat(>s  that 
"  tlie  \'Mi,'inius  had  lu)  rii;ht  to  cairy  the  American  lla;;  or 
'•  papers.  '  the  I'nited  states  will  institute  incjuiry,  and  adojit 
"  U')in\  proceedinj,'s  a;{ainst  the  vessel,  if  it  he  found  that  she  has 
violated  any  hiw  of  the  United  States.'  " 

Then  at  pai,'es  M4-.">,  there  is  an  aj^reement  to  carry  out  tho 
terms  of  the  protocol,  under  date  of  the  Hth  of  Decemlier,  1S7.S. 

At  pajje  20H,  tlu-re  will  he  found  Attnrney-(ieneral  Williain.s 
rejiort  to  the  I'nited  States  Secretary  of  Slate,  17th  of  Decemher 
ls7''l.  All  these  documents  had  heen  referred  to  him  with  the 
r((|Uest  for  h.is  opinion  ;  also  his  attention  is  called  to  the  statute 
of  tlu!  United  States,  to  the  United  States  re;;istry  and  statute 
reipiirini;  it  to  be  wholly  owned  hy  United  States  citizens  in 
onler  to  be  deemed  a  vessel  of  the  UnitiMl  States.     After  review- 

,-,0  iiii;  tlu-  facts,  hv  concludes  ; — 

"  That  the  ref,'ister  obtaineil  in  his  name  (  I'attprson's)  was  a 
'  fraud  upon  the  navigation  laws  of  th»'  United  States."  .  .  .  '  I 
"am  of  o])inion  that  she  had  no  such  ii<,'ht,  because  she  had  not 
"heen  registered  accoidinj;  to  law';  (to  carry  the  American 
"  Hajj )  '  but  I  am  also  fit"  the  opinion  that  she  was  as  much 
"  e.xempt  from  interfer'  nee  on  the  hij,d)  seas  by  another  power, 
"on  that  ground,  as  th,,(!<jh  she  had  been  lawfully  reijistered. 
"...  Spain  has  no  Jurisdiction  whatever  over  the  (pU!stion  as 
"  to  whether  or  not  such  ii  vessel  is  o:.  the  hii;h  seas  in  violation 

00     of  any    law  of   the    Uniteil  States.     Spain    cannot  rif^htfully 

raise  that  cjuestion  as  to  the  '  Vir^'inius,'  but  tlie  United  States 

"  may,  and,  as  understandin<r  tlie  protocol,  they  have  aj^reeil  to  do 

"  it.anci,  ^'overned  by  that  agreement  and  without  adinittin<ir  that 

"  Spain  would  otherwise  have  any  interest  in  the   question,  I 


■'It 


I'liHI' 


.  II 


rtil' 


-n      \i 


i 


UH 


;u) 


(Sir  Cliarlos  H.  Tiippor's   Argument.) 

"  (leciilo  that  the  '  Virginiiis,'  at  tlie  tiiuo  of  h«r  ciipturi>,  wns 
"  witliout  rii;ht  iiiul  impri)perly  I'liiiyiiijj;  thi'  Amcrinan  llaj;. " 

111  voluiim  ."{  of  Wharton,  pnnij;riipli  327,  pii>;i'  l')«S,  it  will  tu- 
fuiintl  that,  ill  uiiilition  to  whiit  took  pliu>t>,  ami  iiotwithstnuiljuu 
that  that  ship  was  canviii;;  without  riijht  as  u<rainst  the  Uiiitcil 
Statt^s  thoso  papciN  iiiiii  that  tlai^.  atul  notwilhsiaiiiling  tliat  lit-r 
10  mission  was  hostil'-  to  the  intircst';  of  Spiiiii  in  coiiiit'i'tion  with 
lu!r  troiihit'  in  I'liha,  Spain  paiil  .'iyhty  thousand  dollars  to  the 
I'liitcil  Stall's  for  tlii'  n-lii-f  of  tin-  faiiiilics  nf  thi>  snihu-s  iind 
passonijcrs  on  the  "  Viij;iniiis".  The  a^'i-fiMiicnt  for  that  iiiilciii- 
iiity  is  ill  tilt'  {{litisli  and  Koroigii  Stiiti' Papt-rs,  vohiiiio  (id,  wliicii 
has  lii'cn  rotVircd  to  inon-  than  oiicc,  dati'd  the  27th  of  Ki'linmry 
I.S"').  Atpa;;o  I  l!tof  tliii  vohiiiif  thorf  is  an  aLircciin'iit  lictwci'ii 
Spain  and  tlu'  I'nitt'd  States  rt's]iei;tini,' the  indc'tiiiiity  to  he  paid 
liy  S|).iiM  for  the  relief  of  the  families  of  the  ship's  conipiiny  und 
of  the  piissenijei  ■;  ivf  til"'  -"teaiiier  "  \'ir;;iiiius  "  sij,'ned  at  .Mailrid 
20  Ftdiitiary  27ih.  I.s7'>.  It  appears  tlu-re  as  fallows:  'The 
"  Spanish  (lovernmeiit  eii^^aLTi-s  to  deliver  lo  that  of  the  Unite. 1 
■'.Mates  the  sum  of  SO.OOO  ilollais  in  coin,  or  4()0,()()()  pesetas,  for 
"  the  jnirpose  of  relief  of  the  families  or  persons  of  the  ship's 
"  eom])any  and  jiasseiiifers  aforesaid  of  the  '  Vir;;inins'. 

2.  "  The  (Jovermneiit  of  the  I 'iiiteil  States  enijai^'es  to  iiroept 
"til"  sum  meiitioiieil  ill  satisfaeiion  nf  recdamations  of  any  siirt 
"  which,  in  the  sense  of  personal  indemnitieation  in  this  lielmlf 
"  iniijht  hereafter  he  advaneeil  against  the  Spanish  (Joverniiient. 

.'?  "  When  the  sum  refi-rreil  to  in  Artieli'  I  shall  liavi'  lieii, 
'  reeeived,  the  Picsiiielit  of  the  I'nited  Slates  will  proceed  to  djs- 
"  tribute  tile  same  among  the  families  of  the  parties  interested,  in 
"  the  f'irm  and  m:iinier  which  he  may  Judge  mo!*t  eiiuitiiMe,  witli- 
"oiit  liidng  oliliged  to  give  account  of  this  dislril  ution  to  the 
"  Spanish  (iovernment.  " 

The  other  article  is  not  important. 

I  would  like  to  place  in  the  liaiiils  of  the  counsel  and  your 
Honors  the  complete  papers,  as  hrouglit  ilown  to  the  KngliNli 
rarliameiit  in  the  case  of  the  "  Costa  Kica  I'acket".  At  the  time 
of  our  argument  these  papers  had  not  heeii  formally  presented 
to  parliament  in  Knglaiid,  as  the  printing  had  not  then  leeii 
fully  completed. 

Mr  Dickinson  ; — Not  at  the  time  of  your  printed  argument  ; 
3'ou  had  it  on  the  talile  I  think  at  the  time  of  the  oral  arguments 
of  Mr.  I'eters  mid  .Mr.  iieiijue. 

Sir  C  II.  Tiipper  : — We  hail  this  in  our  hands  at  the  oral 
argument.  I  simply  wish  to  call  attention,  in  connection  with 
those  (piestions,  that  have  liceii  ruined,  to  some  authorities  that 
arc  found  in  this  report  entitled  "  I'apers  relating  to  the  Arhilia- 

.50  tion  in  the  ease  of  the 'Costa  Kica  Packet,' commercial,  No.  ;t, 
lS!t7,  presented  to  hoth  houses  of  I'arliament  liy  the  comiiiand 
of  ller  Majesty,  .May,  liS!l7."  At  Jiage  ."),  de  Martens,  who  was 
the  umpire  in  this  case,  is  (pioted  at  page  +!•]  of  his  work  : 
"  Traite  lie  Droit  International."  At  section  ltd  then*  is  set  out 
a  seetion  from  that  woik.  Translating  fieely,  hut  I  think  cor- 
leetly,  so  far  as  the  point  is  concerned,  he  states  that  it  f.illows 
t.at  every  »liip,  when  on  the  high  seas  is  suliject  exclusively  to 
the  state  whose  llag  it  heais,  and  at  page  (!,  Chief  .lu-lice 
Marshall  is  ipioted   in  the  case  of   linse  v.  Himrlji.      I  call  atteii- 

(JO   tion  to  what,  he  says  :  - 

"  If  these  propositions  he  true,  the  sei/.ui'e  of  a  person  mil  a 
"  suliject,  or  of  a  vessel  not  heloiiging  to  a  sul  ject,  made  on  the 
"  high  seas,  for  the  hreach  of  a  municipal  regulation,  is  an  net 
"  which  the  sovereiiMi  cannot  aiulioii/.e." 


40 


44!t 

(Sir  Clinrli's  'I'uiju'i's  Ai;,'imu'iit.) 

At  pivj^c  S,  Hull  is  miott'il  : — 

"  !?.it,  iis   the  jiii'isdictiiiii  ovvr  tlii'  liittor  is  set  up  ns  ii  con- 

'■  -ii'i|iiiMice  of  their  prcst'iicf  iiiion  flu-  (t-rritnrv,  it  ln'^ins  witli 

'  tii'ir   fiitiaiict',  Biiil  I'cases   with   their  oxit.  so   thiit  it   cnniiot, 

'  except  in  ii  particular  case  to  he  luentioiieil   later,  lie  eiiforceil 

when  they  left  the  coiinlrv  ;  aiiil  will,    respecl    to  acts  done  hy 

10      roreii,'u  per.ioiis,  it  can  only  he  exerciseii  with  reference  to  such 

■  in  hiive  lieen  iiccouiplishi'ii,  or.  at   least,  hetjun.  durin;;  the  pre- 

•  sence    within    the    teriitory    of   the    persons   doiiii,'   them.      In 

'   jiriiu'iple   then,   the    ri;;hts   of  sovereii,'iity   ijive   jurisdiction    in 

"  respect  of  ail    acts   done  hy    sul'jocts  or    fori'imiers   within  the 

'•  liuiitN  of  the  Stale,  ami  of  those  actii  done  hy   lueiuhers  of  tiie 

'■  couiuiunity  outside  the  State  territory  of  whicii  the  State  may 

■'  choose  to  take  coi.;lM/.niU'e." 

Auil  in  the  award  of  de  Martens,  pa^e  70.  heinuin;;  with  tlie 
senteiu-e,  "  I  pronounce  the  followiii;^  award  of  arhitration."  h- 
20   siiys  :  — 

"  ('onsiderinij  tluit  the  rii;ht  of  .soverei!.;uty  of  ihe  State  over 
'•  territorial  waters  is  deterniiued  hy  the  r.ue^i'  of  c mnon. 
"  uii-Msureil  from  the  low  water  mark 

"That  on  the  hi;;h  seas  eviui  tnerchaut  vessels  constitute 
"  detached  portions  of  the  terrilciry  of  the  State  whose  lltitjthey 
••  hear,  and,  coiiseipicntly.  are  only  Justiciahle  hy  their  respec- 
•■  live  natioiuil  authoiities  for  acts  conimitteil  on  the  hi^h  seas." 
It  is  not.  ]ierhaps.  out  of  place  to  diaw  attention  to  the  posi- 
tion of  the  Netherlands  ;^overiuuent,  althou;^h  it  is  only  to  he 
30  taken  for  what  it  is  worth,  liiit  in  coniu'ctiiui. 

Mr.    l>ickiuson:  —  I'lel'ore   you  proceed.  Sir  Chailes,  I   c|o  not 
think  that  the  point  was  clearly    maih;  in  tlu'  "  N'irjjiuius  '  case 
as  to  what  the  .settlement  was  inaiie  for.     1  thiid;  every  one  who 
livi'il  at  the  time   ri'uitmhers   the   case  of  the  '  Virijinius,"  and 
the   student   of  international    history    and    of  the    practices   of 
civilized   nation^  in    their  relations   to  munkiuil  in  ^'eneral  well 
know  for  what  that  iudi'Minity  wa-  i,'iveu.      I>   was  not  i,'ivenfor 
the    sei/ilie    of    the    "  Vir:,'inius,"    hut    it     h.is    lor    thai     which 
occurred   at  Santia'4;o  de  (.'ulu,  when   the  piisseii^ers  and    crew 
■K)  were  set  up  ai^ainst  the  dead  walls  anil  shot  t)  death.      Kn^land 
iiiMile  redauuitiiin  and  the  I'nited  Stales  made   reclamation.     To 
that  it  is  contineil   in  the  convention.     The  reclamations    were 
pii'si'iited  hy  I  he  ^^overnment  i  if  the  I'nited  States  in  conseijuence 
.if  what  occuired  at  SaniiML^o 'le  Ciiha,  in  rejfiird   to  (he  persons 
o!    the  ollicer^.  cr 'W   and  passeus^ers   of   tlie  ^leanler  "  N'ireinius,' 
it    liein;;    uiider>too  I    that    fioni    these    reclamation    are    to    he 
excluded,    in    so    as  far   as  respects    tlie    ship's    company,  nil 
iiidiviiluals  already  indenniitied  as  l?>'itish  sui.jeets. 

Sir  ('.  II.   'I'ii|)per  :  -  With    defeience,    1   do  not    Ihmk   that, 

.■)!)  c  Me-iileiiui,'  that    I    have  re;id,    and  purpus'ly  read    so  very  fully 

liiiii  tlie  diplomatic  correspondenee.  that  it  is  neees^arv  for  nu( 

I  1  note    that   hleik    Ml    IIIV  are;UmeIit.       1   only   le;,'ret,  that   f(n'  the 

>:ike  of  ciMitiniiiiy  my  friend  did  not  laise  the  ipiesiion  lufoic 
I  1' I'l  the  case  of  the  "  \'ii;,'iiiiii»  "  and  had  enue  into  tiiis  othrr 
lii.iiieh    of   my  arj^unient. 

Mr.  !)ickinsoii:  —  I  did  that  out  of  coii'-ideration  for  \oii, 
finiii  wlioiii,  as  I  understand  it  in  the  order  of  areunieiit,  we  are 
not  to  hear  ic'xin.  and  to  he  entirely  fair  I  thoii^^ht  that  I  should 
iiil  attention  to  the  point  so  that  it  may  he  replied  to  hy  you. 
(10  Sir  t'.  II.  Tupper  — I  do  not  resi-nt  interruptions,  and  per- 
haps on  consideratiiui,  I  would  not  have  expressed  the  rej^ret 
that  the  interruption  had  come  when  it  did.  |!ilt,  lU'Vertheless, 
I  wish  to  say,  and  I  ho()c  (hat  I  say  it  without  otl'eiu'e,  that 
c  msiderinjj  my  purposes  and  references  to  the   Virjfiniiis  case,  it 


! 


t 

1  ( 

(! 


i: 


%ll 


iii 


r« 


^1 


T\-<  --rr, 


450 

(Sir  CJmilos  H.  'riij>i)i  r's  Ar;;(iiiifiit.) 

(loos  not  seem  necssury  (or  me  ti)  iI.'kI  \vitl>  what  my  lc«rM..,| 
frltitiil  liai  sail).  I  know  tlie  spii-it  liiat  luis  prompti-d  liiiii.  aini 
I  ilo  not  complain  of  it.  I  plmlif.iijt'il  the  stiitfrncnt.  of  tin' 
United  States  ai-f^iiment,  and  I  sav  that  it 
pr.'tation  of  the  history  of  the  "  Vir^'inii 


not  ft  C'lrrect  intiM  • 


\v 


hen 


It 


Is  ciaiiiiii 


tiiat  tin-  United  State-*  conceded    that  Spain    under    tho   cireiiiii- 

l^   stances  of  the  ea^e  had  tiw;  ri;,')it  to  ad  liiee   proof  to  show  that 

tiio  "  N'iri^iniiis  "  was  net  rii;htfnily  carryini,'  tin;  Aiiieriean  tla;;. 

1  clialh'ni,'ed  that,  and  the   ln-st    way,  us    1    supposed,  to    siippoit 


my    pusition    was    to    take 


the     record     of     tlie     Ulliteil     State 


f{ov(^riiinent  ]ireseiited  to  ( 'miLtress.     ( "ertaiiily  I  r'd'erreil   tn  cihI 
read  from  the  H<;reement  for   indemnitv,  and    1    am    willing  thut 


voiir  Honor-:  slio 


\vi 


til  the  facts 


uhl 
tl 


s  as  tliev  are 


20 


ir  "'v  ci'iticism  of  the  li-arned  cnuns' I 
di^ehised  in  tiie  Uniteci  States  histMiv 
of  that  case.  These  facts  stand  Diit,  that  wiiether  Eni,dand  had 
lieeri  ulile  t)  olitain  ivpaiation  for  the  daimiLje  done  to  lur 
sulijects,  where  frami  had  heeii  practiced  on  the  United  SlatiN, 
and  the  registry  had  heen  olitained  improperly  and  liy  a  false 
oatii,  and  wiiile  the  vessid  had  put  to  sea  carrvinjj  tlie  tin 
without  riitht  and  contrary    to   the    Uniteci    States    1 


aw- 


-thiit. 


th 


neveitlieless 


in  that  case,  tiioii'di    the    ve 


ssel  s  commissKjn  vas 


injurious  and  of  a  lpelli:,ferent  character  as  reijards  Spain— il 
position  was  clear  atnl  haiclly  ilispiited  hy  Spain,  that  tiie  wimii 
in   that    case    (pioad    that    ship    were   d 


one   aira 


inst   the    United 


.no 


States,  and  it  was  for  the  United  States,  in  lier  discretion,  in 
insist  upon  the  penalty  and  awanl  the  piinisjiinent,  and  thai 
Spain's  action  was  not  ri;;ht  iiiiiler  international  law,  in  inier- 
feriiii;  with  a  siiip  carryiii;,' the  American  llij,'  in  .ime  of  p-ai'e 
on  the  hi^h  seas. 


Spain, 


far  a 


s  It  ap|)ears. 


.lid 


not    maki'    the    point   of  sr 


defenci',  hut  ni'\  ci-lheless  the  intsition   of   the  United  Stati 


iiid    il  was  tiiat,  fraud  or   iid   fraud,  in  tiim 


f  peaee  III) 


nation  can  interfere  \viih  a  vessel  on  the  liiith  seas  earryiiii;  th<' 
United  States  lla;f,  I'.xcept  the  United  States  itself.  And  at  the 
conclusion  of  all  that,  when  S|)aiii  had  shown  the  fraud  tiiat  wms 
li-cliise.l,  there  is  the  fact  that  .Sj.ain  had  Id  pa\    tie-   amount  of 


^0  .'SJSO.OOO  to  the  Unite,!  Stat 
aninii^'  the  fiiniilies  wliiidi  hai 
connection  with  the  sliij),  and  t 


Lrovernni'Mii,  to 


UtI'eied  at    tlie  h 
he  siM'viviii s  am 


ilistrihiilr 
f  Siiaiii  III 


i   f. 


ili 


d'  til 


crew  of   the  -hip  and  of  the  pa-sen^el■s,  and  all  on    hoard  exe.  |it 
the  liritisli  suhjects,  for  whom  Kiii^land  had  alnady  s.tthd  wiili 

Spain  at  the  time  that  aereement  fov  iiid'' ity  was  -i^iu d. 

'i'lie  ( "(immissidiier  on  the    part   nf  the    I'liited  States  :      |)il 

Sp;iiii  pMV  aiiylhiiie-  to  tl wiicis  nf  the   ship  ' 

( '.  11.    Tiiiiper:      Nii;   I  he  ship  «  as  re  t  iiriied  to  the  Inili'd 


Sir 
Stale.' 


.Mr.  I  >iekilisiiir    There  was  n(itliiii''il:rniii'i|  lor  t  lie.se 


i/.iire 


iIk 


demand  of  both  eninitriis  was  I'm-  the  murder  or  massacre  nl'  il 


peojile  at    S.indiai,'<i  I ' 


('111 


imt    l'(ir  the  sei;^ll|e  of  the  ship. 


ir  ('.  II.  'I'lippir  :      Si  i  that  w  let  her  that  eritieism  lie  in  puiiil 


or  not,  that  lla<' Was,  in   that   case 


On 


.1  r 

I'' 


or  evcrvoiie  nil  iioari 


It 


I' 


itictinll  for    the   sh 


was   eiiilsK 


lend 


SU( 


III 


tl 


le  I'll' 


■\-'Ui\'  the  (  'ost.'l  Hie,!  e.ise  ihefe  is  a  n  fen -I  lee  to  t  he  llialli  r 


if  ilninieili'.  will  ii'  il    is  admitted   liy  the    .Netherlands  (!ii\eiii 
iiieiit  in  their  lniif  that  a  ildinieilel  eili/.ii  is  not  respon.sihle   ti 


( 'nil I  it  ry  of  iliimieiie  for  aets  (jniif  li\'  him  nut 
tin   nf  I  he  domieile, 


tiie  llirisdiellnii 


The    ( 'nmmissinlier    nii    the    p,ill    nf    the    I'liited   Stall 


A I 


what 


part 


til. 


p' 


that 


Sir  U,   1 1,    riljiper  :      l>i(riiiiiiii;,Mit  the    secoiiil  eomph'te   p,ir.i 
;rapli.      I    kliiiik    I  alreft.ly    ref.-rred    to   the    British    .\r;_'iim.'iil 


451 

(Sir  Charles  H.  Tapper's  Argument.) 

pajfCH  17  and  18,  Hh(iwii>K  tlio  peculiar  protection  to  sailors  aii<! 
those  under  the  lla^  of  the  ship  su  far  as  their  personal  claims 
are  concerned,  and  I  ilo  not  understand,  in  my  readinj.;  of  tin- 
United  States  brief,  that  there  is  much  diH'erence  between  us 
with  regard  to  the  protection  that  the  flaj;  atfords  to  the  RHiiors 
and  all  lawfully  on  board  the  ship. 

There    is  an  intcrestiuj^  case    that  nii;jht  be   added    to   our 

10  authorities  in  the  brief — a  recent  publication  of  the  Senate,  ND. 
79,  ')4th  Cont^ress,  7th  Session,  jiaj^es  15,  26  and  ',i'.].  It  is  con- 
nected with  Spain  al.so,  and  the  claims  of  United  States  citizens 
ayainst  Spain.  That  subject  it  referred  to,  and  the  Consular 
Hejjulations  are  (|Uote(l,  and  they  very  happily  include  in  tlicKe 
rcfjulations  the  lan};u«f^e  of  Webster,  and  have  adopted  tlieiii  as 
part  of  the  Consular  instructionH.  "In  every  re),;ularly  docii- 
"  meiit.ed  American  merchant  vi'ssel  the  crow  who  navipite  it 
"  will  find  their  protection  in  the  lla{^  which  is  over  them."  Ami 
so  in  this  case  the  Jlritish  and  United  States  Consuls  a,',need  tliat 

"20  in  a  ease  where  the  United  States  flay  was  over  the  vessel  tlif 
United  Stat(!s  Cons\d  was  the  pmper  person  to  represent  the 
British  as  well  as  the  American  saihjrs. 

Now,  if  I  havt!  made  the  point  that  lam  endeavorinj^  to  sup- 
port deal',  there  is  a  distinction  between  the  case  of  subjects  an<i 
citizens  and  the  case  of  ships,  and  those  connected  with  siiips. 
those  behind  the  ships.  Takinj;  the  authorities  in  the  Unitrd 
States  lirit;f  it  will  be  found  on  examination  that  they  do  nut 
conilict  with  that  position.  For  instance,  at  pR<;e  4l  and  42  of 
the  United  States  Hrit'f,  there  are  cas(!s  mentioned  and  at  pai;e  47 

31)  Koszta  case  is  referred  to  and  at  pajje  50  and  pai;e  M4,  other  caso 
ar(!  referred  to,  from  which  my  learned  friends  endeavor  to  bulM 
up  a  lar^je  part  of  their  case.  These  are  cases  having  no  cdu- 
nectiuii  with  shi[i8.  1  refer  to  Koszta  case,  Laurent  ca.sc, 
llcHuj^h  case,  Drummond  case,  etc. 

There  are  some  cases  that  do  refer  to  ships.  Let  us  examine 
them,  'i'he  case  of  the  "  Kxperiment"  or  "  Kxi)erimento,  "  is  men- 
tioned by  my  learned  friends.  That  case  is  in  2  l)odsou.  'U'l. 
wher(^  the  Spanish  and  the  Mritish  claimants  both  invoked  the 
aiil  of  the  coiu't  in  a  cau.se  of  possession.       The  facts  are  briefly 

40  set  out.  They  relat*^  to  a  state  of  war  between  the  United  States 
and  Lnjjland  in  1HI2.  The  representative  of  Donaldson  was 
claimin;^  the  ship.  Donaldson  had  sent  this  shij),  liefore  the  wai'. 
to  Nassau  forlumbei',  the  ship  jjot  stranded,  was  taken  possession 
<pf  by  the  United  States  jfovernment,  and  proceeding's  wei-e  in- 
stituted in  the  Ailmiralty  Court,  in  the  rej^ular  way.  in  the  case 
of  a  prizi.'.  A  special  act  of  Conffress  was  passed  for  the  reiifl' 
i<\'  ships  that  were  taken  un<ler  the  circumstances  of  this  slii]i 
I'lider  that  the  .ludjfe  oi-dercd  a  j)ass|iort  to  be  <,'ranted  for  tlic 
ship,  but  delay  occurrerl,  and  aftei'ward  or.   application  in   IMo 

50  there  was  a  decree  of  sale  of  the  ship  niaile  by  the  .ludj,'i', 
luiluss  Certain  court  costs  and  charjjcs  were  pai<l.  and  under  liiat 
ilccice  the  ship  was  sold.  She  was  reuioTnl  to  Fernandos. 
and  what  was  called  an  act  of  Naturalization  v^as  pa.ss.cj 
and  siie  was  ilelivered  to  the  Spanish  governor.  She  was  then 
cliissed  as  a  Spanish  ship  antl  named  the  "  I'Lxperiinento  :"  slie 
siibseijUeutly  came  to  Portsmouth  where  these  two  claimants  put 
ill  their  claims  ill  connect"  in  with  the  ri;,'lit  of  jiossession.  'I  he 
ciiiiteiitiiiii  was  that  there  had  been  no  re^fular  sale  in  the  pri/.e 
ciiiii't,  11(1  coiideiiinat  ion  and  |>rize  and  that    the  Hritish  title  had 

•  ill  never  ilivesled.  The  case,  therefore,  relates  to  a  time  of  war, 
and  both  ])aities,  without  deiiyine- or  resislinj;  the  juiisdiet inn 
111'  tiie  court,  follj;ht  out  the  i|Uesti<Ui  as  to  whether  there 
had  been  a  re;;ii!ar  condenination  and  .sale.  Sir  William 
Scott  deals  with  it  at  page  42,  and  also  refers  to  proceedings  in 


1^ 


■\ 


« 


ll  <.^.ll 


Kill'  W 


\>     1; 


'i  -41* 


I': 


10 


452 

(Sir  ChnrlcB  H.  Tuppcr's  Arjjuinent.) 

tlif  I'liitecl  States,  and  ftlso  nt  lniK**"  ''•■''  "'"'  ■**'•  t"  ^''•ow  timt  in 
his  (ipiiiioii  there  hml  itfeii  a  rc^iiiur  sail'  under  tlie  order  of  a  re- 
fjiilar  prize  court. 

'I'hc  cane  of  tlie  "  Trent"  is  mentioned  on  pa;;e  K2  >f  the 
Uniteil  States  brief:  I  NJniply  call  your  Honors'  attention  to  an 
()l)ser\at ion  made  inCrapoand  Kelly,  Hi  NVallaee,  at  pa;;e  (151:  — 


In  the  eele))rated  ' 'I'rent '  ease 


ofcnri 


injr  in  IKt!2,  Messr? 


■■  Mason  and  Sliih'li  were  removed  from  a  Uritisli  private  vtissel 
"  hy  ('onnnodori>  Wili\es,  of  the  '  San  Jacinto,'  a  pulilie  vessel  of 
"t!ie  I'nited  Stati-s.  (Jreat  iiritain  insisted  that  the  rij^hts  of  a 
"nentral  vessel  not  oidy  hail  heen  violateil,— for  which  she  lie- 
■•  niiinded  apolo;^y,  hut  she  iiisisteil  that  these  ])erson.s  should  Ik' 
"  replaeei]  and  returneil  on  hoanl  a  liritish  ship.  This  was  done 
"anil  they  were  avtuidly  placed  on  hoard  a  liritish  vessel  in  or 
"neiirthe  harhor  of  Huston.  They  were  not  British  sulijectH 
"and  their  return  could  only  have  heen  demanded  for  the  i-eason 
-0  •  that  they  had  heen  torn  from  Mriti.'-h  .soil  and  the  .sanctity  of 
"  Hi'itisli  soil  as  re|)resenteii  hy  a  Hi'itish  ship  hail  heen  violated. 
"  ( "iti/i'uship  or  residence  had  no  inllueiice  iijion  the  (lUestion," 
1  think  to  some  extent  that  ohservation  is  in  line  with  the 
distinction    1    am  drawini:    lietween  the  cases  wliero  shins    are 


concerned  and   between  the  e 
cerned. 


ases  wnen 


partit 


are  con- 


Then  there  is    another  case  not    within  the  list  I  first    ;jave 

from  the  I'nited  States  brief,  which  concerns  [ler.sons  only.       At 

paj^e  S")  of  the  I'niteil    States  arjjument  there  is  found  theca.se 

HO  of  ( "ainiibell  vs  Spain.       To  propei'ly  understanil  that  case  and 

the  application  of  it.  it  is  necessary  to  refei'  to  the  aj;reement  or 


lueniorandum    ini< 


der  which   the 


IS  constituted   a    Coint   of 


Claims  -not  a  commission  such  as  we  are  here — but  a  ("our:  of 
Claims  provl.lin^  an  ea.sy  methoil  by  which  i>rivate  claimants 
could  tile  their  claims  and  present  them  and  i;et  separate  and 
independent  jud^^ment  -the  claim  to  be  jirosed  and  adjudicated 
muler  the  proceclm-e  to  be  laid  down  and  rules  made  for  the 
conduct  of  these  cases  which  lar;;ely  partake  only  of  a  private 
chai'acter. 
40  In    a    volume  of   "Treaties   and  Conventions    between    the 

I'nitecl  .States  ami  other  jiowers,"  there  will  be  found  at  paye 
lO').')  an  ai;reement  for  the  settlement  of  certain  claims  of 
citi/ens  of  the  I'nited  Stati'S  on  account  of  wi'one;s  and  injuries 
connniited  by  the  autlioi'itics  of  Spain  in  the  Island  of  Cuba,  and 
it  will  be  found  that  this  memorandum  of  a;;i'eement  be^^ins  i)y 
refei  riu",;  to  the  arbitration  for  the  settlement  of  claims  of  citizi-n.s 
of  til"  I'nited  States  and  of  their  heirs  ajjainst  the  ( iovernment 


f  Si):un. 


.">() 


ara;4rai)h 


:{:  — 


Hacli  (iovernment    mav  name  an  advocate  to  a 


th 


pjiear  before 


ibitrators  or  the  umpire  to  represent  the  interests  of  th 
"  parties  respectively.  " 

Paragraph  4. —  Directs  that  the  arbitratoi's  shall  have  full 
powei-.  subject  to  the  stipulations,  and  it  shall  be  their  duty  be- 
foi'e  proceedine;  to  heal'  any  ca.se,  to  make  convenient  rules  anil 
pri'scribe  the    time  ami  manner    of  hearinjj  the  claims    and  the 


)roof  th 


l'ara;;ra|ih  5. — I'rovides  that  the  arbitrators  shall  have  juris- 
diction of  all  claims  presentecl  to    them  by    the  jfovernment  of 
<iO   the   I'niteil    .States  for   injuries  done  to   citizens  of  the    I'nited 
States    by  authorities    of  Spain    in    Cuba,    and    eontinucH    as 


foil 


ows  : — 


Adjmlications  of  the  tribunals  in 


(^il 


la  eoncerninrr  citizens 


)f  the  I'nited  States,    made  in  the  absence  of  the  parties  in 


4r):{ 

(Sir  t'liiiilcs  11.  'I'lippcr's  Ar;;iiiii(iit.) 

"  ti'i't'Htt'il.or  ill  vi(  lint  ion  of  intfriiHtioiial  law,  or  of  t}ie<;iiAraiitr>(!s 
ami  forms  pidvidt'd  for  ill  tlif  tifatv  of  October  27,  171!.',  l.i- 
liftwfcii  tlir  I'liitcil  Stutf'H  ami  S|)aiii  may  Im-  ri'vicwcil  hy  the 
Hrl)itrators."  •  »  »  "  Nojinl^^mi-iit  of  a  Spaiiiiili  tritiumil. 
(lisailowiii;;  tin-  atiiriiiatioii  of  a  party  tliat  In-  is  a  <'itizcn  of 
till'  I'liitfil  Si.in.-,,  nii.ill  prrvciit  till"  arhilratorM  from  licariii;; 
III  a  reciaiii'itioii  prfseiitt-il  on  heliaif  of  Hai<l  jiarty  liy  tiic  I'liiti'il 
Stall's  (Jovcrnmcnt.  Nevt-rtlii'lcss,  in  any  case  licaril  liy  tin' 
arlatrators  till!  SpaniMli  Govfrnmi-nt  may  traverse    tliealli';;rt- 

■  tioii  of  Aim'ricaii  cili/t'iisliip.  ami  tlu-rt'ii|ioii  couiiiett-nt  ami 
siitfifirnt  proof  tlicri'of  will  bi-  rfc|iiirt*<l.  Tlic  ( 'oniiiiis8ion 
Iriviii;;    r»!i'Ojjiii/.t'  1  tin.'   ([iiaiity  of    Ami-rii'ii-.i    citi/i-ns    in  tlu' 

claiiiiaiits,  tlii'V  will  aci|iiir(!  tin'  ri;;lits  accoivjcil  to  tlii'iii  t)y  tlii' 

■  present  stipulations  as  siicli  citizens.  Ami  it  is  further  a;;rceil 
iliat  the  arliitrators  shall  not  have  jurisiliction  of  any  re- 
clamation   iiiaile    in    liehalf  of  a    native-horn  Spanish  sulijecl 

•ji)  iiatnralizeil  in  the  I'liited  States,  if  it  shall  appear  that  the 
sa:iii' suliject  matter  having  heen  adjinlicateil  liy  a  comiicfcnt 
iriliinial  iiiCuha,  ami  the  clainiaiit  havinjj;  apjicareil  tlierein 
either  in  person  or  hy  his  duly  appointed  attorney,  and  heing 
•' rei|iiin'il  l»y  the  laws  of  Sjiain  to  mak.' a  deilaration  of  his 
nationality  failed  to  declare  that  he  wasa  citizen  of  the  Tnited 
.States." 

Now,  both  parties  put  u])on  this  the  coiistriiction  that  it  was 
,1  iiiemoramluni  for  the  reference  of  claims  in  the  manner  sii;;- 
.;esti'd  hy  the  memorandum,  on  the  pai't  of  those  who  could 
;!ii  establish  theiiiselvi'H  to  be  American  citizens  and  that  the  claiiii- 
,iiits  were  to  have  no  stamlin;r  unless  that  proof  was  ^^iven  in  a 
certain  way.  I  have  in  my  hand,  ami  it  has  some  relevancy  in 
(Ills  coniu'ctioii,  a  diK'uiiieiit  certitied  to  by  the  Secretary  of 
St.ite  for  the  I'liited  States  -a  paper  from  Mr.  HIaine  where  he 
refers  toone  of  the  claims  under  this ("onimissioii.  On  the'2'2nd 
.it'  \\m\.  IHKI,  to  the  t'otiiisel  for  the  riiited  States  before  this 
Commission,  lie  says: — 

"  Vour  letter  of  the  l!>th  inst.,  in  connection   with  the  claim 
"  of   I'eilro      •      *      •      hr.s  been  received." 
1         Then  lie  ifoes  on  in  the  next  ]»ira'.;raph  of  this  letter  to  refer 
to  naturalized    citizens    of   the    Tnited     States    who    niij^ht   be 

■  suitors"  in  that  Tribunal  ;  and  a<;nin  he  refers  to  naturalized 
I'iti/.ens  who  are  "claimants"  before  that  Tribunal,  and  a;jain, 
lie  refers  to  the  rules  ami  procedure  ndopted  by  the  Tribuinl, 
wliere  it  is  providecl  that  every  memorandum  Khali  show  the 
]\:iuii'  of  the  "  claimant,"  his  placn  of  bii'th,  and  if  he  be  n 
iiiitural  citizen  of  the  United  States.  This,  of  course,  merely 
ill  liealeil  the  view  that  .Mr.  HIaine  took  of  that  ("ommission 

hi  this  case  of  ('iim|>liell  a;^Minst  Sp;iiii.  "  Record  of  t'ases 
'.•+. '  etc.)  I  would  refer  to  |ia;fes  .J  and  li  of  the  Spanisli  Hrief, 
showing  that  there  was, as  part  of  the  defence,  the  stitemeiit  that 
tiie  seizure  was  made  ut  a  time  of  belli;r,.feii(.y,  that  it  was  in  s-lf- 
ili'l'i'iic.  luid  also  settine;  up  self-defence  in  an  additional  brief 
tiled  fur  Spain.  So  also  there  is  a  reference  to  tlmtplnse  ,)f  the 
lii.ir.ieter  of  ihe  seizure  in  the  Spanish  arliitrators  opinion,  Jiage 
4.  Tills  hinvever  is  the  part  I  wish  to  read  in  tiie  decision  of 
tlie  umpire  so  as  to  t.ike  the  case  out  of  that  class  that  ousrht  to 
li.  ;ir  upon  the  cases  before  this  commission  :  — 

"  As  a  matter  of  fact,  it  has  been  established  that  the  arms 
mid  ammunition  shipped  on  the  ".Mary  Lnwell  "  were 
.eliiiittedly  intended  for  delivery,  even  by  illegal  means,  to  the 
'  ( 'uban  insur^fcnts.  It  has  been  established  in  retiard  to  the 
'  .Mary  Lowell  "  that,  even  if  it  be  doubtful  on  the  proofs  'that 
'  lier  ostensible  destination  for   Vera  I'ruz   1ms   been  simulated 


."ill 


III) 


.t*' 


w 


ni 


'I     II 


N 


i 


4-)4 


(Sir  Cliarli'M   H.  Tiijipois  .    ;;uiiu'iit.) 


"  I'rom  till'  ilcpiirttii'f  from  Now  Vork  slit'  was  aliaiidniieil  at. 
"  till'  HiiliiiiiiiiH  liy  liiT  fiiptiiiii  ami  iti'W,  tlii'v  iiili-jjiiii^  unwill- 
"  ini^iip^-i  ti)  piirtii'lpiitf  in  ii  ili'sei'iit  upon  tlio  (."iiljun  coast; 
"  that  sill'  was  tluTi-upon  left  liy  lifr  proprietor  uihIit  tin- 
"  eoiiiinanil  of  one  of  tlie  memlKMN  of  a  lioily  of  men,  orjinnized  hs 
10  "  a  military  compiiiiy,  wliicli  liii<l  come  from  Jacksonville  witli 
"  C  H.  I'amphi'll    on  another  ship  heloni^jini;  to  ().  H.  Campliell 


fid 


hiiiiself  :  that    the  alleif/tion   that    tli 


M 


arv  Lowe  I 


was 


ifti 


erwanls  plaeei 


I  in  custoilv  of  a  Mritisli  otficial  is  inconsistent 


with    til 


e    positive  ilecia 


rations    of  the   British    (loverniiieiit 


'  that  the  aforesaiil  company  was  manifestly  en^^'aifcil  in  the 
■  initiation,  at  least,  of  an  atteiii|)t  to  make  a  descent  upon  the 
Culiaii  coMst  in  aid  of  the  insurrection:  and  that  before  the 
'capture  of  the  "  Mar}'  Lowell  "  hy  the  Spanish  forces  the  voHsel 
'  and  carijo  had    passed  into  tl 


issession  and   under  the 


coii- 


"  trol  of  the    insury;rnts,  whatever  may  lie  the  weitrht    properly 
'20   "  rtttrihutahle  to  the  assertion  that  the  claimants  lind  lost  and  the 
"  insur^ients  had  acipiired  ownership  of  ilie  pro])erty, 

"The  umpire    must    lie  understood  as  «|i|ilyinLj  the    rule  of 
"estoppel  only  aijainst  the  private  claims  of  t".  H.  Campliell  and 


A,  A.  A 

lividii 


ranjio,  as  claimants  i 


if 


indemnitv  for  their  ow 


n   III- 


ai 


account.    111   which    jirivate    claims 


the 


question: 


Was  the  cajitnn^  of  the  "  Mary  [jowell  "  and  car^^o  unlawful  ? 
is  suliordinute  to  the  other  ipiestion,  viz,  :  Were  th'^  "  Mary 
IjOwcH  "    and  cari,fo  cn<,'aj,fed    in    a  lawful    enterprise/      The 

n  to    treat  this    ns  a 


"umpire    cannot  lie   loLjitimately  called   iipo 
!50   "  case  of  the  United    States  against  Spain,  having  its  direct  i 
"  ject  a  suitable  reparation  for  the  oHended  di'^nity  of  their  i\ 


[n  such  n  case    th 


'iTularity  ot   the  caiiture  w 


i-ould 


air. 


constitute 


'  the  principal    ipiestion  to  be  considered,  the  personal  sitiiatiuii 
of  the  owners  of  the  pro|)i'rty  beeomin;^  siiliordinate.       Hut  ii 


ise  of  the  I'niteil  Stati 


s  aLjainst  Sjiam 


has  1 


leen  or  coulil,  in  tin 


"opinion  of  the  umpire,  projierly  be  presented  to  this  tribiiinil. " 

I  do    not  wish    to  travel   over  the    arijuments    presented   so 

uiucli  better  than  I  could  possibly  hope  to  present  them  toiu'liiii;; 

one  a.spoct  of  the  case, 

-K)  I  have  referred   siitiieieiillv  to  the  ease  to  illii.strate  mv  own 


jiositioii  ill  am 


)tlier  chanter  of  the  .ireiimeiit.  and  that  is  to  show 


that  there  is  iiiithine- there     when    \i)ii    look  at    the  re.isons  f 


or 


the  jlldj;lilillt  to  destroy  the  principle  which  seeiiis  to  me  to  be 
supported  by  the  aiitliiirities  I  li.ive  nrerred  to.  and  not  in  coiitliet 
with  the  authorities  referred  to  by  my  learned  friends,  poiiitiiii; 
out  a  ili.stinctiiiii  between  the  elaims  for  a  ship  and  all  part  its 
repri">ented  or  concerned  ill  a  .ship  by  a  nation  and  the  ehiiiiis 
of  private  iiidixidiials  cither  as  pri\  ale  claims  or  at  the  hands  of 
a  j^dveiniiieiit  claiming  for   wroiifis  done  to  private  individuals 


•")(>    (not   to  shili.sl  lis  eiti/eiis  or  silbieets. 


here  is  u   case    lefern 


to  ill    the    I'liite  I    States    I' 


rief  nil 


)ia^re     t 
J'rte 


4.   I 

pagi 


nite 


Stati 


r 


U-llllstfl' 


reporl" 


-.S,S-.-)!t7 


7  and  iii\-  learned  Irienil  mivs  it  is  « 


leadi 


\iiierieiin  caMe.  which    ceit.iiiil V  c.iiiiiot    be  contested  when  it  i- 


nowii 


that   it  is  a  de 


bv  Ju.Il 


Sforv. 


The  tirst  head-note  in  this   ca<ie   indicates    sometbiiiu'  o 
1  whiih   it  came  up  : 

the  nth    lutiile  of   the  tiv.itv   of    ISlII,   (S   Slatm 


f  tl 


manner  ii 


mlei 


a! 


W'r 


•.). 


I. 

for    tl 


roooer*    I 


what    IS  elaiiiii 
iiii''iclmndisiv 


■tween  till-  I'liited  St; 


and   Njiain.  iirnviiliii 


restoration 


|)ro|)erty   risen 


111  the     liiirll  seas,    it  is    iiecessai'V    to 


i|   ?spaiii.  p 
from     piiati'S  aiei 


d     fa 


Is   within 
at  it  ha- 


th 


serililion 


i.lei 


I    on    the   hi^h 


fi 


iirati 


■  \.      That  the     as'd'l-ted    ]irii]iriel  nl- 


:;(! 


45S 

(Sir  Clmrli's  H.  TiipiiiTs  Aij;iiiiifnt.) 


■  the  tr 


cl   liiive   f^tal>lislieil    tlteir    title  I>v 


ni'o  llie  tnn!    pniprictors,  niic 
•  ctimpi'ti.'iit  proof. 

I  wisli  to  refer  lirii-tly  to  two  or  three  points  in  tiie  eusr  ;  for 
iiistiuice,  on  piiLje  5MfS :    ■ 

"On  tlic    2(Jtii  of  Aiignst,  tlie     vrsicl     was    diseDVertMl     liy 

■  liieutenunt  (leihu-^-,  of  tlie  United  Stati's  firi;;  "  Washinu'ton," 
Ml  "  at  nneiior  on  the  iiitfli  sens,  nt  tlie  cli'-taiiee  ■  f  iialf  a  mile  from 

'  the  sliore  of  l^on^  Isiand.     A  |).irt  of  tlie  ne^jmes  were    then 

■  on  shore  at  Culloden  I'oint,  Loni;  I-'land  ;  who  wen'  s(Mzed    hy 

■  Lieutenant  (iedney,  and  hron^dit  on  hoard.  The  vessel,  with 
"the  nej,'roes  aiul  other  persons  on  lioanl,  was  liroti!,dit  hy 
"  liientenant  (iedney   into  the  district  of  ( 'onneclicuf,  and  there 

■  lihelled  for  Kulvage  in  the  district  court  of  tli'>  I'nited 
•■  .States." 

Further  ilown.  on  the  same  Jiai^e,  it  sajs: — 
"On  the  l!)lii  of  Septemher,  the  Attorney  of  the  United 
-i'  "States,  for  tiio  district  of  <Jonneetient,  tiled  an  information  or 
"  liliel.  setting;  forth  that  the  Spanish  minister  had  ollieially  pve- 
"  sented  to  the  proper  clepartment  of  the  ^fovernment  of  the 
'  I'nited  StnteH, a  clMim  for  the  restoration  of  the  vessel  ear;;o, 
■and  slavt?s,  as  the  pro|)erty  of  the  Spanish  snlijeets,  which 
"  had  arriveil  within  the  juri.sdietiotial  limits  of  the  United 
"  States,  and  were  taki-n  possession  of  hy  the  said  piihlic 
"armed     lirig     of     tlie     United   States;     under  such    eircum- 

■  stances  ns  made  it  the  duty  of  the  Unitec]  States  to  eiuise 
the  .same  to  he  restoreij  to  the  true  proprietors,  pin-HuanI  to  the 
treaty  hetween  the  Uniteii  States  ami  Sjiain  :  and   prayin^;  tin- 

■court,  on  its  heinjj  niaiie  lejrally  to  appeal'  that  theelaim  of  the 
■Spanish  Ministei'  was  W('ll  foumh'il,  to  make  such  onler  for  the 

■  disposal  of  the  vessel,  earj^oand  slaves,  as  would  hest  eliahle  the 
■'  I'nited  States  to  comply  with  their  treaty  stipulations      Hut  if 

■  it  should  appear  that  the  ne;:;r(n's  were  persons  transported  fi-om 
AlricM,    in    violation   of  the    laws   of  the    United    States,  and 

■' hrouji'ht  within  the   United    States  contrary  to   the  same  laws, 
'he  then  prayeil  the  court  to  make  such  <iri|er  for  tlieii'  removal 
■'to   the  coast  of  Africa,  iiursuant   to    the  laws    <if  the    United 
^"  ■'States,  as  it  should  deem  tit." 

( )n  page  ."iiU  ,ludj;p  Story  is  referring  to  the  fa"ts  that  I  have 
mentioned,  and  he  says  :  — 

"  Till'  cause  has  h.-eii    very  elahorately  areurd   as    well    upon 

■  the  merits,  as  upon  a  motion  on  liehalf  of  the  appejiei's  to  clis- 

■  lilisH  the  appeal.  ( >ll  tin:  JKirt  of  the  I'nited  States  it  has  hcen 
■'contended:  I.  That  due  and  sutlieient  proof  concerning  the 
■propi'ity   his  heen   nm(le   to    authorize   the   restitution   of  the 

■  \-esscl.  cargo  and   negroes  to  the    Spanish  suliji'Cts,  on   whose 

■  liehalf  they  lire  claimefl  pursuant  to  the  treaty  with  Spain,  on 
"'•'  ■■  'JTtli  of  Oe.tolier,  17!l.').     2.     That  the  United  .'^tati's  has  a  right 

■  to  intervene  in  the  maimer  in  which  tliey  have  done,  to  olitain 

■  a  dei'i-ee  for  the  I'estitutiou  of  the  property,  upon  the  appliua- 
tioiiof  the   Spanish    Minister.     Tlirsi'  projiositions  have   heen 

■  strelieouslv  iieiiied  nn  tlie  other  side,  ()lher  collaternl  and 
"  inciileiitiil    points    have    heen    slated,    upon    which    it    is     not 

■  necessary  at  thismoiicnt  to  dwell. 

■'  liehire    eiiti'iiiig    Upon    the   di.^eussi'iu   of   tie'    main    points 
■'  involved  ill  this  interesting  .nul  imiiortanl   conti'<iV('rsy,  it  may 

■  lie  iiecessarN'  to  sav  a  few  words  as  to  the  aetiinl  jiostiii'i'  of  the 
''"    ■■  case  MS  it   now    sli'iiijs    liefore  us.       Ill    the    fii'st    place,  then,    the 

■'  oiil\-  parties   now  hefore  the  coiii'l,  on  one  side,  ari'  the    United 

■  Sintes.  intervening  for  the  sole  ptirposeof  procuring  restitution 

of  the  projierty  MS   Spanish   property,  pursuant   to   the  treaty, 

■'  upc>n    the  grounds  .-,1  ited  hy   llie   other    parties    claiming  tin- 


•I! 
'  irill 


"■  *>  I  '■ 

-ii  ■  !■' 


4r>(i 


(Sir  Clinilcs   II.  'rti|i|i('i's  Aifjuiiu'iit. ) 

"  property  ill  til t'ir  ivHpi'ctive  lihi-is.  Tlit'  l^iiitt'il  StiiteH  ilo  iidt 
"  asfJi'i-t  any  pr..,.. .  l_,  in  tli.  iii-..  !vis.  or  any  violation  of  thfirowii 
"  ri;;litH,  or  Hovfi-fiiriitv  or  la\v«,  l>y  tlic  actscoiiiplaiiu'<|  of.  Tlioy 
"  lio  not  iiLsist  tliiil  tlii'^i'  fici,'rofs  Imvi' Iwcii  iiii|Hirt<>(l  into  tlif 
•'  I'nittMl  Slatt'M,  in  contra vcntion  of  our  own  Hlavc-trjuif  acts. 
"  Tlicy  do  not  m-ok  to  Iihvc  tlifwc  ncjjroc.s  (K-iivcrcil  for  tlif  |.,,i 
10  "post'  of  Ipfin;;  transportt'<l  to  Ciiltaas  jiirat»'H  or  rohlmrn,  or  a^- 
"  fu;;itiv('  crimiii.o^  r<iiiiiil  within  our  ti'rritorif.s,  who  havr  hini 
"  j;iiilly  of  otli'MCfs  aj;aiiist  tilt'  hiw8  of  Spain.  'I'lify  do  ikiI 
"  a.s.scrt  that  the  Hfi/.uri',  and  luiii^in;;  thf  vessel,  and  carjjo,  nml 
"  nej;roes  into  port,  liy  Lieutenant  (lediiey,  for  the  purpose  of 
"  ailjiidieation,  ii  a  tortious  aet.  They  simply  eontine  theniHelves 
"  to  the  ri;;ht  of  the  Spanish  elainiants  to  the  restitution  of  their 
"  property,  ujion  the  faets  a.sserted  in  their  respective  allejjatioii-." 

Aj,'ain  on  pai,'e  oU'2  he  says : — 

•'  No  (luestion   has  heen    here  made  as  to  the  proprietary  iii- 
20   "  teresti  in  the  vessel  and  faryo.  " 

On  paLje  ")!•.">   the  learned  iiid'/e  jiroceeds  : — 

"  If  a  private  .ship,  clothed  with  Spanish  papers,  should  enter 
"  the  ports  of  the  rnited  States,  claimin;^  the  privileges,  inmiu- 
"  nities,  ami  i-i^hts  helon^ini;  to  hoini  /idi'  suhjiets  of  Spain, 
"  under  our  treaties  or  laws,  and  she  should,  in  reality,  helong  to 
"the  subjects  of  another  nation,  which  was  not  entitled  to  any 
"  such  ])rivile;^es,  iiiiiniinities  or  rij^hts.  mid  the  proprietors  were 
"  seekinj;  hy  fraud,  to  cover  their  own  ille^^al  acts,  under  the  tla^' 
"  of  Spain  ;  there  can  he  no  ilouht  that  it  wouhl  he  the  duty  of 
:J0  "  our  courts  to  strip  ntl"  tlie  disjjuise  .'ind  to  look  at  the  case 
"  accordin;.^  to  its  naked  realities.  In  the  .solemn  treaties  he- 
"  tween  nations,  it  can  never  he  presumed  tliat  either  state 
'■  intends  to  provide  the  ineuni  of  perpetrating  or  protectiiiL,' 
.  "  frauds." 

So  that  I  think  hy  these  references,  that  case  cannot  he  uii;ed 
as  in  any  way  conllictinj,'  with  the  principle  for  which  I  have 
contended. 

The  C'limiiiis-ioncr  on  the  part  of  the  United  States  :-  -Whcie 
was  the  Arinistad  homid  ? 
40  Sir  Charles  Hihhert  Tupper:-(>n   th.'  :i7th  dune.  I8:i!>,  vhe 

cleared  from  the  port  of  Havana,  in  the  Island  of  Cuha.  for 
I'uerto  Principe,  in  the  same  Island.  On  the  voyage  and  liei'oie 
the  arrival  of  the  vessel  at  her  ])ort  of  destination,  the  ne^'iocs 
rose,  killed  the  cHptaiii.  and  took  possession  of  the  vesstd,  and 
on  the  iiith  of  Au^'Ust  the  mvsscI  was  discovereil  at  anchor  on 
the  loLih  seas,  a  half  a  inile  from  the  shore  of   Lon^'  Island. 

( 'oinmissioner  on   part  of  the  United   States  :   -She  was    like 
the  "  Franeonia.  "     She  hail   not  suhniitted  herself  to  the   juiis 
diction  of  the  United   States. 
,")(1  Sir  Charles    Hihhert    Tupper  : — No,  hut  she  was  within  the 

jurisilietintial  limits  ot  the  L'nited  State>. 

"  Miilhis  coiiiiiKiiiiiiii    iiif)i ))'  jioli sf  tie  iiijnriii  sim  jiviijin't. 

I  do  not  know  that  I  have  taken  the  point  formalir.  hut  I 
wish  to  refer  to  certain  lnn;;un^e  of  Koril  Stowell  in  tlu'  case  of 
The  •  Le  Louis'  to  which  I  ref(  rred  yestenlay  in  '2  Dodson,  paj;e 
242,  where  in  rtd'eriiii;  to  the  rij^ht  of  visit  and  search  : — 

"  For  if  no  rij^ht  to  visit  ami  search,  then  no  ulterior  liL'ht 
•'of  seizing'  and  hriinjiini,'  in,  and  procredinj;  to  ailjudication : 
•'  and  it  is  in  the  course  of  those  jn-oeeedin^s  alone,  that  the 
(iO  •  facts  are  produced,  that  she  is  a  Fremdi  ship  tiadin^'  in  slaves  ; 
•'and  if  these  facts  are  maile  known  to  the  seizor  hy  his  own 
''  unwarranted  acts,  he  cannot  avail  himself  of  discoveries  thus 
'unlawfully  pnjduced,  nor  take  advantage  of  the  consequences 
'•  of  his  own  wrong." 


457 

(Sir  Charles  H.  Tapper's  Argument.) 

And  then  l)u  iijuuh  on  to  discuss  the  nmttor  of  sliivu  trudu 
iiccordinj;  to  tho  laws  of  France,  arfjuinj;  tiiat  it  would  not 
niuttcr  whiit  tliu  laws  of  Franct!  wuru,  or  wliat  tho  laws  of 
France  were  not,  nor  were  tho  facts  material  that  wore  dis- 
covered, if  that  ship,  under  the  French  Haj»,  had  been  taken 
on  the  hi<;h  seas  for  any  oHence  other  than  that  of  piracy. 

;,)  I  come  now  tt.  certain  observations  1  .should  like  to  make, 
not  relating  particularly  to  the  points  with  which  I  was 
immediately  concerned.  1  refer  to  a  ijuestion  that  has  come  up 
in  the  brief,  respecting;  the  delay  and  nejjlect,  or  the  conduct  of 
the  United  States  irovernment  in  connection  with  this  claim.  I 
call  your  Honors'  attention  to  the  case  of  "  The  Jones,"  mider 
that  head,  dealt  with  in  the  l!ritish  reply,  whore  the  I'nited 
States  were  relyin<;,  and  relied  successfully  on  the  neglect  of  the 
British  government.  In  fact  this  casj  first  appears  in  the  (Tiiitcd 
States  Brief,  and.  we  have  been  very  glad  to  call   further  atten- 

20  tion  to  it.     In  this  case  the  United  States  Commissioner  said  ; — 

"  That  the  delay  and  neglect  of  the    Hi'itish  (lovernmeht  in 

•  looking  into  the  ea.se,  aftermost  earne.st    remonstrance  of  the 

■'  United  States  had  been  repeatedly    made  to    tluin,  is  without 

"excu.se,  and    has   greatly    prejudiced   the  just  rights  of    the.se 

claimants. " 

.\n    e.xaminalion    of    that    judgment    will    show    that   very 

properly  these  elements  (.'ntereij    into  the    nunds  of    the   Com 

nii.ssioners,  and  .so  an  e.xamination  into  this    I'eeord  will  indicate 

that  the  Uinted    Stat»'.i — it    is  not   nece.s.sary    for    us  to  impute 

:!(i  motives  at  all  unkind,  for  according  to  the  facts,  the  United 
States  are  responsible — i  say,  the  Uinted  States  lunl  in  pos- 
session, in  some  depai'tment.  information  regarding  tlu'Se  vessels, 
whereas  another  <lepartment,  evidently  not  knowing  of  that  in- 
t'liniiation,  professed  that  there  was  no  such  inforniiition  in  the 
hands  of  the  government  of  the  Unitecl  States.  Therefore,  to 
iimke  our  point,  I  am  glad  to  say  that  it  is  not  necessary,  even  if 
it  were  allowable,  to  press  upon  a  connnission  of  this  character 
Muy  u|)lea.sant  or  an^'  otii'nsive  language,  but  we,  representing 
those  to  whom  an  admitteil    wrong  was   done,  come  before  you, 

+0  .iiiil  siiy  it  was  not  a  mere  accident  ;  it  was  an  intended  wrong  ; 
.1  wrong  intended  to  be  doi.e  in  the  most  injiu'ious  maimer |)os- 
sible.  All  possible  profits  wivc  known  to  the  wrong-doer,— the 
great  gain  within  our  reach  they  were  fully  cognizant  of,  they 
not  only  took  the  lesponsibility  of  |)reventing  our  making 
iiioney,  they  not  only  treated  us  as  prisoners,  but  they  took  and 
i|estroye<l  our  pr<tperty  to  prevent  our  gain. 

The  Commi.ssioner  on   part  of    Her  Majesty :— I   think  yow 

iiiean  a  deliberate  act,  rather  than  an  intended  wnaig.doycm  not :" 

Sir  Charles  H.  Tupper : — An  intended  wrong,  as  it  turned 

.')0  out.  I  am  not  asserting  that  the  United  .States  did  not  rely  on 
their  rights,  did  not  rely  on  their  view  of  the  law;  but  that 
might  be  (|Uestioned  still  without  imputing  a  wanton  or 
unworthy  object.  The  United  States  in  one  senst;,  let  me  say  it 
lint  otl'ensively,  right  or  wrong,  wished  to  pro.serve  these  seal 
tisheries  on  any  ground  as  long  a.s  they  could  preserve  them;  they 
gave  instructions  to  take  the  vessels,  they  proceeded  by  their 
otHcers  against  them  on  one  groinid,  and  when  discussion  on  that 
ground  took  place,  that  ground,  wo  submit,  was  practically 
iiliaiidoned,  and  then  resiirrecte<l  again.     I  am  not  going  over  all 

liO  that ;  I  am  merely  referring  to  it  as  illustrative  of  theconttntion 
I  am  making  now.  I  say  there  was  ;in  intontion,  at  any  cost,  i>v 
lit  any  price,  to  keep  us  out.  Their  motives  were  to  preserve 
these  Hsheries  for  the  benetitof  mankind.as  they  claim,  although 

More  than  onci',  that  their  object 


I 

n 


I'l;    I 


rl! 


r>  iv 


'li  '||; 


there  has  been  a  suggestion. 


$ 


m 


458 

(Sir  CharlfH  H.  Tupper's  Argument.) 

wiiH  to  iiiiiko  all  tlu>  money  tliat  wiih  to  be  made  out  of  tliat 
valuable  iiuhiHtry.  Hut  leaving  that  aRide,  aixl  coining  riown  to 
tlie  question  of  (laniages.  I  submit  that  we  are  not  only  entitleil 
to  press  upon  your  Honors  attention  the  facts  concerning  the 
case  in  connection  with  your  determination  of  the  amount  of 
(lamiiges,  and  on  wliat  basis  it  should  be  allowed,  but  it  is  our 

10  duty  to  bring  before  you  the  fact,  that  we  not  only  suffered  from 
acts  afterwards  admitted  to  be  wrong,  and  in  violatiim  of  the 
law  and  practice  among  nations,  but  that  this  great,  powerful, 
and  rich  (iovennnent,  did  not  deal  promptly  with  the  facts  as 
they  were  presented,  and  with  that  attention  and  promptness 
that  was  to  bo  expected  at  their  hands  under  the  circumstances. 
In  "  The  Jones  "  case  the  Commissioners  dwelt  upon  the  great 
delay  that  occurred  at  the  hamls  of  tlie  British  (iovernment  in 
dealing  with  that  ship,  the  months  that  passed  by  without  the 
facts  being  liealt  with  or  without  the  lii'itish  (Jovernment  pajinj; 

20  to  the  remonstrances  of  the  United  State.*  (iovernment a  prompt 
and  speedy  attention. 

Knowing  as  I  do  Mr.  Hayard,  and  appreciating  and  recogniz- 
ing how  he  is  regardeil  by  the  very  best  elements  in  the  United 
.Stales  and  Great  Hritairi,  it  would  ill  become  me  to  say  that  Mr. 
iJayard  sat  down  and  penneil  what  he  knew  to  be  an  untruth  in 
tliis  diplomatic  correspondence ;  but  we  have  indisputal>le 
evidence  that  Mr.  Bayard  was  not  advised  as  ho  should  have 
bt'eii  as  .Secretary  of  State.  Tiie  evidence  was  not  before  the 
Paris  trilmnal,  as  it  is  Itefore  yon,  when  Sir  Charles  Russell  maile 

30  the  admission  referred  to  in  the  United  States  l)rief,  that  tliev 
were  not  guilty  of  more  than  ordinary  delay  in  these  matters  in 
assuring  Kngland  upon  what  ground  they  were  intending  to  stand 
but  that  they  had  pursued  the  ordinary  routine  among  nations. 
Sir  Charles  Hussoil  had  not  the  evitlence  to  which  I  propose  to 
call  attention,  and  I  .say,  when  you  read  Mr.  Bayard's  answer  tn 
the  British  amliassaiior,  when  you  rea<l  the  correspondence  that 
appeared  up  to  the  lime  of  this  Commission,  and  then  compare 
the  documents  that  came  out  in  the  evidence  at  Victoria,  you 
cannot  reconcile  them  on  any  other  basis  than  that  the  officers 

40  of  the  United  States  Government  did  not  <leal  as  promptly  and 
properly  with  these  matters  as  they  should  have  done,  and  for 
all  that  neglect,  just  as  for  the  treatment  that  was  shown  by  the 
United  States  officers  in  command  of  the  cruisers  to  the  crew,  we 
elmri;e  that  the  United  States  is  responsible.  We  say  tlie  cir- 
cumstances concerning  the  seizures  are  matters  for  which  the 
United  States  Government,  as  a  whole,  is  responsible.  We  have 
nothing  to  <lo  with  any  trouble  between  the  department  of  the 
Secretary  of  State,  and  the  Treasury  Department.  With  the 
(piestion  whether  the  Treasury  Department  did  or  did  not  supply 

50  Mr.  liayard  as  promptlv  as  it  should  have  done  with  these  docu- 
ments, we  have  no  concern. 

The  result  of  it  was,  that  whereas  the  United  States  Govern- 
ment knew  every  fact  that  was  material,  and  the  Government  of 
England  kept  asking  over  a  period  of  years  to  know  on  what 
formal  ground  the  United  States  was  taking  action,  Englaml 
received  no  reply. 

The  Conunissioner  on  part  of  the  United  States  : — In  your  ca.se 
you  have  itemized  the  damages,  and  now,  to  what  item  of  dam- 
ages do  you  claim  this  line  of  discussion  applies  ^ 

CO  Sir  C.  H.  Tapper: — I  say  it  applies  in  considering  any  item. 
Suppose  your  Honors  were  in  doubt  upon  the  item  of  wrong  to 
the  men,  the  claim  we  make  on  behalf  of  the  master  and  crew, 
suppose  under  ordinary  circumstances,  the  United  States  Gov- 
ernment had  answered  promptly,  and  had  given  prompt  notice 


4A9 

(Sir  CharU>R  H.  Tupper'i  Argument.) 

if  all  they  inten<i<Ml  to  do,  your  HoiinrH  iiii^ht  in  some  cnsei 
incline  to  nwartl  nominal  ifamagc!),  but  whore  there  has  been 
niiything  like  nejrifct,  anything  like  a  reckless  dinrc^rnrci  on  the 
part  (if  the  Uovernment  of  iho  United  Statvx,  your  Honor* 
iiii^hl  bo  inclined  to  give  a  larger  amount. 

The  CunimiH.-<ioner  on  tlit-  part  of  the  United  States: — To  what 

10  .itlier  items  do  you  say  that  applies  ? 

Sir  C  li.  Tupper:— I  should  say  the  chief  coniiideration  was 
ill  connection  with  these  a^^^ravatin^  circumstances,  and  of 
ciiiirsc  to  the  item  of  interest  above  all.  The  ri^ht  to  interest 
would  be  atTucted  by  the  character  of  t'le  act  ant!  the  circum- 
stunces  concornin)^  the  wron^. 

The  Commissioner  on  tlie  part  of  the  United  States: — Do  you 
cliiim  that  it  aHucts  any  of  the  damages  for  "catch.  "  or  for  the 
value  of  the  vessel,  or  anything  that  relates  strictly  to  property 
daiiia;;es  7 

20  Sir  C.  H.  Tupper : — No,  I  sliould  not  bo  prepared  to  attach 
llio  argument  to  those  did'erent  items,  so  far  us  the  value  of  the 
siiip  goes,  or  what  a  certain  article  on  board  the  ship  was  worth. 
I  would  attach  it  more  to  those  claims  which  arc  very  difficult 
to  adjust.  For  instance,  there  is  the  discretion  as  to  the  amount 
of  interest,  and  there  is  certainly  a  discretion  as  to  the  amount 
of  personal  damages  which  it  is  hard  to  fix.  Speaking  generally 
it  seems  to  us  that  it  would  incline  the  Court  to  give  the  benefit 
of  all  doubts  on  any  item  to  the  claim,  where  there  was  an 
apparent  conflict  of  evidence. 

.SO  Since  the  United  States  Argument  has  made  reference  to  the 
admission  of  Sir  Charles  Rusbell  at  Paris,  I  cannot  do  better  than 
refer  to  a  few  extracts  from  his  argument  which  will  be  found 
in  V  ime  XIII,  of  the  American  Reprint.  On  page  5  of  the 
United  States  Argument  before  you,  it  is  said  : — 

"  Naticms  do  not  take  positions  upon  facts  which  may  affect 
'  their  rights  and  obligations  without  deliberation  and  proper 
"  investigation.  The  presumption  here  should  bo  that  Secretary 
"  Hayard  acted  in  accordance  with  the  usages  of  nations  and  the 
"conditions  as  they  existed.     (It  was  conceded  that  he  so  acted 

40  "  in  this  matter  by  Sir  Charles  Russell,  now  Lord  Chief  Justice 
"of  England,  in  his  argument  before  the  Paris  Tribunal.)" 

Now  as  to  the  position  of  Sir  Charles  Russell.  I  am  reading 
from  Volume  XIII.,  pages  6!,  G2  and  G5,  where  Sir  Charles  said : 
"  Let  me  ask  the  Tribunal  to  realize  the  position  of  things. 
"  He  has  been  told  that  the  seizure  has  taken  place  in  the 
"  Hehring  Sea  when  these  vessels  were  in  pursuit  of  fur-seala. 
"  lie  has  been  told  that  they  were  seized  at  distances  from  land 
"  which  showed  that  they  were  outside  the  ordinary  territorial 
limits;  and  yet  the  Secretary  of  State  cannot  give  any  answer 
to  the  challenge  of  Lord  Iddlesleigh,  who  affirms  that  these 
facts  point  to  a  grave  breach  of  international  law,  but  must 
"  wait  till  he  gets  exact  information  from  the  place  of  trial. 

"  Senator  Morgan  : — How  can  that  be  if  the  British  govern- 
'  iiient  disclaims  all  responsibility  for  the  conduct  of  its 
'nationals? 

"  Sir  Charles  Russell : — I  am  sure  it  is  my  fault,  sir ;  bu  '.'  e 
"  appositeness  or  connection  with  my  argument  of  that  remark 
''I  fuil  ijuite  to  appreciate. 

60  "  Senator  Morgan  : — I  understand  that  the  British  govern- 
"  mont  has  disclaimed  in  the  diplomatic  correspondence,  and 
"  excluded  from  the  Treaty,  all  considerations  of  responsibility 
"  for  the  conduct  of  its  nationals  in  taking  fur-seals.  If  that  be 
"  so,  I  do  not  understand  why  it  is  that  Mr.  Bayard  was  required 


,W 


!    ! 


1'; 


i;  ■ 


,.ir ,. 

'4 


iu)|lt.,, 


1|H 


!I      it 


il      i' 


|i':t» 


'■%7] 


i1JS.i 


4«>0 


(Sir  ('liiulcs  II.  'ru|>|Mi'f<  Ari^uimnt.) 


til  imiki'  miy  ri'|>rfsi'iitiitii>ii  to  lln-  Uritisti  ;:civi'riiiiii'nt.  iilmiit 


iimtti'i'  llmt  In-  wi^lii'il  til  ^l'l||l•^s  nr 


lUrVMll 


ir  Charl.-*     Kiism.|I  :     Sir,    I    ,iill     fail,  witi 


■  III      SIIK'rl'. 


"  I'i'>-|)i'Ct,  tilM'f  till- <'i)l|lli'('tii>M   witll  till' UI';,'lllMrllt  I  Mill  |ilirslliii_; 

"  Si'hiitiir  MiiruMii:     I  ri'^nt  tliul  ymi  t'nil  In  m'i'  it. 
"Sir  Cliiirli'i   l!ii»'>i'll :      I    iiin  (•iillin;^  iilirnlimi  In  tln'    fmt 
I"   "tliiil  Lnril    |i|ili'>li'i!,'li  has  statcil  fact",  wliicli  arc    not    ciuurn- 


ilictiil,  tif  llif  Mi/iiic  lit'   lirilisli  V( 


c^sl■|■^  III!  tlic  lii'^li  sea  iitltsii 


tirritoriiil    limits;  sciinj    nut  l>v  tlic   act   uf  iiiiliviijiials,  I 


III 


■izi'ij  iiv  till'  .\ct  111"  till' Stale  iliniiiuli  its  Isxcciitivc  aii(lMirit\ 


Liir<l     llaiiii 


Wiiut     is    \ 


our  'j-ripiiiiil    o 


I'    cull 


|ilaiiit, 


'('liarlcs!'     It    was    incissni'v  tu  asciitaiii   tin-    I'ails,    miil  tl,, 

si-ciii'  111'  actinii  was  a  Imii;  way  nil'. 

■  Sir  < 'iiarlcs  Kiisscll :  —  With  ;,'iiat    ilcl'i'rciicc,  my  |,(iril,  u. 

If  the  case  ii-ally    were,  tliat  tiny    c  ailil     jllstiTy  themselves   u 
'  liaviiii;  a  le^jislative    ]Hi\\er  ii\er  llehriii;,'  Sen,  tir,  which  is  tli 

<'a."    ii'iw  iii,ii|e,    as  |iriiti('t iii^' thiii'  priiieity   in  tlie  fiir-siiil. 


tl 


lere  was    M  |iriini|it   aiiij    iiniiii'ili.ite  niis 


We    h 

It 


liiltte  !  no  iillence  ai;aiii~t  inteinatiiina!  law  at  al 

the  many  pr'Hil's  tiat  I  tun  uiiini;  tn  aiMiice  ihat  this  v 

is  now  |iieseiitr.l  t"  this  'rrili\inal 


ive    Cniii 

is  lau'  ■  r 

ase  wiiiili 


l.'.r.l  llani 


I 


r^laiiil   that    voii  ilo  nut    make  it 


It  11 


ilit    that     thev   tl 


lime   til    ascertain   il 


facts:   hut  yuii  -ay   that  they  iji.l  nut    t.ihr  ii]i  the  ;;ruuni|  ihai 


th 


■y  are  nuw  taking;  U|i. 


.'to  ••  tl 


Sir  <  'haii 


IS     liUssi 


11:  -Cert; 


tliat 


is  my  |iiiiiit—  (inc  nl' 


c  manv  |H):nts    winch  will  U" 


-huw  lliat  as  tiiis    case  ili 


(11 


Velu|ieii  ilS'lf  in  thi'  ili|i!uuiai  currcsponilelice  uilil  ;is  it 
lias  still   faitllrr     ilrVeli,|ie(l    itsell    in  tllc    Ciilllse  (if    the    ]iriilti'  i 

ar'^iimeiit.  it  has  taken  a  form  that  was  nut  |iresi>nt  to  the  min  1 
of  tlie  ICseciitise  at  the  time  of  these  occurrences,  us  it  ull-lil 
to  have  liieii  |iri'.ent,  if  the  i-ase  Were  as  real  as  it  is  now  iiinik' 
out." 

An.!    fiirtlii  1'  .iu^vn    on  paije  (ilJ,    he  says,    referring  tu  iho 


|iliimatic  cuiresjiuiiileiici 


40 


Tliel 


I    he  savs    he  is    wa 


litiiii,'  the  ])a|)i  I       i.'X|ilaiiis    that  ih 
th 


islance    (li    the  vessels  Iruin   aiiv    laiiil    or  tlie    cn'eum-taiii 


atleiiilant,  n|iiiii  their  sci/.iirc   were  iinkiiuwn  to  him,  anil  tlun 
treats  it,  aii'l  i|aite  accurately  treats  it  ns  a  matter  which  is  .if 

'  so  ;i'rave  im]iurtance  that  it  is  rieht  tlie^-  shuuhl  he  in  |ius--isvii  n 

'  (if  accurate  inl'urmatiuii. ' 


r\ 


lell  on  na'i 


li.'i.  LuT'l  I  laniien  as 


|)ues  it    a|i|.e;ir  when   tl 


AhisU.-in  Ciiurt  was  recii\ril  at   Wa^hiiiLiti 
I'eFure  the  'rriliiiiial  jit  Paris  was  uii 


•  I  uf    (he  |iruceei|iii.;s    in    tin 


0   anil  iiil'urmatiuii :   hefure  the 'I' 


y  a  ]iart  uf  the  eviileii 
1  iliiinal  at  N'icturia  "'as  infurmati 


tlieic  fur  the  lust  time  hrui^'ht  iiiit.  It  is  n.cessuvv  to  refer 
(ii~t  tu  the  iu-tiiictiiins  of  the  Treasury  I 'i'|iartmen;  uf  the 
.S|)rin4  uf    jssd.  which  will  ho  fuuu'l  un  pa^'i    fuiir  of  the  liritisli 

ArL;llliiellt    li.  I'lJle  yull,  miller  which  these  s..|/iii-,.s  tiiuk  |il,l(e.      Il 

is,  uf  eiiui  se,  |iresumalile,  tliat  when  the  instiui'tions  wei'e  ilrafli'i 


the  I'liit'il  states  (luvernment  hail  e\ei 


cl-eil  line  care,    all! 


tluit 


tl 


ie-.c  men  Were  actiiii/  '.vilhin  the  ilireet  line  uf  niithuiit v.    'ihat 


IS.    Ill 


Imittin''  "f  cuiii'se,  thnt  the  arrests  t 


link  place  un  accuiint 


the  iii-triictioiis  tu  that  ell'ct  uivcii  liy  the  I'liitcil  States  I'lxecii- 

<iO   live,  ami    this  is  est.-ihlisheil    liy  till!  tiniliii;,,'s  uf  fact   at   I'ari-. 

As    I  siiy,  on    pa;^c  foiu'  uf  tin;   ISritish    Arijiniieiit,  there    i-  a 

letter  flum   the  s,.izillL,'  ullicer,  ilatei]  Septellllier  Ih'il,   ISSt),  to  the 

Secretary  uf  the  Tieasuiy  at  Washiiij^tun.      Nunc  uf  these  lettias, 
frum  .\lr.  Bayuril's  statement,  came  tu  Mi',  ^la^■ar(i,  nor  is  it  siii,'- 


10 


:t( 


4(1 1 

(.Sir  C'hark'H  U.  Tupper'n  Ar){uuient.) 

k,'u»t«(l  tlittt  liiH  |)>tU.M-H  mvrv  aot  written  in  the  very  tient  of  kimmI 
laitiL     'llie  letter  in  im  folloWH : — 

"  Upon  arriviiiK  here  I  repurtuil  luy  wixureH  to  the  UniUtd 
'  StateM  District  Attorney,  who  Iwd  been  ailviHwl  in  iuiv«nce  hy 
'  the  arrival  of  the  schooner  '  San  Die)^>.'  on  AugUHt  23rd,  and 
'  litid  infonnationH  s^^MinHt  the  iiuuttern  u.^  nmteH  of  the  Neize<i 

veNHeJH  for  violfttion  of  Ntsction  11)50,  Kevined  StatiiteH,  v,!.wr;<- 
'  upon  they  went  removed  from  the   '  (/orwin  '    luid    Inken    in 

custody  liy  tlif  rtiited  StatfH  MiirNhiil.  All  wcru  urmi^ned  at 
■'  n  Npecitd  Hetwion  of  the  Unitud  StateH  DiHtrict  Court  of  AluHka, 

.lud^u  l^fayetttt  Diiwhou,  and  the  iiiUMterH  and  niateH  of  the 
"  Kritinli  Hchooner  '  Thornton  '  and  American  Mciiooner  '  San 
"  Dif)^>'  were  convicted,  the  f»jriner  by  a  jury,  the  latter  by  th<> 

Court,  and  Hentence<l  to  tine  and  iniprimHniieiil.  The  other  two 
" criminal  trialu— of  the  'Onward  '  and  'Caroleiia  '  partien — will 

come  on  aH  soon  uh  a  new  Jury  can  U'  obtaineil.     The  Adiiiir- 

20     ally  CBMCM  I  have  not  fully  decided  how  to  proceed  with.     There 

'  may  be  a  doubt  iih  Uj  the  juriHdiction  of  the  Alaska  Court  in 

their  regard,  and  I  will  endeavor  to  Hettio  it  before  proceeding 
•'  at  ail." 

On  the  22nd  Septenil)er,  l8H(i,  the  same  wi/.in^  otKcer  wrote 
to  the  Secretary  of  the  Treasury  at  VViwhin^ton  from  iVstoria, 
( (ri'jjon,  as  follows  : — 

"  1  would  respectfully  report  the  arrival  here  on  the  22nd 
"  iii.st.  of  the  revenue  steamer  '  Corwin  '   under   my  command 

from  Sitka,  September  lOth,  via  \anaimo,  British  Columbia, 

•  HcptemlHjr  17th,  Port  Townstmd,  W.  T.,  the  l«th,  and   Seattle, 

•  W.  T,  the  20th. 
"  Refernn^  to  my   letter  of  the  3rd   instant,  from  Sitka,  I 

"  would  state,  in  continuation,  that  I  remained  at  Sitka  in  con- 
tinuous attendance  at  court  up  to  the  date  of  my  departure. 
'  The  masters  and  mates  of  the  seized  sealers  were  all  criminally 
"  convicted  and  .sentenced  to  various  terms  of  iniprisonment  and 
"  tines." 

On  the  12th  November,  IMHO,  the  United  States  Secretary 
111  State  wrote  to  the  British  AmbasBador — as  follows  : — 

"  The  delay  in  my  reply  to  your  letters  of  September  27,  and 
"  October  2 1 ,  askinjj  for  the  information  in  my  pos.se.ssiou  con- 
"  cerniiij;  the  seizures  by  the  United  States  revenue-cutter 
'  Corwin  ',  in  the  Behriny  Sea,  of  British  vessels,  for  an  alleged 
"  violation  of  the  laws  of  the  United  States  in  n^lation  to  the 
"  Alaskan  seal  tisheries,  has  been  caused  by  my  waitinj;  to 
receive  from  the  Treasury  Department  the  information  you 
"desired.  I  tender  the  fact  in  apology  for  the  delay  as  the 
"reastmfor  my  silence,  and  repeating  what  I  said  verbally  to 
"  you  in  our  conversation  this  morning,  I  am  still  waiting  full 
"  and  authentic  reports  of  the  judicial  trial  and  judgment  in  the 
'  cases  of  the  seizures  referred  to. 

•'  My  application  to  my  colleague,  the  Attoniey-CJeneral,  to 
"  procure  an  autheutic  report  of  the.se  proceedings  was  promptly 
'  made,  and  the  delay  in  fur.dshing  the  report  doubtless  has 
"  arisen  from  the  remoteness  oV  the  place  of  trial. 

"  So  .soon  a.s  I  am  enabled  1  will  convey  to  you  the  facts  as 
"  ascertained  in  the  trial  and  the  rulings  of  law  as  applied  by 
"  the  court. 

"  I  take  leave  also  to  acknowledge  your  counnunication  of 
'  the  21st  of  October,  informing  mo  tliat  you  had  been  instructed 
"  by  the  Earl  of  Iddesleigh,  Her  Majesty's  Principal  Secretary  of 
"  State  for  Foreign  Atlairs,  to  protest  against  the  seizure  of  the 
"  vessels  above  referred  to,  and  to  reserve  all  rights  of  com  pen - 
■  sation.     All  of  which  shall  receive  respectful  consideration." 


40 


.■)(l 


liil 


I  ' 


|i 


h 


■  I  '11 


'I    1 


:i     ii 


i 
ll 


=^i' 


IP 


402 

(Sir  Cluirlos  H.  Tupper's  Arjjument.) 

Then  at  p<i}:ft>  (i  of  tlio  British  Arjjiimoiit  we  find  thai  on  the 
!)tli  Jiinuiiry  tlie  Hritisli  Anihassiwlor  wrote  to  tlie  United  States 
Secretary  oi'  State  rel'errinij  to  his  prior  letters,  and  addin^j; — 

"  Umler  thise  eirciiniHtances,  Her  Majesty's  (Jovernnient  dn 
"  not  hesitate  lo  express  their  eoneern  at  not  havin^j  received  any 
"  reply  to  tlteir  rei)resontations,  nor  do  tiiey  wish  to  ct)nceid  the 
10  "  Jii'-'ive  iijiture  whicli  the  case  has  tlins  assumed  tun]  to  wliieh  ] 
''am  now  instrueted  to  call  j'our  immediate  and  most  serious 
"  attention." 

On  the  12tii  January,  1.S.S7,  the  United  States  Secretary-  of 
State  wrote  to  the  British  Andiassador  : — 

"  l''rom  week  to  week  T  have  been  waiting;;  the  arrival  of  the 
"papers,  autl  to-daj*.  at  my  reijuest,  the  Attorney-tieneral  has 
"  tele^^raplied  to  Portland,  ()re<;ou,  the  nearest  telegrajjli  stiitioii 
"  to  Sitka  in  Alaska,  in  order  to  expe<liate  the  furnishinj^  of  the 
"  desired  papers.  •  *  »  »  » 

"20  "  The  distance  t)f  the  vessels  from  any   land  or   the   cireum- 

"  stances  attendant  upon  their  seizure  are  unknown  to  me  save 
"  hy  the  statements  in  your  last  note,  and  it  ises-ii-ntial  that  sueii 
"  facts  should  he  devoid  of  all  uueertainty." 

On  the  1st  Keliruary,  1KS7,  the  British  Amhassador  wrote  lo 
the  United  States  Secretary  of  State,  in(|uirini^  whetlu'r  the 
information  asked  for  had  lieeu  received. 

Outiie.Srd  Keliruary,  1.SS7,  the  I'nited  States  Secretary  . if 
State  rejilied  : 

"  1   am  informed  that  the  documents  in    i|uestion   had    left 

;]{)  "  Sitka  on  the  2()th  January,  and  may  be  expected  to  arrive  at 

"  I'ort    'i'owns-.'ud,    in     \Vashinu;ton    Territory,   about    the    7tli 

"  instant,  so  that  the  papers  in  the  usual  course  of   mail   sluaild 

"  be  received  by  me  within  a  fortnifjht. ' 

On  the  4tli  April.  1.S.S7,  the  British  Ambassador  ;i,'ain 
empiii'ed  from  the  I'liited  States  Secretary  of  State  us  t  ) 
whethei'  the  documents  had  been  received. 

On  the  l-2th  April.  I.SS7,  the  United  States  Secretary  of 
State  wrote  to  the  British  And)assador  that  "  *  *  *  the 
"  records  of  tlie  judicial  proeeedinj^s  in  the  cases  in  the  District 
.}.()  "  t'oui't  in  Alaska  referred  to  were  only  received  at  this  Dep.irl- 
"  ment  on  the  Siiturday  last  and  an'  now  under  examination. 
•  •  *  "       And  in  this  letter  the  Uniteil  States  Secretary 

of  State  proceeds  to  refer  fur  the  first  time  to  sections  l!),")!!  to 
1071  of  the  Revised  Statutes  of  the  United  States. 

The  documents  left  Sitka,  according;  to  the  record  .set  out  in 
oni'  Aromnent  from  the  correspondence,  on  .laim.'iry  2()th,  I.S.S7. 
'J'lie  British  .\nd)assad(ir  wi'ote  one  of  his  numerous  letters  fur 
inloiiiiation  on  April  Mb,  1S,H7,  and  on  April  12th,  1.S.S7,  thf 
United  States  Secretary  of  State  wrotf  as  I  have  just  read. 
")0  i''irst.  then,  there  was  the  information,  not  perhaps  in  Secre- 

tary Bayard's  personal  possession,  but  there  was  full  and 
complete  information  outside  of  the  Court  record  to  which  I 
havi-  .ilreaily  adverted  in  |)osse.ssioi)  of  some  otlicer  of  the  United 
Stales  i,rovernment.  Secretary  of  Slate  Bayard  had  not  received 
that,  but  it  is  clear  that  he  had  i-eceived  on  tlu'  12th  April,  18X7. 
thi^  (^)urt  recird,  and  on  tlie  Kth  of  .Inly,  1.SM7,  it  was  necessary 
i'oi'  the  British  Ambassador  to  write  a;;ain  askinj;  to  obtain  that 
recoi'd.  A  copy  of  it  was  not  obt.iined  fi-oin  the  Secretary  of 
State  of  till'  I'nited  States  luitil  the  llth  of  duly,  KH.S7.  'riieii, 
(iO  at  pa<,'e  7  of  our  written  ar;;unient,  tlic^re  is  another  feature  in 
connection  with  the  facts,  to  which  my  learned  friend  Mr. 
Beicpie  particularly-  referred,  namely,  that  there  was  a  po>»itive 
promisi'  on  thi'  part  of  the  ruited  States  Secivtar}'  of  State 
which  was  never   fulfilled,  which   was   no   doubt   overlooked — I 


■A. 


]M^^- 


I'  I 


10 


•20 


;;() 


\\) 


.)ii 


(id 


46» 

(Sir  Clmrles  H.  Tupper's  Arftumont.) 

<\o  not  in  fact  suj;<;est  that  tliis  promise  was  tnade  in  oriler  to  bo 
broken,  but  it  is  a  very  important  tliin^j  in  connection  witb 
notice.     'I'bis  is  the  reference  : 

"On  April  12tli.  1.SS7,  tlie  United  States  Secretary  of  Statu 
wrote  to  the  MriMsii  Ambassiulor  :— 

"The  (|iiestion  of  instructions  to  (lovernment  vessels  in 
"  re<;ar(l  to  preventinj;  the  iiuliscriminate  killiiij;  of  fur  seals  is 
'  now  beiiifj  considered,  ant!  1  will  inform  you  at  the  earliest  (hiy 
•'  possible  what  has  been  decided,  so  that  l^i'itish  and  other 
•'  vessels  visitini^  the  waters  in  (piestion  can  jjovern  theuiselves 
•'  accordinirly." 

Well,  the  notice  was  the  seizure  of  vessels  in  bSH?  and  no 
(itlier  iMtice  was  jj^iveii.  In  connection  with  this  treatment  and 
tJH'se  facts,  at  one  stajje  of  the  en(|tiiry  the  le;irnei|  Connnissioner 
for  the  United  States  t|Uerieil  us  to  the  importance  of  notice  and 
1  will  refer  in  that  eoiuieet ion  to  Voknne  I")  American  reprint 
containinj^  the  ary;uinent  of  Mr.  I'helps  at  I'.iris,  where  he  makes 
an  olvservation  which  I  think  is  in  |)oint  uniler  that  head  and  to 
.some  extent  would  answer  the  (picstion  put  by  the  learned 
(\immissioner.  IJussia  had  taken  some  similar  action  as  to  ihat 
taken  by  tlie  United  States,  and  had  seized  our  vessels,  and  in 
iliseussiiiir  tliat  as  well  .as  the  seizure  under  consideration,  Mr. 
I'liel|)s  at  paee  ]-2'i  of  iiis  oral  arj;;uinent  s;iid  : 

"  Now,  one  of  the  incidents  that  must  always  attend,  and  the 

■  least  rellection  will  show  that  it  is  an  indespensable  re(|iiisite, 
"  is  that  befoiv  measures  of  force  are  resorted  to  in  defence  of  a 
"  nation,  reasonable  and   |»r')|)er  notice,  or  information  shall  be 

•  ji>ven  to  the  world  of  the  olijectioti  that  exists  to  what  is  bein<r 

■  done,  and  of  the  rejjulation  or  the  defence   that  it  is  proposed 

■  to  exert.      Wh}',  it  was  a  part  of  my  learru'd  friend's  arjfinnent, 
in  deaiini;  with  these  seizures  in  the  Piehrin;;  Seas,    '  You  have 

"seized  thesti  vessels  witliont  trivinsjr  notice  to  (ireat  Hritain  that 
"you  were  fjoinij;  to  do  so.'  Well,  if  that  had  l>een  true,  I  mean 
"by  that  if  the  facts  that  had  taken  place  did  not  amount  to 
"sutlicient  knowledije,  there  would  be  f,'reat  force  in   my  learned 

■  friend's  sn;j;i;estion.  This  was  the  very  point  that,  as  I  have 
"  remarked  this  morninrr,  was  t!ie  informality  of  the  seizures  that 
'  wii!'  maile  by   Ilnssiii  of   the  Canadian  vessels  for  sealiuj^.      A 

•  vessel  came  there  with  no  notice  whatevi-r  that  seidin^  in  the 
"  hiifh  sea  was  j^oinj;;  to  be  prohibited,  and  it  had  not  been  pro- 
"  hibited  elsewhere:  and  the  tirst  warninj;  that  the  vessel  had 
"was  this  .seizure.     Russia  may  well  say  that    it  was  necessary 

•  to  do  it.  '  We  caimot  prestn-ve  this  industry  in  any  other  way  ' 
' '  Vt's,  but  is  it  necessary  that  you  .should  resort  to  the  extreme 

■  uieasnie  of  ciif)ture  of  a  vessL-l  before  you  had  j,dven  notice  not 
'  to  do  here  ns  they  eoidd   do  elsewhere,  and   had  j;iven   them   a 

•  fair  opportunity  to  withdraw,'  as  it  is  pre-umed  that  they 
"would  withdraw  when  they  fouiid  that  the  nation  atl'ected 
"  obji'i'ted  to  it  ;  then  when  they  deebniid  to  witlulraw  and  per- 
"  severed  in  face  of  the  oiijection  and  the  notice, it  would  be  time 
"  to  <jo  a  step  further  and  enforci^  yonr  K-.';;ulations  by  actual 
".seizure." 

The  Connnissioner  on  the  part  of  the  United  States  :  — That 
is  not  (]iiite  the  point  I  called  attention  to.  Tnis  matter  of 
nations  proceedin<,'  without  notice  to  nriki'  seizuics  of  this 
character  is  not  a  new  point  to  me.  What  I  asked  fcr  was 
lei^al  authorities  to  show  that  tin-  matter  of  proceediii}* 
without  notice  was  relevant  to  the  (piestioiis  here.  1  can 
well  see  that  proceediuj,'   without    notice    may    be    a  !,'roinid  of 


I  i 

M  : 


■(■  . 


'if:  [ 


l^ll 


fl 


i 


464 

(Sir  Charles  H.  Tupper's  Argument.) 

national   oomplarnt,  but  I  ask  for  authoritiea  relevant  to   the 
proceeding;!!  {^r  damages  in  this  respect. 

Sir  Charles  Hibbert  Tupper  : — I  submit  that  what  was  in 

Mr.  Phelps  mind  was  that  ia  a  case  where  therii  is  a  trespass : — 

The  Commissioner  on  the  part  of  the   United  States : — You 

cannot  find  any  authority  there  except  as  to  a  trespass  which  was 

10  malicious. 

Sir  Charles  Hibbert  Tupper: — In  the  computation  of  damages 
it  seems  to  me  that  there  is  a  difference  where  there  is  a  trespass 
to  the  injury  of  a  man  without  notice  ur  suggestion  that  he  was 
going  to  do  the  act  in  the  case  of  property  to  which  he  laid 
claim  ;  and  a  case  where  ample  notice  was  given  that  he  claimed 
to  have  the  right  to  enter  upon  property,  and  in  order  to  enforce 
these  rights  he  would  proceed  at  a  certain  time  to  take  a  certain 
course,  it  being  decided  in  the  end  that  he  had  no  justification  ; 
I  think  that  would  be  a  fair  matter  of  comment  in  connection 

20  with  the  computation  of  damages  as  to  the  absence  of  notice  in 
one  case  or  the  giving  of  notice  in  the  other. 

The  Commissioner  on  the  part  of  the  United  States  : — Mr. 
Beique  did  reply  quite  fully  to  my  suggestion  as  a  matter  of 
argument,  and  so  have  you. 

Sir  Charles  Hibbert  Tupper : — Wtiat  your  honor  desires  is 
some  authority. 

The  Commissioner  on  the  part  of  the  United  States  : — I  simply 
ask  whether  there  is  any  authority  at  hand.  The  matter  has 
been  discussed  by  both  of  you  gentlemen  from  the  point  of  argu- 

30  ment,  but  not  from  the  point  of  authority — and  thiscitation]froin 
Mr.  Phelps  is  hardly  an  authority. 

Sir  Charles  Hibbert  Tupper: — It  is  only  argumentative  I 
adniit,  but  what  I  meant  by  that  was  that  Mr.  Phelps  in  thai 
stage  of  the  history  of  this  case  seemed  t"  recognize  the  force  nf 
the  point  we  are  pressing  ;  that  it  was  done  without  notice  and 
it  is  only  fair  to  Mr.  Phelps  and  uiyself  to  point  out  that  he  went 
on  to  say  that  the  American  statute  was  notice,  and  that  the 
difference  between  the  United  States  and  Russia  was  that  Russia 
did  that  by    an  executive   act  which    of  course  was  no  notice 

40  whatever,  but  that  the  United  States  by  her  statute  section  195() 
gave  notice  to  the  world.  At  the  time  Mr.  Phelps  was  making 
his  argument  there  was  no  doubt  something  in  that  point,  but 
after  the  decision  of  the  Tribunal  at  Paris  there  was  of  course 
nothing  in  it  because  the  statute  could  not  exist  as  applied  to 
this  case  and  could  not  be  any  notice  whatever.  I  do  not  wi.sh 
to  trouble  tlie  ComniL^sioners  by  dealing  at  length  upon  that 
point,  but  I  will  refer  to  page  201  of  the  argument  on  behalf  of 
Her  Britannic  Majesty,  where  there  is  a  promi.se  of  a  notice  in 
this  connection   and  not  the  promise  in   Mr.  Bayard's  letter  to 

.50  which  I  have  ret  Mieii.  That  point  at  page  201  of  our  argument 
is  put  in  as  part  of  the  findings  and  is  as  follows  : — 

"  Treasury  Department,  Office  of  the  Secretary, 

"  Washington,  April  21,  188(1. 
"  Sir, — Referring  to  department  letter  of  this  date,  directing 
"  you  to  proceed  with  the  revenue  steamer  '  Bear',  under  your 
"  cunimand.  to  the  seal  islands,  kc,  you  are  hereby  c'othed  witl' 
"full  power  to  enforce  the  law  contained  in  the  provisions  ot 
".section  19.50  of  the  United  States  revised  statutes,  and  directed 
(iO  "  to  seize  all  vessels  and  arrest  and  deliver  to  the  proper  authori- 
"  ties  any  or  all  persons  whom  you  may  detect  violating  the  law 
"  leferred  to,  after  due  notice  shall  have  been  given." 

It  was  apparently  present  to  the  mind  of  the  executive  that 
this  action  of  IHSO  should  be  preceled  by  a  notice,  then  in  1887, 


465 

(Sir  Charles  Tapper's   Argument.) 

and  tliat  is  the  point  of  my  other  reference,  the  British  ainhassa- 
dor  pressed  to  know  on  what  ground  the  United  States  are 
proceeding,  what  are  tlieir  regulations,  what  are  the  offences  for 
which  these  vessels  are  taken,  and  passing  hy  all  the  delay  that 
occurred  in  thai  connection,  there  was  a  promise  given  on  the 
part  of  the  United   States  government ;  that  these  regulations 

10  were  under  consideration,  and  that  there  would  he  a  compliance 
with  the  request  at  an  early  day.  It  will  not  be  pretended  by 
any  one  that  it  was  not  the  opinion  of  Her  Majesty's  government 
from  that  conimunication  that  notice  would  be  given  before  the 
seizuies  were  repeated  in  18S7. 

The  Commissioner  on  the  part  of  Her  Majesty  : — Passing  by 
any  question  of  law  that  might  be  involved,  do  you  not  at  another 
point  of  your  case  set  up  that  the  sealers  were  endeavouring  to 
avoid  the  cruisers  ? 

Sir  Chas.  Hibbert  Tupper  : — Of  course  in  1887  they  knew  of 

20  the  seizures  in  1886,  and  there  is  no  doubt  that  in  1887  the  risk 
they  were  running  was  present  to  their  minds.  Your  Honor 
remembers,  however,  that  tb  •  British  government  understood 
there  was  an  assurance  that  there  wouM  be  no  seizures,  but  the 
United  States  contend  that  nothing  was  intended  more  than 
the  release  of  the  vessels  seized  in  1S8C.  When  the  vessels  went 
into  the  Behring  Sea  in  1887,  the  release  of  the  vessels  in  1880 
had  been  ordered.  During  the  argument  there  has  been  a  refer- 
ence to  the  case  of  the  "  Argentino,"  the  "  Risoiuto,"  and  the 
"  Gleaner."     That  subject  has  been  very  fully  dealt  with  since 

30  then.  I  think  there  was  a  reference  casually,  though  perhaps  not 
on  these  notes,  to  the  decision  of  Lord  Hannan  in  the  case  of  the 
"  City  of  Rome." 

The  Commissioner  on  the  part  of  the  United  States  ; — Have 
you  the  full  report  of  the  "  City  of  Rome  ?" 

Sir  Charles  Hibbert  Tupper: — I  was  about  to  explain  what 
we  have  in  connection  with  that  case.  We  have  obtained  from 
Mr.  Marsden  the  notes,  and  in  the  notes  the  jmlgment  of  Lord 
Hannan  seems  to  be  very  fully  and  literally  given,  although  the 
case  has  not  been  reported.     I  take  it,  although  i  am  not  speak- 

40  ing  with  any  authority,  that  the  reason  that  the  decision  is 
not  reported  is  that  it  would  have  no  very  great  weight  or 
interest,  notwithstanding  that  it  came  from  so  distinguished  a 
judge  as  Lord  Hannan,  because  it  was  anterior  to  the  case  of 
the  "Argentino."  The  "Argentino"  ca.se  was  decided  by  the 
House  of  Lords,  and  Lord  Hannan  could  not  have  decided  as  he 
did  in  the  case  of  the  "  City  of  Rome  "  with  the  "Argentino" 
case  before  him."  The  "  City  oi  Rome  "  case  is  not  reported,  but 
I  shall  lay  the  notes  before  your  Honors.  I  shall  crave  the 
indulgence  of  your  Honors  to  take  recess  now,  as  I  have  to  refer 

50  to  these  three  cases  this  afternoon. 

At  12.50  P.  M.  the  Commissioners  took  recess  until  2.20. 


'  <     1 

■'l 

.■i 

If 


i;  .,i.iiH 


I-' 


3 


!.fc 


At  2.20  P.  M.  the  Commissioner.s  resumed  their  seats. 
Sir  Charles  Hibbert  Tupper,  continuing  :— 

The  case  of  the  '  Citj-  of  Rome  '  is  referred  to  in  '  Marsdons 
Collisions  at  Sea,'  and  the  foot  note  simply  says,  '  City  of  Rome, 
(lO   Admirality  Division,  11th   May,  1897.' 

The  Commissioner  on  the  part  of  the  United  States : — Is 
that  case  referred  to  in  your  printed  argument  ? 

Sir  Charles  Hibbert  Tupper: — No.  It  has  never  been 
reported  in  the  regular  law  reports;  the  cases  we  have  referred 


ll 


4GG 

(Sir  Charles  H.  Tapper's   Ar<j[iiment.) 

to  were  the  latest,  anil  from  the  Eiifjlish  point  of  view  tlie 
autlioritive  judgments  of  the  court  m  tlie  rejjuhvr  order.  1  wi!l 
read  to  your  Honors  a  re<;istrar's  report  of  this  case,  which  was 
obtained  by  Mr.  Marsden,  to  whom  counsel  for  Ifer  Majesty 
wrote  askinij  hii<i  to  give  such  a  riport  of  this  cast?  as  he  was 
able  to,  he  having  referred  to  it  in  his  Ijook.  I  sliall  now  read 
10   in  full  all  that  we  have  received  in  reply: 

"  Rkoistkau's  Repout,  Thk  '  Ci  rv  of  Rome.' 

"(Before    the    Right    Hon.    Sir   James  Hannen,   the  President, 
'  Shipping  Gazette,'  May  12,  18>S7.) 

"This  was  an  appeal,  on  an  ohjection  to  the  Registrar's 
'•  Report,  on  behalf  of  the  owners  and  others  of  the  Hshiiig 
"  vessel  '  (Jeorgi^s  i-t  Jeanne.'  The  ol)jectii)n  on  the  part  of  the 
"  Appelliints  was  that  the  Registrar  had  not  allowed  that  part  of 

20  '■  the  claim  which  had  reference  to  the  value  of  the  tish  which  it 
"  was  estimated  wouhl  have  been  caught  between  the  time  the 
"  '  Georges  at  Jeanne'  was  sunk  and  the  teiniination  of  the  tish- 
"  ing  season  ;  the  Registrar  holding  that  such  loss  was  too 
"  reujote  and  speculative  for  him  to  take  into  consideration. 
"  The  .sum  claimed,  which  had  been  struck  oil"  amountecl  to 
".l"1707  His.  !)il.,  and  the  appellants  were  orilered  to  bear  their 
"  own  costs  of  the  reference.  The  respondents  submitted  that 
"  the  ai)pellants  were  not  entitled  to  recover  for  a  possible 
"  future  catch  of  tish,  and  that  the  Registrar's  Report  was  usual 

30  "  and  |>roper  under  the  circumstances. 

"The  I'resiiliiit  in  giving  judgment  said:  When  1  first 
'applied  my  mind  to  this  case  I  was  favorably  inclined  tiwiirds 
'■  an  appeal  on  the  ground  that  this  appeared  to  be  so  near  the 
"  en<l  of  the  venture  that  it  occurred  to  me  that  this  amount  of 
"  ])i<ispeetive  gain  might  have  been  taken  into  account  by  the 
"  Registrar.  Rut  the  result  of  further  consideration  and  hearing 
'■  the  arguments  leads  me  to  the  conclusion  that  no  distinction 
"  can  be  drawn  lietween  this  case  and  the  case  of  a  longer 
"  venture,  such  as  a  sealing  or   whaling    voj-age   which  miglit 

40  "  be  put  an  end  to  by  a  collision.  There  is  a  difficulty,  of 
"  course,  in  arriving  at  a  conclusiin  as  to  what  will  adeipiately 
'•  compensate  the  owner  of  a  vessel  which  has  been  run  down 
"  for  the  loss  which  he  has  sustained.  Hut,  as  has  been  pointeil 
"  out  by  Dr.  Lushington,  some  definite  rules  must  be  adopted  by 
"  courts  as  their  guide,  and  he  had  laid  down  with  his  usual 
"  clearness  and  force  the  rule  which  guided  him,  and  which  so 
"  far  as  I  can  see,  has  continiunl  to  guide  his  successois  in  Iheir 
"judgments.  And  I  cannot  adopt  the  suggestion  of  ])r.  Sttilibs, 
"  that  two  or  three  deliberate  decisions  of  J)r.  Lushington's  have 

50  "  become  oljsolete  because  some  cases  which  are  apparently 
"  inconsistent  have  been  decided  in  the  Registry,  and  it  is  remark- 
•'  able  that  when  the  strongest  of  those  eases  comes  to  be  sifted, 
•'it  turns  out  to  be  no  authority  at  all,  Ix'ing  a  case  not  of  total 
"  loss,  but  of  |)artial  loss.  I  consider  the  matter  is  concluded  by 
"  authority  that  where  there  is  a  total  loss  the  (piestion  of  the 
"  value  of  the  things  lost  at  that  time  is  what  is  to  bo  taken 
"  info  accoiuit,  without  reference  to  the  tpiestion  what  a  vessel 
"  woulil  have  earned  if  she  had  gone  on  a  longer  or  a  shorter 
"  voyage  than  the  one  on  which  she  was  engageii   at  the  time. 

00  "  I  therefoit;  think  the  appeal  must  be  dismissed  with  costs. 

"  l)r.  Stubbs  appeared  as  C'ounsel  for  the  Appellants,  Dr. 
"  Raikes  for  the  Respondents. " 

That  was  in  May,  1SS7,  and  the  learned  jmlge  there  likens 
this  to  tlie  case  of  a  longer  venture  such  as  .sealing   or   whaling 


10 


20 


30 


40 


■)() 


(iO 


4(37 

(Sir  Charles  H.  Tupper's  Argument.) 

voyai,'e,  which  uiiijlit  be  put  an  end  to  by  collision.  The  ca.ses 
(if  the  "  Gleaner,"  the  "  Risolnto,"  and  liie  "  Arf»entino,"  are  in 
the  Uritish  brief.  It  will  be  found  that  among  the  various 
!iuthoritie.->  before  the  courts  this  case  timls  no  mention — thi;  case 
(if  ihe  "  City  of  Rome  "  not  being  reported  might  account  for 
it.  Nevertheless,  in  this  very  case  of  the  "  Argentino,"  we  find 
Lord  Haniien  giving  the  judgment  in  the  first  instance,  and  we 
iilso  find  him  giving  judgment  in  faror  of  the  allowance  of 
future  profits;  and  in  supporting  him  in  the  court  of  appeal  we 
tind  Ijord  Justice  Bowen  referring  particularly  to  a  whaling 
voyiige:  and  we  also  find  the  court  in  confirming  his  judgment 
in  the  case  of  the  "  Argentino  "  dealing  with  the  case  of  the 
•  itisoluto,"  quoting  it  with  appioval.  'I'hat  was  the  case  of  a 
tisiiing  v()yag(!  where  the  vessel  was  run  into  on  her  voyage  off 
the  biiriks;  and  the  case  of  the  ' Oleaner,"  also  in  our  brief,  was 
included  in  tlw.  case  of  the  counsel  of  the  successful  litigants. 
If  your  Honors  will  bear  witli  me  for  a  moment,  we  will  take 
tlipsi-  eases  in  the  order  set  out  in  our  brief.  Take  for  instance 
the  ■'  Argentino"  case  as  it  appears  in  1:?  Probate  Divi.sion,  page 
til,  in  January,  l.S)S8. 

The  motion  came  up  on  objection  to  the  Registrar's  report. 
This  case  was  heard  li(>fore  Lord  Justice  Ilaniien  on  February 
14th,  1H8.S.  He  delivered  hi>  judgment  and  adopted  the  facts 
tliiit  I  have  mentioned,  which  were  in  the  Registrar's  report,  and 
in  dealing  with  the  case  he  sny.s  : — 

"  Tile  registrar  in  his  report  states  that  he  was  referred  to  the 
•'  e.ise  of  the  Star  of  India  (1).  He  distinginslies  that  case  from 
"  the  present  on  the  ground  tliat  the  arrangement  in  the  present 
"  case  '  had  not  the  force  and  eHect  of  a  definite  charter  partj' 
"  under  which  a  specific  amount  of  gross  freight  is  contracted 
"  for.'  I  difler  from  the  learned  registrar  on  that  point.  There 
"  is  nothing  special  in  the  advantage  to  lie  derived  from  a 
'■  (IcHuite  charter  paity,  it  is  sutKcient  if  lihere  is  something 
"  which  leads  to  a  definite  assurance  that  some  benefit  will  be 
"  derived,  whether  it  be  from  a  charter  party  or  an  agreement 
'  not  of  that  kind." 

Again,  he  says  : — 

"  In  the  present  caae,  for  the  reasons  I  have  given,  I  am  of 
"  opinion  that  the  owners  of  the  '  Argentino  '  have  proved  that 
"  freight  would  have  been  earned,  and  that  it  wa.s  lost  through 
"  tiie  collision. 

"  Tiie  nature  of  the  advantage  which  has  been  lost  is  not 
"  indeed  (juite  as  clear  as  it  would  have  been  under  a  charter 
"  party,  at  the  .same  time  its  character  is  clear,  tliough  the 
"  iiiuount  is  uncertain." 

'{"here  was  an  appeal  from  that,  but  the  court,  when  tlio 
ii|ipeal  was  heard,  seem  to  have  gone  even  further  than  Lord 
Hiiunen  did,  for  instance,  in  1.')  Probate  Division,  102,  where  the 
t'lisc  eaii\e  iief(u'e  the  (^oiirt  of  Appeal,  there  is  set  out  the  mituro 
(if  the  claim  in  dispute  as  follows  : — 

"  10.  Loss  of  profit  on  .succeeding  voyage  which  had  been 
'•  contracted  for,  but  which  defendants  were  unable  to  carry  out, 
"  and  for  which  another  steamei  was  snlistituted,  including 
"  eighty  days'  time  lost  in  loading  carg-^  upon  next  voyage 
"  licyond  the  time  which  would  liave  been  consumeil  in  loailing 
"  the  cargo  originally  contracted  for,  .t7N5  Kis.  .'id. 

"  The  registrar  disallowed  claim  on  tli  ground  that  the  oral 
■  arrangement  amomited  to  jiegdtiation  merely, and  the  damages 
"  sdught  were  too  remote  :  but  on  objection  being  taken  to  the 
"  registrai's  report  by  the  owners  of  the  '  Argentine,'  the  Presi- 
"  dent   of  the   Probate,  Divorce,  and    Admiralty   Divi.sion   held, 


^l! 


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11 


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.''HI  •  I' 


I 


HlPllI 


468 

(Sir  Charles  H.  Tapper's  Argument.) 

"  first,  that  the  arrangement  amounted  to  a  binding  contract ; 
"  and  secondly,  that  the  profits  made  hy  the  '  Beta '  should  be 
"  used  as  a  basis  to  ascertain  the  difl'erence  l)etween  the  advan- 
"  tage  derived  fron>  the  two  voyages,  so  as  to  arrive  at  such 
"  daii'  »ges  as  would  represent  (1)  the  ailditional  profit  whicii  the 
"'Argentino'  would  have  made  lunl  she  gone,  as  originally 
10  "  arranged,  on  the  Batoum  route  :  (2)  the  loss  due  to  the  diH'.'i- 
"  ence  in  the  size  of  the  'Argentino'  and  the  'Beta';  (3) 
'•  demurrages  for  such  numiier  of  days  as  was  reasonably  lost 
"  by  tlie  '  Beta '  being  loaded  mure  expeditiously  than  the 
"  '  Argentino.' " 

Sir  Walter  Phillimore  and  Boyd  argued  for  the  respondents, 
and  referred  in  their  argument  to  the  cases  on  fishing  voyages 
which  supported  their  view.  They  mention  the  "  Gleaner,"  the 
"  RiMjIiito,"  and  some  other  cases.  Lord  Esher  dissented  from 
the  judguient  of  the  Appeal  Court,  but  even  in  his  <lissenting 
20  judgment  he  deals  with  these  (|uestions  in  connection  with  the 
principle  of  reafitufio  in  intet/nun  and  the  remoteness  of  the 
damage,  where  damage  is  not  contemplated  by  the  partie.s.  He 
refers,  however,  in  his  dissenting  judgment  to  Sedgewick  (ni 
Damages,  as  follows  : — 

"This  general  principle  pervades  the  civil  as  well  as  the 
"  common  law,  and  applie:;  "iiually  to  cases  of  breach  of  contract 
"  and  of  violatioM  of  duty;  to  all  cases  in  short,  where  no  coiii- 
"  plaint  is  made  of  anj-  iieliber«.te  intention  to  injure." 

This  is  worthy  of  remark  m  connection  with  our  chief  point 
30   in  regard  to  this  prospective  catch,  whtre  the  question  of  inten- 
tion \i  of  importance.     At  the  end   of  his  dissenting  juilgmeiit 
he  says  : — 

"  I  am  of  opinion  that  the  existence  of  a  head  of  danmiie 
"  which  is  found  to  be  too  remote  ouuht  not  to  be  regarded  nt 
''  all.  It  ought  to  be  treated  as  not  existing.  I  am  of  opinion 
"  that  the  appeal  must  be  allowed,  so  far  as  the  judgment  of  tlw 
"  learned  President  directs  an  enquiry  as  to  any  allowance  in 
"  respect  of  the  loss  of  the  agreement  for  the  future  hiring  of 
"  the  vessel." 
40  Justice  Bowen  in   delivering  the  judgment  of   the  court,  in 

which  Lindley,  Lord  Justice,  concurred,  said  :— 

"  The  learned  President  has  held  that  the  ca.se  must  be 
"  referred  to  the  registrar  to  ascertain  the  amount  of  loss  which 
"  the  owners  of  the  "  Argentine"  have  sustained  by  their  vessel 
"  not  being  able  to  fulfil  their  contract,  and  has  intimated  that 
"  his  calculation  is  to  be  made  from  the  profit  actually  earned  on 
"  the  same  voyage  by  the  Beta,  after  allowing  for  the  difference 
"  of  capacity,  etc,  between  the  two  vessels." 

After  stating  what  the  case  is,  the  learned  judge  goes  on  to 
50   say  : — 

"Courts  of  Admiralty  have  no  power  to  give  more,  they 
"  ought  not  to  award  less.  Speaking  generally  as  to  all  wrong- 
"  ful  acts  whatever  arising  out  of  tort  or  breach  of  contract,  the 
"  English  law  only  adopts  the  principle  of  restitutio  in  integrum 
"  subject  to  the  qualification  or  restriction,  that  the  damages  must 
"  not  be  too  remote,  that  they  must  be,  in  other  words,  such 
"  damages  as  flow  directly  and  in  the  uiual  course  of  things  from 
"  the  wrongful  act,  To  these  the  law  superadds  in  the  case  of  a 
"  breach  of  contract  (or  to  speak  according  to  tlie  view  taken  by 
CO  "some  jurists,  the  law  includes  under  tlie  head  of  these  very 
"  damages,  where  the  case  is  one  of  breach  of  contract)  such 
"  damages  as  may  reasonably  be  supposed  to  have  been  in  the 
"contemplation  of  l)oth  parties  at  the  time  they  made  the  coii- 
"  tract  as  the  probable  result   (jf  its   breach.     With  this  single 


4G9 


(Sir  Charles  H.  Tapper's  Argument) 

''  modification  or  exception,  which  in  one  that  applies  only  to  cases 
"  of  lireach  of  contract,  the  English  law  onl^'  permits  the  recovery 
"  of  such  damages  as  are  produced  immediately  and  naturally  by 
"  the  act  complained  of." 

Later  on  he  refers  to  the  very  class  of  vessels  adverted  to  by 
Lord  Hannen  in  the  case  of  the  "  City  of  Rome,"  and  says  : — 
Id         "A  wlialiiig  vessel  which  loses  her  season  is  thrown  out  of 
"  employment  just  as  surely  as  if  she  had  been  a  cargo-carrying 
"  vessel  under  a  charter  which  has  to  be  abandoned." 

Later  on  he  says  : — 

•'  It  remains,  however,  still  to  be  considereil  what  is  the  value 
"  at  which  this  loss  of  employment  is  to  be  calculated  in  the  case 
"  of  a  vessel  which,  but  for  the  accident,  would  have  been  ser- 
"  viceably  used  by  her  owner  in  a  particular  manner.  This  is  a 
"  difficult  matter  to  calculate,  tut  the  difficulty  is  only,  after  all, 
"  one  of  fact.  Where  there  is  an  actual  charter  party  such  diffi- 
20  "  culty  is  reduced  to  a  minimum.  Where  there  is  nochailer 
"  party,  but  merely  a  reasonable  certaintj'  of  employment,  the 
"  matter  is  left  more  at  large." 

He  says  again  : — 

"  I  do  not  think  that  the  loss  of  such  average  and  ordinary 
"  earnings  in  respect  of  a  vessel  which  was  advertized  to  sail,  as 
"  the  '  Argentino'  was,  woulil  be  other  than  tlie  direct  and  natural 
"  consequence  of  the  colli-ioii." 

And  later,  in  hi»  judgment,  he  supports  his  reasoning  by  re- 
ferring to  some  of  the  cases  I  have  mentioned,  and  says: — 
'.]{)         "  On  these  grounds  loss  of  a  fishing  adventure  was  allowed  in 
"  the  '  Ri-solute.'  " 

We  come  then  to  the  House  of  Lords,  where  the  case  was 
finally  brought,  and  in  that  year,  1889,  Lord  Herschell  delivered 
the  judgment  of  the  court.  He  .said  in  that  judgment,  as 
follows  : — 

'  Your  Lordships  have  therefore  to  consider  whether,  if  this 

"  were   an  action  brought   in   the  Courts  of  Coiunion  Law  and 

"  tried  by  a  jury,  the  judge  ought  to  have  directed  the  jury  that 

"  these  damages  could  not  be  recovered  on  the  ground  that  they 

40  "  were  too  remote." 

Later  on  he  says  : — 

"  I  think  that  damages  which  flow  directly  and  naturally,  or 
"  in  the  ordinary  course  of  things,  from  the  wrongful  act,  cannot 
"  be  regarded  as  too  remote.  The  loss  of  the  use  of  a  vessel  and 
"  of  the  earnings  which  would  ordinarily  be  derived  from  its  use 
"  during  the  time  it  is  under  repair,  and  therefore  not  available 
"  for  trading  purposes,  is  certainly  damage  which  directly  and 
"  naturally  flows  from  a  collision.  But,  further  than  this,  1  agree 
"  with  the  court  below  that  the  damage  is  not  necessarily'  limited 
"  to  the  money  which  could  have  been  earned  during  the  time 
"  the  vessel  was  actually  under  repair." 

Later  on  in  his  decision  : — 

"  Where  no  claim  is  made  in  respect  of  loss  arising  from  the 
"  owner  having  been  deprived  of  the  earnings  of  a  vcyage  which 
"  was  in  contemplation,  ami  the  engagement  for  w.hich  had  been 
"  secured,  it  would  be  right,  and  is  no  doubt  the  usual  course,  to 
"  award  damages  under  the  name  of  demurrage  in  respect  of  the 
"  loss  of  earnings  which  it  must  reasonably  have  been  anticipated 
GO  "  would  ensue  during  the  time  of  detention.  But  where  such  a 
"  claim  is  made  as  in  the  present  case,  the  owner  cannot,  I  think, 
'•  be  allowed  in  addition,  as  a  separate  item,  demurrage  in  respect 
"  of  the  time  the  vessel  was  under  repair.  If  he  obtains  as 
"  damages  the  loss  which  he  has  sustained  owing  to  the  loss  of 


r.o 


^i\ 


hh 


!l       li 


M,        I' 


II 


T'-i 


470 

(Sir  Charles  H.  Tapper's    Argument.) 

"  the  employment  lie  hail  secured,  he  is  put  in  the  same  position 
"  fls  if  there  had  lieen  no  detention." 

Lord    Fitzgerald    adds    a  few    words    to    the  judgment,   as 
-.1  follows  ; — 

"  It  is  to  lie  regarded  in  the  light  of  a  common  law  action 
"  brought  liy  the  owners  of  the  "Argentino"  against  the  vessel 
10  "  in  collision  ;  and  upon  the  main  (jui'stion  as  to  whethfr  the 
"  dnmngps  resulting  to  the  owners  of  the  "  Argentino  "  from  that 
"  collision  wiTc  too  remote,  1  never  from  tlie  heginning  enter- 
"  tained  any  douht.  It  is  not  alone  that  they  arti  not  remote,  but 
"  'hey  art'  the  proximate  result  of  the  collision." 

That  liriiigs  me  to  say,  and  I  shall  be  very  brief,  not  only  in 
deference  to  the  court,  but  in  deference  to  my  learned  friend, 
who  went  so  exhaustively  and  thoroughly  into  that  branch  of  our 
case,  where  we  are  content  to  rest  it,  so  far  as  damages  are  con- 
cerned, that  it  does  not  depend  for  suppcvt  upon  the  "Argentino," 
20  but  upon  a  principle  which  up  to  the  present  time  is  not  chal- 
lenged by  any  decision,  either  in  the  United  States  or  in  England, 
in  any  of  these  courts.  The  distinction  between  that  particular 
class  of  cases  of  tort,  ami  the  class  of  cases  having  to  do  with  in- 
ter-tion,  and  where  there  v^as  an  act  from  which  one  party  suf- 
fered, intended  in  its  efl'ect  by  the  party  doing  the  wrong,  is  that 
there  is  no  possible  room  for  the  question  of  remoteness,  liut  the 
court  is  called  upon  to  assess  the  amoutit  of  damages  actually 
intended  to  lie  done  by  the  party  oH'ending.  I  simply  leave  that 
subject  liy  aiiverting  to  that,  a  distinct  anil  separate  principle 

30  from  tlu>  princijdes  involved  in  those  cases  that  I  have  been  im- 
mediately referi  ing  to. 

I  close  by  saying  that,  in  this  case,  it  ha«  been  proved,  not 
merelj-  that  the  ol>ject  of  the  United  States  was  to  prevent  us 
from  making  n  catch  of  those  .seals,  but  the  avowed  object  was 
not  merely  to  prevent  foreign  vessels,  or  our  vessels,  taking  a 
single  seal  in  the  waters  of  Behring  Sea,  where  we  had  a  right 
to  take  them,  but  they  were  arranging  so  as  to  enjoy  the  benetit 
themselves  from  the  taking  of  their  .seals  to  the  extent  of  one 
hundred  thousand  a  year  on  the  Pribylofl' Islands. 

40  I  have  covered  the  points  I  deem  it  my  duty  lo  discuss  and 
for  the  patient  hearing  which  has  been  accorded  me,  no  poor 
words  of  mine  are  sutticientl}'  adequate  to  express  mj'  thanks 
and  gratitude.  I  have,  as  your  Honors  cannot  fail  to  observe, 
rested  my  portion  of  the  argument  largely  on  authorities  drawn 
from  the  United  States,  and  I  have  sought  to  have  vin<licated  at 
3-our  hands  those  principles  which  the  great  names  of  the  United 
States  have  successfully  hitherto  upheld,  and  upheld  as  I  have 
pointed  out,  when  questioned  for  a  time  by  Great  Britain  herself. 
Having  referred    so  much  to  the  great  names  of    the    United 

50  States,  and  remembering  how  my  learned  associate,  Mr.  Beique, 
deemed  it  fitting  to  closa  Ids  remarks,  I,  in  order  to  follow  his 
example  and  the  line  I  have  adopted,  would  call  to  your  atten- 
tion two  passages  in  the  closing  address  of  Mr.  Phelps  at  Paris. 
One  is  of  special  importance,  in  connection  witli  the  nature  of 
the  assessment  that  your  Honors  have  been  occupied  with  ;  I  do 
not  believe  it  will  be  neces.sary  to  impress  upon  your  Honors 
that,  in  ascertaining  the  amount  of  damages  due  to  those  who 
have  been  injured,  and  by  the  admission  of  the  Uniteil  States 
under  the  judgment  wrongfully  injured  at  their  hands,  that  you 

60  should  refine  too  much,  or  investigate  at  too  great  pains,  to  .see 
what  item  could  lie  cut  down  or  what  amount  of  damages  largely 
reduced.  I  take  it  that  we  have  a  right  to  expect  at  your  hands, 
where  the  claim  is  honest  and  boti'i  fide  and  comes  within  the 
terms  of  this  treaty,  a  generous  award.     I  believe  the  United 


471 

(Sir  Charles  H.  Tupper's   Argument.) 

States,  when  once  the  principles  upon  which  the  assessment  is  to 
be  made,  have  been  determined,  would  desire  to  pay  nothing  less 
than  a  generous  award,  and  so  bury  this  question  at  once  and 
forever.  Certainly  that  seems  to  have  been  the  view  of  Mr. 
Phelps  when  arguing  the  larger  and  greater  questions  that  came 
between  the  nations  at  Paris,  where  he  said  as  follows  referring 

10  to  the  amount  of  damages  : — 

"  Mr.  Blaine  once  offered  to  pay  it,  as  you  have  seen  in  this 
"  correspondence,  if  he  could  settle  the  important  rights  of  the 
"  country  for  the  future  in  respect  of  this  industry,  saying  that 
"  it  was  too  small  to  stand  in  the  way,  especially  as  the  money 
"  was  going  to  individuals  who  might  have  suppo.sed  and  pro- 
"  bably  did  suppose  that  they  were  authorized  to  do  what  they 
"did." 

I  adopt,  changing  only  "  America"  for  "  Great  Britain"  the 
closing  remarks  of  Mr.  Phelps,  and  place  it  side  by  side  with  the 

20  conclusion  of  my  learned  associate  Mr.  Beique,  where  he  adopts 
the  language  of  Sir  Charles  Russell  on  the  same  occasion  and 
say  :— 

"  It  is  with  a  confidence  predicated  upon  the  justice  of  the 
"  British  case,  inspired  by  the  high  character  of  the  Tribunal 
"  these  nations  have  been  fortunate  enough  to  bring  together, 
"  and  strengthen  by  the  anxious  solicitude  each  member  of  it 
"  has  shown  through  this  long  and  wearisome  discussion  to  reach 
"  a  right  conclusion, — that  Her  Majesty's  Government  submits 
"  this  case  to  your  consideration." 


i'ii 


Pi: 


■r 


ii-i' 


li'i' 


I      u' 


20 


30 


•10 


GO 


'  1 


20 


30 


40 


ARGUMENTS  ON  SEPARATE  CLAIMS. 


Mr.  Peters: — We  now  propose,  yoiir  Honors,  n  taku  up  llie 
special  claims  and  to  ileal  with  tlioiii  very  shortly.  I  pro- 
pose to  (l(!iil  with  five  vessels,  heginninj^  with  the  "  C'lirolena," 
iind  ill  (loin;;  .so  I  shall,  as  much  a.s  possible  confine  myself  to  the 
tiisputeii  (juestions  arising  in  eacli  particular  case. 


C'AUdi.ENA   Cask. 

If  your  Honors  will  refer  to  the  arj,'uiiii'nt  on  iiehalf  of  the 
Cniteil  States,  at  pa^'e  .'W7,  you  will  find  that  my  learned  friend 
he^'ins  a  discussion  of  this  case  with  the  following  paragraph  : — 

"  Tile  f)resentation  of  this  claim,  in  the  Arj,'uiiient  on  hehalf 
'of  (ircat  r.ritain,  radically  differs  from  the  claim  as  presented 
'  I'V  tile  testimony  of  the  claimants  at  Victoiia.  The  eviileiice 
'offered  relatiiif,'  to  the  cost  of  siipplyiiij,'  Miinsie's  tradinj; 
"  station,  the  cost  of  e(|uippin<;  a  sealing'  vessel  for  a  huntini^- 
"  voyai,'e  on  the  west  coast  of  Vancouver  Island  l.efoie  the 
"  departure  of  the  ship  for  the  voya;^''  to  lii-liviiii,'  S.  :i  and  the 
'  vooclicrs  placed  in  evidence.  a;,'<|re}iatinj5  aliout  !i<(!,(l()(),  'I  draw 
■' your  attention  to  these  words' — which,  according' i  ■  tlii!  claim- 
"  ants,  represented  the  cost  of  outfittini,' this  small  ^ehooner  of 
"  21^  tons  for  a  sealin;^  voyajje  in  I^ehriii;,'  Sea  of  two  months 
"receive  no  consideration  in  the  British  aru'unient." 

At  pa;,'e  .'!42  of  the  same  ar;,'umeiit  I'e  states  as  follows: — 

'•  Although  the  claimants  have  not  a^kvd  this  Hij^h  Cjiu- 
"  mission  to  award  Sii.OOO,  claimed  as  the  total  expense  of 
"  oultittiiif,'  the  '  ( 'arolena  "  in  Behrinj;  Sea  for  the  voyage  of 
"  KSSti,  the  amount  has  not  heen  Icsseneil,  hut  on  the  contrary, 
"  as  shown,  is  increased  without  any  apparent  reason,  from  the 
"  time  that  the  claim  was  Hied  at  Victoria." 

I  have  lead  these  pnssaj^es  in  full  in  order  that  I  may  make 
no  mistake  in  the  comment  which  I  wish  to  make.  From  that 
statement  I  shouhl  judge  that  my  learntc',  friends  wished  this 
Triliunal  to  think  that  .ve  ha<l  made  with  regard  to  the'  ('arolena  ' 
a  very  exaggerated  claim,  and  that  we  hud  proved  or  attem|)ted  to 
prove  that  !?t),0()0  was  the  sum  it  would  .letually  cost  to  outfit  that 
ve-.sel  for  what  he  termed  a  two  months' voyage  in  Hehring  Sea. 
50  I  think  that  is  the  meaning  of  the  words  if  you  are  to  take 
iheiii  as  thej-  stand  in  the  argument.  That  is  an  entire  misap- 
prehension of  the  facts  as  1  understand  them.  What  are  the 
facts  ?  If  your  Honors  will  refer  to  the  vouchers  in  eviilence, 
and  found  iti  Ajipor  '..a  li,  heginning  at  page  <S ;  there  ai'e  some 
fifty  vouchers,  !?(J,12!S  constituted  one  part  of  these  vouchers, 
and  the  other  amount  is  §4i,000,  the  value  of  the  ship  ;  i?(),12M 
does  not  represent,  as  you  would  understand  from  n»y  learned 
friend's  argument,  oi',  at  least,  as  I  understand  from  it,  the  cost 
of  outfitting  the  vessel  for  the  voyage  in  Hehring  Sea  for  t«i 
iiumtlis,  hut  it  represents  a  great  many  other  things.  W  <- 
never  claimed  that  it  cost  .S0,000  to  outfit  the  "  (.'arolena  "  for 
Belli  ing  Sea,  such  a  claim  was  never  pretended  to  be  presented 
hy  the  counsel  for  Cireat  Britain.  If  you  will  ref^r  u>  the 
Vouchers  which  are  set  out  in  that  Appendix,  Nos.  I,  2,  o,  4,  5,  (i, 


GO 


iiii 


I 


a.    : 


III! 


Wi 


■  UM' 


;i 


II 


474 

(Mr.  IVtors"  Si-coml  Arj^uinont.) 


22,  2.').  :{7,  MS  Jv  4:'(,  it  will  Im  foiiii.l  tliat  in  ivll  tlioio  voudicn 
witli  ill*  exception  nf  part  of  (itio  of  llioiii  refcrrud  to,  ariiclos 
piii'i'liasi'il  not  for  tin'  It.'liriny;  Si'ii  vayii;.'(i  iit  ftll,  lint  for  ii<t!  in 
tlic  winter  voynLje  lieLiinnin;;  in  tlie  inoiuli  of  Felirniiry,  iMSf), 
wliicli  voyi\;,'e  WHS  piirllv  a  tradin;^  voyii^'e  iind  piiitly  i\  seiilinL; 
vo\iii'«.     'I'lie-'e  voiiclicrs  total  Hoinetliini'  less  tliiiii  1:*K)(),  so  timi 


10   in    lliivt   pnrlieuiiii    it  is  not  correct  to  say  llint  tlie  !'<i!.()(ll) 


WHS 


reiiniriii  for  the  voya;,'e  to  Melirin;;  Sen,  oi  that  it  repi'events  tliu 
oiiltit  for  tliat  vipyn;,'!'.  Ai,'ain,  let  me  refer  ynu  to  certiiin  ollni' 
items  inclinleil  in  tlie  total  nf  the  voiielieis  wliicli  ceitaiiilydo 
not  iieloni;  to  tlie  outfit  for  the  voya;(i'  to  Helirinj;  S 'a.  Vouclu'r 
nnmlier  .'JD,  cash  ^jiveii  to  ();;livie,  No.  .'t.'l,  jiassaye  and  e.xpeiises 
(if  crew  I      ■    ' 

(it  ;  No.  l.'i   was   for  law   costs  which 
coiii'ictioii  with  th 


from  Sitka,  wdiich  iiad  notliiiii'  to  do  with  th it- 


■re  ineiirreil  at  Sii 


i\a  ni 


i/nre  •  No.  40   was   Mr.  i)id\eirs  hill,  snnn 


■i(»;  No.  l 


4r  was  a 


Lrain  for   law  costs  at  Sitka  :  No.  4.S 


was  the 


20  amount  paid  .1.  1).  Warren  for  ;,'oiii^' to  Ottiwa  and  presenting,' 
tills  claim  to  the  Canadian  ^overtwnent :  and  No  41I  was  for  tlie 
personal  claims  of  Mniisie  for  troulile  and  expenses  incnired  in 
jir-sentiiiL;'  his  (;laiin  and  so  on.  So  it  appeals  that  a  vi'vy  lar^je 
proportion  of  the  !*<i,Otl().  which,  if  I  read  my  learned  friend's 
stateiiieiit  eoriectU',  hi'  wants  it  to  appear  was  changed  merelv  a.s 
i'X|ien^es  for  oMifittinj,'  the  ve.ssid  for  a  two  months'  voyaL'''  in 
liehiiiij,'  Sea,  did  not  rf'lati!  to  tin;  outtit,  hut  nroso  on  account  of 
the  seizure  liavini,'  taken  place.  I  point,  this  out,  liecaiise  j  do 
not  wish   to  stand    in  tin-  position   heforc  this  'rrihiinal  of  pri 


30 


sentini'  a   claim    which   on   i 


t.s  fr 


lid  h 


exai'i'erateii 


At 


vecoli 


pa^'e 


1  10.    yoii    will    find    an    alistiiict    of  what    the 


vouchers  are.      Kiom  thin  it  appears  that  !*2,7"2I  was   for  outfit 
ither  than  jiio.isions,  ^oins  and  ammunition  ;    |)rovisioiis  onlv 


cost  ?<!t-'i();  lh: 


d  niiiiiiiinition  cost  !?(i().'i  ;  siiiiilries  SI  ,70(),  ainl 


the  cost  of  the  Vessel  .':?tO{)0.  So  that  a.s  far  as  the  "  ( 'aroliiia  " 
is  concerned,  instead  'of  this  enormous  sum  of  !?(j,t)()0  iicin^ 
clinri;ed  for  the  outtit  of  the  vessel,  we  are  chai;,'iiif,'  for  pro- 
visionini,'  the  vessel,  not  only  for  the  Hehriiijj  Sea  voya;;e,  hut 
in   the  winter  time,    the   wiiin  of  S!*")"  ;  and 


also  for  the  vovii 


40   v 


on     Wll 


IllKl,   I 


f  you  apply  to  that  the  test  that  Mr.  .McL  an 
apiilii'd,  that  in  outtittin^f  vessels  where  wdiite  miui  are  emjiloyed. 
you  are  to  allow  810  per  man  per  month  for  provisions,  there 
will  not  lie  a  veiy  larj^e  ditl'erence  lietween  this  statement  and 
the  statement  of  Mr.  Mcijcan.  While  I  am  on  this  point  of  the 
Cost  of  the  outfit,  I  wish  to  point  out  that,  if  we  are  li^jlit  in 
our  con'.M.tion  that  we  should  he  allowed  prospective  catch,  the 
(piestiovi  if  chat  amount  we  had  to  spend  either  in  provisions, 
ainniunitioii,  or  aiiythiiiL;  that  may  he  called  coiisuniahle  outfit, 
becDM"     I  I   I'eally  very  small  importance. 

■CM'iso  il  we  are  allowed  for  the  erross  prospective  catch,  it 
ollows,  as  a  matter  of  cotii" 


fi 


that 


wo  are   no 


t  t  I  1 


le  ailowec 


foi 


the  ]irovi-ioiis  and  amiiiunitioii  which  we  would  necessarily  have 
to  consume  in  ;;i'ttin;4  that  catch.  If  you  will  look  at  the  claiins 
}ou  will  Hnd  that  in  no  instance  have  we  put  forward  a  claim  to 
he  entitled  to  the  catch  and  the  provisions  and  anurjunition  as 
well  I  fully  suliiiiit  that  if  we  fjet  an  award  for  prosjiective 
catch  we  do  not  claim  for  the  others.  ( )f  course  if  we  do  not  trot 
un  amount  for  piospective  catch  another  (piestion  will  he  raised. 


GO   1 


Then  my  learned  friend   takes   up  certain    items    which    we 


lave    claimed   for   am 


Certain    I'rouii 


Is.     Tl 


says    tliat  they    are  ohjectionahle    upi 
first    item    that   he  ohiects  to  is  at  the 


bottom  of  paife  ;},'JS  and  the  top  of  pa^^e  tV.lO.     He  .siiy 


Tl 


milt    chiirircd   for    the    four   canoes    and    outfit  is 


exhorliitant.     Captain  Warren  testified  that  820.00  was  the  cost 


47.') 

(Mr.  IVtcrs'  St'eDiid  Ari^fUiiU'iit.) 

"  of  till!  canoes  oil  tilt;  "  Saywnid."  In  tli'i  splicliili-  iirrpftrcil  lij' 
"  till)  owner  of  file  "  Ailll"  till'  clini-^e  is  niiuie,  ',\  Piuioes,  ':il4(l.(H), 
••  Iminjj  .soni«\vliiit  over  81 ''.<•()  enjcli.  The  testimony  of  other 
"  witnesses  in  the  Keeonl  shows  Imyoml  chiiilit  that  the  values 
"  ]ihire(l  upon  these  canoes  liy  Mniisie  wa**  lictitimis." 

Oiir  I'laini  for  tliesc  canoes  is  as  fniiows  :  "  4  canoes  ninl 
10  outfit,  .'?24.'S. 00."  The  eviilence  in  support  is.  .Mr.  Muiisie  swears 
tlint  he  lMiiij,'iit  theiii  at  a  certain  specili'il  pi-ce  wiiicii  auiouiitecl 
to.if'J4!S00  altoLtether,  mill  lie  proiluceil  voiiciieis  from  an  IruliMii 
hy  name  of  .limmie,  from  whom  he  l)(iu;,'lit  them.  Monsiu  swears 
to  that  positively,  as  will  he  foiiml  liy  reference  to  the  liottom  of 
piii,'!'  !I4  of  the  Recoril.  Ili^  was  asUeil  to  look  at  voucher  niimhcr 
2;t,  ami  to  state  what  it  was.     This  is  his  answer  :  — 

"  A.     This  is  a  voucher,  a  leeeipt  fiom  "  Indian  Jininiie  "  tor 

"Sil'S.OO  fot   4  canoes,  (i  paihiles  unci  seal  Khl'lilelH. 

"  <^),     These  you  l)ouj,'lit  for  the  schooner  "' 'arolena  "  ?   A.   Ves. 
20         ■'  (}.     That    purports    to   he    a    receipt    .sii^ned    liy    "  Inilian 
"Jimmie"?     A.     Yes. 

'■  <.^•.      \\'itnes.«c(l  l>y   wh  )m  ^      A.      Witnessed    hy    one   of   the 
"  meti  on  hoard  flu;  vessel. 

"  (}.     Did  you  pay  tlint  money  to  "  Imliaii  .limmie  "  !'     A.     I 
"  paid  it  ill  the  presence  of  the  person  lefeinil  to." 

That  is  the  evidence  i,'iven  !iy  himself,  and  the  voucher 
proiliiced  is  vouchor  numhor  2H,  which  ajiprars  to  he  a  voucher 
for  the  sum  in  ipiestion,  the  icceipl  indieatinij  that  it  was  paid 
oil  Miiy  (itli,  l!S!)'p,  and  the  voucher  is  siLjned  I'V  "  Ind.inn  •limmie," 
30  per  W.  M.  iV  C  K.  ^'our  Honors  will  remeiiiher  that  we  pro- 
(luceil  all  the  living;  mouiliers  of  the  crow  of  the  ■'  Caroleiin,"  lait 
the  witness  (.'.  \'].  was  not  auioiiL;  them,  lie  was  either  dead  or 
ah-eiit.     See  ;;lso  Uecord  jip.  !>.")  ami  !)(!. 

My  learned  friends  rel\'  on  the  cvideiiee  of  Cotsford,  at  paf^e 
.')7-'i,  lino  1."),  and  |inLce  'MS,  line  .")().  Witlin  it  readinj,'  his  evidence 
1  may  state  that  he  had  jj;ono  in  the  "Cavolena"  to  ( 'layiipiot, 
fiMii;  whence  she  was  to  sail  to  the  Behrinj^  Sua.  He  was  one  of 
the  hunters,  and  stales  that  hi;  was  ])res!'nt  at  a  conversation  at 
which  he  .says  these  canoes  were  liouLjht.  He  said  the  value 
40  nj/reed  upon  for  each  canoe  was  eleven  dollars  ;  on  cross-exaiui- 
iiatioii  he  wa.s  not(|uite  clear,  (see  ilecord  .S!S7  and  ;W<S)  and  ;iiiy 
wei;,dit  to  which  his  evidence  nii<,dit  otherwise  he  entitled  is 
removed  hy  tiio  evidence  of  Russel,  at  paij;o  .")!>2  and  .11)7.  -Mr. 
Ilussel  slates  that  those  canoes  were  there  when  the  vessel 
aniveil,  and  were  on  the  shore  at  this  place.  Claj'oipiot,  on  the 
arriviil  of  the  vessel.  (Jotsford  was  liroin,dit  to  prove  two  points  : 
first,  liiat  Mr.  15eclitel  had  smuethinif  to  do  with  the  pnrciia.se  of 
the  canoe.s,  and  second,  that  the  amount  cluiuievl  was  excessive. 
Iiussel,  at  pa<,'o  .597,  states  that  the  canoes  were  there  at  the 
.50  time  of  the  arrival  of  the  vessel,  and  had  evidently  heen  pur- 
chased hefore  that  time,  which  is  a  practical  contradiction  of 
( 'otsford  on  the  point  that  Bechtel  purch.aseil  them  after  the 
vessel  arrived.     At  pa<jfe  y,)7,  line  4.  Russel  says: — 

"  Q.     How  lonj;  did  you  lay  at    Clayociuot  ?     A.     I  cannot 
"  remeiiiher  exactly. 

'•  (J.     Ai.out  ?    A.     We 
"  I  would  not  he  sure. 

'■  (.»).     What  did  you  do  there    yourself,    personally  ?     A.     I 
"  helped  put  rih.s  in  four  canoes. 
(10         "  Q.   The  putting'  in  of  those  ribs  wa.s  done  at  Clayoquot,  was 
■'  it  ?     A.     Yes,  .sir. 

"  Q.     And  the  canoes  were  l)rouj,dit  ahoard  ?     A.     Ye.s,  sir. 

"  <V-     Were  the  rilw  put  in  on  hoard  >.     A.     A.shore. 

"  y.     Put  in  ashore  ?     A.     Yes,  sir. 


hetween  four  and  six  days,  I  think. 


I 


iri 


111   . 


jjpis^»i-i»ir 


'"-*•■ 


>    !M'i 


I      vfe 


■!'^^.:' 


|l     II 


Mi  '^1 


li  '  |l ' 
if 


'•i  !■: 


(3  i 


m-ffAyv  '.mi^f-'jHim^' 


476 

(Mr.  Peters'  Second  Arjjiinient.) 

"  Q.  Whereabout ,  were  the  canoes  wlien  the  ribs  were  put 
"  in  !     A.     On  the  beach 

"  Q.     And  wore  tlio  ribs  steanieil  ?     A.     Yes." 

Then  he  states  tliat  Beehtel  was  sick  all  this  time,  wiiich  is 

naterial  when  you  come  to  consider  that,  accordint;  to  Cotsford, 

Beehtel  was  there  purchasini,'  the  canoes  and  actin;^  as  it"  he  were 

10  the  owner  of  the  ship.     Russel  relates  that  at  this  time  Beehtel 

was  sick  and  subseipiently  went  away  to  Alberni. 

Then  if  you  ivi'ei  to  llio  evidence  of  Mr.  Munger  at  page  G.S.S, 
you  will  find  that  he  speaks  to  the  same  point: — 

"  Q.  When  you  got  to  Olayociuot,  how  long  after  you  got 
"  there  did  you  go  ashore  ?     A.     On  the  same  day. 

"  Q.  And  you  swear,  do  you,  that  the  canoes  were  on  the 
"  bank  then  f     A.     Yes. 

'■  if.     The  same  four  canoes  that  afterwards  came  on  boai<l 
"  the  •  Carolena  '.'     A.     I  di<l  not  mark   them,  I   do  not  know 
SO  "  about  that. 

■  (.^t.  Never  mind  about  marking — you  were  doing  seaman's 
"  work— did  you  lieln  to  load  these  canoes  on  the  '  Oarolena  ? ' 
"A.     No. 

"  Q.     Where  were  you  ?     A.     1  was  on  boartl. 

"  t).  And  had  von  anything  to  <lo  witli  loading  them  ' 
"  A.     No. 

"Q.     Who  did  load  tliem  ?     A.     Dave  Russel. 

'•■  y.     Do  you  swear  that  these  were  the  canoes  you  saw   on 
"  the  bank  wlion  you  first  came  theie  ?     A.     Yes." 
30  The  oiilj-  wiuie.ss    the    I'nited    States    jiroduee   to   show    that 

these  canoes  wre  of  less  value  than  elaiuusd  was  (\itsford,  and 
we  find  him  "la.iug  that  th(^  canoes  were  bought  from  several 
Indians,  whereas  .Mtniger,  a  witness  called  by  the  United  States, 
says  that  these  canoes  were  there  at  the  time  and  ready  to  be 
taki'u  on  boarii  the  "  Carolena,"  except  that  they  required  to  be 
rjl.lieil.  So  that  you  luive  a  voucher  produced  by  .Mr.  Mimsie, 
and  also  the  statement  of  (.'ot-;foi<l,  tliat  these  were  good  canoes, 
and  taking  it  altogetlier,  it  seems  to  me  that  unless  the  court 
has  come  to  the  conclusion  that  in  a  small  matter  such  as  th<; 
40  price  of  the  canoes,  Mr.  Munsie  has  not  only  couunitted  perjury 
but  has  produced  a  forgiul  voucher  ;  then  your  Honors  must 
come  to  tlie  conclusion  that  he  actually  paid  this  price  for  the 
canoes.     Then  there  is  another  important  witness,  Mr.  Serault. 

Mr.  Wairen: — You  stated  that  the  witness  ^[unger  was 
called  by  t'-  <  rnited  States,  the  fact  is  that  the  witiuss  Munger 
was  your  \\  itiiess. 

Mr.    Peters : — ^Yes,   it    was    the    witness    Cotsford    who   was 
produced  by  the  (Jnited  States.     Now  Serault  was   a   man    who 
carried  on  business  at  Clay. M|iiot .  and   he   conies   forward  ami  is 
fjO  askcil  this  (|uestiot\  at  page  (I4S,  line  (iO  :  — 

"  Q.  Couhl  vou  liu\-  one  of  these  canoes  for  ii^lLOlW  A. 
^'  No." 

StMault,  who  also  settles  the  point  that  lieehtel  had  notiiing 
to  do  with  the  mattei-.  Taking  the  evidence  together,  we  liave 
a  case  that  is  i,  '  answered  by  the  evidence  of  the  Jniteii 
States. 

If  you    look    at    the    evidence    of    (Charles    Spring,    who    is 
admitti'd    by    the    I'nited    States   couiisi^l   to  lie  a  nmn  of  high 
respectability,  an  1    who       n  ord   has  been   taken  by  my  learned 
60   friend    as    absolutely  i fct — a    man  who    has    never    even 

attempted  to  make  his  own  cases  look  as  good  as  perhajis  he 
might — -hi!  says  at  page  24.S,  line  ,").") : — "  Canoes  cost  from  :?!)  to 
!f4()."  Colsford's  :.  was  that  the  canoes  were  bought  when 
tlie  vessel  was  thereon  that  occasion,  but  the  evidence  of  Munsie 


477 

(Mr.  Peters'   Second  Argument,) 

is  tliat  the  canoes  were  bought  and  paid  for  as  far  back  as 
May,  and  that  is  corroborated  by  the  evidence  of  Munger  and 
Serault. 

Tlie  next  material  objection  that  is  talcen  is  with  re;i;ard  to 
the  price  of  guns.  At  page  340  of  the  United  States  argument 
it  is  .stated  timt  "  the  charge  for  rifles  and  shot  guns  is  out  of  all 

10  proportion  to  their  real  value." 

Upon  that  point  I  refer  to  Munsie,  at  pages  100  and  101  of 
the  Record,  where  he  distinctly  swears  what  these  guns  actually 
cost.  He  produced  a  voucher  for  the  guns  and  proved  that  the 
guns  cost  SUO.OO,  less  2")  per  cent.,  and  he  puts  tiie  exact  amount 
in  the  bill.  The  riHes  were  worth  so  mueii  besides,  and  he  pro- 
duced in  that  case  also  a  voucher.  That  voucher  is  set  out  in 
the  Appendix.  That  evidence  is  backed  up  at  page  S74  by 
Cotsford,  who  was  a  witness  for  the  United  States.  Cotsford 
said  the  guns  were  lirand  nnv  IBonehil!  guns.     Probably  none  of 

20  us  know  what  a  Bonehill  gun  is;  Byers,  at  page  319,  line  30, 
says  that  Bonehill  guns  are  high  priced  guns. 

Then  again,  we  have  on  this  question  as  to  what  should  be 
allowed  for  guns — and  these  remarks  applj'  also  to  guns  in 
several  other  cases — the  testimony  of  J.  G.  Oox,  page  141,  at 
tiu'  top  of  the  page.  He  says  that  guns  laid  down  at  Victoria 
cost  ?(I4.7'^,  that  is  the  class  of  guns  used  there.  The  evidence 
of  Seiward  at  page  101,  line  11,  is  in  point,  where  he  says  that 
guns  cost  each  S?(J2.00.  The  evidence  of  Raynor,  a  witness  relied 
on  by  the  United  Statts.  is  that   ho   paid   S+0.00  for  guu^  and 

30  ?"22.()0  for  ritles.  But  if  I  remembor  con^cflv,  he  was  there 
speaking  of  the  price  in  San  B^'ancisco  and  at  some  ports  in  tbe 
United  States.  The  evidence  of  J.  D.  Wn  •;  n  at  page  910,  is 
that  ritles  cost  S4r).70  and  guns  .'JS-'i.OO  each,  in  this  case  of  the 
"  Carolena "  I  submit  it  is  unnecessary  to  encjuire  what  the 
general  price  of  guns  is,  iiecause  it  is  apparent  that  the  price  of 
guns  (litter  entirely  according  to  the  make  of  the  gun.  ()ne  gun 
may  cost  !?")().()()  and  another  SSO.OO,  and  they  may  both  look 
alike.  We  have  in  this  particular  case  the  evidence  that  the 
guns  seized  actually  cost  so  much   money.     I   submit  that  that 

40  should  end  the  matter  My  friend  on  the  opposite  side  has  not 
produced  any  evidence  to  show  that  the  charge  for  guns  is 
exhorbitant.  If  he  had  given  evidence  of  that  kind  it  would  of 
course  be  entitled  to  consideration.  He  might  have  produced 
the  otHcers,  or  some  of  the  officers  employed  in  making  the 
sei/.un ,  liid  might  have  asked  them  id  give  a  valuation  of  these 
guns.  l!.>wever,  tliat  matter  has  been  left  by  him  without  any 
evidence  at  all.  T  may  cite  the  evidence  of  Alexander  McLean 
at  (Bge  4.i.'),  line  30,  who  values  iocond  hand  guns  that  he  had 
to  do  with  at  !?(/.'). 00,  and  who  stated  that  the   guns   when    new 

50  cost  about  SSO.OO.     So  far  with  regard  to  guns. 

r'len  my  learned  frienil  again  objects  to  the  charge  that  we 
I'.i'.-.ke  for  a  boat.  He  states  his  objection  at  page  339.  His 
reasi)i\  is  that  we  did  not  have  a  boat  and  he  alleges  that  when 
the  "  Carolena  "  started  out  on  her  voyage  she  bad  a  boat  l)Ut 
that  she  lost  it  on  the  way  to  Behring  Sea.  He  attempts  to 
slidw  that  a  mistake  has  occured  because  in  the  case  of  the 
"Thornton"  which  had  four  boats,  the  United  States  had  only 
put  in  the  inventory  three,  ai\d  he  contends  they  had  by  mistake 
taken  it  od'  the  "  Thornton  "  and  credited  it  to  the  "  C:"  ,i!ena  ;" 

(iO  that  might  be  well  enough  in  theory  l)ut  it  is  clcai'  ibat  the 
"Carolena"  must  have  got  a  boat  somewhere,  if  she  had  lost  her 
old  one.  Raynor  at  page  ")15  puts  the  matter  beyond  doubt. 
On  cross-examination  'il  line  52,  when  be  is  being  e  ^s-examined 
as  to  the  invei'.tory  that  is  produced  by  the  Unind  States  gov- 


t 
-i, 

'  '■'' 
■1  ill) 

■ii:: 


I 

s 


m 


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■il         J! 


I 


■•Xi'  < 


H  nfji.-,  I  \m I 


•mi^',w'i^'^ 


10 


20 


;iO 


40 


oO 


GO 


478 

(Mr.  Peters'  Second  Argument.) 

ernmont  and  is  being  asked  for  the  ditt'erent  items,  this  question 
is  put  to  him  : — 

"  Q.  Did  }-ou  sfie  the  yawl  ?  A.  To  the  best  of  my 
"  meniorv  tliere  was  a  yawl. 

"  Q.  Why  do  you  (jualify  that  ?  You  speak  very  plainly  about 
"  other  things,  but  I  notice  every  time  you  are  asked  about  the 
"  boat  you  say  to  the  best  of  your  memory  ?  A.  Tliere  was  a 
"  yawl. 

"  Q.  Are  you  sure  of  it  ?  A.  Yes,  1  think  I  saw  a  j^awl  on 
'■  her. 

"  Q.  When  did  }-ou  see  it?  A.  The  first  time  I  went  on 
"  board  of  her. 

"  Q.  Whore  did  you  see  it,  on  the  ship  ?  A.  It  was  along- 
"  side  of  her." 

Now,  however  the  yawl  got  there — whether  the  "  Carolena  " 
as  the  evidence  appears  to  show  lost  her  boat — she  may  hare 
recovered  it — or  might  have  got  a  boat  from  some  other  ship — 
but  lu'ie  we  have  the  evidence  of  Raj'iior,  a  witness  called  by 
the  United  States,  wdio  settles  the  doubt  and  says  that  there  was 
a  boat.  Wo  say  that  if  there  was  a  boat,  no  mattev  from 
whence  it  came,  we  are  entitled  to  be  paid  for  it  'n  i  Idition 
to  that  we  have  the  most  foinial  evidence  that  tliote  \"  '  i  •  woat, 
because  it  is  put  in  the  inventory  made  by  the  Ui''^e(i  .-  '  s  at 
the  time  of  the  seizure.  I  siibnut  that  the  Uu'i  .i  ol.i.js  will 
have  to  pay  for  that  boat. 

'riu'M  again  my  friend  objects  to  the  item  known  as  the 
Belyea  bill'. 

Mr.  Wurren  : — Before  discussing  that  item  would  the  counsel 
state  what  value  Raynor  pluces  on  thiit  boat. 

Mr.  Peti'rs: — The  valiuition  he  puts  on  it  is  like  every  other 
value  wliifh  he  places  on  anything  belonging  to  the  iSritisli  ships, 
it  is  put  low.  He  puts  it,  1  think  at  !?15.00,  I  do  not  ehoost>  to 
take  that  valuation.  While  not  desiring  to  nuike  any  haish 
conuneiit  on  the  testimony  in  question.  I  desire  to  say  that  all 
these  witne.sses  had  a  tendency  to  put  a  low  valuation  on  articles 
taken.  Raynor  was  inclined  to  value  things  without  any  ex- 
amination. He  inidertook  to  value  the  guns  on  the  "Thornton" 
when  it  was  shown  that  they  had  never  come  out  of  their  gun 
cases,  and  under  such  circumstances,  no  man  coidd    value  them. 

Mow,  with  regard  to  the  Belvea  bill,  at  page  SIO,  my  friend 
says  ; — '  The  item  Belyea's  bill  S7.')0.00  rests  upon  the  following 
"testimony  of  Munsic."     The  United  States  counsel  then  quote- 
the  evidence  as  cited  on  page  340,  of  the   United   States  argil 
ment. 

"  Q.  The  contract  with  Mr.  Helyea  was  not  in  writint;,  I 
"  think  ?     A.     No,  not  in  writing. 

'  I}.  It  was  made  up  at  the  tiuiH  though  ?  A.  It  was  made 
"at  the  tiini'  he  undeitook  to  look  after  the  case. 

"  Q.  You  are  liuund  to  pay  him  .S7")0.  A.  If  I  do  not  get 
«'  the  claim  I  nught  not  pay  him  ;  1  might  object  to  it. 

"  Q.  But  you  agreed  to  pay  him  )i*750.00  at  all  events,  for 
■'  his  services,     A.     There  nnght  have  been  a  condition. 

"  Q.  Was  tliere  ?  We  don't  want  any  statement  as  to  wlia 
"there  might  be,  but  what  is?  A.  I  won't  state  positive 
"  whether  I  agreed  to  pay  him  ;  positively  whether  the  clmiii 
•'  were  paid  or  not  paiil,  iiut  I  rathei-  think  tluMe  was  an  unde. 
"  staniliiig  that  if  the}-  were  not  paid  I  would  not  have  to  pa) 
"  him  (piite  M)  much. 

"  <).  Did  you  name  any  ani'  U  that  -o'l  shoidd  pay  hiui, 
"  at  ail  events  >.     A.     I  do  not  rei  .c  uber  tiiaL  there  was." 


■#*. 


479 

(Mr.  Peters'  Second    Argument.) 

I  think  it  would  bo  better  to  couipleto  the  reference  there, 
because  there  is  ju.st  a  question  and  answer  that  is  left  out  at 
that  point.  After  what  the  witness  said,  as  just  quoted,  the  fol- 
lowintj  testimony  is  given  by  him  : — 

"  Q.  But  you  were  to  pa}'  hiui  S750.00  if  you  succeeded.  A. 
"  Yes." 
10  Now,  this  is  in  Munsie's  cross-e.Kamination,  and  from  the 
statement  of  my  learned  friend  you  might  imagine  that  this  is 
the  only  evidence  upon  the  point,  but  as  a  matter  of  fact  there  is 
a  good  deal  of  other  evidence,  to  which  I  will  refer  very  shortly. 
I  first  refer  to  the  voucher  that  was  put  in  by  Mnnsie,  No.  46,  at 
page  25  of  tlie  appendix  — 

"  To  professional  service.?  re  seizure  of  '  Carolena  ' 

"  in  Behring  Sea  in  1886  and  so  f o  th S750.00 

"  Less  allowance  bill  of  Drake  &  Jackson 71.10." 

20  Your  Honors  will  see  that  Belyea  had  agreed  to  do  the  whole 
business  for  8750.00.  Next  I  refer  to  the  evidence  of  Munsie,  to 
which  my  learned  friend  bus  not  referred.     At  page  100: — 

"  Q.  Take  voucher  46  and  state  what  that  is  ?  A.  That  is 
"  a  bill  for  S678.90  from  Mr.  A.  L.  Belyea;  the  original  amount 
"  of  that  bill  was  S7')0.()(). 

"  Q.     As  a  matter  of  fact,  was  an  arrangement  made  between 

"  you  as  to  the  amount  ?     A.    I  believe  there  was  an  arrange- 

"  ment.      ]Jnikeand  Jnckson  were  pre{)aring  the  claim  originally, 

"  and  it  appears  that  the  government   wanted  a  revision  of  the 

30  "  claim,  and  Mr.  Belyea  then  took  the  matter  m'  hand. 

"  Q.  At  whose  re(juest  ?  A.  At  the  request  of  the  owners, 
'  myself  amongst  others,  and  Mr.  Belyea  conducted  the  further 
"  business  in  ccjnnection  with  this  and  other  claims. 

"  Q.  Did  he  make  an  arrangement  for  the  amount  he  should 
"  be  paid  for  the  whole  transaction  ?  A.  He  was  to  attend  to 
"  the  wb(jle  matter  for  the  sum  of  .'?75().00. 

"  Q.  That  was  a  bargain  made  with  3'ou  years  ago  ?  A. 
"  Yes. 

"  Q.  And  before  you  had  any  idea  that  there  would  be  any 
40  "  Convention  of  this  kind  ?  A.  1  never  dreamt  there  would  be 
"  anything  of  this  kind. 

"  Q.     That  agreement  was  made  by  you  ?     A.    Yes. 

"  Q.  As  a  matter  of  fact  j  ou  did  not  pay  that  amount  yet  ? 
"  A.    No,  I  paid  part  of  it  only. 

"  Q.  Only  a  small  portion  ?  A.  Yes,  in  this  bill  I  have  niy- 
"  self  deducted  the  §71.10  of  Drake  and  Jackson's  bill,  which  I 
"  had  to  yiii-y.  At  the  same  time,  to  keep  the  expenses  within 
"  the  claims  I  deducted  the  S71.10. 

"  Q.  You  agreed  with  Mr.  Belj'ea  for  $750,  but  when  you 
50  "  jiut  in  the  voucher  for  Drake's  bill,  you  deducted  that  so  as  to 
"  make  the  whole  thing  8750  ?     A.    Yes. 

"  Q.  You  paid  the  $71  and  you  also  [)aid  Mr.  Belyea  some- 
"  thing  on  account  of  the  bill  ?     A.    Yes. 

"  (.),.  And  there  is  a  regular  agreement  that  Mr.  Helyea  should 
"  get  l:?75().00  ?     A.    Yes." 

Si)  that  I  claim  that  my  friend  has  not  stated  ail  the  evidence 
upon  that  point.  The  evidence  that  I  have  lefened  to  is  quite 
siitlieient  to  support  the  item.  It  is  further  contended  that  the 
claim  for  Belyea's  fees  is  too  large  in  amount,  but  I  venture  to 
(iO  siiy  that  any  erson  who  took  charge  of  a  claim  of  this  sort  from 
the  bi'ginnin;;  and  put  the  claim  in  «hape  would  find  it  very 
troiililesome.  Belyea  was  resident  at  Ottawa,  and  he  formulated 
the  claim  an<l  followed  it  up  through  many  slow  an. i  troublesome 
steps,  far  more  truublesome  than  would  be  the  case  in  putting  a 


vn 


::-A 


'i  I' 


s  -r; 


if 


it::  I. 


|l      l! 


480 


(Mr.  Peters'  Second    Arfjument.) 

claim  before  a  regularly  organized  court.  I  submit  that  $7.iO 
was  not  exhorbitant,  but  was  a  fair  and  reasonable  charge,  more 
particularly  when  he  had  to  pay  all  expenses  involved  in  the 
matter.  During  the  pendency  of  the  pioceLiiings  at  Victoria,  I 
did  not  understand  the  counsel  for  the  United  States  as  raising 
any  objection  to  the  amount  of  Belyea's  charges,  on  the  contrary, 
10  in  one  case,  that  of  the  '  Winnifred,'  Mr.  Dickinson  took  occasion 
to  remark  that  Mr.  Bel3-ea's  charges  were  modest.  (Record,  p, 
1740,   1.   .->6.) 

The  next  item  that  objection  is  taken  to  is  a  charge  by  Clark 
at  Sitka.     On  page  340  of  the  United  States  brief,  counsel  says : 

"  Regarding  tho  charge  of  Willoughby  Clark,  '  Charges  at 
"  Sitka,  S,500,'  Munsie  testified  that  he  regarded  the  charge  as 
"  excessive,  and  refused  to  pay  it ;  but  that  Clark  seized  some 
"  skin-i  cif  his  in  Sitka,  a!id  rather  than  have  a  lawsuit  regarding 
"  the  claim  he  jiaid  the  amount.  This  seizure  of  skins  was 
20  "  made  several  3-eais  after  188G,  and  because  Mr.  Munsie  was 
"  willing  to  allow  Clark  to  secure  from  him  an  exhorbitant  sum 
"  the  (jovernnient  of  ihe  United  States  is  not  liable  to  repay 
"  that  exhorbitant  amount  expended  on  account  of  his  own 
"  negligence  in  not  protecting  his  interests." 

I  think  he  further  says  somewhere  that  there  was  no  regular 
retainer.  Let  me  refer  to  the  evidence  on  this  item.  At  page 
101  of  the  record,  the  matter  is  considered  and  voucher  is  pro- 
duced.    At  line  12  is  the  story  of  the  whole  matter  : — 

"  <}.     V.iucher  47  is  a  bill  for  S.iOO   from    Willoughby   Clark 
30  "  i'.ir  !■_;.■,:  I'xpenses  ?     A.     That  was  incurred  in  Sitka,  Alaska, 
"  and   I  nrtually  paid   it,  and   this  is   the   original  receipt.     Mr. 
"  Clai  ■-  I.   I'i  nded  the  case  at  Sitka. 

"  Q.  That  was  for  the  whole  legal  work  at  Sitka  1  A.  Yes, 
"  for  the  whole  legal  work  on  the  part  of  the  '  Carnlena  '  at  Sitkn. 

"  Q.  Who  was  it  employed  Mr.  Clark  at  Sitka  ?  A.  I 
"  believe  it  was  the  master  of  the  '  C/arolena,'  or  at  least  so  the 
"  mate  informed  me  on  his  return.  He  said  that  Mr.  Clark 
"  otTered  his  services,  and  that  he  would  see  the  case  through  the 
"  Supreme  Court  of  the  United  States  for  S500. 
40  "  Q.  Were  you  drawn  upon  for  this  amount  ?  A.  He  made 
"  a  draft  on  me  forljoOO. 

"  Q.  Who  was  the  draft  signed  by  ?  A.  It  was  signed  by 
"  the  master,  I  believe,  before  he  died. 

"  Q.     Did  you  honor  that  draft  ?     A.     I  did  not. 

"  Q.     Did  you  afterwanis  have  to  pay  the  draft  ?     A.     Yes. 

'  ^l.  I  believe  some  skins  belonging  to  you  got  into  American 
"  territory?     A.     Yes. 

'  Q.  And  did  Mr.  Clark  .seize  theui  on  account  of  the  bill  ? 
"  A.  Ves. 
50  "  Q.  And  what  did  you  give  him  for  it  ?  A.  He  seized  100 
"  skins,  and  I  was  forced  to  give  him  ,10  skins  to  settle  the  bill  ; 
"  the  skins  were  worth  to  me  $750,  as  it  afterwards  transpii'c  i 
"  according  to  the  sale. 

"  Q.  So  that  instead  of  paying  8500  you  actually  paid  §750 
"  for  Mr.  Clark's  bill  ?     A.     Ye.s." 

These  are  the  facts,  Munsie  iictuall}'  had  to  pay  the  money, 
anil  Claik  was  employed  to  do  the  work.  Now,  if  you  will 
refer  to  a  letter  from  Munro  to  Spring,  at  page  885  of  the 
rec(U"d,  j'ou  will  t'  hat  this  matter  was  also  dealt  with.  Mr. 
CO  .\Iunro,  as  your  h  us  will  reniomliei',  was  tlead,  and  bis  letters 
were  allowed  to  go  in  evidence.  Ho  writes  to  his  principal,  Mr. 
Spring,  on  thi^  .'bd  of  September,  188(),  as  follows  : — 

"Of  cm,,  we  i)leacli;l  not  guilty,  and  was  asked  if  we 
"  would  be  tried  by  a  jury  or  not.     I  asked  for  time  to  consider, 


10 


80 


481 

(Mr.  Peters'   Second  Argument.) 

"  but  was  told  by  the  court  that  I  would  have  to  decide  at  once. 
"  Being  in  a  strange  place  I  thought  I  would  want  a  jury,  but 
"  after  being  let  out  on  our  own  recognizance  we  sought  a  lawyer 
"  to  take  the  case  up  for  us,  agreeing  to  pay  hitn  8.")00  in  each 
"  ease.     They  appeared   for   us   next  morning  and  demanded  a 

"  ,ii"y-" 

Then  he  goes  on  to  describe  about  the  hearing.  So  you  have 
the  complete  evidence  that  Clark  was  employed,  the  mate 
informed  Munsie  that  he  was  employed,  and  you  have  the  testi- 
mony of  Munro  that  they  employed  him  and  agreed  to  pay  Inrn 
?.'i()(>  in  each  case.  Ami  on  that  same  point  I  would  refer  your 
Honors  to  the  record,  pi»ges  870,  871  and  872,  where  the 
employment  of  this  man  is  dealt  with  more  particularly  in 
connection  with  the  "  Onward,"  but  1ms  .some  connection  with 
this  case  too.  It  not  only  shows  that  Clark  performed  certain 
duties  at  Sitka,  but  that  ho  came  down  to  Victoria  and  there 
20  consulted  with  the  owners.  He  not  only  did  that,  but  he  ])ut 
in  the  foi-inal  pleadings  at  Sitka,  and  no  doubt,  as  Munro  states, 
ap])eare(l  before  the  court.  At  any  late,  the  bargain  was  made, 
and  the  money  paid,  whether  the  price  was  high  or  low,  1  am 
not  prepared  to  say.  It  is,  however,  ([uite  clear  tlrnt  we  had  to 
pay  that  amount. 

Mr.  Warren: — What  citation  did  j-ou  i^ive  that  C!ark  came 
down  to  Victoria  ? 

Mr.  Peters: — I  will  give  you  tliiit,  when  T  come  to  the 
'  Onward."  There  is  another  item  tiiat  mj'  learned  frier.d  objects 
to,  and  that  is  the  iiein  of  insurance.  At  page  841  of  his  brief 
lie  says ; — 

"  The  item  S3.":2  I'oi  insurance  covers  the  charge  for  a  year. 
"  The  iiisurance  woidd  l)e  cancelled  immediately  u|)on  the  Itoat 
"  being  seized,  and  the  premium,  if  paid  in  advance,  refunded. 
"  Tiie  policy  is  not  in  evidence.  If  the  owner  is  paid  for  the 
"  value  (if  the  skins  taken  before  the  seizui'e  he  will  leceive  the 
"  l)enetit  of  the  insurance  to  that  time." 

Now,  as  to  the  first  point,  namely,  that  "  insurance  would  be 
cancelled  immediat(dy  upon  the  i)oat  being  seized,"  that  is  all 
40  vii y  well,  but  the  fact  is  the  seizure  took  place  at  Behring  Sea, 
mill  Mr.  Munsie  was  at  Victoiia,  and  he  did  iu)t,  and  could  not, 
know  of  the  seizure  until  long  after  it  took  place  ;  how  could  he 
cancel  the  insurance  ?  There  may  be  something  in  the  argu- 
ment that  up  to  the  time  of  the  seizure  he  had  received  the 
benefit  of  tiio  insurance.  But  we  claim  that  it  should  be  allowed 
on  this  gro\ind  ;  i  ship  in  the  liehriiig  Sea  insured  is  worth  more 
than  a  siiip  up  there  not  insured.  If  I  want  to  sell  a  ship,  then 
Stalin;;  ill  the  Behring  Sea,  I  could  sell  her  better  if  she  was 
insured  than  if  not  insured,  and  lerefore  we  say  we  are  entitleil 
.'lO  to  the  insurance  whether  you  put  it  i:nder  the  actual  item  of 
insuiance  or  add  it  to  the  value  of  the  ship.  Either  waj-  it 
would  amount  to  the  same  thing. 

The  next  objected  to  is  Capt.  Warren's  expenses  to  Ottawa. 
It  is  contended  that  the  "Item,  J.  ]).  Warren,  expenses  to 
Ottawa,  putting  in  claim  §1.52,  is  for  expenses  in  connection  with 
tliis  claim  against  the  United  States,  and  cannot  be  allowed." 
No  authority  is  cited  for  that  proposition.  I  submit  that  the 
claimants  were  compelled  to  incur  these  expenses  by  reason  of 
the  wrongful  act  ot  the  TJniti  !  states  government.  It  would 
have  been  impossible  for  t'.  :  t.i)  have  pressoil  their  claims 
without  incurring  expenses  of  tins  kind.  Such  expenses  are  the 
ilirect  conseiiuence  of  the  seizure.  Look  at  the  case  of  the 
'  Costa  Uica,"  where  the     iliitrntor,  after  giving  all  the  items  of 


(iO 


m 


? 


•^i;,; 


l!  " 


■  ».,"■ 


'■  ft 


^^^m'f^Bl^rwigjr'  ■■n«fw(n-i,i,  >,ij«vi^««^   i.l'^'V'.  - 


482 


(Mr.  Peters'  SeconJ   Aifjuiiient.) 


damage,  added  on  £250  for  costs.  Tlii.s  is  an  item  tliafc  wo 
necessarily  had  to  incur  bj'  reason  of  the  seizure.  It  is  not 
chvitiied  tliat  tlie  amount  is  excessive.  We  all  know  that  a 
person  who  has  to  travel  from  Victoria  to  Ottawa  of  necessitv 
must  incur  considerahle  expense.  And  as  these  men  actually 
paid  that  amount,  it  is  clear  that  they  considered  it  was  reasoii- 
10  able,  and  there  is  no  attempt  here  to  show  that  it  was  unresnniiMc 
or  too  much. 

There  is  another  item  that  my  friend  objects  to,  "  time  ami 
personal  expenses  of  owner,  S2.")0."  He  i^ives  no  authority  I'nr 
that  nlijt'ction,  but  simply  makes  the  bald  statement  that  it 
cannot  be  recovered.  Munsie's  evidence  on  this  item  is  at  page  101, 
and,  I  submit,  issufhcieiit  to  satisfy  you  that  the  item  shoidd  Ik; 
allowed.  I'erhaps  not  the  exact  amount  claimed.  Of  course  it 
is  within  the  discretion  of  the  Comndssion  to  tear  all  these  items 
to  pieces,  and  give  us  what  they  thitik  we  actually  ought  to 
20  have.  I  am  arguing  more  upon  the  piinciple  than  upon  t' -> 
amount  of  the  item  itself. 

Then  on  page  .'i-tl  of  the  United  States  brief  thej-  saj' : — 

"  The  propeity  aboard  the  schooner  was  inventoried  by  the 
"  Uiuted  States  officers,  and  the  only  other  property  removed 
"  from  the  vessel  was  that  put  aboard  the  "St.  Paul.' 

"The  claim  for  'estimated  value  of  provisions  and  amuiution 
"  which  would  have  lu^en  left  after  a  full   ■    yage,  say    S200."  is 
"  covered  by  the  value  of  the  property  inv.  jiiorieil  by  the  otlicers 
"  of  the  cutter  and  the  property  put  aboard  the  '  St.  Paul.'" 
.■)0  lie  says,  "  This  is  covered    by    the    value    of    the    jjroperty 

inventoried  by  the  officers  of  the  cutter,"  but  we  are  not  claiming 
for  til.  ;.iovisions  and  auunurdtion  which  would  have  been  eon- 
sumeil  on  a  full  voyage.  That  would  be  contrary  to  the  claim 
we  put  forwiinl  for  prospective  catch,  but  we  do  say  this  ;  after 
the  close  of  the  sealing  season  everyone  of  the  ships  ha<l  more  or 
less  provisions  and  amnuudtion  left  over  and  above  the  (piautity 
actually  uniuired  for  the  voyage,  and  that  should  come  back  to 
us.  I'he  amount  of  that  would  depend  upon  the  length  of  tlie 
voyage,  but  in  every  case  souu;  amount  would  be  left,  and  for 
40  that  amount  we  ask  j-our  Honors  to  allow  us  a  fair  sum,  which 
we  |)ut  at  ??100.  Tru(!  it  is  the  provisions  would  not  be  very 
valuable  when  they  came  back  but  that  remark  does  not  appl\- 
to  the  ammniution.  We  are  handica]iped  to  some  extent  by  the 
great  lenjjth  of  time  which  has  elapsed  since  the  seizure,  because 
it  is  now  difficult  to  prove  what  amount  would  be  left. 

Now  then  as  to  the  expenses  of  the  crew.  The  Uiuted  States 
brief  says  :  "  The  item,  ex]ienses,  remainder  of  crew,  sa\'  S'jO,  is 
without  any  testimony  to  support  it." 

With  all  deference  to  my  learned  friend,  there  are  some  things 
.")0  that  we  tl'i  not  recpdie  evidence  to  support.  This  fact  is  before; 
the  Court ;  we  had  great  difficulty  in  getting  the  people  who 
were  aboaril  the  '■  t'aroleiui"  as  witnesses.  It  was  a  long  while 
btd'ore  we  could  get  any  of  thi  in,  and  some  we  coidd  not  get  at 
all.  The  memlieis  of  the  crew  of  the  "Carolemi"  found  them- 
selves at  Sitka  iri  the  month  of  August,  IHiSG,  and  it  does  not 
reqiure  evidence  to  prove  that  they  mtist  have  paid  something  in 
(U'der  to  get  down  to  Victoria  again,  or  San  Francisco,  wherever 
they  did  get  to.  We  have  the  eviiience  of  what  these  men  had 
to  |iay  whose  testiuuuiy  we  did  get.  and  what  would  apply  to 
CO  one  would  ajipK'  to  another.  We  have  vouchers  here  showing 
what  it  cost  some  of  them  to  get  down  from  Sitka. 

The  Comiuissioner  of  part  of  Uidted  States;— You  have  not 
charged  fifty  dollars  each,  but  fifty  dollars  for  the  whole  crew. 

Mr.  Peters; — That  makes  it  still  more  reasonable. 


483 
(Mr.  Peters'  Second  Arfjuinent.) 

The  Commi.ssioner  on  part  of  the  United  States  : — Is  there  any 
evidence  about  what  it  cost  the  crew  of  the  "  Carolena  "  at  all  ? 

Mr.  Peters: — You  have  evidence  about  what  it  cost  the  other 
men. 

The  Commissioner  on  part  of  the  United  States  :—  Is  there  any 
evidence  that  the  ownors  of  the  vessel  paid  anything  on  account 
10  of  tliat  ? 

Mr.  Peters  : — Yes  :  JInnsie  paid  for  some  of  them  ;  but  where 
the  men  paid  them.selves,  we  say  the  men  are  entitled  to  gi't  that 
back.  We  make  that  claim  on  behalf  of  the  men.  Without 
havinjj  any  expres.s  evidence  on  that  point,  we  simply  say  that 
we  do  know  what  it  cost  some  of  the  men,  and  it  is  reasonable 
to  suppose  that  it  cost  the  other  men  a  similar  amount. 

The  counsel  for  the  Unitcii  States  object  to  the  item  of  ?100, 
one-haif  of  the  value  uf  the  slop-chest.  This  item  stands  in  this 
way.  The  "  slop  chest,"  so  called,  is  owned  by  the  owner  or 
20  master  of  the  ship,  and  consists  of  various  necessai'V  articles  of 
clothing,  etc.,  that  are  given  out,  from  time  to  time,  by  the 
master  of  the  ship  to  the  crew  and  paid  for  by  thtm,  and  it  is 
therefore  an  a.ssut  not  to  be  looked  upon  as  consumable,  and 
which,  if  taken,  is  to  be  paid  for. 

About  one-half  of  the  voyage  was  over  when  tliis  vessel  was 
seized.  The  probability  is  tliat  the  slop  chest  would  have  been 
about  half  sold  to  the  crew,  and  the  other  half  would  still  be  on 
board  the  .schooner,  and  for  tliis  we  claim. 

You  may  say,  tliese  things  are  not  put  in  the  inventory  made 
aO  up  by  the  U^nited  States  oHicers.  I  say,  in  this  particular  case, 
we  have  a  right  to  complain  that  the  officers  of  the  revenue 
cutter  did  not  take  the  pains  they  oughi  ;;)  have  taken  in 
making  the  inventories  accurate.  Wo  know  that  before  any 
inventory  was  made,  a  lot  of  goods  (the  e.xacL  amount  we  could 
not  ascertain)  were  taken  from  the  "Carolena"  and  sent  aboard 
another  vessel,  and  of  these  no  account  was  taken.  We  there- 
fore say  that  you  can  place  no  reliance  upon  the  inventory, 
because  you  do  not  know  what  was  taken  out  of  the  vessel 
before  the  inventory  was  made.  We  have  proof  that  a  slop 
40  chest  was  put  aboard  the  fjhip,  and  we  say  there  should  have 
been  one- half  of  that  left,  and  we  claim  that  the  Commissioners 
should  allow  us  for  that  half. 

I  need  not  refer  to  the  value  of  the  skins  which  they  object 
to,  nor  to  the  estimated  catch,  which  I  have  argued  at  full  length 
already,  nor  need  I  refer  to  the  item  claimed  for  hardship  to  the 
crew  as  that  has  been  already  dealt  with. 

There  is  one  other  matter  that  I  wish  to  deal  with  shortly. 
It  is  charged  that  this  vessel  was  partly  owned  by  a  citizen  of  the 
United  States  named  Kechtel,  and  it  is  claimed  on  that  account  no 
•)0  compensation  can  be  awartled.  The  charge,  as  I  understand  it, 
originally  made  by  the  United  States  Government,  was  that  these 
vessels  were  transferred  to  the  British  flag  for  the  purpose  of 
defrauding  American  laws.  Let  me  remark,  that  whatever  may 
lie  aigued  in  other  cases,  iu  this  case  the  argument  cannot  lie 
used,  because  this  vessel  was  bought,  and  whatever  interest 
Hechtel  ac(|uired  was  accpiired  in  the  month  of  January.  1S8."), 
liel'ore  there  was  any  (piestion  of  any  person  being  prevented 
from  sealing  in  1-iehring  Sea,  and,  therefore,  if  it  was  simply  a 
()iiestio'i  of  trying  to  defraud  a  statute  of  the  TJnited  .States,  that 
(10  object  could  not  have  been  in  their  minds,  because  nobody  knew 
that  the  United  States  was  at  that  time  making  that  claim.  I 
need  not  go  further  than  to  state  the  bare  proposition,  that  no 
person  can  be  guilty  of  fraud  without  knowledge. 

There  is  another  point  I   wish  to  emphasize  on   the  same 


1 

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ill!  . 


Mi 


484 

(Mr.  Peters'  Second  Argument.) 

matter.  In  1885,  the  "  Carolena  "  did  not  j^o  to  Bohrin}?  Sea,  nor 
did  any  vessel  in  which  Munsie  was  interested.  Tiie  "  Carolena  " 
was  houglit  for  the  purpose  of  tradinij;  on  the  west  coast  of  Van- 
couver Island,  and  sealing;  alon<5  the  coast  to  a  certain  e.xtent. 
So  that  she  could  not  have  heen  purchasud,  and  a  British  roj^ister 
could  not  liave  been  olitained,  wit))  any  idea  of  defrauding  the 

10  United  States  law  at  that  time. 

Now  I  do  not  know  that  it  is  necessary  that  I  should  go  very 
largely  into  the  (juostion  of  the  value  of  tlie  "  Carolena."  I  am 
going  to  refer  your  Honors  to  the  eviilence  wo  have  put  forward 
in  our  printed  argument. 

The  Commissioner  on  part  of  the  United  States  : — I  am  not 
quite  clear  as  to  your  statement  just  now.  Do  you  admit  that 
Heelitel  was  the  owner  of  any  part  of  the  "  Carolena." 

Mr.  Peters: — No,  your  Honor,  I  only  put  the  matter  in  that 
form,  that  no  owiicrshi})  could  have  heen  obtained  for  the  purpose 

20  of  defrauding  the  I'nited  State.s  laws  under  these  circumstances. 
I  most  certainl}'  do  not  admit  that  he  was  anything  more  tlian  a 
mortgagee.  I  am  coming  to  that  in  a  moment.  So  far  ,is  the  vaUio 
of  the  "  Carolena  "  is  concerned,  our  case  is  fully  set  out  in  our 
original  argument  on  pages  89-1)1.  The  cast;  on  the  other  side  is 
set  out  in  their  argument,  and  I  do  not  see  that  any  gco  1  purposu 
conli^  be  servi'c]  ly  going  over  the  argument  which  is  already  in 
a  M-adalile  form.  I  simply  refer  your  Honors  to  it,  and  ask  that 
you  will  look  at  tlie  evidence  as  it  i.s  (juoted  there. 

Now,  on  the  (juestion  of  Bechtel's  .supposed  ownership.     Wo 

30  claim  tliat  Munsie  was  the  owner  of  the  whole  vessel.  The 
United  States  counsel  claim  tliat  Bechtel  owned  onudialf.  We 
.say,  it  is  innnaterial  whether  this  was  a  fact  or  not,  l)ecausc 
Heehtcl  was  <lonuciled  at  Victoriii,  doing  business  there,  ami 
there  was  no  fraud  on  the  laws  of  the  United  States.  Hut  even 
if  it  were  material,  we  claim  the  facts  show  that  ii  'clitel  was 
only  a  mortgagee.  On  this  point  we  iiave  the  evidence  of  Mr. 
Mun.sif.  I  am  not  going  over  the  evidence,  but  I  am  referring 
to  one  line  of  argument  taken  liy  my  learned  friend  on  the  other 
side.     He  says  you  must  disregard  the  positive  statement  made 

40  hy  Munsie,  that  in  188.")  he  l)ought  two-thirds  of  that  vessel 
froui  Unjuhart  at  a  valuation  of  !:i«3,800  ;  tliat  at  the  time  he 
bought  it,  lie  borrowed  from  Hechtel  l^.JOO,  and  took  a  mortgage 
for  .'li'tK)?  ;  that  when  he  ae(|uired  the  rest  of  the  property  he 
Ijorrowed  another  !?50()  of  Heehtel,  wlu)  took  another  mortgage ; 
and  these  were  leally  nothing  but  mortgages,  and  that  \nu 
should  conclude  that,  liecause  it  happens  that  ^(Jfi?  is  just  one- 
thiril.or  nearly  so,  of  the  .S2,000  which  the  United  States  coui.sel 
say  was  tlie  real  pure!  asu  money,  the  real  transaction  was  not  a 
jiurchase  for  !?.']  800,  but  was  a  purchase  for  S<2,000,  and  that  the 

50  mortgages  given  were,  in  reality,  wiiat  he  calls,  and  I  think 
the  woiil  arose  from  a  statement  made  l)y  the  Conmussioner  on 
the  part  of  the  United  States,  •'  Whit-wasliing  Mortgages,"  and 
that  .Munsii'  is  to  be  disladievi'd  altoiiether. 

What  is  our  side  of  the  story  ^  We  say  Munsie  bought  the 
schooner  originally  for  S'WOO.  Munsie  swears  to  that  positively, 
that  he  l)orrowed  §.')00  from  Bechtel,  and  mortgage  was  given 
for  !?()G7,  presmnably  to  cover  intere.st.  Aiy  friend  draws  your 
attention  to  the  form  in  which  the  bills  of  sale  were  taken.  It 
is  true  that  in  the  bill  of  si.le  given  by  Unjuhart  to  .Munsie,  the 

(JO  amount  put  in  is  8007,  and  in  the  writing  is  inserted  "It  lieing 
one-third  of  the  value  of  the  ship."  Now  we  have  a  theory  in 
regard  to  that  matter  which  is  opposi'd  to  my  learned  friend's 
theorj.  We  have  the  theory  that  Unjuhart,  at  that  time  was 
not  the  sole  owner  of  the  ship,  but  that  a  part  of  it  belongeil  to 


486 

(Mr.  IVters'  Second  Argument.) 

one  Mickt'y,  and  that  ri(ndinrt,  for  tlic  jiurposu  of  tryin;^  to  clu'at 
llickt'V,  had  purposely  ;;()t  tl\e  wroni,'  nnioiint  put  in  the  hill  of 
sale.  It  appi'iu's  that  Unjuhart  only  acfoiinted  to  Mickey  for  his 
one-half  of  the  !?'20()0.  We  say,  tiiere  may  have  ))een  fraud,  hut 
it  was  between  Mickey  and  rnpihart,  and  that  theory  is  sup- 
ported hy  reference  to  the  evidence. 

Ill  1  refer  your  Monor.-  to  pnyes  l()2'2,  l()2-'5  and  1024  of  the  evi- 

dence. Without  readintf  it  at  leni^th  1  may  say  that  Mickey  de- 
poses that  he  was  in  a  peculiar  position  with  rej^ard  to  Unpdiart. 
Uniuhart  was  his  chief  and  Hickey  wanted  to  keep  the  half  of  the 
vessel  to  himself,  and  with  that  in  view  ottered  to  j)ay  Urc|uhart 
the  amount  rr(|uhart  said  he  was  scllinji;  to  Afunsie  for.  rii|u- 
hart  put  him  ott'  with  some  j)huisil)le  excuse,  leaving;  Mickey 
under  the  impression  that  the  sale  was  for  S2()(I0.  Mickey  adds 
in  his  evidence  that  he  di<l  not  want  t)  sell  because  tlu;  82000 
was  not  anything  like  tiie  value  of  the  vessel.     We  produced  a 

2(»  .Mr.  Hevan  (Record  1!)14)  who  was  cusodiau  of  the  hooks  of  an 
old  hanking  company, (Jureste  ( Jreen  i>k-  Co'y,  with  whom  rr(|uhart 
had  k(!pt  his  hanking  account,  and  vvt;  proved  that  at  the  verv 
time  this  transaction  took  |»lace  Mr.  i?evan  deposited  a  sum  of 
money — and  it  was  rarely  any  sums  were  deposited  by  him — 
that  would  ab(jut  come  to  the  amount  he  would  have  receiveii  if 
the  purchase  had  been  88800  at  the  rate,  as  we  allege  instead  of 
82000.  The  svidence  as  to  whether  the  schooner  was  bought 
for  .8;}S00  and  not  for  82000  is  mi.xed  up  with  the  ([uestion  of 
llechtel's  alleged  ownership  if  you  conclude  that  the  real  jiurchase 

.'ill  was  for  8:{.S00,  tlie  whole  theory  of  the  rniteil  States  falls  to  the 
j,'round.  W'e  contend  that  we  have  given  a  reasonable  explana- 
tion of  the  matter,  and  that  we  have  produced  positive  evidence 
as  against  mere  suspicion.  We  produce  tlu;  receipts  for  interest 
pai<l  on  the  mortgages,  and  we  show  that  the  mortgage  has  been 
paid  off.  My  learned  friend  points  out  that  the  receipts  were  all 
ni.ud)ei'ed  consecutively  and  ho  says  that  this  could  not  have 
occurred  if  the  transaction  took  place  in  ditl'erent,  years.  On 
the  other  hand  we  have  shown  by  the  production  of  many  other 
receipts  that  Mechtel  numbered  every  other  transaction  consecu- 

40  tively,  and  we  have  shown  that  if  he  hail  one  particular  house 
as  his  property,  he  nundiered  consecutively  the  receipts  for  all 
transactions  with  regard  to  that  house.  We  ask  your  Honors  to 
cjicido  that  Munsio  owned  the  "  t'arolenn,"  and  that  l>e('itel  was 
what  he  claimed  to  be,  nothing  more  than  a  mortgagee,  'i'o 
strengthen  our  pcsition  on  this  question  we  refer  to  the  evidence 
with  regard  to  the  transaction  of  the  "  I'athtinder."  As  your 
Honors  will  remember,  after  Myra  Hechtel's  death,  the  executors 
took  charge  of  the  estate,  and  the  tirst  item  they  collected  (see 
lioconl  ].")!)9)  was  the  capital  sum  of  tlie  mortgage,  showing  that 

.'lO  tiiese  men  themselves  treated  it  as  a  bonu  tide  transaction.  1 
have  but  another  word  to  .say  with  regard  to  the  prospective 
catch  for  LSST  in  the  case  of  the  "  ( -arolena."  There  were  special 
circumstances  applicable  to  tb.ai  vessel,  and  also  the  "  Thornton  " 
ami  the  "  Onward."  Thai,  special  circumstance  is  that  the  parties 
did  not  give  up  the  hope  that  the  vessels  were  not  to  be  returned. 
The  correspondence  shows  that  they  had  every  reason  to  hope 
that  the  ves.sels  would  be  returned,  and  therefore  during  the 
whole  of  the  year  LSS7  they  expected  the  vessels  would  bo 
returned,  anil  they  had   a   right  to  expect   that   they  wouM   bo 

!)(•  allowed  to  use  them  in  the  sealing  business.  1  shall  now  leave 
the  case  of  the  "  Carolena  "  and  proceed  to  say  a  few  words  with 
ii'gard  to  the  "  Oi">'ard." 

The  Commissioner  on  the  part  of  the  Ignited  States  : — I  under- 
stood you  to  say  at  Victoria  Mr.  Peters,  that  the  schedule  of  the 


l^* 


I  ! 


;■!,  '•' 


\  ! 

ii 

I;    I  i>i-( 

W 

i      ' ' ' 

a! 


'.i[' ' 


h'^  4.: 


ii'''' 
■I' in!' 


II 


'fr^Hfrf 


4M(i 

(Mr.  IV'ters'  Second  Ar;,'iiment.) 

cIiiiiiiH  of  thi'  "  Carolena  "  put  in  at  Paris  represented  tlin  ontiru 
enteipriKe.  If  you  are  allowed  for  the  prospective  catch  it  would 
lie  important  to  understand  this,  because  if  it  does  lut  represiMit 
the  entire  enterprise  we  niij^ht  he  compelled  to  do(hict  from  the 
f^ross  catch  the  value  of  the  interests  which  tlio  others  had.  I 
would  lie  yla<l  to  have  at  some  time  dnrinsj  your  argument  a 
10  statement  as  to  tliat. 

Mr.  Peters : —As  a  matter  of  fact,  I  did  make  a  statement 
upon  that  point  at  Victoria. 

The  L\)inmissioner  on  the  part  of  the  United  States  : — Hut  it 
was  not  ilevelopoil. 

Mr.  P(^ters: — I  shall  refer  your  Honor,  at  some  other  oppor- 
tunity, to  the  statement  1  made  at  Victoria,  when  I  have  time  to 
look  up  the  record,  and  I  may  also  have  something  to  add  to 
that  statement. 

The  ('omnd«sioner  on  the  part  of  the  United  States: — It  is 
20  confused  in  my  min<l  just  nt)vv. 

Mr.  Peters  :  —  It  is  a  point  that  from  our  point  of  view  we 
should  fidly  elucidate  to  your  Honors. 

The  Commissioner  on  the  part  of  the  United  States  : — You 
claim  the  gross  catch,  without  niaking  any  deductions  for  the 
lay,  as  we  call  it. 

Mr.  i'eters: — Tiiat  is  the  position  we  have  always  taken.  1 
will  deal  with  that  later  on. 


C.V.SE   OK    THE   "  OXWAKD." 


30 


I  now  wish  to  refer  your  Honors  to  the  case  of  the  "Oii- 
waid,"  which  is  answered  at  pa'^e  1^04  of  the  Argument  of  the 
United  States  counsel.  Jly  learned  friend,  Mr.  Dickinson,  after 
setting  forth  the  seizure  and  enumerating  the  articles  that  were 
seized  and  what  happened  after  the  seizure,  draws  thi.s  conclu- 
sion :  "  Tiiis  evidence  is  conclusive  of  the  fact  that  the '  Onward 
"  was  a  total  loss  to  her  owners  and  was  s)  considered  by  them." 
My  learni^il  friend  makes  this  statement  witii  a  view  of  laying 
<lown  the  principle  upon  which  we  ought  t<>  recover  damages, 

40  and  he  ajiparently  follows  out  in  this  particular  case  the  doctrine 
whicli  he  announced  in  an  earlier  part  of  his  argument  :  that 
when  there  had  been  the  absolute  loss  of  a  ship,  the  damage  was 
simply  thf;  loss  of  the  ship,  plus,  perhaps,  the  interest.  If  we 
are  iii;l-.t  m  our  contention  with  regard  to  the  prospective  catch, 
that  distinction  has  no  weight  whatever  with  regard  to  this  case. 
The  "  Onward  "  was  a  vessel  of  :{.5.20  tons,  built  at  California  in 
IcSTl,  and  registered  at  the  time  of  her  seizure  in  the  name  of 
William  Spring  &  (."ompanj-,  and  was  really  owned  by  the  tirm 
of  Charli's  Spring  A:  Company.     The  amount  claimed  for  her 

.")0  value  is  ::*4,000.  The  counstl  for  the  United  States  claim  that 
she  is  only  worth  from  !i?2,-200  to  S2,.W0.  They  raise  the  point 
that  in  the  year  liSS4  this  vessel  changed  hamls,  being  sold  by 
the  old  firm  of  Spring  \'  Company  to  the  Hrm  of  Charles  Spring 
A:  Company  for  S2,200  ;  and  they  say  that  should  be  taken  into 
consideration  in  valuing  the  vessel.  I  contend  that  on  the 
((uestion  of  value  no  ile<luction  should  be  drawn,  from  the  fact 
that  she  was  taken  over  on  the  formation  of  the  tirm  of  Charles 
Spring  i^'  Company,  for  the  value  of  §2,200 ;  and  I  call  your 
Honors'  attention  to  the  Record  at  pages  87!)  and  880,  where  the 

GO  whole  transaction  is  fully  explained.  The  Record  explains  there 
that  tile  low  price  of  the  offer  was  undoubtedly  due  to  the  fact 
tliat  both  .Mr.  Lubbe  and  the  executors  of  the  firm  of  Spring  iV 
Coin|)any  wislied  that  the  vessel  should  be  transferred  to  the 
new  tirm  on  very  favourable  terms.     There  appears  some  little 


487 


(Mr.  IVters'  Second  Argument.) 

confusion  with  rcijanl  to  this  transaction,  and  to  correct  tiuit,  I 
will  state  the  fact>i.  Thev  are  a.s  follow.s:  William  Sprinj;  ii 
Company  consisted  of  William  Spring,  Theodore  Luhho  and 
I'eter  Francis.  (Hfcoi-d,  page  SSH,  line  4'7).  William  Spring 
died  in  March,  1SN4.  A  new  firm  was  formed,  called  "  Charles 
Spring  and  ('ompanv,"  consisting  of  Charles  Spring.  Alexander 

III  .MeL"an  dn<l  Pef(;r  Francis.  This  firm  took  over  the  assets  of 
the  old  firm,  and  amongst  other  assets  tlie  "  Onward  "  was  taken 
over  at  i52, 200.  The  small  price  was  e.xplained  \>y  Mr.  Spring. 
This  latter  firtn  continued  nntil  the  death  of  I'eter  Francis, 
which  occuiTed  in  tiie  year  I8S.0,  when  Charle.s  Spring  and 
Ale.sander  McLi'iin  l)oiight  out  his  interest  in  the  firm  for  a 
fixed  Slim.  A  memo,  of  the  wliole  transaction  was  taken  in 
writing,  as  will  appear  liy  reference  t'>  the  pages  mentioned. 
The  firm  of  Charles  Spring  and  Company  continued  until  the 
month   of   1)ecend)er,  l.SSd,  when   it   was  dissolved    by  mutual 

■20  consent  The  dissulution  was  put  in  writing — it  is  not  printed, — 
lint  it  contained  u  clause  by  which  each  of  the  partners  were  to 
retain  to  themselves  a  half  interest  in  the  net  amount  to  be 
recovered  or  received  on  account  of  the  illegal  seizure  and  deten- 
tion of  till!  schooner  "Onward."  It  will  be  unnece-ws'iry  to  refer 
to  the  rest  of  the  evidence  as  to  the  value  of  the  "  Onward,"  as 
a  reference  to  it  was  given  in  our  original  argument,  pages  104 
and  105. 

My  learned  friends  take  olpjection  to  the  item  of  !*2.'J2  for 
nine  canoes,  this  olijection  is  taken  at  page  'MH  of  their  arguiient. 

:i()  The  objection  is  ba.sed  on  the  evidence  of  Charles  Spring  "  that 
"  tlie  canoes  were  worth  anywhere  from  twenty-five  to  twi  'ty- 
"  eight  dollars.'  We  put  the  highest  figure  on  the  value,  and 
they  took  the  lowest,  and  we  think  we  are  entitled  to  our  con- 
tention in  that  regard.  They  also  say  that  some  of  the  canoes 
were  owned  by  the  Indians  and  not  by  the  owners  of  the  ship. 
We  say  that  it  cannot  make  any  difiierence  wiietlier  these  canoes 
were  owned  by  the  Indians  or  by  the  owners  of  the  ship.  They 
were  originally  claimed  for  in  the  claim  presented  to  the  Pari.s 
Tribunal,  and  no  matter  to  wdinm  they  belonged  we  say  it  was 

40  illegal  for  the  I'nited  States  to  take  them.  Whether  Spring  or 
the  master  of  the  ship  owned  the  cano.;s,  lie  was  actually  in  pos- 
session of  them  ut  the  time  of  seizure,  and  as  a  matter  of  common 
law  either  Spring  or  the  master  of  the  ship  would  be  entitled  to 
maintain  the  ordinary  action  of  trover  for  possession  of  these 
canoes.  These  canoes  were  actually  taken  out  of  our  possession 
and  we  have  a  right  to  claim  for  them;  settling  of  course  with 
the  other  j)arties  afterwards.  Objection  is  also  taken  by  counsel 
for  the  United  States  to  the  item  ciiarged  by  us  for  12  guns  at 
•S2.")  each,  apparently  on  the  grotind  thiit  the  pri,  u  i-    too   high, 

")0  although  that  is  not  very  clear  from  their  argumeiit.  in  Spring's 
evidence  he  .says  as  follows  : — 

"  Q.     What  do  you  value  the  guns  at  ?      A.     Taking  them  all 
"round  §2.')  would  not  be  too  much." 

The  counsel  for  the  Ignited  States  take  two  objections  to  thi-'. 
First,  that  some  of  the  guns  belonged  to  the  Indians,  and  second 
that  the  price  is  too  high.  A«  regards  the  first  objection,  the 
same  remark  which  I  made  with  regard  to  the  canoes  would 
apply  to  the  guns,  anti  as  to  the  second  objecti<m  I  leave  your 
Honors  to  deciile  on  Mr.  Spring's  eviilence.     Mr.  Spring  told  us 

(iO  that  they  were  breechdoading  guns  in  some  ca-es  and  in  other 
cases  muzzledoading  guns — but  in  reference  to  the  muzzle-loading 
guns  they  were  good  guns  of  their  class.  The  next  item  of  our 
account  objected  to  in  the  United  States  Argument  is  !?.jOO,  paid 
to  Mr.  Clarke  for  the  cost  of  the  defence  at  Sitka.     The  facts  are 


ii 


ii't 


isi 


,.:>l'i1l 


II! 


.M 


1* 


Ii      1; 


Ml     'II 


11 


~ 

■  i 

'-IP' 

4N8 

(Mr.   I'i'Ii'in'  Si'coiul   Ar;;iiin('iil.) 

tliiit  Mr.  Cliirko  wns  I'liiployeil  by  tlio  mnstcr  of  tliu  ship,  and  tin- 
KvidiTicc  of  h'lH  lir.Ht  I'lnployinont  \h  I'oiiinl  in  ii  IcttiT  from  Mr. 
Miinro  to  C'iiiirif.s  Spiiii;,',  diiteil  tlui  .'ird  of  Si^jjloiulier,  iHMi 
(Ut'cord,  pofjo  Hf^f)  (iiid  iS,S(i)  and  which  siiy.s ; — 

"  Hi-iny  in  a  striiiii;i'  place  I  thoii^jht  I  woidd  want  a  Jury,  hut 
"  nl'tiT  lii'inf»  k't  out  on  oiirown  rico^^nizunees  wo  .souijht  a  h.wycr 

]()  "  to  taki!  thi^  t'li.si!  up  for  uk,  n^jreeiri;;  to  pay  iiiin  !;«.'()()  in  inch 
"  cnsi".  They  apiicarcd  for  ns  next  niorninj;  and  dcuiHiidcd  a 
"jury.     The  'Tliornton  '  ease  wns  taken  up  Hrst.         *  * 

"  My  caHo  will  he  tried  on  the  (Itli." 

At  pa^o  SM7  of  tlic  Record  an(;thor  letter  from  .Munro  to 
Spring;  is  .sut  nut,  part  of  which  is  as  i"ollows: — 

"  iSince  writinj^  you  I  have;  hecn  tliiid<iutj  over  tliu  draft  1  ;4avc 
"  the  lawyer  on  you  should  feel  inclined  to  honor  it.  It  is  a  lariji' 
"  sum,  hut  if  I  lost  the  case  here  he  has  to  take  it  to  Oroj^on  for 
"  the  same  money. ' 

20  It  appears  that  the  Master  drew  on  Sprinj;  for  !?")()()  and  that 

Spring  refu.sed  to  accept  the  draft,  hut  that  he  was  afterward.-: 
sued  not,  as  the  I'nited  States  counsel  seem  to  think,  at  Sitka, 
hut  nt  Victoria,  foi'  the  atnount,  and  jiidjriiient  ohtaine<l  a;;ainst 
him,  which  has  not  j'et  hecn  )>aid,  the  fact  heinjj;  that  .Mr.  Sprini; 
has  not  hecn  able  to  pay  it.  It  ai.so  appears  hy  the  record  tiiat 
.Mr.  Clark  came  down  to  Victoria  and  there  considted  with  .Mr. 
Spring'  about  the  case.  This  evidence  shows  that  Mr.  ("lark  was 
employed  at  a  ti.\ed  sum  to  <io  certain  business,  which  he  did, 
and  it  is  also  clear  that  if   .Mr.  Sprinj,''s  cireunistanceH  allowed 

;{()  him  to  pay  the  anioiint  he  will  have  to  pay  it,  and  if  .Mr.  S|)rin^' 
obtains  his  claim  in  this  case  he  certainly  will  h  to  pay  this 
amount.      There  is  a  clitlerenco  of  opinion  bei  my   learned 

lri<!nd  and  niyseil'.     My  recollection  is  that  tl  is  that  he 

was  sued  and  jud;,'ment  was  obtained  aL,'ainst  hmi  at  \'ictori'.i, 
but  tlu!  record  is  not  very  clear  upon  that  point. 

Mr.  Warren  : — What  i)ai't  of  the  record  ilo  you  refer  to  show 
that  the  suit  was  commenceii  at  N'ictoria  :' 

Mr.  I'eters  :  —  I  say  that  the;  record  does  not  disclose  wIkic 
the  suit  was,  but  my  undtustandinji   was  that  it  was  a  suit  at 

40  N'iotoria,  however  that  is  immaterial.  Mr.  Spring,'  was  sue  I 
somewhere  and  Judy;ment  obtained  against  him  and  if  lie  is  able 
to  pay  it  he  will  have  to.  Now  the  next  item  objecteil  to  by 
the  I'idted  States  counsel  is  a  small  sum  of  SI")  paid  to  the 
Indians,  but  there  is  no  doubt  that  this  was  paid  as  was  shown 
by  .Markotich  v'vidence.  My  learneil  friend  then  objects  to  the 
amount  allowed  .Mr.  lielyea.  This  charge  of  Uelyea's  is  reported 
by  the  record  at  paj;e  .S71 — it  had  nothing  to  do  with  preparing 
this  case  for  the  Commission  as  is  shown  by  t';at  record,  it  is 
shown  that  at  the  time  the  agreenuint  to  i)ay  the  Sl.OOO  was 

50  niade  lU)  person  evtr  imagined  that  proceedings  were  to  be  pm- 
tracced  in  the  way  they  have  been  or  that  any  mi.xed  commission 
would  have  to  be  invoked,  (."ounsel  for  the  rniteil  States 
objects  to  the  pers  )nal  charge  of  .S'iOO.  This  is  supported  by 
evidence  at  page  87')  wherein  Sprinir  makes  this  statement  : 

"  Q.  Now.  in  atldition  to  that,  have  you  yourself  gfiiie  to 
'  any  trouble  and  expense  about  the  niatter  personally'  .\. 
"  \'es,   I  have  been  to  a  great  deal  i>f  ti'ouble. 

"  <j>.      Did  you   ha\i!    imicli   correspondence  ?     A.     Yes,    cor- 
.  '•  respondenee    with     ilill'erent    people    in    (!onnection    with    the 

(JO   ■'  matter,  bi  th  at  Ottawa  and  Sitka;  diU'erent  otlicialsuj)  there." 

I  contend  that  thei'e  is  no  reason   whj-   the    ])ers()nal  trouble 

that  the  owner  of  the  ship  was  put  to  should  not  be  compensateil 

for.  As  regard.s  the  objection  to  the  insurance,  the  same  remarks 

that  I  made  witli  reference  to  the  "  Carolena  "  will  apply  to  the 


W.) 


(Mr.  PcttTH'  Sfcdiid  Armiinciit.) 

"  Onwnnl."  \\v  oonti  rid  tliiit  tin?  in.-iiniiifi'  hIiouIcI  Ik.'  iillowt'd, 
iir  Ht  all  evcDl.s  if  nob  iiliowt'd,  as  itisiii'uiu!i>,  it  mIiduKI  Ik- addud 
to  tiie  vului!  of  tliu  siiip  us  II  vi'Hs(>l  itisiiri'd  in  Helirini^  Si-n 
would  for  sclliii;^  pui'pn>'i's  lie  worth  iiiori!  tliaii  a  vi's.scl  unin- 
sured, 

TitiiMiMr,   IhJSl). 

10 

Now,  your  Honors,  with  rc^^ai'd  to  tlii'  "Triumph"  of  ISS'). 
My  li-arncd  frit-nds  deal  with  this  ca.se  at  pa;;('  442  of  thi'ir 
ar^UMit-nt.  If  your  Htuiors  rcnu'inhfr  the  "  'i'riiniiph  "  was  ii 
M'liooner  owiuMJ  l)y  Kdward  (Jrowc  liakt'r  and  ci-rtain  otliiT 
parties  ainon;;st  whom  was  Daniel  Mclii'an.  The  "Triuinjjli" 
was  a  hiri,'e  ship  of  10(1  tons,  and  as  rej^'ai'ds  her  we  were  not 
left  in  doulit  as  to  what  shi'  had  aetualiy  cost,  oi'  as  to  wliut 
her  |)rovisions  and  outht  amounteii  to,  and  as  to  what  was  on 
hoard.     We   had  the  most  ahsolute  and    eompiete    infoi'uiation 

-"  upon  every  point  eonneeted  with  the  money  actually  expi'uded 
in  ruiniin^'  that  ship.  1  mu}'  remark  tiiat  my  leai'ued  fiiend 
Mr.  |)iekin<ion,  has  mudi-  uu  exiument  on  the  evi.lence  witii 
reiiard  to  the  "Triumph."  This  vessel  went  into  the  Hehring 
Sen  on  the  llthof  July,  hut  on  aecouut  of  tin-  warnin<,'  she 
iuniiodiately  came  out  of  tlie  sea  and  therehy  lost  her  season, 
and  we  claim  that  it  was  the  intention  of  the  captain  of  that 
ship  to  have  stayed  in  Hehrini^  Sea  until  at  least  the  end  of 
.Septeniher.  The  first  part  of  my  learned  friend's  argument 
with  i-ei;ard  to  this  in  an  attem  it-  to  show  what  we  had  no  rijj;lit 

;{(l  to  have  had  any  such  expectation,  and  in  doin;^  that  ho  refers 
to  Mr.  Haker's  evidence  at  442  of  the  Argument,  wherein  it 
appears :  — 

"  ().  Did  you  ;,'ive  him  any  instructions  as  to  the  time  that 
"  he  should  stay  in  the  soa  ?  A.  Well,  of  course  I  (nu  not  really 
"  jMs'uice  ti»  to  iiinlriuiioiiH.  I  was  simply  one  of  the  partnera 
"  mana;;inj^  the  atlairsof  the  schooner,  and  a  i;ood  deal,  necessarily, 
"  would  he  left  to  .Meliean's  discretion,  hecause  it  was  he  that 
"  ;,'ot  me  to  m;o  into  that  veiitni'e.  y<itii riilli/  I  irontil  lie  ipiideil 
"  III/ Ills    lejiort  (ts  to  the  (•ircaiitstmires  lelieii    lie   uvs  to  relani. 

40  "  liut  it  was  distinctly  understood  between  him  and  myself  that 
"  he  would  remain  there  to  the  very  last  of  the  season  tliat  he 
•'could  catch  seals,  M)  as  to  ascertain,  if  pos.^iWle,  how  loni;  tint 
"season  I'eally  did  aTid  (diild  last. 

"(^^.  Was  there  any  undei'staiidiiiLr  at  all  to  that  etl'ect  '  A. 
'■■  Yes  ;  hr  wus  to  I'eiiiain  there  until    late  in  .Se]itemi)er. 

"*}.  1'hat  was  fully  undi'i'stood  !■  .\.  l""ully  understood 
"lietween  him  and  uie.  In  fact  lie  wanted  to  Know  something;' 
'•  aliiMit  what  heeame  of  the  seals  after  they  jclt  the  Sea,  includ- 
"  inn  t-l"-'  Prihylof  Islands.  Jlc  irunteil  lo  ijo  on  n  liltle  eni/niie  of 

.")((  "  ilii  (ii'ei'i/  to  II  certitiii  extent,  iiiiil  tniee  tlieiii.  nitil  iinAmtilij  tto 
"  xoiiie  xeiil  i  III)  lit  the  mime  time." 

.\ly  learned  friiiid  italicizes  this  part  of  tht>  ipintation  from 
the  evidence,  hut  here  follows  a  jiart  which  he  does  n(jt  italicize, 
anil  which  I  would  like  to  have  italicized  and  which,  your  Honors 
MO  douht  will  see.  is  v<'iy  material  in  the  case. 

"  (^).  It  was  mentioned  helween  you.  or  understood,  that  Ii^- 
•■  could  stay  there  until  jiretty  late  in  Septc  iiihor  .'  A.  ()h.  yes, 
"The  previous  year  he  liad  come  hack  (to  \'ietoiia)  on  the  lOth 
•  of  Septcndier,    and   he  hail    fverythiiiL;  on   lioard  that     would 

IKI  '  eiiahli;  him  to  stay  there  until  the  end  of  the  year,  for  the 
"  matter  of  that.  " 

Here  is  the  detinite  statement  hy  .Mr.  Huker  that  those  two 
men  met  toi,'ether,  ami  that  it  wa'!  distinctly  understood  that 
Captain    McLean  was  to    I'emain  in  the  Sea  in  the  "Triumph  ' 


1 

1 

1 

^m 

'1 

iliii 


,  I'll 


.  I 


400 

(Mr.  Pet<  v»   Sl'CoiuI  Argument.) 

until  tho  end  of  September.     Look  at  my  learned  friend'^  coai- 
ment  on  tlitit  evidence — it  is  us  follows: — 

"  If  the  testimony  of  an  owner,  who  was  never  in  Behriiif 
"Sea  to  tho  eHect  that  he  had  instructed  his  captain,  who  was  a 
"  man  of  lon:^  expei-ience  in  the  sealinj^  busine.ss,  to  stay  in  th(! 
"  Sea  as  late  as  possiiile,  is  to  outweiu;!!  tho  positive  statement  of 

10  "  that  captain,  that  tlie  sealing  season  terminated  toward  the  last 
"  of  August,  the  opinions  of  all  thinking  minds  regarding  the 
"  weight  to  be  given  testiuiony  of  this  nature  will  be  disre- 
"  garded. " 

Wiiere  does  my  lerivneil  friend  get  tlu?  evidence  that  Mr. 
Baker  instructed  his  captain  to  go  on  a  voyage  of  di.scovery  ' 
On  the  contrary  as  your  Honors  will  see,  the  statement  i.s  that 
Captain  McLean  who  knew  all  the  circumstances,  and  who 
knew  the  Behring  Sea,  and  who  liad  been  there  tlie  yeai'  before 
exj)reHHed  his  desire  to  go  on  a  voyage   of  discovery.      It   seems 

20  to  mi-  tliat  my  learned  friend  has  taken  from  that  evidence 
rejilly  the  oppo.^ite  meaning  to  that  which  it  conveys.  My 
learned  frienil  goes  on  to  state  at  page  444  of  his  argument  that 
even  if  we  are  to  get  the  prospective  ratcii — of  course,  hi'  does 
not  admit  that  we  siiould  get  it — the  owner  of  the  'I'riumph  had 
made  a  contract  with  Liebes  \'  Company  to  sell  tlie  skins  for 
S(!.25  each,  and  that  therefore  he  could  not  get  the  actual  value 
of  the  skins,  but  is  confined  to  the  jirice  contracted  for,  and  must 
accept  less  than  the  owner  of  tlu'  "  .luanita"  or  the  "Ariel,"  or 
any  (jtiier  vessel  seizecl  in  ISSIt.     This  is  answered  by  our  argu- 

30   ment  at  page  147,  where  we  say  as  follows: — 

••  Anothc''  (|Uestion  raised  was  that  bi'l'ore  the  commenceineni 
"  of  the  season  of  ISS!),  Bakei'  had  entered  into  a  contract  with 
"  l..iebes  1.V  Co,,  to  sell  his  catch  at  !5<1.25  a  skin,  and  it  is  cliiiiiicd 
"that  no  more  can  be  recovereil.  A  sutKcient  answer  will  1k' 
"  f()U!i<l  in  the  fact  that  the  contract  with  Liebes  \-  Co.,  was 
"subject  to  certain  conditions  whicii  were  of  an  onerous  nature, 
"  namely,  the  s  ■uding  of  a  steamer  to  .some  point  near  liehriiig 
"Sea,  t)  take  M  transl'ei- of  tho  'Triumph's'  catch  and  bring  it 
"to  Victoria.     This  condition  was    made  necessary  through  fear 

4,0  "of  seizure,  it  woulil.  therefore,  be  manifestly  unjust  for  the 
"  Cnited  .States  ( ioM'rnmeiit  to  claim  th>'  benefit  of  ;i  contract 
"  wliieii  wotiid  never  iiave  been  entered  into  if  they  had  not 
"comniitteil  and  tlireiitened  to  repeat  acts  ■now  deelareil  by  the 
"  j'aris  Tribunal  to  liave  been  a  breach  of  inti'rnational   law." 

As  a  matter  of  fact  the  contr;iet  was  not  fulfilled,  and  .Mr. 
Baker  was  not  in  anyway  bmind  i)y  it.  i*'il'ty  things  iiiigiit 
have  lijippened  wiiy  tii.-it  contract  might  not  t)e  i'ullilled,  iind  it 
sei'ins  to  me  that  tlie  "  Triumph  s"  citeii  shou  Id  be  plaeeil  ill  the 
same  jiosition  as  the  catch  of  any  other  of  the  vessels. 

,50  At  hiilf  piist  four  o'cloi-k  the  t.'ommissi<iners  rose. 


Commissioners  Under  the  Convention  of  February  8th, 

1896,  betwean  Great  Britain  and  the  United 

States  of  America. 


•20 


:«) 


411 


.)() 


Li'ijiHlntivL"  Counei'  CliiimbLT,  I'rovinoi.-il  Biiildiiiji;, 

At  Halifax,  N.  S.,  SopUnnhcr  lOtli,  1807. 
At  olovon  o'clock  tho  C(,:uiui,ssioiiers  took  tlieir  .seats. 
^Ir.  Pftcrs  (cotitinuinjr) : — 

When  tiu'  fouit  adjourned  yesterday  afternoon  I  was  proced- 
in;,' to  consider  the  case  of  the  '■  Trimnpli,"  and  had  made  .some 
proj^ress.  In  this  case,  a.s  in  the  others,  a  claim  is  made  for 
prospective  catch,  and  there  is  one  remark  I  would  like  to  make 
ill  rej^anl  to  that  item,  arisinj;  fi'om  the  statement  made  by  my 
JeMrned  frienil  on  the  other  si.le  in  his  written  ar;,fument,  which 
did  not  particulai'ly  strike  me  wlien  1  was  speakini;  on  that 
point  <;enerally.     It  is  at  paj,fe  2.5.S  of  his  ar<;nment : — 

•■  Wlieti  the.se  claims  were  orij^inaily  presented  to  the  United 
"States  in  the  case  .)f  (Jreat  liritain,  submitted  to  the  I'aris 
'■ 'I'libunal,  til"  method  of  reachini;  an  estimated  catch  for  the 
'•  the  claimants  of  IfSSt!  was  by  means  of  a  computation,  ba.sod 
"  upon  the  avei'Hi^e  number  of  seals  .secured  by  tliirteeti  vessels 
'■si'alini;'  in  that  year.  Why  this  method  was  aband(jned  on  the 
"])artol'  (Ireat  liritain  is  ajiparent  from  an  examination  of  the 
"data  for  IHSO,  which  is  printed  in  a  table  attache(l  to  the  British 
"arjfiiini'nt.' 

My  learned  friend  rather  asks  foi-  aii  explanation  as  to  why 
V  r  chanijed  the  mode  of  computation  which  was  ori;;inally  put 
forward  in  the  claims.  The  claim  was  orij^'inally  insei'teci,  as 
will  appeal'  by  referrinij;  to  any  one  of  thi'  oriijinal  claims,  for 
iiist.Mice,  the  claim  put  in  the  "CaroU'na  '  case  in  the  following 
I'cirni: — • 

'  Number  of  seal  skins  taken  b\-  each  of 
"the  foUowini;  thirteen  sealinjf  vessels  diirinjf  the 
"  year  ISSli  in  and  about  the  Behrinij  Sea,  le.ost 
"of  the  s:iid  vessels  leaving;  the  Sea  before  the 
"  end  of  seasiin  fearinj;'  ca|itiirr.' 

.Vnd  tlirn  a  list  of  some  thirteen  ■  •  s^ids  is  tjiven,  siatinj^,  for 
iiist:ince,  that  the  '  rathlindcr"  e'ot  ■  many,  and  the  "  .Mary 
Kllen"  SI)  m;iny.  and  j;ivinjj  a  full  list  of  the  total  number 
ciuyht  by  each  vessel.  The  tot'il  catch  of  the  1:5  is  found  and 
the  sum  divideil  by  |:!,  thus  ji'ett inn' the  averaee  per  ship  That 
was  the  way  it  was  put  in  the  orjeinal  scheilule,  but  when  we 
came  to  e;ive  evidence  at  N'ictoria,  it  .it  once  became  apparent 
'liatto  estimate  the  catch  to  be  made  by  simply  !.;:-.kiii;;  .it 
wliMl  one  vessel  cauelit  an<l  com]mrine-  that  with  another,  could 
nit  hi' ,.|s  satisfactory  or  fair  a  nu'lhoil,  because  (he  ditrer<'nt 
till  \i-isels  were  possesseil  of  ditlerent  out  tils,  Koi  instance,  .some 
\issels  woulil  have  more  boats  and  more  canoes  than  others,  and 
llierefiire  We  found  it  necessary  to  come  down  to  some  method 
111'  >aiculation  which  would  be  based,  not  so  much  upon  the  fact 
iliat  one  vessel  caiie'ht  so   many,    but  showine-   the  oiitlit  of  the 


!»!! 


jlf 


:iii;t 

lilt 


■-.tr 


:i.«jM.|i 


!    I 


■  i  ■  • 


|i      li 


li 


■.flMHIJk^.  v,vp  ^,T^. 


402 

'Mr.  Pi'ters'  Second  Arjjurneiit.) 

partifular  vi'ssd,  I  tliiiik  this  iitt'onlH  a  reasonable  explanation 
why  we  have  departed  from  tlie  ealculation  orijjinally  niaih",  and 
why  we  ha\e  soiii;ht  t.)  f^ive  tlie  Connni.sHion  evidenee  tli.il 
would  fmther  elneidate  onr  position  and  {jive  the  t'onmiission  a 
better  data  npon  which  to  base  their  decision.  While  on  the 
subject  of  estiinateil  catch,  a  c|nestii)n  was  put  yesterday  by  the 
10  Honorable  C'onunissioner  loi' the  Initeil  States,  to  winch  I  wisli 
to  refer.     Weclaini  that,  if  we  are  entitled  to  the  estimated  eateli 


It  all. 


we  are  entitled    to   receive    the    i;ro.ss    value  of   tlie  skins 


without  making  any  rlecluction  for  lay  of  hunter,  waii'es,  etc. 
As  I  undeistand  the  ipiestion  of  the  learned  C'oinmissii)ncr,  h<> 
wishes  nie  to  {^ive  om'  \  iews  as  to  whether  instead  of  jiettin^- 
the  i^ross  value  of  tile  skins  we  are  not  limited  to  the  net  vahic 
The  C'oninii^oioner  on  the  jiart  of  the  United  States  : — \un 
claim  to  represent  the  hunters  with  rcfereri.'iice  to  each  vessel  :* 


-Ml.  Pet 


er,' 


U 


le   owiieis 


crew  ami  hunter> 


20 


Tile  t'oniniissioner  on  the  part  of   Her  Majesty  : — That  da 


III! 

is  ill  terms  put    forward  with   rc^^ard  to  several  of  the  vessels  if 
not  all  of  tliem. 


Mr.  Peters: — I  think  as  rcLfards 


)f  th 


that 


Mr.  Dickinson  : — In   just  three  I  think  vour  Honor  will  HikI 


claim  maile. 


Mr.  Peters  : — I  submit    that    it  is  made  in    respect  to  every 
L'laim.     I  know  it  is  not  e.spresseil  in  every  claim  in  the  waj"  it 


IS  ina-Je  in    r,ome    c\ 
sliiij. "     J!ut    the    tti 


vah 


(Jn     behalf  of  cr 
:-l 


ew     HUil  owners  o 
ue  is    claimud    in    everv     instaiici' 


,S0  My  learned  friend,  with  reejard  to  some  of  the  items  of  our 
claim,  aises  the  objecti(jn  that  tiie  items  were  not  included  in 
the  claims  a"*  presented  before  the  Paris  Tribunial,  and  he  ar^'ucs 
that  they  are  not  properly  before  this  Commission. 

l>ut  with  re;,'ard  to  the  item  now  under  consideration,  that  is 
our  rie^ht  to  obtain  tiie  jjross  catch,  it  was  put  in  in  the  orif^inal 
schedules,  and  therefore  that  contention  cannot  avail,  m\-  lennied 
friend.     In  order  to    see  that  I  nm  rij^ht  in  the  statement  thut 


th 


lese  wert-  included,  1  have  looked  at  the  claims  this  mornui';  am 


I  Hi 


the  case  of  the  "  Carolena,  '  for  instance,  the  I'l 


L-ulch 


40   is  put  as  f( 


Estimated  catch  for  bSNii."     That  is  tiie  \\a\ 


tl 


le  claim  h 


put 


Tl 


le  claim   was  made  \ip   in  this  \M,y  :  liist 


the  value  of  tlie  shi|),  then   the    value  of   the  (Hittit  —  what    they 


unciinsuma 


bh 


>f  all  kin 


ipp 


IS  a  fad  this  item    inclinles  a 
to   1m 


II  tl 


le  on  the    "  Cnroleiia 


Kxliiliit  \.     to    ftri'dmd    schediiK 


aiu 


1   tl 


u  n 


,lien 

tl 


le    nlittit 
seixed. 


le    wnL'is 


.f  th 


Vt'sse 


thr 


nifii    tl) 
wIimI 


at.' 


cif  seizure. 


d   otl 


ler    Items    «ri'    c 


har- 


ded 


u 
the      valllft     roiisiiniei 


p,    and     then     they    dediRt    li 


for  ])articiilars  of  which 
""      "'  It 


I      d 
L'ludl 


Ul  IIIL 


th 


iholi 


viivnee. 


lie  to  onuinal  claim.  e.\ 


liiliit 


.")()    F    (Note  the    wnees   included    ai  e  i  lliy  to  date    ( 


m).  Tl,' 


ilfdiiction   bir    wai/es  was  men 


Iv 


a  cross  eiiirv  am 


1    th 


ma}'   be  -aid  with  the  ileduetiiin  for    roiiMimable  oiittit  as  it  Wiis 
charged  in  the  second  item  claimed  wiih  regard  tu  the  (stiuiiitd 


flit 


lire  c;itr 


le  claim  tormnlU  .  Vv  as  anil  now  is. 


the  wl 


estimated  eati'li,   the    'friiss   sniii. 


Tl 


ri 


an 


to  tl 


II'  ease 


if  th 


t  liiwaii 


\.< 


which  IS  hilt  III 


le   same    mav 


lasis  ami  the  same  with  leeanl  In  the 


Tl 


th 


lid  with 
aiiii' 


lOl  llinn       W  lileii    Is  ell 


the 

the 


■asis. 


Tl 


le  n 


ference  to   the  "  t'ar(deiin. 


aceOK 


line  tl 


pau;lll;,' 


1 


iiive   liere.   IS  a 


t  jia;.'e     I    of   tl 


lesff    e 


.xhibits.      1    Mil 


(10    not  sure  wliether  it  is 


I  refer  first  to  the  c; 


me  paeinu  which  your  lienors  h«\i 


til 


fail 


in   that   clam 


stimnt«  fur  tl 


■  frills  ea 


tcb  of  IS.Sli,  '  Kslimatei 


,tel;  for  iSSd 


l?l(),()i)0."     Till  II    a    dediiit  ion     is  imu 
value  consniiied     diiriiiL'  the    vuvnire.' 


le  fi 


that 


iuetiii'j 


hen  as    iveanls 


til' 


4!)3 

(Mr.  Peters'  Second  Arjfuinent.) 

"  Tliornton,"  at  page  5,  it  is  put  in  exactly  the  same  form. 

The  (Jnmiuissioner  on  the  part   of  Her  Majesty  :^The  same 
applies  to  aii  tiie   Warren  vessels? 

Mr.  Pi't'.'r-i : — V'os.  The  jrross  estimated  catch  is  claime.l  in 
every  case.  In  our  arguuient  particular  attention  is  called  to 
this  point  and  we  have  referred  to  several  cases  where  they 
10  went  furtlier  than  that,  and  claimed  not  on!)'  for  estimated  catch 
hut  expressly  st  ited  that  thoy  were  claimini^  on  behalf  of 
owners,  croiv^  luid  hunter.^.  \Vhile  it  is  not  expressed  in  so 
many  words  in  each  case  it  is  clear  that  what  we  were  claiming 
before  the  Paris  Tribunal  and  herj,  is  for  the  total  f.;ross  aujount. 
Now  tile  oi)jection  tliat  my  learned  friend  tikes  to  other  items, 
as,  for  instance,  "  Hardship  ti  the  crew  .iJ.JOO.OO  to  each  man," 
is  that  such  an  item  was  not  placed  before  the  Paris  Tribunal 
and  therefore  cannot  be  brou..;ht  before  this  tribunal.  'I'he 
nljjectioii  [  have  shewn  <I()es  not  applj'  to  the  claim  for  j^ross 
'20  catch.  The  piiint  Hu;,f^;e,sted  is  that  we  should  only  j;et  the  r.et 
valut!  of  estimate(l  catch,  ileductins^  from  the  j^ro.ss  tlu?  lay  of 
hunters  v.;::;:' ■.  vt:-.  Mr.  Beiiiue  lias  fully  stated  our  eontention 
on  this  point.  1  shall  therefore  content  myself  by  merely  stat- 
\u^  oui'  position. 

Article  1  of  the  treaty  .says:  "  The  hii;h  contracting;  parties 
aj^ree  that  all  elainiB  on  account  of  pensons  in  whose  behalf 
(ireat  i^>ritaiii  is  entitled  to  claim  compensation. — .so  that  we  are 
dealinj;  with  the  claims  of  all  pei'.sons  on  whose  behalf  (Ireat 
ih'itain  is  entitled  t<>  claim  compensation.  .\iid  we  say  that  it  is 
;i()  not  only  the  owner  and  master,  hut  the  crow.  And  we  can  show 
by  the  eviflence  that  some  of  these  men  made  a  very  lar^e 
amount  of  money  on  account  of  the  s(>als  killed  by  them.  Some 
of  the  men  unde  a  coiifjle  of  thousaiuls  dollars  in  a  short  lime,  and 
several  of  tlie  men  made  hnndri'ds  of  dollars  in  a  few  days. 
We  say  that,  by  reason  of  these  seizures,  these  men  were  pre- 
veiite;!  from  makinj;  vii-y  larjje  -^ums  of  money. 

.\rticle  1  continues  as  f()llo\'  "  Appemled  to  this  t'onven- 

tiou  is  a  list  of  claims,"  Now  ail  these  cases  are  in  this  list  of 
elaims,  and  the  names  of  the  vessi'is  are  mentioiiid,  'I  he  claim 
■4-()  is  simply  named  in  the  list  by  the  n.ime  .I'  the  vessel,  and 
the  el.iim  is  to  compensate  all  persons  on  whose  behalf  (in. it 
j-iritain  is  eutitleil  to  claim  com[)i'nsation,  by  reason  nt'  the  seiz\ii  i- 
of  each  ship  named  ' 

The  ( 'onnuissioner  on  the  part  of  the  United  States  : — ^'ou 
do  not  say  that  we  are  bound  to  hunt  out  each  claimant  your 
proposal  is  that  the  ship  represents  the  whole  claim  ^ 

Mr.  i't'tera: — -^'es,  of  course  the  ( ioverument  of  (Ireat  hiitain 
will  have  to  see  th;it  the  motley  is  distributeil  properly. 

Take  the  ( "osta  Hieacase;  the  ai'bitrator  oives  so  much  to 
■")(•  the  master,  and  so  much  to  the  crew.  We  know  in  this  case  that 
so  iiiueh  money  should  be  jfiven  and  it  will  be  tor  the  jfovern- 
ineiii  of  (ireat  Hritain  to  see  that  the  projier  persons  jjel  the 
money.  I  do  not  think  that  we  will  h;i\c  any  diltieulty  on  that 
]ioiiit. 

Now,  while  1  am  on  that  )ioiiit  of  esiim.ited  ealili.  I 
wish  Id  say  that  1  told  my  le.nin'il  friend  tin'  nllier  day.  th.il  if 
I  hail  any  other  auth(M'i'.y  on  the  ((iii'sl  ion  of  i;ii  .ni  imi  I  would 
nieiiliiai  it  before  he  was  called  nimii  to  speak,      [  have  sini'e  lli.-it 

t  illie  fiiliud  line  ea  :  •     wliii-ll     seems    tn    hi-    X'TV   |irllillrllt      In    the 

(in  rni|uiry,      I  vel'er  to   the  case  nf   |).>imis\s.  M.'.l^^iii'M.  10   .\il,iii, 
|:>N.      Till'  ease  was  as  follows  :  — 

The  ,-ietiiin  was  one  brouii'lit  by  the  master  of  a  whaliiijx  ship 
a;;aiiis(  the  owners  of  iheNliip  for  wroii^i'ful  dismissal.  Hi'  was 
iiiiployed  to  ^'o  on  a  wlialin;:,'  Miya^e  that    was  to  last  sonie  ti\e 


V  I 


\ 


L;|:.. 


MM 


II     II 


Ml  ^|i.( 


ii 


WWB^^^BfTT^ 


494 


(Mr.  Peters'  Second  Argument.) 


veiirs,  anil  l)v  ttie  ti 


ii    h 


lovin  Mit  lio  was  to  rfcivc  a 


ccrtiun  shan 


tl 


le  eirriini's    o 


f    tl 


ic  vessfl 


If  tl 


11'  vessel   ijot 


S<7(),()()()  worth  of  oil  foi-  ex-nn[)le,  he  was  to  ;;et  so  iniieh  :  if  shi 
fjot  i?.Sl),()0!)  wortli  lie  was  to  ;^et  so  miieh    ni')r(v      The   more  sh 
the  vessi'l  ;;\)t  tlu'  iar^;- T  share  li 
at   the  en!    of  t «"o  vt-irs  ami 


was  to  I'. 


■t.  H( 


disci 


larjiet 


iji'oiiii'lit  ai'tioM    aiiairist    ti 


IC 


10  owners  of  tlir  shi 


(iO 


ai'tioii  he  elainii'l  two   elasses  of 
oarniniTs  hi'voiid   1 
the  time  of  his    dis 


iirj)ro|ii'riy  disi'h'U'ijiiiif  him,  and    in  thai 


i^'i's.      h'irst,  for  the  I'xt 


ra 


lis    waives    wiiieli 


■i  I 


)"en   eai'nei 


SivDiid,    damay;e- 


i  1)V  1 
<r    the   1 


nm  to 

OSS   of 


prospective  earninj^s.  whieii  it  mi^ht  1)-'  supposed  he  would  havi 
miide.  if  lu'  hi  1  conlin.H' 1.  The  objection  wa-s  tikea  hy 
Mr.  Dnd^e,  counsel  for  the  di'femlant  :  — 


The    ftiturt 


profits 


ure  earnniirs    ol    the  ship    were   mere    eontinifeiit 

nd  the  plaintirt's  elaim  to  shar(!  in  them  is  to  share  in 

pnssibh;  ])roHts    wliicli    he  mij;ht  have  made  out  of    possible 

20  "  future  catch injjs.     Tliere  could  bi- no  ailecpiate  or  trustw(jrthy 

"basis  upon    which  a   computation  of  such  damajfes  could  be 


founded.     For    au^rht    that    c: 


,de    to  appi-ar,  tl 


plaintitl"  was  bi'iietiti' I    instead  of  injured,  by  savinj;  his  tim 


ami  lal):)r  for  the  uncx 


d 


ortion  o 


f  tl 


le  contract. 


Mr.  Justice  Hii^clow,  ^^ives  thejmlijment,  and  I  refer  to  what 
he  says  at  pa<;e    142:  — 

"  We    think    it   eipially  cl(>ar  that  the  plaintirt'  is  entitleil  to 

"  recover  in  this  aetion  his    share   or  proportion    of   the    future 

"profits  or  earnings  of  the  vessel  after  his  di.schargn  by  the  de- 

30  "  lendants.     These  constitute  a  valid  clain.  for  ilamaires,  because 

"  the  parties  have  exijressiy  stipulated  that    profits    shall  lie  the 


)asison  winch  a  ] 


tion   of  plaintiff's   comiiensati 


lor  ser- 


'vices  slioiiM  tl '  reckoned.  These  e.irnings  or  pi'olits  were 
'therefore  in  l^irect  contemplation  of  the  parties,  wiien  the  con- 
'  tract  \Trts  entereil  into.  They  are  undoubtedly  in  their  nature 
'contingent  and  speculative  and  ditlicult  of  estimation;  but, 
'being  made  by  express  agreement  of  the  parties  of  liie  essen'-e 
'  of  the  contract,  wi'  do  not  see  how  the\-    can    be    exchide(l  in 


asceitaining  the  compi'iisation  to  which  the  plaintitl'  is  .■ntitled. 


40   "  Would  it  be 


I    bar  to    elaim   for  damages    for    breach  of 


articles  of  co-p  irtnership,  that  the  pr'otits  of  th(»  conteinpliteil 
business  were  uncertain,  contingent  and  difficult  of  proof  and 


could  bi'  lieM  for  this  reason  that    no  ri'coverv  con 
•h  of 


had 
li 


case  ot   a  breach  ot   such  contract  '  ( )r  iii  an  action  on  a  policy 
of  insurance  on  profits,  would  it  be  a  valid  flei'eiice  in  the  event 


)f  I 


OSS  to  sa\'  that  no  ijamaires  eouf 


•1,1 


d 


P' 


I  b. 


cause  the  subject  of  insurance  was  merely  speculativt>  and  ti 
d.'ita  o!i  whieb  tin-  profits  must  b 


calculateij  were  ne 


•ssaril\- 


inadeiiuate  a; 


insufh'ieiit  to  constitute  a  sat 


oisis  on  will  'h 


to  rest  a  claim  for    indemnitv. 


Tl 


le 


.answer    is. 


that 


tl 


case 


uncei't'un  am 


e  |i,irties  li,i\iiig  by  their  contract  adop 


d 


in  such 


1  cant  iiigent, 


iii'ciilatue    measure  ol 


must  ;ll)ii|e  liV 


il,  and  coiirls  and  Juries  must  approximate  .is  nearly  as  p  issible 
to  the  truth  ill  eiideii voriiig  to  ascertain  the  amount  which  ,i 
'  party  may  be  eiit  itled  to  recover  on  such  a  cnntr.act  in  tlu' event 
of  ,1  breach,  if  this  is  not  the  rule  of  law  weilonot  sei'  that 
there  is  any   alternative  short  ui  deeliiring  that  when^    ]iartie,s 

'negotiate    for  coni|iensati r  indemnity    in  the    form  of  an 

'agreement    for   prolits  or  ,i  >baie  of    them    no    recovi'i'v    can 


had 


)ii    siK'h    a  contract    in  a    court  of  law— a  or 


proposition 


which  is  manifestly  absur<l.  There  are  doubtless  many  cases 
where  no  claim  for  a  loss  of  |irotlis  can  properly  constitute 
an  element  of  dainag'  in  an  action  for  breaeh  of  a  contract. 
These,  however,  are  e  i-,es  in  which  thiM'c  was  m    sii])iilation  for 


406 

(Mr.  Peters'  Second  Argument.) 

"componsiition  by  11  .sliivri' of  tl)o  profits  and  wliere  they  were 
"not  witliiii  the  ediiti'iMiil.it  ion  ol'  tlic  piiitics,  and  did  not  i'orin 
"a  natural  iicccssai'v  of  niDxiniati-  icMiilt  ol'  a  l)icacli  of  tliecon- 
'■  tract  di'i '.ircd  nn.  Imix  \s.  Harding,  7  ( 'iisii.  5l(i.  Hut  these 
'•  cases  ai'i'  no  aiilliii  ity  lor  the  Kroad  proposition  tliat  in  no  case 
•  wliateviT  ;';»n  ))i-otitsijc  ini'luiled  in  cshniatin^'  dania<;('s  for  a 
10   ••  hrcacli  of  a  couirart." 

And  then  lie  cites  iirown  \  s.  Snnth,  and  iin  sa\'s  t)nit  tins 
il('ci-.ion  stands  upon  the  ^'rounds  tliat  tiiei'e  was  no  .-itipulation 
ciinei  1  ninj,'  tlie  prolils. 

Tliere  is  anoiher  case  of  I'ciiston  ct  ill  ex.  State  Rijflits,  quoted 
in  Orahlie's  llepoit-i,  pa^e  '22.  'I'liis  was  a  c(j|li-.ion  case.  It 
was  ailejied  that  the  coili-inii  took  ]ilaee  lietween  two  vessels 
maiiietinir  in  a  line  of  jiassenijer  trallie  tip  a  certain  river,  and 
it  was  alleged  that  the  collision  took  place  purpos(dy,  with  the 
olijeet  of  preventing  one  ship  fron»  carrying  on  the  business. 
20  At  page  42,  the  Judgment  was  given  : — 

The  Connnissioner  on  the  part  of  the  United  States  : — Who 
was  the  judge. 

Mr.  Peters  : — Judge  Hopkinson.  This  was  in  Pennsylvania. 
The  judgment  is  very  lengthy  and  seems  to  be  very  well  argued 
out. 

At  page  42  the  Judge  saj-s; — "Taking  the  facts  of  this 
case  to  he  as  the  witnesses  have  testitied,  and  I  can  have  no 
other  knowledge  of  them,  I  do  not  see  how  the  inference  can  be 
avoiiled,  that  at  least  as  to  the  afi'airs  of  the  thirtieth  of  May 
."SO  and  the  thirteenth  of  June,  the  attack  upon  the  "Linnaeus" 
were  irilfid  and  mulicioun,  and  a  mo-^t  unjustifiable  use,  on  the 
p.irt  of  t'aptain  Allen,  of  superior  powei-,  to  injure  and  crush  a 
weaker  rival.  If  such  were  not  the  fair  and  unavoidable  de- 
duction from  the  circumstances  of  the  several  transactions,  the 
express  declarations  of  t'aptain  Allen  would  remove  all  doubt  on 
the  subject.  H(!  never  seems  to  have  sought  to  shelter  himself 
imder  any  apology  from  accident,  or  the  necessitj'  of  his 
position. " 

Then  at  page  41?  lie  says  : — '  Again,  it  is  saiii  that  in  the  case 
40  ,if  collision  of  vessels,  tliere  can  be  no  I'eeovery  beyond  the 
actual  damage.  This  may  be  true  in  eases  of  rcutd  niHjIiiji'nce, 
or  iriint  of  (hie  d:'dl  and  cave,  by  which  the  Injwry  omtrreil,  hut 
Clin  hdfdti/  he  applied  to  a  case  of  a  n:ilful  and  malicious  a.s- 
Kdnlt  upon  the  property  and  riijhtu  of  another,  with  a  direct 
view  to  ]iroHt  and  gain.  The  injustice  is  manifest,  of  putting 
siu'h  a  ease  up m  the  same  footing  with  one  of  mere  want  of 
care  and  skill. 

.Vml  again  at  p.ige  47,  he  gives  this  n^ison  :  The  damages 
which  are  called  exemplary  are  nothing  more  than  a  high  and 
"lO  exaggerated  estimate  of  the  wrong  or  injur\-,  which  courts  and 
juries  take  upon  thems(>lves  to  allow,  bringing  into  the  calcula- 
tion, not  a  new  and  distinct  injury,  but  sDinething  beyonil  the 
mere  pecntnary  loss  or  personal  sutl'ering,  still  belonging,  how- 
ever, to  till'  original  iiijniy  and  to  no  other.  I  woidd  instance  the 
cnses  of  arri^st  by  a  general  wari'anl  issued  by  a  Secretary  of 
Stuti':  in  which  enormous  danniges  were  given  by  the  jin'ies, 
and  allirmed  by  the  court  although  the  jn'i'sotiKl  sutlering  was 
ie;dly  nothing,  but  the  essential,  invaluable,  political  rights,  and 
liberty  of  the  pl.-untill' were  supposed  to  have  been  violated,  and 
""  this  wrong  was  added  to  the  jiersonal  iiijiu'v  as  a  p.'U't  of  it.  'J'liis 
ocnu'LTcrated  estimate  (d'  the  damages  of  the  tort  which  is  the 
ground  of  the  action,  is  generally  resorted  to  on  some  principle 
111'  public  policy,  as  in  the  cases  just  nientioiUMl.  So  in  the  case 
h1'  nn    atrocious   and    dangerous    libel,    the    real    injury   to  the 


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(Mr.  Peters'  Second  Argument.) 

plaintiff  tnay  be  inconsiderable,  but  the  preservation  of  the 
yuhlic  pence  cail.i  for  n  liij^li  estimate  of  tlie  wroiif^f,  that  private 
revenije  may  not  be  resorted  to  for  such  injuries.  Contteiiuenlial 
ilamiKjes  are  of  a  diH'erent  character;  they  ai'ise  from  a  new- 
injury  .su.stiiined  in  consequence  of  the  first  wron^.  and  derived 
from  it,  but  which  is  not  inseparable  from  it,  but  may  or  nuiy 
10  not  have  happened  accordinj^  to  eircunistanees.  Such  was  the 
case  cited  from  Jacob.son,  .'{28  ;  in  which  a  vessel  was  so  damaged 
by  beinij  run  down,  that,  in  retiltinif,  she  lost  the  tide  and 
was  taken  by  a  privateer.  Ilt'r  eapt<ii'e  was  the  consenueiiee 
of  the  first  wroiiLT,  but  not  a  part  of  it.  I  think  therefor,  that 
it  is  not  le!i;ally  correct  to  say  that  a  court  cannot  nive  exemjilary 
damau'es  in  a  case  like  the  present,  against  the  owners  of  a  vessel. 
If  any  dama^'es  may  he  awarded,  the  sound  discretion  of  the 
court  must  be  exercised  iti  ascertaining^  them.  Then  he  proceeds 
to  say  at  pa<,'i!  48  ; — "  In  a  case  like  this,  the  actual  dainas^e  is  not 
"  limited  by  the  cost  of  repairing  the  bi'oken  parts  of  the  bdnt. 
"The  loss  of  business  by  laying  her  up  for  repair,  by  prtventiiig 
"  passengers  from  gt>ing  in  her  on  account  of  the  danger  anj 
"  alarnisof  these  collisions. areproper  items  of  charge  in  estimating 
"  the  diimages.  Hut  I  can  hy  no  means  ajiproaeh  the  aniouiil 
"  which  the  libellants  have  imnginedthey  are  entitled  to.  1  shall 
"  do  what  on  my  best  unilerstanding  all  the  circumstances  of  the 
"  case,  I  think  its  truth  and  justice  reiiuire  of  me. "  Now,  passing 
from  that  point  I  would  bring  your  Honors  attention  to  a  special 
(piestion  raised  in  this  case,  to  which  leference  is  made  by  my 
learneil  friend  in  his  argument,  at  page  iA'i  and  44(1  wliere  he 
states : — • 

"  The  United  States  contends  that  Darnel  McLean  who  was 
"the  ownerof  twenty-two  shares,  or  one-third  of  the"  Triumph' 
"can  be  awai'ded  no  sum  for  damages." 

McLean  became  a  naturalized  citizen  of  the  United  States  of 
America  on  the  .")th  <lay  of  Detober,  KS.S2.  Without  obtaining 
the  consent  of  the  1 -nited  States,  "  that  is  the  point  I  wish  to 
call  attention  to, "  atul  the  United  States  not  having  consented 
to  his  throwitig  otl'  allegiance  to  theii'  (iovemment,  Mci..i'un  on 
40  the  Jtith  day  of  Octoliei-,  l.S8(i,  made  a{)plication  for  and  reeei\ 
papers  declaring  him  to  be  a  naturalized  subject  of  (ireat  Hritaii.. 
On  the  7th  of  Septendier,  1892.  lie  made  an  affidavit  that  he 
was  a  naturalized  Anu^rican  citizen. 

The  laws  of  the  I'ldted  States,  the  decision  of  its  courts,  and 
the  establislu'il  law  of  nations  bearing  upon  the  eitizenshiji  of 
McLean,  and  his  right  to  recover  damages  for  an  act  committed 
in  violation  of  the  sovereign  rights  of  the  (lovernnient  of  the 
Uidted  States  ami  the  niunieipul  law  of  the  country  to  which  it 
is  claimed  he  owe<l  allegiance,  ha\e  been  heretofore  di.-cu.'-sed  at 
oO    length  and  the  position  of  the  bin*  •  I  Stutis  detihtd. 

N'ow  the  position  taken  tlieie  is  that  McLtan  had  ro  right 
as  I  undeistatid  it,  to  be  re-naturalized  in  (beat  Itritain  without 
first  obtaining  the  C(insent  of  the  United  Slates.  1  piopcM' 
shortly  to  deal  with  that  pi(i|iosiii(ih.  1  will  first  itfi-r  \our 
Honors  to  the  treaty  of  |S7I),  whieh  is  fnuiid  in  "  'I'lmtie-  mil 
Conventions  between  the  I'niteil  States  ami  other  I'owt  rs,  at 
paiie  470.  Article  1  of  that  treaty  pidvides  foi-  nai  iirali/aiioii. 
Article  2  of  the  treaty  authorizes  certain  jieisons  who  were 
nutnralized  before  the  pas.'-age  of  tlmt  treaty  to  leiKunie  tl  eir 
tiO  naturalization,  provided  they  do  it  before  a  certain  date,  which 
date  has  long  since  jiassed.  That  has  no  Ijeaiing  on  this  case. 
Article  ;)  piovicles  as  follows,  ami  I  am  reading  the  last  part  of  it 
which  lefers  to  persons  originally  Hritish  subjects.  It  says:  — 
"  Jn  the  same   maimer,  if  any  such  IJritish  subject  as  afoie- 


497 

(Mr.  Peturs'  Sucoiid    Ari,'umt.'i>t.) 

"sniil  niituralizfd  in  tliu  Uriiti'd  Stntt's  sliDiild  it'iii-w  his  resi- 
"  deuce  witliiii  t!it;  dominions  of  Hci'  Britannic  Mnjiisty,  Her 
"  Mnjesty'M  *loveinment  may,  on  Ins  own  aiiplieation  and  on  sucli 
"  conilitions  us  tiiat  Government  may  think  lit  to  impose,  re-ad- 
"  niit  him  to  tiie  cliaracter  and  priviU'Lfes  of  a  Hiitisli  siiipject, 
"and  tlie  United  States  shall  not,  in  that  case  claim  him  as 
10  "a  citizen  of  tlie  IJiiited  States  on  account  of  his  forinci' 
"  nntiM'alization." 

It  will  1)0  noticed  that  under  that  treaty  it  is  open  for  Great 
Britain  or  for  the  United  States,  as  it,  is  reci]ir(ical,  to  re-admit 
any  person  wlio  has  been  naturalized,  upon  .-ucli  conditions  as 
tlie  t;overnment  of  tlie  country  re-admittin;,'  him  shall  see  tit  to 
impose.  There  is  no  (piestion  of  consent  whatever'.  It  is  not 
stated  in  the  treaty  tliat  the  United  States  must  consent  that  a 
person  who  has  been  naturalized  in  the  United  States,  may  bu 
re-naturalized  in  (ireat  Britain  ;  that  is  not  contained  in  the 
20  treaty  and  it  is  to  the  treaty  that  we  must  loidv  altogether. 
There  is  another  treaty  of  liS71 ,  but  tliat  only  ajiplies  to  per- 
sons who  were  re-naturalized,  I  think,  before  the  year  l.S^2,  and 
has  no  application  to  this  case.  The  only  tieaty  that  applies  to 
this  case  is  the  one  1  have  just  rend.  I  will  also  refer  j'our 
Honors  to  the  Canadian  Statute  on  that  point, — the  Statutes  of 
IMHl.     I  will  read  section  20  of  Glinpter  l:!44,  Victoria:— 

"  A  natural-born  British  subject  who  has  becoii>e  an  alien  in 
"  piusuance  of  this  Act  or  ot  any  Act  or  law  in  that  iieluilf,  and 
"  is  in  tliis  Act  referred  to  as  a  '  statutory  alien,'  may,  ujion  the 
30  "  same  terms  and  subject  to  the  same  conditions  as  are  icipiired 
"  in  the  case  of  an  alien  a[>plyini^  for  a  eertiticate  of  naturaliza- 
"  tion,  apply  to  the  proper  court  of  authority  or  person  in  that 
"behalf  for  a  certiticate  hereinafter  referred  to  as  a  '  certiticate 
"of  re-ailinission  to  British  nationality,'  re-admittinj,'  him  to  the 
"  status  of  a  British  subject  within  Canaila. " 

He    has  really    to    i,'o    thi-oui,di    the    same    course    as    if    he 

originally    applied    for   naturalization.      As    a    nuitter   of    fact, 

Mcl^fan  did  a|)|)ly  for  re-admission,  and   obtained  his  certiticate 

in    (.)ctober    IhSC,    which     is    set    out    in    the     proceedin^fs    in 

40  Appendix  B. 

The  Commissioner  on  the  part  of  the  Ignited  States: — I  do 
not  see  in  the  avifument  of  the  United  States  any  claim  that  the 
pruceediuj,'s  were  not  rejj;ular  under  the  laws  of  Caiuula. 

Mr.  Beters : — The  point  he  takes  is  that  the  re-naturalization 
without  the  consent  of  the  United  States  was  worthless.  That 
is,  as  I  read  the  ari;unient. 

The  l\)mmissioner  on  the  part  of  HtM-  Majesty  : — Perhaps 
those  words  "consent  of  the  United  States  "  relate  rather  to  his 
becominj.j  a  part  owner,  than  to  the  re-naturalization. 
50  Mr.  i'etors  : — The  treaty  says,  in  so  many  words,  that  the 
United  Slates  shall  not  claim  him  as  one  of  its  citizens,  and  as 
he  became  re-naturalized  before  he  obtained  anj-  interest  in  this 
ship,  we  say  that  ends  the  matter. 

The  Commissioner  on  the  part  of  the  I'nited  States: — How 
do  you  reconcile  the  fact  that  he  imnle  an  atRdavit  that  he  was  a 
naturalized   American  citizen  in  18!)2  ? 

Mr.  Peters  : — He  made  oath  that  he  had  been  a  naturalized 
American  citizen. 

Mr.  Warren  : — He  made  an  affidavit  that  he  was   a  natural- 
GO  ized  American  citizen    in   1892.     That  you    will   tind   on  page 
1821,  line  50. 

Mr.  Peters  : — -Yes,  he  says  he  was  a  naturalizeil  American 
citizen,  and  .so  lie  was  at  one  time.  He  fails  to  state  that  he  was 
afterwards  re-naturalized,  but  it  does  not  matter  what  the  man 


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498 


(Mr.  Peters'    Second  Ar>{un)ent.) 

saiil,  whetlier  In-  niaile  sucli  ftii  affidavit  or  not.  The  general 
loinaiks  (ipply  lioii',  tliat  Mr.  Bodwell  made  as  to  the  .same 
allitlavit.  fieri  is  uii  atJidavit  for  one  purpo.se  only.  Your 
HiiMors  will  notice  that  the  statement  at  the  beginning  of  that 
nlli'iavit  \\Hs  lint  the  gist  of  the  affidavit  at  all.  It  was  not 
upon    that   iii-itler  that   he  was  asked  to  make  an  affidavit — 

10  whether  lie  whs  a  naturalized  citizen  of  the  United  States  or 
not — that  did  not  affect  the  purpose  for  which  he  was  giving  his 
affidavit.  He  says  that  he  was  a  naturalized  citizen  of  the 
United  States,  and  so  he  was  at  one  time  ;  it  omits  to  state  that 
he  was  afterwards  re-naturalized  But  there  is  no  doubt  that  he 
was  afterward.s  rc-niituralized  and  we  have  the  formal  cer- 
liticate  of  the  court  where  it  took  place.  Against  that  we  have 
si'vernl  iiffidavits,  I  think  one  at  Shelburne,  Nova  Scotia,  where 
lie  made  an  atlidavit,  when  he  was  acquiring  one  of  the  .ships, 
iitatiii>4'  that  lie  was  at  one  time  naturalized,  and  aftei  wards  tonk 

20  an  on  111  nf  allegiance  to  the  Queen.  On  another  occasion  he 
made  an  atliiiavit  that  he  was  a  natural-born  subject,  and  said 
nothing  about  being  naturalized.  These  affidavits  cannot  be 
reconciled,  perhaps,  in  accordance  with  the  facts,  but  we  have 
undoubted  evidence  so  far  as  re-naturalization  is  concerned. 
])iiniel  McLean  has  not  .said  anything  which  anybody  disputes, 
excL-pt  perhaps  his  affidavit  where  he  .says  something  about  the 
length  of  the  season,  which  is  explainable.  There  is  no  dispute 
abuiu  till-  I'act  that  he  had  become  a  naturalized  citizen  of  the 
United  Slates,  and  afterwards  became  a  re-naturalized  citizen  of 

30  Great  Briiain,  and  therefore  it  appears  to  me  that  that  is  con- 
clusive on  the  case. 

I  do  not  know  that  I  gave  your  Honors  the  reference  as  to 
the  details  uf  expenditure,  but  Baker,  at  page  1419,  gives  full 
details  of  everything  that  went  out  in  the  ship,  and  the  full 
vouchers  are  there  set  out. 

The  Commissioner  on  part  of  the  United  States: — You  re- 
ferred to  that  yesterday.  I  do  not  know  that  you  gave  a  refer- 
ence to  the  pui^e. 

Mr.  Peter.s : — That  is  all,  then,  I  wish  to  say  on  that  case. 


40 


The  "  Pathfinder"  1889. 


We  come  now  to  the  case  of  "  The  Pathfinder  "  1889.  I  will 
take  the  same  course  of  following  the  objections  taken  by  my 
learned  friend.  On  page  418  of  the  argument  for  the  United 
States,  the  tlrst  objection  taken  to  this  claim  is  one  that  has 
been  argued  to  a  great  extent,  and  that  is  the  question  of 
Bechtels  ownership.  But  before  I  come  to  that  there  are  some 
items  speciall}'  mentioned  here,  which  I  do  not  know  whether  he 

50  really  means  to  object  to  or  not.  He  savs  "  William  Munsie 
"  testified  that  the  guns  originally  cost  ?55  each,  and  the  rifles 
"  $26  each".  Whether  he  intends  to  object  to  these  sums  or  not, 
I  cannot  say,  but  in  any  case,  the  remarks  I  made  on  this  point 
in  regard  to  the  "  Carolena  "  will  apply  with  equal  force  to  the 
gians  supplied  to  the  "  Pathfinder  ",  and  I  need  not  repeat  them. 
He  further  proceeds  to  slate  with  regard  to  the  case  of  the 
"  Pathfinder  :  — 

"  In  the  argument  on  behalf  of  Great  Britain  this  s5tatement 
"  is  maile  : — 

60  "  In  the  ease  of  the  '  Pathfinder  ',  the  schooner  was  owned  by, 
"and  registered  in  the  name  of  a  British  subject,  but  one  liechtel, 
"  wdio  was  a  native  born  citizen  of  the  United  States,  had  pur- 
"  chased  a  half  interest  in  the  profits  of  the  sealing  vojages  of 
"  the  vessel. 


499 

(Mr.  Peters'   Second  Argument.) 

"The  United  States  accept.'^  the  admission,  made  on  bRhalf 
'  of  Great  Britain,  that  Andrew  J.  Bechtel  wax  ef|nally  inter- 
"  ested  with  William  Munsie  in  the  venture  of  the  '  Pailifinder' 
"  in  the  year  1889,  but  a.ssert  that  Andrew  J.  Bechtel  was  aUo 
"an  owner  of  one-half  of  the  vessel,  restinjj  this  claim  upon  the 
"  testimony  of  William  Munsie." 

10  With  regard  to  this  matter,  I  do  not  know  that  it  is  necessary 
for  me  to  do  anything  more  than  to  refer  you  to  the  evidence 
^'iven  by  Munsie  on  that  point.  It  has  all  been  argued  out  at 
considerable  length,  and  the  dispute  between  the  parties  is  very 
clear  and  very  plain.  The  "  Pathfinder",  if  you  will  remember, 
came  around  the  Horn,  I  think,  in  1886, — the  first  year  she 
sealed,  but  I  do  not  think  it  is  necessary  for  me  to  go  any 
further,  but  leave  the  matter  just  where  it  is.  All  the  argu- 
intnts  in  regard  to  the  position  of  Bechtel  apply  to  this  ca.se,  all 
tlie  arguments  that  we  have  used  that  there  was  no  attempt  to 

20  defraud  the  United  States  law  apply  to  this  question,  and  in  ad- 
dition to  that  the  argument  that  we  have  referred  to  incidentally, 
in  the  case  of  the  "  Carolena  "  that  there  was  another  mortgage 
given  to  Myra  Bechtel.  It  will  also  be  remembered  that  we 
admit  that  in  the  year  1889,  a  year  before  that  date  I  think, 
Imt,  at  all  events,  in  1889,  which  is  the  only  year  we  have  to  do 
with  the  "Pathfinder",  Andrew  J.  Bechtel  was  interested  in  the 
voyage  of  the  "  Pathfinder  ".  He  entered  into  a  speculation  on 
her  voyage.  He  said  to  Munsie,  when  the  voyage  was  about  to 
he  undertaken, — "  1  will  give  you  so  many  thousand  dollars — I 

30  "  think  it  was  $2500, — for  a  (me  half  interest  in  the  probable 
"  catch  that  the  '  Pathfinder '  is  going  to  make  ".  My  learned 
friend  thinks  that  is  suflicient  to  prevent  Bechtel  from  recover- 
ing in  this  case.  I  refer,  your  Honors,  to  the  words  of  the 
treaty.  There  is  oidy  one  question  under  that  treaty  which 
the  United  States  have  the  right  to  raise,  and  that  question  is, 
whether  the  vessel  was  actually  owned  in  whole  or  in  part  by  a 
citizen  of  the  United  States.  That  is  the  only  question  they  are 
entitled  to  raise  under  that  part  of  the  treaty.  Every  person 
rightfully  on  board  a  British  ship  is  entitled  to  the  protection 

40  of  the  British  Government,  and  the  only  qu'istion  the  United 
States  had  a  right  to  raise  was, — what  would  be  the  effect  if  a 
citizen  of  the  United  States  was  entitled  to  to  .some  share  in  the 
vessel.  Now  that  is  not  authorizing  thent  to  j'aise  the  question 
of  what  would  be  the  effect  if  a  citiren  of  the  Unii^ed  States  had 
some  interest  in  the  catch,  cargo,  or  voyage.  Tnere  is  nothing 
in  the  municipal  laws  of  Great  Britain  to  prevent  a  citizen  of 
the  United  States  from  being  interested  in  the  voyage,  the  ven- 
ture, the  cargo,  or  the  charter  of  the  vessel,  and  the  treaty,  we 
contend,  does  not  give  the  United  States  the  power  to  raise  that 

50  question,  and  bring  it  before  you  for  adjudication  at  all.  You 
are  confined  to  one  question, — when  it  shall  be  proved  that  a 
citizen  of  the  United  States,  in  whole  or  in  part,  actually  owns 
one  of  those  ships.  So  that  we  contend  that  that  proposition, 
as  laid  down  by  my  learned  friend,  dues  not  in  any  way  affect 
the  case  ;  that  the  question  does  not  even  arise,  unless  the  actual 
ownership  is  proved  in  whole  or  in  part,  and  of  course  when  it 
is  proved,  it  all  becomes  subject  to  the  argument  put  forward  by 
my  associates,  Mr.  Bodwell  and  Mr.  Beique. 

Mr.  Dickinson  : — What  becomes  of  your  contention,  that  these 

CO  are  cl.ums  of  vessels  instead  of  claims  of  'he  persons  ? 

Mv.  Peters  : — That  is  it  exactly.  They  are  claims  of  the  ves- 
sels. I  do  not  think  that  helps  my  learned  friend  at  all.  We 
do  not  agree  that  there  is  any  such  thing  as  a  right  to  protect  a 
person  under  the  British  fiag  which  is  to  be  merely  a  nominal 


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(Mr.    PetiTs'   Si'conil   Ai'^'Uineiit.) 

rijilit.  My  leai'iicil  fiieinl  says  ; — "  Von  Iinve  a  riylit  to  protect 
"  H  person  uiidur  the  Hiii,',  but  wlien  you  eoim^  ilowti  to  tin-  |)rHcticiil 
"  ri)j;lit  of  protection  you  have  no  rii,'htat  all.  You  have  norij^lit 
"  to  claim  compensation  "  Wo  .say  that  compensation  follows  tlu! 
ri;,'lit  of  protection  as  cleai'lj'  as  nij^lit  follows  the  day.  What  is 
tlu;  use  of  protection  whicli  doe.s  not  protect  ?  and  of  what  use 
10   is  protection  which  you  cannot  put  in  practical  shape  ? 

.Mr.  Dickinson: — It  is  claimed  hy  some  f)olitical  party  that 
we  Iiave  in  the  I'nited  States  a  protection  which  does  not  protect. 

Mr.  Peters  : — 1  am  not  ^'oini^  into  the  politicul  line  at  all.  It 
is  adndtted  l>y  my  learned  friends  that  CJieat  Britain  has  ari;,'lit 
to  ))rotect  every  person  wIk)  rightfully  works  under  our  Hii^,  and 
my  contention  is  that  the  ))rotection  must  not  he  like  the  politi- 
cal protection  which  my  learned  friend  has  reference  to,  hut 
actual  protection.  If  a  man  is  usini^  the  British  flai,'  ri;,ditfully, 
as  these  men  were,  the  protection  unist  be  a  real  one,  and  not 
20  merelj  a  nominal  one.  At  paj^e  421  my  learned  friend  lays  d()wn 
what  he  claims  is  the  rijjht  measure  of  damajjes.      He  says  :— 

"  The  ilamaj^fo  chiiniecl  is  for  the  value  of  iS5-t  seal  skins,  the 
"  £funs  seized,  and  the  charter  value  of  the  "  Pathtinder  "  fr.im  the 
"  iiJSth  day  of  July  until  the  close  of  thosealinjf  season  in  Behrin;,' 
"  Sea.  The  value  of  50  seal  .skins,  taken  after  the  seizure,  shouKl 
"  be  deducted." 

I  read  that  sentence  as  beini^  a  statement  by  my  learneil 
friend  of  what  he  consideis  the  damajje  should  C(jnsist,  bi^cause 
the  qui'stion  of  charter  value  is  ju^t  the  very  dispute  between 
30  us.  The  (luestion  of  the  estiniaie  1  catch  I  need  say  nothing; 
more  alioiit,  as  the  evidence  has  b.-en  referred  to  by  Mr.  Bodwell 
so  fully. 

"  OscAU  AND  Haiti K." 

Now  I  come  to  the  case  of  the  "  Oscar  and  Hattie,"  upon 
whi(!h  some  comment  is  necessary.  My  learned  friend  referred 
to  this  case  at  paj^'e  477  of  his  brief,  and  we  have  referred  to  it 
at  piii,'e  l(i()  of  our  brief.  I  do  not  propose  to  go  over  the  evi- 
dence in  the  case,  bi  oaiisp  if  your  Honors  iemenil)er  the  evidence 

40  it  is  in  a  very  coui^ise  form,  beitif,'  a  copy  of  the  evidence  laid 
before  the  Sii|)reine  Court  of  C'aniida,  when  that  case  went  upon 
appeal,  and  I  take  it  for  granted  that  the  facts  are  before  your 
Honors,  and  that  it  will  not  be  necessary  for  me  to  go  over  them 
any  more  >h.<\'i  they  are  set  out  in  our  written  brief.  I  wish, 
howe^'i;r,  to  call  your  attention  to  the  contention  made  by  the 
counsel  on  the  other  side.  At  page  4cSl  niy  learned  friend  lays 
down  a  proposition  in  which  he  says: — 

"  The  United  States  contend  that  the  captain  of  the  roveinie 
"  cutter  "  Mohican  "  had  reasonable  cause  for  seizing  the  "  Oscar 

50  "  and  Hattie."  The  construction  j)laced  upon  the  modus  vivendi 
"  of  1S!)2  by  both  governments,  as  contained  in  the  Fishery  Act 
"of  liS!)],  anil  in  the  instructions  of  the  government  of  the 
"  United  States  to  her  cutters  in  Behring  Sea,  was  a  reasonable 
"and,  moreover,  the  controlling  conntruction." 

The  construction  he  refers  to  there  put  Upon  these  two  acts 
is  found  at  pages  477  and  47^*  of  his  biief,  in  whicli  he  points 
out  that  in  order  to  carry  out  the  modus  vivendi  of  IH'JI,  which 
was  continueii  b\- the  modus  vivendi  of  hS92,  the  British  govern- 
ment passt^d  a  statute  which  contains  the  following  clause  : — 

60  "  If  a  British  ship  is  found  within  Behring  Sea,  having  on 
"  board  thereof  fishing  or  shooting  implements  or  seal  skins,  or 
"  bodies  of  seals,  it  shall  lie  on  the  owner  or  master  of  such  ship 
"  to  prove  that  the  ship  was  not  used  or  employed  in  contraven- 
"  tion  of  this  act." 


501 

(Mr.   Peters'  Second  Argnnipnt.) 

My  learned  friend  arjrnes  tl.at  liecniise  the  Hritisli  fjovernment 
passed  tlmt  statute,  tliey,  liy  j)assini^  it,  niiisl  lie  talien  to 
have  put  upon  tlie  terms  of  the  modas  rivoxli  a  certain  con- 
strucrion,  ami  that  construction  was,  that  if  any  vessel  was 
found  in  Hehrin^;  Sea  when  the  viodtis  rircnili  was  in  force, 
having'  on  hoard  seal  skins,  or  arms  for  takinj,'  seals,    that  such 

10  vessel  from  that  fact  nUmt',  hecame  ahsolutelv  liable  to  seizure, 
alth(>ui;h  the  seizin;;  otlieer  at  the  time  knew  there  had  been  no 
hreacii  of  theiHO(/(*.s  rivc.ndi.  My  learTiecl  fiiend  proceeds  to  show 
iiistiuctions  ^iven  hy  the  United  States  ;i,'oveinment,  ami  he  says 
that  these  two  ^'overnnients  a^'reed  upon  the  construction  put 
upon  the  vwilan  v\miuii.  We  ii^'ree  with  my  learned  friiMid  that 
the  case  turns  upon  the  question,  whether  or  not  there  was  reason- 
able cause  for  seizing  the  "  Oscar  and  Hattie."  We  say,  however, 
that  under  the  terms  of  the  inodas  virviuli,  that  the  oHence  was 
not  having  seal-skins  or  arms  on  board,  but  that  it  was  catching 

20  or  attempting  to  catch  seals  within  a  pioliibited  place.  The 
staM.teof  liSyi  merely  nuikes  the  possession  of  skins  or  arms  a 
surticient  excuse  for  the  (jtficer  to  seize  and  hold  the  vessel  until 
the  presence  of  the  skitis  or  arms  is  satisfactorily  explained.  If 
the  ffcts  are  such  as  must  have  made  it  clear  lo  the  uiit\d  of  tlie 
seizing  otlieer  at  the  time  he  seized,  that  the  skins  were  not  taken 
in  Hehring  Sea,  atid  that  the  schootier  was  not  there  for  the 
purpose  of  breaking  the  niodan  virciidi,  then  the  onus  to  prove 
his  iiwioccnce  wdiieh  was  orittinally  on  the  master  of  the  schooner 
which  haii  the  seal-skins  on  lioard,  was  then  and  there   satisfied. 

30  It  is  argued  by  my  learned  friend  that  in  this  case  Chief  Justice 
Hegbie  found  that  there  was  reasonable  cause,  and  that  there  is 
in  the  judgment  of  the  Supreirie  Court  of  Canada  a  finding  that 
a  prliiKi  fiii'Ji'.  ease  was  established.  On  that  point  I  aiu  not 
(piite  ceitain,  but  the  Commissioner  for  Dreat  iiiitain  will  bear 
tlu!  facts  of  the  case  in  mind,  as  he  was  a  member  of  the  Court 
at  the  lime.  I  wish  to  point  out  that  theie  is  evidence  before 
this  Counidssion  that  was  not  before  Chief  Justice  Hegbie  nor 
before  the  Supreme  C'ourt  of  Canada,  and  that  evidence  shows, 
tiiat  the  captain  of  the  cruiser  who  seized  tliis  vessel  at  the  time 

40  he  seized  lier  knew  that  there  was  no  breach  of  the  iudiIiis 
viiyndi.  contetnplateil.  We  have  not  only  verbal  evidence  on 
this  point — -about  which  there  might  be  some  iloubt — liut  wo 
have  written  and  formal  evidence,  and  it  is  u\ion  that  ground  we 
jHit  our  case.  We  say  that  at  the  time  the  United  States  seized 
that  vessel,  their  officer  had  before  him  evidence  wddch  shoidd 
have  satisfied  any  reasoniible  man  that  there  was  no  breach  of 
the  moilus  viri'uill,  and  that  he  was  then  satisfied  and  reall}' 
seizi'd  knowing  no  breaeli  had  been  committeil  or  wai  intended 
to  be  connnitteil.      We  refer  your  Honors  to  our  argument,  page 

50  170.  where  is  set  out  the  report  of  the  seizure  made  bj'  Oom- 
iiiaiider  Evans  to  the  Secretary  of  the  Navy.  On  the  10th  of 
September,  lh'J2,  a  few  <la3's  after  the  seizure  took  place,  the 
Conuuander  wrote  that  he  sent  the  "  Mohican  "  there  to  capture 
fiiiy  sealers  who  might  have  been  .sealing  on  the  Russian  sitle, 
u  jilaee  where  tliej'  had    a   perfect  right  to  fish.      He  says  : — 

"  During  the  latter  part  of  August,  I  had  sent  the  '  Mohican' 
"  to  the  vicinity  of  Attou  Island  to  apprehend  and  capture  any 
"sealers  from  the  Russian  side,  wdio  might  be  found  in  that 
"  vicinity.     1  feared  that  some  of  the  schooners',  after  watering 

GO  "  at  Attou,  would,  in  case  of  good  weather,  stop  for  a  few  days' 
"sealing  in  Hehring  Sea,  which  I  determined  should  not  be  done, 
"  atid  at  the  same  time  wished  British  schooners  to  uriderstand 
"  that  the}'  could  no  longer  make  a  convenience  of  American 
"  ports  illegally  for  carrying  on  tiieir  sealing  operations." 


\\V 


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20 


30 


(Mr.  Peters'   Second  Aif,'uinetit.) 

It  would  sci'tn  from  tliis  that  he>  Imd  soiiin  iilca  that,  althnuf;)! 
a  ship  wi'iit  tlH'if  for  tlir  liniia  (ide  purpost)  of  wiitcriiij;  only,  lit- 
was  fjoin,'  to  lot  tlicni  nndi-rstantl  that  tliej'  shoiiUl  not  use 
Ami'riean  pnrtu  for  convt'iiii-nce. 

"  On  my  arrival  •  •  «  •  J  found  tlie  '  Oscar  and  Hattid  '  in 
"  port,  liavirij;  liei'ii  c-iiptnrnd  at  (iotzlid)  Harliour,  a  small  wattT- 
"  inj;  port  on  the  Island  of  Alton,  liy  the  '  Mohican  '  on  Scptfiiilifr 
"  lut,  anil  sent  hcri'  in  char;»e  of  an  ottic«r  and  pri/.i'  ort'W. 
"  When  ciiptiiri'd  she  liml.  oo  hutiiul  270  far  xeid  nlcins,  iitken  on 
the  coaat  of  Japan,  and  a  full  scidimj  old  fit." 

Here  is  the  conniiandi-r  of  the  erniser  sfatinjj  that  this  ship 
ha<l  oti  hoard  27(!  fur  seal  Hkins  taken  on  the  coast  of  JH))an, 
That  evidence  was  not  licfore  Chief  Justice  He^liie  and  it  was  not 
before  the  Supremo  (.!ourt  of  ('ar.ada.  If  it  had  heen  lieforo 
Chief  Justice  Hi'^'hie  how  <lo  you  think  he  would  have  answered 
the  (piestion  :  }lad  this  seiziiifx  otiicer  reasonahlo  cause  to  think 
that  a  liieach  of  niddas  virciidi  had  or  had  not  heen  committed  ? 
A^niin,  if  you  refer  to  the  report  made  to  Captain  Evans  hy  the 
captain  of  the  "Mohican,"  which  was  not  liefore  Chief  •  'i  tice 
Heyiije,  you  will  find  eoirohorative  evidence  of  this.  Th.is  report 
is  dated  the  •'Ust  of  Auj^iist,  the  very  day  aftei'  the  seizure,  and 
it  is  set  out  at  paf,'e  1(!9  of  our  written  argument  as  follows: — 

'  Sir, —  Yesterday  I  si-ized  the  schooner  'Oscar  and  Hattie,'  of 
"Victoria,  Mritish  Columliia,  at  anchor  in  (.lotzh'h  lliirlionr,  on 
'■  these  j,'i'ounds :  (1st)  \'iolation  of  the  Hnitud  States  revenue 
"  laws,  as  heinjr  illc^rally  in  the  United  States  ports  ;  (•Jiel) 
"  Violation  "f  the  same  law  in  havinj;  transferred  siial  skins  to 
"ami  i-eceiviny;  supplies  from  the  '  Cocpiillam  ' ;  (Hnl)  llarlnfi 
"on  liDnrtl  JTH  ^k'nis  and  a  cuniplete  tu'dliixj  outfit  in  ciolatlna 
"  of  the  'iiiodnn  rircndi." 

I  say  that  the  whole  transaction,  so  far  as  the  captain  n;  'lit 
cruiser  was  concerned,  shows  a  certain  amount  of  want  of  bona 
tides,  It  does  not  np))enr  like  a  fair  attempt  to  carry  out  the 
VKidiiH  x'ivenili.  If  he  really  thouijfht  it  had  been  broken  why 
were  chai;;-es  for  breach  of  Revenue  laws  inserted  ?   It  is  sinf,'MlHr 

40  that  when  mui  come  to  ileal  with  the  cases  of  the  "  lleiirictta" 
and  "  Winiiifred,"  the  same  tiling'  runs  tlirou^di  them  all  ;  there 
does  not  apfiear  to  have  beijn  on  tlu;  part  of  liu;  Revenue  cruisers 
a  full  uiiiierstandiii;,'  of  what  their  proper  duties  were  when 
they  made  the  seiziu'es  umler  the  nioduK  rircndi.  Your  Honors 
will  mark  that  when  he  comes  to  deal  with  the  only  real  (ground 
of  seizure,  the  (ptHeer  failed  to  appieciate  what  the  rnudtiH  viri'itili 
was.  Sc'iiliiiLt  in  Hehrini;  Sea  was  the  ciime  unde  the  niiKhin 
virctnli,  but  he  seized  for  havini,'  on  board  "  27()  skins  and  a 
complete  huntinjj;  out  tit,"  in  violation  of  the  luiidat^  ciccndi,  which 

50  it  is  plain  wiis  not  a  violation  of  the  inndan  viveiuli  at  all. 
llaviiiH-  on  board  skins  or  haviini-  a  Innitinif  outtit  was  never 
made  an  oU'eiiee  urnlcr  the  ihdiIuh  vireiidi.  As  st't  out  in  our 
written  ar^'iiiiient,  your  llnnois  liavi;  tht^  iindoubteil  fact  that 
this  vesiel  was  there  fur  the  pur|)nso  of  obtair.lii;.'  water,  and  for 
no  other  pm'pose,  ami  that  there  was  no  seals  •.viihin  200  miles 
of  the  placi!  of  seizure.  When  yoin-  Honors  come  to  ileal  with 
the  i|Uestion  as  to  whether  these  otKcers  had  reasonal)!'!  or  pro|)er 
cau»e  for  makiiiLj  the  seizures,  you  will,  I  have  no  dcibt,  find 
that  the  ('viilenee  is  a^'aiiist  them,  and   that  they   well   knew  no 

CO  olhiice  had  been  coiiimitted.  The  arf,'ument  lor  the  Cnited 
States  further  says,  that  althou^di  this  vessel  had  been  seized  by 
the  Ignited  .States,  she  was  handed  over  to  (Jreat  Britain,  and 
that  the  United  States  consei|Uenlly  washed  their  hands  of  the 
mutter.     'J'hey  say  thht  Gieat  Britain  need  not  have  pros^'cuted 


5().'J 

(Mr.  pKteis'  Si'conil  Argument.) 

tlio  vpssfil  if  slio  (lid    not    tiiiiii<    tliero    was    ^^ihuI    ^(rounds  for 
prii.st'cutiiiy  lior. 

T'.ie  I'oniinissioner  on  tlio  part  of  tim  Unitt'd  States  :  —  Wlwit 
was  tlie  ^{ronnd  upon  wliich  the  Oliinf  iIiisticH  condcintu'd  ln-r  ? 

Mr.  Peters: — He  condeinntid  iier  on  tiie  f,'iound  tliai  siie  was 
lireakin)^  the  mo'l  iit  vivcndi. 
l(t        The  ('oniniissioiior  on    tlie  part  of  tlie  United   States: — In 
what  particular.     He  did  not  firul  that  she  was  seaiiii;;,  did  he  ? 

Mr.  Peters: — I  do  not  know  wliat  he  fouiwl  exactly.  He 
came  to  tlie  conclusion  that  the  presumption  was  aj^aiiist  the 
vessel  because  she  was  found  with  a  sealin;^  outfit. 

The  Commissioner  on  the  part  of  the  United  States: — He 
had  all  the  facts  before  him. 

Mr.  Peters: — He  had  all  the  facts  before  him  with  the 
exception  >if  the  two  letters  I  have  read,  and  he  ha<l  not  these 
before  him. 
20  Mr.  Dickinson  : — Ho  had  the  evidence  before  him  as  to 
whether  or  not  she  was  h'lntinj^  in  the  Hehrinj^  Sea.  He  had 
the  same  evidence  as  the  Supreme  ('ourt  afterwards  had.  He 
had  the  master  and  the  crew  before  him. 

The  ('ommissioner  on  the  part,  of  tlie  United  States  : — The 
condemnation  was  an  act  of  the  Uritish  (lovernmonl. 

Mr.  Dickinson; — And  the  liritish  court  of  last  resort  found 
aj^'aiiist  the  vessel 

Mr.  Peters: — I  do  not  consider  that  tlie  Court  of  Appeal 
found  ai,'ainst  the  vessel,  and  in  an}'  case  tlie  court  of  last  resort 
30  did  not  liave  these  reports.  We  contend  that  th(!  Supreme 
Court  of  Caimila  is  not  the  court  of  last  resort  in  this  case,  Ijiit 
that  this  international  tribunal  is  the  court  of  last  resort.  If 
there  were  no  reasonable  M-rounds  for  seizirifj  this  ship  tlie 
tieiity  has  been  broken,  and  this  is  the  court  of  last  resort  for  us. 

.NIr.  Warren: — The  Supreme  Court  says  there  was  a  prima 
t<ici<'  1,'round. 

Mr.  Peters  : — They  may  have  said  that,  but  if  the  court  bad 
before  it  the  repoit  of  these  seizini;  otKcers,  I  do  not  think  they 
Would  have  said  even  that.     Chief  Justice  Begi>i(!,  when  he  was 
40  ^'iviii;;  his  decision  in  that  case,  lost  si^'ht  of  the  reiil  point. 

The  Commissioner  on  the  part  of  the  Unitecl  States: — Now, 
Mr.  I'eters,  is  the  lliiited  States  to  pay  damai^es  because  a 
Supreme  Court  Judj,'e  at  British  Columbia,  under  proceodinj^.s 
by  the  Crown,  did  not  understand   the  law  of  the  case  > 

Mr.  Peters  : — 'j'liat  is  not  th(!  point  I  submit. 

Tiie  Commissioner  on  the  part  of  the  United  States  : — Is  not 
tliat  })ractically  what  it  is?  I  uknui  beyond  the  mere  fact  of 
trespass  and  detention — that  mifflit  be  another  question  ? 

•Mr.  Peters  :--lf  on  account  of  the  improper  judj,niient  of  one 
50  of  our  jud;^es  there  had  been  some  extra  <lelay  caused,  I  am  not 
prepared  to  saj-  that  the  United  States  would  be  responsible  for 
that.  Tliat  would  relate  to  the  (luaiitum  (jf  danm^'es  and  not  to 
the  ri;,dit  to  recover  damaf^es.  We  contend  that  the  liability  of 
the  United  States  to  paj-  dama<i;es  naturally  tbiwinif  from  their 
act,  was  settled  on  the  first  of  Aii<;ust,  lcS02,  when  the  seizure 
took  place.  They  can  only  justify  themselves  l)V  what  took 
])li'.ce  then.  They  cannot  re.sort  to  an  erroneous  judgment  of  one 
of  our  judges  to  take  away  from  lliem  the  liability  which  they 
had  incurred  before  that  judgment  was  given.  The}'  were  either 
'iO  liable  or  not  liable  when  the  soizuie  took  place,  and  the  sole 
ipiestion  comes  down  to  the  point,  whether  tliey  were  justified 
ill  making  that  seizure  at  tfie  time.  We  say  that  on  the  very 
day,  and  at  the  veiy  time  that  the  vessel  was  seized,  wc  <lid 
undertake   to  .satisfy,  and  did   .satisfy,   the   couiniander  of  the 


t 


':it; 


i!f 


M 


'^ 


);• 


1'^" 


» 


I  ■ 


504 

(Mr,  Peters'  Secoml  Aryuinent.) 

cruiser  tliat  there  was  no  cause  for  seizure.  If  tlie  iiiiiul  of  tlie 
seiziiifj  captain  reniaineii  in  an  unsatistied  .state,  if  he  liislielieved 
the  statements  made  to  iiiin,  if  he  imagined  that  the  27()  seal 
skins,  or  a?iy  one  of  tliein,  were  taken  in  IV'hritifj  Sea,  or  tliat 
the  schooner  {joinj.';  in  tiiere  for  the  purpose  of  watering  was  a 
sham  to  cover  tlie  intention  of  aeaiinjj   in   Behrinj^  Sea  ;  if  the 

10  mind  of  tlie  otHeer  of  tli(>  cruiser  remained  in  tiiat  state  I  could 
understand  the  court  sayinjj;  that  he  had  reasonahle  cause  to 
make  the  seizure.  Hut  the  ,seizin<»  captain's  own  report  shows 
that  he  helieved  the  statement  of  the  captain  of  the  schooner. 
We  have  the  report  of  his  superior  showing  that  these  seal  skins 
were  not  taken  in  the  Hehrinii;  Sea,  hut  on  the  Japan  coast,  and 
he  admits  that  the  schooner  was  in  there  for  the  legitimate 
purpose  of  getting  water.  I  just  rememher  one  part  of  the 
evidence,  from  which  it  appears  tliat  the  guns  were  all  piled 
away  in  the  vessel  and  not  in  the  hoats.     When  all  these   facts 

20  weie  liefoie  the  seizing  officer,  and  his  mind  was  .satisfied  that 
there  was  no  intent  to  break  the  motluH  vivendi,  I  say  it  was 
uiireasonalile  and  that  it  was  wrong  for  him  to  seize  the  sehoon"i, 
and  that  his  government  should  he  held  responsible  for  his 
wroiiiiful  act.  That  is  where  our  claim  arises.  We  deny  llu; 
proposition  that  the  American  (Jovernmi'nt  can  make  that  which 
WHS  wrong  on  the  1st  of  August,  1S02,  right  by  reference  to  the 
judgment  of  (,'hief  Justice  Hegbie,  who.  at  the  time  he  gav(>  the 
judgment,  had  not  all  the  fiicts  before  him,  and  seems  to  have 
misunderstood  the  real  question  befure  him,  and   was  afterwards 

30   set  right  by  the  Supreme  Court. 

The  ( 'omnnssioner  on  tlie  part  of  the  United  States: — Your 
chiitu  is  for  "  hiss  oecasioiied  by  the  forced  sale  of  the  vessel," 
not  l>y  her  "  seiy.ure." 

Mr.  I'eteis  : — '{'he  forced  sale  of  the  vessel  took  jilaco  before 
Chief  Justice  j-iegbic  gave  his  judgment,  and  was  the  direct 
Coiisicjueiice  of   the  imjuoper  seizure. 

T"he  Commissioner  on  the  part  of  the  United  States  : — liut 
the  forced  sale  of  the  vessel  was  by  order  of  the  court  in  British 
Columbia. 

^^  Mr.  I'cters  : — The  very  moment  a  vessel   is   handed    over  to 

the  Admiralty  Court  she  has  to  be  sold,  or  ludd  prisoner,  or 
bimils  must  111'  given.  Thai  must  oecui'  whether  the  seizure  is 
right  or  wrong,  so  long  as  there  is  a  proper  lilxd.  There  is  no 
doiilit  that  there  wiis  in  this  case  a  libel  order  in  proper  form, 
and  Child'  ilustice  Hegbii'  would  not  enquire  as  to  wlualier  the 
facts  of  the  liliel  were  correct  or  not.  The  onler  for  the  sale  of 
the  vessel,  or  for  security  being  given,  would  have  to  go  as  a 
matter  of  course. 

Mr.  Dickinson  . —  May  1  ask  you  a  (juestion  ? 
Mr.  Peters  :— Certainly. 
Mr.  Diekinson: — In  the  case  bi^fore   Chief  Justice   Pegbie  in 
the  Su|ireme   Court  of   Pritisli   Columbia,  ditl   not  every  one  of 
these  facts  appear  as  stated  liy  the  learneil  counsel  ?     Was  it  not 
stated  by   the  ollieer  (,f  thi!   United  States,  anil   was  it  not  con- 
tended thci-Q  that  the  skins  were   taken  in  the  ilapan  Seas,  that 
she  was  not  going  to  fish  in  Hehring  Sea,  that  .she  was  going  to 
fish  oiitsiile  (d'  the  Sea,  and  that  she  was  in  there  for  wat-^r  ? 
Mr.  Peters  : — That  is  perfectly  "correct,  but  that  does  not  atl'ect 

GO  the  (|Uestion  as  to  the  state  of  mind  of  the  seizing  otlieer  when 
he  seized,  or  his  knowdedge.  As  I  before  siated,  we  have  on  this 
point  more  evidence  than  the  C^hief  Justice  had  before  him;  we 
have  now  somt!thing  that  puts  the  nmttcu-  beyond  dotibt.  'i'hat 
is  the  statement  of  the  officer  himself,  that  he   believed  that  ho 


50 


505 


u 


(Mr,  Puteis'    Socoml  Argimieiit.) 

was  siitistii'd  ivt   tlio  t.iiiu'  lie  iniide  tlwi  seiziiro  tliiit   tlio  act  was 
not  <loiH!  in  contravention  of  tlie  .stRtutc. 

Mr.  Dickinson: — 'IMie  seizing;  otlieer  was  on  tlie  stand,  and 
was  examined  on  these  (juestions. 

Ml'.  Peters: — The  seizin;,;  oHicer  did  not  d<'ny  it,  hut  lie  was 

irivin<r  his  evidence  as  to  what  his  s'ate  of  mind   was   when  he 

10   was  ^jfivin^j;   his  evidence,  and   as  a  niatter  of  fact  we  have  his 

written  statement,  the  day  of  the  stMziire  or  r.lioi  tly  afterwards. 

Mr.  Dickinson: — Not  until  after  the  "  Molponieiie "  took 
char;,'e. 

Mr.  Peters  : — 1  think  I  can  show  that  is  not  a  correct  state- 
ment. The  first  seizm-e  was  made  on  the  .'U)th  Auj,'Ust,  1892,  and 
the  lettei-  was  written  liy  ("aptain  Johnson  to  ("onimander  Hvans 
on  the  Slst  Au^^ust,  liS!)2,  which  is  om-  day  after  the  seizure. 

Mr.  Dickinson  : — The  lettei-  j-ou  read  was  Septeiiilier  lOlh. 

Mr.  Peters: — I  read  them  lioth.  That  letter  of  the  Hist  of 
20  August  is  followed  liy  a  hitter  from  (.lonimander  Kvans  dated 
September  lOlh,  and  it  must  he  rememhereil  that  Commander 
Evans  could  only  ijr(..t  his  information  from  his  inferior  otiicer, 
the  Cajitain  of  the  "  Mohican  '  who  made  the  seizure.  He 
stated  that  the  seals  were  taken  on  tlie  Jajian  coast,  and  when 
you  tak(i  that  in  connection  with  the  letter  of  the  .'Ust  Au^nist, 
you  st-e  how  it  fits  in.  The  coniniander  of  the  "  .Mohican"  kin-w 
the  schooner  did  ii"t  take  any  seals  in  the  lieliriii;,'  Sea,  and  ho 
knew  he  could  not  seize  the  vesst  I,  and  so  he  puts  in  as  the 
chari^e  (No.  ;},)  "  liavin<;  seals  on  hoard."  If  that  evidence  had 
30  been  before  the  court  of  original  juiisdictioii  thi'i-e  is  no  doubt 
what  the  answer  would  be.  It  is  said  by  my  leiirned  friend  that 
because  this  vessel  was  taken  over  by  the  Puitish  aiilliorities, 
that  the  Unite(l  States  fulfilled  all  they  liad  to  do  under  the  terms 
of  the  vwditx  riveiiili,  and  that  aflerwai'ds  the  matter  became  a 
(piestien  between  (.Jreat  l^iitain  and  her  own  subject.  Well,  let 
us  see  how  that  works  out.  1'he  ai^nment  would  assume  that 
Captain  Parr,  the  l^ritish  officer,  to  wlmm  the  vessel  was  teiid- 
ere(l  wou'd  have  a  right  to  have  lefused  to  prosecute,  if  in  his 
opinion  iheie  was  no  reasonable  or  picibable  cause  for  seiziiie, 
iO  and  would  have  the  right  to  refuse  to  take  charge  of  the  ve^Sld 
In  other  words,  it  assumes  that  win  n  the  vessel  was  brought  to 
an  otticer  of  Her  Majesty's  ship,  it.  was  his  d-ity  to  hold  a  pre- 
liiiiiuMry  en(|Hirv  and  to  settle  the  ipiestion,  in  his  judgment, 
whether  or  not  the  seizure  shoiihl  have  been  made.  We  submit 
that  then!  is  no  ground  for  arguing  that  proposition,  and  we 
submit  that  so  long  as  the  rnited  .Siati-s  p"rsi-.ted  in  asserting 
probable  cause,  the  Ibitish  (ioveriuiient  had  no  option  but  to 
prosecute.  If  the  Hi'itish  (lovi'Mimeiii  had  refused  to  prosecute, 
the  United  States  would  have  had  a  cause  for  complaint.  They 
50  might  have  said  :  you  think  there  is  no  probable  cause,  but  we 
think  there  is,  wi^  have  tied  our  hands  under  the  inodiix  viucudi, 
and  whatever  may  be  the  result,  the  United  States  court  lit 
present  have  no  jurisdiction,  ami  you  refused  to  lesoi  t  to  your 
courts.  Could  (beat  Mritain  reasonably  have  been  ex|iected  to 
put  herself  in  such  a  false  position  f  We  contend  that  as  a 
matter  of  fact,  when  the  United  States  e.\ercised  her  discretion 
in  seizing  the  ship,  the  (piestion  as  to  whether  it  was  a  reasonable 
or  mireasonable  seizure,  is  not  one  that  could  bi>  settled  liy  the 
Ihitish  otiicer  to  whom  she  was  handed  over;  and  we  further 
(10  contend,  that  there  was  no  other  course  than  for  (ireat  Britain 
to  prosecute.  If  the  original  seiz\ire  was  improper  and  without 
reasonable  cause,  the  nation  whose  otiicer  has  done  the  wioiig 
should  in  all  fairness  pay  the  damages.  As  between  two  nations 
who  make  a  treaty,  which  treaty  gives   the  government  of  one 


=^!i?V;i'; 


Ik 


(I    li 


11  i; 


506 

(Mr.  Peters'   Second  Argument.) 

countr}'  the  rijjlit  to  interfere  with  the  property  of  the  citizens 
of  the  other  country,  as  i.s  the  case  liere,  when  that  rijjht  is  {riven 
hj'  treaty  ,  how  can  tlie  (jnestion,  as  to  wiietiier  these  treaty 
rights  have  I'een  properly  carried  out  by  either  government  he 
better  .settled,  than  by  a  fribnnal  eho,sen  by  the  two  nations 
interested,  and    more  particularly  when  you  consider  that  this 

10  claim  was  allowed  to  come  before  this  tribunal,  by  the  ilirect 
special  agreement  of  both  nations. 

The  Commissioner  on  the  part  of  the  United  States: — We 
would  be  put  in  rather  a  bad  predicament  if  we  were  required  to 
reverse  the  judgment  of  the  Supreme  Court  of  Canada. 

Mr.  Peters  : — Your  Honor  makes  the  remark  that  you  .should 
not  be  called  on  to  reverse  the  judgment  of  tlie  Supreme  Court  of 
Canada.  We  do  not  ask  you  to  do  so ;  it  was  in  our  favor,  and  in 
any  case,  if  we  could  bring  before  ll-.is  court  a  state  of  facts 
different  from  those  before  the   Supreme  Court  of  (,"anada,  this 

20  court  would  have  no  hesitation  in  giving  judgment  according  t.) 
the  facts,  but  I  want  to  point  out  one  thing  now  which  perhaps 
I  did  not  biing  out  so  clearly  as  I  should. 

The  Commissioner  on  the  part  of  the  United  States : — The 
state  of  facts  may  be  one  tiling  and  the  reasons  given  by  the 
seiziiig  otHcer  another.  Hi-fore  j-ou  go  furtlier,  are  there  any  in- 
structions from  the  Jiriti--li  government  to  its  cruisers  ! 
Mr.  Peters  : — Tlio.se  instructions  are  in  the  case. 
Mr.  Warren  : — If  J'oui-  Honor  jilease,  they  are  at  pages  477 
and  47(S  of  our  ai'guiiii'nt. 

30  Ml'.  l)iekinson  : — We  agreed  upon  the  instructions  and  they 
are  exhibits. 

'I'lie  Cniiimissioncr  on  the  part  of  Her  Majesty  : — They  are  at 
the  fort  of  page  l."):!4  of  tin-  l{ccor(l. 

Mr.  I'eters  : — 1  would  like,  again,  to  refer  you  to  the  letter 
set  out  in  my  arguiiitiit  fioni  Captain  Johnston  to  ( 'omniaiKler 
Evans  at  pages  ](i!laiid  170.  H' you  notice,  he  undertakes  to 
seize  the  vessels  for  thice  alleged  crimes: — First,  for  breach  of 
the  I.^nited  States  revenue  laws;  second,  for  having  transferreil 
some  skins  to  a  steamer  ealK-d   the  "  Co(piitlam,'' and   it  will   be 

40  luhiiitied  that  under  neither  of  those  two  heads  had  tli(\y  the 
light  to  take  that  vessel  and  hand  it  over  to  Cajitain  I'arr  or  any 
other  otiieers  of  Her  Majesty's  navy  :  and  tliird,  having  on  board 
270  skins  and  a  conijilete  sealing  outtit  in  violatioli  of  the  terms 
of  the  niddnft  riirnili.  What  right  had  they  to  seize  or  luunl 
over  for  thati  eriiiie  >  When  she  was  handed  over,  as  the  jiro- 
ceeilings  shew,  she  was  not  handed  over  for  that  at  all,  but  she 
was  iiaiidiil  over  for  having  broken  the  moihis  riri'inli.  That  is 
the  crime  all(>ged  against  lier,  but  what  was  she  really  seize.l  Fdi-  ' 
She  was  seized  fur  a  c  inie,  wiiich,  if  it  hail  been  put  in  thatfoiiii, 

no  would  not  liii  ve  jiisi  ilied  the  handing  iier  over,  or  seizure,  at  all. 
I  do  not  tliiiik  it  is  necessary  for  me  to  sav  anything  more  about 
that  ctise.  'I'lie  e\  ideiiee  on  both  siiles  has  been  fully  set  out  in 
the  written  nr^uiiieiits. 

'J'he  ( 'oimiiissioiier  on  the  jiart  of  the  United  States:  —  bet 
me  a-k  you  another  i|uesti(]n,  This  is  a  very  interesting  matter, 
and  1  hope  i  will  be  excnserl  if  j  nsk  some  (|uestions.  'I'he  Seal 
Fishery  Act,  page  '2y.\  of  the  exhibits,  says  : — "  If  a  Hriti-^h  ship 
is  found  within  i'ehiiiig  S"a  having  on  board  tishing  or  shooting 
inipleiiieiits   (Ji-   seal  skiis,  or    bodies  of  seals,  it    shall    be  on   the 

(50  owner  or  master  of  such  snip  to  prove,"  and  so  on.  I'rove  to 
whom  ? 

.Mr.  I'eteis  : — There  is  just  the  point.  If  he  proves  it  to  the 
seizing  oltieei  at  the  time,  I  s;iy  his  duty  is  perforiiied.  Where 
are   you    led   to   if   xoiido  not  adopt   that  construction?     The 


507 


(Mr.  Peters'   St'cond   Arj^nitient.) 

statute  themselves: — "We  will  not  require  you  to  find  a  man 
"  itctiially  comiiiittiniif  an  offence;  we  will  not  recjuire  j'oii  to 
"  tiiul  him  catchinif  seals  :  we  will  not  re(|uire  you  to  see  him 
"  actually  committiii<T  the  crime  ;  hut,  if,  at  the  time  of  seizure, 
"  you  find  on  beard  that  ship  seal  skins,  or  seal  hodies,  or  arms, 
"you   may,  if  there  is  nothiii;T  else  to  the  contrary,  seize  that 

10  "sliip,  and  that  seizure  will  he  good  unless  it  he  proved  that 
"  those  things  are  on  hoard  honestly ;"  hut  the  point  here  arises, 
{)rove  to  whom  ?  I  say  there  can  he  no  better  waj'  than  to  prove 
to  the  seizing  officer  at  the  time  of  the  seizure  that  those  things 
were  on  hoanl  honestly,  and  not  for  the  puipose  of  breaking  the 
mo<lu8  vivendi.  Otherwise,  it  would  he  necessary  untler  that 
statute  for  a  United  States  vessel  to  seize  any  sealer  who  hap- 
pened to  be  in  Behring  Sea  with  seal  skins  on  board,  although 
known  at  the  time  that  she  was,  perhaps,  simply  taking  a  short 
cut  across  from  the  Japan  coast  to   Victoria,  or  that  stress  of 

20  weather  drove  her  there.  Knowing  the  facts,  they  would  still 
he  hound  to  seize.  Supposing  the  commanding  officer  of  the 
"  Mohican  "  had  .seized  the  "  Oscar  and  Hattie,"  and  the  master, 
on  being  asked  where  he  got  those  seals,  had  refused  to  give 
information, or  had  made  a  statement  which  there  was  some  reason 
to  doubt,  something  aro.se  that  caused  suspicion,  and  the  captain 
of  the  "  Mohican  "  was  not  satisfii^d  and  seized  the  ship,  I  say  he 
would  be  perfectly  justitie<l.  But  what  was  the  fact  here  ?  He 
liad  many  other  modes  of  information.  He  had  the  conimander'.s 
log,  shewing  wlie"e  he  had   been   hunting.     The  answer  to  the 

30  (|Uestion  that  your  Honor  puts  is  that  if  he  can  make  it  clear  at 
tlie  time  that  he  was  not  breaking  the  modus  vivendi,  that  is 
sufficient. 

Case  of  the  "  Hkxkietta." 

I  will  proceed  to  deal  shortly  with  another  case,  that  of  the 
"Henrietta";  and  I  will  again  refVr  to  the  argument  of  my 
Icarni'il  friend  on  the  other  sicle,  who  very  frankly  admits,  that 
the  United  States  were  wrong  in  the  nuunier  in  which  they 
dealt  with  that  vessel.  Tliis  admission  was  made  at  page  47(), 
40  where  he  says  as  follows  : 

"  The  Government  of  the  Uniteil  States  is  liable  for  the  fair 
"charter  value  of  the  'Henrietta'  from  the  (ith  of  September 
"  1.S92,  until  the  2.'h(l  of  Noveiid)er  l.S!),S,  together  with  such  losses 
"as  the  owner  actually  sustained.  The  boats  were  undoubtedly 
"  (Inumged,  legal  expenses  were  incin-red  at  Sitka,  and  the  value 
"  of  the  skins  depreciated." 

Also,  at  page  4(i.S,  he  perhaps  ptits  the  admission  a  little  more 
clearly.  It  is  a  very  fraid<  acknowledgment,  as  ndght  be  ex- 
pected from  103-  leamecl  friend,  that  in  this  paiticidar  case, 
.10  through  the  negli<reiit  act  of  some  of  the  otHcers  nf  the  United 
Stiites  government,  this  vessel  whs  treated  in  a  manner  in  which 
she  should  not  have  lieen  tn^ated.      He  says  : — 

"  Thegovernmer.tof  the  United  States  admits  its  liability  for 
"the  detention  of  the  '  Henrietta'  frum  the  (ith  day  of  Se[)ttMu- 
"  ber  l.Hi)2,  until  the  2.Srd  day  of  Novemlier  JSlt.S."  ' 

I  would  lik(^  to  make  a  short  statement  with  referencf;  to 
this  case.  I  find  that  the  "  Hei\riettn  "  was  a  vessel,  built  in 
ISSCi  ;  that  she  was  seized  on  Sipteudier  (ith  IM)2,  for  an  idleged 
bleach  of  the  miidan  rireinH  of  1M!)2;  that  she  was  impropeily 
DO  proceeded  against  for  another  allegi^l  offence  :.that  the  pioeee'l- 
iugs  weri!  afterwards  dropped,  and,  after  considerable  delay,  the 
Vessel  was  taken  buck  to  Victoiiii.  'I'lie  vessel  was  aetiuilly  re- 
leased on  the  2.'h'd  November  I  SOU.  I  want  to  bring  especially 
to  your  Honors's  attention  this  date,  November  2Urd  ISOU.     Up 


t: 


•;5ii 


(•! 


'  'l-'i:  ,    '-11, 
1 

r 

'      1 


|l      i. 


508 


(Mr.  Peters'  Second  Argument.) 

to  tliat  time  tlie  United  States  admit  llieir  liability.  In  tliat 
.  admi.ssinn  they  only  aiimit  liability  for  detention  ol:  the  ship  to 
the  2.'{rd  of  Novemlier,  18!)3.  Now  the  evidence  shows  that 
there  was  an  order  for  tlie  release  of  that  vessel,  made  some  con- 
siderable time  before  the  23r(i  of  November,  1893;  that  Captain 
Piiickney  went  to  Sitka  for  the  purpose  of  taking  charge  of  the 

10  vessel  ;  that,  as  a  matter  of  fact,  she  was  not  given  into  his  cus- 
tody until  the  2.'5rd  of  November,  1893  ;  that,  after  that  time,  in 
order  to  get  ready  for  the  voyage  from  Sitka  to  Victoria,  a 
further  very  considerable  delay  took  place,  and  that  it  wus  not 
until  the  23rd  of  January,  1894,  that  Captain  Pickney  was  really 
able  to  sail  with  his  vessel  to  Victoria.  So,  with  regard  to  the 
admission  u-ade  there,  my  learned  friend  could,  I  think,  and  your 
Honors  are  entitled  to  go  a  step  further.  We  were  deprived  of 
the  benefit  of  the  use  of  that  vessel,  not  only  up  to  the  23rd  of 
Novpn;ber,  1893,  when  actually  turned  over  to  Captain  Pinckney, 

20  but  until  the  17th  day  of  February  1894',  when  she  actually  ar- 
rived at  Victoria.  That  is  one  point  I  bring  to  your  attention. 
They  proceed  to  take  certain  objections.  If  you  remember, 
the  history  of  the  case  was,  that  the  vessel  wa.s  seized  on  aeount 
of  an  alleged  breach  of  the  mothtH  vivevdi,  but  that  when  she 
got  to  Sitka,  instead  of  being  tried  on  that  charge,  a  prosecution 
was  commenced  charging  her  with  breech  of  some  revenue  laws 
of  the  United  States.  You  will  I'emember  that  after  the  vessel 
arrived  at  Sitka,  Captain  Pinckney  left  for  Victoria  ;  that  the 
crew  of  the  vessel  also   had  pasMiges  taken  or  could  have  got 

30  [inssagcs,  by  the  same  steamer  that  Captain  Pinkney  sailed  in, 
but  thiit  the  United  Slates  Maisiial,  acting  no  doubt  under  the 
insti  uclions  of  the  seizing  officer,  did  not  allow  them  to  go  down 
in  the  steamer  "  Coquitlam  "  that  hap[)ened  to  be  there  the  ne.xt 
day  ;  iiut,  whilst  the  "  Coiiuiihim  "  was  at  Sitka,  they  imprisoneil, 
or  kept  their  liberty  from,  the  crew,  so  that  they  would  be  tle- 
■  taiiieil  in  .Sitka,  they  wanting  them  there  for  the  purpose  of  get- 
ting their  eviilence  for  the  prosecution  then  being  commenced 
against  the  "  Henrietta  ".  Then  Ca|)tain  Pinckney  went  to  Vic- 
tr.ri'i.      He  stayed  there  for  some  considerable  time  and  returned 

40  to  Sitka  in  July  and  came  back  to  Victoria  afterwards  in  charge 
of  the  vessel.  My  learned  friends  admit,  t)f  course  that  the  ex- 
penses of  Captaiir  Pinckney  irrcurred  ingoing  from  Sitka  to  Vic- 
toria are  prfiper;  but  they  say  that  we  make  a  chai'ge  that  Cap- 
tain I'iiK'kney  was  entitlecl  to  remuneration  for  the  tinte  he  was 
idle  at  Victoria.  They  say  :  "  You  are  not  entitled  to  that,"  and 
that  is  the  tirst  ([uestion  that  comes  up.  Tire  first  objection 
taken  is  that  there  is  soirre  8(ifl0  charged  for  the  master  for  e.x- 
penses  at  Vi'  toria.  All  we  have  to  say  with  reference  to  that  is 
(..'aptiiin  Pincktrev  was  there,  erirplo3-e<l  as  nrastor  of  this  vessel, 

50  and  we  contend  that  he  had  a  right — he  was  interrupted  irr  the 
comse  of  his  voyage — to  some  reasonalile  reirruneratiofi  for  tire 
tinre  that,  he  lost,  while  waitirrg  to  get  his  ship  back  agairr. 
The  airrount  of  that  remirneration  is  f(.i-  j-our  Honors  to  detei- 
iirirre.  We  say  that  the  surr>  of  i?(i()0,  under  the  evidence 
given,  is  not  excessive.  Wt;  do  subnrit  that  we  are  entitled  to  a 
reasonable  suirr  utrder  that  head,  and  that  it  matters  trot  whether 
he  stayed  at  Sitka,  or  whether  he  went  down  to  Victoria,  but 
that  he  is  entitled  to  it  nevertheless. 

The  Conrmissioner  on  the  part  of  the  United  States  : — What 

GO   is  the  itetir  of  !?700  on  the  next  page  ? 

Mr.  I'eteis  : — There  are  two  charges  mad«,  one  is  charged  for 
the  tinre  he  was  conrpelled  to  waste  as  he  says  at  Victoria.  He 
went  back  at  the  re(|uest  of  the  Lnitod  States  CJovernment,  sup- 
positrg  the  ship  was  going  to  be  released,  to  take  cliarge  of  her. 


.509 

(Mr.  Peters'   Second  Argument.) 

The  Commissioner  on  tlie  part  of  the  United  SMatts  : — Then 
that  should  he,  instead  of  "  expenses  at  Victoria,  SGOO  ";  "  loss  ot 
time,"  shouM  it  not  ? 

Mr.  Peters: — Loss  of  time  and  expenses  hotli.  He  says  he 
wns  put  to  a  considerahie  portion  of  that  expense.  In  order  tliat 
you    may    fully    understand,    it  is  just  as  well  to   look  at   the 

10  history  of  the  thing  as  it  occurred.  In  the  Hist  place,  the  vessel 
was  seized  in  September  1S()2 ;  tlie  captain  then  came  to 
Victoria;  he  stayed  there  a  certain  time  while  negotiations  wero 
talcing  place  between  the  two  governments.  Tiie  result  of  those 
negotiations  was  that  the  vessel  was  orcleied  to  be  released  ;and 
if  you  remember,  a  sort  of  option  was  given  to  the  British 
Government  whether  the  United  States  would  hand  tiie  vessel 
over  to  the  master  of  the  ship,  or  whether  they  would  send  her 
down  to  Victoria,  to  be  chargeil  under  the  moditu  vivendi.  That 
option  was  given,  and  it  appears  to  have  been  accepted  in  favor 

20  of  handing  her  over  to  the  master.  The  master,  then,  for  the 
purpose  of  taking  charge  of  his  ship,  again  went  to  Sitka.  He 
got  there  in  July,  I  think  it  was,  and  when  he  got  there, 
although  the  correspondence  sliewed  that  the  vessel  wks  to  be 
immediately  handed  over  to  him,  she  was  not  handed  over  until 
November,  and  he  did  not  get  away  until  February.  The  next 
item  that  we  charge  is  loss  of  time  waiting  delivery  of  ve.ssel,  at 
$100  per  month,  S700  ;  that  is  for  tiie  time  he  was  idle — not 
idle  exactly,  but  while  he  was  detained  at  Sitka  trying  to  get 
delivery  of  the  vessel,  which  the  United  States  had  agreed  to 

30  deliver,  and  did  not  deliver.  That  is,  his  wages  were  put  at  the 
amount  a  man  like  Captain  Pinckney  would  bo  entitled  to  receive 
and  in  addition  there  was  charged  the  sum  of  !?14S,  which  he 
swears  he  paid  out  in  expenses,  and  which  is  really  not  attacked 
by  my  friend.  This  is  the  way  my  learneil  friend  deals  with 
this  matter.  He  say,s; — "The  master  of  tha  vessel  left  for 
Victoria  two  days  after  his  arrival  at  Sitka,  that  it  cost  him 
about  $50,  to  go  down.  About  a  dollar  or  two  would  cover  my 
expenses  at  Sitka  before  leaving  for  Victoria."  I  do  not  think 
there  is  any  serious  objection  taken  to  that  .SoO,  that  is  charged 

40  here.  Then  he  says  he  remained  in  Victoria  until  Julj'  18'J8, 
this  is  taken  from  the  argument  of  my  learned  frietid,  "  When 
he  returned  to  Sitka,"  and  the  S7()()  was  a  charge  for  his  time 
from  July,  1893,  when  he  arrived  at  Sitka,  until  Feliruary,  1S!)4, 
when  he  was  enabled  to  get  away  from  Sitka,  which  time  was 
entirely  taken  up  and  wasted  on  account  of  his  having  to  wait 
for  the  vessel,  and  that  is  the  reason  we  charge  the  8700.  Then 
my  learned  friend  goes  on,  at  the  bottom  of  page  4()9 : — 

"Captain  Pinckney  testified  that  the  cost  of  returning  to 
"Sitka  from  Victoria  was  SoO,  and   that  he  incurreil  $14fi  for 

50  "  personal  expenses  at  Sitka  before  leaving  with  the  '  Henriet'.,a' 
"  for  Victoria  " 

There  may  be  some  question  about  the  different  items,  liut,  if 
you  follow  out  the  history  of  the  vessel,  you  will  see  how  these 
charges  we  have  made  here  come  in  quite  easily.  I  will  speak 
of  the  depreciation  of  the  vessel  in  a  moment.  Take  the  item 
of  three  boats  destioj'ed,  $255.  There  is  no  objection  to  that. 
The  boats  were  good  when  they  were  taken,  and  ruined  by 
worms  when  we  got  them  back.  Then  it  goes  on  items  in 
Exhibit  A,  page  108,  $913.    There  is  an  objection  rai.sed  to  some  of 

60  those  articles.  My  learned  friend  says  with  reference  to  the  $913, 
that  it  includes  the  item  for  boats,  and  that  that  part  of  it  is  a 
double  charge.  I  have  looked  into  this  matter,  and  it  appears  to 
me  that  my  learned  friend  may  be  correct  and  it  is  charged  twice 
over;  but  my  as.sociate,  Mr.  Beiciue,  says  there  may  be  some 


ki 


1.')  • 


1*' 


f  ••' 


fh: 


If 


510 

^Mi'.  Peters'   Hecontl  Argument.) 

diiulit  about  tlifit,  and  I  will  nmko  sure  of  it  before  tlie  next 
sitting.  My  learned  friend  savs,  further  on,  in  regard  to  this 
item,  on  exnniinii  g  the  exhibits  referred  to,  tliiit  almost  every 
nrtiele,  except  ])rovisi()ns,  wci'e  articles  undoubtedly  returned  in 
the  vessel.  On  this  point,  if  your  Honors  will  refer  to  the  (jvi- 
dence.    Record,  page   I(i(i.">,  line  ."jS,  and  pane   KiOS.  line   10,  and 

10  also  to  Kxbibit  fS,  you  will  Hnd  it  is  nnvde  up  on  this  prineii)li' ; 
in  the  tir.st  place,  all  the  articles  on  board  the  ship  at  the  time 
Klie  was  seized,  are  stated;  in  the  second  place  credit  is  given  for 
all  articles  returneil  when  the  vessel  was  returned,  aucl  that 
gives  a  net  balance  of  !*i)Kt.(iO:  so,  as  a  matter  of  fact,  that 
amount  is  right  with  the  exception  of  this  (|uestion  of  boats, 
which,  as  I  have  said,  I  think  is  charged  twice. 

If  you  refer  to  that  exhibit,  page  iS2,  you  will  see  the  theory 
on  which  it  is  nuide  up.  The  inventory-  is  headed;  "  Inventory 
"of  stores  left  on  boaid   schooner  '  Henrietta  '  after  seiznn^  in 

20  •'  September,  1(SI»2  ;"  the  list  is  given,  anil  at  the  bottom  is  creditecl 
the  things  returned,  at  so  mnch.  I  think  I  am  right  in  say  ing  that 
my  leiiriied  frienil  is  inMceurate  when  he  makes  tlu^  statenier.t 
that  the. •?!»!;!  inclndes  a  large  mnuber  of  articles  which  must 
have  been  retnrne<l  at  the  time  the  vessel  was  retuined.  We 
have  given  credit  for  everything  that  was  returned  in  this  very 
voucher. 

At  one  o'clock  the  Conimissioners  took  recess. 


30 

At  half-past  two  o'clock  the  Connnissiijners  resumed  their 
seats. 

Ml'.  Peters  : — During  recess  I  have  looked  cand'ully  to  ascer- 
tain if  these  boats  were  charged  twice  or  not,  and  I  find  that  as 
a  matter  of  fact  they  have  been  charged  twice,  so  that  we  will 
hav(^  to  stiike  oti  that  amount  from  that  item,  or  a  similar 
amount  from  the  next  item.  Of  corirse  the  repetition  of  this 
clmrue  was  entirely  unnitentional. 

40  The  next,  item  that  my  learned  friend   takes   objection    to  is 

the  first  item  ehaigeil  in  the  list — that  is  "depreciation  in  the 
value  of  the  vessel.  ?20()().0()."  In  support  of  my  learneil 
friend's  attack,  he  cites  in  his  arLiiuiient  the  evidence  given  liy 
Cajitiiin  I'inckney  who,  I  must  say,  stated  that  a  consideiidily 
snuiller  amount  wmdd  have  been  suHieient  to  lepair  the  vessel. 
That  eviilence,  however.  nni>t  tie  taken  in  coiniection  with  all 
the  evidence  we  have  before  us.  He  puts  it  at  8-00.00  as  a 
sufficient  sum  to  put  the  vesstd  in  a  state  of  satisfactory  re])aii'. 
It  will  be  within  tfie  menioiy  of  the  t'omnnssioners   that  when 

50  the  captain  of  the  vessel  mulerlook  to  take  the  vessel  from  Sitka 
to  Victoria  he  put  temriorary  repairs  on  the  vessel  just  suflicient 
to  bring  her  down  to  Victoria.  Now,  in  oriler  t.)  show  that  this 
witness  I'inckney  nnist  have  heen  speaking  of  temporary  repairs, 
or  something  of  that  <lescription,  I  will  refer  you  to  the  evidence 
as  to  the  value  of  the  vessel  liefore  she  was  seized,  which 
evidence  is  given  by  .Mr.  Tiirpell,  who  describes  the  vessel  as 
beintr  worth  8+000.  She  was  a  vi'ssid  of  some  ',]'!  tons.  The 
next  fact  shown  is  that  Mr.  Spring  owned  five-eighths,  or  a  little 
more,  of  the  vessel,  tbt^  other  partner  being  a   man    named    Fell, 

60  and  Spring's  interest  in  the  vessel  after  ,sho  came  back  sold  for 
SIOOO,  which  shows  that  she  must  have  been  in  a  dehipidated 
condition.  It  is  triu-  that  she  was  sold  under  execution,  but  at 
the  same  time  it  was  at  Victoria  where  you  woidd  naturally 
expect  that  a  reasonable  pi  ice  would  be  obtained.     We  also  refer 


511 


(Mr.  Peters'  Secoivl    Atfrnment.) 

to  the  oviilence  of  Fell,  who  was  tliR  othor  partner,  which 
evidence  is  set  onfc  in  our  arijiinient  at  j)aL;e  lot).  Wn  ilescrilieil 
tlie  condition  of  the  vessel  wlien  .she  canu-  liaok  :-- 

"  She  was  in  an  nnsi'awortliy  condition,"  he  said,  "  she  was 
"  just  what  you  nii>;ht  call  a  pateli  up  to  i;et  her  down  (to  Victoria) 
"  and  no  more;  everytliing  was  worn  out. 

10  "  Q.  Wliat  was  worn  out  especially  ?  A.  Well,  her  sails 
"  and  ropes,  and  they  told  nie  thej'  liad  to  borrow  ropos  from 
"  the  cutler  to  get  lier  down  with;  she  haii  no  paint  on  lier.  I 
"  cannot  say  anythitifj  aViout  the  worms,  i)ui,  she  was  leakiiiLT 
"  very  badly.  I  had  to  pump  her  out  every  morninir.  I 
"  neijh'cted  it  one  Sunday  and  she  was  teiribly  by  the  head;  in 
"  about  another  24  hours  she  would  have  sunk.  Aliout  two  or 
"  three  days  after  I  saw  her,  I  (jot  ii  party  to  j,'o  down  and  look 
"  at  her. 

Here  is  a  piece  of  evidence  to  wliich  I  wish   to  draw   parti- 

20  cnlar  attention  : — 

"  He  wanted  iier  for  immediate  use,  and  I  asked  him  a  piice  ; 
'■  lie  said  to  |)Ut  her  in  seaworthy  condition  at  once  wouhl  cost 
"  a  jfri'at  deal  ukjic  than  she  was  worth,  and  he  would  have 
'•  nothing  to  do  with  her.     The  price  nskcd  was  ^sl.TOo" 

Now  this  is  the  price  the  owner  of  the  ship  was  asking  for 
her  ill  Match,  1>H!)4.,  which  is  after  she  had  come  back.  You 
have  the  evidence  that  before  she  went  out  slie  was  wortli  84000, 
and  you  have  also  the  evidence  that  the  owni'r,  who  naturally 
desired  to  get  a  go.id  price,  was  asking   only   !<loOO.     The  price 

;iO  that  he  asked  was  refused,  so  that  notwithstanding  the  conten- 
tion in  rt!gard  to  Pinekiiey's  evideiiee,  it  seems  that  he  must 
have  lieen  thinking  of  temporary  repairs.  Besides  that,  although 
Pinckney  nuiy  have  been  a  veiy  good  captain,  and  may  have 
understood  sailing  a  ship,  there  is  absolutely  no  evidence  to  show 
that  lie  would  be  competent  to  give  an  opinion  as  to  what  the  est 
would  be  to  put  the  vessel  in  repair.  In  addition  to  that  and 
in  respect  to  all  the  vessels,  it  is  umlonbtedly  a  fact  that  it  costs 
every  year  a  certain  amount  to  jmt  these  vessids  in  rt'pair,  and 
W(>  have  this    vessel   seized    in   Sejitember,  bSD'J,  and    remaining 

411  without  repairs  until  March,  lfS!)4,  and  in  the  natural  course  of 
events,  a  sum  of  money  far  more  than  the  amount  mentioned 
by  Pincktiey  must  have  been  necessary  to  put  the  vessel  in  a 
reasonable  state  of  repair.  So  that  when  you  examine  the 
evidence  you  will  spe  that  when  we  ask  for  S2000  00  we  are  not 
asking  too  much  after  taking  into  consideration  the  time  tlie 
vessel  was  kept  from  us.  You  cannot  take  the  eviijeiice  of 
Pinckney  only,  but  you  must  look  at  the  other  evidence  in  this 
case,  and  the  evidence  in  the  other  cases,  and  what  we  all  know 
Would   be  the  circumstances    in   such   cases.      Now,  my   learned 

")()  friend  follows  on  with  his  argument,  and  at  page  47.'1  he  comes 
to  this  point : — 

"The  demands  of  this  claimant  are  so  grossly  exhorbitant,  so 
"absolutely  without  foundation  in  the  llecord,  and  so  unusual 
"  that  a  detailed  discussion  of  each  item  is  unnecessary." 

In  regard  to  that  statement  I  might  quote  the  words  of  an 
authority  cited  in  another  connection  before  this  Tribunal,  "  that 
is  elo(iuence  but  I  do  not  think  it  is  precision." 

"  The  High  Commissioners,  ui>on  inspecting  the  sche<lule, 
"  will  find  tliat  the  illustration  of  tlie  double  charge  for  the  boat.s 

CO  "  practically  represents  tiie  method  in  which  the  entire  schedule 
"  is  made  up'  Two  items  for  legal  expenses,  as  follows,  are  con- 
"  taineil  in  the  schedule:  'Legal  expenses  at  Sitka,  S112..")0;' 
"  '  Bel^'ea's  bill  re  proceedings  at  Sitka,  $11.'}.()0.'  I  do  not  know 
"  whether  my  friend  means  to  suggest  that  these  are  duplicate 


III 


t 

'!ti 

■!i: 


I'i 


\k 


|i 


I' 


IfFffw 


J      1 


512 


20 


(Mr.  Peters'  Second   Arjjuiiient.) 

"  cliarfjes.     I  do  not  tliink  he  does  becnuso  he  states  that  '  these 
"  items  are  supported  hy  tlie  Record.'" 

Mr.  Warren  : — Tliey  are  separated  and  di.stinguished  from  all 
the  others, 

Mr.  Peters  : — There  is  no  intention  then  to  say  that  these  are 
oveicharf^es.  Then,  as  to  the  item  "  Belyea's  bill,"  my  learned 
10  friend  sets  out  the  evidence  by  which  it  appears  that  there  was 
an  absolute  uj,'reement  that  Belyea  should  be  paid  that  amount. 
I  fail  to  see  why  it  should  be  objected  to.  There  is  an  objection 
made  to  the  clmr<j;e  of  Charles  Spring  for  personal  expenses). 
Whaf.  I  have  said  with  regard  to  the  claim  for  personal  expenses 
in  other  cases  applies  to  this. 

The  next  item  referrerl  to  is  as  follows  : — 

"  The  item,  '  105  skins  solil  at  Sitka,  S15.00  a  skin,'  does  not 
"  take  into  considerution  the  fact  that  the  captain  testifies  that  he 
"  obtained  8525. lo  for  these  skins  at  Sitka  ;  nor  the  fact  that  in 
"  the  Argument,  page  So,  line  50,  the  statement  is  made,  'in 
"  LSf)2  skins  were  worth  SU.OO.'  " 

I  put  aside  the  last  statement  as  already  argued,  and  as  to 
the  first  statement  in  regard  to  the  fact  that  that  $525  had  been 
realized  upon  the  pledge  of  these  skins,  I  say  that  if  that  were 
so  it  must  be  remembered  that  it  was  all  spent  in  getting  new 
sails  for  and  making  temporary  repairs  on  the  schooner,  which 
were  not  charged  for,  and  therefore  my  learned  friend  has  no 
right  to  take  that  item  into  consideration.  I  do  not  think  it  is 
necessary  to  go  through  all  the  items  mentioned  in  these  cases, 
Jf  the  history  of  the  case  is  followed  you  will  find  that  they  are 
simply  items  that  must  have  arisen  out  of  the  history  of  the 
case.  There  is  a  large  number  of  charges  made  for  the  time  the 
men  were  detained  there,  their  wages.  As  I  have  pointed  out, 
these  men  were  kepi  against  their  will  for  the  purpose  of  giving 
evidence,  and  it  was  shown  that  they  could  not  get  back  before 
a  certain  time,  and  we  charired  their  wages  and  their  livin'' 
expenses  at  a  rate  proved  by  the  United  States  to  be  reasonable. 
We  charged  SIO.OO  a  month  per  man  for  living  expenses,  which 
it  is  shown  in  the  evidence  would  be  a  proper  charge  under  this 
item.  I  think  that  when  you  follow  the  history  of  the  case,  the 
way  the  sliip  was  seized,  anil  the  way  the  men  were  detained, 
and  if  you  examine  these  items  one  by  one  it  will  appear  that 
each  one  of  these  items  arises  out  of  the  fact  that  the  ship  was 
seized  and  the  men  detained.  We  do  not  wish  to  make  any 
exhorbitant  claim,  but,  under  the  evidence,  I  am  justified  in 
denying  the  statement  made  by  the  learned  counsel,  that  these 
claims  are  of  such  an  exhorbitant  nature  as  to  call  for  no  com- 
ment from  him. 

Having  made  these  remarks  with  reference  to  this   case,  I 
5^  shall  leave  it  with  my  learned  friends  to  follow  with  other  cases. 


30 


40 


MR.  BEIQUE'S  ORAL  ARGUMENT  ON  SPECIAL  CASES. 

The  "Favol'ritk"  Claim  No.  4,  ]8«G. 

Mr.  Beique  : — I  have  been  entrusted  with  the  tluty  of  review- 
ing some  eight  cases ;  I  will  confine  inyseit'  merely   to  supple- 

10   nienting  the  BritLsh  Argument  in  relation  to  these  cases. 

The  first  case  which  I  will  take  up  is  the  "Favourite,"  claim 
No.  4,  for  188(j.  It  is  to  lie  found  on  page  lOG  of  the  British 
Argument  and  page  'Mid  of  the  United  States  Argument. 

She  is  admitted  to  have  been  warned  in  Behring  Sea  on 
August  2nd.  We  claim  for  prospective  catch,  for  proportion  of 
Captain  Warren's  expens^es  at  Ottawa,  for  Belytii's  bill,  and  for  the 
time  and  expenses  of  the  owner.  The  claim  was  objected  to  on 
the  ground  that  the  vessel  continued  its  sealing  operations  for 
the  balance  of  the  season.     Three  books  have  been  put  in  evidence 

0()  in  this  case — the  first  one  is  Exhibit  No.  7(3,  Great  Britain,  some- 
times referred  to  as  No.  12  for  identification  ;  it  is  a  sealing  book 
kept  by  Captain  McLean  on  board  the  vessel  from  the  time  f-ho 
vessel  left  Victoria  in  February  to  the  81st  July.  The  vessel 
went  on  a  coast  trip,  returned  in  may  to  Victoria  when  she  left 
41!)  skins  and  started  for  Behring  Sea.  In  this  book  Captain 
McLean  entered  from  day  to  day  the  po.sition  of  the  vessel  and 
the  daily  catch.  The  next  book  is  Exhibit  No.  75,  threat  Britain, 
referred  to  as  No.  11,  for  identification.  Jt  is  al.so  a  sealing  book 
kept  by  Captain  McLean,  being  a  continuation  of  the  first  one, 

;{()  commencing  on  the  1st  of  August.  The  third  book  is  what  is 
known  as  the  Sealing  Book  of  Captain  McLean,  his  book  con- 
taining general  information  on  sealing.  This  book  is  Hied  as 
Exhibit  No.  9,  of  the  C^nited  States,  merely  in  connection  with 
page  .")  of  the  book,  where  the  catch  in  Behring  Sea  is  to  be  found 
amounting  to  22o().  In  regard  to  the  catch  of  the  "  Favourite  " 
I  desire  to  call  your  attention  to  the  daily  catch  in  .luiy,  from 
Exhibit  No.  7G.  It  appears  that  on  the  0th  of  June,  before 
entering  Behring  Sea,  there  were  17  seals  taken,  and  on  the  10th 
there  were  ;i,  making  20  in  all.     The  vessel  entered  I]ehring  ,Sea 

40  on  the  8th  Jul}'  and  commenced  sealing  on  the  Dth.  In  July  the 
catches  were  as  follows :— Jul v  !)tb.  11  ;  10th,  16  ;  11th,  7n  :  'l2th, 
li:5:  i;kh,  10(1:  14th,  17:?;  15th,  i:W  :  IGtb,  24;  17th,  47:  I8th, 
i:i'J;  20th,  11:5;  21st,  124:  22ml,  48 :  24th,  !)2  :  25th,  31 :  28tb, 
IG;  2<)th,  154;  ;}Oth,  Hi):  Sl.st,  lOG.  In  all,  from  the  9;,h  of 
July  to  the  JVlst,  inclusive,  1()44.  These  figures  are  taken  from 
Exhibit  No.  7G,  and  are  admitteil,  I  believe,  by  the  other  side. 

Then  we  find  on  reference  to  page  5  of  Exhibit  9  of  the 
United  States,  that  in  August  there  were  taken  on  the  1st 
Aug.,  128;    2nd,  118;    :kd,  142  ;    lOth,  125  ;    I'Jtli,  in   the  pass 

.')()  returning,  G2.  This  gives  575  taken  in  August  and  1,G44  in 
July,  or  a  total  of  2,21G,  which  with  the  20  taken  on  the  9th 
and  lOth  of  June  would  make  a  total  of  2,239.  There  is  there- 
fore u  deficit  of  20  unaccounted  for,  as  it  is  claimetl  in  the 
United  States  brief  that  the  total  catch  amounted  to  2,259. 

It  is  claimed,  on  page  3G9  (;t  the  American  brief,  at  the 
bottom  of  the  page,  that  the  cateh  throughout  the  entire  sealing 
season  was2259of  skins, ()75  whereof  were  taken  after  the  warning. 
This  is  evidently  an  error  because  from  the  figures  given  the  whole 
i|nantity  taken  in  August  was  575,  from  which  the  skins  taken 

(io  on  tiio  lat  of  August,  128,  have  to  be  deducted.  The  118  taken 
on  August  2nd  nuij'  possibly  be  considered  as  having  been  taken 
after  the  warning,  because,  I  believe,  it  is  in  evidence  that  the 
warning  took  place  at  two  o'clock  in  the  morning.  Now,  if  your 
Honors   refer   to  the  two  charts  to  which  Mr.  Bodwell  called 


te 


ll 


i: 


Si 


I* 


t;'- 


1'^ 


'■! 


(-■■■ 


m: 


u  ^ 


i'         I! 


-    t:,ll-       ■ 


v!' 


t:jlilTjTit-a-'t" 


,,.r 


-^Kom 


'^^ 


!iU 


(Mr.  Bei(;ue's  Oral  Arjjuinent  on  Special   Cases.) 

attention  during  liis  arj,'uuient,  you  will  .see  that  tho  vossol  I'tdiii 
the  timo  that  Hhc  eiiteri'd  Hehring  Soa  until  the  '\n\  of  August, 
remained  practically  on  the  sanie  ground  and  that  after  the  .'trd 
of  August  .she  covered  a  very  large  territory.  At  that  time  tlu' 
vessel  had  not  only  its  own  catch,  but  had  also  ")07  skins  whieli 
had  lieen  transferreil  from  the  '  Onward,'  so  that  she  had  reallv 
IQ  some  2,800,  and  McLean  being  aware,  as  he  was,  not  only  that 
the  vessel  was  warned  against  scaling  in  Behring  Sea,  but  that 
the  '  Onward  '  the  '  Thornton  '  and  the  '  Carolena  '  had  been 
seized,  it  would  not  be  crediting  him  with  common  sense  if  he 
had  not  tried  to  avoid  being  seized. 

This  was  undoubtedly  the  reason  why  he  left,  on  the  nigiit 
of  the  .'ird  of  August,  a  sealing  ground  which  had  prcjved  to  be 
so  profitable  and  covered  the  large  territoiy  shown  by  this  chait. 
Now  it  is  attempted  on  the  other  side  to  satisfy  us  with  the 
catches  of  the  lOtli  and  lf)th  of  August,  amounting  in  all  to  1H7, 
20  for  practicnily  the  month  of  August,  when  tho  vessel  with  her 
crew  of  si.\  white  men  and  twenty  Indians,  ten  canoes  and  one 
large  stern  boat,  had  taken  1()44  .skins  from  the  !)th  July  to  the 
iHst  July,  and  bad  taken  in  the  tbieo  (irst  days  of  August  .'iMS 
more,  in  all  2,();J'2.  Now,  are  we  to  be  satisfied  with  187  seals 
nu)re  ?  It  seems  to  \\\c  that  it  is  unreasonable  to  take  that 
position  ;  it  is  (|uite  evident,  from  the  Kecord  and  from  ailuiis- 
sioiis  made  by  Mcliuan  and  the  evidence  of  Spring,  to  which  I 
will  refer,  that  we  are  entitled  to  a  much  larger  catch.  It  will 
be  suthcient,  however,  for  me  to  call  attention  to  the  fact  that 
;}()  McLean  admitted,  us  wns  proved  by  Spring,  that  there  was  nn 
understanding  l)etween  them,  when  be  left,  that  he  was  to 
remain  in  the  sea  as  late  as  possible:  there  was  no  reason  for 
his  leaving  e.\cept  the  warning  :  he  had  provisions  to  remain  up 
to  the  1st  of  September,  and  no  reason  can  be  assigned  for  his 
leaving  soone-r  except  the  warning  and  the  seizure  of  other 
vessels.  Captain  McF.,ean  was  on  the  best  sealing  ground  when 
he  was  warned,  lie  took  IIS  skins  on  the  2nd  and  142  on  the 
3rd,  luit  he  was  no  doulit  afraiil  of  being  seized,  and  he  navi- 
gated from  that  j)lace  for  the  pm'pose  of  avoiding  cutters.  No 
40  other  explanation  can  be  found  from  bis  po-sitions  as  appearing 
in  tho  lo^'. 

Mr.  Warren  : — Will  we  be  furnished  with  copies  of  these 
charts  ? 

Mr.  I)ei(|ue  :— Yes,  they  are  being  prepared;  you  will  have 
them   to-day.     They  are  made'  from  the  log. 

Now,  as  to  the  charges  for  proportion  of  Captain  Warren's 

expenses,  Helyea's  bill,  and  the  time  and  expens(^s  of   the  owner, 

tiiey  rest  on  the  general  evidenci:  referred  to  in  the  cases  of  the 

"  Carolena  "  and  the  "  Onward."     i  do  not  think  it  necessarj'  to 

50   ad<l  anything  in  connection  with  this  case. 


GO 


Friday  afternoon,  Sept.  10th,  3.30. 

TiiK  "  I5f,ACK  Di.\.\u)M)"  Claim  No.  o,  IScSti. 

Mr.  l>ei(|ue: — The  next  case  is  the  "Black  Diamond,"  claim 
No.  5,  liSSG.  It  will  be  found  in  Great  Britain's  Argument,  page 
lOS,  and  in  the  United  States  Argument,  page  37"). 

The  first  ground  of  objection  taken  is  that  this  o'n.im  does  not 
fall  within  the  scope  of  the  Convention.  I  have  already  covered 
that  point,  and  I  have  no  intention  of  repeating  what  I  said  in 
that  connection.  However,  I  shall  call  your  Honors'  attention 
to  the  memorandum  which  accompanied  the  letter  of  Sir  Julian 
Pauncefote  to  Mr.  (iresham,  printed  on  page  2G  and  27  of  the 
Record.     I  think  I  did  not  call  attention  to  that  in  my  previous 


81S 

(Mr.  Bei(|Uc'H  Oral    Argument  on  Special  Cases.) 

arf^unient.  Vour  Honors  will  also  Hn<l  on  page  1808  of  tlio 
Record  the  comproiniso  lietween  the  parties  in  connection  with 
this  case. 

5Ir.  Dickinson  : — Thecorrpspondenct.'  you  just  referred  to  wa.s 
in  connection  with  that  compromise. 

.Mr.  Hi'i(|ue  : — It  was  in  connection  witii  the  presenting  of  tlie 
|(i  claiiii  of  till' "  Ulnek  Diamond,"  and  stating  tiie  reason  wliy  the 
iliiim  had  not  been  presented  before. 

Now,  as  to  the  facts,  the  case  rests  mainly  on  the  evidence  of 
Ciii>tuin  I'lixton,  ll(!cord  pay;e  17.")(i,  and  of  Owen  Thomas,  pages 
17fi(i  and  17+4.  The  grounds  of  dcfenci;  are  s\nnmed  n|)  in  the 
.Vmerican  Arginiicnt  on  page  '.iHO,  as  follows  ; — Tirst,  "  I'hat  the 
■  'HIack  Diamond'  was  not  seized  f)r  warn  1  in  1880  by  a  United 
"  States  revenue  cutter,  as  found  with  reference  to  tiie  vos-iels 
"  nameil  in  Annex  C  a])pended  to  the  award  of  the  Tribunal  at 
"  Paris."  This  ground,!  believe, is  covered  by  the  argument  I  offered 
•)(-)  on  the  (|Uestit)U  of  the  scope  of  the  Convention.  Second,  "That 
"  no  warning  was  given  this  vessel  by  any  person  acting  with 
"authority  on  behalf  of  the  I'nited  States." 

We  claim  that  there  was  a  warniuLr.  That  the  warning  was 
given  by  the  collector  of  ('ustoms  at  Ounalaska  on  the  Hrst  of 
.luly,  the  evidence  is  referred  to  in  our  brief. 

The  ])ropi)sition  asserted!  here  is  that  the  Collector  of  Customs 
in  OiMiaiaska  had  no  aiithoi'ity  from  the  Cnited  States  to  give 
warning.  It  seems  to  uu'  that  he  had  authority  ;  he  was  siip- 
))i)seil  to  have  authority  fioni  the  position  he  occupied  ;  when  it 
;',(i  is  in  evidt'uce  that  th(^  United  Stiitrs  (Juvernment  had  decided 
to  seize  all  vcsseds  found  sealing  in  l^ehring  Sea.  and  when  they 
had  given  writti'n  instructions  to  the  en*  crs  of  the  United 
States  to  seize  all  vessels  sealing  in  Hehriog  Sea,  it  was  not 
iieci'ssary  for  us  to  wait  for  seizure,  or  even  for  warning.  It 
seems  to  me  it  renders  the  evidtuice  of  warning  n)uch  more  easy 
than  it  would  otherwise  be.  TIh;  vessel,  notwithstanding  iho 
wnvniug,  entered  Mehring  Ssa  and  continued  sealing  for  some 
time,  but  afterwards  hearing  from  the  '  \'anderbilt '  that  vessels 
had  been  seized,  she  decided  to  leave  Bohring  .Sea,  and  did  leave 
■l-O  for  till'  Pass  immediately.  He  was  not  ()l)liged  to  wait  for  seiz- 
ure, and  this  ground  of  defence  sot  up  l)y  the  United  States 
ought  not  to  hoiil. 

The  third  ground  is  that  the  vessel  lemained  in  Behring  Sea 
until  the  lOtli  or  l.')thof  August,  when  she  sailoil  with  her  cargo 
of  seal  skins  {ov  N'ictoria.  The  evidence  is  that  the  captain 
received  information  on  the  -tth  of  August  that  vessels  had  been 
seized,  and  after  consulting  with  his  mate,  tiiey  both  decided 
to  make  for  the  Pass.  The  vessel  was  not  a  very  large  vessel, 
iiud  meeting  with  bad  weather,  it  took  them  initil  some  time 
."()  iiliout  the  12th  or  14th  of  August  before  the}*  could  actually 
le.ive  the  .Sea,  but  they  did  not  seal  after  th  4lh  of  August. 

The  next  ground  of  defence  is  that  "  Had  the  vessel  not  left 
lli'liring  Sea,  she  woidd  have  terminated  her  voyage  between 
tiie  20th  and  2.^th  August."  This  has  been  coveretl  by  the 
general  argument  made  by  Mr.  Bod  well. 

The  remaining  ground  is  in  connection  with  the  position  of 
.VIexander  Frank,  his  citizenship,  and  his  interest  in  the  venture 
of  the  vessel.  I  have  <lealt  with  this  point  in  my  general 
argument. 
(Ill  .Mr.  Warren  : — Pardon  me,  Vmt  you  said  that  the  answer  to 
the  proposition  that  hail  the  vessel  not  left  Behring  Sea  she 
\v(julil  have  terminated  her  voyage  between  the  20th  and  2.5th 
uf  Aus»ust,  was  made  by  .Mr.  l:5;)dwell.  Might  I  ask,  about  to 
what  time  you  claim  the  voyage  would  have?  extended  f' 


ii: 
11 


m  ■)  1' 


i*-' 


\'\i 


616 

(Mr.  Hei(|Uo's  Oral  Argument   on  Special  CaseN.) 


Mr.  Beiijue : 
line  48. 


-About  tlio  end  of  August :    HocurJ,  page  1757, 


The  "Ai.kukd  Adams"  Clai.m  No.  8,  (I8>s7.) 

The  ne.xt  case  is  the  "  Alfred  Adams, "  claim  No.  H,  It  wan 
tiiki'n  up  in    the    Itritish  Argument   iit  page   IKi,  and    in   tlic 

10  United  Stales  Argument  at  page  392.  On  reference  to  tlu! 
Record,  page  1M()2,  line  2i>,  your  Honorn  wUl  find  an  admission 
that  the  vessel  had  outfitted  for  the  usual  Hehring  Sea  voyage, 
and  on  the  same  page,  line  •'>.'>,  that  she  had  ten  canoes  and  on*- 
Htern  boat.  We  claim  in  connection  with  this  vessel  l.'}8(j  .«kins, 
and  the  American  brief  allows  (jnly  1382.  There  is  evichinci' 
that  there  was  a  dispute  between  the  captain  of  the  revcniio 
cutter  anil  the  master  of  the  vessel  n.s  to  the  number  of  skin«. 
The  moster  of  the  vessel  claimed  that  there  was  an  error  in 
counting  the  skins  ;  that  there  wore  really  l.SSO  ;  anil   the   vcr- 

20  t*ion  of  the  master  is  corroborated  by  three  of  the  men.  On 
referring  to  the  atlidavits  of  Peterson  an<l  of  two  other  mendjeis 
of  the  crew,  your  Honors  will  find  that  they  corroborate  tin.' 
mastei'  entirely.  The  Rtli<lavit  of  VViiliam  Dyer  is  at  page  IHHI). 
and  that  of  the  other  members  of  the  crew  on  pngn  1:{()1. 
There  is  a  special  mention  made  in  the  atlidavits  of  the  dispute 
between  the  master  of  the  vesstd  and  the  captain  of  the  cutter. 
I  find  it  stated  in  tiio  American  bi  ief,  page  ;{!)2  : — 
"  There  is  no  evidence  in  the  record  that  the  '  Alfred  Adams  ' 
"continued  her  .sealing  voyage  after  being  seized,  but  her  captain 

30  "stated  in  the  atlidavit,  read  into  the  Record,  that  ho  refused  to 
"obey  the  instructions  of  the  boarding  otiieer  of  the  '  Hush'  to 
"  proceed  to  Sitka,  iiiul  insleatl  started  for  Victoria,  arriving  at 
"  that  port  on  the  31st  of  AulmisI," 

It  is  in  evidence,  and  undisputed,  that  the  spears  and  guns 
were  seized,  and  therefore  there  was  no  object  in  reuniining  in 
Hehrins'  Sen,  and  thev  could  not  have  continued  sealing.  Tlie 
balance  of  the  defence  bears  on  tlie  question  of  American  citizen- 
ship, and  the  pretended  interest  Fraidc  had  in  this  vessel  ;  I  need 
not  repeat  what  I  said  in  my  general  argument  on   that  point. 

40  I  do  not  think  it  is  neces-^ary  for  nie  to  refer  to  the  items  of  claim 
in  this  case  :  they  are  not  disputed.  The  only  items  objected  to 
are  the  lei.'al  and  pei'sonal  expenses,  which  are  covered  b}'  the 
general  evidence.  I  must,  howijver,  call  your  Honors  attention 
to  the  fact  that  we  claim  in  this  ease  for  one  Winchester  ritlc  ; 
this  is  a  niistake,  we  are  allowed  for  three  in  the  Americen  brief, 
wliicli  makes  a  ilitference  of  seventy  dollars. 

Till':  "  r.i.ACK  Diamond  '  (  "i.ai.m  No.  1.")  an'd  tiii:  "  hii.v  "  t'r.AiM 

No.   U),  (ISSIt.) 

50  Tile  lu'.xl  case  is  the  "  Black  Diamond"  claim,  No.  15,  bSM). 
It  was  taken  up  in  the  British  Argument,  page  137,  and  in  the 
United  States  Argument,  ])nge  423.  This  case,  and  that  of  the 
"  Lily,"  were  dealt  with  under  the  same  head  or  in  the  .•■aiiie 
chapter  in  the  .Vmerican  brief. 

The  "  Black  Diamond  "  entered  Bohring  Sea  on  the  (ith  of 
July,  and  ciinnicneed  sealing  on  the  10th,  when  she  took  7(i  seals, 
and  was  seized  on  the  lltb  of  July,  when  she  had  taken  .j")  more, 
and  was  in  expectation  of  taking  a  large  number  on  that  very 
date.     The  seizure  of  this  ves.sel  i.s  aggravated  by  the  fact  that 

(JO  as  appears  from  the  report  in  the  evidence  at  Sitka,  the  com- 
mander of  the  cutter  made  preparations  to  tire  upon  the  schooner, 
antl  that  be  ordered  the  locker  to  bo  broken  for  the  purpose  of 
removing  the  papers.  The  vessel  was  put  in  charge  of  the  seamen 
of  the  "  Rush,"  and  ordered   to  proceed  to  Sitka,  but  instead, 


10 


•21) 


ao 


517 

(Mr.  Bei(iue's   Oral  Ar^juinent  on  Special  C'lises.) 

proceeded  to  Victoria.     I  am  not  awaro  that  there  were  any 
special    uxceplloiH    taken    to    the    items  uf  chiiiiiH.     The   main 
defence  as  t(j  thiiso  two  vessels  rests  on  the  citizenship  of   Alex- 
ander Frank.     The  C(jntention  amounts  to  this  :  (hat  althoiifjh 
we  hiivo  proved  hy  the  re;^ister  of  l>c)th   vessels  that  ot»  the  10th 
of  November,  IcSH.S,  they  .were  sold  to  Morris  Moss,  the  allidavits 
of  Frank,  taken  in  lHH7,are  to  he  nseil  for  the  purpose  of  showinjj 
that  he,  Frank,  was  the  owntrr  of  the  vessels  in    IHS,9  when   the 
stMZurtM  took  place.     They  pretend  that  the  evidence  of   i'Vank 
is  not  to  liii  lielieved,     I  am  not  aware  that  there  is  anythin^j  to 
discredit  Frank  ;  lint  whether  he  is  to  lie  believed  or  not,  we  do 
not  rent  our  claims  in  either  of  these  cases  on  his  evidence  at  all  ; 
we  rest  on  the  title  as  appears  from  the  rej,'ister.     We  claim  that 
I'" rank  was  n  )t  the  owner  in  liS87,  Imt  even  if  he  was,  and   if  he 
e()ntinu(.'d  to  he  the  owner  up  to  November  iOtli,  IMHS,  it  does  not 
follow  that  ert'ect  is  not  to  be  jjiven  to  the  two  bills  of  sale  of  iho 
lOth  of  November,  IHHH.     On  pajje  2!)  of  our  reply  that  point  is 
discussed.     The  re^'ister  of  the  "  Black  Diamond  "will  be  found 
ill  tlie  (::;!)i!)iti,  piye  .'17(),  ami  of  the  "  Lily,"  orif^inally  known 
as  "  Alfred  Adams,"  on  p:i;{e   1!)7,  and   the  new  rejjister  for  the 
"  Lily,"  on  paj^e   ;-!84  of  Appendix  B.     It  is  pretended   that  the 
bills  of  sale  have    not   been    put  in    cviilence,     I    am    not   sure 
whether  the  bills  of  sale  are  in  or  not.     I    have   looked   in    the 
Hfcord,  and  failed  to  Hnd  them.      But  they  are  not  re(|uired,  the 
re;{ister  is  conclusive  evidence  on  that  point.     Under  the  British 
law,  and,  I  daresay,  under  the  American  law,  no  change  of  retjistry 
ciui  be  made  before  the  bill  of  sale  supported  by  aftid'ivit  is  pro- 
dueeil. 

The  fact  that  the  ves.scls  were  sold  to  Morris  Moss  is  confirmed 
by  the  evidence  of  Frank  taken  in  Victoria  on  the  last  day  of 
tlu!  sittinji  of  the  Commission,  and  to  which  there  was  no 
objection. 

It  is  stated  in  the  American  Arifument  that  Frank  really 
purchased  the  estate  of  Jacob  (iutnuin,  and  therefore  accjuired 
llie  ]iroperty  in  these  ve.ssels.  That  is  adnntted  to  a  certain 
extent.  There  is  evidence  that  he  bouj;ht  previous  to  the  JSth 
of  November,  LS8.S,  the  whole  estat(!.  He  had  a  rii;lit  to  buy 
the  whole  estate,  but  as  he  had  no  rijjht  to  own  Bi'itish  vessels, 
he  eoulil  not  have  them  roj^istered  in  his  name.  He  bouy;ht  the 
estate  for  pur[)a.se  of  licpiidation,  and  made  provision  to  dis- 
p(jKe  of  it  as  fast  as  possible,  he  arranjjed  for  the  disposal  of  the 
vessels  to  Morris  Moss.  '!"h(>  bill  of  sale  was,  mad(!  over  by  the 
executors  of  the  estate  of  (iutnuui  to  ilorris  JIuss,  on  the  <Sth 
of  Novendjer,  1888,  for  the  two  vessels. 

TiiK  "Pathkisdkk"  Cl.Al.M  No.  21,  (1800.) 

;,Q  A",  to  the  "  Patbtinder  "  claim,  No.  21,  1S!)(),  diseussed  in  the 
iifitish  Ari^ument  pa<;e  1 04,  and  in  the  United  .States  Arjfinnent 
pi;;e  4()2,  and  in  the  British  Reply  pajje  ',U,  your  llomirs  will 
see,  on  rel'errin;^  to  tlu>  United  States  brief,  that  the  defence  is 
on  its  own  face  utterly  unfoundcil.  In  the  lii'st  para;^raj)h  it  is 
.ille^ed,  "  That  the  seizure  was  made  on  the  ijround  that  the 
"vessel  had  been  .seized  in  Behrinjj  Sea  in  the  year  188!t  for 
"  violation  of  the  municipal  laws  of  the  United  States,  and 
"  instructed  to  proceed  to  .Sitka,  there  to  be   surrendered  to  the 

■  .luthorities  ;  and  that  slu;  bad,  contrary  to  instructions,  jriven 
Co  "  lier  captain  by  the  ollicer  of  the   United  States  cutter  '  Hush,' 

■  refused  to  surrender  to  the  jurisdiction  of  the  Uourt  of  the 
"  United  States  in  the  territory  of  Alaska,  but,  instead,  proceeded 
"  N'ietoria,"  Here  is  a  positive  .statement  that  the  <fround  of 
K-izure  was  because  the  vessel  had  disreifarded  instructions  iriven 


40 


1 1.1 


'      I 


lit 


^ 


;i^i; 
ir 


'I  ; 


IJ, 


m 


I 
J: 


>  in 


(Mr.   Bi'i(Hic's  Oral  Argnmt'iit  f)n  Spocial  Caios.) 

liei-  tlio  year  Iv.'foiv,  iii  isS!),  1 1  prD.roi'il  t;i  Sil.ka  fur  t'lc  purposi- 
of  l)oiii!f  coiidi'iniii'  1  in  tho  eotirts  of  Alaska.  On  pat^o  4()."'),  it  is 
furtlior  alloi;t'il  'that  tlw  voss(}l  wassoizcil  within  tli»^  jiirisiiicti 


)F  tliL^  Uiiitt'il  Stat(!s;  tint  the  sclioDii^'r  havin<r  b 


I'en  iDrciM 


1  iiiti 


Xivili  B'lV  (wliero  thi>  si'i/.nrc  tituk  placi')  uikKt  distress,  she  hal 

tln>  rijrht  to  (lop.irt  \vitli')iit  interforonco,  hut  that  it  \va>  iiioiiiu- 

10   biMit  lip  )n  h  M-  owiiiT  to  claim  that  |)rivil(\<jL',  which  he  failed  to 


do. 


And  on  these  fa'-ts,  tlvy  say  no  (hiina;;es  can  be  awai'.led. 
One  would   hardly    expect    that  at  this  sta^v  of  the  eout 


ro- 


vi'i'sv,  the  [''nite  1    States   would    still    claim    the    riirlii  to  eil'ii  t, 


li.'hriM'j  Sea  foi'  alleLi'ed  violatini 


seizures  of  Mritish  vessi 
t  iieir  muuicip  il  laws. 

if   I    miy    h"   p'rmittel    tii    assum  ■    that   tliev  had  n( 
I'lirht,  it  would   .se 'Ui    to  follow    loii'ieallx'    that  in  disoUevii 


o\v    loLi'ieally    tliar  ui  (lisoOeyiiiy  uk 

d   to    Sitka  for  the  pur|)osi'  di  lii-in;^ 

"20   tried,  iind    no    iloubt  coudemiieij    and  declared    fori'^'ited    to  th' 


nisti'uetioiis  ijiven  to  pr 


benetit  of    the  Ignited  States,    the  vessel    cuuniiitie  1 


no  uiifUci 


I  th.it  thei'efore  this 


llleirei   oltelice  col 


uld    hardiv  iustifs'  tl 


new  siMZUre,  wli' 


inide  within  the  jurisilietion  of  the  Unitid 
ler  had  entered  Ne;di  r.iv 


States  or  not,  and  whether  the   scdux 
under  (listro^s  or  for  inerciintili'  ])iirposes. 

Mr.  Dickinson: — Voii  are  aware  that  the  "  I'atliHnder"  case 
is  treated  in  anotlier  part  of  our  brief,  page  !")()  of  the  ITnited 
States  Arguini'ut. 

Mr.  I'l'ters:— On  the  ijuestion  of   catch    more  than  anything 


:iO    el!- 


Mr.    1) 


icKuisDu  : 


Oi 


page     i.")l!  there     is     C( 


HisideiMlili 


atti'iition  given  ti>  the  whole  question,    and  I  did    not  kriw  hut 
that  you  might  have  omitted  to  observe  it. 

^fr.  I.Jeiipie  :— There  is  a.  reference  made  to  that  case  at  page 
l.")(i  of  the  .Viiiei-ie.in  l)rier,  but  the  eontenti-.!!;  ret"  "v.  t!;"  same 
assumption  —an  Mttem])t  is  mnde  to  defei]<l   the'  second  seizure. 


n  tlu'  first  si'izur(>  wl 


ucii  waii  iii(>iiai 


Till-    -WiNin!!;!""  ('1..MM    \<>.  -24.  (lsn-2,) 


1.0 


The    iK'xt     C'lse    is    that    of     tl 


W 


iiniifrecl"    (('lain 


■24  (  lMt"2)  liiitisli  .Argiiinent,  page  172  :  I'liited  Stati-s  .Argument 
''.'A  and  4S4).  Atp'ige  IT);}  of  the  .\meriean  Argument  the  claim 
isobjected  to  on  two  grounds  :  1st.  That  C.iptain  I'arr, as  captain 
of  a  British  warship,  consented  to  the  in'ocediircf  adopted  liy  the 
(■nitecl  S^.it.es.  and  that  hisnetion  was  liindingon  (Jreat  lirit.iin, 
;uii|    e-tii|i-.    I  he    latter  frcHii   now    ]iresenting   t\n^ 


claim,     zm! 


That  the  uwu'-r  of  the  ship  h.ad  im  recourse  against  the  United 
States  until  he  had  availed  him^i'lf  of  rvery  right  of  appeal 
."lit  which  the  law-  of  the  United  Stales  atlordiMl  him,  ami  that,  it  is 
nut  Mpcn  t  '  ihi^  ( 'ommissiiin  to  revise  thc^  ainimi  of  the  .Vlaska 
coin! . 

d'lii'     lir-t    prnjiiisitiiMi     is    attempted    to    be      sUp|lort<'d      by    a 


citathin  Ir^oii 


ilali.  on  i  uteiaiatiomil   law,  section  (i"i.     ( )n  refer- 
tiuu  t'l")  it  will  lie  founil  that  the  (piestion  discussed  is 
as  to  whethi'i' a  <  lovernnii'iit  will   not  imair    liability  for   illeuul 


■nee  Id  -'ei 


acts  of  their  otlieers  -we  will  sav   iia\'al  oliieer 


.Mv  atti'iition 


is  called  to  the  following  jiortioii  of  section  0") : — 

"  its  administrative  ntlieials  and  its  naval  and  military  t:om- 
(iO  ■■  mand.rs  nv  eiv^a^'ed  in  carrying  cmt  the  policy  and  the 
"  liartiiailar  mdirs  of  the  tiovernmeiit,  and  they  are  under  the 
"immediate  aii'l  disciplinary  control  of  the  t^xecutive.  I're- 
"sumalih'  tle-rrfori',  act--  done  by  them  ai'e  act.s  sanctioned  hy 
'  the  stale,  and  until  -uch  acts  are  dis;ivowed,  and  until,  if  thoy 


(Mr    Rcicpu'S  Oral  Arginncnt  on  Special  Cnsos.) 

"  are  of  sufficient  importanco,  tlieir  autlmrs  are  pniiislied,  tl'.o 
"  state  may  fairly  be  supposed  t.)  luive  iiK^iititied  itself  with 
"  llieiii, " 

Mall  here,  is  discussinff  how  far  and  under  what  circum- 
stances, one  country  can  hy  acts  of  pi'rsoiis  in  its  servicer  incur 
liaiiility  towards  anotiier,  w  idle  this  case   presents  the   entirely 

10  tlilli'rent  ipiention  of  whether  a  naval  otlicer  can  deprive  it  of 
any  of  its  ac(iuired  rinhts  and  expose  its  suhjects  to  serious 
oppression.  Here  we  have  the  case  of  a  naval  officer,  who 
exchisiveh'  entrustod  with  the  duty  of  carrying;  out  a  treaty 
hetween  lireat  Uritain  and  the  Unittid  StatcH,  is  alle}:;e(l  to 
have  ^'iven  a  consent,  di'privini^  the  former  of  tlu;  rights  derived 
from  the  treaty,  and  periniitiiiu;'  'i  British  vessel  to  he  seized  on 
the  hi^di  seas  hy  the  riuted  .St'ilcs  for  allei,'ed  anterior  con- 
travention to  its  munici,ti''i 'aws.  It  seems  to  me  that  Captain 
Parr  was  clearly  outsidi     of  his  dutici    if    he    ever    |)ermitte(l 

21)  auytliini:;  of  that  kind,  ami  it  is  incumhent  upon  our  learmnl 
fi'ieudson  the  other  side  to  show  that  he  had  authority  to  do  so. 
We  have  put  on  record  the  instructions  yiven  hy  hoth  ^Govern- 
ments. His  instructions  wiM-e  not  to  allow  Hritish  sulijects  to  he 
oppic'ssed  li_v  lieiuL;  seizi'd  on  the  hi^h  seas  for  violation  of 
nnmicipal  laws  :  they  were  simply  to  receive  the  vessels  handed 
to  him  as  havinj,'  hcen  seized  under  the  modus,  and  to  hrinj^ 
them  hack  to  Victoria  for  the  ptnpose  of  prosecution. 

i:  The  seconil  proposition  to  which  1  called  your  Honors  atten- 

tion is  supported  hy  the  following  lany;u>ige  at  pai^e  \i)i  of  the 
Aiiu:i"ic.';u  Brief : — 

"The  intematiomtl  (pii'stiun  of  juiisdiction  l.einj,'  out  of  the 
"  way,  issue  is  taken  with  the  position  of  the  British  counsel  that 
"the  comniissicjiu'rs  under  the  jiresent  ("onveuti<in  can  revise 
"  the  tindiiii,' of  theCotu'tof  Alaska  on  any  juri<lical  (piestion. 
"  No  international  coui't  can  revise  the  judj:;ment  of  the  court  of 
"  a  nation,  tndess  that  judgment  he  hy  the  (-(Hirt  of  last  resort  in 
■  its  jin'idical  system.  This  nde  is  estahlished  as  one  of  uni- 
•  \(i^al  application,  to  which  there  can  he  no  exception,  unless 
"  an  appeal  was  prevented. 

lo  "The  owners  of  the  "  Wiidfreil  "  cannot  enter  this  intcr- 
"  'lational  co\irt  without  showine;  an  unsuccessfid  apppftl  to  the 
ht  t  apiielhite  juiisdictiou  in  the  judicial  system  of  the  Uniteil 
"States.  (See  vol.  (),  I'aper.sete  Washinejton  Treaty,  p.  .'S,S-14I) 
'  where  the  authorities  are  collected  and  the  whole  suiiject  is 
■exhaustively  consiiiered  and  is  repeatecjly  pjisscfl  upon." 

I  already  have  had  occasion  t  >  say  that  I  absent  t-o  tie- 
proposition,  that  where  n  eitizei\  of  tin'  Ijniteo  .-^uaies  or  a 
f,irt'ii;iiei-  is  hiumi  within  tie-  territory  oF  the  Uniteil  States, 
and  is  chari^ed  with  a  \ii'laii'in  nl'  the  muiueipal   Law.  he  has   t,i 

">ii  tind  his  remedy  in  the  courts  of  the  enuntry  ;  hut,  I  deny  the 
proposition  a>  applyiu'j;  to  eases  of  seizure  on  the  hii^li  seas,  such 
as  till'  one  in  ijuestion,  for  the  pin'|io-e  of  heiie^  taken  into 
American  territory  aiiil  prosicuteil  for  violation  of  miniieipal 
i.ius;  a  violation  that  may  have  heen  committed  two,  or  three, 
or  I'oui-  years  previou--l\',  a^-  w.'.s  ilie  c,'i>.e  in  this  instance. 

Tlie  waul  of  jiiri-^dietion  wa^  so  alisolute  that  it  was  heyond 
the  power  of  the  OWU-'I-  of  the  Vessel  (ti  wjUVi-  it;  anil  if  lie  had 
the  power  to  make  su.'h  \\nivi  r.  it  could  only  have  heen  done 
e.^liressly,    and  not  as  an  iid'ei'"nce  from   his  liavin;;"  jile/iilcd   to 

<i'i   the  eliju'^'e  without  raising,'  the  (|uestion  of  jurisdiction. 

I  nnist  also  call  your  Honors  attention  to  the  fact  th.at 
the  defence  of  the  I'nited  Stat.'S  hased  as  this  is  on 
<'a|itaiu  Parr's  alh'^jed  consent,  tends  only  to  justify  the 
-ei/ure  of  the  vessel,  hut  not  the  arrest,  imprisonment,  an  I  other 


..1 


i!  V.' 


•  IP'' 


'j.  ^ 


520 

(Mr.  Bei(|ue's  Oral  Argument  on  Special  Cases.) 

indignities  inflicted  on  the  master  of  tlic  vessel  and  members  of 
the  crew.  If  your  Honors  refer  to  tiie  evidence  of  Captain 
Conlson  3'ou  will  find  that  he  does  not  pretend  that  Captain 
Parr  permitted  the  arrest  or  imprisonment  and  carrying  away 
of  the  master  and  members  of  the  crew.  In  this  ca^e  we  are 
cliarging  the    United    Htates   government,  not  only    with    the 

10  arrest  of  tiie  vessel  imt  we  are  charging  them  with  the  arrest, 
imprisonment  and  taking  away  of  the  master  antl  members  of 
the  crew  to  Sitka,  and  detaininj;  them  there  for  a  lon<f  time.  It 
appears  your  Honors,  from  the  evidence  that  the  main  idea 
was  the  prosecution  of  Hansen — he  being  suspected  of  having 
three  or  four  years  previously  raided  St.  Paul's  Islands.  That 
was  the  real  object  of  the  seizure,  and  for  the  purpose  of  achiev- 
ing that  object,  the  United  States  officer  seized  that  vessel  on 
th(^  liigh  seas,  and  represented  to  Captain  Parr  that  the  vess»;l 
had  infringed  tlit;  nnniieipal  laws  of  the  United  States. 

'20  Mr.  Dickinson  : — Is  your  contention  that  the  Captain  was 
arrested  for  raiiling  the  islands  ? 

Mr.  Beique : — 1  say  that  it  appears  from  the  letter  of 
Captain  Coulson  that  the  real  object  was  to  prosecute  Captain 
Hansen. 

Mr.  Dickinson  : — That  may  be  your  construction.  The 
captain  of  the  United  States  cutter  merely  mentions  incident- 
ally that  this  was  the  same  man  who  raided  the  islands,  but 
as  a  matter  of  fact  he  was  j)ro.secuted  for  breaking  the  revenue 
laws  of  th<'  Unite<l  States,  as  was  the  vessel. 

'M  Mr.    Bei(|Ue  : — Ye.s.     One    must    always     hear   in     mini'    as 

appears  from  these  lettei's,  that  immediately  after  the  ser'.iiie  nj' 
the  vessel  and  the  arrest  of  the  master  and  the  members  t  'ia' 
crew,  the  mend)ei-s  of  the  crew  were  transferred  to  the  revenue 
cutter  and  jirevented  from  having  any  ci)nuMuni<'ation  with 
Captain  Hansen — they  were  put  under  oath,  as  we  claim  illegally, 
lor  the  jiurpose  ;;f  getting  evidence  against  the  vessel  and  hei- 
master,  '{'he  letter  at  Jiage  I.'jIO  fiom  Captain  Coulson  to  the 
histriet  Attorney  at  Sitka,  sajs  : — 

"  We  think  there  is  suflieient  evid<'nee  against  Captain    (J.  M. 

40  "  U.  Hansen,  tln'  master  of  the  ■  Winifi'ed,'  to  hold  !iim  lor 
"raiding  the  Island  of  ,St.  Paul,  iiehiing  Sea,  on  the  27lli  day  of 
"November,  lS!li,  while  in  eonniianil  of  the  British  sehoonei- 
"'  Borealis,'  and  taking  about  four  hundi'eil  (-K)O)  f\n'  seals  from 
"that  Islnnd.  Maj<ir  \\'illiams,  special  ,igent,  Ticasury  I)epart- 
"  ment  has  obtained  some  evidence  this  year  regar(|ing  this  laid. 
'  \ On    will    notice'  that     Hansen,    and    one  of    the   crew  of    the 

''Winifreil' .bisejili  ilutehings-    in  this  testimony,  a<lniit  being 

"in  the  '  Borealis  last  year,  and  Hnlehings  fully  ideiititii  d  ll.in- 
'  sen.  who  is  also  without    doubt  the    sume  man    who   raided  St. 

.")(»  "  Paul  islanil  in  the  M-liocner  ■  Adele'  late  in  (  letober,  IMK),  lb' 
"  admits  ha\  ing  been  seized  while  in  the  act  of  taking  seids 
"near  St.  I'aul  Island  in  the 'Adele' in  |,S.S4.' 

It  seems  to  me  that  that  is  snificieiit  justification  for  my 
saying  that  the  objict  of  Caj'tain  Coulson  at  the  tiiue,  was  to 
enable  the  United  States  to  prosecute  Cfiiifain  llnnsen  for  this 
aihged  raiiling  of  the  Island.  I  adndt  that  the  charge  actuidly 
maile  against  Captain  Hansen  when  he  arrivc(l  at  Sitka  was  not 
I  n  this  groinid.  the  charge  was  that  he  \iolattd  the  revenue 
law  s  of  the  United  States. 

()((  I  have  only  one  other  I'lniark  to  add  in   (onnection   with  this 

case,  and  it  refers  to  the  eontention  of  the  defence,  that 
we  cannot  leeoscr  bir  the  price  of  the  skins  thai 
weie  seized,  because  they  Were  taken  in  violation  of 
the      indiliin     rir(inli:     and     it     is    adde<l    that    it    would    oe 


521 

(Mr.  Beir|ue's  Oral  Aifjumont  on  Special  Gases.) 

against  public  policy  to  grant  any  remedy  in  this  case.  It 
•seeing  to  me  tliat  the  rjiiestlon  as  to  whether  the  skins  were 
taken  ai^ainst  the  modus  vivendi,  or  not,  could  have  been 
enquired  into  only  on  a  seizure  made  under  the  nridus.  Of 
course  we  do  not  claim  for  the  balance  of  the  catch  bec<iu-ie  we 
had  no  ri:.,'ht  to  seal  in  Betu'ing   Sea,  but  I   say    that    evidence 

10  showing  where  the    skins  were    taken  is  not   proper    evidence 
in  this  case,  for  evi<lence  of  that  kind  could  have  been  ottered  only 
after  the  vessel  had  been  placed  on  trial  under  the  moiiu;*,  which 
was  never  done.      If  the  charge  had  been  made  agairii.  Captain 
Hansen,  he  possibly  might  iiave  been  ab!"   to   prove   that   these 
seals  liad    been  taken    outside  of   BeiirinLr  Soa.     There   was  no 
seizure  and    prosecution    under   the   modus  viveri'.'i  in  tliis  case  ; 
the  Tnodiis  vivendi  cannot  be  applied  to  it  and  tiierfforc  we  are 
entitled  to  recover  for  the  value  of  the  skins.     If  the  vessel  had 
been  proceeded   against  under   the  modus,  the  skins  would  have 

20  been  forfeited  to  the  benefit  of  Her  Majesty; — wlieieas  in  tiiis 
case  they  were  forfeited  to  the  United  States,  and.  the  United 
States  got  tlie  proceeds  of  the  skins. 

The  "  Wanderer  "  Clai.m,  No.  25,  (lSt>2.) 

'{'he  next  case  is  the  case  of  the  Wanderer  claim,  No.  25,  188!), 
British  Argument  181  : — ITnited  States  Argument  p.  4!)0.  Your 
Honors  will  recollect  that  tiiis  case  r(;sulteil  from  the  fact  that  seiz- 
ures had  been  made  in  188G  and  1887,  and  that  rarly  in  1889  the 
proclamation  of  the  President  of  the  United  States  was  issued  and 
:!0  that  iMstruetioi\s  were  given  to  the  revenue  cutters  to  seize 
all  persons  sealing  in  Behring  Sea 

CJaptain  Paxton  was  the  owner  of  the  vessel,  and  was  on  his 
way  to  Bi'iu-ing  Sea,  when  his  Indian  crew,  hearing  of  the 
proclamation  and  that  seizures  were  liktdy  to  take  place,  refuse'd 
to  proceed  further.  The  contention  of  the  United  States  is  that 
we  havt!  not  proved  the  proclamation.  On  referring  to  the 
Rfcord,  pigi's  18:J2  and  ]8H:{,  the  following  ccrtiticate  signed  by 
Joliii  W.  Foster,  Secretary  of    State,  will  be  I'oun  I  : — 

40  "United  St.vtes  of  Amek'  a, 

"  Department  of  State. 

"  'I'd  all  whom  these  presents  shall  come, 
"  greeting  :  1  certify  that  a  proclamation,  of  which 
"  the  ainiexed  is  .a  true  copy,  was  issued  by  the 
"  President  of  the  United  States  in  the  year 'l  889, 
"  and  that  a  proelamalion  of  similar  ])Uiport  was 
"  issued  bv  him  in  each  of  the  following  years,  to 
"  wit:    181)0,  18!)!  and  1892." 


.;  I  < 


< 


, ;  III 


■fill! 


.")0 


(..') 


This  eertitieate  was  dateil  the  ;U)tli  day  of  .luly,  18!)2.  At 
page  I8;i-t  of  the  HtH'ord  will  also  be  found  a  letter  from  Secretary 
Windom  to  Captain  Shejiard  ;  I  reail  the  last  ])aragi'aph  : 

"  Herewith  arc  tiansmitted  thirty  copies  of  the  President  s 
■  pi-oeltmation  of  .M.inb  2bst,  |S8!l,  for  distribution  to  parties 
'atrictrd  thereby,  as  far  as  may  be  practicable," 

So  that  we  have  here  the  date  of  the  proelamalion  of  the 
I'lvsident,  which  was  the  21st  of  March,  1889,  and  it  is  well 
i-.iiowa  to  your  Honors  that  not  only  were  these  insti'uetions 
given,  but  that  thes  essels  were  .seized.  Under  that  jn'oclamalion  no 
warnings  were  reijuircd.  1  claim  it  was  not  necessary  for  the 
.leeiiiing  of  the  I'ight  to  claim  that  the  vessels  slioulii  proceed  to 
r>rhring  .Sea  and  be  seized  or  warneii ;  b\it  that  from  the  fact 
lliallhe   decision   was  taken  and   made  known   bv  the   I'nited 


11  I 
\ 


1^ 


t  ' ' 


■pmii 


™!lT-T!fl5Kw 


522 

(Mr.  Bi'i(iue's  Oral  Ar;(iiiuent  on  Special  Cases.) 

States  autlioritios  that  seizurtis  >fmild  be  made,  the  niastur 
of  the  ves.sel  was  justified  in  returniii};;  homo,  and  that 
a  claim  accrued.  We  have  in  this  case  tlie  fact  that  not  only 
had  preparations  been  made,  but  that  the  voyage  was  com- 
menced; the  crew  had  been  secured;  but  the  crew,  hi.'arinjf 
that  .seizures    wen;    again  to  be    made,    alttiough    no    seizure 

10  had  been  ii^  1888,  turned  on  the  master  of  the  vessel  and 
refused  to  proceed  further.  Another  ground  stateil  in  defence 
is  that  the  crew  turned  back  on  the  masttsr  of  the  ve.ssel  because 
ho  was  a  poor  man :  that  lie  had  no  means;  and  it  is  claimed 
that,  if  he  hail  btien  rich,  if  they  had  been  sure  of  getting  their 
pa}',  they  would  not  likely  have  turned  back  on  him.  Whether 
that  was  the  main  reason  or  not,  or  wliether  it  was  because  some 
of  thi^  Indians  were  on  vessels  seized  in  previous  years,  and 
that  tliey  did  not  want  to  expose  themselves  to  a  repi'tition  of 
the  same  experience  is  innnati'rial.     Captain  Paxton  was  n>'ver- 

20  the  less  preventf'd  from  carrying  oiu  his  operations  from  the  fact 
that  the  proclamation  was  issueil  and  that  seizures  were  orderi^l 
to  be  nuide. 

Mr.    W'arren  : — What     was   the    date.    Mi'.   Beiijue,    of    the 
instructions  to  make  the  seizures  ? 

Mr.  Hoique :— Tliis  is  dated  May  2:ird,  I88it. 
Mr.  Warren  : — Hut  vour  crew  turned  around  on  the  10th  dav 
of  May. 

Mr.  Bei(|Ue  ; — Those  instructions  are  to  Captain  Shepard,  and 
we  have  it  that  the  proclamation  was  issuer!  on  the  2lHt  of  March, 

30  but  I  rest  the  case  on  the  fact  that  tiie  proclamation  was  issued, 
thiit  the  United  States  having  treateii  Behring  Sea  as  a  man: 
claiisuin  in  188()and  1887,  and  having  siMzed  vessels  during  these 
years,  decided  in  JIarch,  I88i),  to  adopt  the  same  course  for  that 
year;  that  in  issuing  the  proclamation  they  notitied  the  worM 
of  their  intention  to  seize  vessels  fishing  in  Behring  Sea,  and 
that  this  was  what  prevented  (Japtain  Paxton  from  carrying  (.)u 
his  operations. 

Mr.  Dickinson   : — It  does  not  reriuire  an    overt  act  to   con- 
.stitute  A  claim. 

40  Mr.  BeiijUe: — No,  I  do  not  believe  it  does.     It  would  amount 

to  this,  that  there  coiJd  have  accrued  no  right  to  a  claim  inilcss 
the  parties  had  actualU  'eft  Victoria,  gone  to  Behring  Sea.  and 
been  Beized.  The  moment  they  were,  as  a  result  of  the  action 
of  the  Governinent  of  the  Unit<'d  States,  intimidated,  and, 
l)ecause  of  that  intimidation,  prevented  from  carrying  on  their 
operations,  I  sul)init  the  claim  accrued. 


50 


(10 


Thk  "  W.  p.  Sww.ahi)  (Cost  C.vsk)  Claim  26. 

The  next  case,  and  the  only  remaining  case  to  which  I  shall 
cill  your  Honours'  attention,  is  thit  of  the  costs  in  connection 
with  the  ajjpeal  of  the  "  W.  P.  Say  ward.''  This  case  has  heen 
fully  dealt  with,  1  believe,  in  the  general  argument — and  in  the 
British  argniinMit,  page  184,  and  in  the  Uniti'il  Statiss  argument 
page  148.  All  I  nei'(l  do  is  to  refer  your  IJonoi's  to  the  Keconl, 
page  I82!t,  line  oO,  wlier(>  will  he  found  a  reference  to  volume  8 
of  the  American  lli'priiit,  page  20!).  It  is  a  portion  of  the  pro- 
ceedings at  Paris,  shewing  how  thi>  elai.n  was  there  presenttnl. 
I  read  the  following: — 

"  With  refen-nce  to  the  claim  for  ilamages  mentioned  at  page 
"  12  of  the  British  casi>  and  the  particulars  si't  out  in  the  seiiedule 
•'thereto,  (Jreat  Britain  will  claim,  in  addition  to  the  amount 
"there  stated,  the  sum  of  1?(12.84'7.12,  thi' amount  of  (expense 
"  incnrreil  by  the  (!overr\nu'nt  of  Camilla  in  eoiuiection  with  the 
"  proceedings  before  the    Supreme  Court  of  the  United    States 


523 

(Mr.  Beique's  Oral  Argument  on  Special  Cases.) 

"with  a  view  of  establishing  the  illegality  of  the  seizure  of  the 
"  "  W.  P.  Saywar-i.  " 

I  read  this  only  for  the  purpose  of  supplementing  my  argu- 
ment in  connection  with  the  scope  of  the  Convention,  a.i  I 
omitted  to  refer  your  Honors  to  that  portion  of  the  proceedings 
at  P:iris. 

10  With  your  Honours'  permission,  and  without  mak'ng  any 
cn.nment,  I  desire  to  say  that  I  should  have  referred  in  my 
iDiiin  argument  to  a  case  to  which  the  other  side  I  believe, 
luivu  rufei-red,  the  case  of  the  "  ]'i»a  Oyen,"  1  Robinson's 
Admiralty  Reports,  page  134.  The  judgment  in  that 
L'lise  was  rendered  by  Sir  William  Scott.  I  refer  to 
the  case  in  connection  with  the  question  as  to  whether 
the  cases  here  sh.ouhl  bo  treated  as  cases  of  total  or  partial 
i()ss.  it  will  be  found  on  reading  the  judgment  of  Sir  William 
>icott  tliat  he  expressed   the  opinion  that  it    became  a   case  of 

20  total  loss  only  when  the  vessel  was  actually  sold,  not 
tiDiii  tlie  date  of  the  sentence.  I  desire  merely  to  add  this,  that 
it  was  a  case  of  prize  court  in  time  of  war,  wliere,  of  course  the 
si'iitcnee  was  presumed  to  be  legal,  and  at  any  rate  where  there 
was  no  absence  of  jurisdiction.  Here  as  I  have;  already  stated, 
the  seizures  were  absolutely  illegal  because  made  on  the  hiirh 
spas,  there  was  an  absolute  want  of  jurisdiction  and  we  had 
the  right  to  expect  that  justice  would  be  done. 


|i.- 


Hi. 


:/l 


I  '  n'l.  •'i>*-  ".^"i 


Si 


40 


.50 


60 


.=10 


60 


SIR   CHARLES   HIBBERT   TUPPER'S   SECOND   ARGUMENT. 


Sir  C  IT.  Tiippcr  : — If  it  ploase  your  Honors,  I  take  up 
first  the  case  of  the  "  'I'liointuii."  I  would  like  to  call  attention 
to  some  of  tlie  points  inentioneil  in  tiie  arifiinient  of  the  United 
StHtes.     At  pai,'e  ;i()(i,  on  the  value  of  vessid^,    there  appears  a 

10  reference  to  the  Hecoid.  pai,'e  fS.")!),  line  ")^,  and  the  learneil 
counsel  argued  that  from  this  that  wlien  the  " 'I'liornton " 
chaiijfed  from  a  sloop  to  a  schooiua*  she  had  a  centre-hoard.  On 
turninLC  to  that  evidence  I  think  it  will  he  found  that  it  relates 
to  the  "  Onward  "  and  not  to  the  "  Thornton."  I  would  refer  in 
that  connection  also  to  pu^e  1070  of  the  Record,  to  show  how 
some  mistake  of  this  kind  has  arisen  lieeause  the  statement  is  in 
the  ([uestion  ])ut  hy  the  learned  eouiisul  in  crosi-exanniiation, 
and  the  answer  does  not  nseossaiily  connect  thai  ))art  of  tlie 
question  so  as  to  authorize  that  inference.     The  Icai  neil  eoinisel 

20  there  said  :  "  It  appears  from  the  testimony  that  she  hail  heen 
"  chan<»ed  from  a  sloop  into  a  schooner,  alti'red  from  a  ceiitre- 
"  hoard  to  a  keel  hoat."  I  think  that  was  meant  to  he  preceded 
hy  "if",  and  the  question  f;oes  on,  "  wouhi  that  make  any  ilitt'er- 
nnce  in  tlie  value  of  her  ?  A.  It  would  depend  wliether  a 
■'  new  keel  had  been  put  into  her."  A  reference  is  made  at  pa're 
30(5  of  the  Ignited  States  arf,'ument  to  the  evidence  of  Captain 
McLean,  where  it  is  said  that  he  states  that  she  was  an  old 
ino<lel.  I  call  attention  to  the  reference  itself,  to  show  how 
Captain  McLean  was  led  into  altering  a  very  important  ami  dif- 

30  ferent  statement,  as  it  seems  to  me  ;  for  on  paj^'e  lO(ii)  of  the 
Record,  McLean  is  asked  as  to  what  sort  of  a  schooner  she  was. 
He  said  "  she  was  on  ordinary  schooner  lines  ";  and  on  the  .same 
paf^e  lie  states  that  he  never  .saw  her  out,  of  water  ;  and,  I  sup- 
pose, following  from  that,  he  answers  a  little  later  on  that  l:e 
coulil  not  say  if  sIk;  were  shallow  and  thit.  Then  referriiij^  to 
the  same  paij;e  of  the  argument  and  the  same  suhject,  theie  is  a 
reference  to  the  testimony  of  Captain  Ravnor  as  to  a  broken 
main-mast;  and  in  that  connection,  1  i«ferto  Reeonl,  piij;e  1057, 
the  cross-examination  of  the  witness,  at  the  hottom  of  that  pajjfe, 

40  to  show  that  he  does  not  seem  to  recpiire  as  much  information 
as  Captain  McLean  to  know  the  style  of  a  ship.  I  need  not  call 
attention  to  tlie  lonj;  period  that  elapsed,  ami  the  slight  know- 
ledjje  that  this  nuin  wouhl  in  the  ordinary  course,  have  of  the 
"  Thornton  ";  hut  1  will  content  myself  with  readin;^  the  ex- 
.'imination  there : — 

"  Q.     You  did  not  hoard  the  "  Thornton  '  for  the  purpose  of 


exRminiii'f  her  at  all  f"     A.     No,  sir,  I  diil  not. 


I  never  went 
A.     No,  .sir,  I 


"  Q.     And  you  never  went  into  her  hold  ?     A. 
"  into  her  hold. 

"  Q.     Anil  you  never  .saw  her  otit  of  water  ? 
"  never  .saw  her  out  of  water. 

"  Q.     You  never  saw  her  bottom  ?     A.     No,  sir,  I  did  not. 

"  Q.  Nevertheles.s  you  undertake  to  siti'ak  as  to  her  lines  ? 
"  A.     Yes,  sir." 

I'receditii;  all  that,  at  the  middle  of  page  lOM.  he  descrilies 
the  "  Thointon  "  as  a  Hat  shallow  vessel. 

As  to  credibi  Hy  tluMe  is  the  reference  Record  paj^e  1050 
casually  made  the  ther  day,  bnt  I  do  not  think  brouf^ht  directly 
to  the  notice  of  the    otirt : — 

"  Q.  What  stj-le  of  f^uns,  if  you  remember,  were  the  guns 
"  taken  otl' the  "Thorii  on  ?'  A.  Well  they  were  passably  good 
"  guns. 

"Q.  Do  you  remem' '!r  them  ?  A.  Well  I  don't  remember 
"  them  exactly. 


-i 


ill; 


I' 

i 

I '    1 


h^ 


IPPIWWP 


r)2() 

(Sir   (.Jliarli's    Hihlit'it   Tiipju'i's   Second   Arjj[nm(!iit.) 

Mr.  R('ii|iip  : — I  siipjiosp  it  i«  licpniise  you  do  nnfc  rpiiiernbor 
"  tlit'iii  tliiit  ymi  say  tlicy  wuio  fair?     A.     I  don't  renu'inbur  tlio 

TlicM  as  to  tills  must  licail  licint:  liroken,  tliori!  is  tlic  cvidcnci! 
of  Noiiiian,  pat;"  Itill,  liiii'  ."0,  wliieh  I  would  like   to  contrast 
witli  till'  I'viilciici' ol'  Itaynor: — 
10         "  (,).     What  was  wrong  in   lior  ?     A.     The  mast    head    was 
"  broken  ;  that,  was  all." 

Also  Dallas,  liccord,  page  S4+ :^ 

"  Q.     She  had  earried  away  I'er  mast  head?     A.     Ye.s,  sir. 

"  ().     And  her  fore  ri^ij^in^'  ?     A.    No. 

"  (^).  You  ilid  not  have  her  riggini^  on  when  she  entered 
"  I'.ehring  Sea  ?     A.     No. 

"  Q.  Siie  was  in  had  shape  when  she  went  into  the  Sea  t 
'■  A.     I  fixed  her  mast  all  right  on  tlie  passage. 

"  (.).     What,  did  you  do  to  it  ?     A.     I  fixed  if." 
20         And  on  further  examination,  page  S47  of  the  Record,  Dallas 
i.s  asked  : — 

"  Q.  Was  the  ' 'I'hoiiiton  '  in  such  n  condition  when  you 
"  entered  the  Sea  that  ynii  eoidd  lower  j'our  boats  and  .seal  on 
"  every  good  dav  f     A.     Yes,  sir. 

"  Q.     And  stie  dill  that  >     A.     Yes,  .sir." 

Also  I  have  a   i  efeictice  on   that  subject   to  the  Record,  page 
Of)],  where   the  inspector  is   being  examined,  and    after  having 
transciibt'd  into  the  notes  the  record  of  the  ins|)ection  in  l!S85  of 
30   the  "  'riiorntoii,"  he  explains  the  language  tbi-re  and  says  : — 

"  My  reason  is  given  hero,  this  independent  inspector  reports 
"  that  everything  is  '  very  fair  ;'  '  fair'  in  the  otlicial  language  of 
"  the  book  mentis  '  ''ood,'  an<i  '  L'ood  '  means  excellent." 


Then  passing  from  that  subject  and  to  another  reference  on 
that  page  as  to  the  weai-  and  tear  on  this  vessel  amoiniting  to 
S1,00(),  the  reference  is  Record,  |inge  OHi.  In  the  first  place,  the 
reference  itself  is  not  fully  transcribed  in  the  argument.  It  is 
suggested  there  that  the  evidence  is  that  the  actual  wear  and  tear 
40  upon  the  vessel  would  be  fully  81,000,  whereas  it  is  the  actual 
wear  atiil  tear  upon  the  vessel  mid  runuin;/  yi'ur.  Jitit  special 
reference  is  not  lieitig  made  in  that  part  of  the  record  to  the 
"Thointon."  ]  call  attention  to  l».'ige  !H7  of  the  Record,  where, 
in  connection  with  that  general  subject,  into  which  I  have  no 
desire  to  travel  now.  Warren  is  being  exaiiLined,  as  follows: — 

"  Q.  Antl  you  sjioke  of  overhaulitig  your  vessels  constantly 
"  was  this  vessel  o verba ided  after  1883  atmually  ?  A.  Yes 
"  every  j'car." 

!){)  Then  as  to  beii'g  ashore  in   1S8.T,  referred   to  in   the  United 

States  argument,  [lage  ;)()(),  the  refere.ice  is  to  Reccu'd,  page  DID, 
it  appears  there  as  follcsvs: — 

"  i).  How  many  times  has  the  '  Thornton  '  l>een  wrecked? 
"A.  Well,  1  don't  know  as  she  ever  was  wrecked;  she  got 
"  ashore  some  time  anil  it  cost  me  considerable  to  get  her 
"  otf." 

Rut  in  coiuiection  with  that,  the  tuan  who  got  Iter  off'  was 
cxainined.  Record,  page  1028,  atid  he  saj's  : — 

"  Q.  You  examined  the  vessel  ?  A.  Yes,  as  far  as  I  could 
60   "see,  1  seen  tlie  vessel  wasn't  injured  at  all." 

1  do  iu)t  kiiow  as  I  need  read  the  whole  of  this,  but  I  call 
attentioti  to  '.{ecord,  page  1028,  line  .SO,  at  the  bottom  of  the  page, 
to  that  so-called  wreck,  (,r  when  tile  vessel  got  ashore  and  was 
taken  off.     As  I  submit,  the  evidence  shews  this  was  done  with- 


527 

(Sir  Cliailes   Hil)l)eit  Tiipper'N  StcnirJ  Artjument. 

out  lier  Imviiii;  sufl'i'ieci  tlie  slijjhlcst  injur}',  or  injury  tliat  could 
not  be  iunnuiiiiitoly  repaired. 

Tiieu  there  is  a  reference  to  tlie  vessel  l.einji;  towed  into 
Uniiniilt  Pass,  pa^'o  HOG  of  the  United  Suites  iuj,'unient.  Of 
10  CDurse,  the  suf^j^estion  is  ohvious  ;  she  was,  as  a  nuitter  of  fact, 
towed  in  hy  the  "  Dolphin,"  because  the  "  Dolphin  "  was  faster. 
The  reference  to  tiiat  is  Hecord,  pajje  Mi  ;  liut  there  is  no  evidence 
that  she  was  towed  in  because  she  was  in  distress.  1  have 
already  referred  somewhat  to  that,  but  at  pa<;e  84-4  there  is  a 
reference  aj,'ain  to  this  : — 

"  Q.  Why  was  she  towed  into  Behring  Sea  ?  A.  The  steamer 
"  '  Dolpliin  '  was  faster. 

Then  tliere  is  a  reference  as  to  the   engines.     I  would  refer 
in  that  connection   to  pages  !J!S7,   !)H8,  Dh!)  of   the  Record  as  to 
20  their  peifect  condition. 

Turning  to  page  307  of  tlie  TJnited  States  argument,  a.s 
to  the  cost  of  vessels,  there  is  a  (piotation  from  the  evidence. 
I  woultl  like  to  read  a  little  more  of  wdiat  appears  on  page  9-ie4i 
of  the  Recoril,  as  to  cost,  from  evidence  given  liefore,  where  it 
was  admitted  tliat  at  one  time  Mi'.  Warren  luul  stated  that  the 
cost  of  the  '  Thornton  '  was  S+.OOO.  This  is  the  evidence  in  the 
aiuument,  page  HO?  ; — 

"  Q.     1  want  yon  to  state  as  nearly  as  you  can  wlnvt  the  co.st 
30  of  these  vessels  was  ?     A.    The  cost  of  lunning  them  ? 

"  Q.  No,  tiie  vessels.  A.  Well,  I  put  the  '  Thornton,'  I 
"  think,  at  if+.OOO — that  is,  the  time  she  iiad  iier  machinery  put 
"  itito  her  and  was  made  a  steamer  of." 

1  will  have  to  trouble  your  Honors  with  a  little  further  read- 
ing of  that  evidence.  Of  course,  as  it  appears  in  the  argument 
of  the  United  States,  it  was  evidence  of  being  read  from  pro- 
ceedings in  another  caue ;  and  following  on  from  where  the 
(|U0tatioTi  stops  : — 

"  Q.     Did   you  so  testify  ?      A.     Yes,    I  expect  so,  I  don't 
•ID  "  know  whether  that  is  exactly  the  way  I  put  it  or  not. 

"  y.  Have  you  any  doubt  about  it  that  is  the  printed  record 
"  in  this  appeal  prepared  by  your  counsel  ?  A.  If  it  is  put  in 
"  in  the  value  of  the  vessel,  I  doubt  it.  I  think  I  was  putting  it 
"  in  as  value  for  him  as  security. 

"  Q.  I  ask  you  whether  you  so  testified  on  December  13th, 
"  IMOO,  in  that  case,  just  as  I  have  read  it  to  you?  A. 
"(Examining)  I  don't  recollect  of  making  that  statement  to  say 
"  that  the  '  Thornton  '  was  valued  at  §4,(100,  for  she  certainly 
"  cost  me  more  money  than  that  considerable." 
JO        Then  skip  two  paragraphs: — 

"But  you  say  that  although  this  testimony  speaks  directly 
"of  your  putting  the  cost  of  the  '  Thornton  '  down  at  S+,000, 
"that  testimony  is  erroneous?  A.  Yes,  she  cost  mure  than 
"  that." 

Then  skip  three  qtiestions  : — - 

"  Q.  You  said  back,  '  the  co.st  of  running  them  ? '  he 
''answered  back,  'No,  the  vessels?'  meaning  the  cost  of  the 
"  vessels  ?  A.  Certainly.  All  I  know  S-i,000  could  not  be  cor- 
"  rect  on  the  cost." 
(lO  That  is  on  the  cross  examination  of  Captain  Warren  by  mj' 
learned  friend ;  and  I  would  refer  to  page  fl.JO,  where  on 
re-examination  Capt.  Warren  says  as  follows,  in  answer  to 
()uestions. 

"  Q.      Now,   parts   of    different  examinations   of    yours   in 


if-'' 


,  ■  fj 


ill* 


Hi)' 


mmmmm 


■iiii 


10 


20  ' 


40 


30 


50 


o2.S 

(Sir  Clinrli's  Hibbert   Tuppcr'x  Secon<l    Ar^jninent.) 

'  liti^iitidii  wliich  you  hnvo  Imd  wirli  Mr,  Hospdwitz  liavc  liccn 
'  shown  to  3'oii,  (IIkI  you  were  Bskfd  pititiciilarly  ri';,'ai(liijj,f  a 
'  Htnti'iiifiit  niaih-  wlicn^  you  unimI  the  lMnt,'iiat;e,  '  I  put  tlic 
"  Thdi'iitiiii,'  I  think,  at  !?+,0()0.'  What  did  you  actually  nu'an 
'  liy  that  Ml'.  Warren  !  A.  Wtdl,  as  1  said  hi-foie,  1  must  havi; 
'  had  ri'tVrcnct'  to  security  for  him. 

"  Q.  As  a  matter  of  fact,  have  you  not,  on  one  or  two 
'  occasions,  put  your  various  ships  on  a  list  in  order  to  suhudt.  a 
'  proposition  to  Mr.  Hoscowitz  for  further  advances  ?  A.  Fur 
'  netting  advances. 

"  C^.  And  did  you  intend  to  represent  to  him  the  cost  of  the 
'  vessel,  or  what  the  cash  value  would  he  in  case  of  sale  under 
'  .security,  whicli  ?  A.  No,  my  intention  was  not  to  represent 
■  the  cost,  of  the  vessels,  hut  to  show  hiiu  that  lie  would  ho  safe 
'  in  loaniiiii;  that  amount  of  money  on  them. 

•'  (^.  'I'o  those  statements  to  whicli  reference  was  <;eneraliy 
'made,  were  not  the  other  vessels,  say  the  '  Grace,'  put  at  a 
"  small  ti;,'ure  as  wtdl  ?     A.     Yes,  much  smaller  than  the  cost. 

"  Q.  She  cost  you  ahout  SUi.OOO  did  she  not?  Aiiout 
"?1  (5,000. 

"  (^.  She  was  a  steamer  of  what  tonnaf]fe  ?  A.  She 
"  carried  1,50  tons  of  coal. 

"  (i.  She  cost  you  $1(5  000.  Do  you  happen  to  renienilier 
"  what  you  put  her  down  for  when  horrovvim;  money  from  Mr. 
"  Hoscowitz  I  A.  Ten  or  twelve  thousand  dollars,  I  think. 
"  Something  like  that. 

"  Q.  So  that  in  these  stateiiK'Uts  of  assets  you  were  not 
"  putting;  what  you  would  call  us  their  real  value  hut  their 
"  value  for  safe  security  >  A.  Yes,  when  I  put  them  down  h'ss 
'•  than  the  cost. 

•'  ().  As  a  matter  of  fact,  if  these  papers  were  produced 
"  from  the  court,  would  they  not  shew  various  values  evi-n  in 
"  rei^'ard  to  the  '  'riioriiton.'  one  time  at  S.'5,0()()  another  at  S<5,()0() 
"  and  another  at  S4,  )00  ?  A.  Yes,  you  will  Hnd  all  the.se  diti'er- 
"  ent  statement^." 

Then  as  to  the  sale  of  those  vessels,  there  is  a  reference  in 
the  United  States  arffument,  pai,'e  .'507,  where  the  statement  is 
nuKJe  that,  after  heiiiij;  r('<,'ularly  advertised,  this  vessel  sold  for 
one  dollar,  suhieet  to  the  mortija^fe.  The  reference  to  e:jpliiiii 
that  in  the  Record  is  at  pa^'e  lOSM,  line  43,  and  paj^e  1975,  line 
50,  and  the  followiiif,'  lines;  hut  1  shall  not  trouhle  the  court  iiy 
rea<lini,'  them,  merely  reminding'  your  Honors  that  the  explana- 
tion as  to  the  ohject  of  the  sale,  an<l  what  took  place,  and  the 
reason  that  these  ves.selH  were  knocked  down  at  one  dollar,  is,  I 
think,  satisfactorj'. 

Then  in  the  United  States  argument,  page  307,  there  is  a 
reference  to  the  charter  party,  if  your  Honors  please,  and  it  is 
rather  an  important  reference. 


At  4.30  the  Commissiouer.s  adjourned. 


Commissioners    under   the    Convention    of  February   8th, 

1896,  between  Great  Britain  and  the  United  States 

of  America 


Lpyislative  Council  Cliarnliei',  Provincial  liuiMin^' 

At  linlifax.  N.  S,  S.])t(  ii,l  <  i'  lltli.  1S!)7. 

At  1 1  A.  M.  tilt'  ( '()iiiiiiis-,i(iiu'r.s  took  tlicir  si'rIs. 


2(1 


Sir  C.  II.  '{'uppor,  ountinuiti;,' : — Tlui  cliarti/r  |iiuty  to  wliicli  I 
was  rt-fiMTiii;;'  y(!sttM(lay  is  ri-'ferrml  to  mi  piiLCf  'M7  of  tlif  I'liitril 
StatHJs  arifuiiii'iit,  wIhmc  lie  says:  "  It  appears  al«o,  liy  llic  oliartci 
party  froiii  Warri'ii's  imsiifiii'o  to  Huscowitz,  dated  I''('lini(U'y,  ISSC, 
that  tliuvissi'l  coiilil  iKjt  lie  .sold  for  tlie  aiiioiiiit  due  mi  tlie  iimrt- 
j,'n^'e."  1  iiave  aliiiidy  called  attention  to  tlie  evidence  ^'iveii  liy 
the  a.ssjeiiee,  and  the  eviilence  which  shows  that  the  chai'tcr 
]iarty,  and  all  those  dealiiies  with  him  to  have  pintaken  of 
strictly  a  formal  character,  in  oriler   that    Warn-n   slimild   have 

Ji'i  undisturbed  possession  of  the  shiji,  and  I  now  point  out  that 
tie-  chartoi-  party  on  pafje  lOST  of  the  Record  does  iidt  make 
special  reference  to  the  " 'riiornton,"  as  would  ap]iear  liy  the 
written  ar^'iimeiit,  hut  a  inference  to  the  whole  Meet,  '■  (Irace." 
the  "  Dolphin,"  the  "  Anna  Heck,"  the  "  'I'lnrnton,"  the  "  Hustler," 
and  one-half  of  the  "  \V,  ]'.  Saywaid."  In  any  event,  the  state- 
ment, formal  or  otherwise,  in  the  recital  of  the  charter  party 
states:  "And  whereas  the  amount  due  to  the  said  Jo.seph 
Boscowitz  upon  the  said  11101  tj,'a^'es,  or  hills  of  sale,  is  ^jreater 
than  the  same  for  which   said  schooner  and   interest  can   he  sold, 

40  iKiw  it  is  hereliy  mutually  at^reed,  etc."  That  is  the  recital,  and 
it  is  not  that  the  "  'i'hointmi  "  could  not  he  sold  for  the  amount 
due  on  the  iiiort;,'aj;e,  Whntever  force  there  is  in  it,  it  should 
he  borne  in  mind  that  the  reference  is  to  the  whole  tieet. 
Mr,  Lansing  : — There  were  separate  inortgai^es. 
Sir(".  H.Tnpper: — Ye.s,  hut  there  is  no  sui,'eestion  in  any 
document  that  there  is  any  one  ship,  the  "Thornton'  oi-  any 
other  one,  that  would  not  briiij^'  the  anionnt  of  the  niort;^aL;o. 

The  next  .statement  I  desire  to  call  attention  to  is  a 
.')0  reference  to  H.  J.  I'ook's  evidence  on  ])Mi,'e  ;j07  of  the  rnite(i 
States  arj^ument.  'J'hey  say  :  "  H.  J.  I'ook  gave  her  value  in 
l.SSl  at  S5,")0(),  but  stated  that  he  was  not  talking  about  the 
market  value  '  '  I  will  simply  refer  to  the  Recoid,  |iage  (S;U), 
where  it  will  show  that  .'i<.")..'iO()  refers  to  the  '  Thornton  '  icithout 
iiu(clii)ii'ry. 

Hefoie  leaving  that  ca-e,  there  are  some  general  reference.^ 
I  would  like  to  give  which  iieai  npi.n  the  discussion  tnuehing 
the  ships  gener.'illy.  I'age  !•+(!  of  the  Ueooid  refers  to  the 
CO  ecist  of  removal  of  the  '  Thnrntmi  '  ^from  Oumilaska,  where 
she  was  put  after'  being  seized,  amounting  to  little  less  than  her 
total  value.  Page  !i;jl  of  the  IJeconl  refers  to  the  "  Thoriiimi  " 
July  IH,  1(SS7,  being  ill  a  liail  state,  but  she  could  have  been 
fitted  up. 


>  ■ 


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>T  MIST  MAIN  STRUT 

vynSTIR.N.Y.  MSM 

(716)«72-4S03 


10 


20 


530 
(Sir   Charles    Hibbort  Tup|)L'r's   Second  Argument.) 

At  page  524  of  the  Record  there  is  an  observation  of 
some  importance,  I  thinlc,  witli  refjurd  to  tiie  cliaracter  of  tiiis 
court  at  Alaska,  and  upon  that  my  learneii  friend,  Mr.  Beiijue, 
touclied  in  ciosinjj  his  oliservation.s  yesterday  wiiere  Mr.  Dickinson 
says  : — 

"In  this  very  statute  tliat  Mr  Hayard  sends  to  Her  Majesty's 
"  ami>assador,  it  appears  tliat  tiie  judiciary  of  Alasi<a  had  not 
"  been  tni;aniz(Hl,  tliis  very  court  tliat  condemned  tiie  '  Caroh^na.'  " 

Mr.  Dickinson: — The  remark  al(out  tiie  court  not  lieini; 
orj;ttnizeci  was  witii  reference  to  tlie  statute,  a  copy  of  wldcii  Mr. 
Bayard  furnisiied  tiie  Hritisii  Oovenimeiit.  The  statute  diil  tint 
endirace  tlie  section  orj,'anizinj,'  tlie  Alaskan  court,  ami  was 
passed  liefore  the  o. ^^anization  of  that  court.  Tiie  fact  was,  lie 
f^ot  tlie  wroti^f  statute. 

Sir  C.  H.  Tupper: — Then  the  statement  by  my  learneii 
friend,  »s  referred  to  in  the  Record,  is  not  t(uite  accurate. 
However,  tliere  is  another  reference,  I  think,  in  the  Record  that 
this  statute  had  liecome  obsolete. 

Mr.  Dickinson  :  —  Vi's,  the  stututt-  was  the  wioiiif  statute.  It 
bore  upon  tlie  question  that  Mr  iJayard  desired  to  make,  that 
is,  the  condition  of  the  law,  but  it  did  not  lieai'  upon  the  organ- 
ization of  the  court. 


Sir  C.  H.  Tupper  : — I  do  not  know  that  I  referred  to  Tingle's 
report,  althouj,di  it  was  touched  on,  liut  it  is  on  pagi;  20  of  the 
Kxhibits,  Exhibit  No.  I.j,  and  I  think  it  is  worth  repeating  here 
'^^   in  the  notes,  and,  as  it  is  not  long,  I  will  read  it  :-- 


■'  Office  of  Si'txiAi.  Aokn'T  of  the  Tke.\siiky  Dkpt., 

"S.\x  Fkancisco,  Aiuj.  IS,  18sn. 

•'  Ho.v.  C.  S.  Kaikchk.I), 

"  Acting  Sfi'i'f'lKri/  of  tin'.  Ticdnuri/, 
"  Washington,  D.  ( '. 

"  SiK, — On  mv  arrival  at  Ounalaska  I  met  the  revenue  cutter 
'  Corwin,'  Captain  Abbey,  in  charge  of  four  schooners,  viz., 
"'San  Diego,'  'Onward,'  'Thornton,'  and  'Carolena,'  the  last 
"  three  Englisli,  from  Victoria.  Captain  Abbej'  has,  unfor- 
"  tunately,  been  short  of  coal,  or  he  would  have  made  more 
"  seizures.  He  has,  however,  been  very  active  and  done  good 
"  work.  I  urtred  him  to  remain  if  he  couhl,  cruising  around  the 
''  island  until  the  '  Ijear  '  arrived  to  relieve  him.  If  ho  should 
''  be  obliged  to  leavi'  the  waters  earlier  on  account  of  the  non- 
''  arrival  of  the  coal  ves.sel,  which  up  to  the  time  of  our  leaving 
■'  Ounalaska  hail  not  been  heard  of,  it  will  be  unfortunate, an  the 
•'  fleet  of  schonners  will  play  havoc  among  and  with  its  seals. 
•'  If  the  cases  now  uiidi'r  Heizure  are  convicted,  the  marauding 
•'  will  be  broken  up  :  if  not,  seal  life  will  be  seriously  assailed 
•'  next  year  by  «  larger  fleet  of  vessels. 

"  I  earnestly  hope  that  no  etl'orcs  will  be  spared  to  convict 
"  Captain  Abbey's  piisoiiers,  as  he  has  certainly  done  his  part 
"  well.  I  telegraphed  you  as  per  his  request,  also  of  my  own 
"  arrival. 

"  I  am  very  truly, 

"  (iKOl{(iK    U.  TiNOI.K 

"  Trt'iifitrif  Agent." 


40 


50 


(iO 


Then  as  to  the  return  of  the  188(5  vessels,  there  is  a  reference 
in  the  Kecmd  showing  what  the  owners  supposed  was  goitig  to 
lie  done,  and  the  reason  they  had  for  believing  that  these  vessels 
would  still  come  back  to  them.     I  will  give  the  reference,  so  in 


581 

(Sir  Charles  Hib'juit  Tupper's  Secon  1    Argument.) 

case  your  Honors  wish  to  follow  that  up  you  'vill  have  it  pointed 
out.  The  references  are  pages  1149,  ll'ifi,  and  1157  of  the 
Record.  Then  the  authorities  told  Warren  in  18S7  that  there 
would  be  no  danger,  page  llCn. 

On  the  bon<iing  of  the  '  osscls  and  appraisals  references  in 

|(»  the   Recor.l   are   pages  1177.  117S.  11H3,  127G,  and   i;W6.     That 

the  vessels  were  dilapidated  August  2')th,  1S88,  not   being  cared 

for,  page  1277.     As  to  the   bond  at  Sitka,   sue   page    l!)7(i,  and 

generallj"  a  reference  at  page  914. 

On  page  3.5S  of  the  Unitoil  States  argument  there  is  a  state- 
ment which  I  do  not  think  strictly  warranted  by  the  evidence, 
where  he  draws  the  conclusion  that  the  "  Mary  Taylor"  was 
purchased  for  the  sofn  object  of  replacing  the  "  Thornton."  I 
(juestion  that,  and  the  i-videiice  upon  which  that  conclusion  is 
20  based  precedes  it  on  tJie  .same  page. 

The  next  statement  relates  to  the  abandonment  of  the  appeal 
to  the  l^^nited  States  .Supreme  Court,  and  the  entry  of  February 
2Sth,  887,  in  Warren's  journal  that  the  vessels  were  to  be  sold, 
is  made  to  establish  conclusively  that  the  schooner  became  a  total 
loss  to  her  owner,  anil  was  so  treated  by  him. 


30 


Now  I  would  like  to  call  attention  to  page  7  of  the  British 
argument,  where  the  order  for  release  is  printed.  I  say  that  in 
view  of  all  that  was  happening,  and  the  negotiations,  it  would 
lie  (littic"'t  to  say  lUit  the  vessel  was  a  total  loss  until  the  dis- 
cussio  .  as  to  the  release  of  the  vessel  was  finally  closed. 

There  are  certain  references  to  guns  on  page  358  of  the  United 
States  argument,  and  I  would  like  i<»  refer  to  exhibit  15,  page 
30.  page  i»n  of  the  Record,  lines  8-10.  Also  to  pages,  9«6,  910, 
912,  and  844,  where  it  is  stated  that  the  guns  were  all  new  but 

one. 


40 


M) 


On  page  359  of  the  United  States  argument  it  in  claimed  : — 
"  The  claim  for  '  value  of  articles  in  inventory  not  properly 
' '  belonging  to  the  ship,  on  board  at  the  time  of  seizure,'  is  ba.sed 
'  according  to  the  marginal  reference.s  in  the  British  argument, 
'  upon  a  schcdide  prepared  from  inventories  appearing  in  the 
•  log  of  the  schooner.  As  the  value  .set  opposite  these  articles  is 
'  given  by  James  D.  Warren,  who  was  not  shown  to  have  had 
'  knowledge  (tf  their  condition  at  the  time  of  seizure,  it  is  to  be 
'  presumed  that  they  are  based  upon  what  such  articles  would 
'  liave  cost  when  new." 

And  on  pages  360  the  learned  counsel  .says : — 
"  The  original  co>t  is  the   basis  of  the  claim,   without  any 
"  deduction  having  bi-en  made  for  the  depreciation  of  such  fire- 
"  arms, which  is  excessive  in  Behring  Sea  because  of  the  prevalence 
"  of  fogs  ami  rains  in  that  region." 

1  claim  that  the  presumption  upon  that  point  is  the  other 
way.  These  guns  were  tortiously  taken  from  our  pos.session. 
They  are  not  produceil  in  court,  and  in  eoiuiection  with  the 
ccielirated  "  Diauiond  "  case  they  would  be  presumed  to  be  of  the 
very  best  value.  1  also  call  attention  to  the  fact  that  the  seizing 
iO  iirtieers  were  not  called  as  witnesses,  which  is  a  point  advertt^i  to 
in  more  than  one  case  of  (hi.s  cbarneter.  1  think  we  are  entitled 
to  the  benefit  of  the  presumption  i:. stead  of  their  being  entitled 
to  it.  We  have  given  some  evidence  as  to  the  original  cost,  and 
tliey   dill    not  produce   the   officer  who   took    them,  who   could 


md 


W      }' 


m 


10 


332 

(Sir  Cliarles  Hibliert  Tuppcr's  Sicoinl  Ar<;iiiiR>nt.) 

tell  us  wlirtt  their  condition    was  nt   tiie   time  of  the   wrongful 
taking. 

Then  as  to  the  slop  chest  I  Hhould  like  to  refer  to  the  Kecuitl 
on  page  IGIS. 

At  page  3GI  of  th»>  Unitod  Stnte.H  iirgunient  tliere  is  a  coi-rec- 
tion  winch  shouhl  Ije  nindf  in  the  trnnscription  of  tht;  notes. 
The  t'vidt'nce  in  the  record  is  ut  page  !U7.  The  evidence  is  not 
accurately  reproilueed  at  page  Ufil  and  'MM  of  the  Hritifih  argu- 
ment. In  the  Record,  witness  snys,  in  ans\,-er  ;o  the  question  : — 
clinrged  the  §1000  in  the  "  Thornton  "  case.     You 


20 


CO 


"  if.  \  on  chnrgeil  the  iJlOOO  in  the  "  1  hornton  case.  You 
don't  mean  to  say,  do  you  Captain  Warren,  that  you  expended 
?l()()0  in  travel  for  the  '  Thornton  ?'     A.     No,  I  haven't  stated 


'(I 

•?l -    -     -.      -     

'  that  ;     I  spent  ?l,()0()  and  consideralile  time." 

In  his  answer  it  will  he  noticed  tliat  there  is  a  semi-colon  after 
'  that,"  and  he  says  "  I  spent  l^I.tMIO  and  ccmsideralile  time. 


In 


I'll  (11,         r»ll"«      in        •    '*J    '^  ■      ■-'in    IIV     •_■■,"»•»'     (HI'I      V.i/H.T|liI_itIri'lv.      VIIII1.  411 

the  answer,  as  ipiott'd  in  the  Uniteil  States  argument,  the  semi- 
colon is  put  after  tlie  word  "  No,"  and  he  is  made  to  .say,  "  No; 
I  hav(!  not  stated  that  1  spent  a  !?10()0,  a  consiilerahle  time." 

I  now  colli"  to  the  ease  of  the  "  Anna  Heck,"  which  is  taken 
up  1)11  pau'e.'lIO  of  the  I'niie.l  States  aigi;ment. 

Tliei  e  is  a  reference  to  Captain  Wftrron's  testimony,  that  the 
cost  iif.ri'-liuildiiig  was  ahont  ?5,000  everything  complete,  and 
30  the  words  "every  thing  comphite "  are  put  in  special  type, 
because,  I  suppose  special  stie-^s  is  laid  on  that.  U])on  refeienoe 
to  the  eviilence,  I  do  not  think  il  will  he  found  that  that  i-^ 
home  out.  I  do  not  think  there  was  any  intention  on  the  part 
of  Captain  \\'arren  to  say  that  the  vessel  cost  only  §5,000  with 
everything  on  her. 

The  engine,  itself,  cost  $3000,  and  from  the  rest  of  the  evidence 
referred  to,  after  this  statement,  it  will  he  seen  that  he  wa"-  re- 
ferring to  what  the  ships  cost,  le.ss  the  putting  in  of  steam.  The 
references  to  the  engines  are  pages  !»77  and  lOlG.  In  connection 
40  with  the  statmient  of  depreciation,  I  would  like  to  refer  to  page 
97m,  whei'e  Walker  was  asked  : — 

"  Q.  What  would  you  estimate  her  value  to  he  in  1887  ' 
"  A.  From  §7,')00  to  S.S.OOO  ;  the  jjrinciple  depreciation  would 
"  he  in  the  engine  and  holier,  and  part  of  the  rigging." 

On  page  310  of  the  rnited  States  Argument  they  .say: — 

"  Orlando  Warner,  who  worked  part  of  the  time  on  the  'Anna 
"Heck'  while  she  was  undergoing  repairs  in  1883,  valued  her 
"  without  her  machinery  at  fron:  8:),000  to  ?(i,000." 


oO 


At  page  311  of  the  I'nited  States  Argument  there  is  a  state- 
ment that  I  would  like  to  call  your  attention  to  in  cminection 
with  an  argument  that  has  already  been  laid  before  your 
Honors: — 

"  It  must  also  be  borne  in  mind  that  the  cost  of  repair  work 
"  was  moi'e  expensive  than  new  work  in  Victoria,  ainl  that  a 
"  vessel  similar  to  the  '  Anna  Heck  '  could  lave  pioluihlj-  been 
"  built  in  IS83  by  the  day's  work  for  a  sum  less  than  the  cost  cif 
"  her  rebuilding,  init  at  the  time  when  the  accident  occurred 
"  Warren,  who  was  then  her  registiMed  owner,  was  absent  from 
"  Victoria,  and  the  repairing  was  done  umler  the  direction  of  an 
"  agent  or  attorney." 


As  to  the  sale  and   the  charter  I  have  nothing  to  say  in  ad- 


ass 

(Sir  Charles  Hiblnirt  Tupper's  Secoml  Ar^niment.) 

<lition  to  what  I  .sai<l  in  the  case  of  tlie  "  Thornton  ",  but  I  wouhl 
draw  attention  to  those  observations  as  applying;  in  this  case. 

The  appraisment  at  Sitka  is  also  mentioned  on  page  811  of  the 
United  States  Argument.  I  submit  that  is  evidence  that  cannot 
be  used  against  us  in  any  sense.     In  the  Krst  place,  to  be  of  ini- 

10  portonce,  we  sliould  have  had  the  best  evidence,  not  the  Record 
or  official  report.  There  were  several  things  of  importance 
needed  to  make  it  testimony  at  all.  We  should  know  in  connec- 
tion with  that,  not  what  the  vessel  sold  for  at  a  particular  time 
up  there,  but  the  condition  the  ves.<<el  was  in  at  the  time  of  her 
seizure,  and  I  think  we  should  be  entitled,  before  any  impor- 
tance could  be  attached  to  that  evidence,  to  the  direct  testimony 
of  those  officials  who  were  concerned  with  that  sale.  We  have 
had  evidence  already  in  connection  with  the  sales  at  Victoria 
where  the  object   was  not  i ')  rcDiizo  money,  but  to  change  the 

20  title  or  arrange  other  matters.  Wo  know  nothing  about  the 
market  or  the  number  of  people  present  at  the  sale  or  anything 
about  it. 

At  page  812  of  the  United  States  Argument,  there  is  an  allu- 
sion to  the  objections  to  this  appraisment,  and  I  call  attention  to 
IX  part  of  that  statement  which  is  not  emphasized  in  print.  All 
that  is  emphasized  there  is  that  the  owners  claim  that  the  ap- 
praisment was  excessive  at  the  time,  on  account  of  the  inclement 
weather  of  Alaska,  etc. 

;{()  I  call  particular  attention  to  the  Record,  pages  116G  and  1!)77 
to  show  the  difficulties  in  connection  with  the  bonding  of  these 
vessels.  Mr.  Warren  understood  the  trouble  to  be  with  reference 
to  appealing,  making  it  too  onerous  for  them  to  take  the  vessels 
at  any  appraisment,  but  Roscowitz  shows  that  he  was  ready  and 
willing,  and  prepared  to  enable  Wurren  to  get  everyone  of  these 
vessels  back,  and  went  with  bonds  and  crews  to  Sitka,  going  first 
to  Seattle  to  arrange  with  the  bank,  and  then  took  tliese  crews, 
and  going  up  ;  but  the  refusal  and  failure  'o  get  the  vessels  is  on 
any  appraisment  all  explained  at  page  1977  of  the  Record. 
40 

On  page  .'US  cf  the  United  States  Argument  there  is  a 
reference  to  the  Inspector's  report  in  connection  with  the  value 
of  the  vessel,  and  this  statement  is  made  : — 

"  The  principal  witness  produced  on  the  part  of  Ureat  Britain 
"  as  to  the  value  of  the  engines  and  boilers  of  this  vessel  and  of 
"  the  others  registered  in  the  name  of  T.  H.  Cooper  was  F.  A. 
"  Thompson,  the  official  inspector  of  hulls  at  the  port  of  Victoria. 
"  His  testimony  is  based  upon  surveys,  not  made  by  the  witness, 
"appearing  in  the  records  of  his  otHce  for  the  year  1885." 
'>[}  It  is  well  to  remember  thai  his  predecessor  in  office  was 
Edward  Vigor,  who  was  shown  to  have  been  dead,  and  at  page 
!)87  of  the  Record  it  is  shown  that  it  was  with  his  records  that 
the  witness  Thompson  was  dealing. 

Then  this  witness,  who,  I  think,  made  a  favorable  impression 
on  the  court,  who  holds  a  responsible  position,  and  who  has  a 
1,'ood  standing  in  the  community, — this  witness  to  my  great  sur- 
prise, is  attacked  by  my  friends  on  the  other  side.  Your  Honors 
will  remember  Mr.  Thompson  in  the  box,  and  under  fire  of  my 
learned  friends  cross-examination  in  regard  to  all  these  ships,  it 
(to  would  not  be  extraordinary  for  an  honest  ami  intelligent  man  to 
iiiuke  a  slight  variation  in  connection  with  the  values  to  which 
lie  was  referring. 

To  show  you  upon  how  slight  a  variation  his  cruiiibilit}'  is 
attacked,  my  Icnnied  friend  says: — 


,i'li' 


II 


&'t  ■ 


'^^m 


10 


534 
(Sir  Charles  Hiblmrt  Tuppcr's  Second  Argument.) 

"  His  values  are  evidently  uncertain,  ai  at  one  place  in  the 
"Record  he  values  the  machinery  of  the  'Grace'  in  1885  at 
"  33,500  and  again  at  93,200,  but  does  not  state  whether  that 
"  valuation  is  for  1885  or  188(i.  If  the  latter  valuation  is 
"  for  1885,  it  ia  clearly  contradictory  of  his  former  state- 
"  nient,  while  it  is  a  valuation  for  188G  the  depreciation  of 
"  the  enjjine  and  boilers  wouM  be  iipproxiniatuly  8J  per  cent. 
"  Yet  he  stilted  that  the  '  Thornton's  '  machinery  could  be  sold 
" '  lifter  five  years '  using  at  but  7J  per  cent.  otT  its  orijjinai 
"  value.  These  stftteiiieiits  >)f  Thompson  are  much  at  variimcf 
"  with  those  of  Andrew  Gray,  inspector  of  boilers  in  1882." 

I  want  to  call  attention  to  the  Record,  paires  1)!)7,  and  lOOI. 
whore  the  valuation  is  put  at  93,.')00  in  ot.  ■  pliicu,  and  S'3,200  in 
another.  On  page  !)!>7  he  uses  the  words  "  about  S3,500,"  and, 
■'  about  83,200."  Certainly,  in  the  examination  of  him  then,  I 
do  not  for  a  moment  suppose  that  the  court  or  the  counsel  would 
20  think  that  this  witness  knew,  or  su|)poseil  that  he  was  bi.'ingcon- 
tine<l  to  dollar  for  dollar,  but  was  only  asked  to  give  his  general 
opinion  of  values,  and,  as  he  was  taken  rapidly,  from  ship  ti> 
ship,  I  think  that  is  very  fair  evidence  indeed,  and  perhaps  bet- 
ter than  if  he  had  struck  hard  and  fast  to  a  certain  sum  on  each 
occasion. 


At  page  388  of  the  argument,  still  referring  to  the  "  Aimii 
Beck,"  there  are  some  statements  which  call  for  an  observation 
or  two.  In  the  first  place,  I  call  attention  to  the  fact  in  connec 
tion  with  the  presumptions  to  be  made  in  this  case,  that  the 
papers  are  .shown  to  have  been  taken  from  the  ship.  I  refer  to 
pages  1,041  and  1,042  of  the  Reconi.  The  United  States  have 
produced  none  of  these. 


30 


40 


Then  in  regard  to  the  manner  in  which  that  vessel  was 
seized  and  taken,  it  appears  that  no  inventory  was  taken  by 
the  .seizing  officers  and  it  will  not  be  denied  that  that  was 
an  indication  of  some  recklessness  or  carelessness  on  the 
part  of  those  officers,  for  upon  an  occasion  of  that  kind, 
where  a  vessel  is  taken,  the  greatest  care  ought  to  be  observed 
in  taking  an  account  of  all  the  property  that  goes  into  the 
hands  of  the  seizing  party. 

At  page  389,  the  first  statement  I  wish  to  correct  is,  that  the 
vessel  had  336  sealskins.  Page  1045  of  the  Record  shows  us 
stated  in  our  claim  that  the  number  was  337. 


At  page  389  of  the  American  Argument  is  a  reference  to  the 
list  of  things  on  the  ship,  and  I  would  call  your  Honors'  attention 
50  to  the  following  references  (Record  ;^4ges  1045,  1061, 1066 and 
1141)  so  as  to  complete  this. 

At  page  1141  the  reference  is  made  to  the  slop  chest. 

Then  at  page  390  of  the  American  brief  thete  is  a  state- 
ment about  the  guns.  In  connection  with  that  I  would  refer 
to  the  record  page  1040,  (exhibit  66,  claim  7,  page  151)  where 
Lieutenant  Hall's  evidence  appears  as  follows :  "  Was  in  Behring 
"  Sea  on  this  day,  seized  the  British  schooner  '  Anna  Beck '  under 
60  "  Captain  L  Q.  Sheppard'a  order  and  (skipping  a  description  of 
"  the  place)  the  seizure  was  of  the  veasel,  tackle,  apparel,  car^o 
"  and  336  lu  r  seal  skins  and  arms  and  ammunition."^  That  is 
where  my  learned  friends  no  doubt  got  the  number  of  skins  they 
give,  but  I  call  attention  to  the  other  statement : 


T! 


:iii 


30 


535 

(Sir  CharluM  Hibbcrt  Tiippor's  Succnd  Arjfuincnt) 

At  ptigc  3!l(>  of  tlie  United  States  Ar^uiiiciit : — 
"  It  is  therefore  claiineil  tlmt  there  ih  no  evi<lenpe  tlii'.t  tlio 
"  Hreiirnis  l)elonjjinjj  to  the  owner  or  liunters  wen^  ever  iictnally 
"  seized  by  tiie  United  Stutt's." 

I  submit  tiiat  wimtever  tlie  IndianH  jrot  after  that  seizure 
whether  they  stoio  it,  or  wliether  tliese  tliin^js  were  yiven  Ut 
them,  we  liave  'nothin<r  to  do  witli  tiiat:  I  Hiilimit  that  what 
we  hiivt!  .sim]ily  to  siiow  is  thfvt  cverytliinj;  on  board  our  .ship 
went  into  tlie  iioMsession  of  tlie  sei'-'M",  and  thi'  seizor  is  neconiit- 
iil)le  to  ns  and  not  to  tlie  Indians.  Tliey  cannot  rliiir^'e  us  with 
.inytiiin;;  d(<ne  l)y  the  Indians  in  cimniM'tion  witli  mw  propTty. 
'I'hen;  is  a  presumption  on  lliat  same  subject,  wliieh  1  do  not 
think  is  a  fair  one  or  one  that  can  be  ur;jed  aj^'ainst  ns. 

At  paf^e  3!)1  where  it  saj's  :  "  The  item  for  '  sealing;  bo^it  and 
"  ontHt,8l40,'  is  unwarranted,  as  it  appeal's  by  tiiu  e'  .lienci' that 
"  tlie  Indians  of  the  '  Anna  Heck  '  took  it  when  they  started  for 
■  Victoria,  the  presumption  beinj;  that  it  was  returned  to  thc^ 
"  owner," 

There  is  no  such  prestiniption,  it  seems  to  mt^  tliat  they 
could  avail  themselves  of  in  connection  with  the  tortious  taking 
of  our  property. 

Then,  coniinjj  to  the  "  (trace  "  and  "  Dolphin,"  if  your  Honors 
please,  in  the  first  reference  at  page  396  of  the  United  States 
Argument,  I  liml  it  staUsl  that  there  was  no  mate  of  the  "  (trace." 

"  The  attention  of  the  High  Coniniissioners  is  called  to  the 
"  fact  that  there  was  no  mato  of  the  schooner  '  Grace,'  and  no 
"  claim  on  liehalf  of  one  was  made  in  the  (-lainiH  submitted  at 
rari.s. 

The  next  .sentence  explains  that  the  witne,ss  Norman,  who 
testitie('  as  having  acted  as  mate  of  the  ves.sel,  wan  also  the 
engineer. 

The  references  in  the  Record  ns  to  the  arrest  of  the  ship, 
page  1107;  Uie  airest  of  the  captain,  pages  1122,  1124  and 
1126  of  the  Record. 

The  imprisonment  of  the  captain,  pages  1127  and  1146, 1147  ; 
and  the  release  of  the  prisoners  on  Septent''<;r  9tli,  1H87,  pages 
1266.  1267.  1268,  1612,  1613,  1615.  and  1617. 

All  these  references  make  it  impossible  to  say  that,  because 
this  man  was  not  formally  indicted  or  formally  prosecuted,  or 
manacled,  or  anything  of  tha1<  kind,  that  ho  was  not  a  prisrner. 

Every  person  connected  with  the   ship  was  a   prisoner   the 
moment  the  ship  was  taken,  and  all  on  board  had  their  liberty 
interferetl  with  for  the  moment.     It  is  a  mere  question  of  degree, 
but  that  he  was  detaine<l  is  indubitable. 
.■)0 

At  page  398*  we  tind  our  friend  Captain  Warren  turning  up 
almost  in  the  character  of  an  owner  again,  because  there  is  a  claim 
in  the  United  States  Argument  that  the  charter  money  for  taking 
the  "  (trace  "  and  bringing  the  other  seized  vessels  from  Onn- 
alaska  to  Sitka  should  be  deducted  from  the  clbiin  that  the 
owner  would  otherwise  be  entitled  to.  If  your  Honors  please,  I 
submit  that  the  United  States  cannot  charge  anyone  with  that 
§2,500,  which  was  duly  earned.  The  amount  may  be  large  or 
small,  but  the  services  were  rendered  for  every  dollar  of  that 
<iO  payment.  If  a  deduction  at  all  were  made,  it  might  perhaps  be 
from  the  personal  claim  that  Captain  Warren  hod,  but  it  is  pre- 
posterous that  it  could  be  charged  against  tlie  ship,  when  one 
considers  that  this  property  was  at  that  time  in  the  hands  of 
the  United  States,  and  they  simply  bought  the  services  of  one 


W 


ir 


n' 


'1.  -t' 


n'  •  t 


1H 


mr 


™ 


53(1 


(Sir  CliarleN  Hibbert  Tuppei-H  Secund  Ar|{uinciit.) 

of  their  priHuniTH — a  man  uwiiititi);  hiH  triiil — nnd  gtk\e  biin  ho 
tnucli  money.  If  they  claim  tlint  the  act  waH  IheiirN — though 
the  evidence  HJmply  refurH  to  the  Marshal  at  Sitka- -ho  far  tLs 
that  payment  watt  made,  the  money  wan  earned. 

Air.  LanHing  : — It  appears,  does  it  not  on  the  record,  that  it 
was  untere<l  by  Captain  Warren  on  the  books  of  the  ship  a^jaiuHl 
10  I'ooper  ! 

Sir  CharlcM  Hiblxirt  Tupper : — I  am  not  aware  of  that  refer- 
ence, but  my  learned  friend  no  doiilit  can  turn  up  that  reference 
where  it  was  charf^ed  to  ('oojtcr.  It  wiis  referred  to  as  l>eing  in 
''aptain  Warren's  books,  but  whether  it  was  charged  to  Cooper 
or  not  so  iar  as  my  recollection  goes  does  not  appear.  The  facts 
are  before  you  Honoi-s,  and  the  fact  is  that  money  was  for  ser- 
vices rendered,  and  so  that  account  would  be  Hi|uarc. 

In  connection  with  the  "  Dolphin"  Record  pages  1147,  lltil, 
it  shows  that  the  ship's  papers  were  seiziHl  and  never  returned. 

At  page  :)90  of  the  United  States  Argument  there  is  a  mistiiko 
I  think  in  connection  with  the  evidence,  perhaps  of  no  very 
great  importance.  There  is  the  word  "  back  "  inserted  there 
and  the  word  "  back  "  is  not  in  the  record.  "  Tlie  Indians  on 
"' Dolphin '  got  their  guns  '  l)ack,'  I  do  not  know  how,  but  I 
"  suppose  that  the  Indians  on  the  CSrace  got  their's  back  also." 

Tlie  word  "  back  "  interpolated  there  has  perhaps  the  same 
meaning,  but  nevertheless  the  record  has  not  that  word  "  back." 


20 


30 


40 


50 


60 


At  record  page  1 1 7 1  I  would  refer  your  Honors  for  a  list  of  the 
guns  taken  by  tlie  "  Rush."  Page  1162  of  the  record  refei"s  to 
the  guns  taken  from  the  Indians  and  returned  ;  and  I  will 
content  myself  with  submitting,  as  a  fair  construction  of  the 
evidence,  tliat  there  were  these  two  sets  of  guns,  and  the  argu- 
ment in  our  claim  in  reference  to  the  "  Grace  '  and  "  Dolphin  " 
refers  to  the  guns  that  the  "  Rush  "  took  from  us,  and  whicli 
were  not  the  Indian's  guns.  There  was  a  large  stock  of  guns 
and  ammunition  on  the  Dolphin  and  we  explained  how  it  was 
she  carried  so  much,  and  my  submission  is  that  by  referring  to 
pages  1171  and  1172  of  the  record,  and  the  evidence  that  is 
expanded  here  in  the  United  States  argument,  where  it  will  be 
seen  that  this  alleged  return  of  the  grns  relates  not  to  the  guns 
and  rifles  we  have  charged  for  but  the  so-called  Indian  guns. 
And  I  again  repeat  my  point  in  regard  to  that  sh(  «.  '*\<r  a  return 
of  any  of  the  property  on  that  ship  is  not  a  sutlf^ient  answer 
to  our  claim.  Page  89!)  deals  with  the  purchase  that  Captain 
Warren  made  of  some  of  these  guns :  and  there  is  i\  reference 
further  to  the  purchase  of  skins. 

I  submit  that  is  not  relevant  in  this  case  at  all,  any  i.iore  than 
if  it  were  John  Smith  or  people  wholly  disconnected  vith  the 
transactions  who  made  the  purchase.  The  fact  that  a  sale  of  the 
character  of  which  we  know  nothing  and  the  condition  of  the  guns 
we  know  nothing  of — we  know  nothing  |but  the  fact  that  lie 
bought  some  guns  and  at  that  ut  time  he  happened  to  be  the 
owner  of  the  vessel,  but  this  would  not  make  the  transaction 
with  the  claim. 

There  is  also  evidenee  in  regard  to  the  sale  of  material  in 
connection  the  .skins  touching  the  value  that  they  were  iiti'ucte<| 
by  the  rats  having  got  at  them. 

Mr.  Lansing  : — What  is  that  ri'ference  ? 

Sir  Charles  Hibljert  Tupper  :  — I  have  not  the  reference  to  tlu' 
rats  but  my  learned  friend  will  rfinendx'r  that  then-  was  ii. 
i(  lercnce  to  them,  that  tluTi-  wen-  rats.  There  is  in  eoiuifctioii 
with  tlic  iiKiiicy  pii<;i'  41(7  n\'  tlic  riiiled  States  Arguinent. 


2(t 


S87 

(Sir  Clmrli'M  llihlu'it   Tupijcrs  Second  Ar^^uiiifiil  ) 

Mr.  Lmsiiijj: — Tlii^  ruts  rulurrfd  lo  iiro  in  tlic  casu  of  tlio 
"  Henrietta. " 

Sir  CliuH.  Hiblicrt  'I'uppcr: — Hut  I  lliink  tliorc  are  hoiiio  rats 
in  tluH  ciisi'. 

Mr,  Ijinsinu  : — I  tliink  ,so  to. 

Sir  ('.  If.  Tu|)))L'r  : — .My  iearnwl  friiMul  niiiinds  inc  tlnit  tliuro 
is  iirt'forence  in  tlie  Ui'tonl,  l)a^L'  241,  lino  11,  to  Sprin<j'.s  evidence, 
as  to  the  value  of  tlie  Ix-ddin;;  and  that  will  aj)ply  to  all  the 
different  scheiluleH  of  our  claim  where  we  have  charj^ed  for  hed- 
liin;;.  The  S40  in  the  "Thoiiiton  "  ca.se  fur  in.stance,  relates  to 
the  heddinj;  for  white  nun. 

The  atlidavit  of  Victor  Jacnhson  in  the  case  of  the  "  Jlinnie  " 
is  alluded  to  at  p.ifje  4.'J7  of  the  American  Ari;ument  (Record, 
pajje  14.')1).     It  reads  : — 

"I  cleared  my  ves.sel  from  Victoria  in  the  early  part  of  May 
"  for  a  .sealinj;  voyage  to  I'lfhrinj;  Sea.  .My  crew  consisti'(l  of  tive 
•white  men  and  sixteen  Indians.  I  entered  the  sea  on  the  27th 
"  ,lune,  and  commenced  se^iliii;;  on  tlii-  1 '>lh  July.  I  was  hove  to 
•' unilcr  reefed  mainsail  and  jib,  when  I  ])eroeived  a  vessel  under 
"  full  steam  liearin;;  ilown  upon  us.  This  was  ahout  '•]  p.  m.  I 
"  made  sail  and  trieil  to  ;ret   away,  hut  was  soon  overhauled  hy 

•  what  turned  out  to  he  Tnited  States  Cutter  '  Rush.'  Someone 
"  on  lM)ard  shouteil  eut  '  heave-to.'  I  did  .so,  and  a  Ijoat  filled  with 
"  men  came  alon;jside,  a  lieutenant  c.uik!  ahoard   and   asked    me 

;!0  "  for  my  jiapers,  which  I  {^ave  him.  He  then  asked  mo  how 
'■  many  seals  I  had.  I  replied  atioul  4.")().  Hi^  then  took  uiy 
"  pa])ers  utr  to  t!ie  Cutter  and  return"  d  and  oi'dered  his  men  to 
"take  off  the  hatches  and  hriiiij  \i\)  all  the  skins  they  could  tind. 
"  They  took  oil  4.")  I  skins  to  \.\a:  Cuttei-.  1  went  on  hoani  tin; 
"Cutter  and  interviewed  Cajitain  Sliepurd,  who  told  nu'  he  must 
"  obey  his  orders  which  were  to. seize  every  schooner  found  sealinij 
"  in  the  l-tehrin;;  Sea  and  send  then,  to  .Silka.  1  n^turned  to  the 
"  sch-  iner,  when  tlu;  lieutenant  asked  me  for  my  j;uns  and  spears. 
"  Me  v..)ok  a  breach- loadin;;  <.;un  and  a  mu/.zie-loadei",  but  refused 
a  French  musket,  which  1  otleri'd  him.  He  then  left  with  his 
'  men.  leavin;;  one  man  on  hoard.  The  Cutter  tluMi  steamed 
"  away.     The  lieutenant  told  me  before  li'avinjj  that  I  was  rtvo 

■  miles  southeast  by  east  from  IJnimak  I'a.ss.  After  the  Cutter 
"  left  the  Unitetl  St.ites  sailor  told  me  he  was  in  charj^e,  but  ho 
"never  attempted  to  interfere  with  the  workiu}^  of  the  vessel. 
"Some  time  jifterwards  he  showecl  me  his  written  instructions, 
"  which  were  that  the  vessel  should  proceed  to  Sitka  ami  there 
"be  handed  over  to  the  United  States   Mar.-hal,    and  that  the 

'  Ca[)tain  and  .Mate  should  he  arrested.     I  then  concluded  I  wcaild 

•  not  ;;o  to  Sitka,  but  would  continue  my  voyajje.     That  nijrht 

■  we  made    some    new    spcai's,  and   next    morning   commenced 

■  hinitinjx  as  thoujjh  nothiuf;  had  happeneil.  We  captured  tifty 
"  seals  on  that  day  an<l  ninety  on   tiie   next:  kept    on   huntini; 

■  imtil  the  ITlh  Aufjust,  when  bavin;;  'AH)  .seals  on  board,  I   left 

■  for  the  south.  After  passin;(  throu;j;h  Uninuik  Pass  I  told  the 
'  prize  crew  I  should  steer  for  Victoria,  lb;  rei)lied,  '  1  ahvay.s 
'  ihoii^ht  so.' 

"The    Indians   told    mo  that    if   the    United    States    s.iilor 

atti'Uipted  to  take  the  vessel  to  Sitka  they  would  throw  him 

"overboard.     We  arrived  in  Victoria  last  evenini;  and  t  )-d;iy  at 

■  noon  the  prize  crew  came  ashore  au'l  repoiteil  at  the  American 

"  Consulate." 

In  connection  with  that  the  United  States  Argumont  says  : — 
|>a^c  4.S7. 


4(» 


.■)(( 


(ID 


ii:.;  r 


t 


ii' 


ii  w 


!1k 


w^^ 


MH 


(Sir  (^liiirli'M  IliljInTl  'l'ii|i|)or'H  Stroiul  Ar^uinont.) 

"  Tlic  NcliooMur  was  ordureil  to  prococil  to  Sitka.  'I'lie  iiiHtrnc' 
"  tions  wi'i'u  not  oheycil,  and  lliiit  ni^lit  nwulo  Honiu  nuw  N|iears 
"mill  iH'.i't  }iiiirni  III/  riiiaiiii'iii-til  Iniiili  ini  nn  tlmiiiili  iiotliiiti/  Iniil 
"  h<ii>pc)\vil ;  wi' ciipturod  ')()  Hfals  on  that  day  an<l  !)0  on  tlir 
"  next.'  Kupt  on  hunting;  until  the  l7tliof  An;;ust,  whun  havin;; 
"  .')()()  seal.s  (in  hoard,  1  left  for  the  .soutli.  Aftt-r  paHsin^  throii^ji 
10  "  I'niniak  I'ass  I  told  the  pri/u  v.Yvvt  I  Hhoiiid  .stot'r  for  Victoria 
"  Ht'  ri'|ilii'il,  '  I  always  thought  so.'  This  Indians  told  nii;  that 
"  if  thf  Tnitcd  States  sailor  attempted  ti)  take  the  vessel  to  Sitka 
"  they  would  throw  him  overhoanl.  NVoarrivetl  in  Victoria  last 
"fvenin;;  and  to-day  the  prize  crew  came  ashore  and  reported  at 
"  the  American  Consulate." 

Mr.  Warren  : — Have  you  taken  up  the  ease  of  the  '  Minnie.' 

Sir  C'has.  Ilil)bert  Tupper  :  — Yes.      I  would  refer  your  Hcaiors 
to  paj^e  VM  of  the  Ainerie.in  Urief,  where  particular  attention  is 
calliMl  to  the  fact  that  next  inornin;;  he  cjiinnenced  sealing  as  if 
20   nothing  had  happened. 

On  cross-exainination  tlie  witness  testified  .— "  Q.  And  thf 
"  next  morning;  y(ju  eomincnced  sealing;  as  though  nothin;r  hud 
"  happened  '.     A.     That  is  what  v  e  ditl." 

1  would  also  call  your  Honors  attention  to  the  Record,  pa;,'e 
144(),  line  l!l,  and  following,  in  coinieclion  with  that.  Showin;,' 
that  sealinir  there  was  while  wind  wa.s  calm  or  calmed  down  ami 
the  ve-sel  sealed  till  wiiiil  came  and  then  they  went  away.  Also 
see  Record  W'M,  (pmted  in  Hritish  Aijjument.  14.'{,  where  May- 
ne.sen  eAplains  See  also  United  .States  Argument,  paijo4;)I)  and 
30  Keeord  144'i,  showing;  vessel  was  liecalmed,  hut  after  that  went 
north-east.  And  also  to  the  statcmi^nt  at  pajjo  427  of  the  Ameri- 
can Ar<,'iunent  and  paye  A'.\H  : — 

"  Q.  Then  you  were  where  sealH  were  at  the  time,  if  you  had 
"  taken  that  many,  were  you  not  f  A.  The  Hrst  few  days  we 
"  wasn't  far  awa}'  from  whore  the  seals  were,  because  as  the 
"navijjator  states,  the  wind  calmed  down  and  we  <liiln't  go  far. 
"  We  lowered  the  canoes  aixl  .sealed  right  tlle^^  Then  when  the 
"  breeze  sprang  up  again  wo  came  away. 

"  (l     Where  f     A.     To  the  north-eaHt. 
40         "  Q.     When  you  .say  you  were  around  Annak  Island,  you  do 
"  not  mean  that,  do  you  ;  yon  mean  that  you  were  to  the  nortli- 
"  ward  of  Aiuiak  Island  !'     A.     We  were  oH"  the  Island. 

"  if.  Northward  of  the  Island  ?  A.  Well,  to  the  north-east : 
"  it  bore  north,  north-we.st  as  we  started. 

"  Q.  That  is  your  ship  bore  northwest  from  that  island  ' 
'•A.     Ve.s. 

■'  (^).     And  you  were  a  considerable  di.stance  from  the  north 
"  west  of  Annak  Island  f      A.     No,  I  don't  tliink  we  were  a 
"considerable  distance  because  we  wore  pretty  cIo.se  around  the 
50  "  land." 

I  refer  in  this  coiutection  to  the  evidence  set  up  at  page  142 
<jf  the  Hritish  argument  wliere  Captain  Jacobsen  describes  what 
he  did  after  the  seizure,  and  I  Hubmit,  tlmt  taking  those  refer- 
ences that  I  have  given,  and  also  page  143S  of  the  evidence  of 
Magncsen  (pioted  in  the  Hritish  argument  at  page  14:i,  your 
Honors  will  tind  that  the  statement  made  in  the  argument  in 
the  case  of  the  'Minnie'  in  the  Hritish  Argument  \h  on  the 
whole  correct.  There  is  in  the  United  States  argument  a  (luota- 
tion  from  record  page  1437,  line  37,  and  that  .sliould  Imj  followed 
CO  up  by  the  next  ((uestion  and  answer  for  a  full  understanding  of 
the  evidence  at  page  1437,  lino  37.  Reading  pivge  438  of  the 
United  States  argument : 

On  direct  examination  by  Mr.  Heique:^— "Q.  After  being 
"  ordered  out  had  you  any  conversation  with  tlie  master  of  your 


'T 


5«0 

(Sir  Cliarles  HibbtTt  Tupper'H  KccuikI  Ar){uini'nt.) 

"  \eHHf\  iiM  to  wliat  you  wouM  <ln  !  A.  Vt-t,  we  talknl  tlio 
"  iiiitttor  (ivur  hikI  wo  coiik*  to  tin!  coiicliisioii  tliat  wi>  wiimu'i  ;;uin;r 
•'  to  yo  out  of  Kehriii);  Son  unless  wo  woro  tnwod  out. " 

Tlio  rofort'iico  to  llio  ovidoiico  in  the  Anioriciui  Hr<;uiiiont 
stops  tlioro,  liut  tilt!  witiiosH  coutiiiui'il  : 

"  tf.  l)i<l  you  coiiio  to  tlio  conclusion  ol'  n^niiiinin};  on  thu 
■  sfiilin;;  j;roUM<ls  wlioro  you  wore'  A.  No,  we  stooroil  towards 
"  tlx'  I'lisH  until  ovenin;;,  iiixl  in  thi*  ivonin^  we  wont  ii|i  to  llio 
"  nortliward,  >tcorod  to  northoiist." 

In  tliis  connection  tlien  read  lust  para^nipli  on  pa^o  4:tS 
I'nilod  Stati's  argument  and  .lacol>sen's  statenioni  refern-i|  to  is 
iniderstiKKl. 


'i'lion  at  pa;;o  441  of  the  I'niti-d  States  iirgunient  there  is  n 
reference  to  the  2, !)()()  seals  that  weio  taken  up  lo  August  2;lnl 
"20  — ""''  '"  '•'''''  eonuecti(jn  I  would  refer  you  to  pa^je   1,443,  lino 
22  of  the  reconl. 

Mr.  Varren  : — Where  did  you  yet  the  2,!K)()  from;  our  ar;,'U- 
nient  .' 

Sir  Charles  Hihhert  Tuj)per :  -2,(i()0  is  it !' 

Mr.  Warren  : — l,(iOO  is  the  correct  number. 

Sir  CliailcH  Hihliert  Tupper : — 2,(i00.     I  will  refer  you  to  pajjo 

1. 44!>  of  the  evidence,  line  1:   "I  had  close  on  2,(100  seals  that 

year."     That  was  in  ISOO.     And  lie  says  the  Indians  thoui^ht 

that  enouj;li  and  that  is  why  he  came 'lut  of  Sea.      I'ayo  l,4+.'{, 

no  line  22  of  the  record  contains  this: 

"  (,>.  When  you  luid  nolhin^j  to  fear  you  ma<le  jjood  ctitches  ? 
'  A.  I  have  done  it  before  that  and  have  done  it  every  time  of 
"  late ;  several  times  1  jjot  2.000  ami  2,(iO',)  with  the  schooner" 

'I'lie  liritish  Ar<rument,  pa;;i>  I4.'>,  in  this  connection  has 
reference  to  Captain  Shepard's  report,  as  to  the  number  of  seals: 
'  She  had  l)een  in  Hehrin;^  Sea  since  the  27th  of  June  and  was 
•  found  to  have  41X  fur  seals  on  board."  And,althouijh  we  claim 
tin- smaller  number,  420  of  seals  stated  to  have  been  taken,  thu 
iiference  on  paj;e  440  United  States  Arfjument  would  make  it 
40  appear  that  we  had  488  skins,  and  a  calculation  is  ^onc  into  at 
page  488  on  that  basis. 

At  pajje  440  of  the  United  States  Ar;jmnent  there  is  a  refer- 
ence t<j  the  catch.  On  referrin>j  to  p.if;e  1441,  lino  20,  of  the 
Record,  it  will  be  seen  that  in  the  calcidation,  that  of  the.se  18 
days  seven  were  not  lowerin^j  days.  The  weather  up  to  July  1 5th 
was  referred  to  at  pa<;e  1441,  line  47.  In  that  calculation  no 
allowance  is  made  for  7  out  of  the  18  da^'s  were  not  lowering 
days.  I  would  refer  your  honors  to  llecord,  1441,  where  il 
apfiears  the  number  is  418  or  420.  At  page  445  of  the  British 
Arj;ument  it  will  lie  seen  that  we  are  only  charjjinj;  for  420. 
.")0  Mr.  Warren  : — You  are  jjettinj;  them  all  mixed  up.  There 
were  488  taken  after  the  seizure  an<l  420  before. 

Sir  Charles  Hibb«!rt  '''upper: — It  will  be  a  (piestion  as  to 
which  of  us  is  mixed  up.  The  reference  I  have  given  here  shows 
418  skin.s. 

Mr.  Warren  : — With  reference  to  the  catch  in  1890  he  was 
rxamined  explicitely  as  to  that  at  pa>;e  U(i4  uf  the  record,  and 
ho  testitied  at  line  3  that  he  took  1,«)0()  seals  in  Behring  Sea. 

Sir  Charles  Hibbert  Tupper: — I  have  {jiven  my  reference  to 
that,  and  what  I  make  it  in  1889  is  that  there  were  418  or  420 
(id  taken,  and  we  have  char^jed  for  the  420.  If  I  am  wrong  and 
my  learned  friend  is  right,  that  will  give  us  488  skins  and  my 
observation  will  support  the  other  statement  I  have  made,  that 
in  that  calculation  there  ought  to  bj  seven  lowering  days 
deducted  from  these  18  days. 


!  « 


H      li 


I 


'4 


«40 


10 


SO 


30 


(Sir  Cliurli's  Ilil)loi'l  TupptTM  Sccoml  Ar^rniiieiit.) 

At  [>i\f>e  441  of  tlio  Uiiitcil  States  Ar^uini'nt  tlioru  '\n  a  rcfer- 
cnce  to  tho  Kcconl,  paijo  1447,  lino  !i'.\,  ami  l>y  tiiiKtaku  thoy  refer 
tu  the  aliHiiiloniiieiit  uf  Healing  in  \HHH,  its  on  the  3r(l  of  Septem- 
ber. Tlio  UeeortI,  pa>{e  1447,  shows  that  it  hHoiiIiI  be  September 
7tli,  instead  nf  September  Krd. 

Then  as  to  that  other  Htntemunt  toucliing  the  catch  of  1  S!)0, 
Ww  expianatiiin  };iven  for  having;  on  that  Any  is  thiit  tho  Captain 
had  seaU  eni>iit;h  and  liad  made  money  eiioii);h.  Tho  Record 
HhoWH  tha^  tiin  nii'ion  whh  tiiat  the  Indians  thought  they  had 
hunted  l<  .i^  enough.  In  order  tn  bo  Ntrictly  accurate  tliat  cor- 
rection muKt  bo  made. 

At  pn^c  441  of  till-  I'nited  States  Argument  th('re  is  ii  n.-fer- 
encc  to  (he  Britisli  (iovernment  Hondin;;  Commissioners  to 
Vietoriii  "  to  pay  the  senh-rs  for  the  losses  incurred  by  reiisun  of 
"  btiiit;  deprived  of  hunting  in  the  Sea  in  tho  year  1H!)|,and  tiiis 
"  witness  received  from  Jlii-  (iovernment  of  (Jreat  Britain  the  sum 
"  of  !?S,()0O  for  diuna^jes  suH'ered  by  two  Hchooners."  Tlint  it  not 
Hit  accnra(e  stnlement.  The  Kecord  reference  is pa).'«  1447.  The 
indemnity  there  was  as  set  out  in  (he  l^ritish  reply,  pajje  ."lO,  for 
the  cost  of  tittinjj  the  vessels  up  ;  and  I  would  like  a  special  note 
nuide  of  that,  if  your  Monnrs  please,  that  it  is  dealt  with  by  the 
Hrilish  Arj,'ument  in  reply  at  pajje  .SO. 

Mr.  Warren  : — Where  is  the  citation  from  tho  Uecurd  that 
that  is  what  it  was  paid  ft.r  ? 

Sir  C.  II.  Tupper: — The  nri(i>h  Arytiment  in  reply,  pa^je  ">() 
dtals  with  that,  'i'liere  is  no  citation  that  will  shew  tlmt  thi' 
S<H,(H)0  was  for  ('ama;;i>s  that  were  sud'efeil  liy  the  two  .schooners, 
ami  that  is  i\olorious|y  contrary  to  the  facts.  Tho  (loverinnent, 
never  pretended  to  pny  on  that  basis. 

Mr.  Lniisin;,' :— There  is  nothinj,'  in  tlu!  Uncord  to  shew  it. 

Mr.  I'eters: — There  is  nothing  in  the  Record  to  shew  tlu? 
contrary. 

Sir  C.  II.  Tup'^er  :  — In  (he  case  of  tho  "  .Minnit!  "  at  pajjo  14.'), 
there  is  a  referen^  to  Appemlix  1>.  pa^je  200.  That  is  in  the 
(aliuluted  stntenie.it.     That  .-hoidd  be  270. 


i| 


MR.    BODWELl'S   tROUVENT  ON   SPECIAL  CASES. 


,  \m 


The  "Saywaud." 

10  "Mr.  Boilwell :— I  iflur  your  Honors  to  a  coiisidtTiition  of 
tlio  CHNH  of  tliu"W.  P.  SHyward."  (Jiir  Htali'iiit;iit  of  tlint  chnu 
is  sot  out  ill  tlin  Kritisii  SUituint'iit,  pu^us  110  an<l  111.  'i'liu 
vossd  WHS  rcturiieii  to  tiit;  owners  iiiiilcr  tliu  boiul  tliut  lius  jiihI 
hwn  ii'ffiTfd  to  in  the  ari^iniitnt  of  my  fiieml  Sir  CiiarleH 
TuppiT  TiiorKfort-  tliiMi*  is  no  cluini  for  tliu  vaiuo  of  tiiu 
Hcliooncr  ill  tliis  caso.  Thu  grounds  on  wliicli  wu  lut.^e  our 
dciiiand  aro  fairly  siinuiinriziMl  in  tiiu  ar^'iiiiiLMit  for  Oreut  Britain 
ut  tlu'  pii^<-'<  i  liavu  iiutntioned,  and  iiucd  not  l)f  ispt'ciaiiy 
ruforrud  to  at  tliin  staj^u.     1   shall  only  notice  one  or  two  of  tlit 

20  olijcctioiis,  which  an;  made  in  thu  United  States  Argumene 
hi»;{innin;^  at  page  ',iH'2. 

Before  proceedinj;  to  that,  however,  tla're  \v;iS  .some  evidence 
drought  out  in  this  case,  leferriiig  generally  to  a  suhject  which 
has  heeii  (\ften  spoken  of  in  the  argumt"'-.  whicli  have  pive.  led. 
At  page  114S  of  the  Record,  lino  (iH,  tain  \Sarren  on  cross- 
examination  said  : — 

'  t^.  It  was  pretty  well  knr>\vn  then  in  Vi  .toria  from  the 
"  experience  of  iHNd  that  there  would  he  .s<'..iuv .  in  the  Behring 
;{()  "  Sea.  A.  No,  I  think  not.  It  was  reported  in  the  |)apers  that 
"  the  vessels  seized  in  ISSO  \.ere  to  he  i  (.turned,  and  we  supposed 
"  that  ended  the  seizing.  \Vu  took  it  for  granted  that  there 
"  would  he  no  more  seizures." 

At  line  20,  page   1,14!):— 

"Q.  Do  you  saj'  that  you  <lid  not  expect  to  he  seized  if  j-ou 
"  went  into  Behring  Sea  with  this  lleet  !  A.  I  did  not  expect 
"it  in   l.S«7." 

At  page  IKi'Jon  re-direct  examination  : — 

"  Q.  Can  you  n-collect  sutliciently  now  to  speak  of  what 
40  "  you  actually  ha^'  heard  of  the  situation  of  the  Behring  Sua 
"  disputi!  in  1>.S7  ^  l''or  instance  were  you  aware  that  the 
"  Kiiglish  lii>vernment  had  endeavcu'ed  to  oti'ain  dulinite  iiifor- 
"  Illation  from  the  United  States  (>overnmeiit  as  to  its  policy 
"  that  year  ?  A.  I  knew  they  were  negotiating  ahout  the  old 
"  seizuri's. 

"  Q.  Was  tliere  than  a  rumor  that  the  United  States  in- 
"  tendi!il  to  reniime  seizures  that  year  ?  A.  I  think  not,  I  know 
"our  authoritii's  here  told  us  there  would  he  no  ilanger. 

'  Q.     The  authorities  of  the  port  of   Victoria?     A.  Yes. 
.")()         "  (^.      Who?      .\.      Atthecustomhou.se. 

"  (}  They  expressed  the  opinion  that  there  was  no  danger  ? 
"  A.     No. 

"  Q.  Was  any  order  left  hy  the  cutter  '  Walcott'  on  the  Hub- 
" jeet  at  Hiis  port  or  anywhere  and  eominunicated  to  you,  any- 
"  thing  in  the  nature  of  a  warning  ?     A       No,  not  olKcially. 

"  i}.     You  heanl  of  no  warning  ?     A.     No. 

"  (}.     You    were  alMiut   t      .say  what   you  reimiiihered  ?     A. 

"  Some  man  on  the  cutter,  I  Nuppose  a  deck  haiitl,  1  should  say  an 

"  or(|inarv  man    on    the   cutter,  made    ^o■Me    remark    that   thev 

(io  ••  would  be  Ht'izefl  again.     It  come    from   tliis    Munroe.     He  told 

'  some  of  them. 

'  Q.  That  they  heard  from  a  deck  hand  on  the  'Walcott?' 
■'  A.     Yea 

"Q,     And  you  put  that  down  to  he  an   attempt   on  the  part 


n 


•  J 1  ■ 


'  ll  i'( 

» If .' , 

1    ' 

1 

U     |1 


rrr 


20 


;jo 


542 

(Mr.  Bolwell's  Arj^tnent  on  Special  Cases.) 

"of  Muiiroe  to  prevent  others  from  getting  Indiana  at  that 
'  point  ?  A.  I  siippo.tetl  lie  had  something  of  that  kiiul  in 
"  view." 

At  page  38-1  of  tlio  Unitoil  States  Argument  it  is  contended 
that  the  United  States  are  not  liable  to  repay  the  sum  expended 
IQ  by  the  nuite  Laing  on  his  visit  to  Victoria  during  the  period  of 
hisimpriHonment.  The  evidence  which  ia  there  (juoteil  sets  out 
the  circnnjstanees  fairly  enough.  The  point  is  this  :  Laing  had 
been  arrested  and  taken  to  Sitka  :  he  wished  to  go  to  Victoria  in 
order  to  .see  his  friends.  Before  lu^  was  allowed  to  depart,  how- 
ever, he  was  put  upon  his  parole  to  retiu'n.  The  journey  may 
be  saitl  in  every  respect  to  liave  been  caused  by  the  wrongful 
act  of  the  United  States  in  arresting  him.  There  is  no  (piestion, 
but  that  his  return  journey  was  dirtictly  in  conse(|uence  of 
such  act.  He  might  have  come  to  Victoria,  and,  if  ho  had  been 
allowed  to  remnin.of  course  there  would  be  no  claim  on  liis  behalf; 
but,  having  been  compelled  to  return,  we  think  the  expen.ses  of 
that  journey  are  fairly  chargeable  against  the  United  States,  if 
your  Honors  consider*  that  he  is  entitled,  under  the  circum- 
8ta!ices  mentioned  in  the  evidence,  to  indemnity  for  the  impri.son- 
ninent  which  occ»n"red. 

The  l\)mmi.ssi()ner  on  the  part  of  the  United  Staten  : — Who 
do  you  say  paid  those  expenses  ? 

Mr.  Bodwell  : — ^The  mate  of  the  vessel    Laing. 

Mr.  Lansing :— Do  you  claim  for  his  imprisonment  at  the 
same  tinte  f 

Mr.  Bodwell  :— Here  is  ?10()  actually  disbursed.  The  amount 
which  is  claimed  for  damages  might,  of  course,  include  a  smn 
sntficient  to  cover  this  $100.  (Jn  the  tiieory  upon  which  tin; 
ca.se  was  put  forward  that  these  damages  were  to  compensate 
him  for  his  suHering,  iianl.ship.  and  tiie  indignity  which  had  been 
intlieted  upon  him,  it  would  not  be  fair  to  deduct  from  that 
allowance,  which  we  think  is  only  suttieient  to  cover  the  items' 
1  have  just  mentioned,  the  sum  of  JflOO  actually  disbursed  I'oi- 
a  journey,  maih-  necessary  on  aci'ount  of  his  arrest. 

At  page  '.IHrt  of  the  United  States  Argument  the  United 
States  contend  that  they  are  not  liable  for  the  item  under  the 
heailing  "  Helyea's  Charges."  'i'he  evidence  on  that  point  has 
been  already  referp'il  to.  I  do  not  know  whether  yom-  Honors' 
attention  was  called  to  C'aptain  Warren's  statement  with 
referenci-  to  the  "  Sayward,"  which  is  at  page  114:}  of  the 
Record.     There  the  witness  says  at  line  40 : — 

"  Q.      Do  }'ou  know  anything  about  the   legal  expenses  ut 
"  Sitka  in  the  "  Sajward  "  matter  ?     A.     I  don't   remember  just 
50  "  what  was  paid  there. 

"  Q,.  And  there  is  a  claim  made  of  ?7.")0  for  counsel,  what  is 
"thatf"     A,     That  wo\ild  1m' the  same  as  the  others — Belyea. 

"Q.  Anil  personal  claims  have  been  made  of  ?'2()0.  To 
"  what  ilo  thvy  relate  ?  A.  That  would  be  a  proportion  of  my 
"  personal  expenses  made  in  eiu-h  of  the  case  s. 

'•  Q.  i  suppose  you  have  the  same  observations  to  make 
"  in  regard  to  these  items  charged  originally'  in  making  out  the 
" claim  in  connection  with  the  "(irace,"  the  "  Anna  Heck,"  and 
"  the  Dolphin  "  alnnit  Ihese  legal  fees  made  for  lielyea's  claim, 
60  "  S750,  and  the  personal  expenses  in  connection  with  each,  and  the 
"  legal  expenses  at  Sitka  I     A.     Yes.  " 

My  friend,  Mr.  Peters,  has  already  argued  to  j'ou  the  ground 
on  which  we  base  that  claim  in  every  in.stance  where  it  is  made. 


40 


548 

(Mr.  Bodwell's  Arguiiient  on  Special  Cases.) 

The  United  States  also  contest  oiirclaini  of  SI  000  for   ex- 

ImnseH  in  connection  with  the  bonding  of  the  "  Sayward."  My 
i-iend,  Sir  (-liarleaTupper,  referre*!  your  Honors  to  a  jwrtion  of 
that  evidence,  namely,  tho  statement  of  Mr.  Boscowitz,  pajje  1976 
and  H)77  of  the  Record.     I  will  jjive  you  the  next  reference, 

Mr.  Boscowitz  Hhews   what  he  did.     We  contend   from  the 

]{)  evidence  before  your  Honors  on  this  point  that  the  sum  we  have 

charfred   for  the  cxpcn.ses  connecte<l  with  that    matter   is  not 

unreawmable.     I  will    read  the  evidence  of  Boscowitz,   Record, 

jiiij^e  IDGT,  line  20: — 

"  Q.  Did  you,  as  a  mutter  of  fact,  put  in  appeal  bonds  and 
appeal  the  "  Saywaitl  "  case  f     A.  I  did. 

"  Q.  And  she  has  got  l)ack  into  your  possession,  or  into  the 
possession  of  Captain  Warren  ?     A.     When  I  bonded  her. 

'■  i4-     ^  cs.     A.     Captain  Warren. 

■  K^.  And  at  the  time  she  was  bonded  was  there  a  mortgage 
•JO  on  her  to  you  ?     A.     There  were  two  mortgages. 

"  y.  When  you  bonded  the  "Sayward,"  it  was  done  at 
Sitka,  I  believe  ?     A.     Yes. 

"  Q.     Who  was  with  you  ?     A.     Captain  Warren. 

"  Q.     Had  you  gone  up  there  for  that  purpose  ?     A.    Yes,  sir. 

"  Q.  When  in  Sitka,  in  connection  witii  bonding  that  vessel, 
did  you  incur  expenses  up  there  ?     A.     Yes,  .some  .small  expenses. 

"  Q.  And  in  addition  to  that  you  had  to  put  in  the  bonds  ? 
.\.     Put  in  bonds  for  SSS.OOO.  " 

;}()        Now  here  are  the  expenses,  that  i!=,  the  acts  done  nece.ssarily 
incurring  expense.     At  page  1977,  line   10,  he  testifies  : — 

"  Q.  When  the  ves.sels  which  are  referred  to  in  this  case 
"  were  seized  and  taken  to  Sitka  did  you  take  any  steps  to  bond 
"  these  vessels  >     A.     Yes,  sir. 

" '}.  Whure  did  you  go  to?  A.  I  went  to  Port  Townsend 
"  and  Seattle  to  procure  bonds. 

"  Q.  Did  you  make  arrangements  for  the  procuring  of 
"  bonds  ?     A.     I  did. 

'•  Q.     Through   your   banks  I    believe  ?     A.     Tiirough    my 
40  "  l)anks  here. 

"  Q.     For  all  the  vessels  ?     A.     For  all  of  them. 

"  Q.  With  these  securities  did  you  go  to  Sitka  ;'  A.  Yes, 
"  sir. 

"Q.     When  was  that?     A.     In  1X88. 

"  Q.  Did  you  have  an  application  made  to  bond  the.se 
•'  vessels  ?     A.     Yt>s, 

"  Q.     The  whole  of  them  ?     A.     Yes. 

"  y.     When  you  went  to  Sitka  whom  did   j'ou   take   with 
"you?     A.     Captain  Warren. 
■'iO        "  (^>.     Did  you  take  anj*  other  persons  with  you  ?     A.     Ves, 
'  iliere  were  captains  and  sailors  and   mates  to  bring  the  seized 
"  seliooners  back. 

"Q.     For  all  of  them  ?     A.     For  all  of  them. 

"  Q.  Did  you  cause  an  application  to  be  made  to  have  the 
"  Tt-ss('ls  bonded  ?     A.     Yes,  sir. 

"  Q.  Did  you  make"  any  objection  to  the  valuation  then  ? 
"  A.     None  whatever. 

'  Q.     Was  tlie  application  successful  ?     A.     It  was  refused. 

"Q.     In  all  the  cases  ?     A.     In  all  the  cases. 
•  iO         "  Q.     Having  been  refused  in  all  the  cases,  was  it  afterwards 
'  allowed  in  the  "  Sayward  "  case  ?     A.     Yes,  sir. 

'  (i.  How  long  afterwards  ?  A.  I  think  it  was  the  next 
"  day  or  the  day  after. 


s. 

'A 

'i 

'.s 


m  m 


544 


(Mr.  Bodwell's  Argument  on  Special  Cases.) 

"  Q.  The  matter  was  re-opened  and  you  were  allowed  to 
'•  bond  her,  and  you  did  bond  her  ?     A.     Yes. 

"  Q.     Was  it  your  intention  to  bond  them  all  ?     A.     Yes. 

"  Q.  And  vou  went  there  prepared  with  the  bonds  ?  A. 
"  Yes. 

'  Q.  And  with  the  crews  and  the  captnin  to  bring  them 
10  "  down  ?     Yes.  " 

Mr.  Lansing  : — The  expense,  then,  should  have  been  divided 
aainnir  the  four  vessels  should  it  not  ? 

Mr.  Bodweil : — He  only  bonded  one  vessel ;  but  he  went  to 
all  the  expense  necessary  to  bond  the  four. 

Mr.  Warren's  evidence  is  at  page  1177  of  the  Record,  line 
tiS,  as  follows  : — 

"Q.     You  were  asked  in  reference  to  bonding  the  "  Say  ward." 

"  Do  j'ou  recollect  how  many  bonds  were  actually  taken  to  Sitka 

20  "  in  the  spring  of  1888  for  the  purpose  of  bonding  these  vessels  ? 

"A.     I  think  that  we   took  bond.s  for  the  whole  of  the  vessels. 

"  Q.  Those  were  the  "  Say  ward,  "  the  "  Anna  Beck,  "  the 
"  "  Grace  "  and  the  "  Dolphin."     A.     Yes. 

"  Q.  Were  not  these  bonds  prepared  in  the  United  States  and 
"  with  United  States  sureties  i     A.     Yes. 

"  Q.  Do  you  remember  anything  about  the  captains, 
"  mates  and  sailors  going  up  on  that  occasion  ?  A.  Yes, 
'  I  took  several  parties  up  in  order  to  bring  the  vessels  down. 

"  Q.  What  do  you  mean  by  several  parties  ?  A.  T  mean 
.SO  "  several  men.     I  know  Captain  Keefe  was  one  of  the"i. 

"  CJ.  Do  you  remember  any  of  the  others  ?  A.  No,  I  do 
"  not. 

"  Q.     Can  you  tell  me  at   this  moment    without  refreshing 
"  your  memory  in  any    way,  how  many  captains   you  took  up  ? 
I  cannot. 

"  Q.  Do  you  remember  how  nmny  mates  jou  took  up  ?  A. 
"  I  do  not. 

"  Q.     Nor  do  30U  rememVjcr  the  crews  ?     A.     No. 

"  <,^.  Do  you  remember  going  going  up  on  the  "  Karbani 
40  "  Boscowitz  >     A.    Yes,  we  took  the  men  up  on  her. 

"  Q.  For  what  pnrpuse  did  you  take  these  men  up  ?  A. 
"  For  the  purpose  of  Ijringing  the  vessels  down. 

"  Q.  Which  vessels  i  The  "  Ann  i  Beck,  "  the  "  Sayward,  " 
"  th"  "  (irnee  "  and  the  '  Dolphin.  " 

Your  Honors  know,  of  course,  that  they  would  rei|uire  a 
captain,  mate,  and  a  certain  number  of  crew. 

"  (^.  Do  you  riMiiiMiiber  lifter  reaehing  Sitka,  an  application 
"  being  miidi'  to  bond  the  wlif.ie  four  /     A.     Yes. 

"  Q.     What  was  the  result  of  that  ?     A.     It  wiis  refused. 
')()         "  (.^.     After  the  refusal,  what  oeenrred  ?     A.     1  think  it  wiis 
" the  next  day  they   opened    the  court  again,  and  gave  us   the 
"privilege  of  bonding  the    '  Sayward  "  iigain. 

"  (.}.  Of  bonding  the  "  Say  ward  "  oidy  i'  A.  The  "  Say- 
'  ward  "  only.  " 


-A. 


We  charge  ?1,()()0  for  all  that  trouT)le  and  expense.  We 
have  it  in  evidence  tliat  the  ordinary  rate  which  was  piiid  for 
j.-isscngei-s  going  up  ami  down  in  those  waters  was  S.'iO.  Nearly 
all  the  eaptiiiiis  and  mates  who  came  to  Vietoria  have  told  us 
*i0  that  that  sum  was  the  steamer  fare.  There  would  be  a  CH|iti(in 
and  mate  ami  at  least  four  men  for  each  ve.s.sel,  and  their  hires 
up  and  down  wotdd  recjuire  to  lie  [>aid. 

The  riiited  States  in  their  Argument,  at  page   nSCi,  also  oh- 


548 

(Mr.  Bwl well's  Argument  on  Special  CaMea) 

joct  to  our  charge  for  tlie  depreciation  of  tlie  "  Sayward."  The 
evidence  that  they  have  (|Uote<l  shows  that  she  liad  been  lying 
uiicared  for  from  the  time  of  the  seizure  down  to  the  time  she 
wiiH  brought  to  Seattle.  Captain  Warren  in  the  evidence  there 
(|Uoted,  and  also  the  Kecord,  pages  1104  and  1165,  uays  that 
there  were  a  goixl  many  articles  which  were  on  the  vessel  at  the 
10  time  of  seizure  that  were  not  returned  with  her,  although  he 
was  supjK)sed  under  the  Injnd  to  get  everything  back  that  had 
been  seized.     He  says  at  page  1 104: — 

"  Q.  Now_  Captain  Warren,  <lid  you  get  Imck  with  the 
•'Sayward'  any  of  this  personal  property  that  you  have  men- 
"  tioned  as  having  charged  again.st  the  Unitetl  States  ?  A.  I 
"  do  not  rememlu'r  exactly  what  was  cm  the  '  Saywanl,' but  I 
'•  know  that  the  stuH'  that  was  suppcwed  to  be  on  her  when  the 
"  list  was  taken  at  Sitka  was  not  in  her  when  I  got  her  back, 
"  and  which  I  was  .supposed  to  have  got  back  with  the  bonds. 
20  "  Q.  When  you  did  get  her  Iwek  did  you  take  an  inventory 
"  of  what  was  on  her  ?  A.  I  think  I  did  take  an  inventory  of 
•'  what  was  short. 

"  Q.  But  not  of  what  was  on  her  ?  A.  I  do  not  remember 
"  that  I  did.  I  know  I  had  an  entry  of  what  there  was  that  I 
"  should  have  got  and  did  not  get. 

"  Q.     How  did  you  take  an    inventory  of  what  was  short  if 
•you  did  not  have  an  inventory  of  what  was  on  her?" 
This  is  in  the  crosH-(>xamination. 
"  A.     I  had  the  appraiser.s'  inventory. 
;{0         "  Q.     The    Sitka     inventory     you     mean  ?     A.     I     had    a 
'■  niiMiioraduin  of  what  the  appraisers  had. 

"  ().  Where  is  the  memoran<lum  from  which  you  checked  ott' 
•'  to  see  what  was  missing  on  the  '  Sayward  f  A.  I  do  not 
'  know  where  it  is  just  now. 

"  Q.  How  could  you  take  an  inventory  of  what  was  not 
"  in  the  "  Sayward  "  when  you  had  an  inventory  of  what  was 
"on  her  ?  A.  I  had  a  memorandum  of  that  inventory  in  188S. 
"  When  I  bonded  there  I  got  a  niemoramium  from  tlie  man  that 
'took  the  inventory  and  made  the  appraisement,  and  when  I 
40  "came  to  look  over  tl:3  vessi'l  there  were  curtain  things  not 
"  there,  and  I  entereii  them. 

"  Q,.  What  wan  not  on  her  then  that  was  on  the  "  Sayward" 
"  when  slie  was  seized  ?  A.  It  is  hard  to  suy  from  memory, 
'  but  1  know  there  was  a  kedge,  I  think  a  gatf  topsail,  a  stay 
"  sail,  a  ship's  compass  ami  running;  gear. 

"  Q.  Wlien  did  you  gt-t  the  chronometer  liack  ?  A.  That 
'  was  given  back  before. 

"  Q.     Did  you  get  anything  else  bnck  before  she  was  bonded  ? 

"  A.     Tlio  chronometers  were  given  back,  and  ail  the  sextants, 

.")()    '  mill  (luadrants  ami    other  things.     1  think   they  were    given 

"  back  at    Sitka  Imt    I    cannot    be    positive    as    to    the    day 

"  exnctiy." 

It  is  quite  evident  that  there  were  a  nuuilier  of  artieli!s 
lost,  if  onlj'  a  few  unimportant  articles  were  missing  he 
would  not  liavc  pone  to  tlio  trouble  of  making  a  list.  It  can 
lie  well  understouil  from  the  manner  in  wliieli  these  vessels 
wi  .•e  dealt  with,  that  a  very  large  number  of  articles,  aggregating 
in  value  a  considerabh!  sum,  eonid  have  been  takiMi  away:  ami 
that  such  wns  the  case  is  plain  from  the  evidence  of  Captain 
(10  Warren.  We  submit  that,  lir.'iiig  re^jard.  to  the  necessary 
depreciation  of  the  vessel  untler  the  circmnstances,  ami  the 
loss  of  these  articles,  which  is  not  dispute<I,  we  have  made  a 
very  reasonable  charge  in  the  1?2,0()()  which  we  claim  a.s  depre- 
eintion  in  value  by  reason  of  the  seizure. 


i!  • 


fii'i 


546 


10 


20 


30 


40 


(Mr.  Bodwell's  Argument  on  Special  CascH.) 

At  pigo  ;iS7  of  the  Uniteil  States  Arj^iiinent,  thore  u  a 
statement  that  our  char<;c  in.  the  bill  of  particulars  of  loss  on 
account  of  not  lieinjj  l)ein<»  able  to  use  the  "Say ward"  in 
coistini»  <iurin<T  the  winter  is  not  justiKed.  We  make  a  clmr<;e 
of  ?!)00  for  timt  loss  to  the  owner  by  reason  of  detention  in 
1HS7  and  I.SSH  when,  if  in  owners  possession,  she  woultl  have 
been  coastin;^  in  November,  December  and  January  ; — tliat 
would    be  three  months  in  each  year. 

In  tlie  Unitcfl  States  Arjjument  at  page  387  we  find  this 
statement : — 

"  There  is  no  evidence  before  the  Commission  that  this  vessel 
"  hud  ever  been  entjagpd  in  the  coastin;»  trade  other  than  wa« 
"  usual  in  connection  with  a  sealinjr  trip  on  the  coast  in  the 
'■  sprinjjj  months  The  mnr<^iri)il  rel'iTcnces  which  appear  in 
"  connection  with  this  claim  do  w  t  boar  out  the  .statement  made 
"  in  the  Arj^ument  on  behalf  of  Cirent  Britain." 

As  to  the  item  for  roKstintr,  the  reference  i.sat  pajjes  OOO  ancl 
94(i.  In  the  United  .States  Argument  it  i»  allejjed  in  respect  to 
this  claim  that  the  evidence  doen  not  bear  out  the  statement 
made  on  behalf  of  Clreitt  I^ritain.  Such  tin  assertion  nni.st  simply 
be  a  play  upon  words,  btscausc  Captain  Warren  swears,  although 
he  does  not  specify  this  particular  vessel,  that  all  his  vessels 
were  so  used  : — 

■'Q.  A  (piestion  I  omitteil  to  ask  j'ou,  Mr.  Warren,  ami  that 
■' is,  what  u.se  you  maile  of  these  vessels  after  your  coast  seal - 
"  inj;  <     A.     Sdoie  of  them  I  used  to  do  freightinj;  with. 

A.      The    fall    and 


In    what    seasons   of    the    year  ? 
Did    vou    use   the   'Thornton'   for 


that    purpose  ?     A. 


"  winter 

"  Ves  r 

Then  at  line  30,  page  !)()(!  : — 

"  <^.  Wli.it  111  •(  li.iu  \i»i  ill  I  SS'J  engaged  in  that  business  of 
"  coasting  and  sealing  :'  \.  I  had  the  '  (Ji-aee,' the  'Dolphin.' 
"the  '  Arnia  Hi'ck,' the   '  S.-iyward' aiiii  tlie  '  Thorton.' 

"  i).  For  how  many  months  were  they  out  on  a  cruise  in 
•'  l>iH2  <     A.     For  .about  four  months  or  a  little  over  it. 

"  Q.  In  IS.S3  what  tleet  had  you  out  sealing  and  coasting  ^ 
"  X.  I  thing  1  had  only  three  sealing  and  coasting  vessels  that 
"  year. 

"(.^.  What  were  these:'  \.  The  "  .\nna  IJeek."  the 
""Thornton"  and  the  "  Say  WJU'd." 

"  (.),.  And  ill  I.SS4  !  A.  I  had  live  out  again  that  year,  tin' 
■  "(irace,"  the  "Dolphin,"  the  "  .\inia  Meek,"  the  "Thornton  ' 
and  the  "  S.-ivward. ' 


4^1 


Th.'it  evidrnee  should  be  read  in  conneetion  with  the  evidence 
.■,()  at  page  '.♦4t!.  It  appears  that  this  vessel  was  eoiisting  after  the 
scaling  was  over.  The  meaning  of  the  witness  is  clear,  and  if 
there  was  any  defect  in  his  ti.-stiniony,  if  my  learniid  friends  did 
not  imderstand  it,  it  was  theii-  place  to  clear  it  up  on  cross- 
examination.  As  there  has  been  no  cross-examination  yourHonors 
should  construe  the  evidence  according  to  the  intent  of  the 
witness  as  it  appears  from  the  language  he  used  when  all  of  it 
is  read  together. 


GO 


TiiK  "  Kate." 


I  shall  not  take  up  any  more  time  on  the  "  S.ay  ward  "  Tht; 
ground  on  which  the  claim  is  biused  is  necessarily  covered  by  the 
jK)ints  taken  in  other  cases.  I  now  refer  to  the  case  of  the  "Kate." 
Uur  statement  of  this  case  in  contained  in  the  jjrinted  argumcut 


547 

(Mr.  Bodwell's  Argument  on  Special  Cases.) 

of  Great  Britain  at  pages  152  and  153.  We  claim  tliiit  the 
"  Kate  "  was  ordered  out  of  the  Beliring  Sea  on  the  l.'Jth  of  August, 
188!);  tliat  she  immediately  changed  her  course  and  started  for 
the  Pass,  leaving  the  Sea  on  tht;  18th  of  the  same  month,  and 
was  interrupted  in  a  voyage  which  would  have  continued  to  the 
1st  October  if  the  United  States  cruiser  had  not  interfered  with 
10  the  movements  of  the  vessel. 

The  contention  of  the  United  States  is  that  the  "  Kate  "  did 
not  stop  scaling  hut  continued  in  the  Sea  for  the  whole  of  the 
■eaiing  period.  That  makes  it  necessfiry  for  me  to  refer  your 
Honors  to  the  evidence  as  to  what  actually  happened. 

Mr.  Warren  : — If  you  read  the  contention  of  the  United 
States  at  the  bottom  of  page  4()0,  it  does  not  put  it  that  way. 

Mr.  Bodwell  (reads):  "This  vessel  is  entitled  to  recover  from 

the  tJovernment  of  the  United  States  demurrage,  as  in  tlie  ca«o 

of  detention,  from    August    IMth  until  the  close  of  the    seaUng 

20  season  ;  that  is  for  a  period  variously   estimated  at  from  two  to 

seven  days.  " 

I  understanil  your  argument  to  be  that  the  "  Kate"  stayed  in 
the  Sea  un^il  the  18th,  which  is  practically  as  late  as  she  would 
have  .stayed  under  any  circumstances. 

Mr.  Warren  :--Yes. 

Mr.  Bodwell: — We  claim  until  the  1st  of  October.  The 
I'nited  States  said  she  would  have  stopped  .sealing  on  the  25tli 
August. 

The  Commissioner  on  the  part  of  the  United  States: — Is  not 
;tO  t\n\  difference  to  be  solved  by  a  determination  of  the  length  of 
the  ■sealing  season  ? 

Mr.  Bodwell : — In  one  sense  that  may  be  considered  to  be 
so:  but  there  are  other  contentions  in  this  argument.  The  con- 
tention on  page  458  is  that  your  Honors  should  draw  an  infer- 
ence thattlie  rea.scm  why  the  "  Kate"  left  on  the  IStli  v.-a:i  not  on 
acci)unt  of  the  warning,  but  on  account  of  bad  weather. 

Now  byreading  the  evidence  on  page  1;178,  from  line  15and  on 
pMge  I :{S(>,your  Honors  will  notice  the.se facts;  that  the  revenuecut- 

41)  t''''sightecl  hertlie  llltii  of  .\ugu8t  and  that  slie  was  then  warned. 
Sill'  imruediateiy  turned  her  course,  t')ok  another  direction  and 
ln'M(led  for  the  Pass.  At  the  tinieof  the  seizure  she  was  at  54.45 
latituile  and  lt).5..S()  longitude.  The  next  day  was  calm,  a  heavy 
si-a  from  tiie  westward  and  no  wind,  they  could  make  no  progress 
ntiil  tliey  .sealeil.  The  next  day,  on  the  15th,  the  wind  was 
soiitiierly  anil  it  wiis  plain  they  could  not  make  any  satisfactory 
|ir(igres8  amj  tliry  p'.it  tli'ir  hoits  out.  On  the  Kith  there  was  a 
hoiitlit'rly  wi;<d  and  thick  fog,  and  it  eonti)nie(i  foggy  the  whole 
iif  the  day.     At  line  32,  page  1379,  the  mate  says  that  they  were 

-,,  tlien  trying  to  get  tiirough  the  Pass  and  that  tie'ir  latitmle  and 
liin^^itiide  were  —  l(i.").3()  west  longitniltMind  5."). 04  latitude.  On- 
the  ITtliatnoon  the  wind  was  .south-west  the  sea  rough;  they  st-t 
ii'ifcd  main  sails  and  jihand  stood  on  the  starboard  taek  until  5  P. 
.M.  vvi'iiton  tlii^  port  taekand  close  reefedall  sails,  wind  continuin;.j 
the  siiiiif,  strong  heavy  sea,  rain  and  fog.  Tlie  pohition  was 
.")r).Oi,  jiititude  and  ioni^itude  105.20;  on  the  ISth  they  srt  all 
■sail,  and  at  4  P.  M.  they  sighted  Ugomak  Island  ami  at  8  P.  M. 
ehaiiLji'd  courst*  until  Kait  of  Ugoiiiak  Islainl  iiearl'g  East  North 
lvi-.t  Hve  miles,  and  that  wind  took  them  throui'h  fe  Pa.ss. 


0) 


The  evidence  r)f  Moss  on  page  1380,  line  00,  shows  the  same 
condition  of  wind  and  weather  and  he  makes  the  statement  that 
lie  y  could  not  have  got  along  any  faster  tliai\  they  ilid  in  the 
direction  of  the  Pass.  At  line  55,  on  page  1387,  he  gives  the 
folio winn  evidence  : — 


li'f.l 


4 


% 


H 


,     m 

M 

1' ,;» 

!■     1 

m 


iM 


•.'    Il 


w 


SA» 


?-t<*.,/i. 


Mr.  Bodwell'H  Argument  on  Special  Casen.) 

"  Q.  As  a  matter  of  fact,  what  caused  you  to  leave  when 
"  you  di<J  leave  ?  A.  On  account  of  being  afraid  of  seizure  if 
"  seen  again. 

"  Q.     Any  oilier  reason  ?    A.    No,  not  that  I  know  of. 

"  Q.  If  it  had  not  been  for  the  warninc  would  vuu  not  have 
"  have  eone  or  would  you  have  gone  1  A.  We  would  have  stayed 
10  "  there.    We  had  a  lot  of  provisions  and  water  and  everything. 

"  Q.  Was  there  anything  in  the  state  of  the  weather  to 
"  drive  you  out  of  there  ?  A.  No,  not  then.  It  woa  all  right. 
"  We  might  gi't  a  day's  blow  but  we  did  not  mind  it.  I  expected 
"  lots  of  Hne  weather  after  that  day.  " 

Now  to  show  that  the  weather  was  not  such  as  to  indicate 
the  end  sf  the  sealing,  we  have  the  undisputed  fnct  that  from 
the  llith  to  the  18th  there  were  at  least  two  days  of  calm 
weather  and  three  days  on  which  the  boats  were  out  sealing; 
20  yet,  there  is  an  attempt  in  the  United  States  argument  to  con- 
tend that  the  vessel  went  out  on  the  18th  by  reason  of  the 
stormy  condition  of  the  weather. 

The  Commi.ssioner  on  the  part  of  the  United  States : — The 
United  States  case  admits  that  she  was  entitled  to  recover  which 
necessarily  means  that  she  went  out  on  account  of  the  warning' 

Mr.  Bodwell : — Yes,  and  they  also  take  an  inconsistent 
position  by  referring  to  the  condition  of  the  weather,  thus : 

"  The  sealing   .sen.son  in  Behring  Sea  was  practically  closed 
and  the  damage  sustained  >)y  this  vessel  very  slight." 
30         Mr.  Warren  : — That   is  in   regard   to  the   duration  of    the 
season. 

Mr.  Bodwell : — I  do  not  see  the  point  of  the  statement  unless 

j'our  Honors  aic  asked   to  draw  the   inference   that  the  vessel 

•   left  on  account  of  stormy  weather.     Why,  for  instance,  should 

the  evidence  of    Ileppen    at    page  459    be  (juoted  unless  it  is 

inteniled  to  found  an  argument  upon  it. 

The  Commissioner  on  the  part  of  Her  Majesty : — Would 
not  that  be  left  to  the  reply  ? 

Mr.  Bodwell  :— Well,  1  will  leave  it. 


40 


The  Commissioner  on  the  part  of  the  United  States: — The 
United  States  states  that  her  total  catch  in  Behring  Sea  was 
740  seals,  at  page  458  at  the  top.     Do  you  agree  to  that? 

Mr.  Bodwell : — We  claim  for  the  skins  taken  from  the  time 
of  t.ie  warning  until  (October.  On  refering  to  the  tables  wo 
(ind  that  it  is  700. 


On    page  45!)  of  the  United  States  there  is  a  quotation  of 
the  eviiience  of    Moss,  which  1   wish  to  explain  : — 
50         "  Q.       What    boat    were     you    on     in     I88t>?       A.      The 
" '  Favorite.' 

"  Q.  What  time  did  )-ou  leave  the  Sea  ?  A.  About  the 
"  l!)th  of  August  I  think. 

"  Q.  What  boat  were  you  on  in  1887  ?  A.  I  was  on  the 
"  '  Kate.' 

"  Q.     What     time    diil    you    leave    the    Behring  Sea  ?     A. 
'•  Twentieth   of  August,  or  a  little   later  ;  I  don't  remember  as 
"  to  tt  I  lay  or  two. 
in  ^"     What  boat  were  you  on  in  1888  ?     A.    The  '  Favorite.' 

"(^.  What  day  in  August  ilid  you  leave  the  sea  that  year  ? 
"A.  1  do  not  remember  what  day  it  was;  it  was  late  in 
"  August." 

We  know  that   she  left  because  of  the   warning ;  she  left 


TW 


ff 


649 

(Mr.  BcxIwellH  Aifjunu'iit  on  Special  Ciihcs.) 

lipcansc  nIio  saw  otlier  vouseU  being  seized  ;  I  refer  to  page  U41 
of  tlie  ReeoVd,  linen  1   to  10; 

The  ConiniisNioneron  the  part  of  the  IJiiiteil  fstateH  ; — i  Jo  you 
want  to  jfo  over  tlie  evidence  again  t 

Mr.   Hodwell  : — I    merely   wIhIi   to  refer   to  V.a:  case  of  tlio 

"  Ka»"  "  and  explain  tlie  evidence  <|noted    here.     With  reference 

1(1   to  the  Heanon  of  IHHH,   we  know  from   the   evidence  of  (iaudin 

that  there  wa.san  impression  coming  from  Custom  HoUHe  otticurn 

that  tliere  waH  to  he  Neizures  after  tlu!  2()th  of    Angu.it. 


Thk  "  Akikl." 

The  faetH  with  reference  to  tlie  "Ariel,',  are  set  nut 
in  otn*  argument  at  page  140,  commencing  with  line  MO 
and   reading   <lown    the  whole  page    l.')().      It  appears  that    the 

.)()  "  Arii'l"  at  tin-  time  of  the  .Meizurc  was  in  a  pliicc  where  Heals 
were  more  than  ordinarily  plentiful.  She  was  warnad,  but 
apparently  did  not  intend  to  obey  tlw  warnini^  ultlwingli  her 
eoin-se  afterwards  was  always  southerly,  but  on  the  IHth  of 
.•\ugustshe  spoke  a  niMuber  of  scjilers  atid  from  tin-  reports  thus 
rihlaiiied  the  captain  deeidi'il  to  leave  the  Sea  at  once.  The  entry 
in  his  log  being   to  this   etleet : — 

"  It  is  (piite  clear  that  many  seizures  will  be  made  this 
.sea.son- perhafiH   all   the  vessels  that  remained  in  the  Sea." 

Wi-  have  evidence  that  this  schooner  was  fitted  out  to  remain 

;;()  until  Octobt'r  in  the  Hehring  Sea.  A  definite  agreement  was 
made  before  leaving  the  port.  We  therefoi-e  claim  for  the  total 
stojjpageof  her  voyage  from  the  IHth  of  August  until  the  end  of 
( >clol)e|- ;  and  we  also  claim  that  during  the  period  from  the  time 
she  was  warned  until  she  left  the  Sea,  her  aealing  operations  wcM'e 
interfered  with.  Of  coiw.se,  she  was  not  oft  the  sealing  gniundn. 
SheeontinMiie<l  taking  seals,  'i'bat  fact  speaks  foritself.  Mut  when 
she  was  interrupted  she  was  in  a  position  where  she  came  upon 
an  unusnally  large  ipiantity  of  seals.  She  left  the  good  sealing 
gro\nids  in  which  she  then  was. 

^((  ( )n   the    day    sliewaa  .stM/.ed,  notwithstaiuling    the    warning, 

tlie  boats  went  out  and  took  a  very  large  num))er of  sealu,  and 
witnesses  say  that  there  was  a  m<ist  remarkable  number  in 
sight. 

The  claim,  of  course,  is  for  the  interruption  of  the  voyage, 
and  the  stoppage  of  the  sealing  for  the  long  pe|-iod  that  would 
have  eiapse(l  iietween  the  IHth  of  A\lgust  and  the  1st  October. 
We  have  only  charged   till  the  1st  OctobiT  in  our  claim. 

On  })age  44S  the  (juotation  from  the  evidence  of  Captai 
.■,()  I'.uckman  is  nia<le  where  hi;  is  asked  if  he  did  not  lower  his  boa. 
everyday.  At  page  711  of  the  Argunu'ut  for(!reat  liritain  we 
set  out  the  e.xact  number  of  sealnig  days  that  we  had  and  a 
concise  statement  of  the  o])ei'ations  of  the  ves.sel  during  that 
period. 

The  (.Commissioner  on  the  part  of  the  I'liiteil  States: — I  will 
be  glad  if  3'ou  will  ex)>lain  at  the  beginning  of  the    next  sitting, 
why  it  is  that  in  s(ane  cases  you  make  a  chai'ge  for  illegal  board- 
ing ami  in  other  (Vi.ses  the  charge  is  not  made. 
Mr.  Hodwcill : — I  will  do  so. 


n 
tat 


(III 


At  half-past  two  o'clock  the  ConnniHsioners  resumed  their 
scats. 

Mr.  Bodwcll,  continuing  : — At  the  monu'iit  of  adjournment, 
your    Honor  asked   me  to  explain    why  we  made  a  charge  of 


ft  141 


'tlfn 


-'■f\\ 


I  ' 


I       1 

i 


i(i  '  4i  1 


li'r 


■nil'' 


PT 


iP 


550 


10 


30 


40 


50 


(iO 


(Mr.  B<hIwoI1'h  Argunit'iit  on  Specinl  Cases.) 

$2,000  for  tlie  ilL^...  boanliii^  Hndsean-)  in  the  case  of  thi' 
"  Ariiil,"  and  fliil  not  niiiKL'  it  in  the  c»wo  of  the  "Kato. "  The 
reii-Hon  is  that  the  "  Kate  "  was  not  Imarded ;  the  cutter  came  up 
beltinrl  her  in  the  iieavy  south-east  gale,  she  was  spoken  and 
ordt^red  out. 

Coniniissioner  on  the  part  of  tlie  United  States  ; — I  supposed 
that  was  it,  but  I  wante(i  to  l>e  sure  I  understood  it. 


Mr.  Bodwell : — Taltinj;  up  tlie  argument  as  to  the  sehwiner 
"  Ariel  "  at  the  point  I  wa.>i  about  to  aildie.ss  myself  to  when  tlio 
a<Ij()urnment  toek  place,  at  page  4.")2  of  the  United  States  Argu- 
ment tlittre  is  a  xtateinent  that  the  testimony  of  C/aptain 
Huckman  is  entitled  to  no  weight: — 

"The  testimony  of  C^iptain  Huckman  is  (;ntitled  to  im 
"weight:  oTi  the  Record  he  has  convictud  himself  of  tin;  wilful 
"intention  to  deceive  as  to  the  voyage  of  the  •'  Ariel,"  and  his 
20  "  claim  should  be  considered  as  an  attempt  to  nnilct  damages 
•'  from  the  (lovernment  of  the  United  States  for  the  interruption 
'  of  her  voyage  from  the  .SOth  of  July,  when  in  fact  she  con- 
"  tinned  her  huntin<;  operations  until  the  ISth  day  of  August. 
"  and  be  treated  with  accordingly.  " 

An  explanation  should  be  made  on  behalf  of  Captain  Buck- 
man.  He  was  first  calleil  to  prove  the  "Ariel"  catch  in  1HH9.  Your 
Honors  will  remember  that  we  were  then  proving  the  catches  of 
dilferent  vessels  in  order  to  show  what  amount  of  seals  could 
bi!  taken  in  Belirin:^  St-a  that  j'car.  Tlu'rc  was  no  intention 
of  e.Kaniining  Captain  Bueknam  in  relation  to  the  "ArieP's" 
claim  for  the  M/iison  of  ISSK.  1  bad  taken  instructions  for 
C'aptain  Bucknam's  evidence,  and  was  not  in  cotu't  that  morning, 
and  did  not  know  he  was  to  be  called.  'J'lic  rrsnlt  was  that 
there  was  II  matter  known  only  to  me:  and  Mr.  Peters  was  not 
aware  of  it. 

The  log  of  the  vessel  and  other  books  were  lost,  but  there 
was  a  private  diary  of  ('aptain  Bucknam's,  which  hud 
been  in  my  possession  some  months  That  diary  was  not 
in  court  tiu.t  morning  because  I  was  not  there.  W'iien  he  was 
j^iving  bis  cviilciici;  lie  was  askeii  a  (lUestion  as  to  the  time  hi! 
left  tlie  sea,  and  in  a  moment  of  forgetfiilness  he  gave  instead 
of  tliat,  tlie  d  ite  on  wliieli  In-  was  warned,  which  was  a  difi'erent 
dat''  aitogetlier  ilie  :!Otli  cd'  July,  whereas,  as  a  matter  of  fact, 
lit!  dill   not  leave  the  sea  until  tlii'    Ihth  of  August. 

Tlie  witness  is  not  to  be  iiiameil  for  that  at  all.  He  hail 
,,  ;,,t,,t.f;..n  ,,f  deceiving  any  one,  and  in  a  very  few  minutes, 
when  his  recollection  was  refreshed,  he  admitted  with  tlu'  utmost 
fraiiUiiess,  that  the  statement  be  had  previously  made iiaining 
another  date  in  an  allldavit,  must  have  been  correct  because  his 
meiiioi'V  was  fresher  when  he  made  the  afiidavit  than  it  was 
when  he  gavi;  his  testimony. 

In  the  afternoon   I   brought   the  book  over  and  it  was  pro 
diieed.  and  what  happened    is  stuteil  in  the    |{ecord.      The  diary 
was  then  read,  and    I  submit  thei'e  was  no  attempt  on  thepart  of 
the  witness  or  counsel  to  mislead  the  Commissioners. 

The  ("ommissioners  were  tolil,  when  Bueknam  was  first 
called,  that  he  was  not  to  be  examined  on  the  voyage  of  the 
"Ariid  "  exci'pt  to  ])rove  the  catch  for  ISSt),  ant]  trat  he  would 
be  recalled  to  testify  as  to  the  voyage. 

If  your  Honors  will  reail  the  whole  of  his  evidence  on  the 
jMiint  you  will  see  that  the  witness  was  sjieaking  frankly, 
but  there  was  a  failure  of  recollection  as  to  a 
particular  date,  which    was   not    remarkable    considering    the 


551 

(Mr.  BoiIwuHh  Ar^iuuent  on  Special  CiweB.) 

circum.stiuici's  under    wliidi    lie  gnvo   his  i.vidence,  having   ..o 
opportunity  to  refresli  Imh  memory. 

I  will  ref(T  your  HonorH  to  page  704,  lines  20  to  (iO  ;  page 
705,  lineH  .'10  to  40 ;  page  70«5,  lineH  ;10  to  50 ;  page  708, 
line  20;  page  U(iH,  lines  !(>  to  00:  I  think  that  iH  tlio 
whole  of  the  evidence  relating  to  this  matter.  1  Nhould 
10  he  Horry  indeed  to  have  Captain  Hucknamn  evidence  dis- 
t-redited  on  a  matter  of  this  kind,  hecauHe  the  witness  woh  not 
to  hiame.  If  1  had  heen  in  court,  it  would  not  have  oi-curred, 
iieeaUHe  I  knew  all  the  facts,  and  his  memory  could  have  heen 
refreshed,  and  he  would  iiHvo  given  the  correct  date  when  a.sked 
the  (pieFtion. 

With  reference  to  the  outfit  of  the  "Ari'd,"  and  the  time  it  was 

iiitcndeil  she  should  remain  in  the  Sea,  1  will  give  your  Honors  tiie 

pages  of  the  Ri'cord    where  the  evidence  occuiu     1   read  some 

20  portioin  of  it  the  other  day,  hut  it  is  convenient  to   have  the 

pages  noted  here  again  :— 

Page  I4(i7,  line  50;  1487,  lines  .50-70  :  1484,  line  (iO;  1485, 
line  .')():  1488,  line  10. 

This  evidence  will  show  that  there  was  an  agreement  he- 
tween  the  captain  anil  the  crew  hefore  they  left  Victoria  to 
extend  the  voyage  to  the  month  of  Octoher. 


1                        1                                   ^' 

ii 

At  page  455  of  the  United  .States  Argument  there  is  a  com- 
ment on  the  witness  .Smith,  .iiid  it  is  sai<l  that  if  he  wished  to  ex- 
HO  tfiid  his  voyage,  as  h<>.said  he  did,  in  the  case  of  the  "  Ariel,"  he 
had  jin  opportunity  of  doing  .>o  when  lie  was  on  the  "  Katherine" 
in  18!K),  but  he  left  that  season  on  the  .Sl.st  of  August.  I  have 
already  r 'ad  your  Honors  the  evi<lence,  and  commented  upon  the 
fact  thai  the  si-ason  of  IHilO  was  an  unusually  stormy' season.  1 
suhntit  that  no  inference  is  to  1)1'  drawn  from  the  fact  that  any 
schooner  left  the  .Sea  that  year  at  an  early  date. 

Commissioner   on    part  of  th<!  United  States: — How  many 
skins  had  the  "  Ariel"  taken  hefore  she  was  warnivi :' 
•iO         Mr.  Hodwell : — She  took  485  af'er  the  warning,  and  shf  had 
altogether  844,  which  leaves  251)  thai  she  must  have  taken  hefore 
the  wai-ning. 


TiiK  "  Ai).\." 

!  have  only  a  word  or  two  to  say  to  your  Honors  with  refer- 
fiicc  to  the  claim  of  the  schooner  "  Ada." 

In  the    United    States  .\rgunient    it  is   siid    that    Captain 
Haynor.  the  master  of  the  "  iVlger,"  testified  that  he  had  finished 
'lO  si'alin;,' t'oi' the  sc'HsiinJ  aii'l   had    att  ■mpti'd   to  iea\ .;  the  Sea  the 


t;o 


of    til 


.-Vila,"    l)ecau^^e    the  sealing 


Hon.ir.s'  attention  to  the 
"  A' la,"  pai,^'     1214  of  the 

that  he  intenile<l  to  re- 
with.     Then  the  evidence 


ninjit    hi'foi'e  the  seizure 
•sfrtMin  was  over. 

In  that  comicetion  1  ilr-iw  your 
ovi  leiice  of  C'aptain  (iuiihii  of  t.lie 
Uncord,  line  :{(),  where  he  states 
main  if  In;  li^'  I  not  lu'en  iiiierri-n 
i|Uiitec|  in  I'Ur  AritniiH'iit  at  pug"-  125,  which  shows  that  at  the 
vry  nioiiii'nt  of  tin'  si-izurr  thi-  sealiri:;  hoats  wei'e  all  out,  and 
altiiough  it  was  only  8.:{()  in  the  morning  they    had  ta'ten  .'KS 

M'.-ll.S. 

The  evidence  of  Captain  Haynor  is  at  pages  1247  and  1248. 
Ill  rca.ling  it  I  cill  vour  H'Hinrs'  attention  to  the  fact  that  he 
was  taken  in  sight  of  the  "Ada,"  ahout  three  miles  away:  and 
another  peculiar  statement  given  in  his  evidence  is  worthy  of 


If 

II* 


!!'* 


w 


56S 

(Mr.  HotlwclI'M  Argiiniciit  on  S|Mriiil  ('hhi'm.) 

notiei>;  Id'hrvh  Ih>  IiihIiciI  up  liin  IxMitNaml  ti'icil  to^jct  out  of  tlic 
Ki-ii  till'  iiliilit  liftvii:  Our  HUjjp'stion  \h  tluit  lliiyuor  Iia<I  iiu 
intiiniilion  Ironi  nomk!  Hoiurcor  otln-r  tliat  tliiT(«  was  ilati^cr  of 
Mcizur",  MM'!  SK  tl"'rc('(ir<'  laslicd  ui>  liislK)atH  ami  tricil  to  i;et  out 
ol'tlic  Mu  lor  I'lar  of  tin-  Vfrysfizinv  which  iliil  take  phicf  thu 
uext  Htiy, 

10  Wi' subiuil  tliat  it  uaiinot   Itc  .«tatLMi   tliat   thi>   staliii};  kcuhdu 

was  over,  in  vin\v  of  tlic  fact  that  tiic  "Alan"  Imats  were? 
actually  ii,ii'i'utiii}{  at  tht>  tiiiii.',  and  Captain  (iuudiii  mivs  that 
it  \va^  a  liiii'  clay,  Captain  llnynnr's  cvidciict'  is  nut  incunsiHti'iit 
witli  our  Btatchii-nt  that  the  wcatlicr  was  i^ood  fur  si'alint,'  on 
that  <ia3',  and  it  \h  I'casonaMi-  to  supposr  that  it  would  havit 
continut'd  so.  At  any  rati',  il  kccuii  to  nu-  tliat  it  is  an  iiiiport- 
unt  adiiiissioi!  fmni  CH)ituin  llaynor  that  >'<■  was  atlcniptin^  to 
yet  out  of  tlu'  Sea  the  ni;,dit  lifforr.  If  there  hud  iieen  no 
unusual  event    to  hasten   Ids  de]>arture  he   would   have   waited 

'20   until  t!i('  ne\tday  and  had  the  sunMhine  for  his  voyaj^e 

Tlu'ic  ii  .;;■.  th  :•  .;t(itenien(  1  wish  to  refer  to  in  the  matter 
of  the  "  Ada,"  atid  that  is  at  pnj,'es  4<)il  and  4l)7  of  the  Cnited 
States  Ar;,'Utnent,  where  they  eonciuile  fi-oni  the  fait  tliat  .Miis> 
wan  the  a^ent  of  the  "Ada"  that  her  wkins  would  have  h^'en 
.sold  at  \'ictoria,  and  therefore  youi"  Honors  siiould  not  .illow 
the  London  priee  for  the  .\da'.s  skins.  I  callecj  your  attention 
to  tin-  I'Nidence  the  other  day,  wliieh  showed  that  .Munis 
Moss  was  the  «!.,'ent   of   l^itdn's  \;   (  Ni.,  who  wei'i'  dealiiii,' in  tlie 

']0  London  riiurket.  It  is  admitted  that  Mos«(  was  the  a^ent  of 
(iray,  ami  .^o  dray  would  have  heen  entitled  to  wlmtev<>r  .Moss 
reeeived.  and  it  is  clear  that  Moss  would  have  sold  the  skins  for 
the  liondon  price. 

.Mr.  LaiisiiiL;: — Where  was  Litdicw  iV  Co  :* 
.Mr.  Hodwell  : — in  San  Franeisoo.  It  caniint  Ic  denied  tlmt 
.Moss  Would  ^'et  the  hiu'hest  priee  he  eould  in  order  to  make 
his  eoinmi'ision.  so  I  .snlnnit  that  there  is  every  reason  t.o  say  tliiit 
Moss  would  have  ha<l  the  London  priee  foi-  the  "  .Ada  -■  '  skins, 
ami  if   he  did  <,'et  it.  as  a  iiiMtt''r  of   law.  (iray  would  lie  eiititiiil 

-!•()   to  th.'  full   henetit  of.it. 

It  is  su!,'i,'ested  in  the  .Ar^juiiient  of  the  T'tule<l  .States,  tluit 
the  faet"!  disrlo-ed  after  the  seizure  of  the  ".Viia  '  show  that  she  Wi,s 
not  provisioiiecl  for  the  voya^'e.  which  we  say  sIk;  would  have 
niai.  •.  In  tin'  tii.st  p'nce,  in  our  .Vn^Mimeut  we  ^ive  a  reference 
to  the  CiptainH  eviiienc"-  where  he  swears  that  she  ha<l  jno- 
visioiis  for  the  leii^'th  of  time  we  etaiiii  for  her  voyiit;c. 

.\t  paj^'e  12+ of  our  .\rj;iiiiient.  we  refer  to  the  paj.'es  of  the 
Ilecoril,  where  this  (.'vicleiice  is  to  he  found.       At  pai^e  I;2I4,  line 

10.  there  is  a  positive  stat>  niellt  to  that  I'M'ect.  At  puj,'e  7!l()  of  tlie 
iveeord,  line  ;{().  it  is  shown  ttat  after  she  was  (Seized  and  taken 
to  Sitka,  the  erew  on  hoard  the  "Ada"  liveil  on  the  piovisions 
in  the  "Ada"  until  the  i.'itli  of  Septemlier,  and  tliib,  noluil  li  • 
stnmlin^,  the  fact  that  there  appears  to  have  been 
a  lari,'e  tjuantity  of  provisions  taken  awaj-  from  tie- 
vessel    hy  the  L'niteil  States  otiicers. 

In  the  Ar;.niment  of  the  L^nitod  States,  pa;;e  404,  it  is  stated 
that  certain  provisions  were  taken,  and  your  Honors  areaskeclto 
infer  that  the  list  i^iven  is  a  complete  statenieiit.  Hut  ihi' 
witneHs  was  only  sjieakinj;;  from  recollection,  and  it  is  not  to  he 
supposed  that  he  reineniherH  everythiiif;.  Having'  rej^ard  to  the 
Caittain's  statement,  it  is  certain  that  a  jjood  deal  more 
was  taken.  We  know  that,  notwithstandinj;  what  was  taken, 
they  lived  on  the  ship  until  the  2.jth  of  Soptcnihcr,  and  we  say 


.;(» 


(<() 


10 


•JO 


•M) 


4(t 


.")(i 


(Mr.   KotlweH'N  Ar^uiiiuiit  uii  Special  L'nm'H.) 

tliat  xhf    wiiN   proviNioiii-)]   to    stay  in  tliu    •Sen   iiutil  thu  I5tli 
ScptfinlMT. 

ThK   "  Jl'ANITA." 

I  wisli  iiuw  to  Hiiy  li  wo'il  with  rcfcffMCf  Id  tin-  iliiilii  ol'  till' 
"■liiiiiiitH."  'I'lmt  vi'NMcl  JH  i»'t'irr«'(l  U>  on  |)iijr>'  \'.\'A  of  tin-  Uritish 
Ar^jnnii'iit,  ainl  it  in  n  very  <'li'iir  eiiHi-.  It  Ih  ii  t-asc  of  wiirnin);, 
lis  voiM"  lloMorN  know.  She  wiih  provisionnl  for  n  xoyaj^t-, 
winc'i  wonid  luNt  until  tlu-  lOth  of  S*-pt<ni)MT.  At  pap' 
l.'UI,  liiK-M  l-'2(),  wi' have  ilic  ovidcncf  of  Captain  Clark,  sliow- 
in;;  that  Hrran^t'int'ntM  were  nia<lf  hcforc  lie  left  Victoria  to 
stay  in  tlifSt-a  until  tlif  lOtli  of  ScptfiulM'r.  'I'liiH  \h  coi'rolM)r- 
atril  liy  Mr.  Mall  on  pa;;f  |:{4!I.  lincN  25  40,  ami  in  croHH-cxaniin- 
ation,  pa<;f  IM.'il,  lint'H  ifi  40. 

Mr.  Warrt-n  :  -In  the  arfjunicntH  you  say  tlic  1  otli  >(  Si'p- 
tfinlH-r.  un<l  now  you  claim  until  tlic  lOtli  of  Scptcrnl)cr. 

Mr.  Hoilwcll  :  -Yes  ;  you  will  sec  in  tin-  cviilfnct'  of  .Mr.  Mall 
tliat  the  lOtli  of  Si-ptctulx-r  is  tin- day  niciitiontd  l)y  liini.  Tliat 
is  wliat  tlii'V  intcndfil  if  they  liad  not  liticn  intcrlVrcd  witli,  hut 
tin-  evidence  .shows  that  they  could  have  remained  until  the  15th, 
and  we  have  therefore  made  the  claim  up  to  the  middle  of  the 
month,  which,  inidei-  the  circinnstanees.  I  submit,  is  fair. 

At  pa<;e  41  (i  of  tht!  I'nited  States  Ar<;ument,  comment  is 
made  on  this  evidence.     They  say  the  testimony  is  :-  - 

"That  of 'two  owners,  it  is  lia.sed  \ipon  a  va|;ue  rumor  that 
"one  ves.sel  had  taken  seals  in  Sejytemher  in  the  year  IHKH,  and 
"  it  WHS  concluded  that  it  mi;;ht  be  profitable  to  atten.pt  to  pro- 
••  Ion;;  the  voya^^e  of  the  'iluHnitn'  until  the  lOtli  of  Seplenilx-r." 

1  do  not  know  whether  my  friencLs  mean  to  ar;;ue  that  wo 
could  not  extend  it  from  the  lOth  to  tin'  15th,  but  if  thesuii^^es- 
tion  is  that  we  have  not  i)rove(|  that  we  would  have  Htayecl  until 
the  lot'  .)f  Septembi-r,  I  s\il>mit  that  the  evidence  is  clear  upon 
that.  What  they  call  a  "  va^ue  rumor"  is  an  actual  fact,  because 
Mr.  Mall  swears  that  what  he  based  his  decisioa  on  was  Captain 
.lacobson's  experience  the  year  before,  who  ilid  stay,  and  who 
told  Mall  that  there  was  ;;ood  sealing;  there  in  Se|>teniber. 

In  speakin;;  of  Capl  'i  .lacob.sons  evidence  immediately 
after,  in  that  connection,  tne  Cnited  States  Ar^jument  refers  to 
what  he  .said  at  pa^^e  1447.  I  connnented  on  that  evidence 
the  other  flay,  and  »r;;ue<l  to  your  Honors  that  while  it  is 
tru<-  he  left  on  the  3rd  of  Sepeinber,  he  did  so  to  ;;et  water  at 
rniniak  Pass,  and  he  took  some  ei;;lity  seals  in  the  Pass,  show- 
in;;  that  seals  were  plentiful  all  the  way  from  the.'h'd  of  Septem- 
ber to  the  7th.  It  Meems  to  nie  that  if  he  could  ;;et  ei;;lity  seals 
liet  Ween  till'  .'Ird  and  the  7th  of  Se])t('mber,  the  10th  is  a  ren,son- 
aiiie  limit  to  wiiieli  this  voya;;e  nii;;lit  have  be»'n  exten<led. 

.\t  pa;;i'  417  of  the  Ar^junient  for  the  I'nited  States  thei'e  is 
;i  statement  that  Sl  1  jier  skin  is  an  extortionate  value.  I  do 
not  .see  how  my  friends  can  use  that  word,  because  it  is  |)roved 
that  Munsie  ;,'ot  that  price.  I  am  wiliin;.;  to  admit  that  it  is 
the  hi;,'licst  price  tlint  any  se.il  .skins  weri'  sold  for  that  year, 
hut  it  is  an  actual  price,  and  cannot  be  called  cxtorionate. 


lh::li 


II    |i 


II    '.< 


They  also  say  that  the  claim  of  2102  .^kins,  which  wc'h' 
have  been  tnken  i!urin;;tlie  balance  of  the  season,  isoutrng(  >  , 
tiO  or  far  beyoiid  nnything  we  had  a  right  to  expect.  1  do  not 
think  so  C'atclie.s  fairly  in  line  with  that  were  actu- 
al Ij-  made,  and  are  reported  in  the  evidence  for  not  nearly 
.so  long  a  period  of  sealing.  Take  the  "  Mary  Ellen's 
catch   of  2.S9o.  from  June  2Hth  to  AugiJ.st   24th  ;  the  "  Favor- 


^1^ 


ft.u 


■    i  '• 


10 


20 


'M 


(Mr.   HhIwoH'm  Ar);iiinoiit  on  Spcfinl  C'hmch.) 

iti^'n  "  c»tcli  of  2'-\H,  fr.iiii  .Fiilv  7tl»  to  \\n>\: ..  '>lh.  AHanoUu-. 
illuHtratioii  t>ik.'  M.tk<-r'i  cittuii  in  IHNO  of  21.s:)  from  tliu  ( th  uf 
July  to  tli(>  2l'4t  of  Aujju^tt. 

Siiruly  it  is  not  iinn-iisoniiltlA  tosuy  tlint  tliit  "  •lunnita  "  with 
lit<r  •M|iii|)ini'nt,  if  slic  liaii  not  tu't-n  intiTfertuI  with,  woiiM  havi> 
niiKJi'  n  ciitrh  of  tliitt  s\/a\  Thcri'  iH  nothing  in  t)iu  H^nrcs 
thunim.'ivt'M  to  Mhock  your  conHt-ii'iion. 

A;;iiin  my  friioidH  ^jrovv  rijjhlt'onHly  in(Ii;;n(uit  over  tlic 
Huiount  of  niom-y  that  thin  vchni>I  mi^ht  hiivi-  niuiJc  if  hUc 
iinntfil  th)-  wholi-  year. 

At  piii^f  417  of  th(Mr  arj^uMient  thfy  siiy  : — 

"  Thi'  vcssi'i  wilt  w'lrtli  tihout  1?20()(),  nnil  that  mIic  could  t-Hrn 
"  over  tivc  anil  oiic-lmif  tinn-s  her  value  within  twenty  or  twoi.ty- 
"  live  (layt.  ami  at  the  rate  of  over  '?2.'it),()()0  a  year,  is  so  itnpoiisioie 
"  that  Ju^tiee  will  hot  permit  nf  the  use  of  an}' nucIi  basis  tor 
"  estimitioi;  thi'  future  earninixs  of  this  vessel." 

We  ni-ver  conteniled  that  sIm-  cnuhl  liunt  a  whole  yi>ar,  hut 
only  aliout  three  months  in  the  y(!ar,  and  W(>  say  that  other 
vessels  made  Hs  lnr;;e  catches  as  wi.'  claim  for  her,  and  hroH^ht 
the  skins  hiMMi'  with  them,  and  there  ix  no  reason  to  .say 
that  the  "  Juanita,"  with  her  ei|uipuient,  would  not  liave  made 
nn  eipially  'ar»(e  catch.  Suppose  it  is  five  times  the  value  of 
the  vessi'i,  it  only  shows  the  immeiisi^  profits  that  there  were  in 
Healin'.r  ventures.  For  instance.  I  call  attuntinf  '  >  thn  sum  that 
Munsie  made  out  of  the  "Viva  "  tliat  same   y  The  "  Path- 

finder "  also  maile  a  very  larj;e  profit. 


The  "Tkii'mi'ii,"  (1880.) 

I  n.iw  call  your  Honors  attention  to  the  claim  of  the  "  Little 
Trium|ili,"  wliich  is  th"  last  claim  altiiut  which  I  shall  makt;  any 
remarks. 

Our  arvjument  on  thiH  case  is  contained  in  pages  130  to 
^'^i  of  the  Hi-itish  Argument.  In  opening  upon  thi'^  claim, 
Couns  d  for  the  United  St'ites  in  their  printed  argument  say, 
40  thiit  iiur  |)leiidiugs  makx  out  that  tiic  "  Little  Triumph  "  ahun- 
doiie  I  her  int  'iided  voyage  into  the  H«diring  Sea,  whereas  the 
uvideiiee  shows  that  she  went  into  the  Behring  Sea.  If  there  is 
any  iliseri'|)>oiey  hetween  the  statement  of  claim  and  the  eri- 
dence,  i)f  e()urs>-  tliu  statement  of  claim  eould  he  amended.  Our 
case  is  that,  heiiig  in  the  ,"•'  a  she  was  compelled  to  leave  before 
her  voyage  was  eoiieliided.  The  ordinary  rule  of  law  is  to 
Hiiieiid  tlie  pleadings  in  Hceonlaiice  with  the  evidence,  and  that 
rule  w  Mild  apply,  I  presume,  to  the  pDJceilure  under  this  coui- 
misfiioii. 

f)  Till'    real    claim    with    reference   to  the    "  Little    Trir.mph  ' 

is,  that  having  been  warned  before  she  entered  the  .sea,  she  took 
a  ditr'reiit  poiitiiin  fi'om  that  which  sht;  intended  to 
occupy,  and  that  her  voyage  was  entieil  at  a  period  anterior  to 
that  which  was  inteniled.  We  contend  that  this  would  not  have 
liappeneil  if  the  Indians,  having  heard  the  warnings  and  under- 
standing the  Kri','lisli  language  in  the  first  place,  had  not  l)ecome 
more  and  mmv  ffij;liteni'd  us  the  si'ason  advance<l,  and  finally 
refused  to  woi'k  aiid  iii-isteil  upon  the  captain  going  home  to 
save  the  catch  of  sealskins  which  thev  had  made. 


(iO 


At  page  l+Oi,  line  d  of  the  ReconI,  the  witness  Smith,  who 
was  callecl  to  prove  this  case,  shows  that  the  "Triumph" 
woulil  have  gone  through  lliumak  Pass  to  about  30  or  40  miles 
from  the  Pribilof  IsUnds.     That  was  the  original  intention. 


I ""r'^ 


8»5 
(Mr.   UdiIwiII'h  Ar^iiinitnt  on  Special  ('ii>tei.) 

At  pa>(is  i;U)  nn'l  \'M  nf  tin*  HiitiMli  Ar;,'uiiifiit,  wi-  Iiuvd 
i|ii<)t('i|  tli)*L'vi(l(>ric*>  which  r<'hit>'s  to  the  wHriiiii;^tliikt  wiit  <jivfii, 
mill  alsii  at  pairc  \'\\  we  rt'fcr  to  the  plitci'  in  tlu*  il't'oi-il  whfiu 
it  is  shown  that  tin*  enpatain  of  lln;  "  Littlf  Triu'nph,"  in  nnliT 
to  qnit't  till-  Imlians  atid  to  imluci'  tht-ni  to  Nt>iy  with  liini, 
proniiMt'il  that  ht>  woiihl  go  to  anothur  portion  of  the  Sua  uml 
lO  onilfnvor  to  hnnt. 

Hi'  li'ft  thr  plact!  where  he  was  wnrneil  and  startel  alonjj 
the  const  of  the  Alentian  Isjatuls,  anil  was  hlown  tliroii;^'!) 
tliu  (Jninmk  I'ass  hy  a  soutli  easterly  ^ahi ;  his  eoiirsi*  from 
tliat  tiniM  onwnr<l  was  always  westwiinl.  The  witness 
Smith  saiil.  that  whenever  any  proi^'ress  was  to  lie  made  from 
one  point  to  another  the  course  uus  westwurd  uniler  full  canvas. 

Ile.-tays  that  he  .saw  an  Islaii'l,  several  tim(!s  ilnrin^;  the  voyage, 
which  the  captain  tohl    him  was  the   Islunil  of  Four  .Mountains, 
anil  that  they  came  out  of  the  h'our  .MoiiniHin   I'liss  when  the}' 
•_>()    left  the   sea. 

The  theory  of  the  irnited  Srates  ar;{nment  is  that  after 
^^ettin-;  throiiirh  the  (Uiimak  Pass  the  vessel  went  ahont 
.')()  miles  nortli  of  Hi)j,i;oslort'  and  linnLed  tlnre  and  came  down 
through  the  H'onr  Mountain  Pass. 

1  suhmit,  your  Honors,  that  the  evidence  discloses  rather 
that  h(!  went  throu;,'l\  the  (Jnimak  P.iss  and  then  alon<^  the 
coast  o'  the  Aeiitian  Islands,  and  hunted  out  in  the  direction 
of  th^  Four  Mountain  Pass. 

1  understand  that  (he  reason  why  niv  learned  friend  nu^- 
;i()  1,'ests  that  he  was  about  50  ndles  north  of  Biii,'oslort'  is  in 
consequence  of  the  evidence  which  Smith  „hvo  wlicn 
he  was  ttfterwardt  called  in  the  case  of  the  "Ariel," 
hut  I  do  not  read  his  evidence  in  that  way.  I  refer 
your  Honors  to  the  evid«ni  e  on  that  point,  and  I  will 
read  the  p.irt  my  learned  friends  rely  oo.  Ctdlel  in  the 
case  (»f  the  "  Ariel,"  this  witness  said  thit  in  \HH7  he  was  near 
Hi)f,'()slotf  snd  ahout  oO  miles  north  of  Boi^sloH.  At  p«;^e  liHC), 
line  11  of  the  Record,  he  says: — 

"  Q.     You  cruised  south  east  of  the  Islamls  in  IHSH,  and  you 
40  cruised  in  the  vicinity'  of  the   Hoeosioif  Volcano  in  ISN?  I      A. 
How  near  do  you  call  the  vicinity  ? 

"Q  Well,  ahout  oO  miles  to  the  northward?  A.  Oh  no, 
'  \t  was  farther  otJ"  than  that. 

"  <.^.  How  far  to  the  northward  ?  A.  I  did  not  hunt  to  the 
northward  of   Mo^oslotf",  I  hunted  to  the  we^twaid  in  lKf<7. 

"  y.     Did  you  nut  hunt  t')  the  nortliwnrii  at  all  ?     A.      Wei!, 
'noniinfj  oiitof  the  Hehrin^  Seaniid  tryio'^'  to  ^et  oil  the  t;roiinil, 
"  prohahly  the  CKptiiin  at   the  tine'   would    pass  B  ii^osloti"  to  the 
"  nonhwurd." 
■")il         Thi'.t  means  that  Boi,'oslotf  wouM 
iiij"  theory  of  his  yoya>,'e  is    correct, 
northeast. 

"  (i.     How  far  to   the   noithward 


OO 


he   to   the  n  ir  hvvard.      If 
Bo 'osiort' would    he   to  the 


do    \N  th 


you   pass  t     A.     I  did 
the   nHvi''iitii)n  of  the 


'  not  see  it;  I  had   nothinjj  to  oo 
'  vessel  at  the  time. 

"  Q.     A  little  while  atjo  you   tnl  '.    us  that  it  was   more  than 
■fifty  ndles?     A.     I  came  to  the   unlerstin  liri^  that  if  he  was 
.'inywhere  within  si'/ht  of   Bo'^osloH"  I    would    he   Hl;le  to  see  it, 
hut  I  never  gat  any  si<^ht  of  it. 

"  (i-  Your  experience  in  huntini^  in  Behriu'.^  Sea  was  to  the 
southeast  of  the  islands,  and  .somewhere  to  the  northward  of 
the  Aleutian  Islamls?     A.     Ye.s  sir  " 


m 


■V. 


(p* 


'1 


t.f 


if 


Now  then   we  will  return    to   hi.s   evidence  in    the  "  Little 


lixHtkr! 


556 


SJf- 


(Mr.  Bodwell's  Argument  on  Special  Oases.) 

Triumph  "  case,  where  he  gave  his  recollection  as  to  their  course. 

At  page  1402  on  cross-exauiination,  line  25,  as  follows: 

"  Q.  How  far  north  iliil  you  go  from  Uniniuk  1'aH.s  on 
"  account  of  the  .storm  ?  A.  Well,  in  the  mor-iing  after  tlio 
"  wind  calmed  down,  it  had  been  thick  with  rain,  I  just  could 
"  ni'iku  out  the  const  line. 
10  "  Q.  The  coast  of  Uniniak  Island  ?  A.  The  Air  utian  Islands, 
"  sir. 

"  Q.  You  thought  vou  were  to  the  west  of  Unimak  Pass  ? 
"  A.     Yes. 

"  Q.  Then  when  you  got  through  Unimak  3'ou  changed 
"  your  course  and  went  to  the  westward '.  A.  Not  that  ilay  ; 
■'  that  day  it  happened  to  calm  down,  as  I  recollect  now,  we  saw 
"  some  stttls. 

"  Q.     We  were  talking  about  this  storm.     When  this  storm 

"  was  blowing  you    into    Behring  Sea,  after   you    got  throuuli 

20  'Unimak  Pass  did  you  change  your  course  to  go  the  westwanl  f 

"A.     So  far  as  I  can  recollect  our  course  wa;f  always  westerly, 

"after  we  went  through  the  Unimak  Pass. 

"  Q.  At  about  daylight  on  the  i.iorningof  the  5th  you  think 
"you  were  to  the  westward  of  Unimak  Pass  >.     A.     Yes  sir. 

On  further  examination  at  page  1403,  line  .'JO.  he  says: 

"  Q.     And  you  went  out  of  Four  Mountain  Puss  i.     A.     Yos. 

"  Q.     And  when  the  boats  are  out  sealing  they  will  go  about 
"12  miles  a  <liiy  >.     A.     Yes. 
30         "  Q.     Just  tell  me  how  many  miles  it  is  from  Four  Mountain 
"  Pass  to  Unimak  Pa.''.s  ?     A.     1  will  give  it  as  neur  as  1  can,  13.") 
"  miles. 

"  Q.  And  you  think  your  course  was  alwiys  westward? 
"A.     Always  westerly,  wind  and  weather  permitting. 

"  Q.     From  l^nimak  Pass  ?     A.     From  Uniniak  Pus-;. 

"  t^.  Did  you  go  the  northward  at  any  time  ?  A'  Well,  if 
"  we  had  to  do  any  beating,  it  was  always  understood  as  suon  us 
"  the  canoes  were  in  and  tliere  was  any  wind,  we  always  workcil 
"  the  vessel  with  full  canvas  to  the  westwiird. 
40  '■  Q.  Prior  to  the  time  you  went  out  of  Four  Mountain  Pass, 
"did  you  ever  reacii  a  point  to  the  westward  of  Four  Mountiiin 
"  Pass  I  A  Not  being  a  navigator  in  these  days,  1  really 
'■  couldn't  tell. 

'  Q.  You  can  tell  whether  you  went  to  the  west  c)f  Foia- 
"  Mcaiutuin  Puss?  A.  No.  I  couldn'i  for  I  never  took  any  n(tiL't' 
"  .)(' bearings  until  we  went  thn'Ugh  the  Pass,  and  if  I  eiKiuired  of 
"the  captain  what  place  this  was,  he  would  saj',  '  it  was  the 
"  Island  of  Four  Mountains.'  " 


50  Upon  that    evidence,  I  supjiose,  the  T'^nited  States  argunit  nt 

is  that  he  could  not  have  got  any  distance  westerly  because  lir 
was  hunting  every  day  ;  but.  yoiu'  Honors  know  that  be  wotild 
not  be  s'jaling  (luring  the  night,  and  tliat  the  vessel  was,  at  times, 
beading  to  the  westward  under  full  canvas.  It  is  pert'i'ctly  plain 
that  the  vessel  could  make  OOor  70  ndles  in  a  very  few  hours,  and 
the  distance  from  Unimuk  Pass  to  Uogoslotl'  Volcano  is  00  or  70 
miles.  He  could  easily  get  a  good  deal  west  of  Bogoslotl"  witli- 
(lut  getting  north  of  BogosloH".  It  is  plain  fioni  hi.s  evidence 
that  the  course  coming  out  of  the  Four  Mountain  Pass  was  south 

GO  east  and  1  contend  srom  all  the  evidence  that  the  vessel  was 
westerly  of  the  Four  Moinitain  Pass,  sealed  over  there,  and  then 
came  -jut  of  the  Four  Mountain  Pass. 

Mr.  Warren  : — How  could  his  courHC  always  be  westerly. 
Mr.    Bodwell : — Certainly,  coming    from    Unimak    to  Four 


'%. 


(Mr.  Bodwell's  Argnineiit  on  Special  Cases.) 

Mouutf  ius  westerly.      He  would  go  south  east  to  go  out  of  the 
Four  i  ouiitaiu  Pass. 

Mr.  Warren  : — You  said  his  course  was  always  westerly. 
Mr   Bodwell  : — He  does  not  say  it  was  due  west.     He  says  it 
was  westward.     After  that  he  saw  the  Island  of  Four  Mountains. 
Let  me  read  the  evi<lenee  on  tliis  point  so  tiiat  tliere  may  be  no 
10  mistake:  p.  1403,  lino  .'W  : — 

"  Q.  Did.  you  go  northward  at  auy  time  ^  A.  Well,  if  we 
"  hail  to  do  any  beating  it  was  always  unilerstcod  as  soon  as  the 
"canoes  were  in  and  there  was  any  wiml,  we  always  worked  the 
"  vessel  with  full  canvas  to  the  westward. 

"  Q.  .Prior  to  the  time  you  went  out  of  Four  Mountain  Pass, 
"  did  you  ever  reach  a  point  to  the  westward  of  Four  Mountain 
"  Pass  /  A.  Not  being  a  navigator  in  those  days,  1  really 
"  couldn't  tell  you. 

"  Q.     You   can   tell  whether  you  went  to  the  west  of   Four 

20  "  Mountain  Pass  f     A.     No,  1    couldn't,  for   I  never    took    any 

"  notice  of  bearings  until  we  went  through  liie  Pass,  and  if  1  en- 

"  quised  of  the  tlie  captain  what    place  tliis  was,  he  would  say  : 

"  'It  was  the  Island  of  Four  Mountains.'  " 

Mr.  Warren: — Do  you  think  that  means  that  he  was  going 
through  the  Pass  i 

Mr.  bodwell : — Yes,  I  do. 

Mr.  Warren  : — \\  oil,  he  refers  in  another  part  of  his  evidence 
to  seeing  Islands  in  the  course  of  his  voyage. 

Mr.  bodwell : — Yes.     I  see  you  are  rignt  about  that.     How- 
30  ever,  I  conteuil  my  theory  is  correct,  viz.  :  that  when  they    got 
througii  Unimak  Pass tliey  cruised  along  in  sight  of  the  Aleutian 
Islands,  and  that  tiiey  came  out  of  Four   Mountain  Pass. 

At  all  events  it  is  an  undoubted  fact  that  the  place  they  went 
to  was  not  the  place  they  intended  to  go  when  they  started  on 
their  \oyage. 

As  to  why  this  vessel  left  the  sea,  the  evidence  is  clear.  I 
inerelj  refer  you  to  page  i;Ji)9  beginning  with  line  26  ilown  to 
the  em  of  line  50,  where  it  is  shown  that  the  reason  for  leaving 
tiie  Sea  at  the  time  they  did  was  because  the  Indians  were 
40  frigiitened  and  would  not  stay  any  longer.  Mr.  Byrus,  the  owner 
(?i'  the  vt.-sel,  and  Mr.  Smith,  both  testify  that  it  was  their  in- 
tention to  make  the  season  as  long  as  the  weather  would  permit. 
We  ijuote  in  our  written  argument,  pagetf  I40(i  line  Go,  and 
also  page  Ui'M  line  oO  of  the  Uecord.  Smith  says  there  that 
they  had  provisions  enough  on  board  to  last  the  crew  ^until  the 
middle  or  boainning  of  October. 

Mr.  Dickinson: — What  is  the  tonnage  of  this  ship  ( 
Mr.  Bodwell : — Fifti'en    tons.     The  same    as    the    Mountain 
Chief  which  remained    until   the  7th    September.     1  also   refer 
50  jour  honors  as  to  the  length  of -the  intended  voyage,  to  the  evi- 
dence at  page  1406,  line  00. 

1  do  not  think  1  have  anything  lurther  to  add  with  reference 
to  this  claim,  your  Honors, 


The  Commissioner  on  the  purt  o'"  the  United  States: — Have 
you  any  theory,  Mr.  Bodwell,  as  tc  wnether  July  or  August  is 
best  for  sealing  in  the  Behring  Sea  I 

Mr.  bodwell : — From  what  1  recollect  I  should  think  that 
from  the  ndddle  of  July  through  the  whole  of  August  ii  ab«ut 
(10  the  same.  The  earlj"  part  of  July  is  not  so  good.  About  the 
10th  or  ].5th  of  July  the  seals  begin  to  come  otl  the  islands. 

The  Commissioner  on  the  part  of  the  United  States: — You 
would  call  the  month  of  August  equal  to  about  two  of  July  on 
that  theory  ? 


lf= 


■1  i-   ,  " 


558 
(Mr.  Bodwell's  Argument  on  Special  Case  .) 

Mr.  Bod  well: — You  could  tish  for  about  31  days  in  August 
with  good  weather,  and  thej  might  have  25  days  good  ii.shing  in 
July. 

The  Commigsioner  on  the  part  of  the  United  States : — Does 
that  close  your  argu.nent  ? 

Mr.  Bodwell : — Yos,  your  Honor. 


10        At  half-past  threi;  o'clock  the  Commission  rose. 


:).■)!> 


()PENING  ARGUMENT  FOR  THE  UNITED  STATES. 
Hon.  Don  M.  Dickinson. 


The  Commissioners  under  the  Convention  of  Febru- 
ary 8, 1896,  between  the  United  States  of 
America  and  Oreat  Britain. 


20 


Legislative  Council  Chambers,  Provincial  Building, 
Halifax,  N.  S.,  Sept.  13,  1897. 

At  11  o'clock  the  ('ommissiontrs  took  theii"  seats: 


Mr.  Dickinson:  — May  it  i)leasetlie  High  Connnissioners, 
1  annount'e  tiie  course  in  which  tiie  arguniunt  of  the 
Tnited  States  will  be  pursued,  if  agreeable  to  the  Court. 
We  will,  without  taking  up  the  order  of  tiie  United  States 
printed  argument,  o|)en  (|uite  briefly,  in  order  to  clear 
away  somc!  of  the  driftwooil  that  seems  to  have  got 
111)011   this   flood   of  discussion.       My  associates  will  then 

30  take  up  the  evidence  which  has  lieen  presented  to  this  High 
Court,  and  we  siiall  close  upon  tiie  Record  as  presented,  by 
iipjilying  to  that  evidence  and  that  Record,  the  argument 
as  presented  in  printed  form  in  behalf  of  our  Govern- 
iiieiit. 

I  can  open  the  discussion  in  behalf  of  the  United  States 
ill  110  more  fitting  words  than  those  adopted  by  one  of  the 
distinguished  counsel  of  Her  Majosty.  in  closing  his  argu- 
ment: "  Peace  hath  her  victories  no  less  renowned  than 
war."    The  expression  of  that  sentiment  is  none  the  less 

40  impressive  at  a  time  when  the  nations  of  the  earth  areunder 
arms,  standing,  at  ready  and  on  guard.  Nevertheless, 
wliile  the  civilizations  are  equipped  for  war,  doubtless 
their  highest  aspirations  are  for  peace,  and  the  hope  of 
neace  is  at  present  through  Arbitration. 

l^ut  we  cannot  have  arbitration  at  once,  as  some  subli- 
mated reformers  would  have  it.  Arbitration  is  upon  trial, 
and  we  must  have  more  and  mon;  successful  exiieriments 
(if  tiiis  metliod  before  the  world  can  hope  for  its  universal 
.uloption.     I'eace  is  the  desire  of  the  world,  but  as  has 

;oliten  said  in  mon^  felicitous  woids  than  mine,  ami  I  re- 
member not  the  words  Imt  the  sentiment— we  cannot 
|ihi(k  peace  as  a  child  tears  unrijie  fruit  from  a  tree. 

Wo  have  had  arbitrations  and  arbitrations.  Let  us  bear  iu 
mind  that  the  results  of  some  have  been  set  .aside  because 
I  lie  arbitrators  went  beyomJ  delimitation  of  powers  com- 
mitted to  them.  Others  have  been  vacated  because  the  ar- 
liitrators,  in  their  judgments,  have  decided  contrary  to 
I  lie  accepted  principles  of  international  law,  while  others 
iiave  been  accepted  as  the  best  thing  to  be  done  under  the 

001  iicumstances.  but  have  left  irritation  behind. 

Vet,  after  all,  the  su(X'e.-sful  arbitrations,  few,  as  com- 
pared with  the  unsuccessful,  have,  in  the  eyes  of  the 
World,  held  up  the  balance  against  tiie  many  unsuccess- 
liil,  and  the  world  is  still  trying  it  as  a  method  tending 
to  secure  universal  peace. 


\  'Mr 

1      ■'   ■ 


'I  ■  II 


1    h.      I 


M 


560 

(Mr.  Dickinson's  Opening  Argnnient.) 

'Iho  criticism   npon  the  awards  tiiat  have  i)een   made" 
have  been  largely  npon  awards  made  by  arbitrators clios(ii 
from  among  diplomatists  rather  thfin  from  tlie  jndiciai  v; 
chosen  from  111 lers— sovereigns  an<1  presidents.     Bnt   the 
method  the  world  is  learning — the  method  that  best  suli 
serves  the  interests  and  the   ends  songht  to  be  gained-  is 
to  be  found  in  the  regrdating  oiiginal  selection  of  the  pn- 
10 sons  who  an;  to   pass  npon  the  ()uestions  submitted   to 
them  by  the  nations  in  dispntation;  and  ii,  may  be  stated, 
as  a  conclusion  from  the  learning  already  acquired  by  ex 
perieiice,  that  the  selection  most  api)roved  and   most  sue 
cessful,  and  to  be  most  successful,  nnist  be  from  the  juili 
ciary — from  among  men  trained,  so  far  as  the  bent  of  tin  ii 
minds  is  concerned,  to  impaitiai  consideration  and  juil}; 
ment. 

And  I  join  with  my  distinguished  fi lends  in  congralii 
lating  Great  Britain  and  the  United  States  that  in  tiieir 
20choice  of  a  body  to  weigii.  consider  and  decide  the  grave 
questions  involved  in  this  dispute,  they  have  selected  a< 
arbitrators  to  ])ass  upon  these  questions  fitting  representa- 
tives of  countries— the  one  that  produced  a  Scott  and  the 
other  that  produced  a  Storey. 

I  say  Scott— because  it  is  inconceivable  to  the  American 
mind  how,  willingly,  one  could  pass  the  Inminous  name 
of  Scott  behind  a  peerage,  although  he  made  the  name  of 
Stowell  also  renowned. 

It  was  Sir  William  Scott  sitting  in  a  jirize  court,  which 
3oadministers  International  Law,  and  never  mnnif  ipal  law, 
excej)t  as  a  side  light;  it  was  Scott  who  said  in  the  case  of 
the  "  Maiia  Olsen,"  a  Swedish  ship- in  a  case  which  in- 
volved the  sovereign  rights  of  Sweden  and  the  private 
rights  of  Swedish  subjects;  it  was  Scott  who  said  (1  do 
not  (|uote  liim  literally  but  in  substance): 

"I  sit  lioro  to  ndiiiiuistor  lutcruntioual  Law;  I  do  not  sit  lioro  as  tlif 

reprfsentativo  of  (iroat  Uritiiin,    l)ut  to  ilo  justice  to   Swedou   and 

to  Swedish  suliJLH'ts,  preoisely  as  it  I  wero  ii  Hwodo  sitting  in  HwimIIhIi 

territorv,  dealing  witli  a  dispute  l)etwoi'n  (Ireat  Britain  and  Swodoii." 

40 

It  was  the  bench  of  Storey  which  settled  theqnestioii  of 
neutral  goods,  in  a  belligerent  bottom,  and  on  a  Hritisli 
defense  laid  liown  the  principle  that  neutral  goods,  British. 
in  a  belligeient  linttom.  should  be  handed  over  to  the 
owner  and  were  nut  pii/e  of  war. 

There  are  certain  (pi(>stions,  may  it  please  the  Court, 
which  nations  never  bav<(  consenteii  nor  ever  will  consent 
to  cotnmit  to  arbitiation,  either  as  ]iiincipal  questions,  or 
matters  the  decision  of  which  involves  any  conclusion 
Sohanging  upon  such  (piestions.  These  are  questions  of 
national  honor  and  national  dignity. 

We  are  fresh  from  an  attempted  negotiation  of  an  Ar- 
bitiation Treaty.  Whatever  may  be  said  of  the  criticisms 
made  upon  the  late  attempted  Treaty,  this  can  be  said  of 
tlu'  negotiations  culminating  in  the  treaty:  That  ihey 
carefullv  excluded,  itid  not  admit  for  one  moment  the 
chance  not  merely  th(i  cpiestion,  but  the  chance  of  a 
question  that  any  propositions  involving  the  national 
honor  or  the  dignity  of  the  Sovereignty  of  either  nation 
6oshoiilii  go  lu't'ore  the  Tribunal  contemplated  and  i)rovi(UHl 
for  by  that  treaty.  Tliey  excluded  it  in  terms,  in  the 
treat}-  adopted  tentatively  by  the  diplomatic  representa 
lives  of  the  governments. 

As  so  proposed — we  are  now  speaking  upon  Arbitration 
in    an  academic  way,  having  application  to  other    ata- 


561 

(Mr.  Dickinson's  Opening  Argument.) 

(Irinic  questions  presented  by  my  learned  friend,  Sir 
(  luirles  Hibbert  Tupper— criticisms  were  mado  upon  the 
tivr.ty. 

No  treaty  for  arbitration  was  ever  accepted  before  that 
dealt  with  future  or  potential  lUiestions.  No  arbitration 
ot  any  kind  by  convention  was  ever  adopted  beforehand 
t(i  tit  a  state  of  facts  in  futuro.     Why?    Because  each 

lOfoiintry  was  opposed,  and  all  countries  have  been  opposed 
t(i  submitting  any  question  of  International  dispute,  the 
Hpccial  facts  of  which  cannot  be  definitively  stated,  so 
tiiat  the  questions  applying,  and  the  conclusions  for  decis- 
imi,  to  be  submitted  to  the  Board  of  Arbitrators,  whoever 
tlicy  might  be,  could  not  be  carefully  deliminated. 

And  when  it  was  attempted  to  extend  the  policy  of  ar- 
hit  ration — even  applying  to  special  matters,  as  it  did— so 
tliat  a  general  code  was  to  be  adopted  to  govern  such 
ppt'cial  cases  as  they  might  aiise,  the  great  criticism  on 

20 both  sides  of  the  water  was,  that  this  feature  might  lead 
to  great  embarrassment,  and  finally  to  such  iriitation 
as  to  make  future  arbitrations  impossible.  And  the 
treaty  failed  principally  on  the  ground  that  it  could  not 
lie  foreseen  how  it  might  apply,  and  the  Nations  would 
III  it  be  willing  to  apply  general  rules  to  facts  not  yet  born. 
But  let  us  see  about  questions  of  national  dignity.  For 
illustration  take  the  Geneva  Arbitration.  The  (Ten3va 
Treaty  was  broad  enough  to  cover  the  whole  question  in 
tei  MIS,  and  the  Geneva  Treaty  came  after  much  labor,  and 

3oaftei-  the  defeat,  let  us  remember,  of  the  Johnson  Claren- 
don Treaty.  It  came  after  years  of  careful  negotiation, 
and  was  supposed  to  be  broad  enough  to  cover  every  In- 
ternational question  that  might  be  presented,  growing 
out  of  the  capture  and  destruction  of  American  ship- 
ping by  the  '"  Alabama"  and  her  sister  ships. 

Hut,  as  a  collateral  matter,  bear  in  mind,  the  counsel 
for  the  United  States  contended,  without  specifying  dam- 
ages, that  Great  Britain  was  resi)onsible  for  di-iving 
American  shipping  from  the  Seas;  that   she  was  respon- 

40 sible  for  the  extra  cost  of  the  war,  and  counsel  for  the 
rnited  States  sought  to  sustain  the  claims  l)y  shewing, 
what;  What  was  never  attempted  in  a  court  of  arbitra- 
tion before     the  bad  faith  of  Great  Britain. 

What  followeiH  There  was  before  the  Arbitrators  a 
specific  arbitration  — precisely  as  there  is  before  your 
Honors  in  this  Convention— but  on  this  general  conten- 
tion, and  not  on  the  specific  claims,  tlu?  counsel  for  the 
Tnited  States  presented  authorities  tending  to  show  that 
(Jieat  Britain  was  responsible,  because  she  had  willfully 

?odoiu'  these  things,  and  the  rule  of  damages  adduced  was 
tliat  of  vindictiv(>  and  punitory  damages,  sometimes  also 
califd  aggravated  damages. 

What  followed?  The  Counsel  for  the  United  States  at 
(Iriuva  did  not  present  this  claim  as  one  of  the  specific 
rlaiin«,  may  it  please  the  Court.  They  did  not  proceed  to  ex- 
auiicrate  the  value  of  the  merchant  vessel  or  of  the  vvhaling 
vrs^ei;  or  to  exaggerate  the  value  of  whaling  catch  on  board, 
or  to  claim  prospectiv't;  catch  in  the  nature  of  vindictive  or 
txaugcrated   damages;  but   they  said,  because   all   these 

'i^Miiings  in  general  have  been  suffered  by  the  plaintiff,  the 
people  of  the  United  States,  to  whom  has  been  done  a 
willful  and  wanton  tort,  therefore  want  these  general 
ilainages  in  addition  to  the  specific  loss.  What  was  the 
icsidt; 


,  ;!  Mi ' 


r    I- 


■frr 


562 

(Mr.  Dickiiisou's  Opening  Argument.) 

Great  Britain,  in  that  International  Court,  roplii.| 
thus:— The  gnvnter  question  between  the  Sovereigntit  s 
has  been  passed  upon;  Great  Britain  has,  so  far  as  her  sov- 
ereign rr  <ponsibility  is  concerned,  agreed  witli  the  Unitid 
States  s  J  far  as  its  sovereignty  is  concerned,  that  (iwM. 
Britain  shall  say  that  she  regrets  that  the  "Alabatna"'  saiN  d 
from  the  ports  of  Great  Britain,  and  regrets  the  loss  tliit 

10  has  accrued.  Then  as  to  the  International  questions  liciv, 
said  the  British  counsel,  this  is  a  tribunal  to  which  is  not  re- 
ferred a  *|uestion  of  i  ight  or  wrong  between  the  sovci . 
eigns,  i)ut  a  question  of  what  should  be  paid  for  certain 
ships  (if  Great  Britain  was  negligent)  which  were  ilc- 
stroyed  by  the  "  Alabama."  Therefore,  notice  was  .served 
on  tlie  United  States,  after  the  assembling  of  the  Boanl 
of  Arbitrators  at  Geneva:  that  although  within  the  letter  (if 
the  treaty --if  the  attempt  to  bring  on  this  question  of  the 
good  faith  of  Great  Britain,  or  of  its  hostile  feeling,  is  pfv- 

20sisted  in.  Great  Britain  must  retire  from  the  arbitratimi. 
Then  practically  by  consent,  s-o  that  it  should  pass  into 
International  law,  the  counsel  for  the  United  States  ac 
ceded  to  the  position  of  (ireat  Britain,  and  the  Board  of 
Arbitration  laid  down  the  rule,  that  the  questions  as  to 
such  damages  should  be  eliminated  from  the  proceediii;;s 
and  the  deliberations  of  that  high  tribunal.  You  hear  no 
more  of  the  claim  of  wantonness  and  insult  and  hostility, 
when  they  come  to  consider  the  question  of  damages. 
Your  Honors  will  find  tiiat  all  these  questions,  all  the  aigii- 

30juents  presented  for  extravagant,  aggravated  or  punitory 
damages,  were  made  at  a  point  antedating  this  decision. 
But  may  it  please  your  Honors.  I  will  not  say  that  the 
American  counsel  in  their  presentations  of  the  original 
case  at  (ieneva  did  not  make  a  coat  of  wool  which  niv 
learned  friends  here  are  endeavoring  to  put  upon  us.  I 
do  say  as  to  the  position  of  our  counsel  at  (ieneva:  That 
the  counsel  of  Her  Maysty  from  their  standpoint  wore 
right  when  they  sail.:  the  proposition  to  prcjve  tht>se 
things  is  so  offensive  that  we  will  not  reply  to  it,  and  that 

40 it  (as  was  true)  is  a  proposition  never  made  in  an  Inter- 
national court  before.  The  British  counsel  weie  right, 
because  the  tribunal  unanimously  so  held,  and  that  is 
enough  for  the  purpose. 

This  i)resent  case  which  your  Honors  are  now  considering 
is  passing  into  the  history  of  arbitration,  for  we  are  here 
making  histor}-.  And  in  this  convention  referred  to  your 
Honors  the  (juestion  involved  is  not  a  mere  assessment. 
The  clause  in  this  treaty  creating  the  Commi.ssion  under 
which  your  Honors  sit  providing  that  Great  Britain  can 

50 make  claims  for  such  persons  "in  whose  behalf  (ireat 
Britain  is  entitled  to  claim  cotnpensation  from  the  Unitetl 
States  "  involves  the  gravest  questions  of  International  law 
ever  submitted  to  any  international  tribunal  however 
high.  It  is  not,  as  my  learned  friend  the  senior  couii.sol 
for  Great  I'.iitain  arguc::  that  we  care  whether  we  pay 
one  dollar  or  a  million  dollars,  or  two  million  dollais  nr 
five  million  dollars  that  such  questions  are  argued  by  ns. 
The  proceedings  of  this  tribunal  are  passing  into  tlie  iiis- 
tory  of  international  jurispiudence,   into  the  libraries  of 

^)Othe  foreign  offices  of  thenatiimsand  of  the  publicists  of  I  he 
world;  and,  representing  the  United  States,  may  it  jilease 
your  Honors,  we  have  presented  these  questions  elaborately 
and  exhaustively  and  conscientiously,  in  the  hope  and  iic- 
lief,  that  they  will  be  decided  right  and  not  wrong. 


o*i3 

(Mr.  Dickinson's  Opening;  Argument.) 

At  page  '20  of  the  printed  argument  of  counsel  for  Great 
Britain  before  you,  we  find  the  following: 

•'  ThonctB  in  respect  of  which  damagcH  are  daimod  wore  equivalent 
\o  iiu  unwarranted  iuvaHion  of  the  ten-itory  of  a  friendly  ])o\ver  in 
turn'  of  peace.  They  constituted  an  insult  to  the  Han  <>f  Great  Britain, 
ri'|M'ated  from  time  to  time,  ac-compauied  hy  the  seizure  and  conflgca- 
tioii  (if  valuable  ])roperty,  in  the  face  of  continued  protests,  and  even 
iil'lii'  the  acts  and  declarations  of  the  United  States  Government  had 
'"),'i\rn  an  implied  assurance  to  the  c(mtrary." 

Insult!  my  Loid;  insult!  your  Honor!  Why,  it  is  one 
ol  tliO  glories  of  the  English  si)eaking  people,  a  glory  in- 
jii'iiti'd  by  my  country,  that  the  mother  land  has  never 
hccn  insulted  a  second  time.  "  Repeated  insult,"  in  the 
hiiiguage  of  Her  Majesty's  counsel  here!  Why,  when 
mice  insulted  Great  Britain's  vindication  has  sounded 
ju'onnd  the  world  eitlier  in  the  form  of  a  prompt  disavowal 
or  aiM>logy  uii  the  part  of  the  nation  that  insulted  her;  or 

:oiii  the  resounding  roar  of  shotted  guns;  one  or  the  other; 
ivpeated  insult!  never!  And  neither  country  has  ever 
consented  to  accept  a  money  indemnity  for  a  wanton  in- 
sult. Neither  country  until  now,  has  ever  proceeded  on 
the  tlieory  that  the  question  of  a  money  indemnity  for 
wounded  national  honor  or  the  question  of  insult  or  no 
insult,  could  be  referred  to  the  decision  of  a  board  of  arbi- 
tration however  great  its  dignity. 

Another  question  that  is  submitted,  and  the  decision  of 
which  involves  the  national  dignity  to  a  great  degree,  is 

30 this,  and  it  has  been  stated  in  the  diplomatic  history  of 
liuth  countries  many  times;  the  self-respect  of  a  civilized 
nation  can  never  adnnt  that  a  foreigner— a  foreigner  un- 
naturalized— but  domciled  within  its  borders,  is  in  any 
ni't'd  of  the  protection  of  any  other  jjower.  That  is  a 
general  proposition.  The  only  protection  that  will  be 
p;iven  him,  or  for  which  reclamation  can  he  made,  is 
stated  as  this  broad  exception— in  case  the  domiciled 
toreigneris  denied  the  equal  protection  of  the  laws  of  his 
iloniicil  and  is  discriminated  against  because  of  his  alien- 

40;lg(^  We  are  agreed — the  books  are  full  of  the  decisions, 
Mud  I  will  not  proceed  to  cite  cases  now;  but  where 
the  person  is  domiciled  in  this  country  he  owes  alle- 
nicnce  to  the  laws  which  protect  hiu).  Great  Britain 
(ipcus  all  her  courts  to  the  alien  domiciled  there;  and  she 
would  not  admit  that  a  citizen  of  the  United  States  within 
lier  borders  would  not  have  full  justice  in  the  courts  of 
(iioat  Britain,  and  from  all  the  powers  of  her  sovereignty. 
That  is  the  attitude  that  lias  been  taken  by  both  powers. 
We  cannot  for  one   moment   admit  the  |iossihility  that  a 

J'lfonMgner  cainiot  get  justice  in  the  United  States.  What 
is  the  e.xception  to  the  general  rule  of  international  law  in 
its  broadest  aspect  in  this  respect!'  It  will  be  found  to  bethis, 
that  the  rule  that  the  nation  of  original  citizenship  cannot 
intervene  for  the  ])rotection  of  the  domiciled  alien,  until  he 
lias  tiied  the  courts  of  justice  of  the  ooiuitry  to  which  he 
owes  temporary  allegience,  does  not  apply  to  those  coun- 
Irii's  which  have  no  courts  of  justice.  That  is  the  excep- 
tion laid  down  in  the  text  books;  laid  down  everywhere; 
that  it  does  not  apply  to   those   countries,  where  a  citizen 

f'"iiiay  be  domiciled,  where  those  countries  have  no  system 
iiiganized  to  do  justice;  and  this  nation,  no  niore  than 
(iivat  Britain,  iias  never  admitted,  and  does  not 
piujiose  to  admit  now,  that  any  man  within  its 
lionlers,  be  he  citizen  or  alien,  can  be  deprived 
ot  his  life,  liberty  or  property  without  due  process  of  law, 


T'W^fijijn 

1'  'lli^R ti 

i 
1 

1.-  V  'vw]4 
,-       j  1 

1 

V.i!:i|f'l 

1 

■  ■  n: 


li 


'i;! 


■ri 

!     ■ 

ii: 

4  ' 

'  i^^. ■•;    ^'^ 

I 

'■4! 


'(/   ' 


5t;4 


(Mr.  Dickinson's  Opening  Argnnu'nt.) 

or  that  he  cannot  got  justice  from  our  (V)urts,  or,  it'  an  ap 
peal  he  necessary,  from  any  other  hranch  of  onr  sovcr 
eignty,  the  executive  ns  well  as  the  jmhcial.  No  self  vo- 
spectlng  nation  can  Jidmitit,  and  therefore  the  whole  (pies- 
tion  turns  upon  residence  or  civil  domicil.  All  the  niniii 
ments  surrounding  life,  liherty.  property  and  ;ill 
l)rivate     riglits,     crystaiized    in    the    fundamental    law, 

lothe  Constitution  of  the  United  Stales,  applies  to  ;i 
foreigner  within  our  midst  equally,  and  with  all  tlic 
strength  of  its  protection,  as  to  a  citizen  of  the  L'nittd 
States.  We  are  not  prepared,  therefore,  to  admit  that  we 
are  within  the  exception  to  the  rule,  and  are  so  uncivilized 
that  a  Biitisli  suhjec-t  cannot  get  justice  iu  our  midst.  It 
is  a  question  of  residence  and  domiciln,  not  a  cpiestion  of 
"  vessels.  After  my  fiiends  cited  the  "  Indian  Chief""  cnsc. 
I  was  ahle  to  get  hold  of  the  volume,  which  I  was  not  ahlc 
to   do   when  1  analyzed  the  case  in  the  printed  argument 

20of  the  United  States.  It  is  cited  in  the  British  argument 
as  one  of  the  leading  cases,  may  it  please  your  Honors. 
and  is  analyzed  impro](erly,  so  far  as  one  or  two  insignili- 
cant  prenuses  are  concerned,  in  our  hrief.  This  is  not  a 
war  case,  although  iu  time  of  war,  may  it  please  your 
Honors.  The  "  Indian  Ciiief"  was  not  seized  and  searchcil 
as  a  neutral  or  as  a  helligeient  at  all;  so  that  the  (|uestioii 
of  Avar  had  no  connection  with  the  case.  She  was  seized  hy 
Great  Britain  as  a  British  vessel.  It  turned  out,  as  finally 
held,  that  her  owner  was  an  American  who  had  started  on 

30 his  way  hack  to  his  own  country,  thei'efore  domiciled  in 
America,  and  therefore  s'ne  was  held  to  be  an  American 
vessel.  But  what  would  have  heeu  the  result  had  the 
American  resided  in  Great  Britain?  Bear  in  mind  that 
the  •'  Indian  Chief"  was  not  in  time  of  war  seized  as  a 
neutral  vessel  or  searched  as  a  neutral  vessel.  The  ques- 
tion was  simply  whether  she  could  he  taken  hy  Great 
Britain  as  a  British  vessel,  and  |)unished  for  violating  the 
law  ai)i>lying  to  British  subjects  forbidding  them  to  tr.tde 
with  the  enemy.     Now,  then,  here  is  the  statement  of  Sir 

40  William  Scott,  and  I  call  youi'  Honors'  attention  to  tlio 
documents— this  immaterial  (|uestion  of  documents.  He 
says:  "  The  vessel  sailed  in  171*5  and  as  an  American  shij)," 
I  am  reading  from  the  decision  of  Lord  Stowell,  then  Sir 
William  Scott,  "with  an  American  i)ass  and  all  American 
documents,  but,  neveitheless,  if  the  owner  really  resided 
here,  such  papers  could  not  protect  the  vessel.  If  tiio 
owner  was  resident  in  I'-ngland,  and  the  voyage  such  as 
an  Knglish  merchant  coulil  not  engage  in,  an  American 
residmg  here,  and  carrying  on  tra<le,  could  not  protect  his 

5osliii)  by  putting  American  documents  on  board.  His 
interest  nuist  stanil  or  fall,  according  to  the  determination 
which  the  courts  shall  make  on  the  national  cliaracter  of 
such  a  person."'  It  was  determined  in  judgment  that  the 
American  did  not  I'eside  there,  and  therefore  the  nation- 
ally of  the  ship  went  with  the  j'esidence  and  it  was  an 
Atnerican  ship.  If  he  resided  there,  nationalty  went  with 
the  residence  and  it  was  a  British  ship,  althougli  American 
documented,  even  with  a  pass,  tlag — legister— an  American 
ownership. 

Co  Anotlu-r  vei'y  serious  question,  involving  the  making  of 
history  and  international  law,  as  to  wliich  the  yielding  to 
the  contention  of  Great  Britain  here  would  be  a  menace 
to  the  convention  itself.  It  may  be  taken  as  settled  that 
a  decision  of  a  tribunal  of  arbitration  between  the 
countries,    ouce    before    had    on    a  genei-al    question  of 


5(15 

(Mr.  Dickinson's  Opening  Argument.) 

iiitLMnational  law  is  binding  on  both  countries.  That 
may  be  called  written  international  law;  indeed  it  has 
passed  into  the  text  books.  In  the  Geneva  case  it 
wa-^  decided  that  prospective  profits — prospective  catch 
-  cannot  be  allowed  for  any  purpose  and  the  reason 
tor  this  is  given  in  the  decision.  Bear  in  mind  that  they 
sav  tliat  they  cannot  be  allowed  for  "any  sum;"  that  is 

lotlic  language  of  the  final  finding,  embraced  in  the  award, 
to  wliicli  we  look  for  international  law,  and  they  give  the 
itason  given  by  all  the  authorities,  notably  by  Dr.  Lush- 
iiii;ton,  which  is  this— because  there  is  no  method  of 
inrasuring  sucii  damages  which  can  be  accepted  by  a 
court.  Indeed,  the  world  had  understood  that,  as  between 
iialions  with  reference  to  questions  of  damages  before 
conventions,  on  examination  of  damages  and  adjustment 
ot  claims,  the  question  of  prosi)ective  piofit,  as  applied  to 
|)ro-;pective  catch,  was   settled.     Everybody   believed   so, 

20 hut  now  my  friend  says  that  is  not  so;  that  the  Geneva 
Tribunal  actually  gave  prospective  catch  as  damages.  I 
am  not  going  into  the  details  now,  but  only  referring 
to  the  matter  generally.  It  is  an  astonishing  find,  of 
luT  Majesty's  counsel,  that  that  Tribunal  actually  did 
give  something  in  lieu  of  prospective  catch,  and  that  the 
tiiiiling  promulgated  to  the  world,  that  passed  into  the 
liooks,  and  is  written  for  all  nations  to  see,  is  not 
the  law  nor  the  decision.  Bear  in  mind  that  with 
retVreuce  to  the  shi|)s  destroyed  by  the  "  Alabama,"  which 

30  were  whaling,  which  had  whales  on  board,  as  shown  by 
the  evidence,  whales  at  their  sides,  and  which  were  in 
the  midst  of  schools  of  whales  (the  question  of  prospect- 
ive catch  was  pre.sented  solely  as  to  the  whalers)— the  evi- 
dence was  also  before  and  considered  by  the  Tribunal  as 
here  as  to  what  others  had  caught;  the  evidence  was  bafore, 
and  was  considered  by  the  Tribunal  that  whales  were  there 
in  paying  (juantities  to  be  caught,  and  yet  it  held  that 
■'wiiere.is  prospective  eai'uings  cannot  pro])erly  be  made 
the  subject  of  compensation,  inasmuch  as  they  depend  in 

40tlu'ir  nature  upon  future  and  uncertain  contingencies,"  as 
Dr.  Lushington,  in  substance,  had  held  as  strongly  as  it 
could  i)e  put.  Tliere  follows  the  decision,  and  I  am  reading 
from  Vol.  4,  "  Papers  relating  to  the  Treaty  of  Washing- 
ton," i)age  .');5.  There  is  no  difference  in  the  text  or  mean- 
inn  between  the  English,  Krencli  or  American  versions. 
The  decision  is:  "  The  Trii)unal  is  unanimously  of 
opinion  that  there  is  no  ground  for  awanling  to 
the  United  States  atu/  sum"  (and  I  underscore 
"  my "     with     a     good     deal     of     emphasis    in     view 

?0of  the  argument  here  on  l)ehalf  of  Her  Majesty — 
different  from  the  vote  taken  in  the  !>th  or  intli  protocols 
at'tcr  the  controversy  opened  by  Chief  Justice  Cocklmrn 
over  Baron  Staempfli's  estimate) — no  ground  for  awarding 
to  tile  United  States  any  sum  "  by  way  of  indemnity 
under  this  head."  Why?  Because,  as  they  take  pains  to 
state,  (as  the  rule  is  in  both  the  United  States  and  Great 
IJritain,)  "  they  depend  in  their  nature  upon  future  and 
uncertain  contingencies  "  Can  it  be  possible  tliat  my 
learned  friends  want  this  tribunal,  in  view  of  that  deci- 

*J3sion,  to  find  that  they  actually  gave  prospective  catch  at 
i'"neva?  And  will  this  tribunal  be  willing  to  go  into  the 
iii-^tory  of  jurisprudence  with  an  award  on  this  question  to 
till'  effect  that  that  tribunal  did  not  mean  what  it  said,  and 
til  it  they  did  give  some  sum  for  prospective  profits.     I  will 


^|i 


!i> 


M 


5(U( 


(Mr.  Dickinson's  Oponing  Argument.) 

show  that  they  did  not  when  I  come  to  tJio  argument  and 
the  analysis  of  tlie  proceedings. 

But  now,  may  it  please  your  Honors,  in  dose  connectidii 
and  in  relation  to  the  national  questions  as  apart  from 
tho.se  involving  private  rights  and  the  status  of  indiviil 
uals,  I  come  to  that  part  of  the  argument  of  my  Icarnt'd 
friend,  Sir  Charles  Hihhert  Tupper,  where  he  takes  upaiul 
lopresenls  with  singular  force  a  defence  of  statesmen  of  tin- 
United  States  again.st  the  position  of  the  counsel  of  tln' 
United  States  before  this  trinunal  on  Right  of  Soarcli;  he 
has  taken  as  his  text  for  a  da}',  or  a  day  and  a  half,  tiiis. 
from  the  printed  argument  of  the  United  States  ht'foro 
your  Honors  at  page  81: 

"  Tbe  poBition  of  tUn  Uuited  Staten  here,  as  nlwavH,  may  ii^nin  lie 

"  ro])cateil."  I  roiul  aw  Sir  Charlt's  rend — "  Tlmt  nation  anHcrtH  witlmiil 

"  qualitication,  ami  with  ('ni]iliaHiH,  tlmt  where  tlio  flajj  tluatH  over  u 

"  Hhi])  in  timoof  jtcai-o,  any  other  nation  invades  the  deck  under  it  iil 

20  "  its  peril. 

" 'Ihe  tlag  and  not  the  repistry  should  Ito  prima  facie  evidence  ni 
"  ownersliij).  If  it  Hhould  turn  out,  liowcver,  tluit  tho  Ha)?  does  nut 
"  trulv  re])resent  the  aetuai  owuerHhiji,  there  is  no  ground  fur  reclu- 
•'  niation  on  behalf  of  the  owners  who  turn  ont  to  be  aetuai eitizeus  or 
"  subjects  of  the  nation  so  iuvadiu);  the  ship. 

Now  I  am  sure  that  the  American  Pantheon  is  at  pearo; 
there  is  no  confusion  or  coming  down  from  pedestals  there. 
From  Monroe  down  to  and  including  Cass,  they  camKit 
gainsay  Ihe  proposition  of  the  counsel  of  the  United  Statrs, 

30 because  we  have  in  this  statement  of  the  two  propositions 
quoted  substantially  from  them,  and  from  the  final  coiu  In 
sionof  the  controversy  upon  the  wholequestion  of  the  liglit 
of  search.  The  fault  with  my  learned  friend's  argiinunt. 
if  he  will  permit  me  to  call  it  a  fault— a  fallacy— is,  that, 
owing  to  his  failiue  to  get  access  to  American  docnmt'iits, 
he  has  not  given  your  Honors  the  conclusion  of  the  (|iii's 
tion  between  the  two  goverrmients,  or  the  j>osition  taken 
by  the  United  States,  and  acquiesced  in  and  accepted  liy 
Great  Britain.      The  correspondence  did  not  end  when  the 

40  book  of  William  Beach  Lawrence  ended,  which  was  ;i  com- 
pilation of  some  letters  he  wrote,  pending  the  discus 
sion,  to  a  Khode  Island  newspaper,  as  shown  in  the 
preface.  The  discussion  did  not  end  when  he  had  finislied 
giving  these  contributions  to  the  press.  Mr.  Lawrence's 
contribution  to  the  literature  had  closed  in  1S.58,  the  date 
of  issue  of  his  book  on  "  Visitation  and  Search,"  but  the 
conclusion  of  the  correspondence  and  the  settlement  of  the 
question  occurred  later,  in  l>s.")!>.  Now,  I  am  sure  I  am 
much  obliged  to  my  learned  friend  for  defending  the  W(M  • 

5othies  of  my  country  against  my  ujisapnrehensions  of  their 
positions.  Certainly  the  spirits  of  our  mighty  dead  never 
had  a  n)ore  gallant  defender  than  himself— a  knight  witli 
out  fear  and  without  reproach;  and  nothing  I  have  said, 
or  can  say,  can  detract,  or  will  detract,  from  gainsay  the 
respect  I  have  for  the  learning,  the  honor  and  the  great 
ability  of  the  distinguished  counsel  who  spoke  the  words 
that  iiedid  of  Miuiroe,  Adams,  Webster  and  Cass. 

The  counsel  of  the  United  States  take  off  their  hats  to 
him.     They  have  met  him,  may  it  please  your  Honors,  in 

60 peaceful  tourney  at  Paris,  where  he  led,  and  where  we 
were  unseated  by  the  chaige  which  he  so  magnificentiv 
led. 

Now,  then,  let  us  see  if  in  fact  there  is  any  difference 
in  the  American  position.  The  discussion  of  the  right  to 
search  began  early  in  the  century.     True,  it  began  when 


')«7 

(Mr.  nickinsoti's  ()p»'iiiiig  ArKumeiit.) 

tli.'iu  was  a  Htate  of  war  l)t'twoen  Kiiglaiul  and  France. 
(iieat  Britain  iiad  assi'ited  tlio  li^lit  in  tin\t)  of  war — 
wiii'M  slie  had  an  acknowh^l^ed  right  to  search  a  neutral 
-  Itiit  not  oidy  to  scarcli  oui'  ships  on  tht>  high  seas,  but 
aUi)  to  taiitf  allt'gt'd  British  snhJLH^ts,  who  h;id  i)i'C'onio  also 
( itizt'ns  of  tile  I'nited  States,  from  tliese  siiips.  Tin;  feel- 
iii;;  engendered  at  tliat  time  was  followed  hy  the  discus- 

iQsiiiM  for  the  first  time  of  the  right  to  search.  That  led  to 
w.ir.  The  discussion  was  again  taken  up  in  isis,  when 
MiHiroe  was  President — when  Mr.  Hush  was  American 
Miiiisttr— hnt  in  time  of  peace,  and  the  American  tJovern- 
im'iit  took  this  attitude: -We  cannot  admit  the  right  to 
St  an  h  in  time  of  pejice.  The  reasons  given  were  these:  — 
Till'  /■/'////  of  search  in  time  of  war  includes  the  foifeiture 
III  the  ship  that  resists  the  right.  As  fiOrd  Stowell  said, 
•  it  is  a  wild  conceit  ihiit  there  can  he  lawful  resistance 
til  the  exercise  of  :i  right."  so  that  it  is  generally  acqui- 

iQixfd  in  hy  the  world  and  there  is  no  (piestion  about  it 
whatever.  'J'he  rigiit  to  search,  admitting  the  for- 
t'litureof  the  ship  that  resists  the  search,  is  involved. 
I'.iit  the  light  to  search  contended  for  by  (treat  Britain  in 
lime  of  |)eace  was  ;i  contention  which  tlie  United  States 
cliailinged  then  and  challenged  down  to  near  the  hegin- 
iiiiig  of  the  American  war.  The  right  claimed  was  to 
tiller  an  American  ship  and  ascertain  whether,  first,  she 
was  a  British  ship,  second,  whether  she  was  a  ship  that 
beliinged  to  the  nationality  which  had  given  Great  Britain 

,qH  treaty  right  to  search  its  vessel. 

And  so  it  was  discussed  hack  and  forth  between  the  na- 
tions down  t(.  Webster's  titne,  and  then  Mr.  Webster  took 
liic  identical  position,  and  Mr.  Lawrence,  in  this  1858 
wdik.  has  seen  fit  to  criticise  him  for  the  sake  of  com- 
iiii.'iiding  CJeneial  Cass'  position.  Strange  to  say,  it  was 
Wehster  wlio  instructed  Cass  in  1.S41  as  to  the  American 
pesitiou,  and  in  his  letter  to  Cass  and  the  message  Qf 
I'lesident  Taylor,  prepared  by  Mr.  Webster,  as  Secretary 
(if  State,  took  identically  the  same  position  that  Cass  took 

^o"!  closing  the  discussion  with  Great  Britain  afterwards  in 
is,"i!i.  And  Mr.  Lawrence  broke  into  the  discussion,  and 
timls  fault  with  Mr.  Webster  that  at  the  time  of  the  Ash- 
1)11  rtun  treaty  between  the  countries  he  did  not  insist  upon 
tile  position  subsequently  taken  by  Cass.  Now,  was  there 
a  (li>tinctiou?  Lord  Aberdeen  contended  for  the  right  in 
time  of  peace.  He  in.ade  a  distinction  between  the  visita- 
limi  and  search,  but  Lord  Palmerston,  in  clear,  clean  cut 
leniis,  laid  down  the  proposition  that  Great  Britain  had 
tlif  riglit  to  search  shij)s  in  times  of  i)eace,  with  all  that 

;otliat  implies.  Of  course,  if  the  light  existed,  there  could 
be  no  remedy  if  a  mistake  was  made.  If  the  right  ex- 
isted, taking  the  analogy  from  the  right  as  ad- 
mitted in  time  of  war,  t'.c;  ship  that  resisted  even  in 
limes  of  peace  was  forfeited.  But  the  United  States 
iit'ver  took  any  other  position  than  that  if  it 
were  actually  an  American  ship,  flying  the  American 
tliig.  Great  Britain  invaded  the  ship  under  that  flag 
ill  time  of  peace  at  her  peril.  But  if  in  that  case  it 
s^liould  turn  out  to  be  a  British  ship,  no  damage  could   be 

6oie(overed.  If  the  ship  was  imjjropeily  wearing  the 
American  flag,  then  the  question  was  settled  in  favor  of 
(ii eat  Britain's  undoubted  right  to  demonstrate  that  the 
sliip  was  actually  a  British  vessel.  If  it  should  turn  out, 
111 iw ever,  that  the  ship  was  an  American  ship,  having  the 
ri^lit  to  use  the  flag,  then  the  American  contention  was 


'4' 


It 


W^r- 


r.tis 


(Mr.  DickiiiMon's  Opi'iiinn  .\i>?iiln»>iit.') 

ami  nl\vay»  lias  )i*m>ii  that  tlio  (itliccr  invailing  tli<<  slij|i 
iiinst  lie  lii'lil  tn  lu'.  (ih  itiitinw  tivs|iassfr.  and  the  rcclani.i 
tioii  imisl  lit-  lull  as  against  a  trcspasHer  «/»  initio.  |,i| 
nil'  pit'iuisi'  ap'iiii  that  tlu'  I'liitiMl  Slates  never  coiitt'iidcl 
tiiat  simply  liecaiise  a  ship  canieil  the  American  lla^  tii.il 
any  one  who  tonclietl  iier  was  a  tiesjiasser.  We  did  ailinit 
that  if  a  ship  impropeily  can  ie<l   the   American  tla^'.ind 

loactually  was  a  Mritish  ship  theie  was  no  recianiatieii 
a^^ainst  (ireal  Ifritain  for  taking  the  ship. 

Take  this  ilhistratinn  as  one  made  l>y  the  authnrilie-, 
to  which  1  am  ahoiit  to  advert.  An  olTicer  of  the  law  has 
a  civil  warrant  for  the  arrest  of  John  Doe.  No  omi' 
will  dis|inte  the  proposition,  1  suppose-  I  thouj^ht  inv 
learned  friends  were  ninwa  to  for  a  while- that  iiinxul 
other  nations  the  United  States  has  the  rifiht  to  ti.ke  her 
own  ships  on  the  high  seas.  The  oHicer  of  tlu*  law 
to  continue  the  ilhistiation  -has  a  rtipias  for  John  Doc. 

20  lie  finds  a  man  who  does  not  at  the  time  look  like  .loliti 
Doe  hut    has   taken    to   himself  all  the  insignia  of   idcn 
lityof  Uichard  Hoe.     The  officer  sees  the  insignia  of  the 
identity  of  Hich.ird   Roe  hut  snspects  that  this  is  Jolin 
thesam(>  (dd  John.     And  the  oHicer  says,  What  shall  I  do 
if  I  take  him  and  he  turns  out  to  lu;  IJichard  K'oo.     I  am  a 
tres|)asser  and  liable  to  the  fullest  measuio  of  damages  for 
false  imprisonment-  hecause  my   warrant  does  not  pro 
tect   me.     Kichard    l^oc,  is   suirounded   hy  guarantees  of 
the  fundamental  law.     He  cannot  he  touched  without  due 

30 process  of  law  against  him.  Kvery  Ameri(an  who  goes  to 
school  learns  that  early.  So  I  cannot  take  liicliard  h'oe 
without  vitdating  the  very  fundamental  law  of  private 
rights  for  wlm-li  1  will  lie  responsible  and  mulcted  in 
damages.  Ho  takes  him,  however,  and  the  man  turns  out 
to  he  Kichard  l^)e.  The  otiicer  is  mulcted  in  damajies. 
But  if  he  turns  out  to  he  John  Do(>  the  man  mentioned 
— ho  does  not  get  away,  because  he  had  the  signs  n| 
identity  of  l^ichard  Hoe.  No  //((/xf/.scoryxf.s  will  put  him 
back.     He  is  John  Doe  and  the  officer  has  him.     That  is 

40,jn6t  the  principle  which  the  United  States  constantly  aj)- 
plie<l  in  the  whole  discussion  of  tlu;  light  to  search.  If 
the  ship  turned  out  to  be  a  British  ship,  notwithstanding 
tin;  ship  "  John  Doe  "  had  the  su|)erticial  insignia  of  tlie 
"Hichari'  Hoe,"  an  American  ship,  then  no  redamalidM 
could  be  nu.de  against  (iroat  Britain  because  sli(>  iiad 
take;*  her  mv n  ship  and  the  ship  "Jtdni  Doe  "could  not 
claim  oi)  Ui*:  ground  that  she  was  carrying  the  American 
flag— if  >.ii;  actually  turned  out  to  be  a  British  ship  -or 
becausi'  she  was  caii'ying  the  iirsignia  of  the  good  ship 

50  "Hit  hard  Hoe"  with  an  American  flag  that  the  owner  of 
the  "John  Doe  "  should  have  damages.  Now,  1  stated, 
and  let  me  I'opeat  it,  that  this  is  pivcisely  the  doctrine  of 
Munroe.  Wtdistei-,  Adams  and  Cass,  and  was  finally  setlird 
as  the  true  doctrine.  Wo  will  carry  the  high  L'onrriris 
sioners  a  little  beyorrd  the  jteriod  at  which  my  friend 
dosed  tire  coirespondonco,  and  then  see  whether  in  the 
ideirtical  language  used  by  the  coun.sel  for  the  United 
States  just  (juoted  fr-om  our  argunront  which  has  lietii 
lead  by  my  friend,  and  by  me,  the  Counsel  for  the  United 

6oytates  has  departed  an  iota  from  the  American  positioir. 
The  Comrrrissionor  on  the  part  of  the  United  States:  — 
Give  me  the  page  at  which   you  read  the  language  frdiii 
your  brief. 

Mr.  Dickinson:— Page  81   and  on   the  top  of  page  »J. 
The  answer  of   the  learned   counsel  on  the  other  side  was 


(Mr.  Dickinson's  Opening  Argutnont.) 

till'  n-adinn  from  Liiwir'nco's  visitation  find  hciuoIi  tliiit 
till'  tla^  is  not  only  i>riiiiii fticic  rvidoiicfof  nationality  hut 
i~  riinclnsive.  F,a wrcniodid  not  (jiiito assnim?  to  say  tliat, 
lull  li*<  did  <|tiot*>  it  t'roin  Ifantt't'iiillo  and  Maut*>t°niilo  also 
Ml  ill  of  till'  riglit  of  search  existing  in  time  of  war  tliut 
the  flag  in  tinio  of  war  slionid  ho  conclnsivt' fvidfni'o  of 
iiurii'isliip,  and  ho  tit'w   in  tli»?  faces  of  ail   piililicists  of 

iolii>  time,  lM>for«'  his  linio,  ami  since  his  time.  I  have  a 
limitation  from  llantefnillu  and  will  show  that  he  apiilied 
liJH  diiitrine  also  to  a  state  of  war. 

Nnw,  we  will  take  tirst  Mr.  VVehster's  jjosition,  ';g- 
cause  I  want  to  vindicate  Mr.  Wehstei-  as  \  go  along,  on 
llie  gmund  that  I  do  not  think  that  he  has  heen  siiffi- 
rii'Mtly  vindicated  hy  Her  Majestj's  counsel.  He  in- 
structed Cass,  when  in  Paris  in  1S41,  and  there  was  an 
(■nort  hy  Cass,  no  doubt,  to  defeat  the  Kiendi  treaty 
Willi    (iieat    Britain,  which  did  fail.     Cass  acted  directly 

joiuiihr  instructions  from  Wehster.  This  is  Wehster's 
liii^ition.  I  will  read  fr<im  Section  ;?27  of  ;!rd  Wharton's 
lnlernalii>nal  l-aw  Digest,  at  the  hottom  of  page  142. 
\\  (lister  was  then  Secretary  of  State.  I  (piote  this  from 
Welister,  and  as  your  Honors  will  see  that  later  on  it  ap- 
peai's  in  cori'cspondenct?  with  Cass  which  finally  adjusted 
tli(  ma»i'.r:— 

••'I'lic  ntiiioKt  li'iiRtli  to  wliicli  tlio  I'xt'ri'isc  of  thiw  riKlit  (st'iircli)  on 
llif  liit,'li  Hi'fts  liiiH  cvor  lii'cii  ciirrii'il  in  runpt'ct  to  the  vchmcIs  of  luiother 
naliciii  liiiH  Ih'cii  to  juMtify  sciziiiK  tlii'iii  within  the  tiTritoriiil  jurisilic- 
;Otiiin  iif  tilt'  Htiiti'  aniiinst  wIiohc  InwH  tlioy  otToinl,  ami  ])iirsuinn  tliiMu 
ih  i'a-<i'  "f  IliKlit  lioyonil  thnt  limit,  arrcHtinn  tlit-ni  on  tlio  oct'iin,  anil 
liiiiif,'in},' tlii'ni  in  for  ailjuilicatiou  bofon'  the  trilmnalH  of  tliat  State. 
I'liis,  liowi'viT,  snjjtJt'Kts  tlu>  Sniircnii'  Court  of  the  United  Htatt'H  iu 
tlir  ciisi'  licforc  (|Uoti'il  of  till'  "  ^farianna  Flora,"  lian  never  lieeu  snp- 
|i(iseil  to  draw  after  it  any  riglit  of  visitation  or  seareli.  The  |uuty  in 
siieli  ciiHe  HeizeH  at  liiH  i)eril.  If  ho  establiHhos  the  forleiture  he  is 
iiistil'led." 

•  Tills  is  not  poeuliarly  an  American  doetriue;  it  has  the  sanction  of 
tlie  soundest  expositors  of  international  law.  Upon  the  ocean  in  time 
(if  piare,  that  is,  among  nations  not  in  war,  all  ore  entirely  eciual." 

40  .Now,  while  Kent,  as  shown  hy  riiilliuiore,  admitted  the 
litilit  nf  visitation  or  approach  as  it  was  called,  to  ascer- 
tain tile  national  character  of  a  vessel--that  it  was  a  ship 
of  the  ii.ition  of  which  it  floated  the  flag- in  a  suhseipient 
discussion  of  the  matter,  (Jreat  Hritain  acceded  to  the 
.\iiieiicaii  position,  that  the  use  of  the  term  visitation  in- 
stoail  of  search  was  a  distinction  without  a  ditl'eience. 
lintli  amounted  to  the  same  thing  and  finally  it  was  con- 
(•(■lied  that  they  resulted  in  the  same  thing  in  the  end. 
I  now  take  up  the  contention    in   the  correspondence 

;otipon  which  my  friend  rests  his  argument.  And  tirst  I 
will  lead  the  letter  of  General  Cass,  which  stated  the  posi- 
tinii  of  the  United  States,  the  somewhat  famous  h  tter  of 
April  10.  1.S58.  which  he  did  read,  and  which  I  read,  not 
frniii  the  British  Blue  Book  which  my  friend  cited  hut 
tiom  ,')()  British  and  Foreign  State  Papers,  at  page  715. 
After  discussing  the  whole  question  General  Cass  states: — 

"  The  immunity  of  their  merchant  vessels  depends  upon 
"  the  lights  of  the  United  States  as  one  of  the  independ- 
60"  cut  powers  of  the  world,  and  not  upon  the  purposes  or 
"  motives  of  the  foreign  ofllii  ers  hy  whom  it  is  violated. 
"  A  merchant  vessel  u|)on  the  high  seas  is  protected  by 
"  lier  national  character.  He  who  forcibly  enters  her, 
"  does  so  upon  his  own  responsibility.  Undoubtedly,  if  a 
■  I'essel  assume  a  national  character  to  which  she  is  not 


i 


.,  11 


i!.:. 


H 


¥ 


ii\' 


'   „  ,!i   .'i 

■l^'l 

: 

,.>f' 

■ 

L 

57»i 

(Mr.  Dick-'-POii's  Opening  Argument.) 

"  entitle<1,  and  is  sailing  nnder  false  colors,  she  cainiol  In 
"  protected  by  the  assvitintion  of  a  nationality  to  which 
"  a'i«?  has  no  claim.  As  the  identity  of  a  person  must  he 
"  determined  t»y  the  officer  bearing  a  process  for  his  arrcsl. 
"  and  determined  at  the  risk  of  such  officer,  so  mnst  tin- 
'"  national  identity  of  a  vessel  be  determined  at  a  like  liit\ 
"  ard  to  him,  who,  doubtiiitj  the  Jlag  she  displays,  searclus 

lo"  her  toascerl((in  her  true  character.  There  no  donbt  nui// 
"  be  circnmstances  which  would  go  far  to  modify  the  ami- 
^^  plaints  a  nation  would  hare  a  right  to  make  for  SKch  a 
"  violation  of  itssorereignty.  If  the  lioarding  officer  Inul 
"  Just  grounds  for  susj)icion  and  deported  himself  irilli 
"propriety  in  /he  performance  of  his  task,  doing  no  in- 
"  j'f'y,  and  peaceably  retiring  when  s<disfied  of  his  crmr, 
"  no  nation  would  make  such  an  act  the  sutijcct  of  serioii.'^ 
"  reclamation.  It  is  one  thing  to  do  a  deed  avowedly  iUv- 
"  gal,  and  excuse  it  by  the  attending  circnmstances;  anil 

20  "  //  is  another  and  (ptite  a  different  thing  to  claim  a  right  oi' 
"  action  and  the  right  (dso  of  determining  when  and  hoir 
"  and  to  what  extent  it  shall  be  e.rercised.  And  this  is  no 
"  barren  distinction,  so  far  as  llic  interest  of  this  cnuntrv  is 
"  involved,  hut  it  is  closely  connected  with  an  objeit  (iciu 
"  to  American  people— tiie  freedom  of  their  citizens  u\){>\\ 
"  tile  great  highway  of  tiie  world.     *     *     * 

"  Sliould  this  claim  of  visitation  become  a  part  of  the 
"  law  of  nations,  it  would  enable  a  boarding  ohicer  in  :ili 
"  times  iiereafter,  during  both  iience  and  war,  as  claimed 

30  "  and  done  before  tln^  time  of  the  war,  forcibly  to  tiil^c 
"  the  citizens  of  another  power  from  its  own  vessel,  lor 
"  the  purpose  of  serving  in  the  {British  navy." 

That  reference  to  the  inipressing  of  seamen  found  its 
way  alltliroiigh  the  discussion;  that  was  the  practical  result 
of  the  right  to  search  in  time  of  war  and  is  a  »iuestieu 
foreign  to  thei)resent  enquiry.  Now,  this  is  Ifei-  Majeslys 
Government  in  reply  upon  the  distinction  1  have  adveitrd 
to.  1  refer  to  the  same  volume  ir)(i  liritish  For.  &  SI. 
Papers),  7;{M,  Earl  Malmsbury  to  Lord  Napier: 

'^  "  Her  Majesty'H  flovernnicut  reooj^uizo  ns  souutl  thoso  priuoipli's 
of  iuteriiatiunul  liiw  wliicli  have  bocu  liiid  down  by  (IputTiil  Cas.s  in 
lii»  note  of  tlu'  lOtli  of  April  to  vour  LonlHliip,  ])rim'ii)lt'S  wliicli  lie 
supports  liv  till'  autliority  of  Ijoril  Stowcll  luiil  tlu>  Duko  of  ^\'i>llinj,' 
tou,  uutl  ricr  MajcHtv'i*  (iovoriinioiit  ari>  alHO  &\varo  tliat  iiotliiut?  iu 
their  treaty  of  IHi'Z  witli  the  United  Htatew  superscdeH  tliat  law." 

And  here  is  where  the  Hritish  Minister  differs  from 
former  .statesmen  of  Cireat  Britain.  I  read  now  the  hist 
paragraph  on  page  Tlis: 

"  (Icucrnl  CaHH  oliservew  that  'a  niereliant  vchhpI  upon  tln'  lii^rli 
50  "  Heah  i»  proteeted  liy  her  national  eharaoter.  Ho  who  foirilily 
"  enters  her  does  bo  upon  his  own  re»ponHil)ility.  Undouhtedly,  if 
"  a  veHsel  BHBunieK  a  national  character  to  which  who  in  not  cii- 
"  titled,  and  ia  saili  '  under  false  colors,  siie  cannot  he  proti  ti'il 
"  V)y  this  assumption  of  the  nationality  to  which  she  hjis  iin 
"  claim.'  " 


10' 


And  so  on,  (juoling  what  1  have  heretofore  read  fmm 
General  Cass  and  conchaling  as  follows: 

"  Her  Majesty's  (iovernment  agree  entirely  in  this  view  of  the  cii»i', 
and  the  iiuestiou  therefore  l)ecomes  one  solelv  of  discretion  on  tlic 
T)©  I'lrt  of  the  a<'tirig  ollicer.  It  appears  to  Her  fliajesty's  (loveruniciit 
that  it  is  one  extremely  dangerous  to  entrust  and  onerous  to  hear;  ami 
that  an  exact  definition  of  what  each  res])ective  state  would  permit 
for  verifying  nationality,  and  therehy  securing  general  trade  against 
piracy,  should  he  agreed  \ipon  hetweou  (ireat  liritaiu  and  the  Unitiil 
States  and  clearly  umliudied  iu  their  instructions  of  their  naval  cimi 
manders. " 


tor 


iSsf 


10 


:o 


;o 


571 

(Mr.  J)ickiiis(tii\s  Opoiiiiig  Argument.) 

Now  then  we  come  down  to  the  resumption  of  the  cor- 
i(S|Hiii(len('e  between  the  {rovermnents.  At  p;i}:;e  V4!), 
s.uiic  vohnni',  li'tter  Lord  Mahiishuiy  to  Napier,  dated 
,lulv  •_';!,  lHr).s,  we  find  as  follows: 

•  1  also  lioiird  witli  iiloiisuri"  that  (Iciioriil  C'hmh  wivh  jiropiirpd  ttnil 
williMH  to  roci'iviv  and  coiiHiilt'i'  aiiv  HUjJKOstioiis  on  Hie  \n\rt  of  Hor 
Maj.'^^tv'H  (iovorunioiit  wliicli  ini(,'lit  scciiri)  a  iJi'opcr  voritication  of  the 
lliif  ii-'Kuiui'd  l)y  iiK'rcliant  vi'sscls,  witlio\it  iiitcrniptiiiK  comiiu'rco  or 
wiiumtinp;  th<>  national  HUwi'i'ptiliilitii'H  of  niaritiino  states." 

And  so  the  correspondenee  wvut  on,  Cass  disclaiming  to 
h;ivt'  an}'  iiUthoiily  to  enttM'  upon  any  treaty  hut  willing 
to  restate  the  position  of  the  United  States.  Now,  Gen- 
(>i,il  Cass  is  ftnnislu'd  the  instructions  about  to  bt!  issued 
to  Coninianders  of  Hritisli  eruisors  on  the  L'd  April,  IS5!), 
sliou  ing  the  attitude  of  the  Mritish  (iovtMiiuient.  Tiie  iu- 
sliuctions  are  at  pagf  7s;i,  and  you  will  see  at  page  7H2 
tiial  they  were  furnished  to  (lOiieral  Cass  by  (j reat  Brit- 
am.     This  is  one  of  the  instiuctions  to  tlu;  Hritish  Navy: — 

•■.").  Inmu'tliiitcly  tlmt  tlio  coIofh  arc  hoisted  and  tlnit  tli»i  merchant 
vissil  lias  m  tliis  nuinner  announced  lier  nationality  tiie  forei^jn  vessel 
of  W!ir  can  no  lonjjer  pretend  to  exercise  a  control  over  her.  At  most, 
ill  ciTtain  cases,  .she  may  claim  the  ri^ht  to  speak  with  her,  and  de- 
iiiiuiil  answers  to  ipiestions  addressed  to  her  hy  ii  s])eakinn;  trumpet  or 
otherwise,  but  without  ol)li(j;ing  her  to  alter  her  course.  W/ien,  /inir- 
fcr'c,  ///('  i>n'!<iimi>tiiin  i>/  iiiiliiiiKililii  ri'sn/liiii/  /rum  tlin  tolom  ii'/iich  miiy 
li'ira  lii'fii  xlioini  In/  u  mertluiiil  ri'>isel  iiini/  /ii-  si:ri()n:i/i/  llinnrn  in  ttoithi,  or 
ill'  ijiif.itiiiniililf  /rani  jiosiliri'  hifuniiiiliiin,  iir  frinii  iiithaidniis  of  ii  iiiHure 
III  civiili'  11  lii'/if/'  lliiil  tlic  ri'.s.s'W  t/"ft<  not  lie/oni/  to  llie  ikiHhii  ic/iiinti  coliirs  she 
Im^  iis^uiiii'il,  ilii'  fiifi'iiiii  ri'swl  iif  irnr  iiiui/  huri;  recoil  rat'  to  Iho  rerificiition 
III'  lirr  imsiitiifd  initiiiiiutiti/. 

(),  .\  hoat  may  bo  detaeliod  for  this  purpose  towards  the  suspected 
vessel,  aftia-  having  tirst  hailed  her  to  (^ivc  notice  of  the  intention. 
Tlie  verification  will  consist  in  an  examination  of  the  jiapers,  establisL- 
iiif,'  tlie  nationality  of  the  vessel — nothing  can  Vie  claimed  beyond  tho 
t'xliihilion  of  these  documents. 

7.  'I'o  eminire  into  the  nature  of  tho  cargo,  or  the  commercial  ojiera- 
tioiis  of  a  vessel,  or  any  other  fact  in  short  I/kiii  tlntt  of  tim  mitioun/iti/  of 
ilif  rfusfl  IS  pnihiliited.  Every  other  search,  and  every  inspection  what- 
ever is  absolutely  forbidden.     *     »     * 

1(1.  In  every  case  it  is  to  be  clearly  understood  that  the  captain  of  a 
»liip  of  war  wlio  determines  to  board  a  merchant  vessel  must  do  so  at 
''  liis  (iwu  risk  and  peril,  and  must  reinvin  responsible  for  all  the  couse- 
iliieiices  which  mav  result  from  his  own  act.     *     *     » 

In  all  cases  in  wl'ii'h  this  eui|uiry  shall  not  be  justified  by  obviouB 
ri'iisous,  -.ir  slii',11  ui.  have  lieon  mr.dc  in  u  proper  manner  a  claim  may 
iirisc  for  indemnity." 

So  that,  you  see,  after  the  correspondence  had.  been 
closed,  as  my  learned  friend  thiidvs,  the  rigid,  to  search  be- 
in^' denied  for  all  purposes,  they  still  reserved  the  question 
,is  lo  how  to  detei  tnine  ntitionality,  and  (ireat  liiifain  ia 
instil  (ting  lier  naval  orticeis  to  ])roceed  in  case  of  sus- 

'i^liicioii  anil  ascertain  wliat  nation  owns  the  ship. 

Iiiit  I  iini  coining  to  the  identical  language  of  my  brief, 
inav  it  please  your  Honois.  That  was  funnshed  !<>  (Jen- 
eial  Cass,  ;uid  it  was  also  fmiiished  to  France.  On  May 
IJ,  isrilt,  tJeiieral  Cass,  in  writing  to  Lord  l^yons,  takes  this 
position  for  the  United  States.  It  is  to  be  regretted  that 
.Ml.  I  awn'iice could  not  have  had  thecontiinied  correspond- 
eiuo  before  he  issued  his  volume.  I  read  now  from  page 
T'.'o  of  Foreign  and  State  Papers,  volume  50,  referring  to 
tlie  I'>riti8h  draft  of  instructions,  and  General  Cass  says 

'"'May  12,  KSnit):— 

"  .\b  stated  in  tho  draft  furnished  by  Lord  Napier,  'No  merchant 
vi'>sil  navigating  the  high  seas  is  subject  to  any  foreign  jurisdiction. 
.•\  \  e.'.Hel  of  war  '  '.uuot  '  .erefore  visit,  detuiu,  arrest  or  seize  (except 
1111.1.  r  treaty)  un  merchant  vesHcl  not  recognized  as  belonging  to  her 
"VMi  uatiou.'    And  as  a  necessary   conBeipionco  from   this  rule,  it  is 


If!' 


,:| 


«*'.* 


jfl! 


T      |1' 


572 


(Mr.  Dickinson's  Opening  Arf^uinent.) 

added  in  tbo  Rame  draft  that  '  in  every  case  it  is  clearly  to  bo  undor- 
Htood  that  the  vessel  of  war  which  determines  to  board  a  mercliuut 
vessel  must  do  so  at  her  own  risk  and  peril,  and  must  remain  reK))ou- 
sible  for  all  the  oonseijuences  which  may  result  from  her  own  act. ' 

"  These  extracts,  which  fix  the  responsibility  of  every  Governmoiit 
whose  officers  interrupt  the  voyage  of  a  merchant  vessel  upon  tliu 
ocean,  suRgeat  very  strongly  the  adoption  by  each  Government  of  such 
instructions  to  its  own  officers  as  will  tend  to  make  them  appreciiile 
this  responsibility  and  lead  them  to  observe  great  caution  in  acting 
'*-*  upon  their  suspicions  against  such  u  vessel.  The  same  extracts  sup- 
ply  a  very  just  limitation,  also,  in  respect  to  the  cases  to  which  the  in- 
structions can,  under  any  circumstances,  apply. 

"Leaving  out  of  view  the  crime  of  piracy,  which,  bapjuly,  is  ikiw 
seldom  committed,  the  only  instance  (except  under  treaty)  in  which  ii 
ship  of  war  may  be  excused  in  visiting,  detaining,  arresting  or  seizing 
any  merchant  vessel  bearing  a  foreign  Hag,  /.>:  when  fiicli  re^sel  in,  ft,,- 
goal  '1)1(1  sufficient  reiixons,  leiieretl  to  f)el(,in/,  in  /art,  to  the  coitiilri/  oj  the 
risiling  slii/i." 

Tlieie,  yon  see.  (ieneijil  Ca.ss  has  given  it  all  away 
again.     There  is,  then,  a  right  of  seaicli,   and  seizure  if 

-°lhe  suspicions  are  valui  tliat  the  vessel  that  flies  a  fun-ii;n 
flag  actuall}' helongs  to  the  seizing  nation.  Lewi."  r 
the  crime  of  |)iracy.  putting  that  aside,  tiie.e  'n  v^;;- 
stance  then  in  which  a  ship  of  war  may  l)e  i.:,<  j-.vJ  ii 
visiting,  detaining,  arresting,  and  seizing  an  ,•  ;iinivii;uit 
vessel  hearing  a  foreign  flag,  when  such  vessels  have  suf- 
flcieiit  reasons  for  helieving  it  helongs  in  fact  to  the  coun- 
try of  the  visiting  ship.  So  it  was  not  settled  hy  tliecidso 
of  tht  correspondence  in  ]s,5s.  And,  some  v^ay  or  ()tli,>r. 
I  retnend)ered  when  I  wrote  that  statement  in  our  brief 

3°that  the  seizing  ship,  when  the  flag  floated  over  a  deck, 
seized  at  her  peril,  and  I  put  it  in  my  brief  as  the  result  of 
my  information  as  to  the  conclnsion  upon  tlie  right  of 
search.  And  I  remeraheied  also  that  the  reservation  niadi^ 
that  a  cruiser  could  go  upon  a  ship  on  probable  cause,  and 
if  it  turned  out,  whatever  the  flag  or  register,  that  it  was 
a  ship  of  tile  seizing  ct)untry,  there  could  be  no  reclamation 
for  the  seizure,  and  the  United  States  nevei' contended  for 
a  moment  for  any  other  principle. 

Cieneial  Cass  goes  on: — 
40 

"  A  slaver  cannot  be  detained  l)y  a  foreigu  vessel  because  it  i.s  11 
slaver,  unless  the  right  of  detention  in  such  a  case  has  been  coniVrrcil 
by  the  Oovernmeut  to  wliidi  the  foreign  vessel  belongs.  Except  so 
far  us  it  may  liave  |)arted  with  it  by  treaty,  every  nation  has  tl'c  ex- 
clusive care  of  its  own  Hag  upon  the  liigli  seas. 

The  responsibility  of  each  (iovernnieiit  for  its  respective  oHiccrs  .■ 
thus  very  mucli  limited  by  the  comparatively  small  nnnil)er  of  case;, 
ill  whii'h  the  detention  of  a  merchant  vessel  can  under  any  eiivuui- 
stances  occur." 

Again,  in  the  last  luiragrapb,  page  T!U,  he  says: — 

50  •' Tht>  liberty  of  approacli  under  sueh  circiimstauees  has  been  dis- 
tinctly artlrnied  liy  tlie  Siipri'iae  Court  of  the  United  States.  lu  the 
case  of  the  "  Mariana  Flora"  (XI.  NVheatou,  Ii.  I.),  the  law  was  hiul 
down  as  follows  : 

'  Merchant  ships  are  in  the  coustaut  habit  of  apjiroaching  eacii  (itiicr 
on  the  ocean,  eitlier  to  reliev  tlieir  own  distress,  to  procure  infoimn- 
tion,  or  to  ascertain  tlie  charaeti'r  of  strangers  ;  and  hitherto  tlierc  hii-' 
never  been  su)>piised  ill  such   cdnduet   any  breacii  of  the  customii' 
observances,  or  of  the  strict(>st  |)riiiciples  <if  the  Law  of  Nations. 

'  In  res])eet  of  ships  of  war  sailing,  as  in  tlu^  [ircsent  case,  under  the 
authority  of  their  (iovernnient,  to  arrest  Jiirate:  and  other  )mblic  nf- 
fendors,  there  is  no  reason  why  they  may  not  approach  any  vessels 

< 'O  di'scrie<l  at  sea,  for  the  purpose  of  a  .taiuing  tluir  real  chanul'is. 
Such  a  right  seeiiis  indispensable  f<.  '  dc  fair  una  •!is<'reet  exercise  cf 
their  authority,  and  the  use  of  it  c,  inut  be  just'.v  dicnied  inilicalivc 
iif  any  design  to  insult  or  injure  tl use  Mieyn]  H"  h,  or  to  iiiipcilc 
them  ill  tlicir  lawful  eoninierci-.  'V  the  otlie  •  !.  aul,  't  is  as  clear  that 
no  vessel  is,  under  the  eireunistance..,  bouini  to  lie  by  or  wait  the  ap- 
proach of  any  other  ship. '  " 


lOi'' 


40 


r.ra 

(Mr.  Dickinson's  Opening  Argument.) 

Tliat  was  laid  down  by  the  Supreme  Court.  We  have 
sKii  that  case  distinj^uished  l)etween  case.s  of  piracy  and 
oilu'i-  instances  in  which  it  may  be  done.     Secretary  Cass 

gdi'S  on: 

•  Ordinarily,  the  above  observation  of  any  mej'ohant-vessol  will  very 
well  i)omt  out  its  national  character.  There  are  niinierouH  indications 
wliuh.  to  the  i)ra('tisod  eye  of  a  seaman,  furnish  conclusive  evidence 
10 ().  .Iiix  subject.  Should  a  further  examination  in  any  case  be  thouj^ht 
justitiable,  it  is  difHoult  to  perceive  how  this  is  to  be  accomplished 
a^'.iiiist  the  will  of  a  susi)ected  vessel  by  any  peaceful  mode.  For 
sucli  a  case  it  is  hardly  practicable  to  make  regulations  in  advance. 

Tlic  I'ules  which  prevail  in  time  of  war  to  prevent  conflicts  between 
iiiutials  and  allies,  and  belligerents,  and  even  between  armed  vessels 
of  the  same  nation,  are  not  properly  applicalde  to  a  state  of  reace;  and 
even- 0  ise  of  the  kind  referred  to  mav,  perhaps,  be  left  most  wisely 
t(i  111'  determined  by  its  own  peculiar  circumstances,  under  the  general 
]ii(ivisious  of  the  law  of  nations." 

Now,  tliis  having  been  furnished  to  Great  Britain,  Gen- 
20ii;il  Cass  was  invited  to  send  a  communication  to  France, 
ami  \h'  did  so,  lurnishing  Great  Britain  a  copy  of  the  com- 
munication which  is  puldished  in  the  same  volume.  He 
wrote  to  Count  Sartiges  on  January  ^otli,  isr)!»,  a  letter 
wiiiili  will  he  found  in  the  same  volume,  at  page  703,  in 
which  lie  says: 

"France,  like  the  United  States,  recognizes  no  right  of  search  or 
visit  upon  the  high  seas,  except  in  time  of  war.  France,  like  the 
United  States,  holds,  in  the  language  of  your  memorandum,  that  'an 
nrmt'd  vessel  cannot  visit,  detain,  arrest  or  seize  any  but  such  mer- 

,ii(liiiut-vessels  as  it  ascertains  to  belong  to  the  same  nation  to  which 

"^  ilir  iirmed  vessel  itself  belongs.'  France,  like  the  United  States,  holds 
fiirthor,  that  while  cases  may  exist  of  a  fraudulent  assumption  of  a 
ll;i'-,'.  the  verification  of  su3h  a  case  must  be  made  at  the  peril  of  the 
jiiirty  iiirtking  it,  or,  in  the  words  of  your  memorandum,  '  under  all 
ciriuinstauces  it  is  well  understood  that  the  armed  vessel  that  may 
(Icteniiiui'  to  board  a  foreign  merchant-vessel,  does  so  in  every  instance 
lit  its  own  risk  and  peril,  and  stands  responsible  for  all  the  couse- 
i|niMici's  which  may  follow  the  act.' 

While  thus  recognizing  the  immunity  of  merchant  vessels  on  the 
iH'i'iin,  and  the  grave  responsibility  which  is  assumed  by  a  ship  of 
war  when  she  boards  a  foreign  ship  in  order  to  verify  its  Hag,  your 
mi'iiHiraiiduin  suggests  some  interesting  views  in  respect  to  the  cau- 
tion with  which  such  a  verification  should  be  pursued,  and  such  a  rc- 
s|iiinsibility  exercised. 

I  do  not  understand  that  the  French  Government  desires  to  limit 
this  respousihility,  or  to  change  in  any  way  that  rule  of  international 
law  liy  which  in  time  of  peace  an  honest  luerchautmr.u  is  protected  on 
tlic  ocean  from  any  visit,  detention,  or  search  wliatever.  Undoubtedly 
II  sliip  of  war  may  sometimes  find  a  foreign  merchant  vessel  so  siir- 
rnmided  by  stispicious  circumstances  as  to  induce  the  belief  that  she 
is  sailing  under  false  colors;  and  in  sudi  a  case  the  ship  of  war  may 
tliink  it  right  to  adojit  some  proper  measures  to  verify  the  s\ispected 
Hag.  //'  N/Kiii  iiii/iiirit  ils  siis/)ici(iiis  itri'  reiilizrti,  no  one  liiix  (iiiii  rii/hl  Id 
i-f,-iiiilfiiii.  iint  if  the  suspected  vessel  turns  out  to  be  an  honest  trader, 

'  thi'ii'  call  be  no  doubt  that  a  trespass  has  been  committed  on  her 
riu'lits,  wliich  may  or  may  not  lie  excusable,  according  to  the  peculiar 
ciniuustauces  under  which  it  was  committed. 

riic  burden  of  proof  in  es'orv  such  case  must  necessarily  rest  upon 
tin-  party  committing  the  error,  who  will  be  bound  to  show,  not  only 
thi't  his  sus]iicions  were  reasonably  excited,  but  that  he  exercised  due 
cuitioii  and  care  in  res))ect  to  their  veritication. 

Ill  rcver.se  this  rule  and  throw  the  bunb'ii  of  proof  U])OU  the  sus- 
pi  I'ti'il  i>arty,  or  to  hold  that  a  ship  of  war  can,  under  any  circiim- 
s'.ani'cs,  treat  an  iniioci  i  merchantman  of  a  foreign  nation  as  a  guilty 
vessel,  would  be  attem  ed  with  very  dangerous  consciiueiices,  and  is 

,    Hot.  1  repeat,  what  I  ni.derstand  your  memorandum  to  contemi)late. 

'^0  If  1  rorrectly  understand  tlie  purpose  of  your  goverunu'nt  on  this 
sniijci't,  its  only  desire  is  to  prevent  the  rights  of  merchantnu'u  from 
l"ing  capriciously  interfered  with  by  the  commanders  of  ships  of  war, 
aiiil  to  this  end,  as  far  as  possible,  to  substitute  the  well-considered 
insinutions  of  the  government  for  the  hasty  conclusions  of  its  naval 
"ItiirrH.  There  can  be  uo  doubt  that  this  jirecaution  is  eminently  de- 
siralile,  and  that  every  government  should  take  care  so  to  instruct  its 


40 


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Is- 

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1 

1                                     :                ■     • 

^'    Mi' 
^     Hi 

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rni 


(Mr.  Dickinson's  Opening  Argument.) 

naval  ooninianders  as  to  preveut,  as  far  as  possible,  auy  improper  in 
terfereuce  at  sea  with  the  merchant  ships  of  other  nations.  Such  in- 
structions are  manifestly  necessary,  not  only  with  reference  to  tlii> 
general  interests  of  commerce,  but  also  to  avoid  those  claims  for  re- 
dress which  are  sure  to  arise,  whenever  a  merchant  vessel  of  mu- 
country  is  improi)erly  visited  or  detained  by  a  public  vessel  of  auothir 
country. 

lu  the  general  features  of  these  instructions  it  is  natural  to  8Upi)OKc 
that  the  commercial  nations  of  the  world  will  be  essentially  in  attrcc- 

lOment.  Your  memorandum,  for  example,  suggests  that  when  a  ship  of 
war  ond  merchant  vessel  meet  on  the  high  seas,  the  latter  should  ikjI 
refuse  to  disjday  her  flag,  and  certainly  such  refusal,  in  the  abseuco 
of  any  satisfactory  e.xplanation,  would  be  a  susjucious  circumstaucc. 

Other  suspicious  circumstances  may  exist  at  the  same  time,  whicli 
may  lead  the  Bhij)  of  war  to  jjursue  the  mode  of  veriftcation  pointed 
out  in  your  memorandum;  and  if  the  case  is  one  where  any  veriticn- 
tion  ot  all  is  to  be  jmrsued,  the  measures  for  this  purpose  suggested  iu 
your  memorandum  are  calculoted,  it  seems  to  me,  to  accomplish  the 
object  with  the  least  possible  difficulty.  But  both  France  and  the 
United  States  agree  that  these  measures,  or  any  similar  measures,  can 
onlv  be  em])loyed  at  the  risk  and  peril  of  the  party  using  them,  who 

-Ois  i)ound  to  show,  in  every  case  of  erroneous  suspicion  and  visit, 
Bucb  extenuating  circumstances  as  will  reasonably  satisfy  the  iujured 
party. 

To  determine  in  advance  precisely  what  circumstances  may  be  re- 
garded as  a  sufficient  warrant  for  doubting  the  nationality  of  a  mer- 
chant vessel,  ap]>ears  to  me  quite  impossible;  and  every  case  may  jut- 
haps  be  safely  left  to  be  determined  by  itsidf. 

I  have  thus  stated  the  general  views  of  the  President  upon  the  sub- 
ject of  your  memorandum,  and  I  do  not  make  a  more  detailed  rejily, 
because  I  am  not  quite  sui'e  whether  I  have  correclty  interpreted  the 
views  and  wishes  of  your  Government.  To  agree  upon  any  j)lrtu  of 
verification  which  would  change  the  rule  of  international  law,  nnd 

30  authorize  in  advance  the  commission  of  a  tresi)as8,  is  a  very  dif- 
ferent thing  from  merely  assenting  to  certain  modes  of  proceeding 
aa  being  reasonable  and  jirojier  iu  a  given  case.  The  former  would 
be  as  like  objectionable,  I  am  persuaded,  to  France  and  the  United 
States.  The  latter  would  be  far  less  objectionable,  and,  as  I  hnve 
already  said,  the  precautionary  instructions  of  different  nations  to 
their  naval  commanders  respectively,  would  not  |)robably  be  very  dis- 
similar in  their  general  features. " 

Now  both  in  his  conuiuuiication  to  Lord  Lyons  and  in 
his  comnuuiicatiun  to  France.  General  Cass  ]»roposes.  alter 
a  full  discussion  and  agieenient  by  tlie  Cabinet,  to  giveiu 

"^  structions  to  the  American  naval  commanders,  whidi 
were  furnished,  and  we  will  see  what  position  the 
United  States  then  took.  These  instructions  weie  given  the 
commanders  at  the  close  of  the  discussion,  and  these  were 
furnished  to  Great  Britain  and  are  here.  In  the  first  place, 
there  is  the  circular  to  the  merchant  vessel,  May  '2(!.  IH,")!*, 
page  {t71  of  the  same  volume,  directing  them  to  show 
their  colors  under  all  circumstances.  Here  are  the  in- 
stiuctions  to  the  United  States  navy  furnished  Great  Brit- 
ain as  agieed  upon,  at  page  !t74  of  the  same  volume,  and 

'    sent  by  Geneial  Cass  to  Lord  Lyons,  July  IS,  185!*:— 

"  The  Government  does  not  acknowledge  the  right  in  any  other 
nation  to  visit  and  detain  the  vessels  of  American  citizens  engaged  in 
commerce. 

TheJliKj  which  llie  re.isel  irearn  is  jiriinii  fncie,  allh<i>ir/h  it  is  not  ti  amclu- 
sire  proii/  (>f  /iiiliiiihilili/;  it  is  ii  mere  emblem,  imil  it  loses  its  true  diciritcler 
when  it  is  worn  hif  those  who  hnve  no  right  to  xoenr  it." 

This  is  not  the  action  of  General  Cass  alone,  hut  the 
American  conclusion  upon  the  whole  discussion  of  this 
60  light  of  search,  fought  out  by  diplomats  of  the  two  govern 
ment;:  during  a  half  century  or  more,  and  your  Honors 
see  that  my  learned  friend  has  misconceived  the  spirit  of 
the  discussion,  the  object  of  it,  and  the  position  of  the 
United  States.  And  he  can  see  why  the  American  Val 
halla  need  not  be  tenantless  and  why  when  I  cross  the 


M' 


(Mr.  Dickinson's  Opening  Argnnieiit.) 

borders  to  my  own  country,  the  spirits  of  tiie  mighty  dead 
will  not  meet  me  svitii  reproaches.  Tliis  reads  like  some- 
tliing  that  was  in  my  l)rief,  although  I  did  not  quote  it.  I 
set  it  down  from  mj'  knowledge  of  the  American  position 
upo"  this  question  learned  as  a  school-boy,  as  my  friend 
le.inied  the  history  of  his  great  country  heforeiie  went  out 
int.)  the  highway  of  lite.     My  country  never  took  so  ab- 

jQSunl  a  position  as  that  in  the  assertion  of  its  sovereignty, 
it  cciuld  not  put  its  hand  upon  any  ship  owned  in  the  United 
States  by  any  man  residing  within  its  borders,  whether 
that  shij)  was  on  the  higli  seas  or  in  its  harbors;  the 
United  States  never  took  the  position  that  Great  Britain 
(•(iiild  not  take  anyvvheie,  on  the  higii  seas,  or  in  lier 
iiarljors,  a  ship  flying  th(!  American  Hag.  but  owned  by  a 
|ii  rsiin,  a  civil  or  political  subject  owing  allegiance  to  Great 
Hiilain,  and  hving  within  her  borders. 
I  continue  reading  from  the  Instructions  to  American 

20 Naval  Commanders: 

"Tiic  flag  which  the  vewsol  wears  is  prhiiifiicie  although  it  is  not  a 
c'oucliiHivo  proof  of  uatiouality;  it  is  a  mere  eml)lein,  and  it  loses  its 
true  charaptor  when  it  is  worn  l>y  those  wlio  have  no  right  to  wear  it. 
.\iiy  vessel  that  displays  the  American  flag  elaims  to  ))0  an  American, 
aiui  may  tlierefore  be  rightfully  Ijoanled  and  examined  by  an  American 
cruiser  if  there  be  any  circumstances  attending  her  to  justify  a 
susjiicion  that  she  is  not  what  she  j)rofesses  to  bo.  But  this  privilege 
docs  not  extend  to  the  cruisers  of  any  other  nation.  The  Uniled  Stales 
(I'l  nut  cliiiiii  thilt  llie  tiierclioistiii'i  of  llf.irjl  it)  nhuH  (jive  imiiiHiiili/  to  those 
II  hn  liarc.  Ill)  rif/hls  to  ireur  it.  Sucli  a  pretension  would  Bubject  their 
tlii^  to  degradation  and  dishonor,  because  it  would  make  it  a  cover  for 
J  pinicy  and  otlier  crimes  of  similar  atrocity;  but  their  oini  citizens  who 
riglitfiilly  display  it  are  entitled  to  absolute  immunity  and  protection. 
Yon  will  therefore  at  all  times  be  i)rompt  to  prevent  the  search  or  de- 
tention of  vessels  of  the  United  States  ou  the  high  seas  in  the  time  of 
liciicc  l)y  the  armed  vessels  of  any  other  power. 

Sliou'ld  a  vessel  of  the  United  Htates  talsly  assume  the  flag  of  any 
otlicr  nation  it  will  constitute  no  protection,  i'ou  will,  however,  in 
all  such  cases  where,  from  Information  or  appearances,  yon  have  just 
reason  to  believe  that  the  flag  of  any  other  nation  has  been  falsely  as- 
sumcil  l)y  an  American  vessel,  proceed  with  great  care  and  caution. 
If  it  should  be  ultimately  made  to  appear  that  slie  is  a  vessel  of  the 
United  States,  the  case  will  l)e  free  from  any  dilBculty  or  embarrass- 
40mcnt.  Hut  if,  on  the  other  hand,  she  is  in  fact  a  vessel  of  any  other 
uiition,  tlien  you  have  no  right  whatever  to  arrest,  detain,  board,  search 
or  examine  her,  or  divi'rt  her  from  her  course. 

Tlic  authority  to  do  so  depends  upon  her  nationality,  whatever  ap- 
pciirances  may  be  or  whatever  may  be  your  information  of  her  char- 
acter. 

You  should  therefore,  in  all  eases  of  well  grounded  suspicion,  pro- 
ceed with  great  consideration  and  caution,  in  order  to  guard  against 
iiiistalic. 

You  may  api)roach  the  suspected  vessel  and  speak  with  her,  show- 
iiif;  your  own  flag.  You  may  recpiest  her  to  display  her  flag;  If  she  re- 
vise 1)1-  omit  to  do  so,  you  may  discharge  towards  her  a  gun  loaded 
50  with  lilaiik  cartridge  only.  If  she  still  refuse  or  omit  to  display  her 
ciildis,  you  may  discharge  a  shotted  gun,  pointing  it  so  as  not  to  hit  or 
ciiclaiigcr  her.  If  she  display  the  colors  of  any  foreign  nation,  you  ^an 
proceed  no  further,  e.raijil  ujimi  iippurenthj  irell  f/roum/eil  suspicion  of 
triiiiilulent  iissiiiiqilinii  offiiiviqii  colors  hi)  her  niiil  upon  i/our  cini  respousi- 

hititl/." 

That  is  a  part  of  the  correspondence  and  final  conclusion 

agreed   to   between   the  governments   by  instructions  to 

tlieir  navies,  and  not  closed  or  concluded  when   Mr.  Law- 

vtiice  contributed  his  articles  to  the  Rhode  Island  Atlrer- 

(loli^fr  or  when  his  book  was  issued  in  lsr)S. 

.Now  I  will  finish  tiiis  subject,  not  by  reading  a  review 
ot  .Mr.  Lawrence's  vTritten  before  the couclusion,  but  from 
till'  Imninous  notes  to  VVheaton  by  my  distinguished  fel- 
low (dimtryman  the  publicist,  Mr.  Dana,  as  to  the  re- 
f^iili,     Mr.  Lawrence  issued  a  Wheaton  in  Lsr)5,   but  Mr. 


i«.  ■  ■ 

i' 
5 


III 


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1 

V     }i' 


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(Mr.  Dickinson's  Oi)enin{jc  Argument.) 

Dana  lias  issued  editions  of  his  Wheaton.  tunning  later 
tiian  18tU),  l)ut  I  hold  in  niv  hand  the  ISOfi  eighth  edition. 
I  read  from  Dana's  Wheaton's  International  Law.  pjif^e 
185.  After  referring  to  the  dehate  in  the  British  Parlia 
ment,  to  which  my  learned  friend  adveited,  where  it  was 
concluded  hy  the  statesmen  of  England  that  there  was  no 
I'ight  to  visit,  the  authoi',  in  his  notes,  says: 

lO  11  jf  ^iie  (l(,.l)ato  iH  correctly  roi)orti'(l,  there  seems  to  be  some  con- 
fusion  l)et\veou  the  option  of  a  eruiser,  at  his  peril,  to  take  his  elmiice 
of  a  vessel  turniuf?  out  to  have  been  liable  to  he  detniued  by  him,  mid 
the  right  of  a  cniiser  to  detain  the  vessel  for  the  i>urpo8e  of  ])uttiMn 
the  test.  The  principle,  however,  is  clear.  If  a  cruiser  stops  a  vessel 
in  the  exeivise  oi  j)olice  power,  he  takes  the  chance  of  her  turning  out 
to  be  subject  to  the  exercise  of  that  power  by  him.  If  she  proves  tn 
be  a  vessel  of  his  own  nation,  or  of  one  that  has  conceded  to  him  tluit 
right,  he  turns  out  to  have  been  in  the  exercise  of  a  right  nli  iniHn; 
and  neither  he  nor  his  nation  is  bound  to  make  apology  or  c<>m]ifii- 
sation;  though  the  vessel  proves  innocent  of  the  crime  suspected.  Hut 
if  the  vessel  proves  not  to  be  subject  to  his  police  i)o\ver,  then  he  turns 

20  out  to  have  been  a  trespasser  a/) //(///o,  whether  tlu>  vessel  proves  in- 
nocent or  guilty  of  the  crime  suHj)ected.  He  is  liable  in  that  case,  ucit 
for  having  stopped  an  innocent  vessel,  but  for  having  stopped  one  nut 
subject  to  his  ius])ection.  The  mistake  of  the  cruiser,  however  uatiinil 
or  honest,  is  not  a  justification.  It  is  only  an  excuse,  addressing  itself 
to  the  consideration  of  the  government  whose  vcssc'  le  has  interforcd 
with." 

Now  it  seems  that  Dr.  Philliinoregot  the  idea,  prohalily 
wi'itten  hefore  the  coiichisicjii  of  the  correspondence,  as 
Mr.  Lawrence  did,  that  the  position  of  the  United  States 

-Q  was,  as  stated  hy  my   learned   friend   here.      Because  tlie 

'    learned  annotator  continues: 

"  Dr.  Philliniore  (iii.  420-424)  defends  the  distinction,  and  cites  tlic 
note  to  Kent  with  aj)probation.  At  the  same  time  he  seems  to  think 
the  question  is,  whether  a  Uritish  cruiser  may  stop  or  visit  a  vessel 
under  an  American  Hag  ;  and  that  tlic  United  States  have  denied  such 
aright  (p.  421).  But  the  carrying  American  flags  or  papers  is  a  fact 
as  to  .vhich  nothing  can  be  predicated  all'ecting  o  right  to  visit.  If 
the  vessel  was  American,  she  was  exein))t  ;  if  not,  the  American  (iov- 
ernment  claims  no  interest,  although  she  carried  its  flag. " 

'J'here,  may  it  please  your  Hoiiois,  are  Wheaton  and  Dana 
40 flying  with  me  in  the  face  of   the  great   stfitesmen  ami 
lawyers  of  the  United  Statt  si    J)id  not  Dana  know  what  we 
had  always  contended  foreitluM?     The  author  proceeds:  — 

"  If  an  officer  is  reciuired  by  Ins  warrant  to  arrest  John  Doe,  charged 
with  a  crime,  and  sto])s  a  man  wearing  the  dress  and  using  the  name 
of  Richard  Roe,  and  compels  him  to  submit  to  reasonable  exiiniinu- 
tions  of  his  i)ersou  and  jiajiers  to  ascertain,  not  his  guilt  or  innoceuio, 
but  whether  he  is  .John  Doe — then,  if  he  turns  nut  to  be  John  Due, 
Richard  Roe  has  no  cause  of  complaint  ;  but,  if  he  proves  to  he 
Richard  Roe,  the  otlicer  is  a  tr(>spasser,  tliough  acting  in  good  faith. 
This  analogy  uu»y  serve  to  clear  n\>  the  mist  that  seems  to  cover  the 
S'^subject  as  it  has  been  viewed  by  scinr-  writers." 

And.  althongh  it  is  not  in  the  context,  I  might  add  the 
word  "  Coinmentatt)rs." 
Mr.  Dana  fiirtiier  says,  reading  from  the  same  note:- 

"  Halleck  (Intern.  Law,  OOT-OO.'))  carefully  examines  the  subject, 
and  declares  that  no  continental  writer  has  recognized  the  distiuctiuu 
between  visit  and  search  as  rights,  in  time  of  peace  ;  denies  the  accur- 
acy of  the  reasoning  of  Dr.  I'hillimore  ;  and  suggests  that  the  note  to 
Kent  contradicts  tlie  text,  and  rests  on  the  authority  of  the  annotator, 
and  not  of  Kent  himself.  It  is  needless  to  say  that  Mr.  Wheat(Ui,  in 
(3q  his  dii)lomatic  correspondence  as  well  as  in  his  tracts  and  conunen- 
taries,  has  always  denied  the  distinction  in  i>rinciple  as  well  us  on 
authority.  Dr.'  Woolsey  (J  1S)('>1  agrees,  that  neither  visit  nor  search 
cjin  be  made,  as  a  right,' to  ascertain  national  character  ;  Viut  oft'cis  a 
suggestion  (J  201).  that  such  imiuiry  as  is  necessary  to  ascertain 
nationality  might  well  be  granted  by  nations." 

At  one  o'clock  the  Connnissioners  rose. 


(Mr.  Dickinson's  Opening  Argument.) 

At  half-past  two  o'clock  the  Commissioners  resumed 
tlu'ir  seats. 
Mr.  Dickinson  continuing:— 

As  to  the  matter  read  from  William  Beach  Lawrence, 
(111  Visitation  and  Search,  I  think  I  have  sufficiently  veri- 
lird  my  statement,  that  the  book  was  issued  in  1858,  be- 
foiv  the  later  preliminary  correspondence  even  of  1858 
10 could  have  been  published,  and  of  course  befoie  that  of 
l^fiii  concluding  it.  'J'he  advertisement  of  the  author  is 
dated  August  25,  1858.  It  is  stated  in  the  author's  pre- 
tace.  that  it  is  a  compilation  of  various  articles  contributed 
liy  him  ])ending  this  discussion  between  the  countries,  to 
n  iK'wsi)aper  called  the  Newport  Advertiser,  during  the 
intceding  six  years;  and  the  statement  quoted  by  my 
learned  friend  Sir  Charles  Hibbert  Tupper  from  Lawrence, 
"Tluit  the  flag  of  a  ship  is  the  sign  of  its  nationality, 
lint  merely  jnima  facie  hxxi  absolutely  conclusive  to  all 
20 foreign  ships,"  is  quoted  from  Hautefuille,  and  is  not  the 
coiulusion  of  the  author  Lawrence.  To  siiow  how,  on 
tilt'  (question,  Hautefuille  stands  with  the  publicists,  I  call 
the  attention  of  the  Court  to  Wheaton  sth  Edition,  sec- 
tion 5-J*),  page  (liio— note,  where  it  is  said  of  Hautefuille: 

"In  his  later  edition  of  Eights  of  Nationality,  he  at- 
trMipts  a  distinction  between  visit  and  search,  and  would 
routine  the  right  of  a  belligerent  to  stopping  a  vessel  and 
iiisjiecting  the  papers  presented  to  him,  and  would  make 
these  pnjiers  conclusive  on  the  (piestion  of  nationality, 
30 ownership,  contraband  and  destination.  But  tiiis  "is 
lueifly  a  suggestion  of  the  learned  commentator  as  to  a 
possible  policy,  and  has  no  support  of  authority,  either  in 
tiie  jiractice  of  nations,  or  the  works  of  publicists." 

So  miicli  for  the  statement  from  Hautefuille.  aside  from 
tiie  Conclusive  position  of  the  United  States,  as  I  have 
shown  your  Honors,  in  the  correspondence  and  the  in- 
>t ructions  of  the  United  States  to  her  own  navy. 

y\y  learned  friend  has  also  referred  to  the  "  Le  Louis" 

case  and  tlie  judgment  of  Sir  Wm.  Scott.     This  case  of 

40tlie"Le  Louis  "is  the  leading  case  always  cited  by  the 

United  States  in  this  long  discussion  against  the  riglit  of 

search  in  time  of  peace,  which  is  now  historical. 

it  is  th.e  case  referred  to  by  Lord  Aberdeen  in  his  com- 
iiHuiication  of  October  18,  1841,  wherein  he  intimates  that 
tlie  decision  of  Jjord  Stowell  is  no  longer  recognized  as  an 
aiithoiity  in  Great  Britain.  But  in  the  discussion  between 
tile  nations  the  decision  of  Lord  Stowell  (Sir  William 
Scotti,  and  the  rule  runs  through  all  text  hooks,  contains 
tiie  .American  contention,  and  is  finally  acceded  to  at  the 
5oe|  )se  of  the  discussion  by  both  nations,  and  now  as  always, 
Sir  Wni.  Scott  is  recognized  as  authority  on  this  (piestion, 
as  on  every  other  on  which  he  took  a  position. 

It  was  there  decided  by  Sir  William  Scott  that  theie  is  no 
such  thing  as  the  right  of  search  in  time  of  peace,  and  that, 
therefore,  the  French  ship,  "turning  out  on  investigation  to 
lie  ii\Hfueslio)mbly  a  French  ship,"  was  not  liable  to  forfeit- 
iiiv  liecanse  she  resisted  the  right  of  seai'ch.  The  facts  were 
that  the  French  ship  resisted  the  invasion  by  the  British 
I  miser,  and  that  a  nund)er  of  men  (eleven,  t  thiidi)  were 
<'»o killed  and  wounded.  It  was  contended  that  the  right  of 
search  could  not  be  resisted  (the  undoubted  rule,  if  the 
li.ulil  existed),  and  that  the  ship  should  be  forfeited 
liecaiiso  she  resisted — thus  applying  precisely  the  same 
I  iile  that  now  and  always  obtains  in  time  of  war,  that  the 
li.ulit  of  search  exists  on  the  part  of  belligerents,  and  that 


lit 


( 

%'■  il 

I        i. 

1:     1 


i"  '  11  V 


'  !Ji 


II  ^ 


1; 


B 


S7S 


(Mr.  Dickinson's  Oi)ening  Armament.) 

forfeiture  will  follow  if  there  be  any  resistance  to  tliiil 
right. 

The  decision  was.  that  no  such  right  of  search  exiskd 
in  peace,  and  that  it  having  turned  out  tliat  the  ship  was 
unquestionably  a  French  ship,  there  could  be  no  forfeiture 
of  tiie  ship.  iJut  the  court  finally,  in  tiie  last  paragrapli. 
goes  on  to  say:  "This  is  a  case  of  first  instance  upon  tliat 
lo question,  and  therefore  awards  no  costs  or  damages  or 
certificate  of  probable  cause. 

The  Commissioner  on  the  part  of  the  United  States: 
What  is  tlie  date  of  that  decision^ 

Mr.  Dickinson:  December  1,  1H|7.  I  call  your  Honor's 
attention  to  the  language  of  Sir  Willian)  Scott  in  drawing 
his  conclusion  tliat  there  could  be  no  forfeiture,  and  that 
there  was  a  right  of  resistance  in  time  of  peace.     He  says: 

"  The  ship  seized  was  in  appearance  and  in  fact  a  French 
ship,  admitted  on  the  jtlea  and  on  tiie  argument  to  be  so 
20  viKjiiestionably.^'' 

In  tiie  opinion  of  the  Court  as  reported,  the  word  "  ua 
questionably  "  is  italicized. 

"  Owned  and  navigated  by  Frenchmen;  originally  indeed 
built  in  America  and  having  been  for  a  short  time  in 
British  possession  which  had  ceased." 

So  that  the  decision  is:  that  the  right  of  search  in  time 
of  peace  does  not  exist.  There  was  no  n'ylit  to  take  her, 
and  theiefore  no  right  of  forfeiture  for  resistance.  Tiuit 
is  the  sum  and  substance  of  the  decision. 
30  This  was  a  French  shii),  admitted  by  all  sides  to  have 
been  at  the  time  also  in  (tpjwa ranee  a  French  shin;  tlie 
attem|>t  was  to  search  her  on  the  ground  that  she  was  a 
slaver,  with  no  treaty  with  France  permitting  (ireat 
Britain  to  search  French  ships  on  that  ground.  You 
have  in  this  respect  also  precisely  the  ground  that  you  are 
met  with  in  this  history,  in  behalf  of  the  United  States. 
They  did  not  assume  to  attack  her  as  a  British  ship;  they 
did  not  seize  her  or  attempt  to  search  her  because  they 
claimed  she  was  a  British  ship  in  appearance  or  in  manning 
40 for  as  admitted,  and  not  contested,  she  was  unquestion- 
ably French.  But  if  tiie  ship  had  tui  ned  out  to  have  iieen  a 
Britisli  ship  owned  by  British  subjects  of  Her  Majesty's  do- 
minions, lesidents  domiciled  or  naturalized,  or  native  born 
in  Her  Majesty's  dominion,  owing  allegiance  to  Het 
Majesty's  laws  and  sc  ereignity,  there  could  be  no  doubt, 
on  the  prior  decisions  of  Lord  Stowell,  that  whatevei  Hag 
she  flew  (and  under  the  admitted  settlement  between 
France,  England  and  the  United  States  on  this  <iuestioii) 
no  reclamation  could  have  been  made  against  (ireat 
50  Britain  by  France,  she  iiaving  turned  out  to  have  l)eeii 
actually  Britisli. 

Kow  a  word  as  to  the  case  of  the  "  Virginius."  The 
"  Virginius '' .sailed  with  an  American  register  and  tiying 
the  American  flag  in  a  time  of  peace  aiso.  The  belliger- 
ency of  tiie  insurgents  in  Cuba  liad  not  been  recognized. 
The  existence  of  a  state  0''  war,  as  now  in  the  present  re 
hellion,  was  denied  by  Spain.  The  "  Virginius"  was  seized 
by  Spain  while  she  was  carrying  the  flag  and  the  register 
of  an  American  documented  ship.  In  his  proclamation, 
(3Qor  in  the  first  State  paper  issued  by  President  Grant,  he 
says:—"  It  appears  that  the  "  Virginius  "  was  an  American 
ship."  He  does  not  say  she  was  an  American  ship,  but 
"  it  appears."  Our  friends  cite  the  language  in  their  brief 
under  the  head  of  the  "Virginius,'"  and  the  correspond 
ence  is  fully  set  out  there. 


570 

(Mr.  Dickinson's  Opening  Aignniont ) 

Sir  Charles  Hil^bert  Tnpper:  — I  read  from  the  oxccntive 
(liK  ument. 

Mr.  Dickinson:  -Very  well.  President  Grant  says: — 
"  she  left  the  Port  of  Ivingston  in  October  last  under  the 
tl.i;,'  of  the  United  States,  and  .she  ironhl  apiwar  to  haw 
li((il,  as  against  all  powers  excepting  the  United  States, 
the  right  to  fly  that  flag." 

10  S|)ain  immediately  contended  that  the  "  Virginins  "  was 
in  tact  a  S))anish  ship.  SIk?  contended,  and  it  ultimately 
appeared  that  it  was  true,  that  she  was  in  fact  owned  by 
a  Spanish  subject  named  (,)uesada,  who  was  aiding  insur- 
rection against  the  sovereignty  of  Spain.  It  was  upon  this 
ciiiitcntion  that  the  United  States  said:  We  will  have  an 
investigation  of  that  (piesticm,  and  for  that  jinrpose  Spain 
may  employ  counsel  and  appear  before  the  tribunal  that 
wc  will  establisii  fttr  the  junpose  of  the  investigation. 
My  learned  friend   says   that   the    United  States  asserted 

:otii(  doctrine,  that  she  would  not  jiermit  the  (juestion  to 
lie  examined  in  any  other  court  or  before  any  other 
aiitlK)rity.  than  that  of  the  United  States.  On  the  one 
hand,  however,  the  United  States  accedeil  to  the  position, 
that  if  you  prove  that  this  ship  is  in  fact  the  property  of 
(itizens  of  Spain,  there  can  be  no  reclamation,  nay  even 
no  apology,  for  the  insult  to  the  flag. 

Now,  instead  of  taking  it  before  the  courts  of  the  United 
Statics,  sui)pose  the  two  countries  bad  agreed  by  con- 
vention to  refer  the  qut'stion  to  an  international  tribunal 

;olike  this.  Suppose  that  method  of  investigation  had  been 
aildpted;  and  then  suppose  that  Quesada  had  come  before 
t  iiat  tribunal,  a  convention  for  the  assessment  of  claims  and 
turning  necessarily  on  the  status  of  claimants,  and 
(,Uiesada  before  such  a  tribunal  had  said  :  Tiiis  ship  was 
under  the  flag  of  the  United  States  as  a  regis- 
ti'ied  and  properly  documented  ship  of  the  United 
States.  And  suppose  C^uesada  had  gone  before  the 
trii.unal  and  set  uj)  the  claim  for  damages— we 
will     say     a     claim     that     the      sovereignity      of    the 

40lnitcd  States  had  been  violated,  and  therefore  ho  was 
entitled  to  recover  damages  because  the  ship  was  sailing 
under  the  flag  of  the  United  States—can  there  be  any 
doubt  as  to  what  the  decision  would  have  been  ?  Can 
there  be  any  doubt  that  the  status  of  the  claimant  as  to 
Spain  would  be  considered,  or  that  the  status  of  the  real 
owner  would  be  considered,  under  a  convention  which 
provid(>d  that  to  such  persons  as  Spain,  or  as  the  United 
States  have  the  right  to  make  reclamation  for,  the  com- 
mission should  award  damages? 

jo  Think  of  it!  Quesada  the  alleged  owner  hffore  such 
a  convention  claiming  that  he  was  a  person  who  had  a 
light  to  make  reclamation  against  Spain,  under  protec- 
tion of  the  United  States.  Is  there  any  doubt  of  the  re- 
suit  if  in  such  investigation  it  turned  out,  as  the  fact  was, 
as  it  did  turn  out,  that  the  ship  was  actually  owned  by  a 
subject  of  Spain?  Can  there  be  a  doubt  that  the  claimant 
would  be  turned  out  of  court?  But  on  the  question  of  na- 
lioual  dignity  even,  the  Government  of  the  United  States, 
tiudugh  Secretaiy  Fish,  at  page  75  (Ex.  Doc.  30,  Session 

'^'Ols7;f-4)  of  these  same  executive  documents  to  which  Sir 
Cliarles  Tupper  has  referred— on  the  national  question  of 
tlir  infraction  of  dignity,  said: 

"A  nation  must  be  the  judge  and  the  custodian  of  its  own 
honor,"  and  he  cannot  doubt  "that  Spain  herself,  ever 
sensitive  of  the  protection  of  her  own  honor  and  ready  to 


I'  i 


i " 

1 

■■•^■■11 

i  ■ 

.  ; 

H 

nsd 


'■  I 


(Mr.  Dickinson's  Opening  Argument.) 

do  justice,  would  appreciate  the  iinpossii»ility  of  tiio  rofci 
ence  of  such  a   (|Ut'stioii,  and   that  until   atonement    wa- 
made  to  tiie  wounded  dignity  and  sovereignty  of  tl;is  gov 
ernnient,  it  could  not  entertain  a   proposition  of  arhitra 
tion  by  reference  to  other  |io\vers."     He  referred  to  the 
case  of  the  arhilratiun  in  the  Alabama  claims,  and  he  said: 
"  Her  Majesty's  government  had  tendered  atonement  \i> 

lothe  injured  sensibilities  of  the  government  and  jjcoijIc  df 
the  United  States  wiiich  was  accepted  b}'  I  hem  assatistac 
tory,  before  any  arbitration  was  assented  to."  A  lii;.:li 
authoiity  that,  that  wlien  a  (piestion  of  national  dignity 
or  national  honor  is  involved,  the  (piestion  cannot  coi- 
laterally  or  directly  go  to  a  tribunal  of  arbitration. 
No  nation  will  refer  to  any  other  body  than  its  miiiistcis 
or  the  vepres«'ntalives  of  its  own  sovereignty  a  (luestioii  dl 
the  honor  and  dignity  of  the  sovereignty.  The  only  ()uts 
tion    reserved   in   tills  case   for   the  decision  of  its  own 

20 sovereignty  was,  as  to  whether  there  had  been  an  insult, 
and  the  United  States  said  we  will  be  the  judges  of  that. 
A  proposition  forarbitiation  upon  that  point  would  not  have 
been  accepted  for  one  moment,  and  it  never  has  been  ac- 
cepted for  one  moment.  Then  respecting  the  (luestion  dt' 
national  honor,  and  as  to  whether  it  had  been  insulted, 
the  United  States  made  a  fair  investigation.  They  found 
that  the  flag  of  the  United  States  had  been  iinpropi  riv 
placed  over  the  deck  of  that  sliiii,  and  the  United  Status 
stated  to  Spain,  that  an   apology   would   not  be  leciuircd. 

30  That  ended  that.  There  was  no  question  of  money  ahdiit 
that.  And  of  course  the  investigation  demonstrated  be- 
yond a  shadow  of  a  doubt  that  the  ship  was  actually 
owned  by  a  Spanish  subject.  Spain  was  the  seiziiit,' 
nation,  and  it  necessarily  disi)osed  of  the  question  df 
whether  any  citizen  of  the  United  States,  or  any  one  tliat 
the  Unitf'd  States  had  a  right  to  jirotect,  could  have  any 
|iossible  claim  against  Spain  for  that  seizure.  It  disposed 
of  that  question  so  that  the  United  States  did  not  ask  fdi 
arbitration  as  to  wliat  Spain  siiould  pay  on  an  assessnieiit 

40 of  damages.  There  wei'e  some  HO,0<iO  psedas  paid  over  to 
the  Government  of  the  United  States,  and  what  was  thai 
money  paid  for?  Now,  may  it  please  your  Honors,  tlic 
corresjiondtnce  discloses  that  tlie  (juestion  of  the  seizure 
of  the  "  Virginius  "  had  no  more  to  do  with  the  question  of 
what  should  be  paid  in  that  matter  than  it  would  have  to 
do  with  a  transaction  that  occurred  in  the  year  A.  D.  1.  in 
Egypt.  It  was  entii'ely  a  different  question.  There  was 
no  claim  ever  made  for  the  seizure  of  the  "  V^irgiiiius." 
Sir  Charles  Hibbeit  TuppHi:-The  "  Virginius"  was  le- 

50  turned. 

Mr.    Dickinson:— The   truth   of    it  is    that    the    '"  Vir 
giiiius  "  was  lost. 

Sir  Charles  Hibbeit  Tupper:— But  she  was  delivered  to 
the  United  States. 

Mr.  Dickinson:— She  was  lost  before  she  reached  an 
American  port. 

Sir  Charles  Hibbert  Tupper:— She  was  handed  over  to 
a  United  States  cruiser. 

Mr.  Dickinson: — Exactly,  and  was  lost.  We  have  never 

60  heard  yet  that  the  United  States,  although  application  was 
made,  yielded  to  the  contention  to  demand  damages  for 
any  person  on  account  of  seizure  of  the  "  Virginius."  The 
reason  was  that  no  person  suffered  .an  injury  "in  whose 
behalf  the  United  States  was  entitled  to  claim  compon 
sation  from  Spain."    The  language  of  the  present  con- 


681 

(Mr.  Dickinson's  Opening  Argument.) 

Million  I)eforo  yon  i  that  claims  are  to  bo  roforred  to 
tlii>  triinuuil  "  siistiiined  by  persons  in  wliose  behalf  Great 
Hiitnin  is  cntitloil  to  claim  compensation."  When  the 
(  iiliaii  .Inula  -as  shown  by  the  correspondence— attempted 
t.i;;et  Ibe  United  Stales  to  make  reclamation  for  Iho  al- 
I,  -111  owner,  it  was  scouted  from  the  diplomatic  offices  of 
till'  Tniled  States. 
10  The  Commissioner  on  the  part  of  the  United  States:— 
l»o  yon  know  where  thedomicil  of  the  owner  of  the  "  Vir- 
>;iiiiiis"  was? 

Mr.  Dickinson: -(^nesada  had  a  domicil  in  the  United 
Slates,  but  he  was  a  Spanish  subject.  Ho  was  engaged  in 
all  act — not  an  act  of  war— but  an  act  derogatoiy  to  the 
sovereignty  of  the  country  that  claimed  him  as  an  original 

mibj'H't. 

.\(iw  let  us  see  what  the  M»,(K)0  p.sedas  in  the  "  Virginius  " 
rase  wer(!  paid  for?    It  should  bo  said,  as  your  Honors  will 

20 see,  by  reference  to  3  Wharton  Digest,  pages  (it;^'  and  709 
ami  71:2,  that  they  took  pains  that  the  "  V^iiginins  "'  should 
have  a  certificate  from  the  United  States,  so  that  sho  had 
what  was  not  merely  a  registration  and  the  flag,  but  what 
\v;is  i'(|uivalent  to  a  sea  letter  or  pass  during  war. 

Now,  at  page  -M  of  the  same  executive  document,  to 
wliiili  my  learned  friend  has  referred,  wo  will  commence 
to  Ml-  wjiat  the  damages  paid  were  paid  for.  They  were 
not  paid  for  the  ship  or  for  the  seizure  of  the  ship.  I  refer 
to  coinmunication  from  Mr.  Fish  to  the  Ameiicaii  Minister 

30 to  Spain,  of  Novetnber  12th,  IS73,  Executive  Document 
No.  :io,  the  same  document  referred  to  by  Sir  Charles 
Tiiiipt'r,  IS78-4,  page  21: 

•On  tlic  7tli  the  pul)lic  journals  aunounced  tbo  execution  on  tho 
Itli  (if  four  porsouK  who  had  1)0PU  captured  on  tho  vesHol,  one  of 
wli.im  WHS  represented  to  lie  uu  Anieriean,  wlio  in  said  to  have  en- 
tcrril  tlio  uiilitary  service  of  the  insurrectionists  in  Cuba,  and  who 
chiiiiii'd  to  hold  a  military  coniniissiou  from  the  insurrectionary 
aiitliorities,  and  to  have  been  in  actual  military  service  on  the 
ivliilid. 

'till'  execution,  as  it  is  called,  of  those  jKirsons  was  forced  on  with 
4'J iiiilciciit  and  barbarous  haste,  and  in  defiance  of  all  humanity  and  re- 
t,';iiil  to  the  nsanes  of  the  civilized  world. 

It  WHS  i)orpetrated  in  advance  of  the  kuowledRC  of  tho  capture  reach- 
iiii;  Havana  or  Madrid,  and  it  would  seem  to  have  been  tlius  precipi- 
tati  it  in  cold  blood  and  vindictivoness,  to  anticipate  and  prevent  tho 
iiitii  position  of  auv  humane  restraints  upon  the  ferocity  of  the  local 
aiitlicirities  from  tlie  gov'  rnmeut  at  Madrid  or  its  representative  in 
Havana. 

Tliis  is  but  another  instance  in  the  long  catalogue  of  the  defiance  of 
till'  liniiie  government  by  those  intrusted  with  authority  in  C'uba,  and 
ailils  another  jjage  to  the  dark  history  of  bloody  vengeance  and  crn«l 
ilisii^'ard  of  the  rules  of  civilized  war,  and  of  common  humai'.,, 
jOwliicii  tlie  niilitarv  and  other  olMcials  in  C'uba  have  but  too  freqU'  a'  i  ■' 
iiiailc  jiart  of  tho  liistory  of  Spain's  government  and  of  its  colony." 

At  page  2{\,  again,  November  13th,  1873,  General  Sickles 
III  Mr.  Fish: 

•  M  four  o'clock  this  afternoon,  the  hour  appointed  yesterday,  I 
hail  an  interview  with  the  Minister  of  State  at  his  oflice.  His  ex- 
cilliiicy  received  me  with  tho  remark  that  late  news  from  Cuba  had 
ili'|irived  our  conference  of  the  results  he  had  anticipated  from  it. 
Last  night  a  report  had  been  received  from  the  Captain-Oeneral,  stat- 
(jQ^i'A  tliat  forty-nine"  (not  four)  "of  the  prisoners  taken  in  the  Vir- 
'I'liiiis  liad  been  shot  on  the  7tli  and  8th  iust.  at  Santiago  de  Cuba. 
I'll.'  iinler  of  President  Castelar,  dispatched  on  the  (ith,  had  reached 
llaviinii  on  the  following  day,  too  late  to  prevent  the  executions.  He 
Miaile  this  communication  to  me  with  profound  regret.  President 
( 'a -.ti'lar  had  received  the  intelligence  with  deep  concern,"  and  80  on 
aiiil  H(i  forth. 


1 

•1 

I- 

".'til?'! 


)S2 


(Ml'    Dickinson's  ()|H'ninfi;  Aignniont.) 

Sir  CliaiK's  H.  Tnppt>i:—  Doos  it  state  in  tliat  di'spatrh .ii 
that  paj^c  what  tiie  nationahty  was  of  thosu  forty  niin 
prisoners? 

Mr.  Dickinson: — The  despatch  jjjoes  on: 

"1  iiii|nirt'(1  wlictlipr  liiH  rxci'lli'iicj- i'()\ilil  iiiforiii  nm  how  iimny  of 
tlio  vi<'tiiiiH   (/•('(■('  Aiin'riran  riliims,  to  wliicli    lie  rcpliiMl  tlint   no  |iiii' 
tii'uliirH  Imd  ln'cn  ivccivtMl,  iiii.l  it  wiih  lU'cciHcIv  that  (picstion  that  In 
,- hud  put  to  thi>  Cuptaiu-Uoucrnl  in  a  cnblt<  nii'HHago  Hout  ut  two  u'cKuk 
thit  inoruitiK." 

The  correspondence  goes  on,  may  it  phvise  the  Court,  .it 
great  length,  and  tlietinal  result  was  this;  that  the  I'nitcil 
States  Minister,  inider  the  instruction-;  of  Secretary  Fij-li. 
following,  and  not  preceding,  I  am  sorry  to  say,  the  action 
of  (ireat  Hritain,  taken  as  to  some  passengers  on  the  '•  Vir- 
ginius,""  dem.Miided  of  the  Spanish  Goveiiuneiil.  for  this 
terrihle  massacre  compensation,  and  a  liheral  coinjieiisa 
tion,  for  the  survivors  of  the  families,  of  those  who  were 

20shot  to  deatii  in  violation  of  the  miiversal  law  of  civiliza 
tion.  against  the  stoiu'  wall  at  Santiago  de  Ciiha.  (Jreat 
Britain's  demand,  of  course,  could  not  involve  the  title  of 
tlio  ship,  or  the  nationality  of  the  ship;  hut  it  was  hased  on 
tliis  grouiKl:  that  these  British  suhjects,  no  matter  what 
the  .ship,  were  entitled  the  world  over  to  treatment  ac 
cording  to  tlu' univei-sal  law  of  Iminanity;  entitled  fioin 
any  helligerent  to  he  treated  according  to  the  laws  of  w.u, 
and,  hecaiise  the  Hritish  snl)j<>cts  were  shot  to  death  in  the 
streets  of  Santiago  de  C'nha,  Spain  slincdd  pay  l"<'ir   Cnni 

30 lies  liheral  com|)ensati(in.  Tlie  United  Sta*  ollowed 
and  demanded  on  the   same   ground,   irrespc  of   the 

nationality  of  the  shij),  and  without  regard  t  ..ot  oidy 

hecause  Ameiican  citizens  had  heen  shot  to  death,  in  vio 
lation  of  the  laws  of  war  and  the  laws  of  humanity,  hut 
hecause  they  had  heen  deprived  of  trial  in  accordance 
with  the  treaty  or  any  healing  in  accordance  with  e.xistin;: 
treaty  riglits  het ween  the  L'niti'd  States  and  Spain.  So 
that  the  convention  or  tieaty  that  was  made  for  that  pui 
pose  had  no  more  to  do  with  the  (jnestions  of   reclamation 

40tor,  or  of  right  of  the  nation  for  the  seizure  of  the  ship, 
than  lias  an  occurrence  that  has  taken  place  yesterday 
anywhere  on  >iie  face  of  the  earth.  The  corresponci 
eiice  is  given  i.'i  full,  and  the  agreement  between  Spain 
and  the  United  b^tates  is  in  Volume  Tit!  of  British  and  For- 
eign State  Papers,  i>ages  111»  ei  .sa/.;  and  the  seizure  of  the 
■•  Virginius  ''  doe^  not  a]ii)ear  to  have  had  an^'thing  to  do 
witli  the  ledamatJon  made.     The  agreement  says: 

"  In  coufidcration  of  the  roaKouH  set  forth  and  the  declarations  niniU' 
rprijirocftlly  in  various  cDuferouocs  to  that  ofl'ect  had  la'twccu  liis  l'^\- 
50  I'C'lloucy  Mr.  {'aloh  Cushiiif?,  representative  of  the  United  States,  and 
his  Excelleuey  1).  Alejandro  ClaBtro,  Minister  of  Htate,  as  also  of  tlic 
notes  whieh  have  passed  between  them,  and  desiring  at  the  same  time 
to  ])ut  an  end,  by  nieau.i  of  an  equitable  and  friendly  accord  to  the 
reclamations  presented  by  the  Ciovernmeut  of  the  United  States  in 
eonse(iuenee  of  irlidt  txviii  red  at  S<viti<ig<>  de  Cubu  in  regard  to  the  per- 
sons of  the  ofHcers,  crew  and  passengers  of  the  steamer  "Virginius."  it 
being  understood  that  from  these  reclamations  are  to  t)e  e.xeluded,  iu 
so  far  as  resi)eetH  the  ship's  comj)any,  all  individuals  indenmitled  as 
British  subjects,  and  with  respect  to  ptissenyerK,  including  only  (i  Amcr- 
lain  citizens. " 

60  The  Spanish  Government  engaged  to  deliver  the  ship; 
l)ut,  of  course,  the  damages  paid  had  nothing  to  do  with 
any  violation  of  the  "Virginius,"  but  is  confined  in  the 
premises  strictly,  as  shown  by  the  article  itself,  and,  in 
the  light  of  the  correspondence  leading  up  to  it,  to  the 
transactions  that  occurred  at  Santiago  deCuba. 


5S» 

(Mr.  DickiiiHon's  Opeiiiiij;  Argnini'iit.) 

of  course,  as  I  liavo  said,  tlio  qtu'slioii  of  national  dij^- 
tiity  is  involved  in  t\ui  niattttr  of  tlio  right  of  Boarcli.  If  a 
Hiilish  vessel  Rhoiild  ho  taken  on  the  high  seas,  or  a  vessel 
flying  the  British  flag,  an<i  it  should  tmn  out  that  she  was 
lidt  a  British  vessel,  liiit  American  osvned,  the  agree- 
imrit  hetween  the  countries  in  the  conclusion  of  the 
ri^lit  of  search  discussion  would  not  eiiahle  the  owners — 
Q  record  owners  or  otherwise- of  iin  American  ship,  improj)- 
cily  documented,  as  a  British  ship,  hy  tlie  laws  of  nations, 
JKiving  now  no  regard  to  the  nnuiicipal  law,  and  iniprop 
eily  Hying  the  Britisii  flag,  to  make  reclamation  through 
(Itcat  Britain.  But  we  have  gone  a  step  fuither  than 
that,— although  (Jreat  Britain  might  make  a  claim  as  a 
matter  of  national  ilignity,  that  she  would  not  permit  the 
United  States  to  take  that  ship;  yet  the  countries  would 
speedily  settle  that  (piestion  of  national  honor  between 
themselves  and  would  not  refer  that  (juestion  of  national 

,^, dignity  to  any  tribunal. 

Having  satisfied  themselves  on  the  (piestion  of  national 
dignity,  they  might,  as  they  have  done  here,  refer  the 
suhject  of  private  claims  (tf  citizens,  subjects  or  per.sons, 
to  use  the  language  of  the  convention,  tor  whom  Great 
jiiilain  has  a  right  to  claim  protection,  to  a  conunission 
or  hoard  of  arbitration. 

Then,  as  in  all  cases,  where  there  lias  been  a  reference 
tif  claims  for  reclamation,  the  reclamation  would  bo 
.iwuded   according  to   the  status  of   the  private  citizen 

,y  making  the  claim.  The  question  of  national  dignity  hav- 
ing been  settled,  the  matter  for  the  consideration  of  the 
convention  to  whom  it  is  referred  is,  whether  this  person 
who  makes  claim,  and  invokes  the  authority  of  Great 
Britain  and  its  pr()tection  because  of  his  loss,  is  a  person 
for  whom  Great  Britaisi  has  a  right  t(»  make  reclamation; 
and,  may  it  please  your  Hoiiers,  it  will  be  seen,  if  I  have 
been  at  all  successful  in  making  my  meaning  clear,  that 
the  (juestion  of  national  dignity  must  necos.sarily  have  been 
disposed  of  priorto  and  antedates  the  convention,  el.sethere 

iLi  vvciuld  1)0  no  convention;  there  would  be  a  demand  for  the 
return  of  the  ship  as  a  matter  of  national  dignity.  But 
(in  a  (luestion  of  doubt,  there  being  no  insult  intended, 
tile  United  States  asserting  an  exclusive  jurisdiction  over 
a  piece  of  territoiy,  acknowledged  by  Great  Britain  to  be 
at  least  under  color  of  right  (else  it  would  be  an  insult 
and  an  invasion  of  Britisii  dignity  to  have  taken  the  ship, 
that  being  out  of  the  way)— it  being  conceded  necessarily 
not  to  have  been  seized  in  bad  faith — national  dignity 
satisfied  before  we  go   to  arbitration — we  then   come  to 

;, I  friendly  arbitration,  and  the  matter  of  claims  of  private 
citizens  and  a  conunission  on  claims  is  formed. 

fan  it  be  seriously  contended  that  Great  Britain  would 
go  toaibitration  if  the  act  of  the  United  States  was  wanton 
and  without  color  of  right?  All  such  questions  are  waived 
liy  arl)itration,  and  by  this  Convention  we  claim 
no  right,  say  Her  Majesty's  Government,  to  make 
reclamation  for  persons  not  entitled  to  the  protection  of 
('leat  Britain  before  this  Commission  on  Claims  in  respect 
of  their  claims,  for  that,  as  luider  all  other  conventions,  in- 
r„)  vdlves  the  status  of  the  person,  not  the  dignity  of  the  gov- 
einment.  Take  for  instance  the  leading  case  cited  by  my 
friends,  the  ''Drummond ''  case,  2  Knapp.  Great  Britain 
Wits  claiming  and  (lid  claim,  as  the  United  States  followed 
ill  claiming,  that  every  one  native  born  to  the  country  re- 
mains a  citizen  of  that  country,  and  could  not  surrender 


-h 


,1 

■  f  1 

'i 

■i| 

w 

i 

I 


r).s4 

(Mr.  Dickinson's  OpiMiiii};  Art;iinuMit.) 

liisallogienco.  Hut  in  tin'  "  Knivpjt  "ciise,  wiiicli  was  under 
a  convention  wluM't'liy  rccl.iinalions  were  to  be  made  by 
Hiitish  subjects  ii{;ainst  i<'ianct>.  Drinnniond  cluniinf^  to 
be  a  Hiitisli  subjects  under  Hrilisli  laws;  under  the  uiiivcr- 
■al  holding  of  riiehiw.  lu-ing  domiciled  in  France  — but  a 
i-?ritisii  suliject  no  doubt  -be  went  lielore  liie  connnissidn, 
and   lie  was  told   by  the  court -no  (|uesti(Ui  of  national 

lo'lignity  being  involved;  no  (inestiou  that  because  he  was  a 
Mritish  subject  he  must  bavt»  damages  that  being  domi- 
ciled in  Frame,  owing  obedience  to  the  French  laws,  not- 
withstanding Ihiit  be  had  not  surrendered  his  original 
allegi.ince.  notwithstanding  he  was  still  a  Hiitish  subject, 
lie  could  not  m.ike  retlamation  ag.iinst  France  as  a  British 
subject  under  that  convention.  It  turned  on  his  jiersonal 
status  and  his  |>eisonal  civil  domicile. 

The  next    jxtint    is  as  to  citizens  of  (ireat   Britain   who 
have  not  smiend'-icil  tbeii'  original  allegiance  nor  become 

2oiiatuiali/.ed  in.  l)Ut  have  ac(|uired  ,i  legal  civil  donncale  in 
the  I'nited  States.  A  British  subje.:t  domiciled  in  the 
United  States,  as  we  have  seen,  is  under  the  |irotection  of 
the  fundamental  law  in  all  his  rights  -life,  liberty  and 
properly.  For  him,  his  country  of  original  alk'giance  can 
interpose,  if  he  is  di'uied  justiic  in  the  courts  of  the 
nation  of  domicil.  lie  c.innot  aver  that  he  is  denied 
justice  in  the  courts  of  the  nation  unless  he  brings  to 
the  international  triltunal  evidence  that  he  has  been 
.so   denied   justice   by    tho   court   of   last   resort.     Qmntd 

^othe  United  States  what  is  th(>  relation  and  the  status 
of  the  domiciled  subject  of  another  country  nmiatuial- 
ized  here?  The  United  S(at''s,  may  it  please  your  Honors, 
may  make  reclamation  for  him  against  any  other  conn 
try  except  the  nation  of  his  original  allegiance  in  pro 
tecling  him  in  accoidance  with  American  law.  Why  can 
they  not  jtrotect  him  as.against  his  own  original  allegiance; 
Simi)ly  because  he  has  not  become  natur.ilized;  he  has  not 
renounced  his  original  allegiance;  and  he  still  owes  allegi- 
ance  to  that  soveitMgn;    so  that,    in   the   case  of  a  Biit- 

40ish  subject  (lomicili-<l  in  the  I'nited  Stales,  where  the 
Biitish  subject  so  domicili'd  denies  or  antagonizes  ids 
original  sovereignty,  Ixreat  Britain,  and  suffers  for  it  on 
the  seas  oi'  elsewhere,  that  liritish  subject  cannot, .under 
the  pi'otection  of  the  United  States,  get  d;image.«  for 
the  suffering  he  has  incurred  while  violating  his  original  al- 
legiance. If  he  wjuited  togo  to  thatextent,  he)  should  have 
become  naturalized  here.  So  that  we  say  as  lo  American 
citizens  domiciled  in  Canada,  freedom  of  naturalization  is 
jieiinitted  them  in  Canada  or  in  (treat  Britain.     So  far  as 

50 this  case  is  concerned,  they  have  not  surrendered  the  right 
to  protection  of  the  Amei'ican  law;  they  have  not  by 
naturaliza' ion  suriendered  their  allegiance  to  the  United 
Slates.  What  is  this  allegiance;  It  is  a  tie;  and 
both  governmenis  agree  that  no  citizen  of  either  coun- 
try, up  to  the  date  of  the  tr»\'ities  of  naturalization 
and  their  respective  statutes  of  iMiS  and  ls7(i,  can  untie 
ins  allegiance  save  by  the  consent  of  his  own  nation.  If 
he  owes  allegiance,  what  are  tlu'  I'esults  to  him?  The 
matter  may  be  iilustiated  by  the  dispute  on  the  San  Juan 
f)0 boundary.  The  northwestern  boundary  of  the  United 
States,  San  .Inan,  was  in  dispute,  precisely  as  the  jiui.sdic- 
tion  in  Bering  Siawasin  dispute,  (heat  Britain  claimed 
exclusiv(>  juri.sdiction  over  it,  as  did  the  United 
States.  There  were  some  conflicts  there,  hut  the 
controversy   was    happily    and    speedily    terminated    by 


585 

(Mr.  Dickinson's  Opening  Argument.) 

|lu>  coinmon  sense  of  botl'.  peopK's.  Bnt  niipposo  an 
American  citizen,  domicilefi  in  Cieat  Rritiiin,  owing  orig- 
inal allegiance  still  to  the  United  States,  nevei  having 
renounced  his  allegiance,  and  ready  at  any  time  to  claim 
protection  from  the  United  States,  and  the  United  States, 
ill  return  for  his  allegiance,  owing  a  reciprocal  obligation 
of  prottH'tion  to  a  degree  a.«  seen ;  suppose  in  that  San  .Juan 

loiiispute  the  American  citizen,  domiciled  in  (ireat  F^ritain, 
nut  witiistanding  the  assertion  of  jurisdiction  by  his  own 
nation,  to  whom  he  owed  origir.al  allegiance,  had  said:  "T 
lak(>  sides  with  Great  Mritain:  I  say  that  this  is  Mritish 
tcriitory;"  s>ip]H)se  !)(>  had  resisted  the  United  States,  and 
suffered  damage,  and  it  afterwards  turned  out  -instead  of 
lht>  way  it  did — San  Juan,  by  arbitration,  had  been  de- 
cided to  have  been  Mritish  territory,  and  then  the  Amer- 
ican citizen,  who  at  the  time  he  took  his  position  was  in 
direct  conflict   with   the  sovereignty    to    whom  he  owed 

joallegiiuice,  had  sought  reclamation  against  the  United 
Slates  for  injuries  sutfered  in  his  denying  the  sovereignty 
ol  his  country,  wo  thiidc  that  no  international  tribunal 
would  have  awarded  that  citizen  damage,  uidess  this 
ti-im  allegiance,  and  all  that  it  implies,  is  an  i(ll(>  and 
meaningless  one,  its  results  of  no  conse(|uence,  with  no 
recifirocal  obligations  for  the  rights  attai^hed  to  it. 

1  shall  at  a  later  time,  whcMi  the  evidence  shall  have 
been  present(>d,  wh(>n  the  very  voluminous  Kccord  shall 
have  been  gone  over,   to  some  extent,   in  behalf  of  the 

^olnited  States,  when  the  facts  are  somewhat  more  clearly 
before  the  High  Couiinissioners,  endeavor  to  present  our 
jHisitions,  briefly  tal^en  in  the  printed  argument  of  the 
I'nited  States,  on  the  iaw  questions,  more  at  length. 

We  will  now  proceed  to  a  presentation  of  the  record 
evidence. 


• 


i'l 


00 


Commissioners  under  the  Convention  of  Februarys, 

1896,  between  the  United  States  of  America 

and  Great  Britain. 


Mr.  Lansiiin: — May  it  please  the  High  Commissioners: 
In  accordnme  with  th(>  plan  of  argument  ontlined  by  the 
'"siiiioi  connsel  on  lieliulf  of  the  United  Slates,  I  will  con- 
fine myself  to  a  discussion  of  the  evidenee  which  was 
t^ken  before  tills  High  Connnis'^ion  at  its  sessions  in 
Victoria.  1  appreciate  tlio  fact  that  I  am  dealing  with 
(!i"l;ills  which  are  from  their  very  nature  tedious;  and  T 
sliall  therefore,  as  littlt!  as  possible,  refer  to  our  ])rinted 
aiiiinnent  In  regard  to  those  facts  which  have  l)een  fully 
(iialt  with  therein.  Hut,  at  the  same  time,  it  must  he 
borne  in  mind  that  a  portion  of  the  award  wliich  will 
be  given  will  be  an  assessment  of  damages,  which 
-° necessarily  deals  witli  detail;  and  it  is  only  by  a  full 
consideration  of  the  (nidence  relating  to  the  Items  claimed, 
iuul  to  these  details,  that  they  can  be  determined  in  accord 
with  principles  of  strict  justice. 

1  first  propose  to  discuss  the  question  of  an  estimated 
ciitch,  and  for  the  time  which  I  shall  occupy  upon  that 
()uestlon  1  have  the  excuse  that  of  $S.^(»,()(»(i  of  damages 
claimed,  with  interest,  over  $400,000  are  included  in  items 
for  such  |)iospective  profits. 

^'^    I'KOI'OSKD   MKTHOD   OF   COMI'UTINO    AN   ESTIMATE  CaTCH. 

1  shall  lake  up  first  the  method  which  has  been  pro- 
)iosed  by  our  learned  friends  and  see  how  it  has  been 
ai)i)iied.  Their  proposition  is  to  take  the  catch  of  and  the 
(lata  relating  to  the  "  Mary  Ellen  "  in  the  year  1S,S6,  and 
Ml)i)ly  a  formula  derived  from  them  each  of  the  indi- 
vidual claims.  In  discussing  the  dura  .nn  of  the  season, 
my  learned  friend,  Mr.  Bodwell,  stated,  as  an  explana- 
tion of  the  fact  that  the  last  "lowering  day"  if  the 
-10"  Mary  Ellen"  was  the  24th  of  August,  that  lie  had 
tlieii  completed  her  catcii  and  therefore  ceased  seal- 
ing. We  would  naturally  expect  from  this  state- 
ment that  in  the  claims  presented  here,  when 
tiip  amount  of  skins  secured  by  the  "Mary  Ellen" 
b;i(l  been  reached,  these  vessels  would  have  ceased  seal- 
ing; and  we  should  also  have  expected  that  the  claims 
lor  their  estimated  catch  would  have  been  made  upon  that 
iiMsIs,  but  they  have  not  been.  1  propose  to  examin«'  what 
are  claimed  for  the  catches  of  these  vessels  in  Ber- 
>o|ng  Sea,  including  not  oidy  their  estimated  catch  but  also 
the  skins  seized  by  the  United  States,  or  those  which  the 
scalers  obtained  and  brought  back  to  Victoria.  The  fol- 
lowing is  the  list  tompared  with  the  catch  of  the  "  Mary 
Kllen,"   which    was    up   to  and    including  the    24th   of 

.Angnst 2,;W) 

Conijileto  catch  as  claimed  for  the  "  Aiuia  Beck  ".  -   l{,837 
"  "  "Alfred  Adams"  2,780 

"  "  "Grace" 8,769 

'*  "Dolphin" 4,018 

C'o  "  •'  "Ada"  ._ 2,!»40 

"  "Pathfinder"...  2,878 

"  ••  "Black Diamond"  8, .')7»; 

•'  "  "Lily" 2,!tO» 

"  "  "Minnie" 3,i>20 

••  *'  "Triumph" 3,572 


,*i 


I,    fi 


^!  iii 


t*'  ! 


5SH 

(Mr.  Lansing's  Argument.) 

The  catch  of  the  "  Mary  Ellen  "  in  1880  is  distinguished 
as  being  the  largest  catch  ever  n)ade  from  188C  to  iMtu 
vinclusive),  by  any  vessel  that  entered  the  Sea.  She  had  tlie 
most  experienced  captain  of  any  vessel  that  ever  cleared 
from  Victoria— Daniel  McLean— an  experienced  crew  and 
experienced  hunters.  These  very  facts  it  would  seem 
are  sufficient  to  show  how  unreasonable  it  is  to  calculate 

ID  a  catch  upon  the  result  of  the  cruise  of  this  vessel,  and 
especially  so,  when  we  are  asked  to  base  the  duration  ul 
the  season,  not  on  her  cruise,  but  on  the  cruise  of 
other  vessels  in  the  year  18!)(»,  when  oin*  learned  friends 
contend  that  we  should  not  consider  the  catches  which 
they  made.  But  we  will  examine  the  proposed  scheme  to 
show  that  on  otiier  giounds  it  cannot  be  adopted  by  your 
Honors  as  a  method  of  computing  the  estimated  catch, 
even  provided  the  law  allows  such  damages,  whicli  we 
most  emphaticallx'  deny. 

20  The  plan  proposed  is  set  out  on  pages  81  and  82  of 
the  argument  in  chief  on  behalf  of  Great  Britain,  and  an 
example  of  the  application  of  the  method  is  given  in  the 
case  of  the  "  Carolena." 

The  number  of  hunting  days  of  the  "  Mary  Ellen  "  foi 
the  period  from  the  time  when  the  "Carolena"  was 
seized,  up  to  and  including  the  24th  August,  are  com- 
puted, and  the  number  of  skins  taken  are  divided  by  the 
number  of  hunting  days,  and  also  by  the  five  boats  whicli 
the  "Mary  Ellen  "  had;  in  that  way  the  average  number 

30 of  skins  per  boat  for  each  hunting  day  is  obtained.  My 
learned  friends  then  deduct  the  number  of  hunting  days 
fiom  the  whole  number  of  days  to  24th  August,  and  niul 
tiplying  that  by  five  they  reach  the  number  of  non-hunt- 
ing days  for  one  man  upon  the  "  Mary  Ellen."  They  then 
compute  the  number  of  hunting  days  for  one  man  on  the 
"Carolena,"  which  they  calculate  as  124  for  one  boat. 
They  then  calculate  the  number  of  non-huntings  d;\ys  of 
the  "Carolena,"  obtaining  as  a  result  5:i  They  deduct 
that  from  124  to  reach  the  number  of  days  for  one  l)oat 

4oon  the  "Carolena"  for  a  given  period.  Having  ol)taine(i 
this  inimber  they  multiply  the  number  of  days  by  the 
number  of  skins  which  one  boat  on  the  "  Mary  Ellen  ' 
took  on  daily  average  during  that  period,  which  is  14. 

In  criticising  this  plan  in  the  United  States'  argument 
at  page  247.  tlui  counsel  on  behalf  of  the  United  States 
made  this  assertion:  "The  sclieme  is  complicated  by  a 
"calculation  of  proltalde  hunting  days,  which  makes  the 
"method  more  involved  without  aft'ecting  the  result." 
This  statement  was    in    turn   criticised    Ity   niy  learned 

50 friend,  Mr.  Bodwidl,  in  oral  argument.  I  proi)oso  to  de 
Mionstrate  to  your  Honors  that  our  criticism  is  just.  I  do 
it  for  the  purpo.se  of  simplifying  the  method  so  that  it  can 
l)e  more  readily  examined,  and  in  older  that  you  may  fol 
low  my  computation,  [  will  hand  u|)  a  memorandnni 
showing  the  figures. 

In  the  first  place  we  have  tln'  "Mary  Ellen,"  120  day^ 
iii  tile  Sea  for  one  Imiiter,  which  is  according  to  the  state- 
ment on  page  S2  of  the  British  argument  in  chief,  and 
T)  1.1  days  iioii-hunting,   leaving  tlS.J    hunting  days  with  a 

Gocafch  of  95.S  seals.  Now  we  divide  the  catch  by  081,  in 
order  to  reach  tlio  number  taken  on  each  hunting  day. 
Instead  of  taking  the  louiid  number  14.  which  is  used  in 
the  argument  on  behalf  of  {irieal  Britain,  I  have  taken 
the  decimal  form  in  order  to  get  an  exact  result.  It  is 
claimed  for  the   "Carolena"    that  the  non-sealing  days 


TT 


'^--"Ij 


(Mr.  Lansing's  Argument.) 

were  H^ths  of  514,  which  is  53.15;  the  hunting  days, 
IcKS  the  number  of  non-hunting  days,  equals  70.784. 
()r  we  can  reach  the  same  result  more  simply,  thus:  Take 
llJths  of  the  original  hunting  days  (68^).  Having  ob- 
tained the  hunting  days  for  the  "  Carolena,"  we  multiply 
tiie  number  by  the  number  of  skins  taken  by  one  boat  on 
the  "Mary  Ellen"  in  one  day,  and  we  get  989.0.     Now, 

ioit  we  take  MJths  of  the  catch  of  the  "Mary  Ellen," 
it,j8,  we  get  identically  the  same  result.  We  have  left  out 
tlie  Uinu  of  hunting  days,  and  we  see  the  omission  has 
not  affected  the  computation. 

I  will  simply  state  the  formula  as  it  is  shown  to  be.  It 
is  this:  The  average  daily  catch  for  the  "  Mary  Ellen  "  for 
II  j^iven  period  multiplied  by  the  number  of  boats  on  the 
claimant's  vessel  and  by  the  number  of  days  claimed, 
gives  the  probable  catch  of  the  latter.  That  is  the  formula 
proposed  by  Great  Britain. 

JO  Having  shown  the  "  lowering  days"  are  of  no  import- 
ance in  the  calculation,  I  propose  to  submit  tables  to  the 
High  Conmiisaion  for  the  purpose  of  forming  a  basis  upon 
wliich  we  can  intelligently  examine  the  calculations  made 
in  the  British  argument.  I  have  prepared  three  tables. 
[Mr.  Lansing  here  submitted  the  following  table:] 

Table  ''  A." 

Data  from  Exhibit  27. 
(Exhibits,  p.   4:i). 

T.ABLE  Relied  upon  in  thk  British  Akgumkst,  being 
THE  Average  Daily  Catch  ok  a  boat  on  the 
"Mary  Ellen"  from  Date  to  August  2+,  188fl. 


Inly   I.. 

2. . 

"  W.. 

■•  -t.. 

■■  .').. 

■  () . 

S.. 

■•  !».. 

•  10. 

•  11.. 

•  Iti. 

•  i:{. 

•  14-. 

•  ir>. 

••  itt. 

••  17... 

••  18 

•  19.. 

••  -Jit., 

•  -n.. 

■■  -i-i.. 

■■  2:5. 

•  -.^4 

•  •!:>.. 

••  27.. 

■  ■  -JM 


Number  of 

Cfttcli  of  ves9«l 

Daily  average 

per  boat 
from  (late  to 
August  24tli. 

(lays  from 
Aiii;iist  241I1. 

from  dale  to 
Aui{iiat  24tli, 

5r) 

2,222 

8.080 

.54 

2,21(t 

8.185 

53 

2,202 

8.309 

f)2 

2,199 

8-457 

51 

2,199 

8.(i23 

W 

2,199 

S.79f. 

49 

2,190 

S.938 

48 

2,190 

9.125 

47 

2,(»47 

8.710 

4<! 

2,047 

.H.900 

4.5 

2,047 

9.097 

44 

2,043 

9.28« 

4;$ 

1.971 

9.167 

42 

1,853 

S.823 

41 

I.S30 

8.926 

4(1 

1,797 

S.985 

;{9 

1,773 

9.092 

38 

1,741 

9.163 

37 

l,t!52 

8.928 

3(i 

1,(152 

9. 177 

35 

l,t')51 

9.432 

34 

l,(i05 

9.441 

33 

1,489 

9.024 

32 

l,4S9 

9.306 

31 

1.42(1 

i>.200 

30 

i,;>77 

9.180 

29 

1,375 

9.482 

28 

1.375 

9.82! 

'I  i^it 


II   ll 


f4 


11: 


5S>U 


(Mr.  Lansing's  Argument.) 


July  29.. 

"  80.. 

••  31.. 

Aug.  1.. 

lo    "  2.- 

'•  8.. 

"  4.. 

"  5-- 

"  «.. 

"  7.. 

"  8-- 

"  ». 

"  1(».. 

"  11.- 

20     "  12.. 

"  13.. 

"  J4   . 

"  15.. 

"  If... 

'•  17   . 

"  IS.. 

"  11).. 

"  20.. 

"  21.. 

30    "  22.. 

"  23.. 

"  24.. 


Number  of 

Catch  of  vessel 

(lays  from 

from  date  to 

August  24111. 

August  24tli. 

27 

1,341 

26 

1,148 

25 

1,016 

24 

955 

23 

817 

22 

730 

21 

686 

20 

67s 

li> 

675 

18 

675 

17 

583 

16 

523 

15 

441 

14 

326 

13 

308 

12 

308 

11 

308 

10 

308 

it 

257 

8 

257 

7 

257 

6 

256 

5 

125 

4 

125 

3 

67 

2 

67 

1 

30 

Daily  Rvciai;i 

])or  boHi 
from  dull'  i< 
August  'j-lih. 

9.933 
S.83(i 
8.13t; 
7.95S 
7.104 
6.63t; 
6  532 
6.7SO 
7.105 
7.500 
6.879 
6.537 
5.880 
4.657 
4.73b 
5.133 
5.600 
6.160 
5.711 
6.425 
7.342 
8.533 
5.000 
6.25(1 
4.466 
6.70(1 
6.00(1 


Table  of  Daily  Avekage  Catch  of  the  Stern  Bo.\t 
ON  THE  "Mary  Ellen  "  for  the  Month  of  Arorsi. 
1886. 


40 


50 


60 


Aug.  1. 

"  2. 

"  3." 

"  4. 

"  5. 

"  6. 

"  7. 

"  s, 

"  9. 

"  10. 

"  11- 

"  12- 

"  13. 

"  14. 

"  15. 

"  16. 

"  17. 

"  18. 

"  19- 

"  20. 

"  21. 

"  22. 

"  23. 

"  24. 


Number  of 

Catch  fiom 

Daily   avt-ra 
])er  stern  bn 
froHi  i1hI(^  I 
August,  2411 

days  from 

date  to 

August  24tli. 

A\igust  24th. 

24 

46 

i.9j(; 

23 

32 

1.391 

22 

32 

1.454 

21 

30 

1.42S 

20 

29 

1.450 

19 

29 

1.52»i 

18 

28 

1.5.'-.5 

17 

28 

1.647 

16 

27 

1.6S7 

15 

21 

1.400 

14 

9 

.642 

13 

9 

.691' 

12 

9 

.75(1 

11 

9 

.817 

10 

9 

.900 

9 

6 

.666 

8 

6 

.750 

7 

6 

.850 

6 

6 

1.000 

5 

1 

.200 

4 

1 

.250 

3 

1 

.333 

2 

1 

.50(i 

1 

1 

1.00(1 

591 

(Mr.  Lansing's  Argument.) 

The  first  column  of  Table  "  A"  contains  the  date;  the 
second  column  shows  the  number  of  days  from  the  24th 
August,  including  the  24th  (the  last  "lowering  day  "of 
th"  "  Mary  Ellen  "')  and  the  days  are  numbered  backwards 
I'loni  the  24th.  The  catch  is  derived  from  Exhibit  No.  27 
i(i.  B.),  containing  the  detailed  .statement  of  the  witness 
Bragg.  The  catch  is  also  computed  backward.  As  an 
lof.Munple  of  the  api)lication  of  Table  "  A,"  we  see  that  on 
tlie  first  of  August  the  prospective  dull}' catch  for  one  boat 
on  the  "  Mary  Ellen"  for  the  balance  of  the  season  was 
7.'.i.")>*  skins,  which  is  shown  in  the  last  column. 

The  table  also  includes  the  stern  boat's  catch  for  August, 
liul  we  have  no  figures  with  regard  to  its  July  catch. 

It  must  be  borne  in  mind  that  the  "Mary  Ellen"  did 
Hill  cease  sealing  on  the  24th.  That  was  the  last  day  on 
which  her  boats  were  lowered,  but  she  remained  in  the 
Sea  until  the  2!tth  of  August,  and  we  know  her  position, 
2ofiu'  from  the  chart  of  Townsend,  which  is  in  evidence  be- 
fore the  Commission  (the  data  from  which  that  is  drafted 
is  found  at  page  52  of  Executive  Document  137,  part  2nd), 
we  learn  that  the  "Mary  Ellen''  was  but  53  miles  from 
l^niniak  Pass  at  the  time  she  last  "lowered."  She  left 
till'  Sea  on  the  21»th  August. 

The  Commissioner  on  the  part  of  the  United  States: 

Where  is  that  verified  in  the  Record? 

Mr.  Lansing:— It  is  shown  by  Kxhibit  27.  I  call  your 
attention  to  page  43  of  the  Exhibits,  and  to  the  account 
,oof  the  hunter  Jacobson.  You  will  find  there  an  entry  for 
August  2itth:  "Not  hunting.  One  seal."  It  shows,  from 
that,  that  the  "Mary  Ellen  "  was  still  in  the  Sea  at  that 
time. 

Table  "  B"  is,  therefore,  prepared  by  the  same  method 
of  calculation,  but  takes  August  29th  as  a  basis  instead  of 
August  24th. 

Table  "  B. " 

AvKKAGE    Daily    Catch    of    a  boat   on   the   "Mary 
4°  Ellkn"  from  Date  to  August  29. 

Nunibor  of  Seals  taken  bj'  Average  daily 

days.     Nuni-  vessel  from  date  catoh  ])or  boat 

bercd  back.  to  close  of  seal-  from  dale  to 

wards.  in^.  close  of  season. 

.July  1 ....  (iO  2,225  7.41 

2 59  2,213  7.60 

3 58  2,205  7.68 

4 57  2,202  7.72 

5 56  2,202  7.85 

;o  "   fi 55  2,202  8.07 

7 54  2,103  8.14 

8 53  2,103  8.27 

9... 52  2,050  7.88 

"   10 51  2,050  8.03 

"   11 50  2,050  8.20 

"   12 49  2,046  8.35 

'•   13 48  1,974  8.22 

"   14 47  1,856  7.89 

"   15 46  1,833  7.96 

6o  "   10 45  1,800  8.00 

"   17 44  1,776  8.07 

"   IS 43  1,744  8.11 

"   19 42  1,655  7.88 

"   20 41  1,655  8.07 

"  21 40  1,654  8.2T 


■ IP. 

mi 
ji,- 

.   '  sii 

, 

■   '■  ' 

;*(i!-? 

1 

' 

V     li  ' 

'ih 

JUi 

1.1  '  s 


■i 

■ 

\n^  Hi 

n.u 


I 


I 


•i  , 

I  ; 

i  ■  ■ 

1  ! 


592 


(Mr.  Lansing's  Argument.) 

Number  of             Seals  Inken  by 
(lays,    Num-           vessel  fiuiii  date 
bored  back-            to  close  uf  seal- 
wards,  ing. 

July  22 39  1,608 

"   23 38  1,492 

"   24 37  1,492 

"   25 36  1,429 

>o  "   26 35  1,380 

'*   27 34  1,378 

"   28 33  1,378 

"   29 32  1,344 

"   30 31  1,151 

"   31 30  1,019 

Aug.  1 29  958 

"   2 28  820 

3 27  733 

"   4 26  689 

20  "    5 25  682 

"   6 24  678 

7 23  678 

"   8 22  586 

"   9 21  526 

"   10 20  444 

"   11 19  329 

"   12 18  311 

"   13... 17  311 

"   14 16  311 

30  "   15 15  311 

"   16 14  260 

"   17 .-.-  13  260 

"   18 12  260 

"   19 11  259 

"   20 10  128 

"   21 9  128 

"   22 8  70 

"   23 7  70 

"   24 6  33 

40  "   25 5  3 

"   26 4  2 

"   27 3  2 

"   28 2  1 

"   29 1  1 


Average  diiily 

catch  per  boni 

from  date  Ui 

close  of  seasuii. 

8.24 
7.85 
8.06 
7.93 
7.88 
8.10 
8.35 
8.40 
7.42 
6.79 
6.60 
6.85 
5.42 
5.31 
5.45 
5.65 
5.89 
5.32 
5.00 
4.44 
3.46 
3.45 
3.65 
3.88 
4.14 
3.71 
4.00 
4.33 
4.70 
2.56 
2.93 
1.75 
2.00 
1.10 

.12 

.10 

.13 

.10 

.20 


SO 


Table  "  C  "  is  the  average  daily  catch  per  boat  on  the 
"  Mary  Ellen  "  from  the  1st  of  July  to  any  given  date. 

Table  "  C." 

AvER.\GE  Daily  Catch  to   Date,    July   and    August, 


6o 


1886, 

"  Mary  Ellen." 

Number  of 

Average  diiily 

days. 

Seals  taken 

catch  per  hniil 

Numbered 

to  dote. 

from  July  hi 

forward. 

to  date. 

July 

1 

1 

12 

2.40 

(( 

2  .... 

2 

20 

2.00 

(( 

3  .... 

3 

28 

1.53 

ii 

4  .... 

4 

28 

1.(11 

H 

5 

5 

28 

.92 

41 

6  .... 

6 

82 

1.06 

t  ( 

7  .... 

7 

32 

.91 

(( 

8  .... 

8 

176 

4.37 

593 


(Mr.  Lansing's  Argument.) 


Number  of 

days. 
Numbered 
forward. 

.Iiily    9 9 

"     10 10 

"     11 11 

"     12 12 

10     "     13 -.  13 

"     14 14 

"     15 15 

"     16 16 

"     17 17 

"     18 18 

"     19 19 

'•     20 20 

"     21 21 

"     22 2iJ 

20     "     23 23 

"    24 24 

"    25 25 

"     26 26 

"    27 27 

"    28 28 

"     29 29 

"    30 30 

"     31 31 

Aug.    1  .-- 32 

30     "      2 33 

"       3 34 

"      4 35 

"       5 36 

"       6 37 

'•      7 38 

"       8 39 

"       9 40 

"     10 41 

"     11 42 

40     "     12 43 

"     13 44 

"     14 45 

"     15 46 

"     10 47 

"     17 48 

"     18 49 

"     19 50 

"     20 51 

"     21 52 

50     "     22 53 

"     23 54 

"     24 .55 

"     25 .56 

"     26 o7 

"     27 58 

"     28 59 

"     29 60 


Average  daily 

Seals   taken 

catch  per  boat 

tu  date. 

from  ,)uly    1st 

to  date. 

176 

3.88 

176 

3.50 

179 

3.25 

261 

4.18 

869 

5.67 

899 

5.60 

426 

5.66 

449 

6.71 

481 

5.68 

670 

6.33 

870 

6.00 

871 

5.71 

«17 

5.78 

788 

6.66 

788 

6.37 

796 

6.63 

846 

6.76 

867 

6.69 

887 

6.34 

881 

6.29 

1,074 

7.40 

1,206 

8.08 

1,267 

8.19 

1,405 

8.78 

1.492 

9.05 

1,536 

9.03 

1,543 

8.81 

1,547 

8.50 

1,.547 

8.36 

1,639 

8.57 

1,699 

8.71 

1,781 

8.90 

1,896 

9.24 

1,914 

9.11 

1,914 

8.90 

1,914 

8.70 

1,914 

8.60 

1,965 

S.54 

1,965 

8.36 

1,965 

8.17 

1,966 

8.02 

2.007 

8.38 

2.097 

8.22 

2,1.55 

8.28 

2,1.55 

8.11 

2.192 

8.11 

2,222 

8.08 

2.224 

7.94 

2,224 

7.80 

2,225 

7.67 

2,225 

7.64 

2,295 

7.41 

Now,  bef  jre  applying  these  tables  to  tue  individual 
"0 claims,  there  is  another  important  factor  which  must 
enter  into  the  calculation,  and  that  is  relative  to  the  com- 
iwrative  hunting  power  of  a  boat  and  a  canoe.  This  is 
of  importance  because  of  the  vessels  seized  by  far  the 
lar^^er  number  carried  Indian  hunters,  while  the  "Mary 
Elleu  "  was  outfitted  with  boats.     In  the  claims  presented 


w 


■  i     ! 


li'-M 


S'Kffn- 


r.  !f„ 


(Mr.  Lansing's  Argument.) 

one  claim  is  made  for  a  vessel  with  canoes  having  white 
huntei-s,  estimated  catch  1)!>4  skins,  valued  at  Sll,95s; 
four  claims  for  vessels  carrying  boats  and  wliite  huntei>, 
8,21l>  skins,  ^1>1,823;  and  for  vessels  carrying  canoes  and 
Indians,  sixteen  claims,  aggregating  H8,!S28  skins,  valued 
at  $2!t7,<'>tK).  It,  therefore,  shows  how  important  it  is  in 
computing  tlu*  catch  to  determine  the  relative  hunting 

lo  power  of  a  boat  and  a  canoe. 

In  tlio  Hritisli  argument  at  page  79,  line  9,  the  follow- 
ing statement  is  made  in  reference  to  this  important 
factor:  "It  is  shown  that  boats  took  about  one-tliiid 
more  than  an  equal  number  of  canoes."  In  other  words 
the  liitio  is  this;  a  canoe,  K,  to  a  boat,  4.  But  in  the  oral 
argument  it  apjjcars  that  it  was  intended  that  the  ratio 
should  be  as  2  to  15.  In  order  to  supi)ort  their  contentiim 
an  endeavor  was  made  by  my  learned  friend,  Mr.  Hod 
well,  to  show  that  there  was  little  or  no  difference  in  tin 

20 hunting  power  of  a  boat  and  a  canoe,  and  he  slated  at 
page  li  11,  lint' 48,  of  his  oral  argument,  that  "it  appears 
that  the  Indian  canoes  were  just  as  good  for  hunting  as 
boats,  and  that  under  oidinaiy  ciiciimslances  they  ouglit 
to  have  had  as  large  a  catch";  and  in  support  of  this 
statement  lie  ( ited  the  vvitiuss  Bragg.  I  will  call  your 
Honors'  attention  to  his  testimony  at  page  2(i5  ot  llic 
Record,  line  9: 

"  Q.  Docs  it  make  a  diflcrMJce  whether  there  are  two  men  in  a  bout, 
"  and  us  to  whether  they  nre  eanoes  or  boats?  A.  Well,  it  niukes  :i 
^o  "  difference  /o  iihitK  hioiiers  whether  there  is  two  or  three  men  in  u 
"  boat. 

"  Q.  And  if  there  were  only  two  men  iu  a  boat  instead  of  three 
"  thev  would  not  have  as  good  results,  I  siippoBe  ?  A.  I  do  nut 
"  think  they  would.     No." 

And  again  at  line  39: 

"  Q.  Where  you  had  three  men  in  a  boat  could  you  capture  more  ot 
"  the  seals  that  were  actually  shot  or  wounded  than  when  you  Imd 
■'  two  men  in  a  boat  ?    A.  Yes." 

Then  my  learned  ftiend  refers  to  the  witness  Byeis,  and 
40  he  is  cited  to  show  t'lat  canoes  can  cover  as  nmch  ground 
as  boats.     1  refer  to  his  evidence  also  at  page  823,  line  2s 
of  the  Hecord.     He  says: 

"  Q.  Arc  not  wtiiie  men  considered  better  thon  Indians?  A.  No, 
"  sir. 

"Q.  Njt  better  hunters?     A.   No. 

"  y.  They  are  not  more  desirable?  A.  No,  I  presume  they  are  uot 
"  as  desirable  as  Indians  at  the  present  time." 

1  call  your  Honor's  attention  to  that  statement  for  the 
reason  that  now   only  spears  are  allowed  to  be  used  in 
50  Bering  Sea: 

"Q.  I  am  speaking  of  1886  and  1887?  A.  Well,  I  do  not  know  iit 
"that  time;  they  were  about  equal.  I  think  the  Indian  was  just  m 
"  desirable  as  the  white  man." 

Thus  far  my  learned  friend  read.  Now  take  the  next 
()uestion. 

"  Q.  And  they  occomplished  as  good  results  in  the  canoe,  I  sup 
"  2J0se?     A.   Yes,  tican-diiiy  to  l/ie  (tmouiit the;/  carried." 

Now,  if  your  Honors  will  recollect  the  evidence  from  bi;- 
fio ginning  to  end  with  regard  to  the  catches  of  sealing  ves- 
sels, it  was  that  in  vessels  of  equal  tonnage  those  having 
white  iiunteis  would  carry  five  boats  while  those  having 
Indians  would  carry  ten  canoes.  The  ratio  was  two  to  one, 
and  I  hat  is  what  the  witness  Byers  means  when  he  i-ays 
lliat   they  were  about  equal  "according  to  the  amount 


5i»r. 


fsfl 

w 

J 

|] 

(Mr.  Lansing's  Aiguniont.) 

tliey  carried,"  because  they  had  two  canoes  for  overy  boat 
in  vessels  of  the  same  size. 

The  witness  LaughUn  McLean  is  also  cited  to  show  that 
a  small  boat  with  two  men  vv(juld  have  as  good  results  as 
a  larger  boat  witii  three  men.  I  will  read  his  evidence  at 
page  73»>,  line  S: 

"  Q.  Is  it  lit)  iiilviintaKii  to  liiivi^  tlirof  iiit'u  in  a  Ixmt  aH  against  two 
10  ■•  men  iu  a  boaty  A.  You  faiinot  work  a  iar({<'  boat  with  two  men  to 
••  any  ailvantaRO. 

"  Q.  Will  tlircci  inon  in  a  boat  Ret  bettor  roHiiltH  than  two  men  in  a 
'•  boat?  A.  I  ilon't  know;  witli  a  Hinaller  boat  I  think  two  men  would 
•■  lip  JHHt  aK  good. 

"  tj.  Do  yon  know  of  white  huntors  n<''"t?  ""t  two  mi'n  in  a  boat? 
••  .\.   Yes,  Hir;  I  have  known  Homi'  to  go. 

"  Q.  When?  A.  Well,  I  think  it  was  iu  18HH  or  IHHit,  the  'Molly 
•■  /VilaniH,'  now  the  '  E.  H.  INtarvin,'  hail  twelve  boats,  two  men  in  a 
"  boat." 

Now,  wi'  have  the  ovideiioo  as  to  that  voyage  of  the 
:o"  Molly  Adams,"  and  we  find  that  she  entered  the  Sea  on 
.Inly  4th,  and  stopped  sealing  on  August  2r)th.  That  is  an 
average  daily  catch  of  1.75  skins  to  a  boat  and  needs  no 
connnent.  But  this  witness  was  not  referring  to  canoes 
at  all,  he  was  referring  to  the  comparative  hunting  power 
of  different  sizes  of  boats,  the  larger  carrying  three  men 
and  the  smaller,  two  men.  There  is  nothing  here  to 
show  that  he  was  comparing  the  himting  power  of  canoes 
and  boats.  His  own  experience  was  that  the  average 
daily  catch  per  boat  of  the  "  Favourite  "  in  1887  was  5.52 
joskins,  while  in  the  next  three  years  when  he  carried  canoes, 
the  average  was  2.08,  2.it6  and  2.{>7  respectively.  The  ex- 
perience, then,  of  Laughlin  McLean  was  that  the  sealing 
|)Ower  of  the  canoe  and  boat  was  as  2  to  1. 

Mr.  Bodwell: — Where  are  the  facts  concerning  the 
"  MoUie  Adams  "f 

My  friend  requests  the  data  in  regard  to  the  "  MoUie 
Adams."    At  page  67«,  line  45,  it  appears  that  she  en- 
tered the  Sea  on  July  4th,  and  that  she  stopped  sealing  on 
the  25th  August,  page  678. 
40     Mr.  Peters: — What  year  is  that; 

Mr.  Lansing:~That  is  in  1889.  That  she  carried  twelve 
hunting  boats  is  in  the  evidence  of  McLean  that  I  have 
already  read. 

It  should  be  noted  also  that  the  witness  Gaudin  orig- 
inally stated  that  the  vessel  had  on  board  between  fifteen 
and  sixteen  hundred  skins,  but  on  cross-examination  it 
was  developed  that  four  hundred  of  these  were  taken  in 
raids  on  the  Pribyloff  Islands,  and  that  from  the  25th  of 
Angust  until  October  4th  the  vessel  was  in  Bering  Sea, 
30  and  never  lowered  her  boats. 

In  the  argument  on  behalf  of  the  United  States,  we 
quoted  the  testimony  of  two  witnesses,  Alexander  McLean 
and  Robert  McKiel,  as  to  the  hunting  power  of  canoes 
and  boats,  and  I  will  call  your  Honors'  attention  to  that 
testimony,  which  is  at  page  24!»of  the  argument  on  behalf 
of  the  United  States.  McLean  says,  that  "it  will  take 
inuie  than  two  canoes  to  compete  with  a  good  white  hun- 
ter"; and  Captain  McKiel,  a  witness  sworn  on  behalf  of 
(iieat  Britain,  says  that  he  should  think  the  ratio  was 
'oalKuit  six  to  ten.  We  have  no  other  witness  in  the 
llecord  that  gives  testimony  as  to  the  proportion. 

Besides  showing  the  area  of  water,  which  a  canoe  could 
ciivor  compared  with  that  covered  by  a  boat,  my  learned 
friend  endeavored  to  support  his  contention  by  showing  that 
tile  Indians  at  that  time  carried  guns,  and  were  therefore  as 


A: 


i'  i;- 


ir 


r>)Mt 


(Mr.  Lansing's  Argument.) 

well  armed  as  white  hunters.  In  regard  to  that  nssertidii, 
I  desire  to  read  from  the  Kecord,  at  j>age  17«(lt,  line  Ut.  fi 
portion  of  the  testimony  of  t)vven  Thomas,  wiio  is  in 
terested  in  a  measure  in  these  chiims.  He  was  at  thai 
time  referring  to  the  eruise  of  tiie  "  Blaclt  Diamond  "  in 
lHSi>.     His  e.\amination  is  as  follows: 

"  (j.  You   (liiln't   Huitl   lit  ull?    A.  They  took  away  the  HpcnrH  uinl 
10  "  tliiuKH. 

"Q.  Hud  yoii  ony  i^nuH'f    A.  WoU,  tlipy  Jtlio  IiulinuHJ  had  gniiN 
"  but  thpy  cduhl  not  Hhoot  notliiuKI  wo  coiildu't  tr 


UHt  thorn  with  kiiiih 
A.  No,  sir;  nothing  at  all  oiilv 


30, 


"  ninrh 

"  Q.   Did  tlicy  tuko  tho  «nn»  away? 
"  tho  Hin'urM. 

"Q.  Wan  yotir  Indian  crow  u»iiiK  till' (/iinH  miichy  A.  Tnoyulw'a\s 
"  oarriod  k'Hih  in  caHo  tho  H|H>arH  woro  taken  away. 

'•  Q.  They  woro  UHiu^  tlio  HpoarH  all  the  tiiiu'  ?    A.  Y<'h,  Hir. 

"  Q.  Had  yon  any  nioanH  of  inaking  Hpoai'H  on  board  ?  A.  No. 
"  Hir;  I  had  not. 

"  y.  Anyway,  you  didn't  Hoal  at  all  V    A.   No,  Hir." 

'  Again,  1  will  read  an  extract  from  the  examinatimi  ' 
the  witne.ss  Hansen,  which  was  referred  to  by  niy  learned 
friend  to  show  the  fact  that  Indians  used  guns  in  those 
yeai's.     Tt  is  found  at  pa^t;  fil.-i  of  the  Uecord,  line  ti;i  - 

"  Q.  You  nay  you  had  Queeu  (.Uiarlotte  Indians  iu  the  Uohrin^; 
"  Hoa  y    A.   YoH,  sir. 

"  Q.  Is  thoro  any  diiToronoo  liotwoou  them  and  the  IndiaiiH  you 
"  genorally  have  V  A.  Well  tho  Queen  Charlotte  Indiana  used  xuii'- 
'  ■  altogoth'or  at  that  time.  I  do  not  know  whether  they  might  \\m- 
"  spears  now. 

"  Q.   ■\Vhirli  were  the  best  Indians,  the  Indians  that  used  s|)eaiH  or 

the  t^ueen  ('harlott(>  Indians  that  used  guns  ?  A.  I  think  tliosf 
'•  who  had  the  spears  were  the  Ix'st." 

And  further  down  on  the  same  page  he  says  this: 
"  i}.  This  time  what  Indians  had  you  ?     A.   Kyoijuot  Indians. 
"  Q.   They  understood  speariuK  V     A.   Yes,  sir. 

"  Q.  Did'they  use  f^uns  at  all  ?     A.   Well,  I  think  one  or  two  lii- 
"  diauK  had  guns. 
"  Q.  As  a  general  rule  did  they  use  guns  or  spears  ?    A.  Hpears.' 

It  would  appear  that  when  the  Indians  did  have  t;niis 
they  were  eonsidered  poorer   huntsmen   than   those  wim 

"^^had  spears,  and,  therefore,  the  proportion  of  seals  taken 
by  tlu'in  would  he  even  less  if  they  were  armed  with  guns. 
hut  I  have  another  leference  with  regard  to  the  pio- 
portionate  hunting  power  of  a  boat  and  a  canoe,  which  is 
to  the  oral  argument  of  the  learned  senioi'  counsel  for 
(ireat  Britain.  It  is  found  at  page  Us  of  his  argiunent. 
line  Tio,  where  he  savs  (and  this  was  after  submitting  a 
computation  of  the  average  c;itch  of  other  schooners  to 
sup|)ort  the  contention  that  the  '"  Mary  Kllen  "  should  lie 
taken  as  the  typical  vessel): 

'  "  I  have  proved  as  a  faet  that  every  vessel  properly  eiiuipped  in 
'•  Behring  Hea  during  these  years,  per  txiat  and  i)er  canoe,  obtaiui'il 
"  about  an  average  nuniber  of  seals  ;  per  boat,  they  got  sonii - 
"  where  between  i)  and  7,  per  canoe,  they  got  somewhere  about  4  dm- 
"  ing  those  times." 

Here  is  the  position  of  the  two  counsel:  one  assumes 
tlie  ratio  between  them  as  four  to  nine,  or  four  to  seven, 
while  the  other  maintains  that  they  are  e<iual.  We, 
therefore.  ass(;rt  that  from  the  evidence  and  from  tlic 
>tatement  of  the  learned  senior  counsel,  the  ratio  b'l 
f'Ocanoes  given  iu  the  argument  on  behalf  of  Great  Britain 
is  shown  to  be  entirely  too  large  in  any  event. 

Bearing  in  mind  what  the  evidence  discloses  as  to  sncli 
ratio,  we  will  proceed  to  an  examination  of  the  applica 
tion  in  the  various  claims  of  the  formula  for  computing' 
the  prospective  catch. 


.M»7 


(Mr.  Lansing'H  Arp^iimeiit.) 

An  estimutiMl  catch  is  claimed  for  the  "  Caroleiia "  for 
r<iiir  canoeH  and  one  storn  hoat,  hunting  from  Augunt  Ist 
ti>  August  3l8t.  The  printed  argument  on  behalf  of  Great 
|'.i  itain  does  not  state  wlietiier  the  l^lst  is  included  or  not, 
lint  it  is  presumed  to  bo  sr  Calculating  on  the  basis  re- 
t.i  red  to,  and  using  the  tal)lo  for  hunters  and  stern  boat 
,,|  the  "  Marv  Ellen"  ^Table  "  A  "),  we  have  l,04«  skins; 

loiii,  if  thirty  days  oidy  are  included,  l,(il2  skins.  Exdud- 
111};  the  stern  hoat,  the  comniil  ition  for  the  "Carolena" 
is  substantially  correct  vvitluii  about  four  Kkin.s,  being 
lUMi,  That  is.  the  claim  is  for  about  four  skins  more  than 
tlii>  coinputation  shows,  bearing  in  mind  that  it  is  as- 
-iiiikmI  that  a  canoe  with  two  white  hunters  equals  a  boat 
witii  three  hunter.". 

In  the  Cease  of  the  "Thornton,"  the  same  statement 
may  he  made  that  it  is  appro.ximately  accurate  provided 
till'  st«'rn  boat  is  excluded,  except  that  it  should  he  l>!>()in- 

jostisid  of  !•!»+. 

In  the  case  of  the  "  Onward,"  we  find  on  the  basis  of 
till'  three  quarters  hunting  power  of  a  canoe  (for  the 
•Onwaid"  carried  canoes),  her  catcli  would  have  been 
l,ii:'iS  skins,  while  the  claim  is  for  l,4.')t'>.  It  would,  there- 
lore,  appear  in  this  case  that  the  two-thirds  ratio  was  ap- 
|i|i(il.  wiiich  would  make  about  1.4H0  .skins. 

In  the  ca.se  of  the  "  Favourite,"  which  had  ten  canoes 
;inil  a  stern  boat,  from  August  4th  to  Septendter  1st,  less 
l'^T  skins  taken  by  the  vessel  after  that  date,  tlie claim  is 

;o  made  for  s<H)  skins.  The  vessel  is  alleged  to  have  been 
uarnt'd  on  the  'id  of  August.  If  we  apply  the  ratio  of 
two  to  three  as  the  hunting  power  of  canoes,  comparing 
I  liom  with  the  boats  of  the  '"Mary  Ellen,"  we  find  that 
the  catch  would  have  been  1.21!t  skins,  and  for  the  stern 
Inat,  4(1  skins,  a  total  of  l.25)>  skins;  from  which,  if  we 
I'.i'dr.ct  1H7  skins,  we  get  1,052  skins,  a  difference  of  272 
skins  with  the  numbers  claimed.  It  does  not  seem  as  if 
in  that  case  the  "Mary  Ellen"  could  have  l)een  used  as 
tilt'  typical  vessel,  or  that  the  formula  jn-oposed  could  have 

4i)l)('en  here  ajjplied.  And  this  is  still  more  api)arent  if  we 
employ  the  average  hunting  power  claimed  in  the  printed 
argument  of  Great  Britain,  four  to  three,  for  then  the 
istimated  catch,  less  the  1S7  skins,  would  he  1,224. 

The  "Black  Diamond."  1H,S<5,  carried  nine  canoes,  and 
I  lie  claim  is  made  for  1,4!»1  skins.  We  find,  by  calculation 
I  n  the  "  Mary  Ellen  "  basis,  that  instead  of  1,4!>1  skins,  the 
1  la  ill)  should  he  1,187  skins  or  ;?(iO  less  than  that  actually 
made.  The  catch  of  the  "  Favourite  "  claimed  is  !»87  skins. 
Her  claim  commences  on  the  same  day,  and  ends  one  day 

;oMioner  than  that  of  the  "Black  Diamond."  There  is  a 
tlilTerence  then  of  one  canoe  in  favor  of  the  "  Favourite," 
ami  one  day  in  favor  of  the  "  Black  13iamond,"  yet  the 
(iaiin  of  the  "  Black  Diamond  "  is  for  five  hundred  skins 
more  than  for  the  "  Favourite."  Are  we  to  presume  the 
same  method  of  computation  has  heen  applied  in  both 
rases? 

In  the  "  Say  ward  "  case,  we  find,  by  the  application  of 
tiic  three  fourths  rule,  as  to  hunting  power,  that  the  catch 
would  have  amounted  to  4,207  skins,  and  the  claim  is  for 

'"-'.'.121.  There  is  an  excess  of  l,28r»  skins  by  the  computa- 
tion employed  over  the  number  claimed.  Now,  what 
mt'thod  has  been  used  in  this  case?  Certainly  not  the  one 
|i'0|iosed. 

In  the  case  of  the  "  Anna  Beck  "  a  claim  is  made  for 
:'.||'M>  skins,  while  on  the  hunting  ratio  of  four  to  three  it 


■#■ 


'l 

il 

■1' 


ii; 


5!tS 


(Mr.  Lansing's  Argument.) 


would  amount  to  4,199  skins.     Here  we  have  about  1,l'imi 
more  skins  according  to  the  formula  than  the  amount 
claimed.     How  can  my  learned  friends  explain  that  difl'n 
ence? 

In  the  case  of  the"  Alfred  Adams,''  the  claim  is  for  l,;il4 
skins,  and  if  we  calculate  on  the  three-quartei-s  rule  for  a 
canoe  we  have  1,H8S  skins,  an  excess  of  only  44.  It  would 
loappear,  then,  that  iu  the  case  of  the  "Alfred  Adams''  on 
the  three-fourths  rule  and  the  "Carolena"  and  the  '"On 
ward"  on  the  two-thirds  rule  the  proposed  method  had 
been  applied  and  seems  to  be  peculiarly  and  convenient  I  v 
elastic. 

In  the  case  of  the  "  Crrace"  we  will  again  apply  the  nilf 
that  the  hunting  power  of  canoes  to  boats  is  as  three  to 
four.  The  claim  made  is  for  ;?,00<>  skins,  but  by  using  tlic 
formula  which  is  proposed  in  tlie  argument  on  behiilf  of 
Great  Britain,  we  find  the  catch  figures  up  to  .'»,.524  skins, 
20 almost  double  what  is  now  claimed.  A  formula  to  ht> 
of  value  must  be  one  that  can  be  applied  in  every  case. 
but  the  one  proposed  clearly  has  not  that  recommendation 
for  its  adoption.  It  could  not  have  been  applied  in  tin' 
case  of  the  "  Grace,"  or  else  there  is  some  other  factor  in 
volved  which  has  not  been  disclosed  or  suggested,  and 
which  is  perhaps  purely  arbitrary.  There  seems  to  be  no 
other  explanation  of  these  variations. 

In  the  claim  of  the  "  Dolphin  "  we  have  a  similar  state 
of  affairs,  the  excess  of  the  computed  number  of  skins 
30  over  the  number  claimed  being  about  the  same  as  in  tln' 
case  of  the  "  (xrace."  The  claim  is  for  ;{,400  skins,  while 
a  calculation  by  the  formula  gives  about  fi, 504  skins.  It 
would  appear  that  my  learned  friends,  when  they  came 
to  the  actual  application  of  this  formula,  found  how  un 
just  and  inequitable  it  was,  and  that  it  could  not  witii 
even  a  show  of  reasonableness  be  applied,  and  they,  there 
fore,  arbitrarily  reduced  their  demands. 

I  might  go  through  all  of  these  claims,  and  compare 
them,  showing  similar  conditions  in  nearly  every  one;  an 
40 estimated  catch,  if  computed  on  the  formula  proposed,  in 
most  cases  largely  in  excess  of  the  amounts  claimed, 
while  none  of  them  correspond  with  a  strict  application 
of  the  method  suggested;  but  to  do  so  would  be,  I  con 
ceive.  an  unwarranted  imposition  on  the  time  of  the  Com- 
missioners, and  I  have  exhibited  the  erroi-s  in  enougii 
cases  to  show  the  inconsistencies  of  the  claims  and  the 
computations 

We  might,  from  comparison  of  the  claims  made  with 
the  results  of  these  calculations,  throw  aside  the  "Mary 
50  Ellen  "  plan  as  having  been  substantially  abandoned  hy 
Great  Britain  as  a  method  of  computing  the  catch,  except 
for  the  reassertion  of  it  by  the  learned  Attorney-General. 
I  shall  therefore  make  a  comparison  of  the  catch  of  the 
"  Mary  Ellen,"  this  so-called  "  typical  vessel,"  witii  three 
otiier  vessels  in  1S8(>,  of  which  we  have  the  full  data. 
The.se  are  the  "Thornton."  the  "  W.  P.  Say  ward  "  and 
the  "Dolphin."  I  will  submit  these  data  in  a  tabulated 
form. 

60     [Mr.  Lansing  submitted  the  following  table:] 


i(i! 


}m--'f 


599 


10 


(Mr.  Lansing's  Argument.) 

Table  *'  D." 

Authorities. ~Z>oifp/im.  Notes  from  Warrcm's  diary  (Rec- 
ord, p.  280). 

Thornton.  Log,  Exhibit  No.  4Y  (G.  B.) 
(Exhibits,  p.  91). 

W.  P.  Sayward.  Diary  of  Andrew  Laing, 
mate  (Kecord,  p.  10!)f). 

Mary  Ellen.  Exhibit  No.  27  (G.  E.)  (Ex- 
hibits, p.  47). 

Daily  Catch  op  Vessels  in  1886. 

"  Dolpliiii."     "Mary  Ellen."  "  W.  P.  Sayward."  "Thornton." 


20 


40 


5u 


June 

25 

.... 

.  .  -  » 



•  ■  «  « 

t  ( 

!2(i 



-  -  -  * 

-  - .  - 

>  •  •  ■ 

( i 

27 

a 

28. 



16 



u 

29 



0 

.... 



t  i 

30 

15 

.... 

.Inly 

1 

... 

10 

.... 

>  *  ••  • 

ii 

2 

7 



0 

( ( 

3 

87 

3 

»  «  —  ■ 

0 

t  i 

4 

0 

0 



8 

i  i 

5 

0 

0 



0 

li 

6 

0 

8 

11 

44 

ii 

1 

0 

0 

2 

42 

ii 

8 

53 

143 

16 

47 

i  i 

9 

22 

0 

0 

0 

It 

10 

0 

0 

5 

1 

(  i 

11 

43 

4 

10 

12 

1 1 

12 

31 

72 

13 

16 

•  i 

13 

68 

118 

46 

34 

a 

14 

162 

23 

11 

0 

f  i 

15 

29 

33 

1 

r 

n 

16 

58 

24 

71 

8 

u 

17 

14 

32 

107 

0 

t  ( 

18 

196 

89 

147 

9 

( ( 

19 

0 

0 

0 

0 

u 

20 

0 

1 

14 

0 

n 

21 

76 

46 

101 

19 

i  i 

22 

35 

97 

0 

8 

u 

23 

63 

0 

73 

1 

il 

24 

14 

44 

39 

0 

i( 

25 

3 

30 

0 

0 

tf 

26 

ft 

2 

31 

5 

(( 

27 

9 

0 

5 

0 

(i 

28 

45 

34 

18 

2 

u 

29 

90 

193 

90 

54 

u 

30 

184 

132 

123 

31 

t  ( 

31 

186 

61 

47 

3 

Aug. 

1 

193 

152 

129 

33 

2 

26 

87 

70 



U 

3 

56 

45 

63 

U 

4. 

0 

8 

0 

■  •■■••• 

i  t 

5 

2 

5 

67 



(( 

6 

63 

1 

26 

u 

< ....... 

0 

92 

0 

.  -  - 

(I 

8 

16 

61 

7 

u 

9 

45 

88 

46 

... 

(( 

10 

141 

127 

9 

-  *  • 

( t 

11 

14 

18 

18 

•  «  ~  ■» 

i( 

12 

0 

0 

■  «  _  w 

H 

13 

.--. 

0 

0 

... 

•«i:.ii 


m 


;''i'  ,  i ' 


I 
U 


i:  ;   •      I 


(100 


(Mr.  Lfinsing's  Ar^;ument.) 

"  roliihin."      "  Mmy  Ellen.'  "  W.  P.  Sajward."  "Thornloti.' 

Aug.  14 0  0              

"     15 44  1 

"10 0  0 

"     17 0  0 

"     18 1  0 

"      19 ...  140  0 

lo      "     20 2  0 

"     21 68  0 

"     22 0  0 

"     23 87  64 

"     24 81  12 

"     25 2 

"     20 0              

"     27 1 

"     28 0              

"     29 1 

2o      "     30 

"     31 

The  data  with  reference  to  the  "Dolphin"  is  taken 
from  the  notes  of  J.  D.  Warren's  diary,  which  ap- 
pears in  the  Recoid  at  page  280.  Those  witli  r»'f- 
erence  to  the  "Thornton"  aie  from  the  log  of  the 
vessel,  which  is  Exhihit  47,  G.  B.,  and  found  at  page 
91  of  the  Exhibits.  The  facts  relating  to  the  "  Say  ward  " 
are  from  the  note  book  of  Andrew  1-aing,  which  appears 

3oat  page  38  of  the  Exhibits.  The  "  Mary  Ellen  "'  also  ap- 
pears in  this  table,  and  I  have  already  given  the 
references  where  those  data  may  be  found.  I  desire 
first  to  call  your  attention  to  the  comparative  catches  ou 
the  same  day,  of  these  various  vessels.  On  July  3d 
there  were  three  vessels  in  the  Sea,  the  "Dolphin," 
the  "  Mary  Ellen, "and  the  "  Thornton."  The  "  Dolphin  " 
took  87  seals,  the  "Mary  Ellen"  3,  and  the  "Thorn- 
ton" took  one.  On  July  6th  the  "Dolphin"  took  no 
seals,  the  "  Mary  Ellen  "  S,    the  "  Say  ward  "   11,  and  the 

40  "  Thornton  "  44.  On  the  8th  of  July,  the  "  Dolphin  "  took 
53,  the  "Mary  Ellen  "  143.  the  "Say  ward  "10,  and  the 
"Thornton  "47.  On  the  14th  of  July  the  "Dolphin" 
took  102,  the  "Mary  Ellen"  23,  the  "hay ward"  11.  and 
the  "Thornton  "  took  none.  There  are  other  compaiisons 
whit;h  might  be  made  on  this  same  line,  but  they  are  so 
patent  on  examination  that  I  will  not  occupy  the  time  of 
the  Commission  for  that  jiurpose. 

I  propose  now  to  conii)aie  the  catch  of  the  "Thornton," 
which  is  one  of   the  vessels   for   which  claims  are  made, 

50  w'ith  that  of  the  "  Mary  Ellen  "  for  the  period  prior  to  the 
seizure  of  the  "Thornton,"  when  there  can  be  no  claim 
made  that  her  voyage  was  in  any  way  interfered  with. 
The  "Thornton"  was  equipped  with  boats  and  carried 
white  hunters,  as  did  the  "Mary  Ellen."  The  former 
carried  four  hunting  boats  and  the  latter  five,  and  it  will 
be  a  just  comparison  to  show  whether  the  conditions  are 
the  same  for  vessels,  even  in  tlie  same  year.  With  regard 
to  the  "  Thornton,"  you  will  lemembei'  that  the  testimony 
is  that  her  hunters  were  etpial  in  skill  and  exi)erience  to 

60 those  of  the  "  Mary  Ellen."  You  will  also  remember  the 
fact  that  the  "Thornton"  now  presents  a  claim  for  an 
estimated  catch  based  on  the  catch  of  the  "Mary  Ellen." 
In  order  that  we  may  more  readily  gra.sj)  the  full  mean- 
ing of  these  figures,  I  have  prepaicd  them  in  the  f'orni 
of  a  diagram,  whicli  is  marked  "No.  0."    The  average 


601 

(Mr.  Lansing's  Argument.) 

catch  per  boat  for  each  day  is  here  shown.  I  call  your 
attontion  particularly  to  July  6th,  7th,  8th,  11th,  12th, 
14th,  17th  and  18th,  which  show  plainly  the  variations  in 
tlie  catches  of  the  two  vessels.  At  the  right  hand  of  the 
diagram  you  will  find  a  smaller  one,  which  shows  the 
relative  catch  per  boat  for  these  two  vessels  for  three 
periods  of  ten  days  each  during  July.  You  will  see  that 
loduring  the  first  period  the  "Thornton"  exceeded  the 
"  Mary  Ellen"  in  her  average  catch  per  boat,  she  taking 
37  and  a  fraction  and  the  "  Mary  Ellen"  33.  In  the  next 
you  will  see  that  the  "Mary  Ellen"  largely  exceeds  the 
"  Thornton,"  and  in  the  third  you  will  see  that  the  ratio  is 
stil!  greater. 

The  Commissioner  on  the  part  of  United  States: — Will 

you  read  into  the  notes  in  the  morning  the  catch  of  the 

"  Mary  Ellen "  before  the  first  of  August  and  after  the 

first  of  August,  so  that  we  may  see  what  her  catch  was 

20 in  July  and  August? 

Mr.  Lansing: — I  will,  your  Honor. 

At  half-past  four  o'clock  the  Commissioners  rose. 


!;    5t 


(I  I 


■J       k 


u 


OommisBioners  under  the  Convention  of  February  8. 

1896,  between  the  United  States  of  America 

and  Great  Britain. 


illH^M: 


Legislative  Council  Chamber,  Provincial  Building, 
Halifax,  N.  S.,  September  14,  1897. 

lO 

At  10.46  A.M.,  the  Commissioners  took  their  seats. 

Mr.  Lansing: — May  it  please  your  Honors, 

Just  before  the  Commissioners  arose  yesterday  aftir- 
noon,  the  Commissioner  on  behalf  of  the  United  States  re- 
quested a  statement  as  to  the  catch  of  the  "  Mary  Ellon  " 
in  August,  and  prior  to  the  first  of  August.  The  catdi  of 
the  "Mary  Ellen  "  for  the  entire  season  was  2,395  skins. 

20  The  reference  is  to  the  evidence  of  the  witness,  Bragg, 
page  260,  line  45  of  the  Record.  Of  this  number,  1.(mi3 
were  taken  during  the  month  of  August.  Reference,  page 
303,  line  50.  This  would  leave  for  the  catch  prior  to  tlu' 
first  of  August,  1,392  skins.  I  should  state  in  that  con- 
nection  that  that  include.s  the  catch  of  the  stern  Ixiat. 
The  request  of  the  learned  Commissioner  also  suggested 
to  me  that  we  might  make  a  comparison  between  the  aver 
age  daily  catch  of  the  vessels  seized  in  1886,  itnd  the  catch 
of  the  '•  .Mui y  Ellen  "  prior  to  August  first. 

30  The  Commissioner  on  the  part  of  the  United  States:— 
Your  diagram  in  relation  to  the  *'  Thornton  "  arid  "  Maiy 
Ellen  "  Cduld  only  cover  the  month  of  July. 

Mr.  Lansing: — It  only  does  cover  the  month  of  July,  for 
the  reason  that  there  was  no  interference  prior  to  that 
time.  There  can  be  no  claiin  made  that  the  "Tiiornton  "' 
was  in  any  way  interfeied  with  before  her  actual  seizure. 
Now,  1  make  this  further  comparison  in  accordance  witli 
the  suggestion  of  j'our  Honor:  the  "Thornton"  wase(|uip- 
ped  witli  four  boats;  she  entered  the  Sea  on  July  2il,  and 

40  was  seized  the  evening  of  August  1st.  She  had  been  seal- 
ing thirty-one  days,  and  bad  takeri  403  skins,  wliich  would 
give  a  daily  average  of  3.25  skins  for  one  of  her  four 
hoats  during  the  time  the  was  in  the  Sea.  If  we 
examine  Table  "C,"  which  I  have  already  submitted,  and 
which  shows  the  "Mary  Ellen's"  catch  and  the  daily 
average  to  date,  we  will  find  on  August  1st  that  her  daily 
average  per  boat  was  8.78.  and  that  for  the  balance  of  the 
season  it  was  5.85.  We  have,  therefore,  a  ratio  between 
8.78  and  5.85,  and  the  catch  of  the  "  Thornton  "  3.25,  and 

50  what  she  would  have  done  for  the  balance  of  the  seasen, 
and  we  find  that  she  would  have  taken  a  daily  average  nl 
2.166,  which  makes  for  her  four  boats  8. 064 skins  per  day, 
and  lor  llie  thirty  days  for  which  claim  is  made,  it  would 
amount  to  260  skins.  The  argument  for  Great  Britain 
claims  994  skins. 

Now,  we  will  calculate  the  "  Carolena "  in  the  same 
way.  She  look  684  skins,  according  to  the  testimony  of 
Mr.  Munsie,  and  was  equipped  with  four  canoes. 
Her  daily  average  per  canoe  for  the  period  prior  to  Augu.'^t 

60 1st  would  lie,  therefore.  5.343,  and  that  of  the  "  Mary 
Ellen"  the  same  as  in  the  case  of  the  "  Thornton,"  8. 7H; 
and  we  have  the  latio  8.78  is  to  5.85  as  5.343  is  to  what 
the  daily  average  for  the  balance  of  the  season  would 
have  been  lor  tine  of  the  "Caiolena's  "  canoes,  wliicli  we 
tiiiil  i.s  3.553,  or  14  and  a  fraction  for  her  four  canoes  per 


603 

(Mr.  Lansing's  Argument.) 

(l;\y.  and  for  thirty  days  claimed  as  the  halance  of  hersoa- 
sdii  her  catch  on  this  hasis  would  have  amounted  to  427 
skins,  while  the  claim  of  (xreat  Britain  is  for  994. 

We  will  next  turn  to  the  "  Onward."  The  "  Onward  " 
carried  eight  canoes  manned  hy  Indians.  She  firs^t  low- 
tivd  July  12th  and  was  seized  August  2d.  She  had  heen 
staling   twenty  two  days  and   had    taken   400   skins.     I 

loslioiild  note  here  that  a  correction  was  made  by  the  Senior 
CVuiiisel  of  Her  Majesty  in  the  general  tables,  submitted 
witli  tiie  argument  in  chief  on  behalf  of  Great  Britain  in 
ngaril  to  the  catch  cf  this  vessel,  which  is  now  claimed 
to  be  907  skins  in  the  Sea.  This  statement  that  the  Bering 
Sea  catch  was  400  sldiis  is  based  on  the  testimony  of  Mar- 
ketich.  Your  Honors  will  remember  the  witness  Marke- 
tidi.  the  Austrian,  who  acted  as  Indian  interpreter  on 
board  the  "Onward,"  who  is  practically  the  only  witness 
on  whom  Great  Britain  relies  to  prove  the  sufferings  and 

2oliai(lships  of  the  masters  and  mates  of  the  seized  vessels 
at  Sitka.  It  was  he  who  gave  testimony  as  to  the  jury 
room  dimgeon;  it  was  he  who  spokeof  the  brutality  of  the 
United  States  officials.  If  we  are  to  consider  his  testimony 
at  all,  we  should  certainly  rely  on  it  in  this  case  where  it 
is  merely  a  question  of  figures  which  offer  less  inducement 
to  the  imagination  tiian  personal  experiences.  The  fact 
is  further  substantiated  by  the  evidence  of  Captain  Mc- 
Lean that  the  skins  he  received  from  the  "Onward  "  weie 
tiiose  that   had   been  taken  prior  to  the  time  when  the 

30  vessel  entered  the  Sea.  We  find  her  daily  average  then, 
for  each  of  her  canoes  up  to  the  1st  of  August,  based  on 
a  catch  of  400  to  be  2.272,  and  for  the  "  Mary  Ellen  " 
during  that  time,  from  July  12th  to  August  1st,  11.145; 
while  her  average  for  the  balance  of  the  season  was  the 
same  as  in  the  other  cases,  5.85.  Now  we  have  the  latio 
11.145  is  to  5.85  as  the  daily  average  of  the  "  Onward  "  in 
July,  2.272,  is  to  her  daily  average  for  the  balance  of  the 
season,  which  computed  amounts  to  1.183,  the  daily  aver- 
age for  each  canoe,  or  for  her  eight  canoes,  9  skins  and  a 

40 fraction.  The  balance  of  the  season  claimed  is  30  daj's, 
and  on  this  basis  the  catch  of  the  "  Onward  "  would  have 
amounted  to  284  skins,  while  a  claim  is  made  for  1,456. 

When  I  closed  yesterday  afternoon  I  had  just  subtnitted 
to  your  Honors  Table  "D,"  which  represents  the  daily 
cat'ciies  of  the  "Sayward,"  the  "Dolphin,"  the  "  Thorn- 
ton "and  "Mary  Ellen,"  the  four  vessels  for  which  we 
have  the  hunting  data  for  1886;  and  from  that  table  I 
have  calculated  the  average  number  of  skins  taken  per 
day  by  each  vessel  to  date,  and  I  submit  that  as  Table 

50''  E,"  and  also  with  it  Diagram  No.  1. 


y-j 

'jil 

m 


U\' 


(     '•;,=:.■*} 


!    '1!.;-! 


Ii->i 


i  -i 


if?fr 


IV  1 


604 


(Mr.  Lansing's  Argument.) 
Table  "  E." 

Average  Daily  Catch  to  Date  July,  1886. 

(From  Warrcu'B  Diary,  Record  p.  280.)  (Log  No.  47  ((•.  B.),  ExliibiU  p.  in.) 


10 


20 


30 


J 

Dolphin. 

Thornton. 

No.    of 

Catch 

Average 

No.   of 

Catcli 

Avenii, 

Days. 

Date. 

per 
Hunter. 

Days. 

to 
Date. 

pel 
IIuiili. 

July   1. 

.... 

.... 

,  , 

■  •  • 

"     2. 

.... 

.... 

1 

0 

u 

"     3. 

1 

87 

7.26 

2 

0 

0 

"     4. 

2 

87 

8.62 

8 

.26 

"     6.. 

3 

87 

2.41 

8 

.18 

"     «.. 

4 

87 

1.81 

47 

2. 36 

•'    7. 

6 

87 

1  46 

89 

8.62 

"     8.. 

6 

140 

1.94 

136 

4.H,1 

"     9.. 

7 

162 

1.92 

8 

136 

4 . 2.-1 

"   10.. 

8 

162 

1,72 

9 

137 

3.8(1 

"   11.. 

9 

205 

1.89 

10 

149 

3  72 

"  la.. 

10 

286 

1.96 

11 

166 

3.7,'. 

"   IS.. 

11 

S04 

2  80 

12 

199 

4.14 

••   14.. 

12 

400 

3.23 

13 

199 

8 ,  H2 

"   16.. 

13 

496 

3.17 

14 

206 

3.67 

"   1«.. 

14 

668 

3.29 

16 

214 

3 .  5ii 

"  17.. 

16 

667 

3.03 

16 

214 

3.611 

"  18.. 

16 

763 

3.96 

17 

223 

3  27 

"  la.. 

17 

763 

3.74 

18 

223 

3.011 

"  20.  . 

18 

763 

8.63 

19 

223 

2 . 9:t 

"  21.. 

19 

889 

3.68 

20 

242 

3.02 

"  22. 

20 

874 

8.13 

21 

250 

2.97 

"  23.. 

31 

987 

3.71 

22 

261 

2.8.") 

"  24.. 

22 

951 

3.60 

23 

261 

2.72 

"  26.. 

23 

964 

S.46 

24 

261 

2.61 

"  26.. 

24 

964 

3.31 

26 

266 

2.,'>6 

"  27.. 

26 

963 

8.21 

26 

266 

2. -16 

"  28.. 

26 

1,008 

3.23 

27 

268 

2.H8 

"   29.. 

27 

1,098 

3.38 

28 

312 

2.7H 

"  30.. 

28 

1,282 

3.81 

29 

343 

3.00 

"  31.. 

29 

1,468 

4.21 

30 

346 

2.88 

(Extracts  from  Diary  of  Andrew  Laing  appearing  in  his  deposition,  K.,  p,  luU7, 

line  66.) 


40 


W.  p.  Sayivard. 


July  1. 

"     2. 

"     8. 

"     4. 

"     6. 

"     6. 

"    7. 

"     8. 

"     9. 

"  10. 
50     "11. 

"   12. 

"  13. 

"  14. 

"   16. 

"   16. 

"  17. 

"   18. 

"  19 

"  20. 

•'  21. 

"  22. 

"  23. 
60     "  24. 

"  25. 

"  26. 

"  27. 

"  28. 

■•  29. 

•'  80. 

"  81, 


No.  of 
Days. 


2 

3 

4 

6 

6 

7 

8 

9 

10 

11 

12 

13 

14 

16 

16 

17 

18 

19 

20 

21 

22 

23 

24 

26 

36 


Catch  to 
Date. 


11 

13 

29 

29 

34 

44 

67 

103 

114 

116 

176 

283 

430 

480 

444 

646 

646 

618 

667 

667 

688 

693 

711 

801 

924 

971 


Avcrngc 
per  Hunter. 


1.37 

.81 

1.20 

.911 

.85 

.91 

1.00 

l.GO 

1   68 

1.43 

2,00 

2,94 

4.13 

3 ,  83 

3  70 


26 

0(1 
29 

:i2 

10 

no 

3.98 
3.88 
4  17 
4.62 
4.62 


60S 

(Mr.  Lansing's  Argument.) 

On  Diagram  No.  1,  the  daily  boat  average  of  the  "  Mary 
Kllen  "  is  shown  as  the  soUri  white  line,  while  that  of  the 
other  vessels,  the  "  Say  ward,"  "Dolphin"  and  "Thorn- 
ton," are  shown  by  dotted  lines  or  broken  lines;  the 
imrnber  of  seals  taken  on  the  average  each  day  for 
llie  number  of  days  of  hunting  by  one  boat  or  one  canoe 
is  shown  on  the  left  hand  margin.     It  is  scarcely  neces- 

los.uy  to  point  out  the  unfairness  of  taking  the  "Mary 
Kllen  "  as  a  typical  vessel.  We  find  on  the  8th  of  July 
that  the  boats  of  the  "Thornton"  had  the  higher  aver- 
ap;e,  but  from  the  8th  of  July  to  the  time  of  her  seiz- 
ure, her  daily  average  constantly  decreased,  while,  on 
the  other  hand,  from  the  8th  of  July,  or  more  correctly 
from  the  11th  of  July,  we  find  the  average  of  the  "  Mary 
Ellen  "  was  on  a  constant  increase.  It  is  not  shown 
upon  the  diagram,  but  these  data  are  confined  to  the 
month  of  July,  because  prior  to  August  1  there  was  no 

30  interference  of  any  kind  with  pelagic  sealing.  There  never 
has  l)een  any  claim  made  that  these  vessels  were  in  fear 
of  seizure,  that  there  was  any  knowledge  that  seizures 
would  be  made,  or  that  they  were  in  any  other  way  in- 
terrupted in  their  venture. 

From  Table  "  D  "  I  have  made  a  further  computation 
to  test  the  same  fact  in  another  way.  I  have  taken  the 
average  daily  catch  each  day  of  these  vessels  and  divided 
them  into  periods  of  three  days,  and  I  submit  the  result 
of  that  calculation  in  Table  "  F,"  and  Diagram  No.  2,  for 

30  the  same  reason,  that  the  mind  can  more  readily  by  this 
method  comprehend  the  result  of  these  calculations. 


T 

r 

tW- 

" 

'■'i 

1 

II 


t  i» 


i       : 

:           k\     |i 

Table  "  F." 


Table  showing  the  Catches  of  Vessels  in  1886  ifrom 
July  1st  to  August  6th,  inclusive,  in  Periods  of 
Three  Days,  and  also  showing  the  Daily  Average 
Per  Boat  or  Canoe  kor  such  Periods. 


40 


July 


Aug. 


Mm 

■y  Ellen. 

Thornton. 

Total  for 

Daily  average 

Total  for 

Daily  average 

3  days. 

per  boat. 

3  days. 

pir  boat. 

1-3..-. 

20 

1.333 

0 

0 

4-6.--. 

8 

.333 

47 

3.916 

7-9.--. 

143 

9.533 

89 

7.416 

10-12.... 

76 

5.066 

29 

2.416 

13-15.... 

174 

11.600 

49 

4.083 

16-18.... 

145 

9.666 

17 

1.416 

19-21..-- 

47 

3.133 

19 

1.581 

22-24 

141 

9.400 

9 

.750 

25-27 

32 

2.133 

5 

.416 

27-29 

227 

15.133 

56 

4.666 

30- Aug.  1 

345 

23.000 

67 

5  583 

2-4 

140 

9.333 

.. 

. 

5-6.... 

6t 

.600 

. 

Mi  '   M 


I 


606 


(Mr.  Lansing's  Argumont.) 
W.  P.  Sayward. 


Dolphin. 


Tdtnl  for 

Daily  average 

Total  for 

Daily  nvciii;rf 

S  ilftjs. 

per  caniiv. 

3  (lavB, 

per  onniic. 

July 

1-3.... 

.  .  . 

87t 

3.62;") 

ii 

4-6.... 

11* 

.458 

0 

0 

(( 

7-9.... 

18 

.760 

75 

2. 083 

(i 

10-12.... 

28 

1.166 

142 

3.944 

10      *» 

13-15.... 

58 

2.416 

259 

7.194 

i( 

16-18.... 

225 

9.375 

145 

4.027 

(i 

19-21 

115 

4.791 

76 

2.111 

(i 

22-24 

112 

4.666 

112 

3.111 

(( 

25-27..-. 

31 

1.291 

12 

.333 

(< 

27-29.... 

113 

4.708 

144 

4.000 

t  ( 

30-Aug.  1 

299 

13.475 

663 

12.861 

Aug. 

2-4.... 

133 

5.541 

82 

2.277 

»i 

5-6.... 

93t 

7.750 

65 

1.805 

20     "One  daj-. 

f  Two  (lays. 

Diagram  No.  2  shows  the  comparison  of  data  for  three 
vessels,  the  "Thornton,"  the  "Mary  Ellen"  and  the 
"Sayward."  The  "  Mary  Ellen  "  and  "  Sayward"  are 
carried  through  the  season  to  the  24th  of  August,  wliile 
the  "Thornton,"  hecause  of  her  seizure,  ceases  at  the 
period  between  the  30th  of  July  and  1st  of  August.  Tlie 
"  Mary  Ellen  "  is  shown  by  the  solid  white  line.     Per- 

30  haps  this  diagram  exhibits  even  more  conclusively  tliaii 
Diagram  No.  1  tiie  complete  unfairness  of  taking  the 
"  Mary  Ellen  "  for  a  basis  of  computing  a  catch  for  other 
vessels. 

Now,  I  submit,  your  Honors,  that  it  is  demonstrated 
from  the  data  we  have  before  us  that  the  "  Mary  Ellen," 
for  the  season  of  1886,  was  not  a  typical  vessel;  that  tlie 
variations  in  the  catches  from  day  to  day  show  tiiat  the 
conditions  whicii  existed  were  constantly  changing.  We 
can  draw  no  other  conclusion  than  that  the  experience 

40  of  each  vessel  was  different;  that  the  experiences  of  the 
hunters  were  different;  and  that  they  were  sealing  on 
different  grounds  where  the  weather  conditions  were  con- 
stantly changing. 

There  are  submitted  in  the  argument  in  chief  on  belialf 
of  Great  Britain,  at  pages  75,  76,  77  and  78,  tables,  which 
are  supposed  to  contain  the  data  of  catches  given  before 
this  High  Commission.  These  tables  we  conceive  to  ho 
incorrect  in  many  particulars  and  but  partially  recite  the 
evidence.     Only  one  witness  is  referred  to  where  in  many 

50  instances  there  are  several  upon  the  same  point.  I  tliere- 
fore  propose  to  submit  other  tables  which  cover  all  the 
evidence  and  which  refer  to  all  the  witnesses.  [Mr.  Lans- 
ing here  submitted  two  printed  tables  containing  the  data 
lef erred  to.] 

Of  these  two  tables,  one  relates  to  vessels  equipped 
with  canoes  and  one  to  vessels  equipped  with  boats.  The 
first  colunni  of  each  table  contains  the  name  of  the  vessel 
and  the  year  in  which  she  was  sealing;  the  second  the 
tonnage;    the  third    colunm   the  number  of   canoes  or 

60  boats  which  she  was  carrying;  the  next,  the  date  of 
entering  the  Sea;  the  next,  the  first  "lowering  day"; 
the  next,  the  last  "lowering  day";  then  the  date  of 
leaving  the  Sea;  then  the  catch;  and  then  the  division  of 
the  catch  and  remarks.  You  will  note  also  that  there  aio 
after  the  names  of  the  witnesses  letters  in  parentheses. 


Vessel  snd  year. 


1880. 


AM* 

niirr  Ellen. 
PnlhHnder. 


Tiierr«i«... 
Thornlon 


ranilrrbill 

tftnt, 

.tilir  I.  AlBvr 


FnvoHrilc. 


norv  Ellrn. 


.nnry  Tnrlor. 
Pnlhflndrr  ... 


P(>ai-lo|ii'  

Vnndrrbill 

INNN. 
.4nttir  i'.  .Yloorf*  — 


Vim 


71.. 


fatcli. 


976. 
90(1. 


Haniten  (e.).3i>2"., 
llunseii  (('.),  901*>. 


2305.  Ur*gg(in.),260U. 


1706.    Miinsle  (o.),  110 

1760  less  ;i(KI.    O'l.earv  (e.),293i. 
•1400.    O'l.fnrv  (c.),295»'. 
•14110.     Hvers  (li.  |i.),:n8". 


.|  Over  2000 
.    403. 


liiiiiilssv  (li.  p.),298«. 


Wnrreu  (o.),932i» 

(iiittoriiisi'U  (r.).  1085U. 


1348.    Slyer  <c.).  1727"  . 


DlviHluii  ul'  catch  and  rfiiiarks. 


Inclnili's  upper  coast  catch.    Hansen,  618**. 


Auk.,  l.iio:i.    llraeK  (ni.).;i03H. 

Aug.,  less  tboHe  taken  Aug.  1.     Ilragg  (iii.),  303". 

Hut  r«w  Hciils  were  taken  before  July  12.    Itver*, 

318". 


Stemboat  used  as  much  as  the  hunting  boats. 


Ovor  1800.     Kaynnr  (!■.),  527«" 

1586  (lui  hnarili  (c'.>.  1117". 

Less  about  5ii0  mi  ciuMt,    Kaynor  (c),  1117". 

1884.    I,.  Mol.ean  (C).  732i« July,  530.    I,.  McLean  (c),  731". 

1684.    L.McI.ciin  (i;.).731".  Au«.,  1145.    L.  Mcl.i'an  (c).  731H 

I  LiiHiTlni:  ilays :  .1  uly,  14  out  of  24  dajx.    L.  Mc- 
Lciin.  7:il«. 
Lowerini:  davs :  Au|!.,  lOoutuf  2aday8.    L.  Mo- 
Lean,  731". 


1530.    A.  McLi'an  (<•.),  416". 


I  700-730.  Mi'Klld  (C.I,  32T'  . . 
Li>.«8  89.  McKii'l  (!•.).  :i29i». 
Ovfr700.    .McKlil  (r.|,  :);)1". 


-2,200.    (I'Lnirv  (c).  2I)4» 

Xeailv  20(10.    'f  1 a-s  (ui.),  1770*. 

Over  1900.    TliiiniaB  (ni.).  1771". 
I.is»  lliiiu  200(1.    ThiMium  (m.),  1771i». 


1809  caught  in  sen.    Munsie  (o.l.  113",  1I3». 
045  cauifTitou  I'oiixt.    Munsifl  (<>.).  113".  113>'. 


1.250.    Jleyer  (c),  1728". 


1...    *700.    Kauilnsi' (h.).  B24i'i 

Nearly  800.    llackctt  (c),  »59«. 


1.W8.    Baker  (c).  72fl«<i . 
1539.    Ilaker  (!■.),  721". 


Julv,9ll.    Ilaker  (c). 721". 
Aaii:  628.    Baker  (c),  721". 


11 


r 


i        I' 


iii 


I  :'! 


I'  *1 


¥     ' 

i     1 


W^  »# 


l!tij.- 


if'^: 


^ 


■ 


l>\l\    K'I'I,  \IIN(  ;     ic  )   si:\i,iN(}    \'Kss|.-,l.H    Va  i\ 


run- 


Niuntti>r  rl  UiAii 


l>>iri  tit  t'Dti-riDtf  •m 


iVIilili     Ml  .  n.ril.     II.    iinlifr    h.  Iiiiiilir     illi     ili-i  k  liali.l     I.   |i     lioii  |,i,l 
l-ir«i  l.iMiritiii  (Uy,  I  I  liar  liiwi'iitiK 


Uili 

ll.ti  lllrn 

PmliltNitrr 


.(iiirw 

M  I)-: 


J.     ILintin  ..   •    «M" liiiiiJTiii  ■.•*      M.iiiwn  ,i.i,:«il"., 

5      llr«Bil  ini  I  ;SJ»    ,1 ;a      ItriifcH  nil  I  ■.•M"'  , 


A      Mnniilr  m      110     .. 
(1  l.«rt  ii-  I  «r." 
llMriiti   |i  1    nil". 


Jiiiir  tl      I)  I.fur^  !■■  1  -.V; 

iliiiip  I     ll.^^^>  Ai  |i.i  .lu 


.Iill>  -J      ll.il)«i'li       I  ,1111" And:',     lliiii««n  ir  i.iliil"  .. 

.lmi.''J»     Hrnuii  Hii  I  .',S4" Vut  !l     Units  mi  i,  ■-•.■•J".. 

.lull  I      h>iT.  .1.  1.  I  :i|iii' \iig  4     11  I  i.ir\  |iM.»«"  . 

Pf\iT.  Ill  |i  I  ;i||i'«. 


Ikrtr.n       .. 

|tl«lMl«H 

laailirliill 

I 
lllii   I     ll<i 


^      Hmiilaar  ill  |i.i  N«i' 

4      lUlln.  irk  i.MJi'  .      .Iiilv  :.     W.rri-li  .111,1111  |i,il|,lilii  Sisii' 


.li .'»      II U-i-  .1i»" 


■4  Ki     J.    MryiTK-  I,  i:?T»  . 


,  «i    (I     luiimr  .  1,  ^i7" 


lul)  J     Miirr  11   ■  i:j:« 


•liih  111      r    Ml  li.«nc,   I,  Mil" 
.lull  II      I     M.I.I  .111  ,r  ,    U-i" 


.lull  ,1.  llijmi  IW".... 
■lull  n  7  li.iMii.t  ..  i,.«ilii  . 
.lull  111.     I     M.  1  i.,,ii  7ni«<     . 


.^ll|I.  I       >i<|m-iI       liiitliiniiai 

.\iiil   ill      Mi'irr  ii-  I   lia;». 


Auk  34.     lim  tinr  ir  i   I24T*1 
.Vl/eil  .\ii|i  ;&     Hliiliiiiii'iil  I 


.\iii:  JT      I.  Mi'LrHii  I 
Ann  '•'<>      I    Ml  linn  I 


iiriui     «.     A   M.  U.ii  ii.i   4"S» 


I..tat  lit  .liinrur.lul>  1.     si, ,  I,  .u,  ,.  l.Cii.i lull  In.     .\   M.I, lliiw.. 


Aiti:  111      ,V    Ml  l.iiiii  II   I    im 


.^     McKipI  1.  ,.  r.W" 


.Illllf  .'.l.T  .•!         \|.  hi,  I 


i»l  .rj     «      MillKir  111  I   11.1  

(1  l,i-«n  11 .1  Wl» 
Hvi-r-ih  1.  :>1»" 


.liiiir  :'■•     11  I  .'in    I  .  .i.i:l' 

111.,!-  .ll    1.  .ll-i* 


l.ili.'  .'U      Itirr-    I        ,lMi' 


Ami;   !'•     li  I, run  ii-  i,  '.lifl*.. 


!'■• " 

UaJiiblll 


Tl    IV       .'i        MllltT  U-    .     "lil  ' 

•M  im     6      \leirr  ii    I    IT.'T*. 


.1..K   .  li'     Miii.t  .1  ,,  -.i;' 
.lull  4     Mil.  1  ,. ..  }:■::■■' 


..  iluij  •.    MiifTi.     i: 


Aiii:  W.     Mnvrr  1C.I.I7J5". 
Aug.  Jli     Mpmt  hi.  1T:i|» 


liiaii  I     'la 
Ina 


It_,l  lai     I'l      ll.imlii*.-    ill..    (f.'4'  . 

•n:  Ki    .■.     luki-i  (.  .  7;i",... 


.luh  .1'      IUiiiIa>i  ill  1  il.'i" 
ILirk,  II  II  I   lUII* 


.liilv  »      IIkUi  r  t,       -.(iM 
.llll.\  »       ll.ikrr  '.       :.'i» 


'Aiii:  17  hi      llaiki'll  Ir  I   Ml 
Alls  ■.';     iiiikfTiii.  t:'|"'... 


11     .      f.     1.1.1111,....  .h  i    n.M",, 
II...  km    .  .  «-•■«". 


liilv  T       I: 1...    ili.i    ifJ3» 


.lull   I'l       III.  ki'll 


,\iit   111     ll,iikiil  .r,i  nil"" 

Alls    K,      limiiUH..  .Ii  I,  ':3': 


lllll 

•1.1. »l.  'l.ll 
111.  I  III. I 
•I..IIII  tllll.l 


»••      II       llii.ku.illi  .1        Til3"     ., 

1  .  4ii.»       lliii  kiiAiii  .1       ui^i«  Uflii' 


f      K.r  i«.!i  .   1*7" 
S       lli.iis     Ii       "m" 


I  ■!.    11     i:-...»  11    I,     ii.'r 


■;.. hf    .      11:9" 

I. IT      ]-■    I,  Ml  l.r.i,   ..    I    Til 


.li.U   1"       Ilii.Vl  .1111    11       Till" 
liil>  1:      llii.  kiLini    I    ,    i4(ll* 

I  11.1  HI.  k  III  ItiW  llLus  .1. 
lull  ;l  Ili..»li  li  itm"  ..  . 
.1  ill  4.     llill.Il.-    ...  .    UTi." 


lull  14     Iliii  kiiiini  .  I.  14111" Vus   1*     lluikiiiiiii  .1  1   14114 

Alls  .■.'^      l-.riiss  ill  •   "«.■•" 

.l.ll.    ■       llr.ii.li    I,      fi-.|" 

.lull  liii.r  II.     ii.  -  11.     Ii  I.  dTIl"  


.     Alls  I'.'i      A.  Hli'Liiall   II-  1.411.1' 
Alls  2^      llr.11>  11  ill  I   KV 


Ik  t  .*.      iM.iiiIif.  'h  I,  HTIl**    ,.,, 
Alls  .V  U,     tiiillllii-  ill  I.  nil'. 


(•.I 

hn 

nili  1 

rh 

r. 

It 

1. 

In 

Ull 

lib 

I*'  .^:      .%      n  I-i-ari    -.■  .    Te?' 
5      11.  e,.     1,  .    TTT" 


-1  ..    f.     11I...M  ::4*» 

•  •    *      i      K  I'  Il.k.  r     .    ,    I4-." 
■.    ■      6      Hakrr  :.•■»      . 


.Iirl'.   I      11  liii'i    .1 
.1  ill   1  r.      Hill.     I. 


I, ill  4.11  ■       Im-.iH    .11,  ,,  TTI'i 
l::h   1       I'    M.  I Ill-' 


Jiilv '.li  iMi-licili.    (ilitiarrir. 
Aus.  I     11  l.>.«rv  I  .1.  TM'. 
Julv  -.11      llifr.  ill,.    777'", 


lull   I      ll,iki 


Aus.SI      llnki.r  n   1    :i;t' 


IMlil 

Ull,.    <       >| 

I    R    'I. I 

•Iwji.    '1,1. 

ll.iiln    11,11. 
I'.n.l.,|,. 
>.  .  I  i.in 
Ik...... 

I  riHtii|ili 


1:     X      «  IIj.  km   c  ..',rit» 

\j  -1    :  MrKiri ..  ,  «:■.■■'  ,  ,. 

■    .>      ',  lir."ii  .1.     «M'-  -..  . 

«  K.r. .SI  .  ««■" 

-     ..      «  Mr.ir.l    .        1.J4.I", 

■-       ..      1  f..isil    I.   .    l.«?" 

r.  M..Slii»*-li    I    '    l'«12*i 

-.    .       «  M.-l*  ,.    .    U.7lf» 

Iw,   *      «  f  N   i;in    I    I   «WS* 


.li.h  4   li.       Ml  Klfl  „    .  ilT'.i"     , 
lal  iMrl  I.I  -l-ily      Ilr.iS.:    '.  .,7fi,'," 

.lull  y  M,  WMil  .1    .    IHlii" 

,l.il>  -.I.      li.is-r    h  I   IW."' 

July  10  11      Mnsi.i-.iii  .1   I   InuS"  .. 

.lull  1  S1..I1.  ...   li*!" 


.lull  -       lU.  kill  li.V! 


.lull  I&      HriiMii  11 


\UB  II      ll.iiki'l II.'*"  .. 

Aug.auJI.     Mi-Kl.l  II'  i.«7-.'" 


Alls  'a     Kiils'ir  III  I  ima". 


Jiilv  M     1'   N.l'i'i  I... I  •.!««.. 


Aus  'iK      Sti.oleli.,1.  ll>7«<i.,.. 
Aug  1».    1.  .N.Cui  1.- i.doe*.. 


'  «.  i»j     r.      }lak»t  .1  I  7K'' 


.luh  7      llakiTii-  I  7'^" 

.lulr  II.     lUknr  ..  l.7:':i" 


fw-Iil   Vi.     linker  I 


"'I Kill, 


Td.  1X1     1     o  i...*rv  I 


-.lull  1".    11  l,««rj-  If  I  77()». 


I.Mf  O.nPl.KTIv. 


*llriil    I.1..1,,. 

I  '»^^. 
I  iliiiiril    W  ,  1.1, 
luSS"     *ii,. 

I«>..| 
•<»i!    I  II. „ 

'■ 


.Jiily2.   Warrt-n   on  Iioli.liln  t-ntiT- il -tiiiiir  tiny, 


■"S; 


J.iU  IS      lli.iiilii'  III  .    n77< 


Aug  ':il.    G,iuili>  III  I.  e77<>.. 
AuK'it.     Fultrr  lli.l.  lUH'J"  . 


Aug.  Ill      FiiIsiT  mil.  liill'.« 


«lli'    I     I',,. I 


Fiml  imrl  July       Milii-r  ir  1    .^M•' 

•  Aliuut  I  A  MiUaii  Ic.l.  4i:i».  ;  (lou. 

KM'LANATilHT  NOTF    -TIji'  ilnall  »Kpiiiii.|itiaI  tlgiin.*  ili  1 ,.«  tlie  line;  the  larger  iinua  the  page  ul'  tlie  Hec.inl ,  Ihui  Hi 


iN(j  \'Kss|.-,r,H  i;(  irii'iM'.i  >  wriii   ii<>Ars. 


Aiiti.  I      >i<Im-iI      liiitluniiHt'ii  l(wy* 
Aiiu   111,     Mi'\rr  II-  I   l!j;»' 


KrwiUvoriiT  Aii| '.'4      Krafil  im. ).:.»■■ 
A  ittf. '.ni  or  :<ti     Itrami  im  i  'JIV.V1 


Aug  4     II  I..ir.\  !.■  i/w.*  Anil  11     I)  l.i-iir>  i.'  i.  ■.fJ" 

llMTii  (I.  |>  I  ;l|l"'. 


AilK   :!•       I.lllillll>r. '.W>*  ... 
Aiin.l       (iilllnnimi'Il   lliK-'i" 

Auk  31     \l,v.T  ..i.ij:';"  . 


UTA      lliin<'-ll  II'.).  ;ili'.»*' Ini'hlili'*  iilipcriiwflt  <  aIi  )i      llHiiHrn.  flINW 

Mill     lliiiiOTii  II' I. :ioi" 


Dhlnlitn  lit'  t'Hirh  Riiil  rfiiiHrkn. 


■1.M    llmilii    iM.l  '.'in" '  Anil  .  I.iiu;l.     Ilrnijii  im  l.:»i-l» 

I  Autl.  Ii<»ltiii<«liiki'n  Anil  I      ItrAKu  (iii.i.:ili;t**. 

I7IM.     Ml Ill  I.  I'll! I  Hut  f'i'w  Hi'iiUwrri'tiiki'ii  Ix'tVTi'.IiiK  Vi.     Ilvnra, 

ITmilraiillii       11  l.rni'.  li'-l.:>S3l.  I       3ll>i' 

I4IIU      II  l.'Krv  i<   I  '.1l,1*< 
■  t4iKl     lltr.<  III.  ■'  I  ;iia«. 

llvcr'iUMi      l:4iiila«i' III.  P.I.30B** 

40a.     Wnrri'ii  III  i.lMlii*    I 

lilltliinilU-ll  HI.  ItlHAM 


1.14.^     Miiri 


HlenilHiiit  iiamt  im  liiilrli  »>4  llir  liiilitinit  liiiiitii. 


AiiK  34.     llNMiiir  ir  I    134T*i   

.Vtinl  Aiiii  .'It     Siiiii'iiirnl  iif  niiinwl.  Wf. 


Alia  j;      I.  Mi'l.r« I.  ::iii»  .... 

AiiB  ■.'(1      I.  Ml  I  .an  1.  i.  7T.n.  roi" 


Aiii;  III      .\    Ml  l.ijiii  11   1.  llil» 


.\iu  1-.     II  l.f.rv 


A 111:  3(1.     Mi-vrr  IC.I.I7JI" 
Anil.  Jli     Mf\.r  ir  I.  lT:il» 


'Aiii:  IT  111      llaiki'll  Ir  I   diKii'. 
Ani!  3T      lUk.Tir.i.  T3I"' 


Sipl  .'1.     t    M.  I.niiti  I 


■Ani!  ai      Mri'li-  im  1.  1ii7»i'  , 

Aiiii  311  '.'.■.      A   M.  I.f .1.  411'.'". 

■AiiB  -.lii.r.'l       >    .Mi'l.nin  11  I.  41»" 
AiiK  :'ii     (iiluiT  ill  I.  iii«3i* 

Liui  iit.tiil>.    Mi'Kli'l  11  I  nir' 


.(ill!. 17      II  I'liri   I'.'    -'li:l" 

IHii.  Ill  I    III"" 
Anil   I7i<r  IK       t  li<>iiiii>  iin  i    17711". 


...    'Ann  I.'"     MiniT  ir  i   .'" 
...    M»pl.  II.    Mt'\rr  11  I   17; 


Ant  33     lliiikill  II   I  n:*!".. 
■Anil. 311.     ItiiniliiKK  lli  i.  113'Hi. 


IHir  tlKi      llHuiiir  II-  1  ST" 

I.IMIiiiii  liiiaiili  11-     1117*' 

(.can  almiil  ^ii  mi  iiiiiaI      Itavniir  I 


IH14.     I.  Ml  Lin 
IDM       I.    Mill  < 


IMi.     A.Mit.i'iiii 


7W7-IU  Mi'Kli'lii- 
l,i"iani  MrKlilii 
lHi-r7l«i     MiKli-li 


7-JI'* 


.  ;rj7* . 
;i3«i». 
I.  ui". 


\::!"u    II  l..-iiri  M-  I  :ii4»  

Ncnrlv  '.linn      11 nn  ini  i.  I77lH«. 

(iii-r  Mam      ItiiiniHH  ini  i    177li». 
I.iaa  lliiiii  .IMNI.      I'liiniiai*  101  I.  ITTl". 


.Inly.  Xm.  I..M1  l.i-nii  11-  1.  7:il"< 
Ani..  1115.  I.  Ml  l..nii  li  .1  ill" 
liiniTlliililiua    .lull    lliMil  111 'il4ilii<i      I.. Mr. 

I.wn.  711" 
l.iiwrrlnii  ilaja     Ann  .  ID  mil  i>r 'Jilil<i%a.     I,.  Mii. 

l.iiaii.  7:ll"'. 


Inin etil  in  M-il      Millmli'  m.l.  tl.'l".  IIW 

.14.^  t-uniilil iin  iiM't.     Mniiala  (ii.|.  lU",  lla". 


1   -.'.Vl.       Ml'.MT  1 


*7Hi.    iiiiMii.iAi-  ill  I  ii:!'"  

Ni-nrl.i  »«i.     llai  ki-lt  11-1.  IW". 


I.MW 
IMU. 


Ilaki  r  I 
ItakiT  1 


Jnlv.gil.     Ilakir  I1-.I.731I'. 
!  Anil,  irffl.    llaki-rli'.l.731'«. 


.\iit  111     It.iiki'it  M-.i  o;i«» 

Aiii;    IT.     Ilaiiila<i>  ill  i.  -.'S". 


Vni;    IK      llniklimu    1    i    14I14>*. 
Aiit  .-.1      liniiii:  ill  ■  7fl:." 


\iill. -.ll  -.'S.     t:.Miilii.i- ili.i.fl'iin.. 

Ailil.'rj      11.1.  kill  11-  1   K<»». 


Ana  ■::■     A.  Mi-I-Mn  11-1.411.1". 

AiiK  li      llriinn  ill  1   «1'< 


(HI  .'1      iMiiiilif  'ti  I    fi7ll*"    

Ann  -'"  3^     lii'iiilii'  III  I.  1178'. 


Jiilv  3»liii'linli.    O  1.1'arv  hi.  7i17i'  . 

Aiif   1      ■>  Liarv  I    I   71I111 
Jiil>  -.11.     ll\arK  111..   777" 


Ann. 31       llaki-r  11   1    7I>' 


Jnlv  ;io.  Hinkniini  11-  1,  UU** 

Ann  31.     ilni-ktiamii.l.  7M'.  I4a5>. 


Am;    -.'».     Ilrmvn  ili.i   11.V1" 
Oi-I    15     liinulii'  111  I.  ilTil"  . 


Ani;    t  nr  I      II  I.i-iirv  1 
Ann    1-     IViir-  ill. I    77i 


.'*«'|il.  ;i      Hli.i-tl  I  III.  I.  77tji' 

,lul\  U  i»ar Ii.     I>  Ml  l.i-iiii  11'  1.  1117' 


I31HI.     tlamlHai   ili.i.*w« .t  Lowirlnn  ilava     .lulv.  in  nul  iil  3B      Ilaiki'lt. 

l:il(l.     llaiki'll  ...LUSH".  ".'IK" 

I.iiwerinii  ila^a.  Anil.   I"  mil  "f  '--■     llai'kett. 
llM'i . 
I  .Inlv.7W.     Mai'ki'it  (r  i.fl.'iin 
I  Ann  .,Vi7.    Hai-ki-tl  11-  l.OJi'i. 


141      Itm  kliAlu  11 .1.  7114' 444  (Bl'liT  \tarulnnl.     llnrkDain  (r 


,  7U.S'. 


131.10      Ki-r  ia.l.n«7" 

I-.'.VI      IliuKii  ill  i.BM" 

l.'iOil-IAiM).     llMinlii-  ih  I.C7HI* 


Mftv  tii(-liii)t<  aniiifl  (Aken  iiiitalile  of  ai-a.    Kur 
i>iit.i.«ou"- 


■l 


Ini-lnili'a  Mkliiii  fi-iini  raiiU.    ilimain  (li  l.678i" 
Timk  ;i.'''i  liMi  in  ralila     llmiitit' 'li.i  877". 

Tiaik  41111  In  raiil»     li llo  ili.i  <i7lii". 

liHik  alii'iit  KMi  111  mill''     llnnilli'  Ih.l.  078". 


11.14  Inn  liiianli-    1 1  Lvan  ii-.i.  797'! jii  a|-ler  aeUiirii.    iil.i'ary  Ir.l.  7iW». 

m.l      llviTK.  :t7" 


Ikm  7iiO.     Illnai-tl  1111  1,  778*  . 
73.     K  (-.  Itaki-r  HI  1,  UJO".. 


31711      llakiT  11- 1.710".. 
3mO.     llakiTli' 1.71a". 


.Iiilv.  1114  ( 


llakiT  11. 1.719". 


Ann  .l""*  » 
l.iirni'at  lalrll  In  Ui-I       llakiT  ir.i.  7'.>.'i". 
I.iiwiriiin  ilava    Jnlv.  17.     Ilakai.  (.-.1.  7111". 
LuiriTinnilaya     Ann  .  1,'.     llaki-r  li'.i.  711I". 


\nn  11       ILiiki'l «.'*"  ... 

Aug.  an  31.     Mi-Kirl  11  I.I173*. 


S.'lil.3.     Mi-Klilii'.l.lI7'.i 


I  MIX*.. 
I17'3«*  . 


Si-pI  II.     Sh-wiTil  (1    I,  IWIU" 

Ann  3«      Kiilnrr  111  I   liwa" Ann  31      KiilijiT  111  l.lilM" 

Si-pI.  14      ManntiiM-li  H-.l.  HI*)3*V. 

Ann  ■»      Sti-alali-.l,  ln71«' Ann  3y      ''li'eli' Ic.i.  li)7ll'i 

Ann  1».    1.  .N.Cui  11-  i.«l)«» 


hi-I'l   13      lliikt-r  ' 


■Ann- '3.1      11  l.i-ary  11-  1,7701 


llai  kilt 

M.  Kii'l  1 

Kir  lani  I.  «<I7" I uly.  107     llriiii  11, «,M". 

i  Aug..  878.    Uriin  n,  I1S4I. 

SlfWITli  H'  I.  IWOl* 

l-iiln»r  111  1.  llW.''i ; 

Manni-a'n  H-.l,  lOtK!*! [  *  301)  In  S<i|it      Mannem-n  (I'.l,  llHIli'. 

.siia'lc  H'.l.  107H** 

.I11IV.31M.    <■.  N  I'm  (1-  l.floflti. 

Aiijl.1711.    ('.  N.Oox  ii-.i.anffi. 
l.oaerinn  ila.va,  .Inly.  9.    C.N. Cos  Ic 
j  LiiwiTiiin  ilaya.  Aun..8.    L'.N.l'iixl 

Inlv,  180.  Ann,  14'''7:  S<>|il..l 


Kit 
Dill. 

m7. 

I'm. 
4.V1. 

718. 
«50. 

w;i.    (-  S-('ii\  H-  I. nun* 

4no-&uii     ItaiiilftMtt  i|i.i.8'j3i*. 


301.'!.     r.akrr  I 


).  608«i. 
c. 1.608". 


37n. 

I.iiwurilin    ilavs.    Jnlv.   9; 
Aug.  111.  Scpt',7. 


Jltaknr  (1-  ),733» 


I.MI'O.nPl.KTk. 


Aug  '38.    Oiiniliull  ).  877" - 8f pi.  7      iHiinlii' ili.i.  B77". 

Aun.34.     PolijiT  III.).  lOB'J" Aiin.-35.     Fiilgfr  ill  I    10«'3" 


Aug  S.'i.     A.  Mi-l.i'un  ir  1.  403". 

Ang.  19      Fnlni-r  im.i.  li*'3" '  Ang  -.'4.     FiilgiT  iinl,  1UI<'."< 


Klrat  pan  S.'pl.     MlniT  11. 1.  .'^18"., 


18011.     biiln"  nil  I.  1083"  . 


A   Ml  I.i-an  10.  413»  ;  (ioildlig  111).  878i'. 

larger  iinnn   Uii'  pagr  nl  tlie  Hecoril .  Ihiia.  Hauaan  ir.l.  :iol".  nirans  I'aplalii  llanaaii.  altnma.  page  301,  Urn  Vl. 


I  HUM    Ml 

HlH«lt  U 

I  iirnhnii 
|liil|ihiii 

fiitiHirii 


W.I'.  »*ir 


(ilii 


1BT'  :;;i 


Vr»il  mill  U'lir. 


I'.ili  h. 


I'll  1*1 1  I  iiti'li  iitiil  n  iniirKii 


|o««l. 


tiiiiii  III  I  !• 


lr>       llUi' IKMI',  IMMIO 

nil     iii.fii  II  I  iiMii" 


Hliiik  lliiiiMaiiil        "I  T«iiir"Tii     riiximi  .1   i  i:;.T"i 

|rN«  III       riixiiiM  It    I    IT.'iM*'. 
wni  Mm      lliiiiiiiiK  ih.i  IT'fr". 


I  iirtili  nil 
iliillikiii 


I'lniHiritt 


Ou»iimI 


,  11:. 


:il  ii"!     Miiiiaii 


60  . ..     JiiiT      \*  iirwii  II   1  '.'iiiii 


li'a>  Tim  iH|>|H'i  riiiKi  1     \\  iirii  11  hi  HIS". 


•■.'imip     Ml...  ih  I  :i:i,'."  

ViMi      A    Mil.raii  II   I  (111'. 
TIU     S|iiiiii(iii  I  MIU" 

ITi'i'      lli'|i|i<'n  nil  I.   I'T", 

li..  Iliiii  ..l.illlv    llMiii  II  lili  II.  r.    .mill' 


i:ii.'i     W.irriii  M.,i.:iri 
:i;  nil  ."Hm     M.iikiiii  li  1111,1,71 


JiiK     liMt  I A    Ml  I, 
i;i-jii«i. 


■nil  II-  ).  4lil"i,  inu  iSjirlim 
1!  .TiTji  A   Ml  l.i'iiiiii  .1.  llil"i.*;iii(S|ii'iii|j  111. I, 


i:i'io< 


I  III!    ,> 


Mill   llllt'i  I   till    iliillii  liiili  ill 


liill  iilmvi'  t£l\i-n. 


»«• 


U,  I*.  «ii<  Hiiril 


!•<•»». 


M,..      l.Vifl      I..IIIIL-    liHW", .Iilh    lii.l  i|..iiiiu' iriii,  imwi'i. 

Viiu    .M-  I  I.iiini;  'in  1,  imii.'', 


IkTII  Hill  liiiiitil.      i.iiiiiliii    I'.'un  .. 
IHTi:  ill  <..  .'1  111  -(• iiiiliii,  r;ll" 


l.mii  llhl' il,l\N     .lllh  ,  llliiill  III   ■.'f.i  I.ilill-     I 

l,"«l  nil;;   ll.H,         Vlli;    .   II   mil   Mf  'Jli        IlI'lS", 


.IlllV    "C'll    lllillliliM  IIM.    I'JIIl'l. 

,^iu  l.u'J  III liii  1,1  r.'U"' 

liiwi'liTi:;  ilil\,.      Inly    I II  111  IT  Mlilililill  (r,l. 

I.ii"ri  111^  il.n  »     ,\iii:.l' 1  ..I -.Ti  i      rjll'. 


II        I' 


*i'«»»»«'amiUt*tt»^i^>AfcV>i)>.yfc\<**ii>^ 


^ 


IMAGE  EVALUATSON 
TEST  TARGET  (MT-3) 


A 


{./ 


^  >. 


& 


J 


/ 


y    ^^ 


,  ^ 
''i^>^ 

"V^ 


= 

I  I.I 

1.25 


■ttlM    12.5 

U   116 


11^41 


7 


Hiofographic 
_Scienc3s 
Corporation 


23  WEST  MAIN  STRUT 

WnSTIR.N.Y.  MSM 

(716)  172-4503 


4^ 


s. 


V 


VeMcl  unci  year. 


Ton- 
nil  ([«■ 


Xumlier  of  ratine*. 


nATA  rn:T.ATi>jG  to  skaling  vessels  eg 

c.  ui'iiotpn  raptaiii ;  m.,  inato:  i. ,  ..wiier;  h.,  huiiten  d.  h.,  doik  hand;  b.  p.,  boat  pull* 
|iat<' <i|  cntrrinj;  "Pa. 


Firxt  lowering  day. 


Last  lowe 


laaa  Rrrk 


Black  Dinmand Kl.S;     0.    Paxton  lo.),  IT.VIN.. 

r  ]         TluimiiK  (h.t.  I7«t". 


■M.X,     S.    Ol«.n(.-.»,1(UOM JnlyJ.     OWn  u-.l,  1880"... 

j  July  I.    I'uxtoii  (v.).  I75a«. 


Aug.  19.    Olsen  (c),  l(Mi 


(arclraa 31.90     4.    Toufonl  (li.),aT4" 

Dclpkia BO-Ii'     12.     Warren  (i.).  2«0'« , 


FniaiirJM'. 


T'.i.  54      10.     Mnnn  ili  i.  :i:l,vv 

11.     A.  McLean  ((•  I,  mil'. 

1  boat  ime<l  aanie  an  raiiiN'B.     A.  SliL.  IIIC. 


lirart' 78.87     11.     Keppen  (nil.  3(lff<*  , 


Junel3.    Cotafor-l  111  1,374" J„ly  ,.    CoUfor.1  ,|,  ,,.170" Aug.  I..el7.ed.    Capt.  C. 

.I..1.V2.     Warren  (..  I.  ■-8.>«.«.M« |.,„ly3.     Warren  ,o.,.  l-Hl- Aug.ll.    Warren  ,c.,.a 

July  6  or  7.     Mimit  ili.i.;ri.'i" 


Jiilv  «.     A.  MrI.eaii  (e.l.JIS" 


.Iiil.v  4  or  5.     lii'|>|ien  (in.),  ;IU7». 


Aug.  19.    A.  McLean  (c. 


I 


Oawarii 35.20     8.    Marketieli  (in.),  71  .. 

K  or  »      SjirliiK  (o.)  iiB;|i«, 
8or».     Ilarkin  (rk.i.SV 


W.  P.  Naiwnril 


IXS7. 


(4a 


lilrli 


8!t.V. 


59.79     8.     I-aiii^  (IH.1,271' 


ns.  •.•:) 


7.     I.iinillierc  ini.i  It-Jj" 

Daiiiliri  (e.i,  IJKI". 
1  liiinliiii;  Ixiiit 

lianirin  ir.i,  1213". 

Liitiillieri:  (ui  I.  3'.'5»«. 

I.iiiKllieri:  ini.i.  "87''. 

fl.     llaiiKeii  (e.i,  ;)•)•."« 

1  liiintinit  Uiat.    llannen  'O.  :I0'J".' 


Hfrrd    %ilnm« 68.  7."i     10.     ily  agreement.  1366^' 


.Inly  (Honi.  time  inl.    Marketi.  iKm.i.  71 July  12.    Marketi.l .).79 Aug.  I.    Marketleh  (m.) 

I  ,  Seized  Aug.  2.    Marketi 


.Inly  HI.     l.nnillH'rL'  mi  ).  7H7'«  . 
•Inly  15.     tiaiiilin  oi   rji:i"'. 

I.iiiiillieri;  'III. I  :t'J5'i. 


July  1  or  J.     Haniten  di.  302"  . 
•I  uly  H  or  it.     I.iiL'.  1  :uu>' 


JulyO.    Laintf  (111.1  I(I9«« '  Ang.24.    Laing  (m.i,  lut 


July  in.     Gantliii  (r).  1214"' 


July  9.     Log.  |;t6t'' 


Seized  Aug.  25.    Lundlx 


.S«iz«l  Aug.  0.     Dep.  of  1 


' ""•"*  '"'     n,u:;':;V|-,'"{i:;:..,.-iniii.- "'■"■^-    ..Uen„.i..O.,« ;,rn,ie3«.    uUe„,..,1041« Ju.y2.«..ee,L    01«.„  ,c 

9.     (lUeii.  loKI'i.  I 

9  1".     Keefe  nil.).  1121  •»    112.V«.  I 

Rlnrk  »i....i.„.|  »1.57     -.     Keppeii.  KtHipa Juh  (beuinniiiK  of,.     K.  ppen  (m.l,  i:t83«. . . 

""'"''''''  •01"     '•<•     Warrenc.  and  o.l.  1137" JulyO.     Warnn  i.    anil  o.,.  1144" 


Ctriire 
K.'llr   . 


76.87     12.     Warren  (o),  1137" 

1  linnliiig  lioHl.     Warren  (o.i,  1873"". 


;  Jiil.vO.     Warn-n  1.   and  o.l.  1801» S«lied  July  12.     Warren 

'"'>"      Warren  (o.)  IMKi" July  13.     Wnrnn  c  ,.  1873M Seize.!  July  17.    Sli«panl 


80.00     10      Mo«mr  1.  ;):i5«» 

1  liiiiilini;  lioHt.     MoaH  n   i.  :i:i.'i«>. 


July  ll'-12.     .Mii.hu  uM.:t3J»». 


""""'""'"'"■'    ■=»■'*'     ■'     •■' " e.i   274"..i65« Inly  (laMi  ilav  -  of,.    Ja.ol.Mui  (.•.,,  275'  6W..  ..;  ,I„lv  (on  .lay  of  .n..  riuK ,).    .Jaeob.on  (c.) 

2i5". 

'"'""I'h  1.',.22     4      Smilli  (iii.i.  13i»7i' 


Wan  eil   at  iiitraiice  of  iuish.   Aiii;.  4.     .Smith      .\iil'. 5.     Sinitli  (in  i  Uo>i" 
(III.),  i;i»7". 


W    l'.«iiiHnrd 5!i.7!'     8  ..r  H      .\ii<l<-.oii  ..I.  Ii  i.  925'" "Julvl.     Lain- nn  )  Kill."," 

».     I.aiiii.'  im.i    I0!l5<>. 
»•.     Warn-ii  lo.i.  lirtsM. 


*■'*''  "•     llan-n  i.i.nu" Inly  4.     Han-.  »  .c...  •114' 

"'"''•  "'■"""■""      81. ,^7      67      Sioitli  (h.i.  t4Uh» Jolx  :il.     Sinilli  1 1,  i,  U8.-, 

*"•"*"■   7«.,'.4      Kl.     I.  M.L.i.n(.i.7:i2» J„|y  H.     I..  M.  Lean  (.•.).  73(8>"  . 


■•Mniillii 


'■"ihtlmlir 


.  ,'>4      Kl.     I.  Ml  Liaii  (II.  7:12" 

11       L.  Ml  Lean  If  I.  7*7»i. 

2  liiiiitiii;:  iKial-.     L.  .Mel.ean  (e.i,  747»i. 


4(1.21      «.     Clarke  iiM.  11  lil»» •.lulvlC     Clarke  i,-.,,  111««». ... 

1  biiutint:  Ixiat  c:  men  ill).     Clarke  (e.i.  1 1 19".        .Iiil\"l2     Clark,  i.    i.  I343'i 


;  .inly  :t.     Laiii);  iiii  i  1U'.I5"<  . 


Aug.  25.     Smith  (m.l,  140( 
S«i»MlJulyO.    Laing  (m. 


July  lu.     L.  Mi'l.iaii(c.),748'i  , 


Aug.  8.    Hansen  (e.i,  615> 
Aug.27.    L.  Mt'I.rf)an  (v.). 


July  13.    Clarke 


1^13<«  Aug.  20.    Clarke  (e).  111! 


'•""iiliiiii  i  |,i|.|  •2(1 


B.     Jaiol.Hon  (.1.  fl«:i" Aug.  .Ilrnl  i.arl  ofi      JmcLkou  (e.),  063" s..pt   3-7     .laeol.iion  le  | 

Aug    1.-     .fa,..lm.,ni..i..rfi4*  S.-pi;  3.    'jaeobmin  (e.),U 


e«.  02     8.     Hepjien  ili.i.  I3KI«". 


.lilly  liieifiiihiiii'  iifi.     I.'eppiii  ill. I.  i:i83U  . 


^"""'I''« 88  Oft      11       Ilakei  (.„.   7(12" 

1  liiiiitliig  iM.at.     linker  lo.l   702". 


(li'l. 
H.  an  II I 


Kli.l, 


!••*<». 


7.     Haii.eiiiei..  615" .Inly  8.     lluiiioii  hm.  B15". . . 

Inly  4  11'.     Ml  Kiel  d.i   071'" 


00  110     (1      MiKi.  I  UM   B70" 

1  limiting  lioat.     MeKiel  (i.),  673**. 


.Iiilv  7.     Ituker  lo  I 


Aug.  20.     Kaker  (o.i,  702< 


Aug.  13.     MeKiel  (e.),  671 


'r    VESSELS    ECITJIPPED    AVITM    CANOES. 

<1.  h.,  dork  hand;  b.  p.,  bont  puller;  ok.,  clerk;  agt.,  agent;  tal.,  talllor. 


Laat  lowering  day. 


Itate  of  lenvlng  mm. 


Catch. 


Divliion  of  catob  and  ruiuarka. 


Aug.l9.    OUen(c.),lu4(>« I  Aug. 21.    Olwn  (c),  1040«« I  1128.    01«.i,  (c.»,  l«MtM880» 

lUI.     UlNeil  (c),  1046", 

i"*l;;*;''"Jj"""^- '•,""" '  780or870.    Paxtoii«.),1757«'. 

AiiK.  I«-15.    IhomaiKh.).  17",M.  80U-800.    Thomas  (b.),  1775". 


Aug.  I,iel7.ed.    Capt.  ('.  A.  Abb»'.v,U.S.U.M.,48 ;  884. 


MunBie(o.),llS. 


Aug.ll.    Warrfii(c.».285» Aug.  12.    Warren  (c.),2:i.-l" 

Aug.l9.    A.McLfan(c.).415" Aug.  15.    Mosn  (h.),33S» 

{  Ant;.  lU.    A.  Mil.ian  (c),  I110». 


2037.    Warren  «M.  280' 

leiH  "09  (upper  coaat.)    Warren  (c).  315". 

•2900.    MiiRH  (h.),335« 

2259.     A.  McLean  (r.).418>. 
2374.    Spring  (u.),i31»>>. 


Aug.  14  or  15.    Kcppen  (ni.),307"' '1700.    Itopjien  (ni.),  ,«I7»>. 

leitM  AMI  (ch-arlv  from  evidence),  309"'. 
1785.    Warnn  «>.l,315' 


Aug.  I.    Marketich  (ni.).7l imi  una     \t     i.  .i  i  ,     ,  ». 

Sfi?edAug.2.    MarkHicb(ni.),7i: ,  MO-500.    Marketich  (n..), 71. 


Aug.24.    Uing.ni.,,IU9«" ,59,.    L«ing,n,.). 


1098'* 


Seized  Aug.  ii.    Luudlieri;  (m.  1,787'"  . 


1876  (on  board),    tiaudin,  I2I4" 

1870  (IcRg  5  in  Hcu).    <  iaudin,  1214'°. 


Aug.  (beKiiiningof).    Haniteu  (c.),302» '1200.    Hnnaen  (iM.  302'» 


.Sel«Hl  Aug.  6.     Dep.  i.f  Oyer  (C),  1300" i;t 


nmion  lNiard)|!)eeInr.     of     Thonipaon    (ni.l, 
I3H2  (ou  board);       i;i81«.  13«1«. 

!  }ii?S!:;:;a!jL"«..f«.c...3«'M364«. 

1370  (oil  biHird).     Tent,  of  Sliepard,  1826*>. 
July  2.  iH.Ue.1.    01«-n  (c),  1041" 50-00  (In  sen),    Olsen  ,c.),  1062" 


"Aug,  15.    Uepp<-n  (m),  i:i83«' •0fl7.    Koppeu  (ui.),1384« 

S..ize<lJul.v  12.     Warren  (c.  and  o.),  1144" 618  (on  b^wrd).     Warren,  1145'«  , 

8ei«e.l.Iulyl7.    .Sbepar.1,  IW 761  (on  board).    Warren.  1148"  . 


I  Jul.v.  1684  (A.  McLean  (O.),  416'"),  1644  (Spring 
A"^876"( a",  McLean (c),  416"),  730  (Spring  (o.), 

Uoea  not  afliM't  the  deduction  above  given. 


Jul.v,  961  (Laing  (ni.),  .098'*). 

Aug.,  512  (Laing  (m.),  1098"). 

lA>nering  days :  July,  10 out  of  2«) Laing    (m,), 

Loweringdaya:  Aug.,  11  outof 24/    1098'«. 


July,  .529  ((iaudin  (c),  1214'°). 
Auk.  1342  (Gaudin  (c),  1214'"). 
Loweringdaya:  July,  loout  of  17  (Gaudin  (c). 
Lowering  days :  Aug.,  lU out  of  26  i     1214"', 


Ineludea  upjier  coaat  catch.    Hansen  (c),  618«*. 


Aug.  (latter  iinrt  nf).     M<ms  (c.),335<» 'IMW.     Mosii  (o.).3:i5".341*', 

•Aug.25.     M.WH  |i-.),:;4I''.  'niKI.     Mo«m  (c),  KIHO'". 

"AuiJ.'JU,     Mo»»  !•■.),  111811",  17tHI-180O.     .Mohs  (e.i.  i;mi«... 

J  •  1050.     MoSH  (0.).  1393'>. 

'"••'•I Aug.  14-17,    .IiicoliHon  («■.),  275'*.  66«'° '700.    Jacobson  (c,),275'«.... 

AuK.25,    Smith  (111),  1400" Aiig.J6.    .Smitlum.),  14(11' 426.    Smith  (m.),  140o«« 

.Sei«.ilJulvt'.    Lniiig  (II..),  101i5» ,78.    Laiup  (m.),  1095»'. 


Aug.  8.    Hansen  (('.1,615".. 


Aug.  27.    L.  Mel^un  (c),  73<l««  . 


Aug.  20.    Clarke  (e.),  111»«»  . 


..    Aug,  15.    Hansen  (c.),6l6*.... 

..    Ang.25.    Smith  (b.),  1485" 

..   S<-pt.  a.    L.  McLean  (('.).  7:10*. 


Hansen  ic,),015'*. 


18.-M.    L.  McLean  (c),  7.'I2'>. 
lliOl,     L.  McLean  (o.),748»  . 


Lost  1  eanoe  almiit  June  30. 

337  on  iHiard.    Olsen  (c),  1045«,  lOfll". 


31.    Taken  in  sea.    Warren.  ISdl*. 
323  in  oea.    Warren.  1873M. 

Including  iip|)er  coaat  catch.    Mosa  (c),  1301«>. 


Lowi>ring  days:    10  out  of  23;  all  in  August. 
Smith  (m.),  1400*'. 


Includes  upper  coast  catch,    Hansen,  618**. 


July,  604.    L.  McLean  (c),748». 

Aug. ,  007,     1„  McLean  (c),  748»», 

Lowering  days:  July,  11  out 

of  24, 


Sept,  3-7.    Jiinilison  ic),  664»*,. 
Sept.  3,    Jucobmiii  (c),  1447'", 


Ang,20,    Clarke  (c),  1119" Inl7orl018.    Clarke  (c),  1130'... 

I 

....,  Sept,  3-7.    .lacobson  (c),  fi«4" "900,    ,l«ci>b»i«ii  (•■  I,  ««3"  .  ■  ■   •  •• 

'  IWo,  nearlv.    Jiirolmim  (c),  WW"  . 


Aug. 15.     Iteppen  (b.),  i:i83w 8()«.-!KlO.     Keppell  lb.!,  1:IH3H. ..  .^.... 

*Ailg.l5-18.     Tboinim  (Ml.).  !771»«.  560odd.    Tliiimiis  im.l,  I'^l"*,  KiS". 

■Aug.  18.    Thomas  (1.1. ).  1778".  | 

Aug.  20,     Maker  (i>.),  702" 1 1802.    linker  (n.),  702" 


Lowering   days:    Aug,  and}''"  McLean,  748» 
Sept.,  n  outof  34.  I 


Aug.  (middle  of).     Hansen  (r,>,  «1S» '800.     Hanson  (c).  6I5«». 


Aug.  13.     McKiel  (c),  e71<* I  "Aug.  20.     MoKlel  <o.»,  871'*. 


•100,  over.     Ml Kiel  «•),  670" 

KtOotld.     .McKlel  (>:).  871 '» 

•no,  Iwi  3  ur  4.     Ut'Kiel  (0,071"  ■-■ 


July,  12.13.    Baker  (c),  702" 

Aug.,  5»I9,     Baker  (0.).  7(I2'» 

Low.jring  days:  .I„,y,  „  ,.it  of  24,   Baker  (0.), 

Lowering  days:  Aug,,  6  out  of  80.   Baker  (o.), 

Includes  up|ieroonst  catch. 

lioat  .1  cauoea,  Aug.  13.    M.Kiel  (c),  673«*. 


lll\  ifir; 


fimrr    ■  • 


.1  iil\  TTii'iiniiiiiK  I'll.     K'-ppi  II  (111  I,  i'M'' 

iliilv  C.     Wniriii  If.  iiihI  im.  1144'' 

.Iiilv  t\.     Wiiriiii  (IP,).  ISfti" 


Kmr 


ao.lll     13.     \\  iirivii  ir.  iinil  O.I,  1137" 

7fl.  87     12.     WHrri>n  to.t,  IIST" 

1  liiiiitiiiK  IkiiiI,     Wiirn-n  (o.),  1873*". 

6(i.lKI      10      MoxHiiM,  ;a'.'" Inly  10  I'J.     Mess  uM,  lia.-i"-'. 

I  liiiiitint:  IhihI.     Mum  {v.).  3:i5*'. 


Jiilyl*.     Wiirivii   ,   aii.l...),18m» SfUfd  July  12.    Warrc 

.1  Illy  111.     Wiirr.  II  111  1. 1873M Seized  July  17.    Sliepiii 


n.iiiiliiio  rhii'f '20.00     ."S.    .laoolwuli  10.).  274«'.  !!«■>«« Inly  (IhhI  ilaj  -  i.li.    Jii.oIikoii  ((•.),275'.(ie«i  .. 

Triumph 

W .  P.  Wni » i«r«l 


Idt  Ir 

Bliirk  Diamnnil  .. 

Fiirarilr 


Jinniln 

l|«iinliiin  4  hirT 


.Iiilv  (on  (lay  nl'  ■  nicriiiK  nen  in).    Jarobsnn  (r.). 


l.i.22     4.     .•<milli  uii.i.  UltTi' Wanicil   al   iiitraiiif  of  panH.  Au(;.  4.     Siiillli  '  Aiiu'.  5.     Siiiitli  mm  i  Itmi" 

(iii.l,  i:ilt7i". 

July  1.     l.aiiiu  im).  IdOTi" ;  July  :i.     Laiiic  mi  1. 10!)5'« 


51).  711     «  iir  «.     .ViiiliT'Miii  (il.  li  ).  D'.'j"  . 
fi.     I.aiiiL'  (III. I.  lOilS''. 
«.     Warri'ii  (ci.i.  li;i!»J. 


AiiK.25.    Smith  (III.),  14 

I  SeisMHlJiily  t».    Laiiig  (i 


"■     llaiiri.ii  (..KfiU^' Inly  4.     Ilaii-n  ((•.1,014*  .. . 

81.57     «  7.     Siiiitli  (li.l,  140S'" July  :il.     Siiiilli  (li.i,  148.-i««... 

79.54      i:i.     1..  MiL.-aii  (i'.).732" Jiilv8.     L.  Mi  Lean  (c),  731)*' 

11.     L.  Ml  I,«an  (.•.).7*7»i. 

2  liiiuliiiK  lH>at«.     1..  McLean  (r. I,  747". 


40.21      fl.     Clarke  i.M.  111<.)«» 'Jiilvlo.     Clarki- mm.  lin»«' 

1  liiiutiii);  iMial  c;  men  ill).     Clarke  (c).  lll»".        Jnly'l2.     Clarki  (r.i,  i;i43*'. 


A  lip.  K.    Ilanneu  (r.i,  81 

July  10.    L.  MoLi'au(c.).748» Aug.27.    L.McL<iau(c. 


6.     Jai'olmou  d'.).  flO;i". 


Aug.  (lirHi  jiiirl  nil.    Jiiiiilwnu  (c.l,  fiOa". 
.Vuj{.  1.  •    ilariiliKiiii  If. I.  ( 


,  «t)4'>' 


July  13.    Clarki' ic. I.  1343«  Aug.  20.    Clarke  (c),  1 


.Sept..'!-".    JaooliHon  (c. 

8e|it.3,     Jac'obHoii  (<'.), 


Pathliatler 8602     8.     Kep|*n  ili.l,  13Ki" July  (lagiiiuiiiu  oil.     l!ep|iiii  (li. 


Trinniph. 


1  •»•.». 


98. Ofi     11.     llakcr  (.ii ..  7o2" I nh  7.     Ilaktr  lo  i.  To.'". 

1  liiiutiug  boat,     itaker  (o.l.  702''. 


Aug.  20.     Ilaker  (o.l,  70 


Hnii» !•).,  615" Iiilv  8.    Hanni'ii  (<■.).  615". 


UrW 

Bralrirr 80.  oo     0.     McKi.l  (o.l.  67(i-* lulv  4-10.     MrKiel  (i.i.  B71i" Aug.  13.     MoKicl  (c),  6 

1  bunting  lioat.    MrKiel  (o.i,  673H 


l»»«»9. 
Rlnrk  Dinmonii... 
Faiaiirilp 


81.57     10.      rhiinian  (0).  17B7" July  6.      TlinmaK  (c.i.  1707" luly  10.     Tli<mia>  (• .).  1767<» '  July  11.  Belted.     Tlionia 


70.54      11.     I.  Ml  Loan  (■■.).  7:il» Inly  14.     L.MoLoim 

i:)  icnrreolingi.     L.  MiLeaii  (0.1.737". 
9  (oorreoliiigi.     L.  McLean  (c).  748*'. 


Aug.  25.     L.  McLean  (c. 


JiiMniiii . 


40.21     «.    Clark*  (c.).lU9»' Julv  2.    Clarke  (c).  1339» July  10.    Clarke  (.,,  1343»« July  31,  »ei/.e<l.    Clarke 

July  30.    Clarke  (c),  134 


Kair 60.00     lo  or  12.    Spring  (o.),  1371'» July  24.     Keppen  (in.),  1377"  .. 

9  or  10.     lioppen  (ni.).  1376M. 

8.     Ueppin  ini.i.  1377«».  I 

8.     MonH  (o.i.lj95»». 


July  20.     MoH»  11   ..  1388" Aug.  15.     Keppen  (m.),  1 

I  Warned  Aug.  13.    Kepp 


I 


.Viaair 46.31     8.    .Magiio»eii  (m.).  14S6« June  27.    Ja.ol.»oii  (c).  663".  1441«» 4 ',"-'• .'-,   ,*'?5"'w°  ""• 

2  hunliug  ImatK.     Magiiesen  (ui.).  1436".  June  27.     MagiieMn  (m.i.  1437'».  i  j  8.'ized  July  IB.    Magma 

"  I  Jaconmi 


Sapphirr 123.00     15.     W.  Cox  (o).  75t*» July4.     W.  Cox  (o.),  756" July  8.    W.  Cox  k  .),  7.W  . 

W.  F.  Navward 59.79     13.    t)lHen  (c).  1710" 

1890. 

Adeir '  6.     Hanson  (c).  616" 

j  7.     HauMMi  (c.).  1941». 


'  July  30. 

July  7.    (»Uen  (c),  710" Aug.  18. 

I 
I 
July  4-9.    Uanaeu  (c),  616" 


\V.  Cox  (c),  7! 
Olseu  (c),  710 


-*rl«-l 90.85     14.     Huckuaui  (C),  707' 

Bralricr 60.00     12.     Keele  (c),  1085" 'July  IS.     Keefe  (c),  10K5" 


Aug.  25. 


Favoarilr 79.54     13.    L.  Mclean  (o.),750" July  16.    L.  McLean  (c.),750" July  18.    L.  McL.iin  (c),  760" '  Aug.  14. 

4  more  after  Aug.  10.    L.  McLean  (c.),750««.         i 


Keefe  (c),  loti 
L.  McLean  (c. 


Jniiiiilii 


40.21     9.    Olwu(c.),710" July  12.    Olsen  (.  ,711' Sept.S.    OUcn  (c.).713" 


K«Hiarl«Kfoniierly  the  Black  Dia-       81.00     11.    Smith  (li),  1486*» July  9.    Smith  (h.).  1486". 

inond.)     li.  Smith  (h.),  1408",  I486".  1  hunting  iM.at.     Smith  (b.»,  I486".  \ 


.^iaair  ... 
Sapphire. 


W.  P.  Harward. 


July  (middleof).    Jacobaon  (o.),e«3* '  4"*-^i' 

I  .  Aug.  23. 


46.31     8.    JacohHon  (o.),663" 

1  hunting  boat,    •lacubaon  (c.),663**. 

123.00il7.     W.Cox  (o.),757» *Julyl2.    Goudie  (h.),«77» I'J'nlyU.    Goiulio  (h.),677»» Ang.  15. 

1  2  hunting  Iwata.    W.  Cox  (c),  757".  "July  16.    Cox  (c  i,757»«. 


57.79     8.    Paine  (il.h.),  1725'* *  June  29.    Paine  (d.h.),1725«. 


JacobRon  (c.), 
Jaoobaon  (u.). 

Cox  (o.),787» 


Aug.  28.    Paine  (d.b.),l 


•About 
KXPLANATOKT  NOTE.— The  (man  exponential  flgurea  denute  the  line,  the  larger  one*,  the  page,  of  the  Record ;  i 


MUm  Loiinl.    iiWiM'.",,  "iliVvi 


1U61». 


....    S«'iio<lJiil.v  12.     Wiirrcii  «'.amli>.),I»4M. 


■AiiR.lS.     Ki'|.p.n  (ni),  i:i83«' '  W17.     licpiieii  (in.),  1384>  . 


^,     ..,  018  (on  board).    Warm..  lUoi. 3,.    Taken  I,.  h«„.    War, 

SeUe.l.)Hlyl7.    Sl.epanl,  1 107" ,  7fll(„n  board).    Warr.n,  1145- 


Aug.  (Intfr  part  »f).    Mom  (o.),a38". 
•Aug.  26.     Miwii  ((•.),;WI«. 
•  Aug.  '20.    .Mum  (o.),  1;i81I". 


.  MHOO.     Mosi«(c.),3;i5»,34l«>. 

I  'niKI.       .MOHH  (C.j.nitOl". 

I  1700-1800.     .MoH*  «•).  i;i!>l« 

'  MCIO.     MoKH  (c).  1393i>. 


■on  (I-.). 


Aug.  14-17.    .Iacob«on(c.),275'*,66B'<' 700.    Jacobson  (c.),275™. 

Aug.25.    S„,iih(m.),1400« Ang.2«.    Smith  (m.),  Uop 420.    Smith  (m.),  1100".... 

Sei.«lJul,vU.    Lni..g„„.),I01.5» i  ,,g.    L„|„g  ,„,.),  lOOS-. 


Aiig.K.    Jlanneu  ((-.1,6151'. 


Au)i.  27.    L.  McLean  (c).  730**  . . 


Aug.  .15.    HanR(>n(c.),615' 

Ang.2.'i.    Smith  (h.),  1485«» 

Sept.  3.    L.  MvLean  (c),  730* . 


M300.    Uanaeu  (c),  615" . 


1834.    L.  McLean  (c.),732i» 

ItKll.    L. McLean  (c.),748»  .... 


Aug.  2(1.    Clarke  (c),  111»«' . 


Sept.  3-7 
Seiit.  3. 


.    Jaroligon  tc),  604". 
Jnt'obHon  (c),  1447*'. 


Aug.20.    Clarke  (c),  1110«« 1017  or  1018.    Clarke  (c),  1120' 


Sept.  3-7.    .lacobson  (e.),  (MM". 


■  900.    .lacobHiiii  (e.),  663" 

OOti.  nearly.    Jiiculimin  (c),  604"  . 


Aiig.l,').     Ifeppen  (h.),  1383" 8(XI-!KHI.     Keppen  (h.),  13«3'» 

*Aiig.l5-lti.     Th<mian  (ni.).  1771».  560-O.1.1.    Thomas  (m.),  1771* 

*  Aug.  18.     ihoums  (m.),  1778". 


I™,  1778«« . 


Aug.  20.    Ilaker  (o.),  702". 


Aug.  13.     McKicl  (c.),  671*' 


Aug.  (middle  of).    Hansen  (r.),  615<*. 
♦Aug.  20.     McKiel  (c.),  671'» 


1802.    liaker  (o.),  7021'. 


*8i)0.    Hanson  (o,  015". 


«00,  over.     MiKiel  icl.  670»« 

6:io<«ld.    Mi-Kiel  (v.).  »:V» 

630,  leas  3  or  4.     MiKiel  (c),  071*<  . 


Julyll.seize<l.     Thomas  (c.),  1767-,  1779" '  ,3j.     Thomas  (c),  1767«,  1767«,  1779"  1779» 

Aug.-J5.     L.MeLean(c.),731> Aug.30.     L. McLean  (c), 738W 1283.     L. McLean  (e.), 7311. 


•;'{lll^l\''*r'r'i,J''!'^Ll»*''^''^ "Ol-    Clarke  (c),  1341" 

July  30.    Clarke  (c),  1341«'.  ,  gja  (on  board).    Clarke  (c),  1341". 


••    i^."8-'5;     Heppen  (m.).  1378" Aug.  18.    Reppcn  (m.),  1379" 

\\  arned  Aug.  13.    Keppen  (ni.),  1378". 


Aut:.  12.     Magnesen  (m.).  1438" 

Seized  July  15.    Magnesen  (m.).  1437". 
Jacolisou  (c),  1441<*. 


■  ■    Aug.  17.    Magnesen  (m.),  1003><  . 
Aug.  17.    Jacobson  (c-.).  1443'°. 


I  July  30.    W.  Cox  (c),  756«» Aug.  4.    C.  N.  Coi  (m.),  607«. 

jAng.  18.    Olsen  (c),  710«' Aug.  18.    Olsen  (c),  710» 

■ *Aug.  12.    Hanaen  (c.),616".. 


.!  770  odd.     Spring  (o),  1372'*... 
1  771.     MosH  (c).  1388" 
I  730-740.     Keppen  (m.),  1380«». 


418  or  420  bet.  seizure.    Jacobson,  663» . . 
218  liet.  seizure.    Jiicobson.  6«5<'. 
267  bef.  seizure.    Magnesen,  1437"*. 
483  or  485  aft.  seizure.    Magnesen,  1438". 
488  aft.  seizure.    Jacobaon,  1446'o. 

1641.    W.  Cox  (c),  756" 


Aug.  25.    Keefe  (c),  1085«>  . . . 
Aug.  14.    L.  McLean  (c),  731i. 


1812.    Olsen  (c).  710«  ... 
1812.    Logan  (tal.),  714«. 


Sept.2.    Olsen  (c), 713" Sept.2.    Olsen  (c.),711<.... 

,  Aug.  31.    Smith  (h.),1488«. 


Aug.21.    Jacobson  (o.),666»' j  *Ang.26.    Jacobson  (c),  1448"... 

Aug.  23.    Jacobaon  (u. 1,1448'". 

Ang.15.    Coi(c.),767»» I  Ang.HorlS.    Goudie  (h.),677«». 

Aug.  15.    W.  Cox  (c),  757". 


500-600.    Hansen  (c),  61*". 
431.    Report  of  c,  1876". 
765.    Hansen  (C.I,  1041<3  .... 


1130.  Bucknam  (0.),  706"  . 
800-900.  Keefe  (c).  1085«>  . 
1109.    L.  McLean  (c),  7S0><. 


1141.    Olsen  (c.),710«. 
777.    Olsen  (c),  713". 


945.    Smith  (b.),  148«w 

*  1600.    Jacobaon  (c),  664<  . 


Aug.  28.    Paine  (d.  h .),  1725'*. 


742.    Cox  (0.),  757". . 
709.    Cox  (c),  757»«. 


'  Sept.  1.    Paine  (d.  h.),  1725>«. 


480-800.    Paine  (d.  h.),  1725". 


•About 
r  CUM,  the  page,  of  the  Record ;  thna,  OUen  (0.),  1040",  meana  Capt.  Olaeu,  witness,  page  1040,  lino  J4. 


Ten.  1861». 
323  in  Kea.     Warren,  1873". 


Including  „p,H,r  e„„t  „,tch.    Mos.  (c).  i39itt. 

Lowering  days:    19  out   of  23;  all   In  Anim.f 
Smith  (ni.).  Uuo*'.  August. 

Includes  upper  coast  catcli.    Hansen,  618««. 


July,  604.  L.  .McLean  (c),748»". 
Aug. ,  907.  L.  McLean  (0),  748''". 
Lowering  davs;  Julv,  11  out  | 

of  24.  '  r     ..  T 

Lowering   days:    Aug.  and^  *"'^**" 

Sept.,  flout  of  34.  J 


Julv,  1233.     Baker  (o.),  702'». 

Aug..  5(19.    Baker  (o.),  702'*. 

Lowering  davs:  July,  11  out  of  24.   Baker  (o.), 

7(I2». 
Lowering  davs:  Aug.,  6  out  of  20.  Baker  (0.), 

702"". 

Incladea  upper-coust  catch. 

Lost  3  canoes,  Aug.  13.    McKiel  (c),  671<>. 
Lost  3  canoea,  Aug.  13.    McKiel  (c),  673**. 


July,  586.  L.  McLean  (c), 731". 
Aug.,  697.  L.  McLean  (0.),  731'«. 
Lowering  days:  July,  14  out  of  18.    L.  McLean 

(c.),731'». 
Lowering  days :  Aug.,  18  out  of  30.    L.  McLean 

(c.),73r'«. 

Stern  boat  with  3  men  in  it.    Clarke  (c),  1119**. 

6.10  taken  liefore  seizure.    Moss  (c),  1380". 
361   transferred   to   Pathfinder  before  seizure. 
Moss  (c),  1389X. 


All  taken  in  July.    W.  Cox  (0.),  756<». 
tiowering  day s :  July,  19  out  of  28.    W.  Cox  (c.), 
75«<'. 


Includes  upper  coast  oatob.    Hansen  (c.),  fnd". 


Julv.  362.    L.  McLean  (c),  750". 

Aug.,  747.    L.  McLean  (c),  750'^ 

Lowering  days :  July,  9  out  of  16.  J  L.  McLean, 

Lowering  days:  Aug.,  10  out  of  20.  )    (c.),  7S0'<. 


Catoh  unusual.    Jacobaon  (c),  665<*. 

July,  311.    Cox(c.),757M. 

Aug.,  898.    Cox  (c),  767«». 

Loweringdays:  July,  13  out  of  20.  Cox(o.),757««. 

Lowering  days:  Aug.,  10  out  of  18.  Cox  (c),  757''. 


Ft  F 

f  1  {' 

1    ■    ■ 

'        "/   ' 

007 

(Mr.  Lansing's  Argument.) 

For  instance  the  first  vessel  in  1880  on  the  table  of  vessels 
c.'ii lying  canoes  is  the  "  Anna  Beck";  you  will  flntl  the 
iiiinibor  of  her  <anoe8.  8,  was  sworn  to  by  Olsen.  The 
lettir  "  c"  following  the  name  refers  to  his  position  as 
ciijitain  of  the  schooner,  and  you  will  find  that  the  mean- 
ing!; i)f  these  letters  ap|>ears  immediately  below  the  title 
of  file  table;  after  the   nam«  "Olsen"  the   reference  ia 

lofo  liis  evidence  at  page  l<t4»»,  line  54,  of  the  Record.  As 
a  fiiither  example  of  the  use  of  tlie  table,  and  to 
show  the  necessity  of  citing  all  the  evidence,  take  the 
case  of  the  "  Blacli  Diamond."  In  188(5,  we  have  the  testi- 
ni'iny  of  her  captain,  Paxton,  that  she  took  "780  or  870" 
skins.  Paxton,  at  a  later  time,  states  that  from  this  num- 
Ix  r  sliould  be  deducted  04;  and  Thomas,  who  was  a  hunter 
on  file  vessel,  says  the  catch  was  "between  800  and  900." 
We  iiave  another  instance  in  the  case  of  the  "  Minnie,"  in 
l><s!i      Von   will   find   first  the  statement  of  Jacobsen  (to 

20  whom  reference  was  made  as  captain  in  one  of  the  earlier 
(dhniins  referring  to  the  "Minnie"),  that  before  seizure 
flic  vessel  took  418  or  420  skins;  then  again  the  same  wit- 
ness testifies  that  before  seizure  218  seals  were  taken; 
tiicu  Magnesen.  the  mate,  gives  the  number  before 
seizure  as  2()7,  and  after  seizure  Magnesen  says  483  or 
4S,"),  and  Jacobsen,  4S8.  These  instances  show  how  neces- 
sary it  is  to  examine  all  the  evidence  in  connection  with 
fhi'se  catches,  and  that  the  statement  of  one  witness  is  in- 
snflicient,  mdess  be  bases  his  evidence  upon  a  book  or  upon 

30 some  record  that  he  kept  at  the  time  that  the  catch  was 
made. 

I  now  propose  to  examine  the  tables  which  have  been 
submitted  in  the  argument  for  Great  Britain,  which  are, 
as  1  have  said,  between  pages  7.5  and  78,  and  to  note  what 
corrections  should  he  made.  In  the  case  of  the  "Caro- 
lena  "  in  1886,  page  75  of  the  argument,  it  is  stated  that 
she  took  686  skins;  the  witness  Munsie  testifies  to  684. 

Mr.  Peters:— 686  are  inventoried  by  the  United  States 
Govi;rnment. 

40  Mr.  Lansing: —We  give  both  counts  in  our  table,  but 
you  give  no  credit  to  Munsie's  statement.  We  find  in  the 
( iise  of  the  "  Mary  Ellen  "  that  she  left  the  Sea  August 
•I'.Kh  or  '?0th,  while  the  date  of  ending  her  cruise  is  given 
in  the  table  as  August  24th. 

The  Connnissioner  on  the  part  of  the  United  States:  — 

Yesterday,  Mr.  Lansing,  you  gave  that  same  date.     Can 

vou  refer  to  the  Record  shewing  the  circumstances  of  the 

"  Mary  Ellen"  leaving  Bering  Sea? 

Mr.  Lansing:— It  is  found  in  the  Record,  page  255,  lines 

30  ."il  and  63.  I  was  asked  that  same  question  yesterday,  and 
1  then  referred  to  Exhibit  No.  27,  the  abstract  from  the 
memoiandmu  book  of  the  witness  Bragg,  which  shows 
tliatbhe  was  in  the  Sea  on  August  29th;  but  we  have  the 
oral  statement  of  the  witness  at  the  page  I  have  re- 
ferred to. 

In  the  case  of  the  "Pathfinder"  the  British  tables 
sliow  that  she  took  "about  1,400"  skins.  The  statement 
in  our  table  is  1,460;  and  we  find,  too,  that  she  entered  the 
Sea  .June  6th,  and  the  statement  in  the  British  table  is 

^o'aliout  July  1st."  Then  in  the  case  of  the  "Theresa,"  I 
tiiid  the  note  "short  of  provisions";  her  sealing  ceased 
aeiording  to  the  table  on  the  25th  of  August,  and  it  is 
fair  to  assume  that  she  was  short  of  provisions,  as  that  date 
was  substantially  the  close  of  the  season;  to  call  the  atten- 
tion of  your  Honors  to  the  fact  was  clearly  unnecessary. 


I  ■ 

i  '. 

i    , 

If 

'     <>l|f:*l- 


rT-r  '•' 


I 


V- 


•I ' 


r>(>s 


(Mr.  Lansing's  Argument.) 

We  find  the  catcli  of  the  "  Adele  "  given  as  <.tO(».  Tlicio 
are  two  references  to  her  catch  hy  the  witness  Hanson,  .is 
shown  by  our  table,  one  gives  !)"<!  and  tiie  other  DOO;  hut, 
if  the  Commissioners  will  examine  the  testimony  of  this 
witness,  at  j>age  ♦>1,h,  line  tit!  of  the  Kecord,  tluv 
will  find  that  m  all  the  testimony  he  gives  in  regard  to  tlic 
catches  of  the  "  Adele"  the  U|»|)er  Coast  catch  is  inclndcil. 
loand  the  number  given  by  him  should  not  le  credited  as  a 
Bering  Sea  catch  alone. 

The  next  vessel  is  the  "Grace,"  and  the  British  table 
states  that  from  "  1,700  to  1.100  "  was  hercatch  in  the  S.>  >. 
Now  it  is  very  clearly  shown  by  the  evidence  at  page  iJmt, 
line  10  of  the  Record,  that  l.lon  was  the  number  she  ac- 
tually took.  Yon  will  find  that  fully  shown  in  the  tables 
I  have  submitted;  in  fact  all  these  j)oints  are  there  shown. 

The  next  vessel  in  the  list  is  the  •'  Favourite,"  and  tlie 

witness  referred  to  is  Alexander  McLean,  but  the  catcli  is 

20 from  the  testimony  of  Charles  Spring,  showing  cctnchi- 

sively  that  the  witness  whose  name  is  in  the  column  is  nut 

reliecl  on  for  every  particular. 

I  also  call  your  attention  to  the  fact  that  after  the  dc 
tails  of  the '*  Favourite's  "  experience  in  Bering  Sea,  ap 
pears  a  statement  in  the  column  entitled  "Remarks" 
which  reads:  "  Witness  called  by  the  LTnited  States  "  I 
do  not  understand  why  this  distinction  is  made  by  niv 
learned  friends  between  a  witness  called  by  the  United 
States  and  one  called  by  (ireat  Britain.  Is  it  an  insiniia- 
3otion  that  all  our  witnesses  gave  false  testimony^  I  could 
see  that  adi.stinction  might  have  been  drawn  if  it  bad  l)een 
said  that  a  man  was  an  interested  witness,  or  one  that  was 
not  interested  in  the  results  of  this  Commission.  Such  a 
compaiison  would  be  eminently  proper,  and  I  i)ropos(.'  to 
examine  the  status  of  the  witnesses  who  have  been  called, 
to  see  how  many  of  these  are  interested  and  how  many  are 
not  interested. 

We  havi-  in  1H8(>  on   vessels  equipped  with  canoes,  the 

following  men  testifying  uptm  the  subject  of  catch:    (Tiie 

40  names  of  witnesses  who  have  no  interest  in  the  decision 

of  this  Commission  I  shall  have  italicized  when  this  list  is 

printed.) 

Anna  Beck Olsen,  master  of  same  vessel  in  1887 

and  a  claimant. 

Black  Diamond Paxton,  master  and  a  claimant. 

Thomas,     master    of    "Black    Dia- 
mond" m  18S<»  when  seized. 

Dolphin. Moss,     master    of     "Kate"     when 

CQ  warned  in  18Ht>. 

A.  McLean,  interested  in  the  seizure 

of  the  "Onward." 
Spring,  owner  and  claimant. 

Grace Repjjen,    mate    of     "Kate"    when 

warned  in  ISHJ). 
Warren,  alleged  owner  and  claimant 
in  lH,s7. 

Onward .  ..Marketirh,  mate  and  claimant. 

Spring,  owner  and  claimant. 
(3qW.  p.  Say  ward Part  owner,  mate  and  claimant. 

1887. 

Ada... Lundberg,  mate  and  claimant. 

Gaudin,  master  and  claimant. 

Adele Hansen,    claimant    as     master     of 

"  Wiunifred  "  in  1892. 


0(1!* 

(Mr.  Lansing's  Argument.) 

Alliod  AdamB Btf  agreement  and  log. 

Anna  Beck Olson,  master  and  claimant. 

Keefe,  mate  and  claimant. 
Black  Diamond Reppon,    mate    of    "Kate"    when 

warned  in  188!). 

Di)li>liin Warren,  master  and  claimant. 

Gi a<o Warr en, alleged  owner  and  claimant. 

loKato Moss,     master     of     "Kate"    when 

warned  in  1889. 
Mountain  Chief Jacobson,  master  of  "  Minnie  "  when 

■warned  in  1880. 

Triumph  ..   Smith,  mate  of  vessel  when  warned. 

\V.  P.  Say  ward  Andei-sen,  deckhand  when  vessel  was 

seized. 
Laing,     mate      when     seized,    and 

claimant. 

1888. 

Adole -  Hanst-n,  claimant. 

Black  Diamond Smith,    mate  of  "Triumph"  when 

warned  in  1889. 

Favourite L.  McLean,  not  interested. 

Juanita Clark,  master  of  same  vessel  when 

seized  in  188!». 

Mountain  Chief Jacobson,  master  of  "  Minnie"  when 

warned  in  1889. 

Pathfinder Rejtpen,    mate    of    "Kate"    when 

warned  in  188!». 
^  Thontas,    master    of    "  Black    Dia- 

mond "when  seized  in  1889. 

Triumph E.  C.  Baker,  owner  and  claimant. 

1889. 

Allele Hansen,  claimant. 

Beatrice McKeif,  nut  in te rested. 

Black  Diamond Thomas,    master    when    vessel  was 

seized. 

Favoinite L.  McLean,  not  interested. 

■*°juanita Clarke,    master    when    vessel    was 

seized. 

Kate     Spring,  ownei'  and  claimant. 

Reppen,     mate     when     vessel     was 

warned. 
Moss,     tnaster     when     vessel     was 
warned. 

Minnie Magnesen,  mate    when    vessel   was 

seized. 
Jacobsen,  master  when  vessel   was 
'  seized. 

Sapphire ..  W.  Coj\  not  interested. 

W.  P.  Say  ward Olsen.    master    of     "Anna    Beck,'' 

1887,  and  claimant. 

18S)0. 

Adnii' Hansen,  claimant. 

Alii] Bucknani,  master  of  the  same  ves- 
sel when  seized  in  1889. 

Beatrice Keefe,  mate  of  "  Anna  Beck  "  when 

"°  seized  in  1889. 

Favourite L.  McLean,  not  interested. 

Juanita Olsen,  master  of  "Anna  Beck"  when 

seized  in  1889. 

Katheriue Smith,    mate  of  "Triumph  "  when 

warned  in  1887. 


II      I. 


:^i!   \\i 


jprr'"' 


*(IU 

(Ml.  Liinsin^'s  Argument.) 

Minnie Jacobson,     master   of    same   vcssol 

when  seized  in  1S89. 

Sapphire Tr.  Cox,  not  interested, 

W.  P.  Say  ward Paine,  not  interested. 

Then  we  have  the  following  vessels  L'quip|)ed  with  boats 
and  the  witnesses  who  supphed  the  data  relating  to  tlit-in: 

10 

1886. 

Adele Hansen,  claimant  in    "  Winnifnd  " 

case. 

Mary  Ellen Brcunj,  not  interested. 

Pathfinder Munsio,  claimant. 

0'L»'ary,  master  of  the  same  vessel 

when  seized  in  1889. 
Byers,  hunter  on  same  vessel  wlun 
seized  in  188D. 

2oTheresa Ramlase,    hunter    on    "San    Jose" 

when  seized  in  1887. 

Thornton Dallas,  cook  on  vessel  when  seized. 

Warren,  alleged  owner  and  claimant. 
Vanderbilt Meyer,  not  interested. 

1887. 

Allie  I.  Alger Raynor,  not  interested. 

Favourite    McLean,  not  interested 

Mary  Ellen A.   McLean,  interested  in  the  .seiz 

30  ure  of  the  "  Onward." 

Steele,  not  interested. 
Folger,  not  interested. 

Mary  Taylor McKeil,  not  interested. 

Pathfinder. Munsie,  claimant. 

O'Leary,  master  of  same  vessel  when 

seized  in  1889 
Byers,  hunter  on  same  vessel  when 

seized  in  1880. 
Thomas,    master     of    "Black    Dia- 
40  mond  "  when  seized  in  1889. 

Penelope Miner,  not  interested. 

Vanderbilt Meyer,  not  interested. 

1888. 

Annie  C.  Moore Ramlase,    hunter    on    "San    Jose" 

when  seized  in  1887. 
Hachett,  not  interested. 
Viva W.  Baker,  not  interested. 

50  1889. 

Annie  C.Moore Ramlase,    hunter    on    "San  Jose" 

when  seized  in  1887. 
Hackett,  not  interested. 

Ariel Bucknam,  master  and  part  owner  of 

vessel  when  warned. 

Maggie  Mac Ker,  not  interested. 

Bragg,  not  intere.nted. 

Mary  Ellen Brown,  not  interested. 

A.  McLean,  interested  in  seizure  of 
60  "  Onward." 

Mollie  Adams  ......  Goudie,  not  interested. 

Pathfinder O'Leary,    master  when    vessel   was 

seized. 
Byers,  hunter  on  vessel  when  seizi'd. 
Tliere.sa Bissett,  not  interested. 


oil 

(Mr.  Lansing's  Argument.) 

Triumph E.  C.  Baker,  part  owner  and  claim- 
nut. 
Viva W.  Bdkei;  not  interested. 

1S1>(>. 

Aiuii<>  C.  Moore Hackett,  not  interested. 

K.  1^  Marvin McKeil,  not  iiitere.ifed. 

loMfiKf^ii'  Mat^ lirown,  not  interested. 

Ker,  not  interested. 

Oo.iii  Belle Sieivard,  not  interested. 

I'liiclope Folijer,  not  interested. 

Sen  laon  ...  . .   Magueseu.  mate  of  "  Minnie  "  when 

seized  in  1SH}». 

Tlii'K'sa Steele,  not  interested. 

Tiiiiiiipli C.  N.  Co.r,  not  interested. 

Hnmlase,    hunter    on    "San    Jose" 
wiien  seized  in  lss7. 

-,oVivii ir.  linker,  not  interested. 

Wiiltcr  L.  T;ich O'Leary,    master  of   "Pathfinder" 

when  seized  in  1889. 


'Ur 


fl 

1  f  f ' 

■■   Un 

■         ,  *  .' 

"   '•lOlvf^ 


¥,■ 


'(      i* 


There  is  this  noticahle  p<}culiarity  ahout  the  year  1 S90,  that 
thiMf  are  more  disinterested  witnesses  in  that  year  than  in 
,iiiy  other,  while  in  1H!»0  the  catch  testified  to  is  much  smaller 
tliiiii  in  any  other  year.  Now,  I  submit,  that  if  there  is  a 
distinction  to  he  made  it  should  not  be  made  as  to  whether 
a  witness  was  called  by  the  United  States  or  by  Great 

3oHiitain,  but  whether  the  witness  was  interested  in  the  re- 
sult of  his  testimony  or  not.  The  evidence  regarding 
catclu's  which  has  been  i)roduced  by  Great  Britain  isnine- 
ttntlis  of  it  by  witnesses  who  are  interested;  and  from 
that  fact  alone  these  tables  should  be  scrutinized  with  the 
utmost  care,  for  we  find  that  where  an  interested  witness 
{;ivf.s  testimony  twice  concerning  any  catch  it  is  much 
l;irt;er  in  his  direct-examination  than  when  he  is  cross-ex- 
aniiiHHl,  and  the  number  is  substantially  reduced  in  several 
instances. 

40  In  reviewing  the  tables  submitted  in  the  British  argu- 
ment I  had  considered  the  "  favourite "  in  1886.  The  next 
vessel  to  which  I  wish  to  call  your  attention  is  the  "On- 
waul,"  and  the  witness  relied  on  is  Marketich;  a  cor- 
rection was  made  in  oral  argument  changing  the  catch 
fidui  400  to  907.  I  have  referred  to  the  statement  of 
Marketich  that  the  catch  in  the  Sea  was  between  400  and 
;VMi,  which  is  found  at  page  71,  about  line  60  of  the 
Recoid,  and  the  increase  of  the  figures  is  therefore  un- 
WMiranted. 

jo  Tile  next  vessel  is  the  "  Black  Diamond,"  the  last  one 
on  the  list  for  1H86;  the  date  of  sealing  is  given  from  July 
1st  to  August  4th,  but  from  the  evidence  of  the  witness 
Thitnias,  which  is  found  at  page  1774  of  the  Record,  line 
<'>4.  you  will  find  that  the  vessel  left  the  Sea  between  the 
10th  and  15th  of  August. 

In  the  table  for  1887  the  first  vessel  is  the  "  Adele," 
which  is  under  the  same  criticism  as  the  "  Adele"  in  other 
years;  that  is,  that  the  number  given  for  the  catch  should 
Udt  ho  credited  as  all  taken  in  Bering  Sea.    The  next  is  the 

60"  Mary  Taylor."  The  period  given  for  the  commencement 
of  lior  season  is  June  25,  but  we  find  by  the  testimony  of 
M(  Keil  that  she  entered  the  Sea  on  the  24th. 

Then  we  have  the  statement  regarding  the  "Mary 
Ellen  "  (A.  McLean  is  the  witness),  and  we  find  that  she 
left  the  Sea  August  20th  or  21st  instead  of  August  19th. 


'V      ll 


.t 


\'  ■ 


i'jiA   J. 


eta 


'  a*-'  ■) 


(,Mr.  Laiisiug's  Arguiiiont ) 

The  '*  Favourite"  follows,  hut  no  nuinlwr  nppoarn  in  ilio 
column  of  hontH  oi-  cano*>s.  \Vu  find  on  uxnminiii^  tli« 
Re<"ord  that  she  carried  fivehoats.  Her  catch  isalso  j^ivcn 
as  1,HK4  while  in  fact  it  was  l.«iH4— a  difference  of  200.  TIk, 
reference  to  tlie  Hve  fHiats  is  Record,  pajje  732,  line  H,  ami  tn 
her  catch.  Record,  page  7^.  line  «U.  and  Laughlin  M<.;l,t;iii 
is  testifying  there  from  his  sealing  hook. 

lo  The  next  is  Ravnor's  testimony  in  reference  to  llic 
"  Allie  I.  Alger."  Thereare  no  sealing  dates  given,  hut  .in 
examination  of  the  tallies  I  have  suhmitted  shows  that 
the  sealing  period  of  the  "Alger"  was  from  July  t!||i  ,ir 
7th  to  August  24th.  and  the  catch  instead  of  1.58(1  slmiild 
have  deducted  from  it  .Vio;  the  British  tahle  gives  "  ."xio  in 
the  Sea."  hut  it  was  in  fact  50(»  on  the  coast  and  tliu 
Bering  Sea  catch  was  l,os«t. 

The  next  vessel  is  the  "Triumph,"  and  we  And  that  lur 
sealing  period  is  given  fioni  August  7lh   to   August  2,')tli, 

2o  while  as  shown  hy  our  tables  here,  her  fiist  "lowering" 
day  was  August  Mh. 

Then  wo  have  the  "  Bla(;k   Diamond,"   with  the  ffsti 
mony  of  Reppen,  and  the  statement  is  made  that  the  catdi 
was  about  l.OdO,    hut   from  Repi)en's  statement  (Retoid, 
1384,  line  3),  the  catch  is  shown  to  be  907. 

The  next  is  the  "  V'anderbilt."  The  sealing  dates  givin 
are  from  July  4th  to  the  25th.  and  then  under  the  coliiiiin 
of  "  Remarks"  it  appears  that  she  left  the  Sea  onSepttni- 
ber  11th.     From  the  statement  made  by  the  learned  senior 

30  counsel  on  behalf  of  Great  Britain  at  the  tinje  when  ho 
submitted  certain  calculations  on  catch  it  ap|)eared  that 
all  these  were  based  on  the  (piestion  as  to  when  the  vessel 
entered  and  left  the  Sea  and  not  as  to  the  days  when  she 
first  and  last  "lowered."  The  period  of  sealing  sliouhl 
therefore  be  continued  until  September  11th. 

As  to  the  "Alfred  Adams,"  we  find  that  there  was  an 
agreement  that  the  number  of  canoes  she  carried  was  Kt. 
The  reference  relating  to  that  is  found  at  page  IHtiO,  line 
50  of    the    Record.     Wo  also   have  her  fii-st  "lowering 

4oday,"  July  !>th.  Now  there  have  been  omitted  from  tiiis 
table  for  1S87,  of  course,  I  presume,  intentionally,  because 
the  data  was  considered  of  little  value,  the  "  Peneioiie," 
the  "Anna  Beck,"  the  "Dolphin,"  the  "Grace"  and  the 
"Say ward."    These  we  have  inserted  in  our  tables. 

In  188!t  we  find  the  catch  of  the"  Viva  "entered  as  l.t'.ti.s, 
which  was  corrected  to  1,539,  at  page  721,  line  48,  of  tiie 
Record. 

Then  we  have  the  "  Favourite"  credited  with  13can(u\4; 
while  she  in  fact  carried  11  canoes  and  two  hunting  beats 

50  (Record  747,  line  51). 

The  next  vessel  is  the  "Annie  C.  Moore"  with  a  period 
of  sealing  given  from  July  6th  to  August  I'Hh,  although 
we  find  in  tiie  Record  it  was  stated  as  from  July  2<>lli  to 
August  22d.  Her  catch  is  given  as  800.  and  Hackett  says 
"nearly  800 "  and  Ramla.se.  "about  700." 

The  next  vessel  is  the  "  Triumph,"  and  the  table  gives 
her  sealing  period  from  July  7th  to  August  20th;  these  are 
the  first  and  last  "lowering  days."  The  next  is  the 
"  Juanita"  and  there  are  six  boats  credited  to  her.     She, 

60 in  fact,  carried  six  canoes  and  one  boat  with  three  men. 
There  are  left  out  of  these  tables  for  1888  (and  the  data 
concerning  them  is  as  comj)leto  for  that  year  as  any 
other),  the  "Adele,"  the  "  Black  Diamond,"  and  the 
"  Pathfinder."  The  "  Pathfinder"  left  with  560  skins  on 
board,  as  shown  by  the  testimony  of  Thomas,  Reconi 
1771,  line  66,  and  1778,  line  65. 


(Mr.  I.Ansing*s  Argument.') 

In  1880  wo  have  the  "  Mary  Ellen  "  with  her  period  of 
8(Mliiin  given  as  from  July  5th  to  August  25th,  while  in 
f.ic  t  she  entert'd  the  Sea  July  3d  and  left  on  August  2Hth. 
\\r  have  tlio  "  Anniti  C.  Moore" — thti  end  of  her  sealing 
|it'ii(iil  iH  given  as  August  l*tth  nnd  she  loft  August  22d; 
mill  t ho  "  Minnie's"  sealing  stated  as  ending  on  August 
121  li,  while  in  fact  she  left  the  Sea  August  17th. 
10  Tlio  "  Ariel  "  is  next;  no  reference  is  made  to  the  canoe 
that  was  picked  up  hy  her  and  used  for  sealing;  her  period 
is  nivon  from  Julv  14th  to  August  IHth.  She  entoro<l  the 
Sf.i  .hily  11th  and  left  August  21st.  Then  wo  have  the 
'•\iva";  the  hogimiing  of  hor  season  is  given  as  July 
tltli.  while  in  fact  it  was  July  4th. 

Tlie  dose  of  the  "  Favourite's  "  season  in  1KH»  is  given  as 

Aii^'iist  2.'>th,  while  she  loft  the  Soa  on   August  3uth;  her 

cntrli  is  given  as  1,305,  while  in  fact  it  was  1,383;  this  last 

iMiinhor  is  from  the  testimony  of  Laughlin  McLean,  as  he 

2os;ilis((|uently  corrected  it  from  his  sealing  hook. 

Tli(  "Sap|)hire"  closed  her  season,  according  to  the 
taWlfs.  on  July  30th,  while  the  Record  shows  that  she  left 
on  .\ugu8t  4th. 

The  next  vessel  is  the  "Theresa."  and  there  is  no  date 
given  for  the  close  of  her  sealing  season,  hut  at  page  776, 
line  14.  we  find  that  she  loft  the  Sea  on  September  3d. 

'I'lio  witness  Moss  is  cited  to  show  the  "  Kate's"  season 
was  from  July  28th  to  August  ICth,  while  according  to 
tlif  evidence  she  entered  the  Soa  July  11th  and  left  August 
30istli.  The  "  Mollie  Adams"  is  left  out  of  this  table  for 
iss;.  She  had  12  hunting  boats  with  two  men  in  a  boat, 
while  the  full  data  of  her  voyage  are  given.  The  "Adele  " 
is  a^,^'lin  omitted  and  also  the  "  Black  Diamond." 

In  the  18!»0  table  the  "  Annie  C.  Moore  "  is  credited 
with  <;anoes  hut  we  find  at  page  059,  line  46,  of  the 
Ki'cord  that  she  cairied  six  boats 

Then  the  "Minnie"  carried,  besides  hor  eight  canoes, 
which   are  in  the  table,  one  hunting  boat  for  which  no 
(led it   is  given,  the  reference  to  the  Record  is  page  663, 
40 line  <i:{. 

Tlie  "Maggie  Mac,"  it  is  said,  carried  six  boats,  while 
in  fact  she  carried  five,  as  is  shown  by  the  evidence  of 
Brown,  one  of  the  hunters  on  board,  page  653,  line  50,  of 
the  Record. 

Then  the  "  E.  B.  Marvin,"  formerly  the  "Mollie  Ad- 
ams." loft  the  Sea  on  September  2d  (Record,  page  672, 
line  2^),  instead  of  August  30th,  as  shown  in  the  British 
tahlu. 

As  to  the  "Juanita,"  it  will   be  seen  that  the  actual 
JOcatch  as  given  at  page  713,  line  32,  of  the  Record,  was  777, 
instead  of  1,141. 

Then  we  have  the  "Sapphire"  with  her  hunting  period 
niven  from  July  15th  to  August  15th,  while  it  was  from 
.Inlv  IL'th  to  August  15th,  and  the  catch  instead  of  being 
74'.'' was  70J). 

The     "  Theresa "     is      credited     with     a     catch    of 

4.M1     instead     of     400;      and     in     the     case     of     the 

"Allie    I.    Alger"     we    have    shown    that    hor    catch 

indmlos  the  Upper  Coast  catch  and  there  is  n       jaling 

*JO(late  };iven. 

Tlu!  table  for  1890  does  not  include  the  "  Favourite," 
which,  with  seventeen  canoes,  made  a  catch  of  1.109,  and 
we  have  her  full  data  (Record,  p.  750).  The  "  Katherine" 
is  also  omitted.  She  carried  eleven  canoes,  was  in  the 
Sea  from  July  9  to  August  31,  and  took  945  skins  in  the 


' 

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PT 


ill 


014 

(Mr.  I^msing'H  Art,;unu>iit.) 

Sen.    The  refer*" nco  to  tliu  "  Kutlicriii«>"  irt  pnno  Nhi;  ,,f 
thu  Kecoi'd. 

Now,  I  Huhniit  that  tli«>8H  talilcH  cnniiot  hvi  rt'liod  ii|h,ii 
an  Kiviiig  (-(Mivct  *lalii  in  rt'^nrtl  to  theso  v«-8h«(Is.  '\\m 
numt  ncTiiiatt)  Htat«>iii«>ntH  aroin  ii'Kiird  to  tho  yt>ar  |o>i;, 
nn«l  yet  out  of  the  v«'khc1s  H«>aliii(;  that  year  (thrrr  no 
fifteen)  ronectioiiH  hIioiiIiI  ho  math*  in  the  data  of  h*>vi'ii  df 
lothi'Mi.  In  th«>  tattle  for  Ims"  correctionH  shmiltl  iif  iii,i<|i> 
for  all  hut  three;  whiitt  in  IshS  all  hnt  ono  ar<>  im-di  tx  I. 
Afl  to  IN81«,  eorrectiono  Hlioiihliio  made  in  all  lint  tlnvo, 
and  aH  to  lhl)o,  in  all  hut  «>i^ht.  I  appreciate  that  it  Ih 
tediouH  to  review  these  finniew,  hut  my  U'ainod  fiicnds 
will  i'lincede  that  no  ralciilations  can  he  made  ntilcHs  \\h> 
data  are  accurate. 

1  ne.xt  call  your  attention  to  thu  computation  jtrcscnt. .] 
hy  tho   senior  counsel  on  lu'lialf  of  (Jreat    Mritaiii.  .uiil 
which  is  to  ho  found  on  pages  {\)i  to  :sr>  of  his  oral  ai^ni 
soment. 

In  the  first  place  I  would  make  the  (renerni  statenniit 
that  these  culcniations  are  evidently  liasod  on  the  tallies 
which  I  have  just  heen  cousiilerin^  and  which  are  kimi- 
roneous  that  the  Unitt>d  States  conceive  that  the  leaiiicil 
counsel's  computations  should  he  thrown  out  hfcausf  df 
that  fact,  if  for  no  other  reason;  hut  these  errors  will 
be  8till  more  apparent  if  we  examine  his  figures  in  de 
tail. 

For  instance,  in   the      tso  of  the  "  Carolena,"  we  find 

30 that  she  entered   tlie       <i   on   tho  HUh   June,  and   cdiii- 

puting,  accordinj;  to  \     at  my   learned   friend  atKriiii'd 

was  the  methoti  of  calculation  employed  by  him,  that  is, 

from  the  time  of  entering 

Mr.  Peters:     I  distinctly  stated  that  the  time  of  c!\\n. 
lation   was  from  the  tir.st  of  July;  we  claim   that  tlwio 
was  no  sealing  until  then;  I  did  that  in  practically  all  tlio 
cases. 

Mr.  Lansing:— Very  well,  then,  I  will  not  criticize  tho 
"Carolena"  figures  snice  they  are  based  on  assumptions. 
40 As  to  tho"Maiy  Ellen"  tho  calculation  from  the  first 
July  is  substantially  correct,  except  that  my  learned  friend 
includes  only  the  24th  August,  whereas  he  should  calcu- 
late until  the  tiStth  August,  the  day  when  she  left  the  Sen, 
and  that  would  reduce  thti  daily  average  to  about  H  skins 
per  boat.  We  have  no  iuforniation  as  to  when  the  "  \V. 
P.  Sa'-ward  "  left  the  Sea,  so  it  is  necessary  to  compute  to 
her  last  "  lowering  day,"  which  is  done  correctly,  I  think. 
There  is  also  this  to  he  said  in  regard  to  these  calculations, 
that  they  are  in  "  round  numbers,"  and  do  not  show  tlic 
50  results  exactly,  and  your  Honors  can  see  that  a  fraction  for 
a  daily  catch  would  amount  to  a  considerable  number  of 
skins  in  a  season. 

Then  in  the  case  of  tho  "  Pathfinder  "  we  And  that  in  the 
division  in  the  first  column  the  result  should  he  41  instead 
of  42,  which  would  make  tho  final  result  8.20  instead  of 
8.40. 

The  calculation  for  the  "Theresa"  is  substantially  cor- 
rect. I  have  already  spoken  of  the  "  Adele,"  and  shown 
her  catch  includes  the  V  pper  Coast.  The  "  Grace's  "  catch 
60  is  assumed  to  be  1,7U0,  while  the  testimony  of  the  witn;'ss 
lieppen,  at  page  309,  line  15.  of  the  Record,  and  he  is  not 
contradicted,  shows  that  (iOO  of  these  skins  were  taken 
along  the  coast  on  the  way  up  to  the  Sea.  These,  there- 
fore, should  be  deducted,  which  would  change  the  dady 
average  per  cauoe  from  4  skins  to  2.27.    Then  the  "Fa- 


(Mr.  iinnsiiij^'H  AiKtiriiciit.) 

V  .Miiti' "<'ntei«'(l  tlio  S«'ii  on  July  •Uli  or  "th,  vvliicli  woiiM 
IIP  I't'iiMt'  tluMlayH  ill  wliirli  sin-  Ht'iilfd  fmiii  :<<,)  to  44,  and 
w   iild  uivu  iiiHli'iid  <d'  •>.  |i>  |MT  diiy,  4.*!:i. 

Ill  Imt  ciiHi*  of  tlio  "  Viindfiltilt,"  tln>n'  w  an  tTior  of 

tliii'f  diiVK:  it   Hhoiild  Ik*  »>I    itiHtt-ad  of  5^.     That   would 

I  li.ui^o  her  Dkum'h  from  5  to  4.4o  |K>r  day  |m>i'  boat.     In 

til"  casd  of  tilt' "  Anna   Heck  "  tlu-i*- is  alsi>  an   error  of 

i,.llii('i>  days. 

Mr.  l'ottr«:  -Flow  do  you  nmko  that  t-rrorJ 

Mr.  LainiiiK:  Wf  liavf  tin'  "  Anna  Hock  "  in  iHSrt  on- 
1.1111^;  the  Ht'a  July  'Jnd,  and  leaving;;  tlif  Sea  Aiif^iist  'ilHt. 
Thil  is  4N  days,  instead  of  45  as  you  liave assumed.  1  am 
mil  taking  tlie  data  from  the  tahles  in  tliu  British  aii^u- 
iiii  id,  hut  from  those  wlueh  I  have  siihmitted  and  which 
Mii'correct,  while  as  1  have  shown  the  former  cannot  he 
i.  lifd  upon.  Tin;  "  Onward  "  ralcnlalinn  is  Hulmtnntially 
nTicct,  as  the  skins  have  hceii  reduci>d  in  the  printed 
:,  tiilile  to  4(»»  from  !••••>  as  they  appeared  in  tho  typewritten 
.(i|iy  (»f  my  learned  friend's  computations. 

The  "Thornton  "  entered  the  Sea  July  2nd,  and  was 
xi/fd  August  1st,  making  thirty  one  days  in.itead  of 
twenty  seven.  That  correction  woiilil  (thaiige  her  Itoat 
average  from  "aitoiit  four  skins"  per  day  to  3  2.'».  Tlio 
■'  I'.lack  Dianionil  "  entered  the  Sea  July  1st,  and  left  An- 
^iii'-t  null,  a  sealing  period  of  44  days  instead  of  34  days. 
iliat  would  <hange  the  result  from  2.44  to  I.kh  per  canoe, 
ill  the  case  of  the  "  Mountain  Chief  "  there  is  an  error  of 
;  lliii  e  days;  clianging  the  tigures  in  that  particular  makes 
theiesult  7.6"  instead  of  H.7S. 

Ill  tlio  case  of  the  "  Patldlnder  "  the  catch  is  given  as 
•-'.'JIM*,  while  William  Miinsie  testified  that  he  received 
fhiiii  the  ves.sel  on  her  return  from  MeringSea  l.SCdi skins. 
His  evidence  is  found  at  page  IIH,  line  27  of  the  Record. 
I'lii'ii  there  should  he  .M  days  of  sealing  instead  of  50; 
these  changes  would  reduce  the  daily  average  per  boat 
from  7. U.I  to  ('>.  The  "  Adele"  includes  Ih*  Um>er  Coast 
citch,  and  should  not  be  considered:  The  "  Aaa"  is  sub- 
4os;;iiitially  correct. 

The  "  Mary  Taylor  "  entered  the  Sea  June  21st,  and 
Itlt  the  last  of  July.  I  have  computed  it  on  the  basis 
tint  there  was  bunting  in  June  for  the  reason  that  Mr. 
!'<  ttrs  appears  to  have  included  that  month  in  his  first 
I'.'ilciilation  for  this  vessel,  and  further  because  the 
"  .Mary  Ellen,"  the  typical  vessel  of  my  learned  friends, 
toiik  seals  in  June;  and  the  assumption  that  there  is  no 
>!r;iling  in  that  month  is  purely  arbitrary.  This  correc- 
tmn  would  reduce  the  average  of  the  "Mary  Taylor" 
V  fniiii  4.2i»,  to  !i4(i.  There  is  alsoan  error  of  three  days  in 
tlic  second  coniputation,  which  purports  to  leave  out 
luiie,  which  would  reduce  the  figures  from  5  per  day  per 
l)(>:it  to  4.40. 

Ill  the  case  of  the  "  Kate"  the  number  of  skins  is  given 
as  1,800,  while  in  fact  si  ■?  only  took  1,650  The  authority 
f(ir  this  change  is  the  testimony  at  page  13J>3,  line  15  of 
tilt'  Uecord.  She  entered  the  Sea  July  11th,  and  left  Au 
^Mist  25tb— 4t»  days  instead  of  4<»— and  we  find  that  in- 
stead of  4  skins  per  canoo  the  average  should  be  3.27. 
6oAs  to  the  "Mary  Ellen"  in  1887  there  is  an  error  of 
two  days,  making  the  final  result  7.33,  instead  of  7.88. 
Tilt  11,  in  regard  to  the  "  Favourite,''  we  (ind  she  entered 
til"  Sea  July  8th,  and  left  September  5th  a  period  of  60 
ilays.  She  is  credited  in  my  learned  friend's  computation 
with  47.    The  calculation  is  based  on  an  assumed  number 


:::tl 


H      (, 


i^^ 


.1 


m- 


r>i<i 

(Mr.  Lansing's  Arguinont  ) 

of  canoos,  wliilo  we  liave  diitct  evidence  that  sheranic  ; 
five  boats.  Tliat  would  give  hev  instead  of  4  per  day  pn 
canoe  (!  20  per  boat. 

Tben  follows  another  coinputatioii  for  the  "  Ada."  \\ , 
have  already  had  one  giviiifj;  an  average  of  5.r»2,  while  tin  > 
gives  (■>. 42  The  first  one  I  stated  was  snbstantially  coi 
rect,  lint  the  latter  one  is  entirely  in  error.  It  show- 
lohowever,  that  my  learned  friend  has  had  some  ditti(uli\ 
in  agreeing  with  his  own  fignres. 

Then  the  next  vesspl,  the  "Trinniph,"  entered  the  S(  a 
Augnst  Sth,  and  loft  Angust  2r)th,  21  days  instead  of  Is,  ;i^ 
given  in  the  calcnlation  which  I  am  discnssing.  Thai 
changes  the  resnlt  from  t>.7!'t  to  5.  The  "  Black  Diamond  " 
entered  the  Sea  July  1st,  and  left  Angnst  15th,  4»)  diivs 
instead  of  IT)  days,  as  appears  in  the  learned  counsil- 
compntation.  Changing  the  fignres  accordingly,  we  liavr 
a  resnlt  of  2.62  per  day  pt-r  canoe,  instead  of  S.22. 
2o  The  "  Vanderhilt "  is  credited  with  r>t>  days,  while  in 
fact  she  was  in  the  Sea  nntil  September  11th,  <)!>days,  aiiil 
that  wonld  change  her  daily  boat  average  from  4.4  to  3  r. 
The  "Alfred  Adams"  is  given  a  catch  of  1,3S2.  We  lio 
not  know  whether  these  skins  were  taken  outside  the  Sia 
or  not,  but  presumably  a  large  number  of  them  were.  In 
regard  to  the  "Favourite,"  we  find  that  her  Behring  Sea 
catch,  as  given  finally  by  Laughlin  McLean,  was  l,i)0l, 
and  in  this  computation  it  is  put  down  at  1,S34.  She  was 
in  the  Sea  from  July  8th  to  September  :Ul,  making  ri>^ 
3odays,  which  wonld  change  the  figures  from  2.70  to  2  07 
The  "Annie  V.  Moore"  is  substantially  correct.  In  tiic 
case  of  the  "Mountain  Chief,"  there  is  an  error  of  one 
day,  which  would  change  the  result  .(•2  and  an  error  of  oni^ 
day  in  the  calculation  of  the  average  of  the  "Triumph" 
changes  the  result  .OS. 

In  the  case  of  the  "Juanita"  there  is  an  error.  She 
carried  si.\  canoes  and  one  boat,  which  was  used  for  hunt 
iug  as  much  aiithe  canoes.  That  would  change  her  ti^' 
ures  from  4  per  day  i)er  canoe  to  3. 4:5.  Krinu  this  calcii 
4olation  in  Ihsh,  there  is  omitted  the  "  I'athfinder."  Slic 
carried  s  canoes,  and  went  into  the  Sea  at  the  beginnini; 
of  July,  and  remained  tlure  until  August  loth,  4<!  day?, 
taking  ."itJO  skins,  which  would  make  her  average  per 
canoe  1.5.  The  facts  relating  to  her  voyage  in  18S.s  aie 
given  by  Thomas,  who  was  mate  on  the  vessel,  at  paj^^e 
1771,  line  fit!,  and  page  177S,  line  fi<i  of  the  Record. 

In  ISSlt  the  "Mary  Ellen  ''  was  in  the  Sea  from  July  'M 
to  August  24th,  57  days  instead  of  51,  which  would 
change  her  figures  from  4  skins  pet  day  per  boat  to  ;J.tl3. 
5oTli«  "  Annie  C.  Moore"  was  in  the  Sea4H  days,  instead  of 
41,  as  in  Mr.  IVtcrs'  computation,  and  that  would  change 
her  figures  from  5.M:$  to  4. .50  jicr  boat.  The  "  Miniiii  " 
was  in  the  Sea  fiom  June  27th  to  August  17th,  52  (l.iy> 
instead  of  4:5  <lays,  which  would  change  the  result  fnnu 
1.7!»  to  1.44  per  canoe.  In  the  case  of  the  "Maggie 
Mac"  the  figures  are  practically  correct. 

The  "Beatrice"  was  in  the  Sea  4s  days  instead  of  4ii, 
and  her  catch  was  fi27  seals  instead  of  (i'M).  She  carried  si.\ 
canoes  and  one  hunting  boat,  whicli  by  the  method  of  com 
Coputation  used  l)y  my  learned  friend  should  be  counted  !i>  7 
msteadof  (>,  and  that  would  change  the  daily  average  fnun 
2.fi2  per  canoe  to  1.S5.  The  "Say ward"  calculation  1- 
apparently  correct.  The  "  Viva"  was  in  the  Sea  4i»  day- 
instead  of  46  days.  Her  catch  was  2,178  instead  of  2,1>". 
which  would  change  tlie  result  from  8  per  day  per  boat  tn 


in; 


(Mr.  Lansing's  Argument.) 

7,;!;;  The  "Favourite"  was  iu  the  Sea  from  July  14th 
to  A  ij^iist  30th,  so  tliat  her  seahng  period  was  48  instead 
of  1  '  tiays,  and  lier  catcli  was  1,283  instead  of  1,305.  She 
caind  It  canoes  instead  of  11,  which  would  raise  the 
av.i  if;e  from  2  72  to  2.88. 

Tlir  "  Sapphire  "  was  in  the  Sea  32  d.ays,  and  that  would 
cli.iii^o  lier  figures  from  4.20  to  3.40.     In  ttie  case  of  the 

10 ", Jiiaiiita,"  tlie  vessel  was  in  tlie  Sea  30  days  instead  of 
•)<.  and  her  catch  was  601  instead  of  620,  which  would 
cliaii;;e  the  result  from  3.14  to  2.8,5. 

Till'  "Ariel  "  carried  6  boats  and  1  canoe.  She  was  in 
tlif  Sea  41  days  instead  of  .15,  and  that  would  change  the 
average  from  4  per  day  to  2.85.  In  the  case  of  the 
"  Pailitinder,"  her  sealing  period  was  from  July  1st  to 
Aut;i:st  4tli,  35  instead  of  28  days,  and  that  would  change 
hoi  I II 'at  average  from  6  per  day  to  4.8.  It  is  stated 
l)v   inv    learned   friend  that  the   "Theresa's"   dates  are 

:oiiiil  ^'ivcn.  hut  that  she  took  (ioo  skins.  According  to  the 
wiliiiss  Bissett.  pnge  774,  line  47,  and  page  776,  line  31,  of 
tlio  l.'irord,  she  carried  6  boats,  and  was  in  the  Sea  from 
Jiilv  tth  to  September  3d,  62  days,  and  her  catch  w.asO'.O. 
Tli.ii  liives  her  a  daily  average  per  boat  of  1.66.  The  next 
two  in  this  list  are  substantially  correct. 

riu'  "  1^1  oily  Adams"  is  on)itted  from  the  list  of  1889. 
Sill'  carried  12  small  boats,  according  to  the  testi- 
niiMiy  of  Laughlin  McLean,  found  at  page  736, 
lino      17,     of      the      Record,     and      she      ent»'red      the 

wSta  ImIv  4t.h,  and  "lowered"  last  on  August  25tli,  taking 
aliiHil  1,100  skins.  I  find  her  daily  average,  per  boat,  of 
tun  null  ill  a  boat,  to  be  1.66,  whih'  the  "  Mary  Ellen's" 
avii.ii;*' ill  18S6  was  8.  Now  I  submit  that  upon  these 
tiiiiui's.  offered  by  the  senior  counsel  for  Great  liritain, 
lit  111'  icliaiice  can  be  placed  as  tlieyaie  one  mass  of  errors. 
liic  Commissioner  on  tlu'  part  of  Her  Majesty:— Ac- 
r.nlni^'  to  your  figures  what  was  the  average  of  all  of 
tlii'ni  together? 
Ml'.  Lansing:— I  have  not  figured   that,   nor  do  I  con- 

40;-iiloi  that  it  would  be  of  any  value  to  your  Honor,  because 

tlii-e  catches  were  made  at  different  periods  of  the  sealing 

'  a-oii,  and,  tlierefoie,  a  correct  computation  cannot  be 

iiiailf  which  eliminates  the  time  when  seals  were  taken; 


Wll 


iter  explain  this  more  fully. 


I  now  call  your  Honor's  attention  to  the  Hguies  as 
lioi''  I  nrrected.  In  the  case  of  boats  in  issii,  we  have  the 
liiilowmg  daily  averages:  7.2;  s.2;  4.4;  3.25;  1  S8  and  7 
sliiiis.  How  clearly  im|iossible  it  is  to  select  one  of  these 
VI- --ijs  as  typical  of  them  all.     And  yet  my  learned  friends 

jo  has  r  selected  one  of  them,  and  they  have  taken  the  one 
Willi  the  iiighest  average.  In  188S,  we  have  daily 
av.ia.nes  of  canoes,  2.07;  4.6;  3.33;  3.43  and  1.5.  There  is 
III  anie  wide  variance  in  that  year.  There  appears  to 
111  no  rule,  no  measure.  In  the  case  of  18.S(>.  we  have 
av  11  am>  daily  catches  for  canoes  of  1.44;  1.85;  3.33;  2  88; 
li.ln;  •_'.S5  and  5.55.  in  the  same  yeiir  the  averages  for 
lioils  are  3.66;   3.83;  7.33;  2.85;  4.8;'l. 66  and  1.2. 

I  -iiliinit  that  these  results  show  that  the  variations 
are  loo  great  to  permit  the  use  of  one  of  them  for  any 

•^^^li  I  I-  of  computing  a  |)iobable  catch.  For  instance,  if  the 
■IV.  ia};('  ranged  from  7  to  !•  skins  for  a  boat,  there  might 
I  r  onie  measure  by  which  it  could  ho  computed,  Imt  here 
i--  a  laiige.  in  18«9.  from  1.2  to  7.33.  One  vessel  is  six 
tiiihs  iiKiie  successful  with  her  boats  than  another,  also 
ei|i  i|i|ie(l    with    bcrits.     And  it  is  the    same   way   with 


<i''^- 


1(11' 


!l 


■I  i, 


u 


m^^md 


\wr^w:!iWW' 


w: 


618 

(Mr.  Lansing's  Argunieut.) 

canoes;  we  find   one  canoe  with   an  average  of  1.44iiii(l 
another  with  an  average  of  5.55. 

There  is  another  fact  I  should  call  attention  to  in  tliis 
connection,  and  that  is  that  all  the  figures  used  for  1 1  if 
basis  of  a  computation  by  my  learned  friends  leave  out  Hie 
data  for  1S<»((.  They  omit  all  the  facts  relating  to  I  lie 
catch  ill  that  year  except  one,  and  that  is  those  relating 
10  to  the  closing  of  the  season.  They  use  them  in  endeavor 
ing  to  establish  the  fact  that  there  can  be  successful  S(m1- 
ing  in  Sei)teml)er.  We  can  assunie,  they  say,  that  if  in 
iJSSHi  the  majority  of  vessels  remained  in  the  Sea  until  i.iir 
in  September,  that  such  a  thing  would  have  been  possible 
in  other  years.  When  I  come  to  the  (juestion  of  the  diiia 
tion  of  the  season,  I  shall  refer  to  the  actual  figures  for 
lsi»(>.  But  I  submit  thiit  it  is  not  fair  for  my  learned 
friends  to  leave  out  of  their  computation  tlie  catcli  ut 
IMito,  for  the  reason  that  it  is  a  small  one,  and  enlarge  the 
20sealing  season  because  the  vessels  stayed  in  the  Sen  ,i 
longer  time  because  the  catch  was  small.  If  they  throw  ( mi 
iS'.Mi  in  one  jiarticular.  it  should  be  thrown  out  altogetlin. 

But  if  tht-y  throw  out  IS'.tO.  they  have  not  an  iot.i  nl 
tfStimony  upon  whicli  to  stand  in  their  attempt  to  ext. mi 
the  si'aling  senson  beyond  the  2r)th  of  August. 

On  what  ground  do  they  endeavor  to  strike  out  llie 
ye.u'  ISitd^  ()n  the  ground  that  it  was  a  bad  season.  Ami 
yet  on  exarniniiig  the  Kecoid  we  find  that  it  was  (iiv.it 
Mritain  thiit  first  ofi'ered  the  evidence  as  to  ISitU;  i|  u,is 
3otireat  Britain  that  insisted  on  the  reception  of  tin-  (  vi 
denct  relatmg  to  that  year;  and  it  was  the  United  St.ilis 
that  objected.  The  first  witness  c;dltd  with  regaid  to 
that  year  was  C.  N  Co.\,  and  he  was  (piestioned  in  liis 
direct-examination  concerning  his  catch.  Then  Hansen 
was  examined.  Then  in  the  case  of  the  "  Maggie  .Mar," 
tlie  United  Slites.  in  cross-examination  of  the  wit 
ness  Brown,  who  was  sworn  on  behalf  of  Great  Britain, 
drew  out  the  daia  with  regard  to  that  vessel  in  189(1.  TIku 
the  witness  Hackett.  in  his  direct  examination,  wasaski'd 
4oas  to  that  year,  ami  Jacobsonand  McKiel,  all  witiie.ssts  on 
behalf  of  (Jreat  Britain;  and  then  Bu(  knaiu  was  cross  ex 
amiiied  by  the  United  States  as  to  the  catcli  of  the 
"Arid"  in  is'tit.  Then  w(>  bavi-  the  British  wilmsses, 
(Hseiiand  W,  K.  IJaker  and  Laughlin  McLean  and  Cox, 
all  asked  in  their  direct-examination  as  to  their  catches 
in  ISIKI.  And  now  having  introduced  that  evidence,  my 
learned  friends  end'avor  to  escape  the  results. 

!  submit  that  they  should  be  bound  by  these  data 
for  isiKi;  that  tiiey  should  not  iu)w  j>lead  that  it  was 
50a  poor  season,  aft 'r  having  iiuioduced  the  testimony 
them.'^elves.  Furthermore,  the  evidence  is  not  conclusive 
that  it  w.is  a  bad  season.  We  deny  that  it  was,  and 
sve  submit  to  your  Honors  the  evidence  on  which  we  base 
our  denial.  My  learned  fiiend,  Mr.  Bodwell,  refers  to  thi' 
testimony  of  William  Cox,  vxlio  says  that  it  was  had 
weather  m  July  and  August.  He  was  the  mxster  of  the 
"Sapjibiie  "' in  IS'.Mi.  and  you  will  find  his  statement  at  page 
757  of  the  Kecord,  line  51.  The  witness  Brown  states  tlie 
weather  was  not  very  good.  McKiel  also,  at  page  (u'2.  line 
60  m,  when  asked  what  sort  of  a  sea.'^on  it  was  in  18i>0,  replied, 
'A  very  poor  season,  it  was  stormy,  and  there  was  too 
much  wind  to  hunt  in  July  and  the  first  part  of  August  " 
He  added,  there  was  some  fine  weather  afterwards,  lie 
was  then  asked:  -'•i^.  But  you  did  not  happen  to  get  the 
seals?     A.  I  did  not  find  lluMu." 


'T 


Tl  It'll 

IS  asked 

'sscs  on 

[iss  ex- 

of   the 

iit'ssos, 

il    (.'..X. 

•;itcli('s 

ICl',    ll|V 


10 


20 


30 


619 

(Mr.  Lansing's  Argument.) 

We  have  the  testimony  of  Olsen,  a  witness  relied  upon 
ill  so  many  instances  by  Great  Britain,  who  was  master  of 
the  "  Juanita"  in  18i)0.  On  pa<ie  711,  linei),  of  the  Record, 
where  he  was  asked  this  question: 

"  What  sort  of  wenther  lia<l  you  in  1890?  A.  Well,  July  was  very 
■ '  f{tir;  veil,  in  the  liitter  end  of  it.  In  the  hitter  en  d  of  A  ugnst,  in  fuel  the 
■'irhole  0/ August  was  prettj/fiiir,  but  the  seals  were  kind  of  scarce  at 
"the  time." 

Wo  have  theevidenceof  Captain  0'Leary,\vho,  on  cross- 
examination,  at  page  770,  line  .51,  testified: 

•'  Q.  Was  there  anything  nnuMunl  about  the  trip  of  the  '  Walter  L. 
••  Hich '  that  year,  1890,  in  Uehriug  Hea;  i/i<i  you  lower  your  hoots  about 
•'  /he  same  (IS  you  did  in  other  seasons  ?  A.  It  iris  almiit  the  same;  I  did 
•  not  ftud  the  seals  quite  so  plentiful  as  thej-  had  been." 

And  then  on  rcdirect-examination  he  was  again  ques- 
tioned with  legaid  to  this  matter  (page  773,  line  38  of  the 
Hi'cord): 

'•  Compare  1890  with  1889  or  1886  or  1887;  state  if  1890  was  a  good 
"  year?     A.  No,  I  did  not  see  the  seals  so  plentiful  in  1890. 

'"  Q.  How  was  it  so  far  as  the  weather  was  concerned?  A.  The 
••  iri'iither  was  fair;  very  good  weather." 

We  have  the  testimony  of  Captain  Steele  at  page  1079, 
line  tl7.  speaking  of  lSi»0: 

"  Q.  And  you  only  got  450  seals?     A.  That  is  all. 
■•  Q.  You  were  not  lucky  that  year?     A.  I  did  not  get  many  seals. 
••  Q.    What  was  the  weather  like?     A.    The  weather  was  fair,  pretty  good 
iieiither.     I  do  not  revieinher  what  it  was  in  July,   hut  in  August  it  was 
pretty  good  weather." 


There  is  also  some  fuither  testimony  upon  this  point;  for 
instance,  that  of  the  witness  Keefe,  at  page  1085.  line  56. 
Ho  says  that  in  Jnly  the  weather  was  had.  that  they  got 
most  of  their  seals  in  August,  but  the  weather  was  not 
fine.  But  what  was  his  experience  as  a  sealer^  He  had 
never  been  in  the  Sea  before,  except  for  two  days,  when 
he  was  mate  of  one  of  the  vessels  seizi'd  in  1887.  He  had 
not  sufficient  expeiience  to  judge  whether  it  was  good  or 

40 bad  weather  for  Bering  Sea.  We  have  the  testimony  of 
tlie  svitness  Smith,  which  is  also  relied  upcm  by  my  learned 
friend,  and  he  states  that  it  was  rough  in  July;  and  the 
witness  Paine,  at  page  ll'liS,  line  37,  states  that  it  was 
itnd  weatiier  "  off  and  on."  Of  course,  that  is  the  experi- 
ence of  every  man  engaged  in  sealing,  that  it  is  bad  "off 
and  on  ";  all  the  evidence  goes  to  show  that. 

Tile  evidence  is  sufficiently  contradictory  upon  this  point 
to  show  one  of  two  things:  Either  that  these  witnesses 
could  not  remember  what  the  weather   was  (and   whose 

50 memory  was  at  fault)  in  that  year,  or  else  there  are  zones 
of  lair  weather,  where  a  vessel  will  experience  for  the  whole 
season  good  sealing  weather,  and  zones  of  bad  weather, 
where  a  vessel  will  have  substantially  v.'ind  and  a  rough 
sea  for  the  whole  season.  If  the  latter  is  the  case,  your 
Honors  in  order  to  estimate  the  catch  will  have  to  find 
where  the  good  zones  are;  and  whether  or  not  it  is  prob- 
alile  that  a  vessel  would  have  stayed  in  those  localities  for 
a  given  number  of  days. 
I  now  wish  to  call  attention  again  to  these  computa- 

fiotioiis  made  by  the  learned  Attorney-CJeneial,  at  jmge  32 
of  his  oral  argument.  And  I  desire  to  submit,  as  I 
slated  in  reply  to  his  lordship,  that  this  computation  can- 
nut  be  made  at  all  without  taking  into  consideration  also 
tlie  period  in  which  the  sealing  was  done.  For  example, 
oil  that  page  you  will    find    that    the    sealing  for  the 


1 

j  i 


02(1 


(Mr.  Lansing's  Argument.) 

"Pathfinder"  in  188(5  was  from  July  1st  to  August  4th, 
while  the  "  Vanderbilt"  sealed  from  July  2d  to  August 
3l8t.  The  latter  was  i.i  the  Sea  the  entire  season,  while 
the  "  Pathfinder  "  only  sealed  the  first  part  of  it,  which  is, 
presumably,  the  best  part,  because  we  find  the  result  of  the 
computation  is  that  the  "  Pathfiudci  "  has  a  daily  aveiage 
of  8.2  skins  per  boat,  while  the  •  Vanderbilt"  had  4.4.  or 
loabout  one  half  as  many.  I  have,  therefore,  taken  my 
friend's  typical  vessel,  the  "  Mary  Ellen,"  in  1886,  and 
compared  her  daily  average  with  each  vessel,  from 
1886  to  1890,  for  the  same  sealing  period,  and  the  results 
I  submit  in  the  following  table: 

Table  "O." 

Table  Showing  the  Hunting  Power  of  Each  Boat  or 
Canoe  on  Sealing  Vesseus  in  the  Years  188fi-i8ito, 
2  AS  Compared  with  the  Hunting  Power  of  a  Boat  on 

THE  "  Mary  Ellen  "  for  the  Same  Days  in  1886. 


1886.  Boats. 

Pathfinder ^ 

Tlierosa 6 

Thiirnton 4 

VBnUiTbilt 5 

Canoes. 

Anna  Beck 8 

30  Black  Diamond 9 

Carolcnn 4 

Dolphin 12 

Favourite 11 

(•race     II 

Onward 9 

W.  P.  Say  ward 8 

1887.  Boats. 
Allie  I.  Alger   ....  fi 

Fuviriirili' 6 

Mary  Kllen    6 

Marv  Taylor 5 

Ptttlitinder 6 

40  Vniiclerbilt ('> 

Ada 8 

Alfred  Adams 10 

Black  Diiimond  ....  8 

Kate 11 

Mountain  Chief    ...  n 

Triuinph 4 

1888.  Boats. 
Annie  ('.  Moore   ...  tl 
Viva B 

Canoes. 

Favourite 13 

.Iiuinitii 7 

50  Moiinlnin  Chief ....  (1 

I'alhlinder 8 

Triumph 12 

188il.  Bouts, 

Annie  C.  Moore. ...  ti 

Ariel  7 

Majfijie  Mac 6 

Mary  Kllen li 

Molli<!  Adams 12 

I'lilhfinder r> 

Theresa 6 

Triumph 8 

Viva fi 

(5o  Canoes. 

Beatrice 7 

Favourite 0 

.liuiniln 7 

Kale 8 

Minnie 10 

.Sappliire IB 

\V.  I'.  Say  ward 18 


Mary  Ellen's 

Hunters. 

Hunter' 

!      Average. 

Hunlin!;  Days 

Catch. 

Average 

Same  period 

in  Sea. 

per  Day, 

in  1886. 

.lulv    1    Aug.     6. 

1,400 

7.B6 

8.36 

.Iune28-Aug.  2.i. 

2,000 

6.81 

8.11 

.luly    2-Aug.     1. 

403 

3.25 

8.98 

July     2- Aug.  30. 

1,34B 

4.48 

7.34 

July    2  Aug.  21. 

1,141 

2.79 

8.36 

July     1-Aui{.  13. 

716 

1.86 

8.70 

Jidv     1-Ausf.     1. 

684 

5.61 

9.68 

Julv    'i-Aug.  12. 

2,037 

4.04 

8.89 

July    f)  Aug.  111. 

2,259 

4.56 

9.21 

July    4-.\ug.  15. 

1,166 

2.46 

9.03 

July  12-Aug.    1. 

July    0-Aug.  24. 

1 ,596 

3.21 

8.79 

July    B-Aug.  24. 

1,186 

3  96 

8.79 

July    8-Sept.    B. 

1,684 

5.61 

7.31 

July  1 8- Aug,  20. 

1 ,530 

7.  BO 

9.49 

June2,3-July  31. 

700 

3  68 

8.04 

June28-Aug.  17. 

1 ,869 

6.23 

7.98 

Julv    4-Sept.  11. 

1 ,2,)0 

2  97 

8.17 

Julv  IB   Aug  24. 

1,871 

6.70 

8.90 

July    8-Aug.    ti. 

941 

3.13 

10.10 

Julv     I    Aug,  LI. 

967 

2.62 

8.64 

Julv  Il-Aug.  25. 

1,6,50 

3.26 

8.90 

July  25- Aug.  17. 

700 

6.08 

10.16 

Au^'.    4-Aug.  26. 

426 

4.63 

B.92 

Julv  20-Aug.  22. 

750 

3.78 

9.60 

July    ^-Aug.  27. 

1,539 

6.03 

9.74 

Julv    8-Sept.    3. 

1,601 

2.11 

9.65 

Julv  10- Aug.  20. 

1,017 

3.64 

9.37 

Aug.    I-Si'pt.    7. 

900 

3 .  94 

6.96 

July     l-Aug.  18. 

fi60 

1.42 

8.02 

July    7   Aug.  20, 

l,80i 

8  8S 

8.73 

July    fi-Ang.  22. 

1,316 

4.66 

8.88 

July  12  Aug.  21. 

814 

2.94 

9.63 

July    4  -.\ug.  2."!. 

1,290 

4 .  86 

8  29 

July     3-Aug.  28. 

1 ,253 

3.66 

8.33 

July    4-Aug.  2.V 

1,100 

1.71 

8.29 

July     l-Aug.    4. 

904 

6.10 

8.81 

July    4-Sept.    3. 

650 

1.74 

8.32 

Julv    4  July    11. 

72 

1.12 

5.7u 

July    4-Aug.  21. 

2,178 

7.40 

8.70 

July    4-Aug.  20. 

626 

1.86 

8.60 

Julv  11- Aug.  30. 

l,i83 

2.96 

8.62 

July    2-July  81. 

601 

2.86 

8.86 

July  2ii-Aug.  18. 

771 

8.32 

9.62 

June  27   A\ig.  17. 

706 

1.36 

7.82 

July    4-Aug,    4, 

1,641 

3.41 

9.60 

July    7-Aug.  18. 

1,812 

8.24 

9.00 

6-21 


(Mr.  Lansing's  Argument.) 


1891'.  Canoes.     Huntinc;  Days 
in  Sea. 

Aniiii' I'  Mooro. . . .  6      July    S-Aiig.  II. 

K.  K.  Miiivin 7       July    4-St'i)t.    2. 

Ocean  ImIU' «       July    9-Supt.    6, 

,.1'eni'lti'     S       July  20-Aug.  81. 

'^Sca  l.i'in 6       July  lO-Sept.  14. 

Tliprcsn 6       July     1-Aug.  29. 

Triuriipli 6       July  15-Aug.  19. 

Viva 0       July    7-8ept.  12. 

Walter  1..  Ri'^li 6       July  lO-Aug.  25. 

Canoes. 

Beatrice 12       July  IB-Auc  25. 

Favourite 13*     July  16-Aug.  M. 

Juanita 9       July  12-Sept.    2. 

Kalhcrine 12       July    9- Aug.  31. 

Minnie 9       July  15-Aug.  25. 

Sapphire 19       July  12-Au^'.  15. 

,^^W.  P.  Savward  .    .  8      June  29-Sept.    I. 


Mary  Ellen's 
Hunters. 

Hunter's      Average. 
Catch.    Average    Same  period 
per  Day.       in  1886. 


633 

8.01 

10.75 

918 

2  15 

7.85 

480 

1.33 

7.94 

450 

2.09 

8.49 

718 

2.11 

7.4b 

450 

1.25 

7.41 

633 

2.68 

9,74 

2,150 

4.93 

7.48 

600 

2.65 

8.71 

860 

1.72 

8.93 

1.109 

2.73 

10.10 

777 

1.62 

7.78 

946 

1.46 

7.75 

1,600 

4.23 

8.72 

709 

1.06 

9.t*6 

476 

.89 

7.26 

■11       I! 


At  the  top  of  tlie  table  it  states  that  it  shows  the  hunt- 
ing power  of  each  boat  or  canoe  on  sealing  vessels  in  the 
years  IS86  and  ISyO,  as  compared  with  the  hunting  power 
of  a  boat  of  the  "Mary  Ellen  "  for  the  same  days  in  1886. 
Now  I  will  call  your  attention  to  this  diagram  (Diagram 
No.  ;^),  which  is  based  on  the  foregoing  table.  For 
illustration  wo  will  tako  the  "  Thornton."  She  entered 
the  Soa,   July  2d,   and   was    seized    August    1st.      The 

jonumber  of  seals  taken  by  the  "Mary  Ellen"  between 
tliosp  dates  divided  by  five,  the  number  of  hunters,  and  by 
31.  the  number  of  days,  will  give  the  daily  average  of  one 
hunter.  You  will  perceive  that  there  are  sliown  on  the 
diagiam  a  white  bar  and  a  light  blue  bar.  The  white 
har  to};t'ther  with  the  light  blue  bar  shows  the  average 
daily  catch  i)er  hunter  on  the  "  Mai-y  Ellen"  for  the 
saiiK'  period  the  "Thornton"  hunted,  which  is  about  9. 
Then  we  have  the  average  daily  catch  per  hunter  on  the 
'•  Tliointon  "   for   that  period,  shown  by  the  white  line, 

40  which  is  about  3J.  The  same  comparison  has  been  made 
for  each  vessel  in  1886,  1887.  1888,  1881)  and  18!t0;  and  the 
fif.st  tiling  I  call  to  your  Honors'  attention  is  that  the 
catch  of  the  "  Mary  Ellen  "  for  the  different  periods  varies 
very  considerably.  For  example,  take  the  sealing  period 
of  the  "Onward"  in  1886,  next  to  the  last  vessel  in  the 
CdluniM  of  canoes,  and  you  will  find  that  the  "Mary 
Ellcirs  "  catch  for  that  period  was  11^,  while  we  find  the 
"  Mary  Ellen's  "  catch  for  the  period  when  the  "  Vander- 
bilt  ''  was  sealing  is  less  than  TA. 

50  Now  this,  it  seems  to  me,  demonstrates  very  conclu- 
sivt'iy  that  the  element  of  time  must  enter  into  all  these 
cuinputations;  that  is,  that  a  week  during  the  first  of  the 
season  may  be  twice  as  favorable  for  sealing  as  one  during 
tlic  latter  part,  or  rice  versa,  and  the  catches  for  these 
(litfiicnt  jxu'iods  would  vary  accordingly. 

Hilt  if  the  element  of  time  enters  into  this  computation 
there  is  no  basis  for  a  general  average,  and  without  a  gen- 
eral average  there  can  be  no  estimate  of  probabilities. 
There  is  another  fact  to  which  I  desire  to  call  particular 

Oo attention,  and  that  is  the  large  excess  of  the  catch  of  the 
"  Mary  Ellen  "  over  the  catch  of  the  other  vessels,  with 
perhaps  three  exceptions,  which  are  the  "  Pathfinder"  in 
18m;,  the  "  Favourite"  in  1887  and  the  "  Viva  "  in  1889. 


11     If 


^  *. 


4  more  canoes  after  August  10, 


(i22 


Ifl'fS 


lO 


(Mr.  Lansing's  Argument.) 

In  every  other  case  tlie  daily  average  of  a  "  Mary  Ellen's  " 
boat  far  exceeds  that  of  tlie  other  vessel. 

I  have,  for  the  sake  of  further  cotiiparison,  rearranf^cd 
Table  "  Ct  "  in  the  form  of  a  ratio,  so  that  these  catches  cnu 
all  be  brought  to  tlie  same  basis.  Tiiat  is,  I  have  taken 
the  catch  of  the  "Mary  Ellen"  as  l.OOO  in  every  case, 
and  the  other  vessels  as  less  than  l,(Kto,  according  to  the 
ratio  shown  between  the  average  daily  catch  of  the  par 
ticular  vessel  and  the  average  daily  catch  of  the  "Maiv 
Ellen."    I  submit  this  as  Table  "  H." 


Table  "H." 


20 


Ratios  between  the  daily  avehaoe  catch  of  an  ixdividial 

HUNTER  ON  EACH  VESSEL  SEALING  IN  BERING  SeA,  1  Ssf,  TO 
LSitO,  AND  THE  DAILY  AVERACJE  CATCH  OF  AN  INDIViniAL 
HUNTER  ON  THE  "  MaRY  ElLEN  "  FOR  THE  SAME  PERIOD  IN   l^^li. 

Explanatory.— The  daily  average  for  the  "Mary  Ellen  "  will  be 
the  unit,  represented  by  loOO.     Tonnage  of  "  Mary  Ellen,"  sd. 


ISdfi. 

Vesst'lH  uaing  boats: 

Palbfliiilcr 

Theresa 

'lUor.iiou 

Vftnderbiit 


Tonnage. 


fi6 
74 
52 
9« 


30 


18S7. 

Vessels  using  boats: 

AUi-  I.  AlglT 

75 

FaTourlte 

80 

Mar,  Ellrn 

80 

Mary  Taylor 

45 

Patliflnilir 

GU 

Vanderblli 

94 

1BH8. 

Vessels  using  Itoats: 

Annio  C  Moore. 

l.J 

Viva 

»2 

40 


18MI 
Vessels  iihin^  boats: 
Annie  c  Moore. 
Aril  . 

Maggie  Mac 

Mar.v  Ell.  II 

Mollle  Adatns. .  . 

Patlitlialcr 

'1  beresii 

Triiimiib 

Viva 


50 


IH'.lll. 
ViBsels  iiKiiiij  boats; 
Annie  t'.  Moore. 

^.  ti.  .Marvin 

Ooean   llelit. 

Peui'lt  |>e 

Sea  I  iuii 

Tlifresa 

'J'riuinpb 

Viva    

Walter  L.  Hieh... 


119 
91 
70 
80 

110 
III! 
74 
I18 
9'.! 


iia 
iifi 

^0 
71 

74 

9H 
'.IJ 


Percentaae  of 
■  Mary  Ellen's  " 
Dally  Averuge. 

904 
839 
801 
610 


449 
767 
790 
457 
780 
3C3 


619 


513 
SOS 
586 
480 
!MW 
618 
t(09 
196 
850 


180 
373 
167 
846 
9811 
167 
as  I 

660 
399 


1888. 

Vessels  using  eanocs: 

Anna  lleck 

Black  Diamond... 

Caroleua 

I'olpbin 

Favourite 

Orate 

Ouwaril 

W.  P.  Say  ward... 

1887. 
Vefliels  using  canoca: 

Ada 

Allred  Adams 

lila  k  Diamo.  d... 

Kate 

M  UDiaiu  Chief.. 
Triumph 


Tonnage. 


3'. 
89 
27 
(10 
80 
77 
36 
60 


65 

69 
82 
60 
20 
13 


1881. 
Vessels  uoiiig  canoes: 

Faviiuriie 

Jtiaiiita 

Mountain  Chief... 

Patbfluder 

Triumph 


1889. 
Vessels  using  canoes: 

Beatri,  e 

Favourite 

Jiianlta 

Kate 

Minnie 

Happbire 

W.  P.  Say  ward... 


1890. 
Vessels  uping  canoes: 

Beatrice 

Favourite 

Juanila 

Kalberine 

Minnie 

Sapphire 

W.  F.  Say  ward  ... 


40 
20 
66 
98 


60 
NO 
40 
60 
46 
123 
60 


91 
80 
40 
81 
46 
123 
60 


Percentage  ot 
■  Mary   Kllen'i" 
Daily  Average. 

321 
212 
575 
2i)7 
4»S 
272 
180 
:)85 


lilll 
309 
.06 
36i> 
598 

:e2 


■Jls 

377 

5M 
177 
:i8l 


■.'16 
347 
342 
345 
173 
368 
360 


1112 
270 
20:1 
1.H7 
485 
109 
199 


Nothing  could  show  better  than  this  table  the  uncer- 
tain results  of  sealing.  Your  Honors  will  see  that  two 
vessels  outtittt^d  the  same  and  of  the  same  tonnage  niadi' 
60  very  difTereiit  catches.  The  following  are  a  few  of  the 
comparisons  which  might  be  made: 

In  1SS(;  the  "Theresa"  outfitted  the  same  as  the  "  Van- 
derbilt"  and  of  20  tons  less  burden,  sealing  about  the  same 
peiiod  as  the  latter,  has  a  ratio  of  i-il5J>  to  the  "  Vander- 
l)ili\"  ()l(i.     The  "Black   Diamond."  of  K2  tons,  sealing 


ti-.>:s 


(Mr.  Fiiinsiiig's  Argument.) 


fiiiin  Inly  I  to  Angnst  i:!,  with  !•  cuiku's,  has  a  ratio  of 
•jlj  wliilo  the  "  Favoiiiito,"  of  iso  tons,  with  II  canoes, 
sciiling  fioni  Jiilj'  <i  to  August  I'.t,  has'  a  ratio  4!t5.  The 
"  I'.ivourite"  has  a  claini  hofore  this  Conuiiission  for 
liciiin  conipelled  to  leavo  the  sealing  grounds,  while  she 
exi vcdod  hy  one  hundred  points  any  other  schooner  in 
Is^'t;  with  Indian  hunters. 

10  In  l^ST  the  "  AUie  1.  Alger "' (7.>  tons),  with  six  hoats, 
senling  from  July  <•  to  August  "24.  ratio  44it,  sliould  be 
(■(iin|p;n«Ml  with  the  "  I'athfhider"  (<!i'>  tons),  with  six  hoats, 
selling  fidui  Jiuio  L's  to  August  17,  latio  7s(i.  Compare 
till'  ••  H'avoui'ito  "  (SO  tons),  with  live  boats,  sealing  fiom 
.(\il\  >^  to  Se|)tembi>r  l.'i,  having  a  ratio  of  7l''7,  with  the 
••  Viuideibilt.  "  (!t4  tons),  with  six  boats,  sealing  from  July 
4  to  Sept(Mnber  1 1,  ;'.»'.:',.  The  "  Ada  "  (tir>  tons),  with  eiglit 
ciiniics.  sealing  from  July  15  to  August  •24.  has  a  I'atio  t')4(i, 
while  the  "  Kate'"   (tin  tons),  with  eleven  canoes,  sealing 

jofioin  July  11,  to  August  -li),  has  only  a  ratio  :^t.l<l. 

The  "Black  Diamond  "  (s-j  tons),  with  eight  canoes,  seal- 
inn  from  July  I  to  August  ir>,  ratio  ;'.o(l,  may  be  compared 
with  the  "Pathfinder"  dW;  t()ns).  with  eight  canoes,  seal- 
in;:,-  in  isss  from  July  1  to  August  is,  ratio  177. 

Tile  •'  Annie  C.  Moore  "'  ( 1 1:!  tons),  with  six  boats,  seal- 
ing; ill    iMS'.t  from   July   tl  to  August   ;i:i,  has  a   ratio  r)l:!, 
while  the  '•  Mollie  Adams"  ( 1  Hi  tons),  with  twelve  boats, 
sealing  July  4  to  August  li.".,  has  a  ratio  'liU). 
I  think  that  these  comparisons  are  sufticient  to  show  the 

;o\viile  variations  which  necessarily  must  result  in  all  these 
cakulations. 

I  have  taken  considerable  time  in  going  over  these  dates, 
tallies  and  calculations,  but  I  have  deemed  it  necessary 
liecaiisi'  of  the  extremely  large  amount  claimed  for  an 
estiin;ited  catch.  These  diagrams,  comparisons  and  com- 
|)utations  are  necessary  to  show  how  impossible  it  is,  on 
any  basis  whatever,  to  compute  a  probable  catch  from 
till'  data  given,  without  any  reference  to  the  contingen- 
cies which  enter  into  the  problem  except  such  as  are  dis- 

4(icliiseil  by  the  figures.  I  submit  that  the  method  adopted 
hy  luy  learned  friends,  that  is,  to  take  the  "  Mary  Ellen" 
as  a  typical  vessel  for  all  the  years  for  which  claims  exist, 
is  unjust  and  unreasonable  in  the  exUeme.  That  method 
1  piesuiue.  and  I  assume,  was  the  best  which  could  be 
proposed  by  Great  Britain.  The  calculation  of  general 
average  is  not  relied  upon  by  counsel  and  has  only  been 
nsed  hy  them  to  substantiate  their  claim  as  to  the  typical 
(har.uter  of  the  "  Mary  Ellen,"  and  its  fairness  has  been 
leassi'i ted  by  the  learned  senior  counsel  for  Great  Britain. 

;o  Mr.  Hod  well,  in  his  discussion  of  this  question,  said  that 
if  t  lie  United  States  were  not  satisfied  with  the  method 
piojiosed  in  the  aigument  in  chief  on  behalf  of  Great 
Britain,  they  might  submit  another  method.  The  United 
States  are  not  here  to  suggest  any  method.  The  scheme 
jiioposed  by  the  British  counsel  is  too  ip.eciuitable  to 
he  considered  for  one  moment,  and  there  is  no  other 
,iiietiio<|  that  can  be  suggested  which  will  give  approxi- 
mate certainty.  The  results  of  a  sealing  voyage  are  too 
uncertain  and  speculative  to  be  the  subject  of  calculation. 

hoTiiat  is  the  contention  of  the  United  States,  and  that 
I  claim  these  figures  show.  When  your  Honors  liave 
tinii'  to  examine  the  computations  that  I  have  made  you 
will  tind  that  in  no  case  du  the  figures  bear  out  the  claim 
niaije  by  Great  Britain;  and  they  demonstrate  that  the 
loiitingencies  which  obtain   in  sealing  are  perhaps  even 


'■    Ik 


|:;:li 


MTFTT 


((24 

(Mr.  Liinsiii{i's  Argument.) 

more  impossible  of  determination  than  they  are  claiiih  i| 
to  be  in  tlie  printed  argument  on  behalf  of  tiie   rniii,! 

Slates. 

Tnckhtain  Ciiakactkk  ok  Skal  Ulintino. 

I  now  projKwe  to  discuss  the  <pieslion  of  the  unceiliin 
character  of  seal  hunting,  wliicli  has  been  dealt  with  jn 
lothe  j)rinted  lirief  of  the  United  States  and  wbicli  Ims 
receivi'd  coiisideralile  attention  froiu  the  Mritish  c()Mn^(■l  jn 
thcii  oral  argunient.  In  opt-ning  his  discussion  ol  ilijs 
jioition  of  the  I'nited  States  argument,  my  learned  frii  nd. 
Air.  Hod  well,  .Slid:  "  The  position  assumed  by  the  cimius,! 
'•  for  the  United  States  is  inconsistent  with  tlu"  wlidjcdf 
"  their  contention  from  the  ''eginuing  of  this  controvnsy. 
■■  If  it  is  a  fact  that  seal  hunting  is  so  uncertain:  if  it  is  ,| 
'•  tact  that  the  sealing  grounds  ai«>  unknow  n  and  that  tlic 
"  season  is  uncertain,  how  is  it  that  the  United  Static 
20"  went  to  Paris  and  asked  foi' regulations  upon  the  thcdiv 
"  that  that  large  industry  was  necessary  f.n'  the  conijuit 
"of  the  inbaliitants  of  the  world  generally,  and  thai  it 
'■  was  in  danger  of  being  destroyed  by  the  efforts  of  the 
"■  pelagic  .sealers;" 

Further  on,    .Mr.    Bodwell    goes   on    to    say,    thai    'le 
'•  might  with  confidence  rest  on  this  fact  alone  as  slmwing 
"  that  sealing  was  profitable,  and  that  the  position  of  the 
"  United    States  now  is  not  consistent  with  their  posi- 
"  tion  in  lsu2  before  the  Uaris  Tribunal.'' 
30     My  learned  friend  is  in  error'.     He  does  not  understand 
the  contention  of  the  United  States  in  JS92  or  else  he  li.is 
been  nnsinformed  as  to  the  fads.     The  position  that  \vu 
assumed    iiefoie   the  Uaris   Tribunal   was,  that  the  seaiis 
taken  weic  not  so  great  in  iuind)er.  but  that  for  every  skin 
taken  two  other  seals  weic  destroyed;  that  is,  that  out  of 
every  hundred  se.als  killed  hut  thirty-three  were  secured 
by  the  hunters.    That  was  the  first  assertion  of  the  United 
States  at  Paris. 
The  next  was  that  of   the  .seals  which  were  killed  at  sea 
40  ninety  per  cent,  were  females,  and  that  these  were,  from 
the   i)ecnliar  habits  of  the  animals,  much  more  necessary 
than  an  equal  number  of  males  to  jieipetuate  the  species. 
The  I'nited  States  before  the  Paris  Tribunal  said  to  Great 
Hritain:  "  On  the  islands  we  kill  only  the  male  seals,  while 
you  are  slaughtering  ninety  per  cent,  of  the  females,  and 
of   these  female  seals  seventy-five  per  cent,  are  pregnant 
or  are   mothers,  which  leaving  their  young  011  the  islands 
go  out   to  sea   in   search  of  food,  and  the  motheis  being 
killed  the   young  jjerisb  from  starvation."    That  was  the 
50  position  of   the   United   States  at  Paris,  and  that  was  the 
position   which    I  claim  they  established  by  overwhelniing 
evidence.     On    that   ba^-is,  sui)pose  the '' pelagic  catch  for 
one  year"'  amounted  to  :!(»,(mio  skins— the  slaughter  woidd 
amount  to   !to,(i(iu  seals  and   hi,(M)U   of    these    would  he 
females.     If  the  ( (intention  of  my  learned  friend,  Mr.  Hod- 
well,  is  right,  that  Bering  Sea  is  where  the  chief  sealing 
has  been  (lone,  then  at  least  half  as  many  more  pui)s  were 
destroyed  as   there  weic   females  killed.      Theiefoie,    in 
taking  iJo.ooo  skii.s,  there  would  have  been  a  slaughter  u{ 
60 over  l:2(>,oo(»  seals,  and   lu(i,fKM»   would  have  been  females. 
That  was  the  position  of  the  United  States  at  Paris,  audit 
was  for  that  reason  that  they  asked  the  right  in  the  name 
of   humanity  to   protect  these  animals.     In  order  to  sul) 
stantiate  what  1  have  said.  1  refer  your  Honors  to  Voliune 
2  of  the  American  ivprint,  pages  \*Ji),  V.H)  and  210. 


»;•>:] 


(Mr.  Lansing's  Argumtnit.) 

Hut  (lid  tho  United  States  go  before  tiie  Paris 
Tiiliinial  asserting  for  one  moment  that  the  adventnre 
(if  jielagic  sealing  was  sure  and  certain?  I  call  your  atten- 
lidii  to  the  Case  of  tiie  United  States,  Vol.  '2  of  the  Ameri- 
( Mil  reprint,  at  page  "JS^.  where  j-on  will  find  the  marginal 
iidle  *' Pelagic  Sealing  a  Specnlation."  I  also  read  from 
the  same  volume,  at  page  ^M.");  "  Tt  is  evident  that  the 
iQ  ■  people  who  nndortake  this  votitureare  as  varied  in  liieir 
"  (MCiipations  as  the  purchasers  of  lotterj-  tickets,  and  tin- 

•  <,iine  spirit  wluch  induces  persons  to  risk  their  money  in 
"  I  he  lotteries  persuaded  tliem  to  take  their  chances  in  the 
"  sealing  business." 

Niiw.  your  Honors,  that  is  the  position  of  tho  United 
St;ilt's  lierr  to-day.  I  claim  that  a  man  wlio  is  prevented 
Iroin  purchasing  a  lottery  ticket,  might  as  well  come  be- 
tore  a  court  of  justice  and  ask  to  have  compensation 
a\\;U(led  him  for  such  interference  measured  by  the  high- 
Mist  prize  of  the  lottery,  as  for  any  one  to  claim  before  this 
llitiii  Commission    c(mipensation    on    the    basis  of    the 

•  M.ny  Fillen's'' catch,  which  was  the  largest  evei'  made 
ill  lieriiig  Sea.  That  is  the  position  of  the  United  States 
here;  that  was  the  jiosition  of  the  United  States  at  Paris; 
mill  llie  United  States  have  unquestionably  been  consist- 
ent tliroughout  as  legards  the  s|)eculative  chara(;ter  of 
sciil  luinting. 

Our  ue.xt  assertion  in  regard  to  the  uncertain  character 
(if  seal  hiuiting,  which  was  criticized  by  Mr.  Hodwell,  is, 
;nth;it  the  vessels  were  small  and  flat  the  voyage  was  haz- 
aidiius.  After  Bering  Sea  became  the  resort  of  the 
|ielagic  sealers,  it  is  observable  that  tlie  vessels  employed 
were  (if  smaller  tonnage  in  the  i-arlier  years  than  thoso 
used  in  later  ye.ars.  This  1  contend  wo\dd  go  to  show  that 
the  viiyage  was  too  hazardous  for  small  vessels.  But  1 
will  refer  to  the  actual  figures  to  show  the  increase 
III  the  tonnage  of  the  vessels.  I  call  your  Honors'  attention 
t(i  the  table  of  vessels  clearing  from  Victoria  in  issd  and 
I  ^^7,  made  out  by  Mr.  Milne,  Collector  of  the  Port  of  Vic- 
j.toiia.  wiiich  is  foimd  at  page  '-V.\  of  the  E.xhibits. 

Tlieie  are  41  vessels  given   in  the  list.     Of  these  ti.l  are 
under  .">o  Ions,  s  between  .'in  and  7n  tons  and  SoverTi)  tons, 
ruder  .')»•  tons.  t>  cleared  for  sealing,  t!  cleared  for  coast- 
ing and  sealing,  li for  voitstinq. 
Hetw(^en  ."i(i  to  7o  tons,  Ww  s   vessels  cleared  for  sealing. 
Over  In  tons.  7  cleared  for  scaling,  1    for  cofisting.     Of 
these  vessels  of  over  7n  tons,  4  were  not  registered  at  Vic- 
tmia  until  lss7;  all  of  these  cleared  for  sealing. 
(If  v(>ssels  of  2n  tons  and  under,    W  cleared  for  coasting 
viaiiil  sealing,  t!  for  coasting;  and  none  for  sckI/ikj  alone. 
Of  the   vessels  between   'Jn  and  .Mt  tons.    <>  cleaivd   for 
sealing,  :>  for  coasting  and  .sealing  and  7  for  coasting. 

In  the  two  printed  tables  relating  to  catch,  which  1  have 
Mihniitted.  the  following  is  shown: 

111  isst'i.  there  were_/'o»r  vessels  under  r>o   tons;    of  these 
three  were  seized. 
Four,  between  M  and  70  tons.     None 

seized. 
Six,  over  7<>  tons.     One  warned  (?) 
'"'In  I ^"^7,  there  were /(>«/•  vessels  under  .'in  tons;  of   these 

two  are  claimants. 
Five,  between  .'iOand  7<>  tons;  of  these 

three  are  claimants. 
Seven,  over  70  tons;  of  these  one  is  a 
claimant. 


hi' 


li 
.  II 


■'II     li 


H3fl 


(Mr.  Lansing's  ArgnnHMit.) 

In  J8n!^,  tlioie  wen*  luo  vessels  under  ')(•  tons. 

Our,  between  Tin  ami  7"'  tons. 
.SV.c,  over  7n  tons. 
In  iss!t,  there  were  two  vessels   under   .">n   Ions;  hull, 
cliiimnnfs. 
Four  between  .">(»  and  To  tons;  ///, 
these  are  elainiants. 
10  V'f)/,  over  7<»   tons:  liro   df  lliesc 

claimants. 
In  1H!»(I,  there  were  /»o  vessels  under  ;"><•  Ions. 

Tuut  between  ."lO  and  7n  tons. 
Thirtveu  over  7('  Ions. 
The  percentages  are  as  follows: 


lS8(i... 

1S87 

188S.._ ,. 


'188i». 
1890. 


I'lhll'l' 

.Ml  Inns 

Ov,., 

.Ml  Ions. 

In  "11  Inns. 

'il  1..I . 

L's.r>7 

■JS.'u 

Ii'  m: 

:.'.">.  00 

;'.i.2:. 

r.\  7.-, 

0._J    .JO 

II.1L> 

(Ili.l'.ll 

i-'.r.o 

•_'">.  00 

)■(!>  .-.n 

II.  7»'. 

11.77 

7i;  17 

I  submit  that  three  tilings  have  been  establisiuil  liv 
these  fi'Mires.and  they  are: 

1st.  That  experience  in  Kering  Sea  demonstrated  HkiI 
vessels  of  over  7o  tons  \\ei(>  the  ones  best  fitted  foi'  sf.il 
iiig  and  produced  tiie  best  results.  I'd.  Thai  the  latciuv'-s 
of  the  season  in  isjto  can  be  accounted  for  because  of  tin 
increased  individual  tonnage  of  the  vessels.  The  avna^i' 
-Qtinie  of  leaving  the  Sea  for  vessels  of  that  tonnage  in  1^:hi 
being  August  :?lst.  :5d.  'J'hat  there  was  an  evident  leml 
ency  to  abandon  craft  under  5(i  tons. 

There  is  another  noticeable  fact  which  should  be  takrn 
into  consideration,  and  which  bears  directly  upon  tlic 
comparative  value  of  an  Indian  crew  and  a  white  crew. 
We  find  that  the  huge  vessels  carried  b(«its,  while  thesni;ill 
vessels  cairied  canoes,  and  consequently  in  \f<W>  the  lar<;vi 
portion  of  the  fleet  was  outfitted  with  boats.  The  follow 
ing  figur«'s  (also  from  our  (ieneial  Tables)  will  show  this: 

Ovor  Oil  no  |.ili9  an. I 

40  tdllS.  lllllIlT 


188(1. 
Vessels  with  boats 4 

Vessels  with  canot'S. .    3 


1S87. 

Vessels  with  boats <\ 

Vessels  with  canoes H 


50 


!» 


1888. 


60 


Vessels  with  boats 

•> 

0 

Vessels  with  canoes 

18.S9. 

Vessels  with  boats 

Vessels  with  canoes  . 

4 

6 

!t 

4 

2 

0 

f) 

|S<J(I. 

Vessels  with  boats . 

18 

9 

ft 
0 

Vessels  with  canoes  

4 

4 

18 


t'.'j: 


(Mr.  Lansing's  Argmneiit.) 

Kxprossed  in  pt'i(<«ntiif?eH  the  cornpanitivo  nunibor  of 
laiK''  ;i'»'l  sniall  vcsst'ls  t'inploycd  in  tliu  different  years 
appiMi'  as  follows: 

Vi'uncls  (PVIT  Vi'HHi'ls  60  lon§ 

60  tonx.  Hiid  iindiT. 

l9»C< ^'i  '/o  46% 

IssT M%  U% 

lois-^-^ 75%  26^ 

IsMi 72%  28% 

1^'.MI ..  '^'/e  m^'/i 

Tlic  nt^xt  statement  which  received  the  attention  of  my 
learned  friend,  Mr.  Bodwell.  was  in  reference  to  tlie  dura- 
tion of  the  voyage  from  Berinj^  Sea  to  Victoria. 

Mr.  Bodwell: — 1  found  when  I  came  to  look  .it  the  notes 
th.it   tlie  statement  about  the  "Ada"  vvas   not  correct. 
Of  course  Captain  Gaudin  canje  down  in   a   steamer.     I 
have  c;orrectea  that  in  the  printed  copy  of  my  argument. 
-°    At  one  o'clock  the  Commissioners  took  recess. 

At  iialfpast  two  o'clock  the  Commissioners  resumetl 
their  seats. 

Mr.  Lansing:— Before  jiroceeding  with  the  line  of  argu- 
ment upon  which  I  vvas  engaged  when  the  Commissioners 
arose,  1  desire  to  make  a  correction  in  our  general  tables 
in  regard  to  the  catch  of  the  "  Favourite"  in  lSH(i,  which 
is  given  as  2,25lt  skins.  That  is  an  error,  as  Mr.  Spring 
testitied  at  page  IHli)  of  the  Record  that  the  catch  in 
;o  Bering  Sea  was  2,:$74.  His  testimony  is  aa  follows,  at  line 
II; 

"Q.  The  total   catcli   in  Behriug  8ea   of  the  'Favourite'  for  that 
"  vciir  wouhl  be  2,374  ?    A.   Yes. 
■•  Q.  2,374  are  vour  tinurcM  of  the  oatch  of  the  '  Favourite  '  iu  BehrinK 

••Scuiu  1880?    "a.   Yes." 

Tile  attention  of  Capt.  McLean  was  called  to  the  fact 
that  there  was  a  discrepancy  between  his  figures  and 
tiinse  of  Spring,  and  at  page  i;{:iO  of  the  Record,  line  44, 

the  following  appears  in  his  examination: 
40 

"Q.  There  appears  to  be  a  disorepancy  between  Mr.  Spring's 
"  figures  and  yonrs  of  some  110  seals.  How  do  yon  account  for  that  ? 
"  A.  That  was  one  day's  catch  in  the  month  of  AtiRust  that  is  not  en- 
'•  tercd  in  this  book.'  It  was  a  mistake"  in  copying  it  from  another 
"  book." 

So  that  it  is  evident  tliat  the  figures  given  by  Charles 
Spring  are  substantially  accurate  with  regard  to  the 
"  Favourite  "  in  that  year. 

Mr.  Peters:— What  do  you  claim  to  be  the  right  figures 
.(^  now '. 

Mr.  Lansing:  "2, ;>74;  that  number  is  in  your  table  and 
alsii  in  ours. 

Tile  Conmiissioner  on  liie  part  of  Her  Majesty:— The 
gencial  table  Iv  ■  ';ath  figures. 

Mr.  Ijansing: — Yes,  your  Lordship,  but  where  2.2r)!» 
skins  are  in  the  table,  a  further  examination  of  the  Record 
shows  that  McLean  substantially  agrees  with  Spring,  be- 
cause lie  adds  ILO  to  2,2.V.t,  wbicii  would  make  2.:W.t,  and 
Ml.  Spring's  figures  are  2,S74,  so  there  is  only  a  difference 
f,i,oi'  tiv(>  skins,  and  where  "2,2.')1»"  appears  in  our  table  it 
slmnld  be  changed  to  "  2,a(i!>." 

\\  the  time  the  Commission  rose  I  was  about  to  consider 
tile  statement  in  the  argument  on  behalf  of  the  United 
Stales,  at  page  178,  which  is  criticised  by  my  learned 
fiiend,  Mr.  Bodwell,  as  not  being  correct.  It  is,  that  "the 
voyaj^e  of  1,5(10   miles  to   Behring  Sea   usually  occupied 


=  Ji 


'•)  1 


•     \ 

\ 

1  ' 

li 

I- 

y|i.. 


i' 


II 


WW 


tl-JS 


(Mr.  liitiisiii^'s  Argiiinciit.) 

from  14  to 'JO  days."  In  iliscnssiiig  this  Hliitt'intMit  Mi 
Hodwell  c'itt'd  tliirc  iiistiiiict's  to  bliow  the  diii,ili>>M 
ol  tilt'  voviip).  lit'  tiist,  rt'lfiiitl  to  the  "  Adu,"  stiitiii;; 
that  that  vi-ssi'l  in  issT.  ictnincil  to  N'ictoiia  in.")  cut; 
tiavs.  anil  since  niai<in^  that  stati'ini'nl  hf>  has  int'oiiin  i| 
nif  that  hf  has  coiiiMti'tl  it  in  the  piinli'il  cojiv  ot  Ins  mil 
.iixnnM'Mt:  hnt  1  dfsiro  to  cdl   llio  allfntinn  of  thi'Coin 

lo  ini>isioni'i's  to  tlu-  lai:t  that  that  stattMni'nt  is  now  adiMittiij 
to  III'  inroiiort.  and  that  Mii'  iidViiMiri'  jiivrn  was  to  ihr 
ti'stiniony  of  (iaudni,  tlu'  inastor  of  the  vcssi'l,  whe  •  h,' 
stall's  that  it  took  him,  on  llic  Alushni  nlvmiirr,  in  n  . 
tiirtiiiiij  lit  \'ivh)t  lit  fmiii  Silhi,  flvf  or  six  davs;  tin-  vi -^.1 
(Ihf  "Ada")  was  sri/i'd.  can  ifd  to  Silka.  snli-r(|U(iiilv 
sold  at  I'ort  'I'ownscntl,  and  sailctl  aftorwards  out  dI  Mi,. 
|iorl  of  Scattlf.  so  that  slif  ncvci'  iftmiicd  to  N'icloi  ia  allci 
hiM-  .seizure. 
'I'hc  Coinniissioncr  on  the  paitof  the   rnilcd  St.itcs: 

JO  What  is  till' approxiniati'  distanc,' from   Victoria    to  I  ni 
niaU  Pass; 

Mr.  Lansing:  I  think  it  is  ahoiit  l..'>no  miles,  your 
Honor 

'I'hc  ni'.xt  rt'ft'rcncc  of  my  learned  liiend  is  to  evideuir 
relating  to  the  "Onward."     An  examination  shows  that, 
it  is  a  general  statement  hy  Charles  Sjiring  that  the  v^y 
ageslionid  he  made  in  12  to  14  days.     Tin.'  reference  is  to 
Uecord.  page  .sC.'.t,  line  :'.r>. 
llis  third  reference  is  to  the  tripof  the  little  "Triumph"; 

.50 and  the  witness  who  is  giving  testimony  states  that  he  is 
snre  that  the  "Trimni)h  "  canic'  down  from  the  Sea  in 
"not  more  tiiaii  two  weeks  "  The  reference  is  to  KVr 
ord.  page  I4nl,  line  M.  That  is  a  general  statement  as 
to  the  time,  made  eight  years  after  the  event,  hy  a 
hunter,  v  ho  had  heen  a  sealer  for  a  long  time.  It  is 
fair,  therefore,  to  helieve  that  his  rocolleotion  was  at  fault, 
as  it  would  appear  from  this  statement  that  the  little 
"Triumph,"  of  only  14  tons,  made  the  trip  in  a  consider 
ahly   shorter  time  than  much  larger  vessels   with  greater 

40 Sidling  cajiacilies.  We  find  that  the  little  "Triumph," 
on  her  "  up"  trip,  left  Victoria  on  the  2(»th  or  iMst  of  May, 
and  reached  the  Wea  August  4th;  that  while  c/i /o^/e  she 
took  hut  r»2  seals,  so  th.it  she  could  have  sealed  very 
little  in  that  time.  The  reference  to  the  Record  is  page 
I'.WJ.  line  .s.  Of  couise,  in  that  case,  it  is  to  he  presunieil 
tn.it  the  "Triumph  "  stopped  on  the  coast  and  took  on 
(loiird  her  Indian  hunters,  and  then  she  sealed  sufficiently 
to  take  TiJ  seals.  Hnt  we  find  that  this  same  witness,  on 
whom  the  learned  comisid  relii^s  for  the  voyage  occupyinf; 

50  "about  14  days,"  states  that  the  ordinary  voyage  took 
"  lietween  two  and  three  weeks,"  which  is  approximately 
from  14  to 'jn  days.  The  reference  is  to  the  Record,  page 
I4i»l,  line  4t>. 

Hut  we  have  the  voyages  of  other  vessels  hesides  tlio 
two  now  relied  iii)on  hy  my  learned  friend.  We  have  tlu' 
l)ig  "  Triumph, "of  I's  tons,  which  took  17  days  to  return  to 
Victoria  after  heiug  waruml,  according  to  the  evidence 
found  iit  page  I4-_>1.  line  i';{  of  the  liecord;  we  liavo 
the    "  W.     1'.    Say  ward"    in     iss(t,    a    <5n-ton     vessel 

6o"lowoiing"  last  on  August  '2-lth  (Record,  page  HH'h, 
line  17),  and  arriving  in  Victoria  on  Sept.  13th,  ac- 
cording to  the  testimony  of  J.  D.  Warren  (Record,  paj^o 
•.<:{H,  line  :$).  That  is  a  period  of  :>(»  days.  The  "Thcnii- 
ton,"  22  tons,  in  ISHfj  sailed  on  her  Bering  Sea  trip  May 


IsMt, 
'liilof 


(Ml'.  Ltiiisinj^'s  AiK'inu'iif.) 

L'Tlli,    and  .iirivcd  tln'n>    Inly   -Jd     I   refer  to  the  Rnti.sh 
;ii;;iiinent,  i>aj;e  jtiu.  linit  I     so  tliat  it  look  Iir.  days. 

Mr.  I'eters:   -She  slnjtped  on  the  way  ii|»,  taking  in  lier 
|ii. "Visions  and  eveiythnin  else. 

Mr.    Lansiii^^:  ~  It   is  fair  to  |)resuine  that  she  did  not 
-.|iiMd  over  two  sveeks  taking  on  siijiplies,  and  no  time  was 
>|hiit   in  K^'ttin^   Indian  liiniteis  on  the  coast  as  she  had 
1(1  whiles. 

I  refer  to  the  fa(^t  that  tht;  ".Inanita,"  1"'  tons,   in 
si'i/ed  iin  the  :i  1st  i if  .Inly,  reacheil  Victoria  altont  thee 
.\ii^;iist  tseo  British  arj;nment,  pa^e  l;t;i,  li'ie  -JT.  and 
|:;i.  line  .">),  that  is  a  period  of  over  I'o  days. 

Mr.  I*et»'rs:   -l*'ioni  the  time  she  was  seized 

Mr.  Lansinji;:  Certainly;  yon  contund  that  she  left  the 
Sim  iniinediately  .ifter  w.unint,'.  The  "  Dora  Siew.ird,"  in 
is'.i.i,  left  the  Sea  Soptendier  L''Jnd,  aerordiiifi  to  the  testi- 
iiiniiy  of  Mr.  Ale.xaiider,  and  arrivtid  at  V'ictori.i  Oct. 
:  Il'IIi  ( Hi'conl,  page  4sl,  line  I'.oi.  Over  .'lo  days  wen.' oe- 
iii|iied  on  her  retui'ii  voyage.  Next,  the  "  Annie  C. 
.Mcpore,"  in  lsi»o,  ji;',  tons,  left  Victoria  .Iinie  I'ist,  and 
;irri\ed  ;it  the  Se.i  .Inly  L'oth  (testimony  of  llackett. 
ii'ci  (lid.  jiage  •!.">!».  line  .Mt).  That  is  a  period  of  2l»  days. 
The  ■•  Kavonrite.""  M'  tons,  in  j.s.s'.t,  jctt  the  Sea  Angust 
'.iilli.  ,'ind  .irrived  at  Victoria  Sept.  L'Ttli.  l".>  days.  From 
lii.it,  slionid  he  dedncled  7  days  spent  at  lvyii(|not  and 
Ikniet  liny  authority  is  the  vessel's  log  for  1^S!»),  which 
iii.ikes  :i  period  of  L'2  days.  The  "  Maggie  .Mac,"  in  is'.X), 
;  ill  It  the  pass  August  :Ust,  and  arriving  at  \'ictoria  Sept. 
I'.tlli.  which  is  -JO  days  (Memorandum  hook  of  Thomas 
II.  Mrown,  K.xhiliits,  page  4t')).  Now,  I  suhmit  tiiat  the 
-l.ileineiit  in  the  printed  argument  of  tht!  IJniteil  States  is 
ivrtaiidy  fair,  and  having  carefully  reviewed  the  evidence 
(111  this  point  I  would  chang(>  that  sateiuent  ot  "  from  14 
III  •_'(»  diiys"  so  tliat  it  would  read  "  al)out  •-'(»  day.s." 

The  fact  next  set  forth  in  our  argument  that  "  the 
jicrils  of  a  Boring  Sea  cruise  were  recognized  hy  insurers 
111  an  increase  of  the  premium  recpiirtHl  for  vessels  clearing 
.;  I'm  .\laskan  waters"  is  not  criticised  hv  our  learned 
liiciids,  as  the  evidence  is  conclusive  on  the  point  (,see 
ii'icord,  page  1()!>(»,  lines  IH  and  tW).  It  is  therefore  ovi- 
iliiit  how  iiazardous  this  voyage  was,  and  how  ahsolutely 
iircssary  it  hecamo  to  use  iaiger  vessels  where  they  could 
li  ■  procured. 

The  next  statement,  which  elicited  a  criticism  from  my 
learned  fiiend  is  this,  that  "  through  some  jieculiar  in- 
-liiict  the  animal  when  wounded  starts  directly  to  the 
wiiiilward"  (page  I7!>  of  the  argument  on  hehalf  of  the 
-iriiited  States).  Perhaps  that  is  an  overstatement,  and 
lilt  based  entirely  on  the  Kecord.  If  so,  it  is  the  only 
;i--.-i(  rtion  in  the  argument  on  hehalf  of  the  United  States 
uliidi  is  not  supported  by  evidence.  Hut.  I  cannot  see 
tli.it  it  matters  whether  it  is  supported  hy  tn-idence  oruot. 
Hi  whether  it  was  inserted  from  general  knowledge  of  the 
siiliject.  Vou  nmst  hear  in  luind  tliat  it  is  the  conlention 
'if  my  learned  friends  that  the  difficulty  of  approaching  a 
seal  is  overcome  by  always  approaching  it  from  the  lee- 
ward. Now,  whenau  animal  is  wounded  it  natinally  goes 
'Jin  the  opposite  direction  from  which  tiie  shot  came;  there- 
li lie,  in  this  case,  it  would  go  to  the  windward.  It  may 
lint  he  a  jieculiar  ii  stinct,  but  at  least  it  is  the  instinct  of 
-1  If  preservation. 

.My  learned  friend  coutiuued  by   discussing  the  state- 
iiii'iit  in  our  brief,  that  "in  the  pursuit  of  a  crippled  seal. 


|i  ii 


"!!»■* 


♦!»(► 


(Mr.  Lansing's  Argument.) 

tho  advantage  which  th«^  boat  with  two  '  jHilIeis"  haddM  i 
a  canoe  with  but  one  is  ai)paieut."  Now  Mint  isciitic  i-,  ,1. 
and  Mr.  Bod  well  asseited  that  when  acanoe  was  enipldvid. 
both  of  the  Indian  hunters  used  their  paddles  in  tiic  pm 
suit  of  a  "cripjde."  Does  my  learned  friend  contend  I ..i 
anioment  that  a  canoe  with  Indians,  using  spears,  pur 
sues  a  "cripple"  when  they  have  the  animal  fast  to  \\\r 
loendof  a  line;  Theie  was  never  any  contention  ii  ih.. 
part  of  the  United  States  that  the  Indians  i)urs>ied  (up 
pled  seals  mdess  they  used  guns;  and  if  the  Indians  m-(  i| 
guns,  one  of  them  must  have  contimied  tiring,  and  tliai 
would  have  left  hut  one  to  paddle. 

But  wliat  is  liere  referred  to?  The  canoes  of  tiie  'Tmi- 
olena,"  with  one  boat  puller  and  one  hunter;  and  the  (hs 
advantage  they  had  over  a  boat  with  two  judlers  is  v.  iv 
apparent.  I  submit  that  the  criticism  of  my  learntii 
friend  is  entirely  unwarranted  and  must  have  been  in.i.l,' 
2oiuadvertently.  for  a  moment's  consideration  would  liivc 
shown  its  absurdity. 

1  now  come  to  the  (jnestion  of  the  superstition  of  ilic 
Indians,  and  I  call  your  atti'ution  to  the  evidence  which  is 
collected  at  page  2(tl  of  the  United  States  argument. 

And  in  connection  with  that  I  will  also  refer  to  the  loj; 
of  the  "  Favourite,"  which  was  kept  by  the  witness  Laugh 
lin  McLean;  I  turn  to  the  year  ISiKi  at  J>age  175  of  his  To;; 
(this  is  the  book  from  which  tlie  counsel  on  behallut 
Great  Britain  read  th(>  other  day  in  arguing  this  (luestion'. 
30  We  hnd  this  entry  for  the  l!»th  August:  "This  day  Sic 
"  gins  with  strong  winds  and  high  sea;  spoke  scl'oom  r 
"  '  \V'.  v.  Say  ward'  with  '2-lU  seals  on  board.  latitude 
"5!t.lu,  longitude  Ui!». !.")  west.  Indians  refusing  to  sln|i 
"  any  longer  on  account  of  all  their  Indian  food  beiii;; 
"  used  up,  and  also  the  '  Kate's"  Indians  is  anxious  to  ^ei 
"  home." 

I    call    attention    to    tliat    statement     regarding    tlie 
"Kate's"  Indians.     The  ne.xt  entry  is  the  '20tb  August: 
"  This  day  begins  foggy,  Indians  came  aft  in  a  body  and 
40  "  want  to  go  liome.     Made  up  (nind  to  go  home." 

Mr.  Modwell:  -Tiu-se  statements  were  not  read  into  the 


jyausing: — No;  nor   were  tiiosrf  you  read   the  oti 


notes. 
Mr. 

•I.iy. 

Mr.  Modwell:- 
Mr.  Lansing: 

ness  ;md  we  are 

that.     Without 


liT 


And  there  was  nocrosscxaminatioii  011  U'. 
-No;  Lauglilin  McLean  was  a  British  wit 
the  only  ones  who  sliould  complain  as  to 
leading,  1  will  also  call  your  attentinn  l  > 
the  experience  that  this  s.aine  captain  iiad  in  isss.  whii  li 
50  is  detailed  at  page  si  of  tin;  log.  In  that  year  the  liidian- 
agaiii  mutinied  and  he  was  compelled  to  go  home.  W'l' 
have  the  experience  of  tliis  capt.iin  wi»h  Indians  for  Ihni' 
ye...s,  l.sss,  Iss'.t  and  IS!»u  and  in  two  01  them  the  voya^ii' 
was  teiniinated  on  account  of  the  superstition  icmiI 

strong  charactei' of  iiis  Indian  crew. 

In  I'egard  to  the  fact  that  Indian  hunters  were  fearlnl 
of  sealing  in  foggy  weather,  the  statement  made  in  the 
argument  (if  the  I'nited  States  (page  is(h,  is  as  follow-: 
"  Another  peculiarity  of  the  Indian  hunters  wa- 
60"  that  they  were  unwilling  to  start  sealing  wlieu  tlich 
"  was  fuggy  weather."  In  answer  to  that  assertion.  Mi. 
Rodwell  read  from  this  coll(>ction  of  logs  of  the  "Favoni 
ite  "  the  lollowiiig  extracts:  at.  page  7:5,  of  the  log,  on  th" 
i'Jth  August:  "  Dense  fog,  light  breeze  liunpy  sea,"  thil 
is  the  entry  at  s  a.  m.     At  twelve  o'clock  "  canoes  loworeil. 


681 

(Mr.  Lansing's  ArgumeDt.) 

(louse  fog  at  intervals,  slight  sea  and  light  broe/.e."     Now 

I  -iibniit  that  it  is  a  fair  presumption  in  that  <  iso  that 
till  10  was  no  fog  when  the  canoes  were  "  lowered;"  they 
\\(  It?  doubtless  sent  out  in  fair  weather,  and  these  banks 
ot  log  only  floated  by  afterwards.  At  page  84  of  the  log 
tlu  10  is  the  entry:  "  8  a.  m.  clear  sky,  smooth  sea,  canoes 
iiihl  boats  lowered,  threatening  banks  of  fou;  on  the  hori- 

i^^zi'ii."  There  was  no  fog  about  the  vessel  when  the  boats 
wrio  lowered.  At  page  77  of  the  log  the  following:  "5 
A.  M.  boats  and  canoes  lowered,  passing  fog  banks." 
Till  10  is  no  indication  of  continuous  fog  suggested  here. 
.\t  |iiige  80,  on  tho27tli  of  August,  wo  find  this  entry:  "  This 
'•  il;ty  begins  with  a  calm,  smooth  sea,  hazy  sky,  boats  and 
"  ( anoos  lowered,  light  air,  smooth  sen,  hazy  sky.  Noon, 
"ihill— light  air."  No  suggestion  of  fog  here.  "4  p.  M., 
'•  rloar  bright  sky,  suusbino,  smooth  sea."  Then  comes  ,an 
oiiiiy  that  IS  relied  on:   "Heavy  banks  of  fog  |)assed  dur- 

,Q  "  iiig  the  watcli  which  caused  us  to  tire  a  gun."  Hut  the 
ciiicios  had  been  "lowered"  fully  eight  hotus  before  the 
Inu  sottlod  down  and  because  they  liapponed  to  be  caught 
ill  il  is  no  groimd  for  denying  that  the  Indians  were  un- 
willing to  go  out  in  a  fog 

I  (losire  to  call  attentio-u  to  some  other  entiies  in  this 
joi;.  First  to  page  7o,  .^th  August,  the  entry  is  for  4  p.  M: 
"  Sky  cloudy,  sea  lumpy,  iriiid  liylit,  fog  settled  down, 
caiicR's  returning."  Beai'  in  niind  that  the  contention  of 
my  learned  friend    is,  that  the  only  thing  which  prevents 

.q(,iii(ios  going  out  sealing  when  th(!  weather  is  foggy 
is  a  strong  wind.  But  here  is  an  entry  for  a  light 
liiir/o  and  tlui  canoes  are  returning  four  hours  earlier 
tliaii  tlii^  usual  time.  At  pagt*  71,  this  is  the  entry  for 
.Aiiuusl  ^th,  at  4  V.  m:  "Heavy  dense  fog  settling  down, 
liijiil  breeze  and  a  moderate  sea,  canoes  on  boaid." 
.Vuaiii  at  t)age  7!',  there  is  an  entry  for  August  •Jl>th, 
al  l.:'.o  p.  M.,  "Dense  fog  settled  down,  which  caused  the 
"  Imals  to  make  lor  the  vessel."  Then  at  ti  p.  m.,  "  Dense 
'■  Id.n,  //;//'/  (lir,  all  boats  and  canoes  on  board."  But  there  is 

„yiii  I'liliy  for  July  :ilst,  at  page  (U,  to  which  I  particularly 
rail  Noui'  attenti',  n,  as  it  bears  ilirectly  on  the  question 
wlici her  white  hunters  will  go  out  from  the  vessel  when 
b  i  i!is  refiise  to  do  so.  "  This  day  begins  with  fair  but 
ill/"  weather,  smooth  sea  and  chilly  atmosphere;  4  A.  M., 
ill  ,^i'  log,  lumpy  sea  and  liiiht  breeze:  S  .\.  m.,  boats  and 
nil''  canoe  lowered,  behiij  .souie'clid!  Joik///  the  hnliaii 
lii'iilrrs  irere  Koiiieii'hal  tiim'd  (ibi)i;(  <ioi)i(/  out."'  Now,  I 
Miii'iiit  that  that  is  directly  in  point.  (Diu'ing  that  season 
tli<  '  l-'avouiite  "  had  two  hunting  boatsand  eleven  canoes.) 
Ill  icajilain  states  in  the  entry  1  last  read  that  the  two 
iHiiiliiig  boats,  with  si.K  white  men,  were  lowered,  and 
111  ii  lio  persuaded  two  Indians  in  one  of  the  canoes  to  go 
I'Ui,  Imt  the  other  twenty  Indian  hunters  declined  to  go 
Ih'  11  iM)  it  was  ,sV/y //<///  /o;/(y//.  I  therefore  contend  from 
111!  statement  and  the  testimony  in  the  Record  that  the 
i'li-i! ion  assumed  by  the  United  States  in  regard  to  In- 
dians being  unwilling  to  leave  the  vessel  when  it  was 
t(i^i;y  weather,  whelbtu' there  was  wind  or  not,  is  fully 
sii  !aiiiod  by  the  evidence;  and  my  learned  friend's  theory, 

f^tliil  wind  is  a  necessary  factor  in  preventing  tht>  [ndiaus 

I I  "ill  sealing  during  a  fog,  is  ingenious  but  without  foun- 
(laMiiii  in  fact. 

I  imw  pass  to  the  general  testimony  in  regard  to  the 
^(Hitii^(>ucie8  obtaining  ni  sealing;  it  is  collected  between 
pair  185  and  page  208  of  the  United  States  brief.     In 


5< 


j 

'     T 

f 

■^i!::r 

'  i!    ji 

H.,' 


m\ 


632 


(Mr.  Lansing's  Argument.) 

dealing  with  that  portion  of  our  argument  the  leaimd 
counsel  confined  his  criticisms  chiefly  to  the  testimony  of 
Alexander  McLean,  and  he  said :  "What  advantage  lias 
'■  McLean  over  W.  Baker,  a  man  who  has  heen  lui;li 
'*  liner  in  sealing  vessels  in  every  year,  who,  from  iTis 
"  first  voyage,  has  made  most  successful  catches.  ()]•, 
"  Hackett,  a  man  of  large  experience.     Both  these  mkiI 

lo "  were  absolutely  uninterested.  Or  C.  N.  Co.v,  or 
"  O'Leary,  or  Louis  Oisen,  who  has  been  out  ever  since 
"  1886,  or  Jacobson,  a  very  successful  man.  Do  you  sud- 
"  pose  thatMcLean  knows  anything  Jacobson  cannot  idl 
"  us?'"  As  there  was  a  good  deal  of  criticism  in  regani  to 
this  testimony  of  McLean's,  I  propose  to  read  what  the 
otiier  witnesses  said  on  the  different  points  and  compare 
them  with  what  he  said. 

The  first  subject  that  is  dealt  with  in  his  testimony  is 
the  condition  in  which  the  seals  are  found  by  the  huntiis, 

20 and  I  first  read  upon  that  point  thn  testimony  of  Captain 
Miner,  appearing  at  the  top  of  page  1!»1  of  our  argiiinont; 
also  the  evidence  of  C.  N.  Cox  at  pa.  e  :.'  '3  [Mr.  Lansinj^ 
here  road  the  extracts.  | 

Now,  the  criticism  was  made  \  r.y  i  .led  friend  liiat 
we  stated,  in  discussing  the  gt:n^r.,,i  saoject,  that  canoes 
circulated  about  the  schooner,  whil,.  Uonts  went  in  advance 
of  tlie  vessel,  and  here  is  Mieir  t)\vn  witness,  C.  N.  Cox, 
giving  testimony  to  the  same  effect. 

I  Mr.  Lansing  here  read  a  paiagraph   from  the  affiilavit 

30  of  Thomas  H.  I^rown,  at  page  ti.")2,  line  51,  of  the  Rorord. 
Mr.  Lansing  also  road  tho  extracts  from  the  evidonci'  of 
Captain  W.  E.  Baker  and  tho  witnos-s  Gerow,  a|)|)oaiinj; 
in  the  argument  on  behalf  of  tho  United  States,  at  paj^e 
205 1.  Upon  that  statement  of  Gerow's  we  had  a  com- 
ment from  my  learned  friend,  and  he  endeavored  to  ex- 
plain that  the  witness  was  si)eaking  of  conditions  ontsiilo 
of  Bering  Sea,  but  tho  li'ecord  shows  he  was  tostifyinj; 
as  to  Boiing  Sea  alone.  Tiien,  too,  we  have  my  ioaincil 
friend's  statement,  in   supporting  Captain   Wraron  as  a 

40 seal  expert,  that  "  it  is  not  j»roLended  that  seals  i;'jic(.nio 
"  ditforent  animals  when  tiiev  enter  Bohring  .loa.  they 
"  travel  and  sleep  and  their  life  generally  is  Vi^'.  Siuo-  in 
■'either  locality,"  so  even  if  Gerow  is  rel'n'iv;  >  tlio 
coast  it  is  apparent  that  his  testimony  equa  y  |>ii'ic  to 
Bering  Sea. 

I  now  desire  to  read  from  the  direct-ixamina:  11  of 
Byers,  beginning  at  line  ;U,  page  (iu^  of  the  Kecurr;.  ,le 
was  a  witno.ss  sworn  on  behalf  of  Great  Britain,  and 
has  boon  referred  to  constantly  in  their  oral  arguincnf, 

50 and  is  api)arently  relied  upon  as  their  chief  expert  on  the 
question  of  sealing.  He  was  a  hunter  on  one  of  the  seized 
vessels.  I  road  this  testimony  to  show  that  ho  agivos 
fully  with  Captain  Alex.  McLean: 

"  Q.  ^Ir.  !'vors,  vou  have  alrondy  otatecl  your  oxpr  ieuoc  an  a  soul 
"  hunter,  ami  I  will  not  go  over  that.  In  Hl'iootiufi  's.  will  you  tell 
"  inc  how  aro  tho  majority  of  thera  Hhot,  slooping'  n  ..  i'liiuiun?  A. 
"  Sleoi)ing. 

"  (^.  A  largi'  majority  of  them  or  not?    A.   Yes,  ^n  .    <.    -cry   larije 
"  majority  of  them  arc  nhot  sh  cpiug. 
f-        "  Q.  In  the  course  of  your  oxiicriouce,  have  you  shot  a  largo  niim- 
"  her  of  Kcals  V     A.   ''or  three  vears  I  was  a  hunter.     I  have  Hlmt  a 
"  large  number. 

"  Q.  Is  it  a  fact  t.iu.  a  certain  portion  of  tho  Heals  killed  are  lost  liy 
"Binldng?    A.  Th' ,r  m  a  eerie-,    ■nmher. 

"  O.  Fror>  your  own  exjien  ;^i  jau  you  tell  uh  what  projiortiou  (if 
"  seals  that  are  th  't  ^\:".^^  liio  lost  y    A.  From  my  own  experience,  nul 


10 


p 


40 


;o 


633 
(Mr.  Lansing's  Argument.) 

<  from  the  experience  of  hunters  I  have  had  with  me,  I  think  about  6 
'  jicr  cent. 

■'  Q.  With  regard  to  sleeping  seals  ?    A.  You  mean  lost  or  sunk  ? 

"  Q.  Yes,  sir  ?    A.  Five  per  cent,  of  the  total  amount  killed  sink. 

"  ().  A  greater  number  are  lost  when  swimming  ?  A.  The  greatest 
'  iiumber  lost  are  lost  swimming. 

"I).  With  regard  to  those  asleep,  what  proportion  are  lost?  A.  A 
'  very  small  percentage. 

"  ().  About  what  ?    A.  Probably  two  per  cent.,  not  more. 

"  <^).  What  distance  do  you  shoot  them  at  when  asleep?  A.  From 
'  ten  to  fifteen  yards. 

"  (,).  Now,  there  is  some  question  here  as  to  SQals  being  able  to  scent 
'  a  UmR  way  off,  is  that  the  case  ?    A.  Yes,  sir. 

"  (,).  And  is  that  a  practical  difficulty,  and  how  do  you  overcome 
'  it  y  A.  We  overcome  it  by  keeping  to  the  leeward  of' them  all  the 
'  time. 

"  ().  Is  there  any  difficulty  in  doing  tha^  ?  A.  Yes,  quite  a  diffi- 
'  culty. 

"  (,t.  But  you  overcome  it  in  that  way  ?  A.  Oh,  yes ;  we  can  over- 
'  cnnio  it. 

"  (,).  Do  you  fail  to  get  many  shots  on  account  of  their  smelling 
'  yell  ?  A.  It  don't  often  liappen,  except  in  a  sudden  change  in  the 
'  wmil  ;  a  sudden  change  of  wind  may  put  you  out,  and  we  may  find 
'  oiiisi'lves  to  tlie  leeward  and  still  be  to  the  windward  with  a  sudden 
'  I'liiuigo  of  the  wind. 

"  (^).  That  happens  in  all  kinds  of  hunting  ?  A.  Not  only  seals  but 
'  every  thing  else. 

"  (,».  Arc  the  seals  easy  to  awaken  ?  A.  Well,  yes;  you  have  to  take 
'  11  ^,'i('iit  deal  of  i)recautiou  in  getting  .vt  them." 

Ill  liis  cross-examination,  at  page  (i()3,  line  14,  lie  says: 

"  (,».  If  you  do  not  take  a  great  deal  of  procaiu'onthe  seals  awaken, 
'  do  tli(>y  "not  ?     A.  Yes,  sir. 
"  (,).   Wliat  is  the  result  if  they  do  awaken  ?    A.  Tlie  result  is  they 

•  i^n  away  and  you  do  not  get  a  shot  at  them.  In  some  cases  you  do 
'  it  vdu  are  close  enough. 

•  {).  So  tliat  any  disturbance  which  awakens  them  lessens  the  chances 
'  (if  vdiir  Kctting  the  seals  even  if  they  arc  there,  does  it  not  ?  A.  If 
'  tliey  arc  awakened  the  chance  is  small. 

"  *y  lu  order  to  get  a  ([uautitv  of  seals  when  they  are  there  you 

•  ttuiit  to  take  the  seals  asleep,  ilo  you  not  ?    A.  Yes,  sir. 

"  Kedireet  examination  by  Mr.  Peters: 

"  i).  With  regard  to  the  (juantity  of  ammunition  you  require.  Sup- 
'  ]in>e  a  seal  is  wounded.     Yon  often  wound  a  seal  ?     A.  Yes,  sir. 

"(.,).   Anil  chase  it  ?     A.   Yes,  sir. 

"  (,).  l)(ii  s  that  cause  the  use  of  much  ammunition  ?    A.  Yes,  sir. 

"  (,t.  (live  US  an  idea  of  how  much  you  fire  at  one  seal  before  you 
'  get  liini  V  .\.  I  have  known  hunters  to  shoot  25  shots  at  one  seal 
'  after  lie  is  wounded. 

"  (^).  It  is  (niite  common  to  tire  several  shots  ?  A.  It  is  quite  com- 
'  mull  til  lire  seven  or  eight  shots. 

"  (}.  And  to  chase  them  a  long  distance?    A.  Yes,  sir. 

"  (,).  You  do  not  give  them  up  until  you  get  them?  A.  No,  sir: 
'  iiiiiiiiuMition  is  no  object  at  all. 

"  i).  When  you  come  down  to  a  supply  of  ammunition  you  must 
'  iillow  for  a  great  number  of  charges  to  be  used  in  that  way  ?  A. 
'  Yi  s.  sir." 


It  scem.s  that  the  testimony  of  this  witness  is  substan- 
linlly  true,  and  that  it  bears  out  exactly  our  contention, 
and  allows  the  tlitticulty  of  approaching  the  seals.  If,  as 
tlii-;  witntss  states,  tiiey  very  often  have  to  fire  seven  or 
I'i^lil  shots,  and  sometimes  as  many  as  twenty-five,  to 
SCI  nil'  an  animal,  it  demonstrates  how  uncertain  the  hunt- 
iiiiiiif  sials  is,  and  it  further  shows  how  necessary  it  is  to 
liavi'  j    od  hunters. 

iNou  I  turn  to  theevidenceof  Captain  McLean,  on  page  185 
6oof  tlio  iIi)itedStatesargumont, which  I  will  read,  but  which 
iiecil  Mot  go  again  into  the  notes.  ( Mr.  Lansing  here  read  the 
extract. I  Having  read  the  testimony  of  these  witnesses, 
wc  >iiliiiiit  that  they  corroborate  the  testimony  of  Captain 
Ml  I  ran,  and  show  how  uncertain  is  this  occupation  of 
limiting  seals. 


i;       i 


.i|-^ 


w^- 


u 


f^ 


634 


Bm 


(Mr.  Lansing's  Argument.) 

The  next  point  to  which  I  wish  to  refer  is  the  weathiM', 
and  following  the  same  order  that  I  did  before,  I  will  fii.st 
read  the  testimony  of  Captain  Raynor  upon  this  point, 
which  will  be  found  at  page  189  of  the  United  States 
argument.  I  also  read  at  page  llt2  from  the  testinionv 
of  Captain  Miner,  and  the  evidence  of  Mr.  Alexander  oli 
page  194  of  the  argument.  There  is  also  another  leferonoe 
ID  to  page  l!t5  of  our  argument.  |Mr.  Lansing  read  the 
extracts  above  referred  to]. 

This  testimony  of  Mr.  Ale.xander  was  criticized  by  mv 
friend,  Mr.  Bodwell.  in  his  oral  argument,  as  follows: 

"  An  example  is  given  at  page  182  of  the  United  Stall's 
"  Argument  of  the  local  character  of  the  stormy  vveallicr 
"by  stating  the  experience  of  the  'Mary  Ellen'  and  i):o 
"  'Sayward.'  It  is  said  that  the  'Mary  Ellen,'  used  as  a 
"  typical  vessel  by  Great  Britain  for  the  purpose  of  ((hii 
"  puting  the  probable  catch,  was  in  Behring  Sea  in  Aii- 
2o"  gust,  1886,  29  days,  during  which  time  she  bad  (ifliin 
"  days  of  weather  so  rough  that  it  was  impossible  lo 
"  lower  a  boat.  The  '  W.  P.  Say  ward,'  there  24  days  of 
"  the  same  month,  had  but  11  in  which  her  canoes  couM 
"  be  lowered.  Now,  then,  if  youi  Honors  will  refer  ,j 
"  the  chart  showing  the  position  in  which  the  vessels  wimg 
"  captured  by  the  United  States  revenue  cutters,  you  will 
"  find  that  the  '  W.  P.  Say  ward  '  was  seized  in  almost  tlio 
"  same  locality  as  the  '  Dolphin.'  " 

Then  he  goes  on  to  show  that  the  "  Dolphin  "  was  near 
30  the  coast  of  Unaiaska,  and  therefore  had  different  weather 
conditions,  because  of  her  pro.ximity  to  the  land.  The 
United  States  argument  refers  to  the  "Sayward"  in 
188(5,  and  the  "Sayward"  was  not  seized  until  1887,  a  vimc 
later.  What  has  the  position  of  the  "  \V.  P.  Saywaid  "' 
in  1887  to  do  with  the  weather  she  experienced  in  l^^tif 

Mr.  Bodwell:— You  noted  tliat  at  the  time.  Where  ilo 
you  say  the  "  Sayward  "  was  in  188tW 

Mr.  Lansing:     I  do  not  say,  for  I  do  not  know,  nonlnes 
the  Kecoi'd  disclose.    Your  statement  was  therefore  clearly 
4oan  error,  based  upon  a  confusion  as  to  the  years  188ti  anil 
1887. 

Now,  I  will  read  the  evidence  of  the  witness  Alexninier 
Mcl^ean  upon  the  modifications  caused  by  the  woatluji-, 
which  will  be  found  on  page  ist)  of  the  argument  for  the 
United  States.  |Mr.  Lansing  lead  the  testimony  iv- 
fei'red  to. ] 

I  submit  that  his  testimony  is  substantially  the  same  is 
that  given  by  the  other  witnesses,  and  that  they  all  tend 
to  show  the  uncertain  character  of  sealing. 
50  With  legard  to  the  condition  of  the  seaLs,  I  wish  to  adil 
some  entries  from  this  log  book  of  the  "  B^avourite  "  in 
1889,  and  I  turn  to  page  119:  "July  1').  lS8i»,  (i  v.  M. 
Canoes  returned  with  11  skins."  Your  Honors  will  hear 
in  mind  that  the  "  Favourite"  in  1M89  was  equipped  with 
13  canoes.     "  Keport  many  about,  but  not  sleeping." 

At  i)age  121  of  the  log  the  following  appears: 

"July  22,  1  p.  M.,  ciiuot's  on  lioaril  with  12  skins;  not  sleepini*  on 
"  account  of  cold  wentlior." 

"July  23rd,  noou,  weatber  fine,  but  thick  horizon,  with  little 
aq  "  clouds.  Canoes  left;  several  seals  soon  from  distance,  but  iioue 
"  sleeping  on  account  of  chilly  atmosphere.  Canoes  returned  witli  7 
"  skins;  report  many  about." 

"  July  2()th,  at  noon,  stowed  mainsail  and  flying  jib.  Weather  lim\ 
"  with  light  breeze,  N.  N.  W.,  and  smooth  sea.  Plenty  of  seals  si'in 
"  from  schooner,  but  not  sleeping.  6  p.  m.,  canoes  returned  with  11 
•'  seals.     Weather  ttne,  moderate  breeze. " 


635 

(Mr.  Lansing's  Argument.) 

•July  30tb,  4  A.  M.,  canoes  left  with  fine  weather  and  calin.  Mid- 
■  •  (liv.  Htill  calm,  very  clear,  hoi)e8  of  good  catch,  althongh  none  seen 
■'  li'i'U  the  vessel.  6  p.  si.,  canoes  all  aboard  with  catch  of  170  seals. 
'•  \\  cather  very  fine.  Report  a  great  nnniber  of  seals  about,  sleep- 
"  iiiL'." 

••  .fuly  aist,  4  A.  M.,  weather  fine,  moderate  lireeze  from  south.  5 
■•  A  M.  canoes  left  ship.  Plenty  of  seals  seen,  but  not  sleeping.  12 
"  o'clock,  weather  ttne,  light  I'lreeze,  south.  Op.  m.,  cauoes  return 
•'  with  10  skins  at  (J  v.  m." 

"^ On  will  find  that  tho  position  of  the  vessel  was  aub- 
staiiti;»lly  the  same  for  botli  July  liOlh  and  l^lst.  One  day 
ITii  -cals  were  taken,  and  the  next  day,  with  good  weather, 
till  canoes  took  only  1!>.  This  shows  how  much  depends 
uiMiii  the  condition  of  the  seals,  whether  tliey  are  found 
;uv;ike  or  sleei)ing.  That  liiey  had  been  sleeping  on  the 
■Mi[\]  perhaps  accounted  for  the  fact  that  they  were 
awikc  on  the  I^lst.  All  these  matters  enter  into  the 
([(u  stion  of  the  uncertain  character  of  seal  hunting  as 
jocdiupared  with  other  industries,  such  as  fishing. 

The  experience  of  the  hunter  as  a  contingency  has 
l)ern  (juestioned  by  my  learned  friend,  and  I  read  the 
testimony  of  Captain  Raynor,  which  will  be  found  at 
patii'  18»  of  the  United  States  argument,  and  also  the 
tesliniony  of  William  T.  Bragg  at  page  197. 

At  page  11)8  of  our  printed  brief,  we  have  set  out 
the  testimony  of  Captain  Warren  and  of  Wentworth  E. 
Bilker,  with  reference  to  the  value  of  experienced  hunters. 
I  Mr.  Lansing  read  the  extracts  referred  to.  J  At  page  187 
;oof  oin'  aruument,  the  testimony  of  Captain  McLean  is 
set  forth,  and  it  shows  that  the  mode  of  approaching  a 
seal  is  only  one  of  the  factors  which  goer,  to  make  up  the 
experience  of  a  hunter.  In  addition,  the  whitesealer  must 
liave  (experience  in  shooting  from  an  open  boat,  and  shoot- 
iiig  under  various  atmospheric  conditions.  We  find  him 
hunting  seals  in  fog  and  rain,  in  light  winds  and  high 
winils,  and  with  a  strong  sea  running,  when  the  seal  and 
tile  lioat  are  both  in  motion;  and  he  also  says  that  if  the 
seal  is  not  struck  in  a  vital  place  the  chances  are  that  it 
40  will  escape.  I  submit  that  this  evidence  of  Captain  Mc- 
Lean is  fully  borne  out  by  the  evidence  of  witnesses  pro- 
(liKeil  (III  helialf  of  Great  Britain  as  well  as  those  produced 
(111  helialf  of  the  United  States. 

iiic  next  contingency  is  the  experience  of  the  captain, 
whicli  also  has  been  criticized  by  my  learned  friend,  who 
decides  that  it  does  not  in  any  way  affect  the  catch  of 
seals.  As  to  the  value  of  an  experienced  captain,  I  refer 
Vdiu  Honors  to  Haynor's  te.stiniouy,  page  I'.ts,  and  of 
AKxaiider's  at  page  l}»i  of  our  argument,  'i'he  witness 
vi>|ir,iks  there  of  th(>  executive  ability  reipiired  on  the 
pari  of  the  captain  in  handling  his  men,  jiarticnlarly  so 
it  lie  had  an  Indian  crew;  and  I  ask  your  Honors  to  bear 
ill  iniiid  that  there  are  8i.xteen  claims  before  you  for  ves 
sel>  I  allying  Indians,  while  there  are  only  four  claims  for 
ve>-('is  with  white  hunters. 

1  i.naiii  ask  you  to  read  the  evidence  of  Bragg  and  of 
( apiain  Cox,  at  page  It)!*  of  our  argument,  and  the  evi- 
ileie  (■  of  Captain  Alexander  McLean  at  page  I8!»  a^s  to  the 
advantage  of  having  an  exnerienced  captain. 
'0  A>  to  the  chances  of  finding  seals,  I  refer  your  Honors 
te  I  a^e  I'.Mi  of  the  United  States  argument,  at  the  bottom 
of  I  III' page,  containing  the  testimony  of  Captain  Miner, 
ain  t(i  jiage  1}>3,  the  testimony  of  the  same  witness;  and 
til  !■  i>;e  l!),5,  the  testimony  of  Mr.  Alexander.  At  page  207 
(if  ciiir  aigument  appears  the  testimony  of  Alexander  Rep 


f 


fl! 


h:|,       il 


nu- 


SWT 


<;:;*; 


(Mr,  Lansiiif^'s  Arguinont.) 

pen,  and  the  cross-examination  of  Ca|)tain  l.auglilin  Mr- 
Lean;  also  tlie  testimony  of  Captain  C.  N.  Cox,  at  page -Jus 
Yonr  Honors  will  bear  in  mind  that  Captain  Cox  is  the 
witness  who  stated  that  tl'i  y  never  found  seals  in'  heids  or 
larj^e  numbers.  We  have  also  on  the  same  page  tlui  ics- 
tiniony  of  Captain  VVentworth  E.  Baker,  who  refers  lo 
"  kick  "  in  finding  seal.i.     Now]  turn  back  to   the  tc-ii 

lomony  of  Captain  McLean,  at  page  ISS  of  our  argiMn( nt, 

and  1  submit  that  his  testimony  is  substantially  tlu'  s ,. 

as  that  of  all  the  other  witnesses,  as  to  the  nncertaiiitv  n\' 
seal  hunting.  The  testimony  of  Captain  Warren,  at  p.igc 
20"  of  our  argnmenl.  with  regard  to  the  weather  zmus, 
was  explained  by  my  learned  friend  Mr.  Bodwell,  liv 
the  statement  that  the  "  Dolphin  "  sealed  near  thtMn,i-.|. 
and  that,  therefore,  she  naturally  experienced  ditfiMi  nt 
weather.  As  to  that  1  have  prepareil  a  diagram  oj  ihe 
expeiience   of   different    vessels   ni    Behiing   t'  ,i    in    iIr. 

2o years  issd.  JssT  and  iss'i.  That  diagram  .  mws  ilic 
"  liiwt'ring  days,"  and  is  n)aiked  "  Diagram  No.  :>." 
Your  Honors  will  see  that  the  large  white  dt)ts  on 
the  diagram  represent  the  days  on  which  the  canoes 
or  boats  were  not  "  lowered,"  while  the  circles  represent 
the  days  upon  which  they  were  sealing.  I  call  your 
Honor's  attention  to  the  data  from  the  '2d  to  the  loth  of 
July,  lH8t>,  as  shosvn  on  the  diagram.  On  the  2d  of  .Inly 
the  "Thornton  "  and  the  "  Mary  Ellen  "  were  in  the  Sea, 
and  one  was  hunting  and  one  wr.s  not.     On  the  3d  of  Jidy 

30  there  were  three  ve.ssels  in  the  Sea,  two  of  which  were  not 
sealing,  while  the  "Dolphin"  was.  On  the  4th  of  .July 
there  were  three  vessels  in  the  Sea,  and  two  were  not  scal- 
ing, but  the  "Thornton"  was.  On  the  .^th  none  of  the 
vessels  were  sealing.  On  the  tlth  of  July  there  were  foui' 
vessels  in  the  Sea;  three  were  sealing  and  one  was  not. 
On  the  7th  of  July  there  were  four  vessels  in  the  Sea,  one 
was  .sealing  and  three  weie  not.  On  the  8th  of  July  all 
were  sealing.  On  the  l>th  of  July  three  did  not  seal  and 
one  was  sealing;  and  on  the   loth  day  of  July  the  same 

40Conditions  existed.  I  might  go  through  all  these  ditVer- 
ent  years  and  the  same  state  of  things  would  be  found, 
namely,  that  vessels  in  Bering  Sea  in  the  same  year  and 
on  the  same  day  ex|)erienced  entirely  different  weather. 
There  are,  of  course,  instances  where  there  is  a  genera! 
condition  of  fair  weather  throughout  Bering  Sea.  For 
instance,  1  call  your  Honor's  attention  to  the  fact,  as 
shown  on  Diagram  No.  5,  that  in  18H<),  between  the  28tli 
of  July  and  the  3d  of  August,  inclusive,  there  appears  to 
have  been  a  period  of  good  weather.     On  the  other  hand, 

50  from  the  12th  of  August  to  the  22d  of  August,  there 
appears  to  have  been  an  almost  universal  state  of  had 
weather.  In  -iotne  instances  we  tind  a  geueial  storm 
and  in  other  instances  a  general  condition  of  fair 
weather;  but  the  wh(de  trend  of  the  evidence  is,  that 
the  weather  varies  at  different  localities  in  the  Sea. 
With  this  evidence  liefore  you  can  your  Honors  con 
(luile  that  all  the  vessels  experienced  the  same  condi- 
tions of  weather^  Yet  that  is  what  my  learned  friends 
would  have  you  do,  and  I  call  your  attention   to  what  is 

60  stated  in  the  argument  in  chief  on  behalf  of  Great  Britain, 
referring  to  that  portion  of  it  entitled  "  Method  for  com 
puting  the  estimated  catch  "-at  page  82,  line  13— where 
it  is  said,  regarding  the  hunters  on  the  "Carolena"  :  "If 
these  four  men  bad  been  working  in  sealing  waters  dur- 
ing the  whole  of  August,  the  weather  and  other  conditions 


?K 


(Mr.  Lansing's  Argument.) 

Ik  I  III/  similar  to  timt  experienced  bi/ the  '  Marf/  Ellen.'  ^' 
Niw',  in  view  of  Diagram  No.  5,  vvhicli  shows  tliat  tlie 
\vi  .ither  experienced  by  tlie  vessels  varied  so  nnich  in  the 
same  year,  that  assumption  in  the  British  argument  is 
ti.iiroly  unwarranted,  and  that  alone  onght  to  do  away 
Willi  the  metiiod  of  computation  proposed  by  our  learned 

fli.'IKls. 

[0  Tlie  evidence  fully  substantiates  what  1  have  said, 
namely,  that  Captain  McLean  is  corroborated  in  every 
I'ailiculai'  of  his  testimony  as  to  sealing  by  the  other  wit- 
iioscs  called  before  this  tribnnal  who  have  had  sntficient 
p\|ierience  to  make  them  competent  to  testify  upon  the 
|ii  lilts  in  regard  to  which  McLean  gave  evidence.  I 
[ill tlier  assert  that  from  the  evidence  1  have  read,  the 
ri'iulnsions  leached  in  our  printed  argument  aie  fully 
>ii-tained.  1  call  your  Honois' attention  to  what  is  said 
at  page  rioS; 

-'■'     ■■  Tlie  coiitiuf^oncioH  wliu'li  enter  iuto  the  siieciilation  of  how  ninny 

■  -I'iil  skins  may  be  secureil  during  a  huutinp;  cruise  i"  Bei-ing  Sea, 
•  which  have  been  presented   in  detail   with   the  substantiating  evi- 

•■  deuce,  may  be  brieHy  summarized  as  follows:  The  gmnlluess  of  the 
•■  vessels  enii)loyed;  the  extraordinary  perils  of  a  voyage  to  and  cruise 
"  111  Bering  Sea;  the  experience  and  skill  of  the  master,  hunters  and 
•■  crew;  the  unreliability  of  Indian  hunters  through  their  ignoi-anco 
'■  ami  superstition;  the  frequent  inclemency  of  the  weather;  theprev- 

■  iilcncy  of  fog  and  rain;  the  condition  of  the  animals  when  hunted, 

■  and  the  uncertainty  of  finding  seals.  These  contingencies,  the 
'■  I'uited  States  claim,  are  of  such  a  nature  as  to  make  impossible  any 

method  of  com]>uting  an  estimated  catch  which  will  be  just." 


;o 


!'■ 


! 


'■     ^    b 


»l    >\ 


1^      I 


ii|! 


At  4.15  p.  M.  the  Commissioners  rose. 


;rf<   ;■ 

f' 

' 

if 

■    I 


l^' 


10 


Commissioners  under  the  Convention  of  February  8. 

1896,  between  the  United  States  of  America 

and  Oreat  Britain. 

Legislative  Council   Cliainber.  Provincial   BuiMiim. 
Halifax,  N.  S.,  September  IT),  isjit 

At  lU.;Ui  A.  M.  the  Coniniissioiiers  took  their  seats. 

No  Defined  "  Skalino  Gkounds  "  in  BuHmNct  Ska. 

Mr.  Lansing:— When  the  Commission  rose  yesteidiv 
afternoon  I  had  finished  n)y  discussion  of  the  uncert  uii 
character  of  seal  hunting,  and  I  now  propose  to  t;ike  ii|) 
another  one  of  the  contingencies  which  is  dealt  with  in  omi 
argument  under  the  heading,  "No  Defined  'Senlin- 
Grounds  '  in  Behring  Sea." 

In  the  opening  part  of  that  portion  of  our  brief  a  eni: 
cism  was  made  on  the  use  of  the  words  "seal  fishing"  :iiii| 

-o "  seal  fisheries."  They  have  been  constantly  eniplov  I 
here  and  elsewhere  through  misconception  of  the  methn  U 
employed  in  taking  seals  and  through  the  thouglitii-> 
adoption  of  common  error.  In  fishing,  is  there  any  nects 
sity  of  finding  the  fish  asleep,  or  of  being  careful  not  \,t 
disturb  them?  Is  there  any  necessity  of  ajjproacliin:; 
them  froni  the  leeward?  Is  it  required  of  fishermen  in 
be  particularly  expert  in  determining  whether  the  fisli  aiv 
slumbering  or  not,  or  is  there  any  demand  for  peculi;n 
accuiacy  of  marksmanship  with  gun  or  spear?     Do  tlnv 

.50 pick  up  fish  one  at  a  time  here  and  there,  or  do  they  taiv' 
them  in  their  nets  by  thousands,  andean  they  follow  a 
wounded  fish  and  have  perhaps  twenty  opportunities  to 
secure  it?  It  seems  to  me  that  our  criticism  is  entirely 
just;  that  there  is  no  more  likeness  between  seal  huntin;; 
and  fishing  than  there  is  between  duck  shooting  ami 
fishing.  On  the  other  hand,  there  are  a  great  many 
similarities  between  duck  hunting  and  seal  huntini;. 
The  mark  is  often  very  much  the  same.  We  have  tin' 
witness  Cotsford.  examined  by  my  learned  friend,  test  11  v 

40  ing  directly  upon  this  point.  He  is  asked  at  pnge  li^n  uf 
the  Kecord,  line  tiS: 

"  Q.  Do  1)011  Ihink  il  niuti'ti/  iin  iliffiiiiU  lo  a/ioot  n  sp.nl  (ixlfeji  mi  llf  "■(/•  /• 
"  ^(.s-  lo  slioiitu  i/idl /{i/iiiij,  iril/i  II  ritii; ;  wliich  ilo  yon  tliink  would  lie  \\\i- 
"  harder?  A.  1  lliiiik  ahoiil  Ihf  mimf  mi  thu  wnler,  hecmise  i/oii  li'iv  iIk 
"  ilouhle  miiliiiii  ;  Ihn  bin/  isjli/tiii/  ;  Ihnboiit  in  in  iiioHon  ;  but  I  tliinli  thu 
"  bird  "vonld  be  tlie  hardest  of  the  two  ;  at  least,  1  am  uot  so  well  m- 
"  onstomed  to  shooting  birds  as  I  am  seals.  Therefore  I  think  liirds 
"  would  be  the  hardest  of  the  two." 

Von  will  see  that  in  nearly  every  instance  of  seal  hum 
5oing  we  have  found  that  the  water  is  comparatively  rough. 
and  that  the  mark  is  uncertain  an  1  small,  for  a  seal  sleeps 
on  his  back,  with  only  bis  nose  and  hind  Hippers  appearini; 
above  the  waves.  lie  is  therefor*-  in  motion  on  the  ronuli 
sea;  the  b(»at  is  also  in  motion,  and  the  marksman  nui-t 
be  an  accurate  and  skillf-.d  one  who  can  strike  such  a  mark. 
And  when  the  animal  itself  is  awake,  "traveling,"  wiiii 
only  Its  h"ad  above  the  waves,  the  mark  is  still  more  ditli- 
culc.  Seal  hunting  is  nuich  like  sea-otter  Imnting,  and. 
because  the  otters  resort  to  certain  j)laces  having  cerl.iin 
6oj)eculiar  climatic  conditions,  we  do  not  speak  of  any  |iai- 
ticular  locality  where  they  can  lie  found  in  abuntlainv. 
Suppose  a  vessel  was  interrupted  in  sea-otter  himlin,:;, 
could  it  be  asserted  that  the  probable  catch  of  that  vcsmI 
could  be  compntod?  It  is  common  knowledge  that  tln' 
industry  is  a  matter  of  speculation.     A  vessel  may  retiiiii 


639 


(Mr.  Lansing's  Argument.) 

witli  two  otters,  or  perhaps  seventy-five,  each  skin  worth 
from  $200  to  $800.  Of  course  there  is  an  op|)ortunity  to 
make  enormous  profit,  hut  it  is  merely  a  chance  whether 
till'  venture  is  remunerative.  That  is  the  position  we 
assume  in  regard  to  seahng.  It  is  an  opportunity  and  a 
cliMUce  of  i)rotit,  hut  no  certainty. 

We  also  adverted  in  our  printed  argument  to  the  fact 

lotliat  tlieie  were  no  fishing  hanks  in  Bering  Sea,  and  in 
answer  to  this  my  learned  friend  referred  to- the  testi- 
mony of  Laughlin  McLean,  the  witness  cited  in  so  many 
instances  on  helialf  of  Great  Biitain  e.rcept  ns  to  thednra- 
linii  of  the  season.  He  is  (juoted  as  saying  that  there  are 
•sand  hanks"  in  Bering  Sea,  hut  he  does  not  tell  your 
Honors  where  these  hanks  are  to  he  found;  and  of  the 
liundred  witnesses  produced  at  Victoria,  no  other  one 
s|i(aks  of  these  lianks  of  sand.  I  suhmit  to  you  Exhibit 
No.  7!S,  Great  Britain,  which  is  a  chart  of  Bering  Sea.     I 

joask  your  Honors  to  examine  the  locality  pointed  out  by 
Mr.  Bodwell  as  peculiarly  a  sealing  ground,  and  I  ask  the 
Itarned  Senior  Counsel  in  reply  to  point  out  a  single  point 
in  tliat  area  where  the  water  is  less  than  300  feet  in  depth 
or  where  it  is  usually  less  than  1,000  feet. 

The  next  assertion  made  in  the  oral  aj-gument  of  my 
(riend,  Mr.  Bodwell,  was  that  the  position  of  the  United 
States  to  day  is  opposed  to  that  assumed  before  the  Paris 
I'l  ihunal,  and  that  the  United  States  before  that  Tribunal 
obtained  inserted  in  the  regulations  formulated  by  the  ar- 

3obitrators  a  prohibited  zone  about  the  Pribylotf  Islands.  I 
snbniit  that  my  learned  friend  is  in  error.  This  is  the 
second  criticism  made  as  to  the  position  of  the  United 
States  taken  upon  the  facts  presented  at  Paris.  It  is  the 
second  time  that  it  has  been  alleged  that  the  United 
States  have  changed  their  position;  and  this  second  asser- 
t  ion  is  as  erroneous  as  I  have  shown  the  first  to  be.  There 
has  been  no  change.  The  United  States  not  only  opposed 
a  prohibitive  zone  from  the  outset,  but  it  was  Great 
Britain  that  pioposed  it,  and  I  charge  Great  Britain  before 

40 this  High  Commi.ssion  with  abandoning  that  position 
wiiich  she  so  strenuously  advocated  before  the  Paris  Trib- 
unal. I  refer  your  Honors  to  page  258  of  the  Case  of  the 
United  States  (found  in  Volume  2  of  the  Ai.'orican  Re- 
piint)  where  the  position  assumed  is,  that  any  v..>ne  which 
(lid  not  include  the  entire  Sea  would  be  valueless;  and  I 
also  read  the  following  from  the  American  Commissioners' 
repoi  t  contained  in  the  same  volume  at  page  374.  They 
say:  "  Among  other  plans  that  have  been  suggested  is  the 
"  establishment  of  a  zone  surrounding  the  Islands  outside 

rO'oi  which  pelagic  sealing  might  be  allowed,  and  inside 
"  of  which  no  sealing  vessel  should  be  permitted  to  go. 
"This  plan  has  the  advantage  of  being  satisfactory  if 
'  properly  executed.  If  the  radius  of  this  protected  area 
"  is  great  enough  to  insure  the  exclusion  of  pelagic  sealers 
"  trom  Behring  Sea  and  the  North  Pacific  Ocean,  it  would 
"  lie  entirely  acceptalde.  But  when  the  radius  of  ten 
miles,  or  thirty  miles,  or  even  fifty  miles  is  suggested, 
"  the  impression  is  strong  that  such  a  proposition  is  not 
'  intended  to  be  seriously  considered." 

Now,  to  show  the  position  of  Great  Britain  on  that 
|U(  stion,  I  will  read  from  the  British  Commissioners'  re- 
101 1,  at  pape  46,  Volume  6,  American  Reprint. 
.Mr.  Bodwell: — These  are  not  in  evidence. 
Mr.  Lansing;— I  am  simply  replying  to  your  statement, 


(>o 


?>l!  ■  I 


'm 


:'   ' 


■t'  'I' 
:i  ■ 


tt 


(tin 

(Mr.  Lansing's  Argument.) 

of  which  there  is  no  evidence,  that  wo  have  changed  oi  i 
position. 

Mr.  Bodvvell: — If,  in  rejdy,  wei-e  1  from  other  portinns 
of  the  hooks  that  are  not  in  evidence,  there  will  not  lie 
any  ohjection? 

Mr.  Lansing:— If  my  friend  thinks  he  can  substantial!' 
his  earlier  statement  by  wiy  anthority,  I  am  willing  th  it 
10 he  should  make  the  attempt,  using  any  book,  affidavit, 
letter  or  document  he  may  see  fit.     I  read  now  from  pai  i 
graph  155: 

"  In  view  of  the  actual  condition  of  seal  life  as  it  presentn  itself  to 
"  us  at  the  present  time,  we  believe  that  the  requisito  degree  of  ijri- 
"  tection  would  bo  afforded  by  the  application  of  the  followinir 
"  specific  limitations  at  shore  and  at  sea:  (n.)  The  maximum  uuiiiImt 
"  of  seals  to  be  taken  on  the  Pribyloff  Islands  to  be  fixed  at  50,0(in. 
"  (A.)  A  zone  nf  protected  waters  to  be  establinhetl  extending  to  n  distance  uf 
"  twenty  nautical  miles  from  the  islands." 

20  And  in  accord  with  these  suggestions  of  the  Briti-h 
Commissioners  we  find  one  of  the  British  arbitrators,  Sir 
John  Thompson,  in  Aiticle  4  of  his  draft  of  regulations 
submitting  the  proposition  for  a  prohibitive  zone 
These  regulations  proposed  are  found  in  protocol  54,  at 
page  60,  of  Volume  1,  of  the  American  Reprint.  We  find 
in  the  same  i)rotocol  legulations  proposed  by  one  of  tlio 
American  arbitrators,  and  there  is  no  suggestion  of  a  zone 
about  the  Islands.  The  prohibitive  zone  was  subsequently 
adopted,  but  both  of  the  United  States  arbitrators  votill 
30  against  it. 

From  the  first  the  United  States  have  held  that  there 
was  no  limited  area  where  seals  were  found  in  more 
abundance  than  in  another,  and  theiefore  no  basis  for  a 
prohibitive  zone;  and  the  evidence  taken  by  this  High  Com- 
mission has  fully  substantiated  that  position.  My  learned 
friend  has  told  you  that  vessels  seldom  take  seals  within 
forty  or  fifty  miles  of  the  Islands.  Has  not  the  position 
of  Great  Britain  changed  since  the  tribunal  of  Paris'  Sliu 
asserted  there  that  a  prohibitive  zone  of  20  miles  was  all 
40  the  ])rotection  needed  to  preserve  seal  life,  and  now  .-ilie 
says  tliat  within  the  prohibitive  zone  proposed  by  her 
commissioners  and  arbitrator,  there  ate  few  seals  to  be 
found.  Tlie  United  States  have  been  consistent  and  Great 
Britain  has  not. 

I  tuin  now  to  the  evidence  relied  upon  by  Mr.  Bodwtdl 
in  discussing  this  subject.  The  migration  charts,  as  we 
have  sliown  in  our  jtrinted  argument,  are  of  no  value. 
The  data  from  which  tiiey  were  made  relate  entirely 
to  the  sea^s  outside  uf  Bering  Sea,  and  therefore  they 
50  cannot  be  considered  by  your  Honors  as  any  evidence 
of  a  peculiar  abundance  of  seals  in  any  locality  in  Bering 
Sea.  Furthermore,  it  was  shown  at  the  time  when  tiiese 
charts  were  offered  in  evidence,  that  the  United  States 
did  not  use  eitlierof  them  at  Paris,  but  submitted  another 
chart  to  the  distinguished  arbitrators. 

Sir  C.  H.  Tu|)per:  Which  chart  does  my  friend  say  was 
not  used  at  Paris? 

Mr.  Lansing:  Neither  of  the  migration  charts  were  used. 
Theie  was  one  specially  prepared,  and  was  the  only  one 
<^Oused  before  that  tribunal. 

Sir  C.  H.  Tupper.  By  the  United  States? 

Mr.  Lansing:  Yes 

The  sealing  chart  in  the  case  of  the  United  States  sup- 
ports our  contention  here.  It  shows  that  the  seals  are  dis- 
tributed throughout  that  portion  of  the  Sea  over  which 


Ml 

(Mr.  Lansing's  Argument.) 

\v(  claim  the  females  wander  in  search  of  food.  This 
(lint  has  oeen  dealt  within  our  printed  arf>;nment  and 
fill  I  her  reference  to  it  is  unnecessary,  except  to  call  your 
att  ntion  to  the  fact  that  the  chart  is  conventional  and 
tliii  the  dots  representing  seals  are,  of  course,  much 
lai;4i'r  than  the  seals  would  be  if  drawn  by  th«  scale,  and 
fill  llier,  that  where  a  collection  of  these  dots  appear  the 

losciils  were  not  seen  at  one  time,  hut  were  distributed 
aliMig  a  vessel's  course  for  a  day's  run. 

Sir  C.  H.  Tup|)er: — Would  my  learned  friend  object  to 
niv  making  a  statement  so  that  there  will  be  no  confusion 
on  tlie  lecord  in  regard  to  the  charts.  When  we  refer  to 
till  ISO  charts  in  the  United  States'  Case  we  are  referring  to 
tlicni  as  charts  forming  part  of  the  United  Slates'  Case 
served  upon  the  agent  of  Great  Britain  and  placed  in  the 
hands  of  the  arbitrators  under  that  tieaty.  In  making 
that  statement  I  have  no  hesitation  in  saying  that  in  ad- 

20(]ition  to  that,  during  a  portion  of  the  argument,  there 
was  another  chart  produced.  \'y  reason  for  referring  to 
these  as  charts  of  the  United  States  is  because  they 
fdiined  pait  of  their  Case  served  upon  the  agent  of  Great 
Hiitain  and  presented  at  Paris. 

.Mr.  Lansing:— Does  Great  Britain  now  assert  that  these 
migration  charts  deal  with  anything  inside  Bering  Sea? 

Sir  C.  H.  Tupper:  -I  do  not  want  to  go  into  that.     I 

only  refer  to  a  matter  of  fact.     They  speak  for  tliemselves. 

Mr.  Lansing: — A  reference  to  thedata  from  which  these 

30(  harts  were  made  show  that  they  only  deal  with  the  seals 
onlsiih  Bering  Sea  and  have  nothing  to  do  with  the  pres- 
ent controversy,  which  is  confined  to  Bering  Sea;  ar  1  to 
use  them  here  can  only  result  in  confusion  and  error. 

With  reference  to  the  charts  showing  seizures  and 
warnings  in  188t?,  18H7  and  1881>,  I  call  your  attention  to 
tile  fact  that  Unimak  is  the  most  eastern  pass  of  the 
Aleutian  Islands;  that  that  was  the  pass  through  which 
Vessels  usually  entered  the  Sea  when  on  a  seahng 
voyage.      It    was,    therefore,    natural   that   the   cruisers 

40sli(iiil(l  seize  the  schooners  between  the  Pribylotf  Islands 
ami  this  pass.  You  will  find  another  thing  when 
examining  this  chart,  and  that  is.  that  as  a  rule,  thf 
later  in  ihe  season  the  further  away  from  the  Aleutiai 
Islands  the  seizures  and  warnings  were  made.  This 
fact  may  be  accounted  for  on  the  supposition  that  the 
vessels  bad  extended  their  cruises  to  the  west  of  the  Isl- 
aiiils.  not  finding  seals  elsewhere.  Yonr  Honors  will  also 
liiar  ill  mind  that  the  collection  of  evidence  that  I  sub- 
milted  yesterday  from  the  list  of  Collector  Milne,  shows 

50  that  the  vessels  were  smaller  in  ISSCJand  1^7  '  iian  in  sub- 
setiiient  yeais,  and  it  was  very  natural  tl.ii  > -nail  vessels 
wmild  remain  between  the  Pribylotf  and  Aleutian  Islands, 
hi  ( aiise  they  would  be  then  less  than  100  miles  from  land, 
and  in  case  of  disaster  or  storm  they  could  run  to  shelter. 
\\  Inn  larger  vessels  were  employed  they  extended  their 
cruises  and  covered  more  sea,  showing  that  these  earlier 
'  ^;r(iiinds"  were  not  considered  peculiarly  profitable  by 
the  sealers  themselves. 
In   regard   to  the  cliarts,    showing   the  courses  of  the 

•^0  I  nited  States  cruisers,  four  of  which  are  in  evidence,  and 
winch  were  presented  in  the  original  case  of  the  United 
Si.iies,  at  Paris,  you  will  find  that  hardly  any  of  them 
ciiur  the  same  ground.  If  there  is  any  locality  where 
se  lis  are  peculiarly  abundant  you  would  naturally  expect 
til  lind  the  courses  of  these  cruisers  over  almost  the  same 


i(  !• 


!'     \i 


lie 


1^ 


l|i 


tl4'J 

(Mr.  J/onHing's  Argmnont.) 

coiitiiied  area,  but  it  was  not  ho.  An  examination  of  iIr. 
charts  shows  that  the  ciiiiscrs  0()v*>retl,  in  nearly  ov.  ly 
case,  an  entirely  (lirt'iM'tMit  sea  area. 

In  regard  to  the  Heahnjj;  chart  in  t\w  United  States  Conn. 
ter  Case,  its  conventional  character  should   he  horni    in 

mind,  nnd  tliat  where  you  see  a  hunch  of  seals,  say  1 i| 

more,  that  tliat  re|)n'sents  the  numht>r  seea  from  the  (|( .  |< 
loof  one  vessel  during  its  cniise  of  twenty-four  hours.  Tiny, 
therefore,  should  he  strung  along  the  line  of  Hio  criiiso 
rather  than  brought  together  in  n.  (tluster  as  they  nc. 
That  is  evident  from  the  fact  that  they  iire  taken  tiom 
ohservatioMs  made  in  Bering  Sea  by  the  cruisers  in  \^\f2. 
The  chart  showmg  the  (;ruises  of  the  American  iiiv.il 
vessels  is  chart  nund)er  4  of  the  Counter  Case.  In  that  eh m 
you  will  observe  that  the  principal  cour.se  of  the  vessil-  is 
from  Unalaskatothe  Hribyloff  Islands,  which  was  natiiiil, 
for  the  naval  lieadquarters  were  at  Unalaska,  and  the  iim 
20  was  made  to  the  I'ribyloff  Islands  to  obtain  informal  iiii 
as  to  whether  sealing  vessels  had  been  seen  in  the  localitv. 
The  conuuanders  of  th«!  vessels,  knowing  little  of  vi'.ii 
hunting,  expected  that  the  schooners  would  goneiitu  tlir 
Isla'ids  in  search  of  seals.  Hut  we  find  from  the  evidence 
before  your  Honors  that  that  was  not  the  comnion  coinse 
of  a  sealer,  nor  do  our  learned  friends  now  assert  that  (he 
waters  immediately  about  the  Islands  were  the  bfst  si  ,!|. 
ing  groun<is. 

Su-  C.  H.  Tupper:— (live  us  the  reference  to  the  sliiin 
3oment  that  these  vessels  ran  t"  tlie  l*ril)ylotf  Islands  for 
certain  i)arposes. 

Mr.  Lansing. — I  draw  that  ision  from  the evidcme 

and  well-known  facts. 

Sir  C.  H.  Tupper:— It  is  a  conclusion  only. 

Mr.  Lansing:  — Ves,  and  a  natural  one,  based  on  Uiniwl- 
cdge  conunon  to  us  all. 

I  now  refer  to  the  Tow  nsend  chart,  which  is  discu^-siii  at 
page  :il4  of  our  argument;  and  I  call  particular  attentidu 
to  the  fact  that  the  data  for  1SS«)  and  1887,  platted  upon 
40  that  chart,  are  derived  from  the  logs  of  the  "  Mary  Elltii" 
and  the  "  Favourite."  The  "  Favourite,"  which  has  a  claim 
before  your  Honors  aird  which  the  learned  counsel  ikiu 
assert  left  the  waters  where  .seals  were  abundant  a  tier 
being  warned,  is  used  her'e  to  establish  the  location  of  stal- 
ing groirrids  in  August,  issd,  and  she  was  alleged  to  liave 
beerr  warrred  at  midniglit  of  the  I'd  of  that  month.  That 
one  of  tiiese  clairrrs  is  irrrtenable  is  apparent.  In  disciissiiiij 
this  chart  in  their'  printed  ai'gnrnent  in  chief  my  leaniiii 
friend.s  stated  that  it  showed  that  seals  vvei'e  taken  in 
joSeptember  and  they  saw  fit  to  italicise  the  word  "  S,  p 
tember."  Fr-orrr  all  the  data  relating  to  the  years  lss:i  to 
1893  which  were  collected  by  Mr.  Townsend,  there  are 
but  two  ihifes  that  show  catches  of  seals  in  Septerrrlicr'. 
The  italics  are  entirely  unwarrarrted  and  misleading.  I'lre 
second  Townsend's  chart  is  for  the  year  18t»4,  and  supports 
the  claim  of  the  United  States  as  to  the  extensive  area  of 
.sea  over  which  the  seals  roam  in  their  food  excursidiis. 
Now,  I  assert  with  confidence  that  these  charts  r)eai'  out 
fully  our  contention  that  there  was  and  is  no  partic  lar  lo- 
locality  where  seals  are  to  be  found  in  peculiar  abu'iciame; 
and  that  they  wander  from  the  islands,  north,  souilr.  cast 
and  west,  extending  their  journeys  in  search  of  food  to  a 
distance  of  20U  miles  and  more  from  the  Pribylotfs.  TIh> 
evider)ce  for  these  pr'opositions  beside  the  charts  arc  vn\- 
lected  in  the  United  States  argument  at  pages  2J0 and :'-'>. 


114:5 


(Mr.  liniiHing'H  ArKiiinuiit.) 

1  will  not  rcfid  tlio  tostiiiiony,  oxcoptiiij;  th;it  of  four  wit- 
ni'ssos,  who  aro  liirgoly  '"lii'd  upon  by  (iioat  Britain  in  this 
I  iiiitrovcrHy.  I  will  ri'ad  first  whiit  Owon  Tliuniiis  said  of 
till'  seals  in  this  aroa.  wiiich  is  qnoted  at  payo  220  of  the 
L  nittid  Status  ar)<unii>nt: 

■•I).  How  iH  it  tliiit  voiir  cntch  wiih  liinitiMl  to  iibont  500  HkinH  iu 
■■  IHHH,  ou  the  '  I'lithtintlfi- •  in  tiio  IMiriiiK  H.-u  V  A.  Woll,  I  could 
••  not  Htrikf  the  HoiiJH;  I  couhl  not  ni-t  unioMj?Mt  tlit-ni,  I  HiippoHo." 

This  witness  was  pilot  on  the  "  Carolina,"  in  the  spring 

ol  issCt,  and  was  a  hunter  on   the   "  Black  Diamond,"   in 

I'liiing  Seii,  during  the  same  v»'ar;    ho  was  mate  of   the 

•  I'alldindor,"  in  1SS7;    master   of   the    "Pathfinder"  iu 

I "'SS,  and  master  of  the  "  Black   Diamond  "  in  IHS'.t.     Cer- 

iiinly  if  the  grounds  were  "  well  known   and  easily  de- 

tiii(d,"as  the  opposing  counsel  assert,  Thomas,  with  all  his 

experience,  would  have  known  their  location. 

I  will  read  also  the  testimony  of  0.  N.  Cox,  (juotod  at 

2i'|i;int'  221  of  our  argument: 

"  Q.   How  (lid  von  ftml  tho  hpiiIh  thoro  ?    A.  Hcattorcd  about. 
"  li.  Ou  oovtuiu  grouuilH  ?    A.  I   seldom   find   tlioui  on  the  Name 
"  uroundH." 

That  shows  very  evidently  that  it  is  a  matter  of  luck  and 
s|i('(ulation  where  tho  seals  are,  and  whore  they  can  bo 
lound. 

1  also  read  from  an   affidavit  of  Captain   VV.  K.  Baker, 

uliich  he  made  at  Victoria  in  ls<)2,  before  the  Collector  of 

.^jt'ustoms,  and  which  he  staled  before  this  Commission  to 

he  true.     Tho  portion  relied  on  is  set  out  at  page  222  of  our 

aigument;  he  says: 

"  I  have  noticiul  iiIho  that  they  ftho  soalw]  ciiaugo  thoir  grouud 
••  (rem  time  to  time;  and  wliuro  you  ttud  thoiu  tliis  year  you  may  not 
"  tliid  thom  tho  uo.'ct.  Thiw  was  vt>ry  remarkablo  duriun  tho  voar  18'J0, 
"  for  the  Healn  wert?  all  found  to  tlie  easlwdrd  of  tlie  I'ribyoff  Islaudf, 
"  while  in  the  former  years  they  wore  all  found  to  the  westwai'd." 

And  now,  following   that   wo   have   the   statement  of 
(':iptain   William   Cox,    given   in   evidence    before    your 
40  Honors,  and  quoted  at  the  same  l)age  of  our  brief: 

"Q.  Where  did  you  fish  in  1S90?    A.  I  was  all  over  the  Sea. 

"Q.  Did  you  (fo  to  the  westward  of  the  islands?     A.  I  did,  sir. 

"  Q.  How  far  east  did  you  n<>V    A.   About  ninety  miles. 

•'Q.  Did  you  cateh  seals  there?    A.  I  did  not  see  any." 

(And  this  was  right  in  the  locality  where  Bakor  said  tho 
seals  were  found  that  year. ) 

"  Q.  In  what  year.     A.  In  1890. 

"  Q.    Yen  ciiiiyhl none  eusl?     A.   None." 

,0  Certainly  it  is  a  significant  fact  that  these  two  witnesses, 
liotli  .successful  sealing  captains,  testified — one,  that  all 
tlic  seals  were  found  iu  l^ito  to  the  eastward  of  the  islands 
Mild  the  other  that  ho  found  none  there— it  is  a  significant 
fact,  for  it  shows  conclusively  that  when  Baker  was  east  of 
the  Pribyloflfs  the  seals  were  there,  and  when  O'Leary  wa» 
ill  the  same  locality  the  seals  wore  not  there.  I  ask  i;hf; 
counsel  for  Great  Britain  if  these  are  "  well  defined  "  seal- 
ing grounds. 
iUit  the  conclusions  which  have  been  reached  by  my 

6o learned  friends  in  their  oral  arguments  are  very  ditterenf. 
(vom  those  urged  in  their  printed  brief,  and  now  ap])ear 
to  1)0  much  the  sanie  'is  those  reached  by  tho  United 
States  from  the  first.  They  now  claim  that  the  area  where 
t  lie  seals  were  found  is  between  longitude  105°  to  173°  west, 
111(1  latitude  54°  to   58°  north,  while  tho   United  States 


ill 


li:''ti 


i*     i< 


044 


si 


(Mr.  Lansing's  Argument.') 

nssertt'd  in  tlioir  printed  argument  tluit  tho  limits  oxtendtM] 
from  l(i5"  to  175°  west— I  inigiit.  1  think,  from  theevidciK c, 
change  the  last  parallel!  to  17(5"— and  from  58"  to  T)!*'  iioi  ih 
latitude;  and  on  this  point  I  call  your  Honor's  atteni  imi 
to  chart  Xo.  4  in  the  United  States  Counter  Case,  in  tlic 
Paris  Aihitration.  and  also  to  the  seiding  chart  in  (he 
same   volume.       My   learned    friend,   Mr.    Hodwell,    v]\- 

lodeavored  to  make  cajntal  out  of  the  fact  that  the  r):!i(l 
parallel  was  helow  Uniniak  Pass.  It  scarcely  sei-ms 
necessary  to  point  out  that  west  of  that  Pass  the  line  ciits 
across  t'le  lower  extremity  of  Behring  Sea;  and  there  is 
ahundant  testimony  that  seals  were  seen  and  taken  tlieiv. 
In  regard  to  the  distrihution  of  the  seals  in  this  lai!;t' 
area,  we  have  a  statement  from  th(>  Iteport  of  the  Britisii 
Connnissioners,  in  whicli  they  assei  ted  at  page  (')4,  voUhium;. 
of  the  American  Keprint,  thato»(  orcnKje  of  oulji  tiro  seals 
to  flie  .s7/»rt/c  link'  are  found  in  Behring  Sea,  in  the  places 

2o  wnere  they  are  most  abinidant.  Now,  I  submit  that  if  yeiir 
Honors  were  called  upon  to  determine  the  probable  results 
of  duck  shooting  wheio  ducks  were  not  more  plentiful  than 
two  to  the  square  mile,  the  number  would  be  zero,  and  yet 
there  is  a  chance,  but  only  a  chance,  that  a  man  might  gel 
a  largo  number  of  ducks  in  tiiat  area,  an  area  of  over  KHi.odu 
square  miles. 

I  also  call  attention  in  connection  with  this  qiiestion  of 
tiie  distriitution  of  seals  at  sea  and  their  abundance  iri 
particular  localities,  to  the  evidence  of  J.  H.  Douglas,  tlio 

30  United  States  marine  jHlot,  which  our  friends  cited  in  their 
printed  argument,  and  which  we  have  commented  upon 
in  our  reply.  The  statement  relied  upon  reads  as  follows: 
"That  the  seals  aie  at  all  times  more  plentiful  I  etvv'en 
"  Unimak  Pass  and  the  said  islands  in  a  track  thirty  Miiles 
"  wide  which  seems  to  be  their  highway  to  and  from  the 
"  islands."  Now,  my  friend  Mr.  Bodwell  disclaims  that 
that  was  used  for  any  purpose  except  for  the  month  of 
June. 

Mr.    Bodwell:  — No,   I  made  myself  dear.     If  you  read 

40  what  1  said  my  meat  ing  is  clear. 

Mr.  Jjansing: — I  have  read  what  you  said,  and  I  have 
stated  the  substance  of  it.  Here  is  your  language  (Mi. 
Boilwell's  argument,  page  ;iL'2,  line  1):  "  The  witness  states 
"  there  was  a  stream  of  seals  i)assing  through  the  Pass 
"and  going  to  the  Pribylotf  Islands,  irhc.ii  thei/ ii-cir  an 
"  llicir  joiinivji  to  till'  isldtidn.  All  the  oral  evident' 
"  demonstrated  that,  and  the  charts  indicated  it  as  well. 
"  But  ;it  that  time  tlie  seals  are  traveling  and  our  case 
"  always  has  been  that  you  cainiot  take    the  seals  very 

50  "easily  when  they  an-  traveling.  ( >in'  case  is  that  the 
"  lirineipal  hiuiting  was  done  after  the  si>als  had  reached 
"  the  islands  and  scattered  in  search  of  food."  WIkmi 
wiM'e  the  seals  "011  their  journt^y  to  the  islands;"  Why, 
ill  Jiiiw;  and  solids  statementof  Douglas  nni.st  have  been 
used  in  reftMcnce  to  that  month  only.  There  is  no  mis 
understanding  between  us.  If.  as  you  say,  this  statenn  nt 
applies  to  June,  then  it  has  no  bearing  on  this  case;  but 
who  for  a  moment  conceives  that  our  learned  friends 
offered  it  in  evidence  believing  it  to  be  immaterial  to  this 

60^'ontroversy  and   without  intending  to  use  it  to  show  an 
area,  where  se.Js  could  be  fnmid  in  abundance   by  the 
hunters?     We  understood  the  learned    counstd  and    ap 
preciated  his  oral  argument  on  this  point,  but  I  must  de- 
cline to  withdraw  my  assertion  or  to  modify  it. 

It  seems,  then,  that  our  friends  ui)on  the  other  side  now 


'11!   ■ 


646 

(Mr.  Lansing's  Argunient.) 

admit  that  tlie  seals  aro  not  tai<en  while  proceeding  from 
I'liiniak  Pass  to  the  Trihyloff  Islands,  hut  wliile  they  are 
s(  it  tored  ahout  over  the  Sea  in  search  of  food,  coming  from 
ami  returning  !o  tlie  rookeries  on  tlie  islands. 

Your  Honors  will  perceive  then  that  the  difference  he- 
tuct'Mtiieconiention  of  Gieat  Hritain  and  the  United  States 
at  the  piesent  time  is  this:  (xreat  Britain  asserts  tiiat  the 

lowaters  in  Bering  Sea  frequented  hv  sealscover  an  area  of 
between  ninety  and  one  hundred  thousand  scpiare  miles, 
winii' the  United  States  assert  that  the  area  is  one  hun- 
(Ircil  and  fifty  thousand  scpiare  miles.  I  do  not  conceive 
tluit  it  is  material  vliidi  view  the  Connnissioners  adopt, 
tu'cause  such  a  lai'g'>  area  cannot  he  said  to  he  a  "  well  de- 
fined "  sealing  ground.  The  portion  of  Bering  Sea  as- 
serted hy  the  United  States  to  he  that  over  which  these 
food  excursions  of  the  seals  extend  isecpial  approximately 
ill  area  to  the  North  Sea.  and  who  would  term  that  entire 

.?osea  a  "  fishing  ground  "?  ■ 

The  conclusion  reached  in  our  argument  at  page  227 
has  been  suhstantially  admitted  hv  our  learned  friends  in 
tlieir  oi'al  argument,  and  I  will,  therefore,  no  longer  oc- 
(iijiv  the  time  of  tliis  High  Commission  witii  its  (liscus- 
sidii. 

Duration  of  the  Skason. 

1  jwopose  to  call  your  Honors'  attention  hriefly  to  an- 
(itlier  contingency  which  nuist  enter  into  any  system  for 

jur(iiii|iiiting  an  estimated  catch,  and  that  is  the  duration  of 
tlieseasoK.  The  United  States  conceive  that  ai)proximato 
Mceiiiacy  can  he  I'eachedas  to  this  contingency  and  that  the 
time  when  the  scaling  season  in  Bermg  Sea  commenced 
and  closed  can  he  determined.  Tiie  suhject  is  not  alone  of 
luriiliar  importance  because  of  its  relation  to  tlu^  (juestion 
ef  an  estimated  catch,  hut  hecaus(>,  together  with  the 
time  occupied  in  a  return  voyage  to  Victoria  from 
iieiini,'  Sea  (whicli  I  have  already  discus'sed),  it  will  prac- 
tical!) fix  the  date  when  the  skins  seized  hv-  the  United 

4oStat(>s  would  have  been  placed  on  th(?  Victoria  market 
had  no  interference  taken  place;  and,  furthei'uiore,  in 
cases  of  detention,  if  any  sucli  are  found,  it  will  deter- 
mine, in  tlie  admeasurement  of  damages,  the  time  for 
wbieii  a  charter  value  should  be  allowed. 

1  do  not  propose  to  go  into  a  detaili'd  examination  of 
Ihe  evidence  upon  this  jioint.  or  of  the  criticisms  made  in 
tlie  oral  arguments  of  our  learned  friends;!  shall  leave 
lliat  to  my  associate;  but  in  .i' /ordance  with  the  sug- 
j^estidii  of  one  of  the  ('onunis>-ii>ners,  made  a   few  days 

■;oapi.  I  jiropose  to  confine  mv.st  it  to  isss  and  isito,  and  see 
whai  was  the  (((•//(«/ c,i7»('/-/V,/c  .IS  to  the  duration  of  the 
srasmi  111  fbc.s(>  two  years  there  were  no  seizures,  and 
it  eaiiiiot  be  claimed  that  the  voyagt>  of  any  sealing 
s(ii(i(ine!'  w;is  intiu'fei'cd  with.  Our  learni'd  friends  have 
il.nnied  that  is'.M)  was  a  had  season.  I  submit  that  we 
liave -^liown  tjiat  that  assertion  was  an  error,  or  at  least 
tlial  il  wascpiestionahle,  for  W(>  have  testimony  both  ways, 
liul,  it  it  were  true,  then,  aci-ording  to  their  theory  that 
a  vessel  remained  in  the  Sea  until  a  good  catch  was  made, 

'^otlie  sea.siiii  (if  IS'.Hi  would  have  been  unduly  extended,  and 
tliev  raiinot  complain  of  my  employing  the  data  for  that 

Ve.iV 

I  II  iM>  prepared  a  diagram  with  regard  to  the  duration 
el  tlie  season,  to  which  I  now  wish  to  call  your  Honors' 
ilti  ntioii.     It  is  marked  No.  4.     The  circles  show  the  Hist 


SHii 


i  ■i'l|l 


'I    i 


!'     I* 


64<( 


Itf 


vMr.  Lansing's  Argument.) 

and  last  "  lowering  days."  A  circle,  with  £,  dot  in  it, 
shows  that  the  date  of  entering  or  leaving  the  Sea,  and 
tiie  first  or  last  "lowering  days"  were  the  same.  The 
white  line  shows  the  number  of  days  tlie  vessel  wns  m 
the  Sea.  The  circles  at  the  bottom  of  the  lines  show  I  lie 
first  "lowering  days,"  and  the  circles  at  the  top  show  the 
last  "lowering  days." 

10  In  ISS'.t  we  have  marked  with  a  red  line  the  dates  of 
warnings;  and  I  also  wish  to  call  attention  to  the  cnii-e 
of  the  "  Molly  Adams  "  during  the  same  year.  Your  Hon- 
ors will  remember  that  the  data  with  regard  to  that  vessel 
was  given  by  Goudie;  he  testified  that  lier  last  "Iowlt- 
ing  day"  was  August  :i;'.rd.  but  that  she  remained  in  the 
Sea  until  October  Sth.  for  tiie  purpose  of  laidingtlie  lodk 
eiies  on  tl.e  Pribylolf  Islands.  The  vessel  was  in  cijin 
mand  of  tlie  notorious  "Sol"  Jacobs. 

From  this  diagrara  (No.  4)  we  can  calculate  the  avera;;e 

20 date  of  entering  the  Sea,  and  we  find  that  in  1S8S  it  was 
July  14th,  tliat  the  average  day  of  leaving  the  Sea  uas 
August  2()th,  and  that  the  duration  of  the  season  uas 
forty-four  days. 

In  ISlMt.  \vt>  find  tiie  average  day  of  entering  the  Sea  was 
July  iL'tli,  the  average  day  of  leaving  the  Sea  was  August 
•27th.  and  the  duration  of  the  season  was  forty-seven  (lay.s, 
For  i)otli  years,  tlie  average  date  of  entering  the  Sen,  uas 
July  i:'.tli;  the  average  date  of  leavinj.'- tile  Sea  was  August 
I'Ttii;  and  the  average  duration  of  tin;  sea.son  was  tnity- 

30  five  days 

( ir  we  can  reach  it  in  anotlier  way.  In  188H  there  ui're 
10  vessels  which  iiad  a  combined  sealing  season  of  4:i4 
days,  an  average  per  vessel  of  43.4  (hiys. 

in  IsiMi  there  were  17  vessels  with  a  sealing  season  of 
7t*(l  days,  an  average  per  vessel  of  40.0  days. 

In  isss  and  JSi»o  there  were  ^7  vessels  with  a  coniiiincd 
.season  of  l,±2i  days,  an  average  per  vessel  of  4r).;5,  wliicii 
is  the  same  as  the  average  weoi)lained  by  the  other  method 
of  computation. 

40  Now,  having  determined  the  average  duration  of  the 
season  for  these  two  years,  let  us  see  wliat  period  of  seal- 
ing is  claimed  by  our  learned  friends  for  the  vessels  wliicii 
weie  seized  oi' warned.  We  find  the  season  claimed  for 
the  "  Caiolena  ■' in  issi;  is  so  days;  the  "  Thornton."  til 
days;  the  "Onward,"  .">l  days;  the  "Favourite,"  57  days; 
the  "  Black  Diamond,"  (i;i  days.  In  18S7  we  find  the 
duration  of  the  season  assumed  for  the  compulation  of  the 
estimated  catcii  to  be  for  the  "  B'avouiite."  77  days; 
"Anna    Beck,"    so    days;     "Alfred    Adams,"   54    days; 

50  "  <'raie,"  01   days;  "  Dolphin,"  00  days;  "  Ada,"  0;{  days, 
and  the  "  Tiinmpli,"  41  d.;ys.     1  should  note  the  fact  that 
the  "  Triumph  "  is  f(  ui'tlayssimrt  of  tiie  average,  while  the 
"v   twenty   or   thirty  days  above  thi^ 
former   entered    the    Sea   late   in  the 
only  15  tons  buithen.     In  the  case  of 
issii,  the   claim    is   made  for  70  days; 
71    days;    tiie  "  Black    Diamond."  72 
of    the  "liily"   tliere   is   nothing  to 
detetniine   how  long  a  season    is  claimed;   the  "  Minnie," 

C^jSddnys:  the  "  Triumph."  !Mi  days,  which  is  twice  as  ioiij; 
as  the  average  for  the  two  years  1.S88  and  l8!Hi;  the 
"Ariel,"  S2  days,  and  the  "  Kate,"  74  days. 

Now  a  word  in  reference  to  the  last  "lowering  days." 
First,  witii  r 'gard  to  18,S0,  we  have  the  record  ot  11 
vessel-,  2 of  which  lemaiiied  in  the  Sea  after  August  25tli. 


others  are  genertil 
average.  But  the 
season  and  was  of 
the  "  Juanita,"  in 
the  "  I'atlifinder." 
days;     in  the    case 


(i-17 

(Mr.  Lansing's  Argument.) 

and  I  "lowered."  In  1888  we  have  10  vessels,  and  4  were 
in  ilie  Seaafter  August  25th,  and  all  "lowered.''  In  1889, 
thr  year  when  warnings  ocxurred,  there  were  H  vessels  in 
the  Sea,  4  of  them  remaining  until  after  Augus^t  25th,  and 
only  one  "lowering."  In  1890,  17  vessels  were  in  the  Sea. 
and  10  remained  until  after  August  25th  and  rt  "  lowered." 
Now,  take  another  date,  Septeniher  1st.  In  1880,  no 
lovessels  remained  in  the  Sea  until  ihat  date,  and,  of  course. 
iiono  "lowered."  In  1887,  two  remained  in  the  Sea,  but 
UdiH'  "  low^ered."  In  1888,  three  remained  in  the  Sea,  and 
one  "lowered."  In  [8!^y,  two  remained  in  the  Sea,  but 
neither  "  lowered."  In  Lsyo,  seven  remained  in  the  Sea, 
and   we  have  the  record  of  onl}' three  actually  "  lower- 

u:g.'" 

Now,  what  do  we  find  in  188H  was  the  average  last 
••lowering  (lay  "  for  the  eight  vessels  of  which  we  have 
the  record?  (1  take  188^,  as  I  have  said,  because  in  that 
joveav  and  18tt0  there  was  no  interference  with  the  sealers.) 
We  find  the  avci'age  was  August  22d.  In  1890,  for  the 
twelve  vessels  of  which  we  know  the  last  "lowering 
(lay,"  the  average  was  August  2-lth.  I  merely  desire  to 
call  these  facts  to  the  attention  of  your  Honors  without 
ciiniinent,  as  they  determine  conclusively  the  duration  of 
ti\i'  sealing  season  in  Bering  Sea,  and  I  challenge  my 
learned  friends  to  meet  the  issue  scjuarely  when  closing 
their  argument. 

Value  of  Vksski.s. 

1  now.  propo.c;e  to  deal  as  liriefly  as  possible  with  the 
question  of  the  value  of  the  vessels  seizetl.  Without  dis- 
tussing  till'  legal  (|uesti()n  as  to  how  the  value  of  these 
vessels  sliduld  he  determined,  1  shall  assume,  in  discussing 
the  evideiK^e,  that  tli(>  I'liited  States' contention  is  estah 
lisiied,  namely,  that  the  measuii'  of  damages  in  each  of 
tlie.se  cases  of  total  loss  should  be  the  market  price  at  the 
poi  t  ot  departure  of  the  ves  el  in  the  condition  she  was  at 
the  time  of  her  seizure.  This  was  the  rule  maintained  by 
Y'lhf  United  States  from  thefiist,  ami  it  was  ilie  rule  origin- 
ally proposed  l)y  our  learned  f  i  ieiids  on  the  other  side,  but 
troiii  which  tlu'y  have  now  deiiaiteil.  The  l\'ecord  dis- 
closes the  position  which  tlun'  took  during  the  early  ses- 
.'^iciiis  at  Victoria.     1  read  from  page  lo;^; 

■•  Q.  Now,  as  a  matter  of  fact,   were   yoii   ilesirouH  of  selling  this 

•  s<li(ioiior,  tlic  '  Carolcua'?     A.  No,  I  was  not;  I  liought  the  '  PatL- 
"  tiiuU'i' '  in  aildition  to  the  '  Caioleiui.' 

"  Tlio  ('oiniiussioucr  ou  tbc  i)art  of  tlje  United  States  : — Mr  Peters, 
"  is  tliat  eviileuoe  tjoiug  to  iicl})  as  in  tliis  ease,  or  are  yoii  getting  it 
"  ill  for  luiotlier  ease  ? 
~"  "Mr.  Peters  :— When  we  come  to  get  at  the  value  ot  these  sliips, 
'■  it  is  almost  n(eessar,v  that  we  shoulil  look  at  the  value  of  some  other 
•■  sliii)s  liesidos  the  ouo  we  are  dealing  with.  One  may  say  tliat  the 
■  '  Caroleua  '  is  worth  :S4,(KH)  and  another,  iierhaps,  ?3,00(l,  ami  we 
"  I  nil,  ]ierhap8,  get  at  her  exact  value  oud  see  which  of  them  is  telling 
"  tlie  truth. 

■■  The  Coinniissioner  on  the  part  of  the  United  States  : — If  you  are 

•  gouig  to  show  the  sales  of  other  vessels,  you  ought  to  prove  their 
''  'oudition,  tonnage,  i^e. 

"  Mr.  Peters  : — !•  am  j.-repared  to  do  so. 

•  The  Ciommissioue'  on  the  part  of  the  United  States  : — Do  you 
'■  think  we  should  he  helped  by  that  '! 
'"'  "Mr.  I'etors  : — If  you  look  at  the  ease  made  on  both  sides  in  this 
■'  piirtiiMilar  matter  you  will  see  there  is  a  great  divergence  of  opinion 
'  !!>'  lo  wliat  these  sealing  vessels  are  worth.  We  wish  to  refer 
"  'let  only  to  the  actual  schoimers  in  dispute  here,  but  also  to  some 
"  ^ichooiiers  which  are  not  in  disimte — bolli  American  schooners  and 
"  English  schooners — to  see  what  they  are  worth. 

■  'I'lie  Commissioner  ou  the  part  of  the  United  States  :— I  have  had 


-f,'i'j 

■   , 

>''-' 

'k- 

'!^l*-( 

•,    -- 1 

&]i 

1 

1 

m 

li 


m 


64S 


10 


20 


(Mr.  Lansing's  Argument.) 

'  a  good  doftl  of  experience  in  that  direction,  and  I  never  found  unv 
'  advantage  to  come  of  it,  except  of  the  most  general  charoctor. 

"  Mr.  Peters  : — My  experience  of  getting  evidence  here  is  that  nn- 
'  less  you  sift  evidence  of  a  general  character  very  carefully  it  is  nf 
'  very  little  value.  One  man  says  a  schooner  is  worth  ^150  a  ton  ami 
'  another  savs  it  is  worth  S125,  and  when  you  come  to  ask  how  tlnv 

made  up  that  calculation  v"u  will  find  they  are  all  different. 

"  The  Commissioner  on  the  part  of  the  l/nited  States  : — What  do 
'  you  propose  now  ? 

"  Mr.  Peters  :  -I  propose  to  show  that  there  are  ten  or  fifteen  vos- 
'  Bels,  and  that  those  vessels  actually  cost  so  much  to  build.  I  pio- 
'  pose  to  show  that  l>y  the  very  best  evidence. 

"The  Commissioner  on  the' part  o  the  United  States: — I  do  not 
'  know  how  such  evidence  would  aflfect  Judge  King,  but  I  do  not  tliink 
'  it  would  affect  my  mind  in  the  slightest.  The  ocIikiI  sales  (ifximilur 
'  vessels  ahmtilhis  time  would yive  some  sort  of  cbie. 

"  Mr.  Peters  : — /  am  going  to  jirove  the  iidital  sales  unillhe  actunl  «.,</  af 
'  some  vessels.  I  do  not  see  that  I  can  give  any  better  evidence  timu 
'  that. 

"  The  Commissioner  on  the  part  of  the  United  States  : — It  is  vi  rv 
'  difficult  to  make  any  comparison,  because  vessels  differ  so  mucli, 
'  You  have  got  in  this  case  what  this  vessel  actually  cost  its  owners, 
'  and  you  can  prove  the  condition  it  was  in. 

"  Mr.  Peters  : — I  do  not  know  what  evidence  may  be  given  on  the 
'  other  side,  nor  do  I  i>r(ipose  to  say  that  we  are  bound  by  wlmt  a 
'  man  actually  paid  for  the  vessel. 

"  The  Commissioner  on  the  part  of  the  United  States  : — Of  comae 
'  you  are  not. 

"  Mr.  Peters  :— If  he  made  a  good  bargain  there  is  no  reason  why  he 
'  should  not  get  the  benefit  of  it.  Horn  am  I  show  belter  the  vnlw  limn 
'  hy  giving  evidence  as  to  what  vessels  u-ere  sold  for  nl  that  time?" 


^o  Commissioner  on  the  part  of  the  United  States: — I  think 
that  needs  a  little  qualification,  as  I  rememher  it,  heciuise 
from  the  outset  Great  Britain  claimed  that  they  were  en- 
titled to  show  the  cost  of  vessels  at  Victoi'ia  and  else- 
where, which  struck  me  at  fii-st  as  a  strange  proposition; 
but  after  hearing  the  statement  by  Mr.  Beique,  it  seemwl 
to  be  a  fairly  opiMi  (jnestion.  As  I  remember,  they  not 
only  claimed  the  riglit  to  show  the  s:iles  of  vessels,  hnt 
also  to  get  at  their  value  hy  showing  what  they  cost. 
Perhaps  that  does  not  contravene  w'-at  you  are  going  to 

40  say. 

Mr.  Peters:— Perliaps  my  learned  friend  will  not  object 
to  my  making  one  remark  at  this  stage.  Let  it  be 
thoroughly  understood  that  from  the  very  beginning  of 
this  case  we  assumed  to  show  the  value  of  vessels  by 
showing  what  they  actually  cost  to  build  at  Victoria.  AVe 
had  an  immense  amonnt  of  evidence  directed  simply  to 
that  point.  We  also,  in  order  to  give  all  the  assistance  we 
could  to  the  Conuiiissioners,  attempted  to  prove  sales,  and 
also  attempted  to  prove  what  it  cost  to  jiurchase  vessels  in 

50  Nova  Scotia,  and  bring  them  around.  We  showed  on  the 
line  yonr  Honors  first  mentioned  the  circumstances  at 
Victoria  were  so  peculiar;  and  that  was  the  discussion 
that  arose  between  tiie  Commissioner  of  the  United  States 
and  myself  when  we  attempted  to  get  the  evidence  of 
cost.  That  is  the  very  thing  that  Mr.  Lansing  is  now 
reading. 

Mr.  Dickinson: — The  point  made  by  the  United  States 
was  that  the  best  evidence  of  the  market  value  was  sales. 
The  answer  made  by  my  learned   friend,    to   which  your 

(3o  Honors  acceded,  w.is  that  it  was  impracticable  to  give  the 
best  evidence  owing  to  the  conditions  at  Victoria,  and 
therefore  it  was  competent  to  give  secondary  evidence. 
evidence  of  a  loss  valuable  character,  the  cost  of  building;. 
in  order  to  show  value.  That  was  how  the  evidence  came 
to  be  admitted,  but  that  does  not  interfere  with  the  argu 


649 


(Mr.  Lansing's  Argument.) 

mcnt  that  they  started  out  with  the  original  purpose  of 
giving  legitimate  evidence  of  sales. 

Ml'.  Peteis:— Mr.  Lansing,  as  I  understand,  makes  this 
statement  that  the  United  States  always  claimed  that  the 
niaiket  value  was  the  proper  method  of  getting  at  the 
valuation  of  these  vessels,  and  then  goes  on  to  say,  that 
that  was  what  Great  Britain  originally  claimed  also.  Upon 
lotliat  point  we  join  issue,  and  if  he  thinks  that  was  our 
position  he  has  misunderstood  us.  We  have  claimed  from 
the  beginning  that  we  were  entitled  to  go  into  the  ques- 
tion of  the  cost  of  the  vessels  at  Victoria  in  order  to  give 
you  all  the  facts,  so  that  you  might  form  a  judgment  upon 
tlitiii.     They  have  simpl"  misunderstood  our  position. 

Mr.  Dickinson:  -I  think  the  Record  willdisclose  we  are 
ri)iht  in  our  position. 

Mr.  Lansing:— I  will  read  again  what  my  learned  friend 
says  on  page  104  of  the  Record: 

"  How  can  I  ahow  better  the  value  than  by  giving  evidence  as  to 
wliat  vessels  were  sold  for  at  that  time?" 


20 


That  was  the  proposition  of  my  learned  friend  at  that 
tiniH.  He  had  offered  no  testimony,  ex(;ept  the  testimony 
of  William  Munsie,  as  to  the  value  of  a  single  vessel,  and 
tliat  was  Munsie's  opinion  as  to  the  value  of  the 
'•Carolena."  How  did  he  follow  it  up?  Did  he  continue 
by  proving  the  cost  of  building  other  vessels?  Not  at  all. 
In  continuing  his  examination,  was  William   Munsie 

30 asked  what  it  cost  to  build  a  vessel  in  the  port  of 
Victoria?  No;  he  was  askec]  for  irbat  price  he  bought  the 
"  l'athfi»der"  and  tvhat  the  ''Viva"'  cost  him  on  the 
nidiket.  He  was  then  questioned  as  to  the  purchase  oftlie 
"  M(ujheUe\^^  next  as  to  the  purchases  of  the  ''Otto"  and 
till-  "  Mary  Taylor."  Is  there  a  suggestion  anywhere 
thidiigliout  this  examination,  that  my  learned  friends  in- 
tciulcd  to  prove  the  value  of  vessels  by  the  cost  of  building 
tli(  in?  The  next  witness  called  by  Great  Biitain  was  John 
G.  Cox.  a  member  of  the  firm  of  E.  B.    Marvin  &  Corn- 

40paiiy,  who  after  stating  his  experience  was  asked  (at  page 
Ul  of  the  Record)  what  the  schooner  "Viva"  was  sold 
for  in  181I3.  He  was  then  questioned  as  to  the  purchase  of 
tilt'  "  Annie  K.  Paint."  Was  Great  Britain  attempting  or 
not  to  establisli  a  market  value  by  these  sales?  The  next 
witiu'ss  was  J.  J.  Robinson,  whose  examination  appears 
on  page  1.5.5  of  the  Record.  He  was  asked  as  to  the  value 
of  I  ho  "  Carolena," 

Mr.  Bodwell:  — On  what  basis?  He  says  the  cost  of 
building. 

50  Mr.  Peters:--At  page  1.5.5,  line  14,  he  says  the  cost  of 
biiilijing  vessels  j)er  ton  in  Victoria  at  that  time  was  $1.50 
up.  Iiuildor's  measurement. 

Mr.  Lansing: — Yes;  I  was  about  to  call  attention  to  the 
fad  that  this  is  the  first  general  evidence  given  by  any 
niincss  as  to  the  costof  building.  But  this  may  be  said 
til  lir  incidental,  for  did  our  learned  friends  proceed  on 
tlial  course?  No;  they  called  tlie  witness,  Henry  F.  Siewanl, 
ami  asked  him  from  his  knowledge  of  shipping  what  the 
"  (  arolona  "  was  worth,  and  they  proved  by  him  a  number 

'bnf  sales:  it  was,  up  to  this  time,  the  sales  of  vessels  my 
friiiKJs  were  establishing.  Now  I  contend  that  to  show 
tnnikt't  value  in  this  way  was  the  original  intention  of 
Cdunso!  on  behalf  of  Great  Britain.  If  we  examine  the 
sales  proved  by  them,  ^\e  shall  find  them  summarized  at 
pa^c  27.5  of  the  argument  on  behalf  of  the  United  States, 


u 


!,    ■  1. 


660 


^.1 


u 


(Mr.  Lansing's  Argument.) 

and  the  valnation  per  ton  appears  in  the  tables  on  pn  ■(. 
275 

You  will  find  that  they  established  several  sales  in  Vic- 
toria  and  as  n.iany  more  of  vessels  biought  from  Novit 
Scotia.  If  my  learned  fi  lends  had  in  their  minds  fidiii 
the  outset  that  there  were  peculiar  conditions  peitainiiiji,- 
to  the  Victoria  market,  and  that  a  market   value  derived 

10 from  sales  was  not  a  fair  way  to  measure  the  value  of  tlu^ 
vessels  seized,  why  ilid  they  produce  this  evidence?  Why 
did  they  not  disclo.se  tiie  position  they  now  have  adoptid; 
Here  we  have  the  proof  of  four  vessels  sold  at  Victoriji,  of 
which  the  average  cost  per  ton  was  )?}>r).  Mr.  Muhsk's 
valuation  of  the  "  Carolena"  was  si;5!)  per  ton;  and  on  the 
\'Bssels  brought  from  Nova  Scotia  we  have  a  puiclni.sc 
price  of  $lon  per  ton.  If  n)y  learned  friends  from  tlietiist 
intended  to  rest  their  case  on  the  peculiar  circumstaiirus 
surrounding  the  market  at  \'ictoria,  and   particularly  the 

20  market  for  vessels  engaged  in  the  sealing  industry,  whv 
did  they  otl'jr  any  proof  at  all  regaiding  sales?  Wiiy  wns 
it  not  all  expert  testimony,  liased  uiion  the  witiios" 
l<nowledge  of  the  cost  of  building  vessels  at  Victoiia? 

'i'lif  United  States  ))roved  a  mnnber  ol  sales  of  ve-sels 
in  Victoria  in  the  years  from  lS,s-2  to  ISS!».  inclusive,  and 
|)ai'ticularly  in  the  yeai'  1S8(I.  which  aie  set  out  at  pages 
'-'(!(),  -JCiT,  L'tis  and  ^ti'.t  of  tlieir  printed  argument.  My 
learned  friend,  Mr.  Hodwtdl,  stated  that  in  view  ol  then 
position  market   value  was   not    the   pioper   measine  dt 

30 damages;  it  was  not  the  i)art  of  (treat  Britain  to  prove  the 
incidents  of  these  sales,  that  wasfor  tlie  United  St.ites  todd. 
But  1  have  shown  that  my  learned  friends  did  olfer  pinols 
of  salt's,  and  tliey  did  endeavor  by  sncb  sales  to  establish 
what  the  market  ])rice  in  Victoria  was,  and  it  was  th.'ir 
duty  liidore  rt^sortnig  to  sncb  secondary  evidence  as  the 
cost  of  building  vess(ds,  to  have  completed  the  eviihiiie 
relating  to  these  various  sales  disclosed  by  the  t(sli 
mony.  It  was  in  their  power  to  establish  the  ciicum 
stances  in  nearly  (.'very  instance  wliere  we  have  not  been 

4oable  to  do  so.  As  far  as  possi[)le  we  obtained  the  jjioofs. 
but  your  Honois  will  (discive  that  our  evidence  in  I'eiatioa 
to  tiiese  sales  rests  almost  entirely  upon  the  testimony  n( 
Alexander  McLean;  and  when  be  ceased  bis  eomiei:tion 
with  Charles  Spring  &  Company  in  l.ssc,  it  was  natunil 
lie  should  iiave  little  knowledge  of  sales  at  Victoria  after 
that  time,  as  bis  residence  was  (dianged  to  San  Uranci<r(i 
We  did  not  consider  that  we  were  called  upon  to  alliiiiit 
to  supplement  his  t;vi(h'nce  by  producing  hostile  witnesses 
fui    tiiat    purpose.     Lbe   burden    resti'd   upon   my  learned 

;o  friends.  !^)Ut  is  tliis  I  be  only  evidence  we  have  l)etnie 
ibis  Commission  tbar  niuneious  sales  took  place  in  tlmse 
\eais;  No,  there  is  other  |)roof,  and  conclusive  pioof.  ut 
the  activity  of  the  market  for  sealing  vessels  at  Victoria. 

\N'e  have  the  ie;;istries  of  the  vessels,  whose  claims  are 
liefore  you.  Mere  are  the  registries  of  the  "  Alfii'd 
Adams,"  till'  '■  Kavomite.'"  tlii'  little  "Triumph."  the 
■'  VN'anderei ,"  tlie  "  Pathfinder,"  the  big  "Triumph."  the 
•  Winifred."  the  "Juanita,"  the  ""Ariel"  and  the 
"  Kate."     Let  ns  see  from  these  records  if  any  sales  tonk 

6o]daceat  Victoiia.  The  liist  one  is  British  K.xhibit  No.  "^i'. 
ibe  legislry  of  tb(!  "  Alfieii  Adams."  What  do  we  limb 
<)n  Jamiary  -2,  l^sd,  the  executors  of  William  Spring  suld 
the  veNS(  I,  Cha I  lesS] II  ing,  one  of  the  claimants  here,  and 
one  id  I  lie  executors  ol  William  Spring,  eonid  havcest.ili 
lished  ail  the  facts  in  connection    with  that  sale.     It  was 


v(-  =1 


«;r>i 


(Mr.  Laiisintj;'s  Argument.) 

lint  for  Mi(?  [Jniterl  Stutos  to  rely  u])on  a  witness'  produced 
on  behalf  of  (iieat  Britain,  who  was  unquestionably  hostile, 
t(i  establish  the  sale,  but  it  was  the  part  of  my  learned 
li  icnds  to  prove  all  tlie  incidents  connected  with  it  in  order 
t(i  I'urnish  to  the  Hijijh  Uommissioners  the  information 
w  liicli  they  should  have  to  determine  the  market  value  of 
shilling  vessels  at  Victoria. 

10  Here  is  the  registry  of  the  "  W.  P.  Say  ward."  Exhibit 
No.  ."iL>  ((1.  B.)  We  find  on  examination  that  the  "Say- 
ward  "  was  sold  by  Andrew  Laing  to  the  Scotts  on  tlie  .5th 
lA'hiuary.  IMSit.  That  was  a  sale  which  could  have  been 
estal)lished  by  my  learned  friends,  because  the  evidence 
oT  Ijaing.  who  is  a  claimant,  was  taken  before  your  Hon- 
ors. There  was  also  a  sale  of  the  vessel  by  T.  H.  Cooper 
toOeorge  Byrnes  on  February  7.  ISS!).  (leorge  Byrnes 
was  a  claimant  and  a  witness  before  this  High  Commis- 
sion, so  was  Cooper,  and  the  incidents  of  that  sale  could 

:o  jiave  been  fully  established.  Then  Byrnes  sold  the  schooner 
to  liUnberg  on  April  20,  1SS!»,  and  both  ])arties  to  the  sale 
wcie  witnesses  before  this  Commission.  A  half  of  the 
vessel  was  again  sold  on  December  18.  18S9.  and  another 
liaif  on  February  1,  ISiMi.  There  are  five  sales  of  that  one 
vessel. 

Now  as  to  the  little  "  Triumph,"  whose  registry  is  Ex- 
liihit  No.  128  (G.  B.).  we  find  that  she  was  sold  by  H.  W. 
Siiepoard  to  George  Byrnes  on  December  ISth,  188*(. 
(ieorge  Byrnes,  as  I  have  said,  was  a  witness  before  youi' 

30 Honors.  Byrnes  again  sold  the  vessel  on  November  ith, 
INSS,  to  John  and  Robert  Muir. 

British  Exhibit  No.  74  is  the  registry  of  the  '•  Favourite."' 
and  it  has  recorded  the  fact  that  on  January  20th.  1888, 
4;i  siiares  were  sold  to  Laughlin  McLean,  who  was  a  wit- 
ness called  on  behalf  of  Great  Britain  before  your  Honois. 
K.xhibit  No.  lln  (G.  B.)  is  the  registry  of  the  "Wini- 
fred," and  it  shows  that  ;^2  shares  were  sold  by  the  execu- 
tors of  Popenberger  (of  which  executors  the  witness 
James   D.    Warren  was  one)  to  Robert  Sharpe  on   Sep- 

40teinlier  1.5th,  188:5;  also  the  same  executoi's  transferred  H2 
shares  to  W.  H.  Dyer,  on  September  J5th,  188;?.  These 
sales  could  easily  iiave  been  established  by  Warren. 
Mr.  Sliaipe  sold  his  interest  on  December  24th,  1888, 
to  K.  C'lowe  Baker,  who  was  a  witness  here;  and  Mr. 
Oversold  HI  shares  to  John  Thompson  on  June  KJth. 
ls^4.  Mr.  Thompson  was  also  a  witness  before  your 
Honors.  John  Thompson  conveyed  his  interest  to  E. 
Crowe  Baker  on  September  lid.  1884  (both  were  wit- 
nesses in  these  pioceedings'i;  and  E.  Crowe  Baker  sold  to 

50  McDonald  48  shares  on  November  14tl),  1884.  W.  H. 
Dyer  sold  to  McDonald  It!  shares  on  November  I4th,  I8.84, 
and  McDonald  conveyed  (14  shares  on  October  14tli, 
I  Mill. 

liiitish  Exhibit  No.  77,  the  registry  of  the  "Juanita," 
iliscloses  that  Richaid  Hall.  Ji'.,  and  W.  S.  Goepel  bought 
the  cntii'e  vessel  on  December  12th,  188:5;  Hall  is  a  claim- 
ant and  was  a  witness  before  your  Honors.  22  shares  were 
sold  by  them  to  Clarke  on  March  :Ust,  1885,  and  Clarke 
was  a  witness  here.     Ki  shares  were  sold  to  Hengelson  on 

''oJ.iimary  nth,  188!».  Hi  shares  were  also  sold  to  Hall  on 
Octolicr  :'>nth,  I88I).  and  H!  shares  were  sold  to  Goepel  on 
Oitohci'  :5()th,  188',),  and  (>4  shares  were  sold  to  John  Kins- 
inaii  on  May  7th,  18!tO.  All  the  evidence  as  to  these  sales 
uiili  icfeience  to  the  "  Juanita"  could  have  been  obtained 
hnni  Hall. 


till. 


*ilv:ii' 


rtfla 


(Mr.  Ijonsing's  ArKHiuoiit.) 

The  "  Wanderer,"  wluise  rcgiHtry  is  Exiiihit  Nci.  KM  n; 
B.),  was  sold  by  John  Sahiston  to  (Jeorge  Hoyniour  on  In 
cenihor  3(1,  IsstJ.      Wo  had  proof  of  this  sale  olHiiiiicd  liy 
cross  examining  the  witness  Sahiston.  but  it  was  not  nm 
part  to  asi<  him  what  tlie  vessel  was  sold  for,  noi'  wore  \vi. 
(•om|i('lled  by  any  rnie  of  proceihne  to  make  liim  onr  wit 
ness  foi  that  purpose.     Seymour  sold  I'^  shares  to  Hmry 

lol'axton  on  January  4th,  l^sT;  Paxton  is  a  elainiant  and 
was  sworn  before  your  Honors.  Seymour  also  sold  :',:.' 
more  shares  on  tlie  i;Uh  .hnie,  lss7.  to  Captain  I'axton, 
ami  Paxtoii  sold  '.V2  shares  to  (,)uadros.  All  these  saUs 
could  have  been  established  by  tlio  witness  I'axton. 

In  the  registry  of  the  big  " 'rriMni|di,"  Kxhibit  ,\o.  1».">  i(; 
B.).  we  find  that  iM  shares  weres^old  iiy  naiiiel  McLean  tuW. 
K.  Blacketton  December  7th,  issT;  and  lM  shares  were  Mild 
by  iM(  lA'an  to  Joshua  Davies.     K.  ('.  Bak<'r  was  the  all. ir 
ncy  fur  Mcl^can  and  made  the  translei-  on   iH'cember  Tiii, 

JO  ISS7,  and  tin'  sales  could  have  been  ;  stablished  by  liiin. 
^I  shares  were  sold  by  Davies  to  K.  I'.  Maker  on  Dfcciidji'r 
loth,  IS,h7.  Tlien  !A  shares  were  s(tld  by  Baker  and 
Blackctt  to  James  (i.C'ox  on  Octcdier  lltb.  iXSit.  That 
sale  was  established  by  the  testimony  of  Alexander  Mc 
liCni  and  also  by  Baker  on  his  cioss-examination.  Theie 
was  another  sale  of  ten  shares  to  Stevenson  and  Jackson. 
by  Blackett  on  DecendtiM'   17th,  1M)0. 

Then  we  have  the  registiy  of  the  '"  Pathfinder,"  Exlubit 
No.  !t9  ((>.   B. ),   which  dis(doses  that  iMunsie  and   Carne 

^,o8fdd  eight  shares  of  the  vessel  to  W.  K.  Baker  on  Novem- 
ber 4th,  l.'^ltO.  The  facts  relating  to  the  transfer  could 
have  been  proven  by  Carne  or  l>y  Baker,  both  witnesses 
here.  Eight  shares  of  tlie  sanu'  vessel  were  sold  to  A. 
E.  Moigan  NoviMnber  4th,  I8!t(i,  and  that  sale  could  also 
have  been  established  by  Mr.   Curne. 

Now,  we  have  reviewed  the  registries  of  !>  vessels,  and 
between  the  years  iss;',  and  is'.to,  inclusive,  we  find  a 
record  of  !{<>  sales.  All  the  particulars  in  relation  to 
these  sales  could    have   been    furnished   by   our   learned 

40  fi  lends,  and  the  information  would  have,  I  submit,  sup- 
l)lied  your  Honois  with  sufticient  data  to  fix  approxi- 
matidy  the  market  value  at  Victoria.  But  there  are  41 
vessels  mentioned  in  Milne's  list  of  vessels  for  Lssti  and 
KS87,  and  here  ?cc  hmr  tin'  ri'ffistrie.s  of  only  nitie  of  them 
anil  tlicse  shoii-  '.W  sa/cs.  Was  there  a  market  at  Vic- 
toria? Were  theiv  any  peculiar  conditions  surrounding 
the.se  sales?  if  so,  why  has  not  the  evidence  been  pro 
duced?  Certainly  if  the  proof  had  l>een  submitted  and 
all  the  incidents  connected  with  them  had  been  laid  befure 

50 your  Honors  a  market  value  would  unquestionably  have 
i)(>en  established.  And  since  our  learned  friends  have  seen 
tit  not  to  sn|)ply  this  evidence,  your  Honors  have  no 
alternative  br.t  to  determine  that  llie  sales  of  which  we 
bav(!  the  full  details,  are  the  only  nu^asure  for  establishing 
the  market  value,  and  they  must  be  considered  as  the 
guide  to  this  High  Conmiission  in  passing  upon  the  value 
ol  the  seized  vessels. 

I'he  United  States  has  dealt  fidly  in  its  printed  argu- 
ment with  the  quest  inn  of  the  cost  of  building,  treating  it 

60 entirely  as  secondary  evidence,  and  only  dealing  with  it 
from  that  point  of  view. 

1  shall  notiepeat  what  has  beensaid  in  our  brief  in  regard 
to  the  const luction  of  vessels,  but  merely  call  it  to  yeur 
Honors'  attention  In  dealing  with  that  subject  the  testi- 
mony relating  to   the   depreciation    in  the  value  of  the 


»;:.:{ 


(Mr.  LansiiiK's  Argumont.) 

M  --solswtis  treated  at  lengt I);  but  I  desire  to  call  particular 
attention  to  it  here,  as  it  must  be  taken  into  consideration 
ill  ilL'termining  tin;  condition  of  the  vessels  when  seized, 
1(11  your  Honors  will  find  that  if  the  sealing-  season 
iMcnded  from  the  middle  of  Kehruary  upon  the  coast, 
111  the  usual  time  of  return  to  Victoria  (from  the  loth 
til  llie  •JOth  of  Septemhcr),  at  least  three-fourths  of  the 
losciHOii  had  expired  before  the  seiziu'es  took  place,  and 
till  ref ore  the  (piestion  of  d«!teiioration  is  peculiarly  ini- 
|.i.it;nit  in  coimectiou  with  the  value  of  the  condemned 
\i-M'ls.  The  evidence  relating  to  that  sul),it'ct  is  reviewed 
at  |iiige  i".t!»  of  our  printed  argument. 

Vciur  Honors  rememher  the  witness  Matthew  Turner, 
tin  rxpei'ienced  ship-huildei' of  Han  Francisco,  whose  in- 
l.riity  and  fitness  as  an  expert  even  my  learned  friends 
liave  been  compelled  to  admit.  He  testified  that  with 
(Hilinary  care,  a  vessel  would  depreciate  ten  percent.  ])er 
:(. annum.  I  ask  your  Honors"  caieful  consideration  of  that 
-.talcment.  because  these  vessels  were  constructed  of 
Muiifilas  fir,  and  not  of  the  wood  of  which  vessi'ls  aie  built 
i.M  the  Atlantic  coast,  and  therefore  the  statements  of  Mr. 
Tinner  as  to  deterioration  ai'e  of  more  value  than  a  long 
,  x|j('iience  can  he  on  the  Atlantic  coast.  From  fir'sl  to 
I  i,-t  the  testimony  is  that  the  Nova  Wcotia  vessi-ls  were 
hitter,  and  that  is  the  reason  the  Victorians  came  to  Nova 
Sidtia  to  buy  vessels. 

Mr.  Bodwell:— Where  do  you  get  the  authority  in  the 
;i)rvi(lence  for  that? 

Mr.  Lansing:— They  weie  better,  more  durable,  and  of 
lirtler  workmanship. 

Mr.  Bodwell:  There  is  no  evidence  as  to  that,  and  Turple 
>ays  ilirteri'ntly. 

Mr.  Lansing:  C)f  course;  and  so  would  have  Cook  and 
Warner,  and  Sleightholme  and  Watson,  and  the  rest 
(if  vour  journevnieii  ship  carpenters,  had  they  been 
asked. 

Captain     Anderson,    who    gave   evidence    before    your 

4   lioiiurs,  was  the  owner  of  eleven  vessels,   had  been  for  a 

lung  time  engaged  in  shipping,  and   was  the   head  of  a 

111;,'!'  ship  chandlery  establishment    :n    San    Francisco. 

Tliisexpeit  .stated— and  bespoke  from  a  long  experience 

that  the  annual  depreciation  in  vessels  of  that  class  was 
ahimt  ten  per  cent.;  adding  that  there  v/as  a  difference  of 
M|anion  as  to  the  percentage  during  tlie  first  year  after 
liiiilding.  But  that  is  immaterial  here,  as  most  all  of  the 
iiiiiilenmed  vessels  were  old,  excepting  those  owned  by 
CiKiper.  which  had  been  constructed  for'  five  or  si.x  years. 
;o Captain  Anderson  stated  further  that  he  would  consider 
liiat  a  vessel  after  twenty  years,  which  had  been  kept  in 
a  seaworthy  condition  by  re))airs  or  partial  rebuilding, 
would  i)e  worth  approximately  40  i)er  cent,  of  her  original 

IMSl. 

.Mr.  Bodwell  If  you  want  the  reference  as  to  the  last 
slateinent  I  made,  t  refer  you   to  Turple's  evidence,  page 

.Mr.  Lansing:  Thank  you;  I  am  familiar  with  it.  My 
liarned  friend,  Mr.  Bodwell,  criticized  the  statement  of  ten 
'0|i.acent.  depreciation,  on  the  ground  that  at  the  end  of 
ti  11  years  the  vessel  would  he  of  no  value  at  all. 

The  Commissioner  on  the  part  of  (treat  Britain:  Ten 
|ii'i  cent,  would  be  only  oft"  tlio  balance  each  year. 

Mr.  Lansing:  Certainly,  your  Honor.  A  vessel  worth 
J'I'iiMKt  would  after  the'first  year  he  worth  $»,(MiO;  and 


'  I  I'l 


'i:: 


I' 


\w 


MjBWMHIJ^  Ml#l»U!»M3|p*l 


tiiH 


^'f 


30^ 


(Mr.  Laiisiiipi's  Argiinieiit.) 

hIio  wiiiild  (le|>r«'ciato  !i*!MiO  tlie  year  following,  so  thai  ,ii 
the  end  of  ten  years  yon  will  tiinl  that  the  vessel  wmild 
be  woi'tli  between  3n  per  cent,  and  4(»  per  cent,  of  i„r 
original  valne. 

We  also  have  corroborative  testimony  from  a  witn.ss 
called  on  iiehalf  of  (ireat  Britain.  1  refer  to  ('a|.i,nii 
Sieward,  who  was  asked  by  the  Commissioner  on  tiie  put 
loof  tiie  United  States,  what  would  be  the  ordinary  w.ai 
and  tear  npon  a  sealing  vessel,  atui  he  replied:  "Tiu' 
ordinary  wear  an<l  tear  would  be  ten  per  cent."  Th,. 
Conmiissioner  on  the  part  of  Her  Majesty  then  asked  lnm: 
"Do  yon  deduct  ten  per  cent,  for  wear  and  tear  on  ,1 
vessel  two  years  old<"  And  he  replied:  "  It  is  the  cMstdiii 
to  allow  that  on  tlie  average  every  year  as  we  go  ali)iiu." 
The  following  testimony  on  this  subjeit  was  given  i,v 
Captain  J.  D.  Warren  who  had  the  management  ol  lii.. 
"  Cooper  vessels  ": 

~        "  J}y  till!  CouuiiisHiout'i-  ou  tlu'  piirt  of  tho  Uuitril  Htntcs: 

"Q.  Wlmt  would  it  cost  to  relit  this  '  Thorutou 'V     I  tlo  uot  an 

"the  outfit;  but  you  say  you  tliorouglily  rotit  every  autumn;  Imw 
"much  (lid  it  cost  each  year  to  retit — take  the  '  Tliorntou,' foi-  iji- 
"  stance  V     A.   Well,  she  would  cost,  of,  I  should  say 

"  y.  lain  si)eakiug  simply  of  tlu!  vushcI  herself,  to  make  ^ood  Iht 
"  wear  and  tear  ?  A.  I  think  she  would  take  fully  iSl.iMtO  a  year,  (inc 
"  year  with  another;  one  year  she  might  not  take  so  much  and 
"  another  a  good  deal  more. 

"  Q.  ])o  you  mean  the  wear  and  tear  would  be  as  much  as  that  y  .V 
"The  runiiinK  fjear  is  a  fjood  deal,  and  the  sail  is  a  good  deal,  and 

then  they  have  to  be  thoroughly   overhauled  and  X'epaireil,  and  if 

they  ro(iuire  any  caulking,  to  get  it.  and  once  in  a  few  years  liavc 
"  to  put  in  new  chaHing  and  overhaul  them. 

"  Q.  Do  you  mean  a  vi'ssel  of  th<'  size  of  the  'Thornton'  weuld 
"  take  that"?     A.  I  think  she  would  take  fully  that. 

"  Q.  That  would  represent  the  wear  and  tear,  would  it  ?  .V.  Vts;  1 
"  think  she  would  take  aboiit  that.  The  sealing  business  is  a  prcttv 
"  hard  business  on  these  little  vessels." 

We  also  have  the  statement  of  the  witness  Mattluw 
Turner,  that,  if  it  vessel  was  weakened  by  being  length 
ened,  s^»e  would  decrea.se  in  value  from  fifteen  to  fweiitv 
cent.,  and  that  she  would  decrease  in  value  ahduf 
.'.ame,  if  being  a  sailing  vessel  she  was  altered  hv 
putting  in  steam.  .All  these  witnesses  are  cited  at  p.ii;.' 
liit'.tof  our  brief,  and  the  references  to  the  Record  are  theiv 
given. 

The  conclusions  whitih  are  reached  after  a  full  discussiui) 
of  tiie  value  of  these  vessels  ari'  to  be  found  on  page  '.Mi\ 
of  the  argument  on  behalf  of  the  I'nited  States,  and  I 
submit  tliat  these  conclusions  have  been  fully  estiili 
lisheil.      1  shall  not   read  them,   but   will    only  |)oint  oiii 

(;othe  principal  ones.  The  first  conclusion  is  that  in  tli«' 
yeais  Ks.st;  and  is.sT  thert?  was  an  open  ami  active  niarkd 
at  Victoria  for  vessels  suitable  for  sealing,  and  markii 
value  at  that  port  was  shown  by  a  large  munber  of  sali"- 
The  second  conclusion  is,  that  the  source  of  supply  lni 
ihe  Victoria  market  was  San  Francisco.  Whatever  crili- 
cism  has  been  made  on  that  |)oint,  the  gist  of  all  tlh' 
testimony  is  to  the  ell'ect  that  San  Francisco  was  the  clmi 
port  for  shipping  on  the  Pacific  coast,  and  that  the  vaiui' 
of  vessels  in  Victoria  could  be  determined  by  the  value  nt 

(',0  ^'•'S'it'l^  'it  San  Francisco,  adding  the  customs  duty  and  tiic 
cost  ()f  transportation  from  San  Franci.sco  to  Virtori;i 
I  call  your  Idonors'  attention  to  the  testimony  regaidiiiu 
customs  duties,  cited  at  page  2~-2  of  our  jtrinted  brief,  aiiil 
also  to  page  2i>i>  of  Exhibits,  line  (".;.',  where  a  schedule  is 
given  in  the  "  Oscar  and  Hattie  "  case,  which  corroi)oiatis 


40  pel' 
the 


IIS  tlmf  V  A, 
3(1  (It'iil,  uikI 
aired,  iiiul  if 
\  years  liM\r 

uton  '  Mdiild 

?  A.  Yes;  I 
18  is  a  prcllv 


tir.r) 

(Mr.  Liuisiii^'s  .Xiguiiu'iit. ) 

lliiMithcr  cvHeiico  tliat  tlit^  custom.s  duties  on  vessels  were 
III  |iL'i'  ceut. 

Annthor  conclusion  vvu  roach  is:   That  thocnst  of  huiid 
iiiu  shilling  vessels  in  the  years  ISHO  and  ISMJ  at  Victoria 
iiiii-t  1)0  conjectu rally  hasod  on  no  actual  experience,  and 
e.\(i>ssive  of  the  cost  of  vessels  imported  from  San  Fran- 
ciscii  or  Nova  Scotia.     We  draw  the  conclusion  that  those 

in  will  I  had  Unowledge  of  sales  and  transfers  of  sealing 
v(-^i'ls  in  Victoria  duiijig  IXM  and  lss7  are  competent  to 
}fi\r  expert  testimony  as  to  the  value  of  the  vessels  in 
(|Ui  ■'tion,  and  that  the  \vitnes.ses  who  hased  their  valuation 
(III  I  lie  cost  of  huildiny  are  not  competent.  It  was  the 
cDiitcnlion  of  the  United  States  in  their  printed  argument 
wliti)  discussing  these  witnesses,  that  they  werc^  inconi- 
priciit  to  give  an  o|)inion  as  to  the  market  value  of  the 
sii/'d  vessels;  that  they  were  ignorant  of  the  market,  and 
ill  many  instances  of  the  vessel  in  leference  to  which  they 

.'owi  TO  testifying.  Our  statement  in  regard  to  these  men 
\v;is  severely  critici/.'.'d  hy  my  learned  friend,  Mr.  Bodwell. 
lull  we  submit  they  were  entirely  just;  and  when  we 
tt'iiiu'd  one  a  "journeyman  "  the  Record  always  supported 
lis  ill  employing  that  word  to  characterize  him. 

.\iiothei'  conclusion  we  reached  is  that  the  sales  of  seal- 
ing schooneis  at  the  ports  of  Victoi'ia  and  San  Francisco 
arc  iiioptM-  data  for  a  computation  of  the  market  value  of 
vessels,  and  that  the  number  of  vessels,  sales  and  trans- 
fers at  the  port  of  San  Francisco  in  1SS(>  and  18S7  are  evi- 

'lOdciue  of  the  supply  which  existed  for  meeting  the  demand 
of  the  Victoria  market. 

riicse  are  the  principal  conclusions  to  which  I  desire  to 
call  to  your  Honors'  attention  in  regard  to  the  value  of 
vessels,  and  which  I  confidently  assert  have  been  estab- 
lished by  the  evidence. 

In  connection  with  this  testimony  which  was  produced 
(111  behalf  of  Great  Biitain,  I  wish  to  submit  a  table 
showing  the  valuation  per  ton  placed  upon  the  vessels  in 
fjiicslioii  by  the  witnesses  produced  by  the  United  States 

+oan(l  liv  Great  Britain,  the  valuation  placed  upon  them  in 
the  Hritish  argument  and  by  the  owners,  and  also  the 
valuation  per  ton  shown  by  sales,  mortgages  and  ap- 
|iiaiscinents.     The  following  is  the  table  referred  to: 


lik 


if 

iii 


Ii 


»'Mtl 


(Mr.  L>iiiaiii>!;'s  Ainnnipnt.) 
Valuations  PKK  Ton  Pi-ackd  Ui'on  Skizkk  Vksskls  in  thk  1.  im 

OK   VUTdKIA. 


.?o 


('   A   I.unilbrrK.  . 

.I.'IIIICH  Ouuiliii 

II.  !■■  sciwaril 

llli'liiircl  (.'cilllater. 

.I..I.  dray     

A,  Mi-I,.'.ii    


Slll.H 

Ill  M<irt^HtJi-fl, 
Appriittiils. .    ,. 


Oaioler*. 


,,,lMilllll lUll.lH 

"-',1    li,,l,|un.|| 1711  11.1 

W    Wulker nil. tit 

A.  Willnoli Uti  HI 

aUnlU'i  I'H 

I)    Wurner 13H  hh- 

Itd.lU 

.1.  SiiiiiH'oii niiim 

M.  Mir.  Sliillli IIIS.'JM 

,1.  II.  Wurreii    14(1  lit 

!■    Hj  I'illK );IH.I-W 

Mil.  lit 
\\     MullllIP l:iH  MH 

jo"  •'■'-■'"" 

W.  SIrlulitlii.liii 

().  W.  Cavin 


S.Sf«    

It.    lli'llDI'tt. 


A.  II  Alpxan.lir 

c.  K.  liu.viiiir ' 


*  Lrin  tlian. 


TOD,         *'""»"•'• 


(aiMi.4«     |ii:i  ii;i 

'.'711. 4'i  l|:i.lM 


HJ  M7 

14'MI4 


73.10 
49.34- 

67  37 

73.10 


AIMA  Bern. 


t'MI.OH 


l»lt.4ll- 
TJU  110 


!i7U.4'J 


113  m- 
I4'MI4 


113.1)3 


340.14  I     113.03- 

149.04 

300. 44t 

334. ai- 

3?ll.4-i 


l«.ltll 


M0.71t 


180  as* 


flJ.flO- 
09.34 


60.01 

ns.so 


i:i7.«»- 

lAS.nOt 


106. no- 
lU'J  I>7t 


nao  im.e7- 
'J'JU  081 


17S.81 


110.04 

71.6iill 


(Ihack. 

IXiI.WIIM, 

0160.10 

I'j:ri.ii4 

160.111  »l>i> 
I0V.UII-1H3  111 

iwi.im 

'JilHlHH 

101. im 

300.331 

■i  iiii- 

'illll.lH 

3011.06- 
3S3.0D 

168.10- 
Itlt.OO 

333.94- 
349  69 

13;l  34 

13H.96 

Ai  I 


II...  Ill) 


t  MiTo  ihiin. 


no  .111 

1:17  im 

li'l  u 

lllT.lf.l 

M7.31 

1111.64 

III  ll'.l 

IK,  [f 

i  Coal  In  billlil. 


1  KxcUiaivn  of  niacl.iuery. 
Willi  olllflt. 


40  Vi.ii  will  find  tliat  the  claim  now  made  for  the  "Tlioni 

ton  ■' is  s?;!*!**  |;er  Idii,  while  the  claim  for  the  "Giaco" 
and  '■  Doljihin  "  is  hut  ^I'tCi  and  ^iiSif.!>4  respectively;  imth 
of  the  latter  vessels  were  undouhtedly  of  a  higher  class 
than  the  former;  you  will  see  also  that  James  D.  Warren, 
the  manager  of  the  vessel,  valued  her  at  !i<270.42  (ler  ton. 
If  VdU  inn  down  that  coluinn  you  will  find  all  tlie  evi 
dciue  in  relation  to  the  valuation  now  claimed  for  tliL< 
••Thornton"  lests  u|ion  testimony  of  William  Sleijjlit- 
lioliiie,  who  puts  her  value  at  ^■">(Mi.44  per  ton. 

50  TIk!  critieisni    in   Hie  printed  argument  of  the  United 

States  on  the  comiieteuey  of  Sleightholme  to  give  exjieit 
testimony  received  no  attention  from  my  learned  friend 
ill  his  exiiaustive  study  of  the  competency  of  these 
Mrilir-h  experts,  yet  his  npinidu  is  the  only  one  now  relied 
u|iiin.  Sleight liolnii'  stated  that  his  valuation  was  hased 
1)11  his  knowledge  of  the  cost  of  material,  and  cross-exam 
iiialioii  hrouglit  out  the  fact  that  such  knowledge  was  de 
lived  from  pui'chasing  the  masts  for  a  single  vessel.  On 
>U(  han  expert  (Jreat  liritain  rests  her  claim  for  the  value 

Cio         (it  the  '•  'riiorntou  "I 

I  also  call  your  attention  to  the  last  column,  the  "  Ada," 
where  sj^lHT.tti)  per  ton.  practically  ^1:58,  is  claimed.  It 
.■i|)peais  to  he  hased  on  the  testimony  of  James  Gaudin  and 
the  witness,  CoUister,  and  an  examination  of  the  llecord 
shews  that  they  were  speaking  of  tiie  market  value  of  the 


(1.(115- 

H'iC.l) 

am 

4U  B'.l 

IIA  911 

l:i7  w 

l"l  'i< 

l;i7  '.hi 

l"7,:ii 

'".1  0( 

«i  '.I'.i 

IV.  18 

lU.DS 



- 

10 


(;r,7 


(Mr.  LniisiiiK'n  Ar^iiinoiit.) 

V(  -sol.  Tliomforc,  in  tliis  cast',  my  le;ii  iuhI  fiiciiils  pro- 
|MiM' t(»  use  iiiarkft  value,  whilo  tlio  ii(tiii\l  cost  of  tho 
"  \ilii,"  or  W'liiit  it  would  cost  to  leiilacc  her  with  aiiotlict 
V.  -.st'l  built  ill  Victoria,  ar«'  trcatt'd  as  iiiaftciH  of  littli;  iiii 
|i(iilauce.  What  have  Imcomc  of  the  special  coiiditioiis 
sill  roiiiidiiij;  tl'.e  Vii'toiia  mark*  t?  Convciiifiitly  i^iioitid. 
I  .ilso  poiut  oal  I  In-  tact  that  tlic  valuation  placcil  upon  tl>c 
v^-ici  l)V  licr  owner,  .Jarue.s  J.  (iiay,  was  spiT  per  ton,  or 
>!  :ii  less  tlidii  /he  (Uiiiniiit  iioir  rliiiiiir<l  hi/  (tintl  lirildiii, 
<i  (h'll'cniiri'  iif  iu'er  sljliio  in  the  niliii-  i>f  llic  rc.ssi-l. 

Ml.  nodwcll;  -W  licre  did  you  }j;et  tlio  evidence  for  thai, 
Mr   L.'UiHinK^ 

Ml.  Ijansing:  — I  will  give  yon  the  citation.  I  am  com 
ill- to  the  claim  of  tijo  "Ada"  iu  a  moment.  Besides 
till-  sniumary,  f  only  projutso  iu  discussing  the  v,iliies  of 
llic  (iilVereiit  vessels  to  call  your  attention  to  the  "Caro 
Iciii."  at  page  ;i((4  of  our  iiignnieiit,  where  we  say:  "  ac 
•■  cording  to  the  considerations  »!.\pressod  in  the  varioiis 
'  hills  of  sale  to  and  mortgages  from  Munsie,  the  valueof 
•  llie  '  t'arolena  ■  at  that  time  was  !i«2,(H>(i."  Now  tliort! 
Iia-  heen  an  elaI)orate  explanation  on  tho  part  «if  my 
l(  allied  friends  to  shew  how  ^t!(>7  apjiear  as  the  cousidera 
tieii  in  the  moitgago  given  to  Bechlel  hy  Mnnsi(>.  and  the 
-aiiie  consideration  in  the  hills  of  sale  fioru  Urquhart  to 
Miiii^ie.  There  are  only  two  conclusions  which  it  is 
jMi^sihle  to  (Iriw  from  those  facts;  one  is  that  that  was  the 
ailiial  amount  paid  for  the  vossel,  and  the  other,  that 
William  Miuisie  was  a  party  to  a  C()U8|)iracy  to  ilefraud 
Taliick  Ilickoy.  There  is  no  other  plausililo  explanation 
why  tho  consideration,  ^Wu,  appears  the  same  in 
tlicse  transactions  hetweon  Muusio  and  Hechtel  and 
let  ween  Muusio  and  Urquhart.  The  circumstance  of  the 
ii-c  of  stitiT,  a  most  unusual  amount,  iu  holh  instru- 
iiH  iits  is  conclusivo  proof  that  Munsie  was  a  conspirator 
Willi  Urquhart,  or  gave  false  to.stimony  hefore  this  High 
(ninmission;  and  wo  assume  that  Captain  Urquhart,  now 
ill  ad  and  unable  to  defend  himself  against  this  charge. 
was  not  a  scoundrel,  hut  that  ho  actually  sold  the  vessel 
111  William  Munsie  for  *2,(M)(i. 

Ill  connection  with  this  valuation  of  tho  "Caroleua"  1 
nln  to  tho  statement  of  Alexander  McLoan,  cited  at  page 
'.II.",  (if  our  argument,  in  which  ho  values  the  vessel  at 
SI, TIM).  To  show  how  all  the  evidence  points  to  the  same 
limine,  let  us  allow  ^l.')0  per  ton  for  a  new  vessel;  then  a 
iiiw  vessel  of  the  size  of  the  "Carolena  "  would  he  worth 
si.liio;  hut  tho  "Carolena"  was  an  old  vossel,  and  only 
wmth  4u  per  cent,  of  her  cost;  4(i  per  cent,  of  !?4,IH0  is 
s|,i'i,")i»,  practically  tho  valuation  of  the  vossel  given  hy 
.\K  I.eani  Also  when  you  add  to  Raynoi's  valuation  of 
■  !<l,iHiii  to  Sl.-juu,"  the  customs  duties  and  tho  cost  of 
himging  to  Victoria,  the  vess(d  would  have  heen  woith 
riniii  sj, ;!,")()  to  !|<l,.'')7o  in  tho  latter  port.  Assuming  then 
I  \aiiiation  per  ton  for  a  new  vessel  of  !?l."»n,  the  highest 
iii-t  price  suggested — $12r>,  I  believe,  being  tho  tiguie  now 
rliinicd  by  my  learned  friends-and  taking  4(t|)er  cent,  of 
that  (because,  according  to  Captain  Anderson,  a  vossel  as 
nil!  as  the  "Carolena"  would  oidy  be  worth  that  |)er- 
K'litage  of  li'>r  original  cost),  we  find  that  the  testimony  of 
M<  Lean  and  that  of  Uaynor  is  unintentionally  corrohor- 
iti  il  by  my  learned  friends. 

I  now  call  your  attention  to  the  valuation  of  tho  "  Thorn 
t  .11."    The  criticism  which  was  made  by  Sir  Charles  upon 
III!  statement  at  the  top  of  page  JJiM!  of  our  argument  is 


11  h 

'i  I 


'  1. 


II     p 


(h 
ill. 


KmMhil.iJ.-^M<>'> 


mt» 


(ii)S 


(Mr.  Lansing's  Aigunient.) 

literally  correct.  There  is  no  actual  evidence  (hut  ih.' 
vessel  iiad  a  centreboard,  but  there  is  evidence  tliat  --h.' 
was  originally  a  sloop  (page  8"2!t  of  tlie  Record,  li;i.. 
34),  and  the  citation  on  page  'MH\  to  testimony  rogariliH- 
the  "Onward"  was  to  shew  tiiat  tiie  "Onward""  i  i| 
formerly  lieen  a  sloop  carrying  a  centrelioard,  and  it  w m< 
a  fair  condnsion,  I  submit,  that,  as  tlie  "Onward,""  ai  nn. 

JOsideral)ly  larger  vessel,  iiad  had  a  centreboard  wlitn  a 
sloop,  the  "Thornton,"  iiad  one  also,  and  the  coiichi-^iwn 
was  confirmed  from  the  lines  of  tlie  vessel  as  shcu'ii  !,v 
her  ineasureinents.  On  the  same  page,  apjiears  a  st  11/ 
nient  also  criticized  by  Sir  Charles,  that  the  "Thointnii  '" 
was  towed  through  Unimak  Pass,  all  sails  set  and  uinl.  r 
full  head  of  steam;  the  statement  is  born(>  out  fully  by  iIh' 
evidence  and  was  made  to  show  the  capacity  and  imY  ine 
condition  of  her  engine,  which  my  friends  claim  was  w<hi1i 
$2.  son. 

20  Then  there  was  also  a  (juestion  i-iised  as  to  the  tt-ii 
niony  of  Captain  AVarren,  cited  at  page  ;{o7  of  our  ininii.l 
ai'gument.     It  reads  as  follows: 

"  Q.  I  want  you  to  stdte,  as  nearly  as  you  can, what  the  cost  of  tic,  >c 
"  voHHt'ls  was?    A.  The  oost  of  running  them? 

"  Q.  No,  the  vessels?  A.  Well,  I  put  the  '  Thornton.'  I  think,  ut 
"  184,000 — that  is  the  time  she  had  her  raaehiuery  put  into  her  ami  uus 
"  made  a  steamer  of." 

I  turn  to  that  part  of  tlie  Uecord  which  was  read  Ijv 
Sir  Charles  Hibbert  Tupper,  page  It44.  line  40.  At  Hie 
30time  be  omitted  some  of  the  questions  and  answers  Unit 
there  appear.  In  connection  with  what  my  learind 
friend  read,  the  following  slioubl  be  added.  (Von  will 
recollect  that  these  statements  appear  as  a  i)ortioii  nf 
the  testimony  taken  in  the  suit  between  Warren  aiicj 
Boscowitz  )  The  question  was  asked  Warren  in  regail 
to  his  former  testimony: 

"  Q.  But  you  find  in  that  eouueetion,  do  you  not,  following  tlie  tfs- 
"  timouy  I  lu»ve  read  to  vou,  that  vou  jiroeeeded  to  give,  not  the 
"  mortgages  on  the  other  sliips,  but  t"lieir  valuation,  I  think,  in  most 
40  "  of  them,  perhaps  all  of  them? 

"  Q,  All  of  them,  had  you  not?  A.  I  gave  the  eost,  I  tliiuk,  in  llir 
"  most  of  them,  i)erhai)s  all  of  them." 

SirC.  H.  Tni)i)er:— Whatdo  you  make  of  that  first  (pus 
tioii  you  read?— There  does  not  seem  to  have  been  any  an 
swer  to  it  at  all. 

Mr.  Lansing:  It  should  have  been  icad  with  tli(>  sectuni: 
there  should  have  been  no  beginning  (if  a  new  (luestioii. 
The  examination  continues: 

"  Q.   But  you  say  that  althojigli  this   testimony  speaks  directlv  uf 

your  putting  th<>  eost  of  the  '  Thornton'  down  at  !ii!4,(K)0,  that  tisii- 
"  mony  is  erroneous?     A.   Yes,  she  eost  more  tiian  that. 

"  Q.  Tlie  (|uestiou  is  not  what  the  fact  is,  hut  whether  you  so  ttsli- 
"  tied.  If  you  say  you  did  not,  it  puts  us  to  the  trouble  of  iiinviiiK 
"  that  you  did.  A.  1  dcm't  remember  of  the  Btatemeut  of  putting  lnr 
"  in  that  way  at  the  eost. 

"  (.).  But  you  did  put  in  all  tlie  other  vessels  of  the  Heet  in  llir 
"  same  connection  and  immediatidy  following?  A.  They  arc  then' 
"  about  the  cost,  the  otiicrs. 

"  (.).  And  your  attention  was  directly  called  to  the  question  of  cn^t 
"  by  your  own  (luestiou  ?     A.   Ho  it  appears." 

'^  Now  I  submit  that  the  witness,  whatever  he  may  to 
tify  after  that,  cannot  explain  away  the  necessary  nii 
elusion  which  must  be  reached  from  an  examinitimi  i>\' 
the  testiaiony,  and  that  his  valuation  there  given  ol 
$4, (»()(».  is  tlie  actual  valuation  which  be  intended  sliniild 
be  placed  upon  the  vessel.     I  have  already  noted  the  Iik  t 


50, 


(ir.'.t 


^    I 


tliiuk,  in  till 


itioii  (if  iii-t 


(Mr.  Lansiiifr's  Avguiiu'nt.) 

thill,  ill  the  iut^nmeiit  on  lielinlf  oi  Gieat  Britain,  the 
valiii'  clainu'd  for  the  '•Thornton"  is  !i(7,(H)0,  or  $1,0()(» 
111(11  r  than  was  stated  to  he  her  vahie  hy  James  D.  War- 
ren, iier  alleged  owner,  when  testifying  hefore  this  Com- 
iwission. 

1  only  desire  to  further  call  your  attention  to  tlie  value 
of  llie  "Ada,"  and  to  the  statement  at  page  31V  of  our 
lopriiiled  argtmient,  to  which  kr.  Bodwel!  a  moment  ago 
ri'lVnod.  In  the  cross-examination  of  the  witness  Gray. 
tilt'  owner  of  the  vessel,  the  following  appears;  1  read 
from  page  1,238  of  the  Kecord,  line  37: 

"  {).  The  question  is,  Mr.  (Irav,  was  vour  I'stinmto  for  the  "Ada" 
'•  87,0(1(1  ?     A.  Tlmt  I  could  hiirdly  toll." 

"  (,).  What  is  your  best  jndj;Dinut  about  it  ?  Was  that  your  esti- 
•■  iiiiitc  of  the  value  of  the  "Ada"  presented  agaiust  the  Govern- 
'■  iiunit  ?  A.  About  »7,<»()(t -«?7,()(l()  or  »8,(»0(),  somethiuf;  of  that 
'•  s(irt." 

JO  .Now  the  claim  presented  to  your  Honors  is  !?!>,()(((»,  or 
ijl, 11(111  more  than  the  highest  figure  given  by  the  owner, 
wliicli  I  lliink  answers  Mr.  Bodwell's  question  as  to  our 
MUliioiity  'or  the  statement. 

With  the  evidences  in  regard  to  value  of  the  other  vessels, 
and  with  our  ci  iticisms  upon  the  witnesses,  our  printed 
ai^iiiiienl  deals  fully;  and  nothing  has  been  said  by  my 
learned  friends  which  calls  for  further  discussion  of  these 
.sulijects.  I  now  propose  to  take  up  the  separate  claims 
and  to  deal  with  them  as  brietly  as  possible. 

;o 

TUK  "Thohnton." 

The  first  one  1  propost>  to  consider  is  the  *' Thornton." 
I  have  caiefully  examined  the  numerous  citations  which 
were  put  in  by  the  learned  counsel.  Sir  Charles  H.Tupper. 
and  I  have  no  critutism  to  make.  They  are  ])erfectly  satis- 
factory to  the  L'^nited  States;  Init  1  ''o  call  attention  to 
the  fact  that  we  have  the  testimony  of  Ca|)tain  Warren, 
at  page  Itlo  of  the  Kecord,  line  l."i,  that  in  ISSti  the  "  Dol- 
phni"  carried  an  e.xtra  snpjdy  of  provisions  for  all  the 
t'^'vcssrls  under  his  management.  Now,  the  "Thornton" 
was  the  smallest  of  the  live,  and  it  is  fair  to  presume 
thai  slie  had  a  very  small  complement  of  provisions  on 
hoaid.  anil  therefore  any  recovery  for  those  provisions 
niiisi  lie  in  accord  with  tlu'  inventory  as  made  by  the 
tinted  Stales  olticer  who  made  the  search. 

.Mr.  Peters: — We  do  not  happen  to  he  claiming  for  the 
provision  ■. 

Mr.  Lansing:-- It  may  come  to  that,  Mr.  I'eters,  as  an 
.  I'-liinated  catch  cannot  be  allowed.  Then  I  wish  to  refer 
'  Ilia  iiiticism  made  by  Sir  t'harles  li.  Tiipper  of  a  state- 
nii'iit,  at  page  3tll  of  our  argument,  in  j'eference  to  the 
ili'iii  "of  tiaveling,  hotel  and  other  necessary  expen.ses  in 
connection  with  the  said  sei/iu-e,"  for  which  -sl.ooo  is 
elaniieil:  and  1  turn  to  the  Record,  which  is  cited  as  .an- 
tliiiritv  for  that  statement,  page  !M7,  lint;  4(>,  the  cross- 
eNaiiiiiiiition  of  James  1).  Wari'eu.      Here  is  the  evidence: 

••(,».  Captain,  you  eharj{<'d  iSl,(l(l()  tor  expenses,   triiveliUK,  *e.,  in 
■  llic  '  Thoruton  '  ease?    A.   I  have  charged  it  tliere. 
,  ••().   Now,  when  did  vou  Itegiu  to  travel  in   tlie   'Tliornton'    I'lise; 

■•  INSTV    A.   In  the  fall  (if  18K7. 

■'(,».   At  that  time  had  you  also  a  chiim  as  to  the  '  Dolphin  "i'  A.  Yes. 
"i,>.   And  some  live  other  elainisV     Y(>ur  other  shi|)s'.'     A.   Yes. 
"i,».   Did  you  go  on  business  for  the  other  live  shiiisV     \.   Well.   1 
'  «i  Mt  on  the  business  of  all  of  them,  1  sup|>ose. 

•  <,».   And  you  eharge  for  travi>linn  expenses  ?lll()  in  each  case?  " 


■ '  *  ■ « 


;r# 


\\'U 


k 


)!()() 


(Mr.  Lansing's  Argument.) 

Now,  it  is  very  evident  that  there  is  an  eiroi'  in  ilu. 
Record;  that  it  should  be  $1,(100  in  each  case. 

Sir  C.  H.  Tapper:--!  do  not  think  so.  I  think  you  will 
find  that  the  original  claims  were  lor  $100  in  each  casr 

Mr.  Lansing:— In  any  event,  it  is  in  the  (piestiun  ami 
not  in  the  statement  of  Captain  Warren;  he  answers:  'I 
don't  just  remeniher  what  it  is  in  the  other  cases."  lie 
ID  will  not  state  even  there  that  it  is  $lou. 

His  cross-examination  continues: 

"  Q.  But  you  wont  oil  the  busiuesH  of  all  tho  Heizures  of  1HS7  to. 
"  Kether  with  that  of  tho  'Thorntou'  in  188ti?    A.   Yoa. 

"Q.  Yon  ohavfrod  tlio  ii?l,O0()  iu  tho  'Thorutou  '  oaso?"— [Thcn^  is  a 
ropotition  of  the  jfl.OOO;  oortuiuly  lio  oould  not  havo  roforrod  to  Sliid; 
thoro  is  no  claim  niado  iu  any  case  of  ??l()(l  for  travolinf;  t  ^'^  jscs;  tlio 
items  are  all  put  iu  at  $tl'M  or  ^1,000].  —  '•  You  don't  uiean  to  say,  do 
"  you,  Captain  Warren,  that  you  expended  Sl.OUO  in  travel  I'ur  tho 
•'•  Thorntou V  A.  No,  I  haven't  stated  that;  I  spout  Sfl.OOO  luid  ,  m- 
'•  sidorablo  time. 
2o  "  Q-  You  undertook  all  your  claims  tofjothor  when  you  \vi>iil  tu 
'•  Ottawa?     A.   When  I  went  to  Ottawa,  yes." 

But  wliatevt'i'  the  facts  are,  tiie  claim  is  now  l((>l'ore 
your  Honors  in  the  ]iriiite(l  argmnent  iu  cliicf  on  IkImH 
of  (ire;it  Hritaiii  as  ssl.ooo  claimed  foi'  traveling  and  lioU'l 
cx|ieu.ses,  and  of  what  value  is  tlie  criticism  of  my  learned 
friend  that  it  should  he  slOd? 

Sir  0.  H.  Tupper:-- Let  me  ex|)lain  in  connection  with 
thiit.  1  called  attention  to  the  fact  that  the  argnnient,  in 
lepeating  this  part  of  the  evidenc(>,  l)y  mistake  contaiuei! 

jOthe  tigun;  of  $1,000  for  .sloo;  the  reason  that  I  did  that  at 
that  time  was  that  my  recollection  was  that  this  should  iw 
sloo,  while  it  wassl.ood  m  this  case;  that  Warren  wasoiily 
clainung  $100  iu  the  otiier  cases:  and  tiiat  is  my  recolh^c- 
tion  still.  Of  course,  if  tl)at  lie  wrong  the  criticism  would 
li(?  hypercritical.  Nothing  I  said  iu  tlie  "Thornton"  case 
meant  to  suggest  that  th(^  sl.ood  was  wrong,  except  in 
that  (luestion  which  you  read:  "And  you  charge  for 
traveling  exjieuses  sloo  in  each  case?  A.  I  don't  just  re- 
member what   it   is   in   the  otiier  cases."     In  your  argu- 

40nieut,  if  I  remend)er  rightly,  you  have  it:  "  A'ld  you 
charge  for  traveling  expenses  $1,000  in  each  case;"'  1 
think  that  was  my  point. 

Mr.  Lansing:— Very  \tell,  the  criticism  is  of  no  inipurt- 
ance,  for  he  has  charged  in  this  case  $L00O.  He  states  at 
]iag(!!U".  line  :)2:  "(.,).  Tiaveling.  hotel  and  otiier  iieces- 
■■  sary  ex|)enses  iu  connection  with  the  said  seizure  and 
■•  claims,  sl,ooo,  is  that  a  bulk  sum  that  you  put  iu;  A. 
"Just  a  biUk  sum."  Clearly  it  was  put  in  for  all  the 
■■  Coopei'  vessels  "as  well  as  the  "  Thornton."    Why  should 

5'^MIiis  item  in  the  "  Thornton  "  claim  have  been  so  iiiucli 
larger  than  iu  the  others;  Did  Warren  do  more  in  tlie 
case  of  the  "  Thornton  "  than  in  the  others;  Isthereaiiy 
I  videnci^  before  the  CoMUuissioners  that  the  traveling  ex- 
penses and  hotel  bills  wei-e  six  or  even  seven  times  as 
large  in  the  "  Tbomlon  "  claim  as  in  the  otiii'r  claims;  I 
submit  not,  and  that  when  lie  speaks  of  $l,ooo,  theSi.iuMi 
he  made  the  cliarge  for  was  for  all  the  "Cooper  ves- 
sels." 

Sir  C.  H.  'I'lippcr:-   I  think  my  learned  friend's  criticif<iii 

"'  is  fair.  1  was  dealing  witli  the  evidence  as  it  was  put.  In 
fonnection  with  that  $l,ooo  and  $100  iu  eacii  case,  I  think 
that  Warren  nnist  have  meant  that  he  wanted  to  claim 
$1,000  for  liis  woik  iu  connection  with  the  "  Conpei' 
I  laims,"  ;is  my  leaiaied  calls  them,  "  Capt.  Warren's 
Claims."  as   they    weie    called    generallj'.      My  criticism 


you  Weill  Ui 


tit  1 1 


(Mr.  Lansing's  Aignment.^ 

iiK  rely  referred  to  this  mistake  of  $1, (too  for  $100  in  the 
K'((ord.  I  think  the  learned  counsel's  observation  of 
ijsl.ooo  for  the  whole  is  right. 

Mr.  Lansing: — Thenl  would  ask  my  learned  friend  after 
that,  statement,  what  will  we  do  with  the  item  for  owner's 
ox|ionses  in  the  "  W.  P.  Sayward  "  case,  for  wiiich  8^00 
iiic  claimed. 
,0    Sir  C.  H.  Tupper:— That  is  one  of  the  "  Warren  fleet," 
as  we  call  it. 
Mr.  Lansing: — Then  that  should  be  stricken  out  '< 
Sir  C.  H.  Tupper: — Certainly,  my  observation  covers  the 
"  Warren   vessels,"  and   I  say    the  criticism  is  fair  that 
§1,000  was   meant  to  cover  the  expenses  for  the  whole 

tli'cl. 

.Mr.  Lansing:- -And  as  to  all  tlie  other  "  Cooper  vessels" 
e.\cc'pt  the  "Thornton,"  it  is  now  stated  that  the  amounts 
rliaiiit'd  for   traveling  expenses  of  the   owner   should    be 

vistiitken  out.     Am  I  correct? 

Sir  C.  H.  Tuppei':— Yes.  if  the!?!, 000  is  allowed. 
Ml.  Lansing: — We  do  not  admit  that  any  sum  can  be 
alliiwcd  for  these  e.xpenses,  whicli  might  be  more  or  less 
acciiiding  to  the  extiavagance  or  economy  of  the  (^lai'n- 
aiil.  We  do  not  think  they  should  be  allowed  in  any 
I'vciit;  i)ut.  under  any  circumstances,  the  admission  of  my 
Ic.ii  lied  friend  materially  reduces  the  claim. 

1  now  call  your  Honors'  attention  to  the  claim  made  in 
this  case,  and  in  fact  in  all  the  other  caises  of  loss  in  IS.SCi, 

wforlheiiet  value  of  the  estimated  Coast  and  Beiing  Sea 
catclics  for  the  year  lss7.  I  have  discussed  the  question 
(i|  till'  iiiip()ssil)ility  of  computing  an  estimated  catch,  but 
this  claim  iiresc'iits  newditticulties  from  the  fact  that  there 
air  110  data  for  such  computation.  The  only  evidence  be- 
Idie  your  Honois,  and  that  was  incidentally  brought  out, 
is  ill  regard  to  the  Coast  catch  of  fourteen  vessels  from 
issU  to  issn  inclusive,  and  yet  we  have  the  data  of  the 
( atclu's  of  eighty  vessels  in  these  years  in  Bering  Sea.  So 
lar  as  the  year  lss7  is  concerned,  there  are  only  two  ves- 

40>^ilsof  which  we  know  the  catch  ujion  the  Coast,  and 
iIhtc  certainly  is  nothing  in  evidence  to  afford  a  basis  of 
1  nitiputation,  even  if  computation  was  possible. 

Thk  "Onwakd." 

The  next  claim  is  that  of  the  "  Onward,"  and  though 
wf  have  fully  dealt  with  it  in  our  brief,  I  wish  to  call  your 
attrntion  particularly  to  the  statement  at  page  'M)ti  of  the 
Ciiitcil  States  argument  that,  on  the  'Utth  day  of  Decem- 
hiT,  Isst),  Charles  Sjtring  and  Alexander  McLean   entered 

r'Mnto  an  agreement  dissolving  their  partnership.  In  the 
'•ally  part  of  ISSt;  C.  Spring  &  Co.  owned  three  vessels — 
the  ••  Favourite,"  the  '*  Kate"  and  the  "  Onward."  In  th(> 
agreement  lor  dissolution  valuations  were  placed  on  tlm 
"Favourite"  and  "Kate,"  but  no  valuation  upon  the 
"Onward."  As  McLean  did  not  desire  to  continue 
l"ii,m'r  ill  the  business  Spring  purchased  his  share  of  the 
parliieiship  projierty  for  about  >^i,100;  but  the  "Onward  ' 
isiidt  iiicluiled  in  the  transfer,  which  would  have  been  done 
hail  the  owners  anticipated   her  lecovery.      Kach    partner 

''  nlaiiied  a  half  interest  m  llie  vhiiin  (lyaiiist  the  I'liili'il 
Shilr.s  for  tbat  vessel.  That  was  the  view  taken 
ill  iicci'iuber,  iMSt;,  by  the  owners  of  the  vessel,  and  that 
|iii>itioii,  we  assert,  proves  conclusively  that  she  was 
In  ati'il  by  thetn  as  a  total  loss. 
There  is  also  a  criticism  of  the   assertion  made  at  page 


"t  H. 


inMMMHWffW'*' 


(1(12 


(Mr.  Lansing's  Argument.) 

8H(i  of  our  argument  concerning  the  canoes  on  the '•(  in 
ward,"' and  it  is  alleged  hy  my  learned  friends  that  tin  v 
can  claim  for  tliese,  whether  they  were  owned  hy  Ch.nlis 
Spring  and  Alexander  McLean  or  hy  the  Indians.  Tin  ic 
is  also  a  claim  for  certain  amounts  paid  hy  Spring  to  iln' 
Indians  for  these  canoes,  which  were  in  the  nature  of  ;in 
advance  on  their  wages.     My  learned   friends  are  tin  iv- 

lofore  claiming  for  hoth  the  value  of  the  canoes  and  for  Mic 
wages  which  were  paid  to  the  Indians. 

Mr.  Peteis:— Where  are  we  claiming  for  thowag(>,if 
the  Indians? 

Mr.  Lansing:— They  are  included  in  tlie  value  of  the  m  si- 
skins which  were  taken,  as  you  now  present  the  clainw. 
Mr.  Peters: — If  that  is  your  argument,  all  riglit. 
Mr.  Lansing: — Why  have  we  vouchers  in  the  "Ciki 
lena''  case  for  wages  if   no  claim  is  n)ade  for  them?    ,\lv 
friend  implies  that  they  do  not  now  claim  for  wages;  Ijiit 

20  under  any  circumstances  here  is  a  douhle  claim  for  the  ra 
noes  seized,  cneforthe  Indians  and  one  for  the  owners,  who 
also  claim  for  the  price  paid  for  them  to  the  Indians.  In 
any  event  there  can  he  no  recoveiy  for  the  canoes  hf 
longing  to  the  Indians;  they  are  not  claimants  propcilv 
hefore  this  Commission.  As  to  the  canoes  actually  pni 
cha.sed  1)V  the  owners  of  the  vessels,  who  have  a  riglit  tn 
make  claims  undei'  this  Convention,  the  United  Statis 
admit  their  liahility.  It  should  also  he  noted  that  llif 
claimant   Spring    testifies   that   the  "Onward's"   ciuiops 

30  were  worth /Vo/»  vPtT /(>  .S.'(V;  and  tht*  claim  is  made  lor 
^2S  on  this  testin)ony  of  an  interested  party  when  he  gives 
a  lower  figure. 

Itegarding  tile  item,  "cost  of  defence  at  Sitka,  ^rion." 
Spring  claims  that  a  judgment  was  recovered  against  liim. 
VVas  Alexander  McLean  a  party  defendant?  Where  is 
that  judgment  enteicd;  Why  was  not  a  transcript  of  it 
hefore  this  Conuiiission?  If  there  was  a  judgment,  tin  11 
your  Honors  should  have  had  primary  evidence  of  it.  Tlu' 
mere  statement  of  an  action  conmienced  liy  an  attorney 

40 for  his  fees,  of  which  onet>f  the  paities  interested  hasoiily 
a  vague  knowledge,  and  as  to  which  he  could  havo  no 
actual  knowledge  unless  the  judgment  was  entereij  al 
Victoria  (whicii  it  was  not,  for  then  it  would  iiave 
heen  produced),  is  not  such  evidence  as  should  receivt'  the 
considciation  of  this  High  Commission. 

Mr.  Peters:- -We  say  it  was  entered  in  Sitka. 
Mr.  Lansiny;:  — How,  then,  was  service  made  upon  Cliailis 
Sjjiing,  who,  according  to  his  own  testimony,  was  never 
in  Sitka,  oi'  within  the  juri.sdiction  of  the  Alaskan  cdiirt 

50  after  the  seizure?  Furtliermore,  Spring  himself  says  tliat 
the  servici's  were;  not  worth  tiie  amount  claimed;  and  it 
action  has  iieen  duly  hrought  against  himhy  this  attorney 
for  his  charges,  and  Spring  has  notdefended  it,  the  United 
States  is  iKit  lialile  for  his  negligence  to  put  himself  npoii 
|>roper  defence. 

.Ml'.  Bodwell:-  Do  you  mean  that  the  l)ill  was  moie  than 
i*  ought  to  have  heen? 

Mr.  Lansing:  — Yes,  in  that  it  covered  the  costs  of  an  a|i 
peal  to  the  Sui)ii'me  Court  of  the  United  States,  an<l  none 

Cio  was  ever  taken;  and.  further,  I  assert  that  the  Unitiil 
States  are  not  liahle  for  the  charge  in  any  event. 

Tmk  "  W.  p.  Saywakd." 

I  uow  call  your  attention  to  the  case  of  the  ''  W.  P.  Say 
ivard."   In  the  schedul(>  attached  t(>  that  claim  we  find  ;iii 


10  wjiiri 


[Mv.  Liinsing's  Argiinient.) 

ifciii  for  iHit  skins  which  were  on  board  the  vessel  at  the 
tiiiH'  of  seizure,  for  which  a  chaige  is  made  of  16.50  for 
t'iirli  skin,  which  amounts  to  over  $3,00(»;  and  I  wish  to 
leal  tliis  poition  of  our  printed  argument  relating  to  this 
item,  wliore  the  testimony  of  Capt.  Warren  is  quoted,  it 
is  111)  page  383: 

"(,».  Wero  the  seal  skins  included    in  the   bond  yoii    gave   for   the 
10" 'Siiyward '?     A.  Yes. 

•i).  How  many?    A.  About  440. 

•  ().  The  bond  was  given  for  the  vossol  and  skins?     A.   Yes." 

SiiOiipt  Warri'i),  Cooper's  agent,  had  the  skins  for  which 
(laiiii  is  now  made,  and  there  also  appears  immediately 
tolldwing  that  quotation  in  our  printed  argument  the 
order  discharging    the    schooner   "  Say  ward "    and    her 

Tlie  Conmiissioner  on  the  part  of  the  United  States: — 
Tliat  is  something  the  counsel  ougiit  to  he  able  to  settle 
:oaiiiiing  themselves  without  bothering  us  to  search  the 
Htciird,  whether  those  skins  were  returned  or  not 

Sir  0.  H.  Tupper:— I  intended  to  make  that  statement, 
but  must  have  overlooked  it,  in  the  way  of  correcting  a 
statriiient  of  our  own  in  the  line  the  counsel  is  following. 

Mr.  Peters:  -There  was  a  charge  for  depreciation  in  the 
valiii  of  the  skins. 

Sir  C.  H.  Tupper: — I  think  I  dealt  with  that;  at  any 
rate  [  intended  to. 

M. .  Lan.sing:— T  do  not  think  you  did. 
p    .Mr.  Dickinson:— They  were  claimed  in  the  argument. 

Sir  C.  H.  Tupper: — I  intended  to  qualify  it. 

Mr.  Lansing: — Substantially  the  same  number  of  skins 
were  claimed* 

Sir  C.  H.  Tupper:— Yes,  I  think  we  will  agree  about 
tliat. 


; 

ill 

kr 


Ml 


.\t  one  o'clock  the  Commissioners  took  recess. 


8  more  than 


40 


At  half-past  tsvo  o'clock  the  Commissioners  resumed 
tlieii'  s(>ats. 

Sir  C.  H.  Tupper:— Perhaps  my  friend  will  permit,  me 
1(1  make  a  correction  in  regard  to  the  skins  which  have 
l)i'(ii  referred  to. 

Mr.  Lansnig:— Certainly. 

Sii  ('.  H.  Tapper:- -We  have  charged  in  the  claim  of  the 
"  \\  ['.  Saywaid,"  at  page  111  of  the  Britisli  argument, 
line  :it).  for  4S,')  skins  on  board  at  the  time  of  the  seizure 
at  si;  .'id.  In  suppoit  of  the  statement  that  there  were 
-Qtlial  inanv,  1  r(>ferred  to  tiie  Record,  page  HOC..  That  is 
iiH  t lie  utl'i  July,  1SS7.  The  order  for  the  return  of  471) 
skins  is  dated  Utth  April,  isss,  page  14()  of  the  E.xhibits, 
ami  iin  page  1 147  of  the  Ueroid  it  appears  that  there  were 
reiiiiiieil  44t)  skins  in  May.  1SS8. 

.Ml.  Lansing- -Is  that  an  exact  statement?  It  is  Captain 
Wairen's  recollection,  and  clearly  uncertain  as  to  number. 

Sii  ('.  H.  Tupper:— Reading  at  page  1147: 

••  {)  Were  the  seal  skins  included  in  the  bond  you  gavo  for  the 
"  '  Saywaid  '  ?"     A.  Yes. 

1,1.  About  how  nianv  V     A.   .\l)out  440." 


do 


That  is  on  direct-examiiiation;  I  do  not  think  he  was 
cniss-i'xaniined  on  that — so  that  from  the  amount  of  485 
(hinged  in  our  claim  there  would  be  deducted  440,  and 
l!ie  elaiiu  would  be  for  4r»  skins  taken  and  not  returned. 
Till   t'^n  skins  were,  however,  on  board  at  the  time  of  the 


4 


u 


t;(;4 


(Mr.  Liinsing's  Aigumeiit.) 

seizure,  and  the  item  carried  out  would  be  mateiia!  Iiiimu 
claim  for  interest  on  tliat  amount  from  July  !•,  l!S87,  niuil 
May  1888.  and  then  there  would  bo  the  interest  on  thi' 
value  of  45  skins  from  May.  ISH8,  down. 

Ml'.  Lansing:     In  connection  with  this  statement  iiuuli' 
by  Kir  Charles,  I  wish  to  refei'  to  the  order  of  discharge  n{' 
the  vessel,  her'  skins,  arms  ;ind  annnunition.  whicli  .ip. 
loP^ars  at  |>age  14t't  of  the  Exhibits;  it  is  as  follows: 

"  Tlie  (i\)ove  nametl  veHHcl  and  all  tier  tacklo,  aiiparcl,  ftiniiturc, 
"  arms  and  amniuiiition  and  <Mivt?o  consistinj^  of  47il  fur  seal  skins  llmt 
"  liavc  licon  received  l)v  vou  in  tliis  |)ort  liavinj^'  Ih'cu  lionded, ," 

Till- hoiiils  vorcri'iJ  \1\)  skins.  That  is  the  i!'M)iher  w,. 
claim  were  returned  to  the  claimant's  agent:  and  furtlni, 
that  they  were  all  tlu-  skins  seized. 

'I'lie  next  point  that  1  desii'e  to  refer'  ti>  in  cnnriectiuii 
with  the  '■  Say  war'd"  clainr.  is  the  item  for'  experi-es  in. 
cnri'ed  iir  bondiirg  tli(>  "  S.-ryward."  say  sl.oon.  The  ivj- 
(leiice  to  snppor't  that  chaige,  which  was  refer  I'ed  to  in  tlie 
oral  ai'gument  of  Sii'  Charles  H.  Trrpper.  is  fourrd  in  llie 
testimony  of  Hoscowit/  at  p;rges  lltTt!  arrd  i)i77  of  the 
Kec'oi'd.     It  I'eads  as  follows: 

"  y.  Wlien  you  tioudod  the  'Saywai'd,"  if  was  iloui^  at  Sitka,  1  Ke- 
"  lievc'?     A.   Yes. 

"  Q.  Who  was  witli  you':*     A.  ('ajilain  Warrou. 

"  (}.  Had  yon  k<"i<'  wp  tl'cro  for  tliat  pui'iiose?     A.  Yes,  Hir. 

"  (J.  W'lien  iu  Sitka,  in  countH'tidu  witli  lioudiuf^that  vessel,  diilynu 
"  incur  oxjienscs  nj)  there':'     A.  Yes,  some  .vi;!-/// expenses. 
)      "  Q.  And  iu  addition  to  that  von  had  to  put  in  the  bonds?     A.   I'lit 
••  in  l)onds  for  *H,(IOO. 

"  Q.  For  which  vou  wore  resjionsible  through  your  bank  here  '!  A. 
"Yes." 


20 


That  is  at  page  I5*7t!.  line  2<'.. 
^i"),  the  following  a|)i)ears: 


Then  at   page  Iit77,  liriL' 


A. 


40 


'•  Q.  When  yo'.i  went  to  Sitka,  whom  did  you   take   with   you 

('aptain  Warren. 

"  Q.  Did  you  take  any  other  jicrstjus  with  you  ')    A.  Yes,  there  were 

the  captains  and  sailors  and  mates   to    bring   the  seized   schodiicrs 

back. 

"  Q.  For  all  of  them'?    A.  For  all  of  them." 

At  page  1147,  at  line  :V>,  in  the  direct-examination  of  J. 
D.  War  ren.  we  have  the  following: 

"  Q.  Did   you    get   the  '  Sayward '? '     A.   I  got  the  '  Say  ward  '  liiick 
"  in  1H8H  bv  bonding  her.  bv  giving  bonds. 

"  Q.  To  wliat  extent  do  vou  renumber?    A    ^8,000. 

"  Q.  What  time  in  1HH8'?     A.   We  arranged  for  it  in  April,  188H." 

The   date    when   the  "Say ward''  was   released    rrniler 
bond,  according  to  the  ordei'  entered  and  appearing  at 
50p;it;e  14(i  of  the  Exhibits,  was  the  HHh  Apr'il,  188s. 

'■  (i>.  When  did  yon  actually  get  the  vessel  back?    A.  A  little  while 
"  after  that.     I  think  we  liad  her  in  May.  but  1  am  not  positive. 
"  Q.    ])ii/  i/i'ii  I/O  ii/)  lliiTf.  Id  ijfl  Iter?     A.    A(i;  slic  inix  in  Sudlll''" 

Now  this  charge  of  ^l,(inir  is  exjdained  by  the  staterirerit 
that  Hoscowitz  ;\nd  Warren  took  upcaptains  and  sailors  in 
order  to  bring  the  .schoorrers  back,  arr<l  it  appears  that  the 
I'r'der-  was  entered  at  that  time,  yet  the  '■  Wayward"  was 
rrot  br'oirgbt  dowrr  by  these  .sailors  and  captairrs  hut  by  the 
rol'trrted  Slates.  1  strbmit  that  the  evidence  in  legar'd  to 
the  transjrortatiorr  of  tbt  se  men  to  Sitka  is  utterly  woitii- 
less,  for  if  it  had  been  don(.'  they  would  have  assni'cdly 
brought  hack  the  vessel,  aird  they  did  rrot.  No  men  ever 
were  taken  to  Sitka  by  Warren  and  Boscowitz.  A  I'ui'- 
ther  fact  iir  connection  with   Ibis  item  is  that  Boscouitz 


(w;r. 


;  Sitka,  1  I.e. 


»ywar<l '  lnn-k 


(Mr.  Lansing's  Argument.) 

iidu  cliiims  to  liavo  incurred  tiie  costs  of  bonding,  aud 
Hip-^cowitz,  under  the  Convention,  is  not  a  claimant  befoie 
this  Commission.  The  clainj  for  this  expenditure  is 
111  i(l(^  on  behalf  of  Thomas  H.  Cooper;  and  there  is  not 
one  line  of  evidence  in  this  Kecord  to  sliow  he  ever  in- 
clined one  dollar  of  expense  in  recovering  possession  of 
tlii<  vessel. 
10  .M  l>ago  ''WT  of  our  argument,  we  criticise  the  claim  for 
s'.iiHi  lost  to  owner  by  reason  of  detention  of  the  "  W.  P. 
S;i,\  ward  "  in  l.SfsT  and  1S88,  "when  if  in  the  owner's  pos- 
sf!-si(iii  she  would  have  been  coasting  during  tiu;  months 
of  .\oviinber,  December  and  January."  The  references 
jjiviii  by  Sir  Charles  in  oral  argument  to  sup|»ort  that 
(•i.iiiii  are.  to  the  Itecord,  ]iage  !t()tl,  line  I'.o,  and  jiago  !t4(), 
lit  line  !'.•.  They  are  both  in  the  examination  of  J.  D. 
W  .iiicii.  In  his  direct-examination  he  was  asked  the  fol- 
low iiig  (piestion  at  page  iuio,  lint;  I'.O: 

-'-      ■■  (,».  What  Heet  had  j()\i  in  1882  ou^ivgod  in  tliat  l)usiucss  of  coast- 
"  111.,'  iiuil  scnliuf;  V  " 

iltar  in  mind  there  is  a  distinction  between  "coasting 
ami  si-aliiig"  and  "coasting,"  which  is  shown  by  the 
-tali'ineiit  of  Collector  Milne  (Exhibit  No.  liT.  Great 
Mritain). 

'■  A.  I  bad  the  '  Grace,'  the  '  Dolphin,'  tlic  '  Anna  Beck,'  the  '  Hay- 

■  ■  ward  '  and  the  '  Tliornton.' 

■  (,>.  For  liow  many  mouths  were  they  out  on  a  i-niisc  in  188'2  ?     A. 

•  I'di-  iilxiut  four  months  or  a  little  over  it." 

Tiiat  four  months  undoubtedly  lefer  to  the  spring 
baling,  for  the  context  shows  tliat  the  counsel  was  con- 
tiiiiiig  his  examination  to  that  subject. 

'  I).  In  1883  what  fleet  had  you  out  sealing  aud  eoastiug  V     A.  I 
■   think  I  had  only  three  sealing  aud  coasting  that  year. 
■Q.  What  were  these  ■?    A.  The  '  Anna  Bcek,  the  '  Thornton,' and 

•  tlic  'Hay ward.' 

■  Q.  And  iu  1884?  A.  I  had  five  out  again  that  year.  The  'Grace,' 
■till'  'Dolphin'' the 'Anna  Ueek,' the  '  Thornton,' and  the  'Sayward.' 

•  Q.  You  had  the  same  lot  out  iu  188.")  ?     A.  Yes. 
"^  '     •■(.).  In  these  years  they  confined  their  sealing  operations  to  the 
■■  const'?    A.  Yes." 

That  evidence  shows  very  conclusively  that  the  witness 
in  speaking  of  those  four  months  was  referring  to  the 
-laliiig  oi)erations  along  the  coast  aud  not  to  trading  or 
livighting. 

Sir  C.  II.  Tupper:— That  is  thedirect-exammation,  there 
was  no  cross-exanuiuviion. 

Mr.  Lansing:— No,  wedid  notquestion  that  statement  as 
;  I'i  the  duration  of  the  spring  sealing.  Now,  in  Capt. 
Warren's  redirect  examination  (page  t*4t'>,  line  lit)  we  have 
ihr  follosving: 

'■  (^.  A  (luestiou  I  omitted  to  ask  you,  Mr.  Warren,  aud  that  is  what 

■  iiso  you   made  of  these  vessels   after  your  coasting   sealing?    A. 

•  Some  of  them  I  used  to  do  freighting  with. 

Since  Sir  Charles  in  this  question  stated  that  he  omitted 
\i>  ask  tli<!  witness  in  reference  to  this  matter  of  coasting, 

II  is  evident  that  the  former  answers  of  Capt.  Warren 
itlcrto  the  coast  sealing,  and  therefore  shoidd  not  have 
.  nil  applied  in  oral  argument  as  they  were. 

•' (^.  In  what  seasons  of  the  year?     A.  The  fall  and  winter. 

'■  <l  Did  you  use  tho  'Thornton'  for  that  purpose  ?     A.  Yes." 

Now,  upon  this  reference  is  based  the  claim  for  8!>00.()o 

III  less  to  the  owner  by  reason  of  detention  of  the  "  Say- 


'o 


!h 


I'T 


:|i   I 


,((f' 


II; 


Otte 


(Mr.  Jjiuisinn's  Argument.) 

ward"  during  tlie  months  of  Novcnibor,  Decenihor  ;ii.| 
January.  1  claim  it  is  entiroly  unwarianted,  forVV.Mihii 
was  asKod  as  to  the  use  of  these  vessels  aftei'  tlic  cn;i,i 
sealing  had  ended  and  in  the  years  prior  to  the  entninrc  ,,1 
Bering  Sea  by  any  of  these  vessels;  and  there  is  no  t  .|. 
deuce  that  any  were  employed  aftei'  the  HtM-ing  S.| 
season.     We  have  no  evidence  of  this  vessel  having  duu' 

loauy  freighting. 

Sir  C.    H.    Tupper:— I    think   there   is   some  evidcn,,. 
about  the  "Dolphin"  having  carried  conl 

Mr.    Lansing: — You  will  find  that  in  the  testininnv   ,,( 
Walter  Walker. 

Now,    the    next  item   to   which  I  call  your  atteiiii.ui 
is  the  one  for  "Estimated  Coast  Catch  foi-  ISHS,  less  .  \ 
penses."     I  submit   there  is   no  evidence' to   substanti  iic 
that   claim;  and  in  the  case  of  the  "Say  ward'  weh.u,. 
no  evidence  as  to  her  coast  catcli  in   lss(!.  issTand   Is-^j, 

20 although  she  sejiled  each  ut  these  years  in  the  spiin-. 
We  have  no  evidence  what  these  expenses  for  188s  wcir. 
which  it  is  proposed  to  deduct.  Fiuthermore,  it  is  ne^  i  s 
sary  to  assume  a  prospective  catch,  and  I  suppose  my 
learned  friends  would  estimate  it  by  some  method  siniil.iV 
to  the  "Mary  Ellen"  formula;  but  there  has  been  n.i 
method  proposed  How,  then,  did  the  learned  couiimI 
calculate  these  profits^  Doubtless,  by  another  scheme  ;l■^ 
satisfactory  and  as  arbitrary  as  the  "  Maiy  Ellen  "  one 


30 


The  "Anna  Bkck." 

The  next  claim  to  which  I  shall  refer  is  that  of  ilio 
"Anna  Beck."  The  portion  of  the  argument  of  tlic 
United  Slates  dealing  with  that  claim  begins  at  i»age  H^--^ 
1  simply  desire  to  point  out  our  criticism  of  the  claim 
made  for  stores  on  boaid  the  schooner  at  the  time  of  tln^ 
seizure,  for  which  the  total  is  niucli  too  laige.  and  is 
clearly  an  error  in  addition.  Furthermore,  on  the  theory 
of  the  British  counst>l  that  there  should  be  an  allowain  e 
for  an  estimated  catch,  these  provisions  would  have  Ix en 

40  consumed,  and,  llierefore,  in  this  case  of  total  loss,  it  woiiM 
appear  that  our  learned  friends  substantially  abandon  that 
position,  and  now  claim  foi-  the  actual  property  that  was 
on  board  the  vessel  when  she  was  seized. 

Some  criticism  was  made  upon  our  statement  at  pai^o 
:?(Ki  of  our  argument  that  no  lecovery  could  be  ha(l  f'l 
arms  and  annnuiiition  which  were  taken  from  tht>  "  .Anna 
Beck  "  by  the  Indians.  1  should  add  to  what  is  tlitr.' 
said  that  a  claim  is  made  for  $50(1  for  each  Indian,  ainl 
there   is   no  deduction   in    any   case    for   the   arms  anl 

SOammunition  taken  otf  the  vessel  by  these  claiinaiii'- 
Certainly  my  learned  friends  cannot  come  hert;  and  claim 
that  the  owner  suffered  loss  tliiougli  the  Indians  who 
were  benefited  to  the  same  extent  and  then  make  a  Af- 
mand  for  the  Indians  also  without  making  any  allowanir 
for  the  |>roperty  they  obtained.  These  Indians  all  lie 
longed  on  the  west  coast  of  Vancouver  Island,  and  a> 
there  were  trading  stations  along  the  coast  owned  by  C'a|ii 
Warren,  the  agent  of  Thomas  H.  Cooper,  it  is  fair  t  1 
|)resume  that  the  most  of  these  guns  were  returned  to  tin' 

6oowner.     Under  any  circumstances  the  claim  for  the  In 
dians  is  not  properly  before  this  High  Commission,  as  tliiv 
are  not  specified  in   the  present  treaty,  or  in   the  claim- 
as  submitted  at  Paris. 

The  same  criticism  might  be  made  regarding  the  sealing 
boat  mentioned  on  pige  31U  of  the  United  Stat  ■sarguinent. 


(W',7 


(Mr,  Liinsing's  Arjjument.) 

t()r  which  $140  is  claiiiHul,  iis  was  said  of  thoarms  and  ain- 
inMiiition,  as  it  also  was  taken  by  the  Indians.  I  should 
ailil  ill  that  connection  tiiat  it  appears  from  the  tostitnony 
thiit  the  boat  and  guns  were  taiton  with  the  consent  of 
the  master,  or  whoever  was  in  ciiar^eof  tlie  vessel  for  the 
(luiicr.  and  was  doubtless  d me  witliout  the  knowledge 
(if  the  United  States  ofhcials,  and  tlierefoi(>  without  their 
locmisent. 

Mr.  Peters:— If  my  learntvl  friend  will  allow  me,  in  the 
ciisi'Df  the  "AiHia  Meek"  he  has  called  attention  toonoof  the 
cliMrjA'es  -  "loss  of  stores  on  board  of  schooner  '  Anna  Beck  ' 
wlitii  seized,  as  far  as  Captain  can  recollect.  8i*''"."  He 
stnti  s  that  if  we  get  the  estimated  catch,  we  ought  not  to 
j,'('t  the  supplies  wbich  would  be  naturally  used  up  in  get- 
ting the  catch.  ( )u  icference  to  pages  lot'd  and  l(i(!2  of 
tlir  Record  1  find  that  a  |)ortion  of  the  s'.HKi  is  made  Uj)  of 
supplies  and  provisions  which  woidd  be  used  up  in  the 
joiiinrseof  getting  the  estiniateil  catch,  and  to  that  extent 
tlieie  should  be  a  deduction,  and  I  will  get  the  exact 
iigures  and  yu'fsent  them  to  tbe  Commission. 

Mr.  Lansing:— The  total  in  the  iUwn  you  have  just  read 
is  also  wrong;  it  is  ^KKi  too  nnicli. 

Mr.  Peters:— If  tliat  is  tbe  fact  it  will  have  to  be  cor- 
iiicti'd  also. 

Mr.  Liinsing:  — 1  might  add  at  this  [xiint  that  these  cor- 
icctions  sliould  have  been  made  when  tin?  claims  were 
orally  discussed  by  the  learned  counsel,  as  they  were  all 
;osct  out  in  our  piinted  rejtly.  I  also  call  the  attention  of 
my  l(\'n  ned  friend  to  the  fact  that  ^l-io  is  chaiged  for  one 
i)oat  and  81-a  for  another  boat.  Tbe  fact  is  the  "  Anna 
Hi'ck"  only  had  on(>  boat  which  the  Indians  carried  away 
with  them. 

There  are  throughout  these  schedules  attached  to  each  of 
the  claims,  as  set  out  in  the  argument  in  chief  on  behalf  of 
(beat  Hritain,  as  we  have  shown  in  our  brief,  many  items 
wliicii  demand  corrections  similar  to  these,  which  I  have 
rifencd  to;  and  I  have  oidy  selected  a  few  to  illustrate  to 
.;ov(iur  Honors  how  these  claims  and  schedules  are  made  up; 
and  every  item,  I  think,  to  which  I  have  referred  orally, 
my  leirned  friends  upon  the  other  side  have  carefully  com- 
|)are(l  with  the  K(!Ci>rd.  and  then  corrected  their  original 
claim  to  meet  our  ( riticisms. 

Mr.  I'eteis:  — Because  you  were  right. 

.Mr.  Dickinson:— Tlie  same  corrections  are  in  our  printed 
ar},Miineut,  and  wo  claim  that  all  the  corrections  mentioned 
there  are  right. 

Mr.  Limsing: — The.se  corrections  were  in  our   brief,  Imt 

-wVdur  claims  were  not  corrected  until  we  pointed   out   the 

t'rrois  orally,  although  you  had  the  opportunity  to  do  so 

when  discussing  these  claims  here. 

I    desire    to    call    attention    to    another 
claim    of     "  Anna     Beck,"  and     that    is 
the    catch     for    the    remainder    of    the 


duration  of   the  season  claimed  for   the 


item    in   t  ho 
the    one    for 
season.     The 
'  Anna  Beck" 


in  that  item  is  from  the  time  she  entered  the  Sea  until 
St'|iti'inbor  15th.  The  position  now  assumed  as  to  the 
duration  of  the  season  (a  new  position,  as  it  wasncjt  relied 
Mipou  in  the  printed  argument  of  Great  Britain),  that  it  is 
till!  intent  of  the  master  or  owner  which  is  to  deternu'ne 
how  long  the  vessel  would  have  lemained  in  the  Sea,  and 
not  actual  experience,  will  not  bear  out  the  extension  of 
thu  season  to  that  date  any  more  than  the  general  evi- 
dihco.     1  read  a  portion  of  the  testimony  of  Olsen,  the 


^1 


t'i 


M 


mm 


««8 


•f 


(Mr.  Lansing's  Arguint'iit.) 

master  of  the  "  Anna  Heck  '"  apjioaring  at  page  1()4(),  line 
34,  of  tlie  Ueoord: 

"  Q.  Whiit  (lid  yon  do  ftbout  tlui  middle  of  Moy?  A.  I  iirocotdcl 
"  on  the  uortliorn  eoiist  and  ]i(!hriug  Hen. 

"  Q.    Tlie/iiU  sfiisiiii?     A.    Ym,  sir. 

"  Q.  And  you  iiiiide  ivrrimmoments  to  hunt  until  what  timeV  A. 
"  Well,  HH  louK  UN  1  Ihuu^ht  tit  to  stay  iu  the  Uoliring  Hea.  Tliise 
"  wore  my  ordorH.  1  haii  '•iioiii/Zi  snjiiUii's  mi  honnl  to  keep  me  ilnre 
iO  •>  unlit  the  lnyiiiuhii/  uf  .Se/ilrmher. 

"  Q.  //'"'  Imii)  were  i/iiii  inslrinleil  lit  Ktiij/  Ihere?  A.  As  loinj  m  / 
"  thiiiiijhl  ri'iisoHiihlH  lo  ijel  skins, 

"  Q.     Did    i/uii  fit   nut   i/iinr  cessel   fur  lluit  leiiylh  of  voyitge?     A     / 

"(/!(/." 

The  intention  of  tlio  Captain  is  very  clearly  shown,  lie 
was  to  btay  in  the  Sea  us  lonj;  as  he  tlionght  it  was  reason- 
ably certain  that  he  could  profitably  hunt,  but  he  only 
outfitted  until  September  1st,  and  yet  my  learned  friends 
put  in  a  claim  for  a  cati-ii  extending  toSeptembtu-  ir)ili.  1 
20  would  also  call  your  attention  to  his  testimony  at  page 
loot),  line  r).5,  of  the  Record: 

"  Q.  So  that  you  would  not  be  positive  that  you  were  outfitted  mi- 
"  til  the  Ist  Heptcmlier?  A.  I  am  j)ositive  that  I  was  outfitted  until 
"  Ist  8ei)teml)er,  when  1  left  the  west  eoast. 

"  Q.  Whv  did  you  not  put  in  sutticieut  i)roviHions  of  all  kinds  to 
"  last  nntil  1st  Heptember?  A.  I  did  so.  If  one  thing  run  short  I 
"  would  take  another  and  substitute  it  for  it.  It  is  impossible  to  tit 
"  out  a  vessel  with  everything  that  will  last  equally." 

Is  there  any  suggestion  here  of  September  15th,  or  any- 
30 thing  to  show  lie  could   have  remained  in  the  Sea  after 
Septeml)er  1st  even  if  the  weather  had  permitted? 

On  page  1041,  at  line  48,  we  have  his  testimony  as  ful 
lows : 

"  Q.   When  did  you  enter  the  Sea?    A.   On  the  '2«th  of  June. 

"  Q.  When  you  entered  the  Sea  iu  18H7,  how  long  did  you  i)r(ipn9o 
"  to  remain?  A.  Mii  inlention  inis  In  teare  i»i  the  last  0/  Aui/nsl,  if  tlu! 
"  weather  was  rough,  and  if  a  few  days  fine  I  might  remain  a  little 
"  longer." 

Could   theie  be  any  statement   more  conclusive   than 

40 that?     It  shows  whit  the  intention  of  the  captain  was  as 

to  the  voytige;  and  it  is  the  intention,  according  to  my 

learned  friends,  which  is  to  govern  the  duration  of  the 

sealing  season,  and  not  actual,  practical  experience. 

Sir  C.  H.  Tupper:— If  my  learned  friend  will  allow  me 
I  should  like  to  give  that  reference  I  was  looking  for  in 
the  case  of  the  "Sayward."  It  is  at  page  ttTS),  line  t)2,  of 
the  Record : 

'•  Q.  Did  vou  see  the  '  W.  1'.  Savward  '  built  ?    A.   Yes. 
"  Q.  When  ?    A.  About  IHHl  or  1882,  I  think  it  was  1882. 
-Q      "Q.  Hy  whom  was  she  built  ?     A.  A  man  of  the  name  of  Strachiin 
■"         "  Q.  In  Victoria  ?    A.   Ves,  in  Laing's  sliiji  yard. 

"  Q.  Do  you  know  what  dead  weight  she  carried?  A.  She  eould 
"  carry  about  111)  tons. 

'•Q.  Did  she  carry  coal  for  you?  A.  Yes,  wo  had  a  load  or  two 
"  after  she  was  built  in  the  spring  of  1883." 

Mr.  Lansing:  -Then;  is  no  evidence  of  her  having  coasted 
in  any  other  year,  and  she  then  oidy  carried  two  loads 
of  freight.  Ai)parently  tiie  witness  Walker,  who  was  iu 
the  coal  trade.  nev(,'r  used  the  ves.sel  at  any  other  time, 
because  he  sjieaks  specifically  of  1SS8.  and  states  she  only 
carried  one  or  two  loads  for  him.  We  must  conclude  tiiat 
he  found  she  was  not  fitted  for  freighting,  probably  be- 
cause siie  had  no  auxiliary  engine,  and  tlie  coaling  was 
carried  on  in  the  inland  waters.  Furthermore,  that  was 
befoie  Bering  Sea  bad  become  a  resort  for  sealers,  and 
the  evidence  is  sufficient  to  show  that  it  took  considerable 


661) 


(Mr.  LaiiHing's  Aigiiinent.) 

time  to  repair  and  refit  a  Hailing  vessel  after  her  return 
fivin  that  voyage.  Besides  you  vvill  bear  in  mind  what  it 
wiis  shown  in  relation  to  the  "Carolena."  'I'liat  it  was 
lilt  essaiy  for  a  vessel  engaged  in  sealing  to  he  pecnliaily 
oiitlitted,  to  have  repairs  and  ehaiiges  made,  which  pro- 
vided bins  for  salt,  "kenches"  for  holding  skins,  and  large 
sleeping  quarters  for  rarrying  Indian  hiinteis.     A  vessel 

lopii  |i,ired  tor  a  sealei'  was  not  suitable  for  freighting,  and 
t,  re  is  no  evidence  in  this  liecoid  that  after  a  vessel  re- 
limied  from  sealing  in  Hering  Sea.  she  carried  a  load  of 
freijilit.  There  is  not  a  line  of  evidence  to  show  that  a 
siM;;le  vessel  was  so  engagiul  after  her  I'ering  Sea  trip.  If 
tile  "Say ward"  was  ever  so  employed  would  not  J.  D. 
Wiuren  have  been  called  on  to  testify  to  the  fact*  And  if 
he  failed  to  do  so,  we  must  conclude  that  this  coasting 
by  a  sealing  schooner  during  the  wiiter  is  a  myth. 
I  desire  your  Honors  to  bear  in  mind  that,  in  consider- 

2oiiig  these  claims,  I  have  only  dedt  with  a  tew  items  by 
\v;iy  of  illustration,  but  every  item  in  the  schedules  at- 
tiiclied  to  the  British  claims  is  fully  discussed  in  our 
printed  argument,  and  the  criticisms  there  made  are  sup- 
ported by  numerous  references  to  the  Record.  Not  one  of 
the  schedules  are  correct  and  very  few  of  the  items  are 
established  by  the  evidence. 


'  ■li.r^ 


^1 


II      I* 


30 


The  "Gkack"  and  thk  "Dolphin." 

The  claims  of  tli<»  "(Jiace"  and  the  "Dolphin"  have 
been  considered  together  in  the  printed  arguments,  and  I 
shall  follow  the  same  course.  It  appears  by  the  evidence 
tiiat  the  "Grace"  when  at  Sitka,  after  her  seizure  in  1887, 
was  <!iiartered  by  Cooper's  agent,  W.uren,  to  the  United 
States  Marshal  for  a  trip  to  Ouiial.  ska.  The  reference 
given  in  the  margin  of  oiu' printed  reply  is  to  page  116.5  of 
tile  K'ecoid,  at  line  "25,  where  the  following  appears  in  the 
cidss-examination  of  Warren: 


•'  (|>.  And  you  received  no  benefit  from  tbeHe  aliipa,  or  either  of 
40"tliciii,    except  the  'Havward,'   since?     A.    Oh,   the   crew  livod   up 
"  tlicic,  I  think,  until  7t"li  Soitteniher,   and  we  chortered  the  'Grace' 
■'  111  j,'(i  to  Ounahiska. 

'•  ().  Wlio  did  ?  .\.  I  did.  Tliat  wa.s  before  Hhe  was  condemned.  I 
'■  rliiutert'd  iier  to  the  United  Htates  Marshal,  and  the  United  States 
"  Marshal  allowed  us  to  take  all  tlie  provisioUM  that  was  left  on  the 
"  '(inu'c  '  and  the  'Dolphin  '  to  help  to  fit  her  to  t?o  to  Ouualaska  to 
"  liriu},'  tlie  skins. 

"  ().  All  the  provisiouH  that  were  left  at  that  time  ?  A.  Yes,  after 
"  Us  living  on  them. 

"  (,».  You  lot  the  marshal  have  her  ?     A.  I  chartered  her  to  the 
"  iimrslml,  and  sent  over  there  and  l)rouKht  the  seals  back. 
50     "  (,>.  l>id  you  Ro  ?     A.   No,  ('aj)taiu  Pottit  went. 

'■  ().  I'oriiierly  Ca])tain  of  the  '  Grace  ■  ?     A.   Yes, 

••  (,).  How  loag  were  they  gone  ?  A.  I  cannot  just  say.  They  made 
"  !i  f;iir  [lassage. 

"  (,).  Did  you  take  vour  own  crew  ?  A.  Yes,  we  sent  out  our  own 
"  cri'w.     The  marshal  sent  one  man  with  them,  I  think. 

"  (,).  I  suppose  that  this  was  a  kind  of  free-will  olTering  from  your- 
"  srlf  to  the  marshal  V     A.  Ho  paid  me  for  it. 

"  (^.  How  much  did  y<m  get  ?     A.  I  got  .'i?2,50(). 

"  (,).  In  cash  V  A.  Mostly.  I  really  expect  it  was  all  in  cash.  I 
"  kiiiiw  I  got  5*2,080  in  a  cheipie. 

■  (,i.   Was   the  cheque   good  ?     A.  The   cheque   was    good,    and   I 
()Q  "  think,  as  near  as  I  can  understand  it,  he  paid  some  other  bills. 

'■  ().  And  you  threw  in  the  provisicms  in  this  deal  V  A.  He  allowed 
"  lui'  to  take  all  the  i)r()visi(ins  thei-e  was  there  to  fit  her  out. 

"  (.>.   .\nd  you  fitted  her  out  for  this  charter  ?    A.   Yes. 

"  (,).  And  you  put  the  provisious  on  Itoard  the  'Cirace' yourself  ? 
"  A.  Yes,  and  my  men.  It  there  was  anything  short  we  had  to  buy 
"  tliciii  uj)  there." 


u 


i^ 


070 


(Mr.  LaiiHiiin's  Arnmueiit.) 

And  aK'nii  J^t  |i.i>><'  117!*,  lino  2(1,  in  his  rcdirectexnmin 
tion  wo  Imvo  tlio  tollowiiiK: 

"  Q.  You  Mpoko  o(  8J,r>(ll)  Ihuuk  till)  chnrtnrtul  prii-o?    A.  Yi'h. 
"(J.  Is  timt  S'J.llDildfS'J.WMI'i'    A.  $'2,rm. 


lo, 


'  Q.  An^  yi)U  mwc  (if  tlmt?     A.   Yt'H. 
•' tj.  Call  Voii  tliul  that  ill  vxiir  ItooknV     A.   I  do  not  know,  Itiit  very 
likely  it  is  tliciv. 

"  i.).  Wlic'ii  you  lire  lonkiiiK  >i|i  the  otliiT  innti'riiil  juHt  luiikt'  u  uoli' 
of  that?  A.  I  can  t<ll  just  liow  I  do  it'iiii'iiilu'r  llial  it  wan  jfj.'iiiii. 
Till'  iiiarshal  paid  iiioiicys  for  iiii'   up   tlit'ic   in  conni'rtion  witji  ilir 

111'  HH\t> 


tititr  to  fiiui' liuiidi'ril  and  soiin'  odd   dolliii's,  and  1 


"  triji  aiiiountitiK 

"  mo  a  I'lii'ipit'  I'oi'  the  lialaiii'i',  sf'i,o;iO,  makiiij;  !*lJ,'i(HI  altoj^ctlii'r. 

"  t^.  How  was  tliis  5?lll(l  niudi'  up?  Was  it  in  casliV  A.  I  think 
•'  liki'ly  liti  paid  it  in  casli.  Hiuin'of  it  was  fortlii'  crew  and  souu'  of  it 
••  for  littli'  liills  111  SitUa. 

"  llii't'onniiissioni'r  on  t  lie  part  of  Her  Majusty.  -You  wcri'  to  out  lit 
"  the  vi'ssil  and  p»y  the  wa^i'^V 

"  The  Witiii'Hs.  — Yi'H.  and  outfit  lior.  He  )mid  aliout  8t70ou  aci'muit 
"  of  this  for  nio,  aud  hi'  then  >,'uvi>  luo  a  I'lifipio  for  iJ'J.OilO. 

"  y.   Was  aiiT  more  of  till' iirtOd  Mpi'ut  for  outtittiu^   the   voBHelV    A. 
.O  .,  Well  soiiii'  of  it  may  have  liocii. 

"  y.   Woidd  your  hooks  mIiow  that?     A.   I  cannot  say  without   lonk- 

"iiK" 

"  Thi'Coiiiinissioiicron  tlio  jiart  vf  Hor  Mivji'sty. — You  took  your  pro- 
"  visioiiH  from  the  othiT  vi'sst'ls? 

"  The  Witnt'sw.     The  marshal  aUowcd  me  to  tako  any  goodH  on  thi' 


3" 


it  wiiiild  apiirai.  f  lu'ictiirc.  Iicsidoitiiy'ii^  VVai'i't-n  ir^:.'.!!:'.!!, 
Iliat  till'  Maisli.il  iiiitlilti'ii  tlii'  V('s^;o!  fiii-  him:  ami  tliiTi'  is 
nil  siiooi'siiiiii  — 

Sir  (.'.  11.  'rn|)|ii'i:  — l'rilia|is  tor  (•iiiivciiicnci'  vuii  iiii^ht 
CDmimif  llic  cvidi'MCL'  tlu'icat  [la^^c  117!t. 

Mr.   i,aiisiMg:— Ct'ftainlv. 

•' Thi' CoiiimisHioni'r  on  the  (lart  of  Hor  Majesty; — 'Then  you  jjut 
'■  your  I'harti'icd  prii'i'V 

"Till'  Witness; — 'I  ^ot  the  eliurtered  jiriee  ludopendeiit  of  tlmt.'" 

Of  c()Uist>.  if  tiiat  is  I'XpJanatory  of  aiiytliinj;,  I  am  voiv 


.illi 


im  til  re 


(1  it, 


40 


It  would  aiipcar,  tiu'icion',  that  licsidc  payiiif;'  tluTiow. 
and  iiandiii^  over  )?:i,o;«i  to  Waneii.  tlic  Marslial  als  i 
allowt'd  liim  to  taivctiic  provisions  from  tlii'  otlii-r  vessels, 
lilt'  "  Dolpliiii."  tile  "Anna  Ht-ck  ""  and  the  "  Saywiud  "; 
yet  Miere  is  no  deduition  frmn  the  rlaini  inadi!  for  the  I'sti 
rnatod  eatrh  of  tliese  vi'ss^ls  of  these  provisions  wliicli 
k'ere    nsi'd    dnrino    the    triji   of   the  "  (irace"  under   this 


iliartt 


er.  and  there  is  no  siij;-;^('stion  liy  my  lea 


irned 


tior   lias   there  hoeii  lu'fi 


or 


elsewhere,    that    thi? 


rieiiils, 
Sl'  (1811 


leceiveil   for  the  nse  of  that,  vessel  bv  Warren  siionld 


deducted   from  tlir  elaim  of  the  "  Grace 


It 


1)1' 
seems  ex 


50 


traordinary  that  mv  learned  frir:,ds  in  their  printed  aioii 
Mniil  in  chief  coultl  have  ionoi-cl  iht?  fact  of  this  chatter. 
Milt  they  have  .loiii-  so.  Certainly,  it'  (treat  Britain  coidil 
estahlish  that  any  sum  for  an  estinitited  catch  was  to  he 
.illoweil.  that  amount,  8-\"'5<',  should  he  dedncted  from  it, 
heing  eainiiit;s  for  the  very  time  when,  accordiii};'  to  the 
learned  counsel,  that  catch  was  to  have  been  made.  Of 
course,  this  simi,  s2,n;^(».  does  not  reiiresent  a  fair  charter 
value  of  the  vessel,  as  there  were  peculiar  circiinistaiices 
and  an  immediate  nei'essity,  which  conipelled  the  United 
f-jfSliites  Marshal  to  pay  most  lihorally  to  have  the  sealskins 
at  Ounalaska  hrouolit  to  Sitka.  Under  any  circinn.stances. 
I  lie  vessel  liavinj.;  hecome  a  total  loss,  that  amount  should 
have  iieen  deducted,  as  Warren,  as  agent,  was  receiving; 
cliaifei  moiK'y  for  a  vessel  which  was  totjilly  lost  to  him, 
,iiid  wliioli  properly  iieloiiKed  lo  the  United  States, 


.071 


(Mr.  Lansin^'H  Aigiiniunt.) 

Then  too  thero  is  no  Hunj^cstioii  that  thi'so  vvaRos,  paid  to 
tli.  nvvf  of  the  "dmco"  fortiio  trip  to  Omiulaska,  should 
l)(Ml((hictt'il  from  tlie  claims  now  mado  for  the  mcmliorsof 
till'  ciovv.  Of  coiirso,  tho  IJiiitwl  States  do  not  for  a  mo- 
mint  concede  that  there  is  any  claim  that  can  he  allowed 
til.  crew  by  this  Commission;  hiit,  at  the  same  time  in 
|iirsentin}j;    such   a   claim,    in    all    fairness    tiieir    wa^es 

lofoi  tlie  |)eriod  during  which  they  were  employed  on  this 
vi^M'l  should  have  heen  deducted.  The  captain,  who 
li;i(l  charge  of  the  "  Urace  "  during  this  voyage,  your 
Ijiiiiors  will  remendier,  was  Captain  Telit,  who  has  a  ()er- 
sonal  claim  hertt  for  hardships,  imprisonment,  and  illegal 
arri'st;  and  the  evidence  discloses  that  he  was  receiving 
WM^es  from  the  United  States  at  tii»!  very  time  ho  was 
sii|i|iosed  to  have  heen  imi)risone(l;  and  he  asks  !is4.oo0  for 
tin  iiardships  lit!  suH'ered  in  heing  allowed  to  go  to  Oun- 
al,i-ka   as  captain  of  the  "Grace,'"   receiving   wages  and 

.'ofi'i'il  while  on  the  voyage— in  connnand  of  tlie  very  vessel 
ill  wliicli  he  sailed  from  Victoria  as  master.  Furthermore, 
ns  he  did  not  return  to  Sitka  witii  the  skins  until  all  the 
Dtlier  captains  and  mates  had  left  for  home,  he  never  was 
routined;  nor  is  there  any  evidence  that  he  was  even 
(liliiiied  i»y  the  United  States. 

Willi  reference  to  ihe  guns  on  the  "  Dolphin,"  I  think 
ilir  evidence  has  heen  fully  dealt  with  in  our  brief  at 
|iiit;v  lUilt,  shewing  that  the  Indians  owned  the  gnus  used 
liy  them,  and  that  they  did  not  belong  to  the  vessel,  and 

^utliat  tiiese  guns  were  returned  to  tlieir  owners.  I  read 
fiMiii  page  n.5i>  of  the  Kecord,  line  'Mi: 

•riio  IndiauH  ou  the  '  Dolphin '  got  their  giiUH  Imok.  I  ilo  not 
"  kiiDW,  Imt  I  Hni)i>oso  tho  luiUnnH  on  the  '  (h'ai'i' '  got  theirs  also. 
"  Tlirv  wore  thero  at  the  time,  ami  I  know  they  were  given  what  they 
"  1  liiiined. 

■■().  Do  yon  mean  liy  '  their  guns '  guUH  furniHheil  them  by  you? 
'   A.  So,  their  oifn  i/uns.     There  were  unite  a  number  of  them  seized. " 

Tliat  shews  conclusively  that  the  Indians  owned  these 
^iiiis,  for  which  a  claim  is   now  made.     Furthermore,  the 

40i\  idiiice  in  the  case  of  the  '•  Dolpliin,"  at  page  l(!;{  of  the 
Kxhiliits,  discloses  that  there  were  only  three  rifles  and 
twenty  shot  guns  libelled,  while  the  British  argument 
I  hiiiiis  for  "  2()  guns,  10  muzzle  loading  guns  and  4  rifles  " 
Ijiai^o  i'2l?,  lino  IS). 

I  also  desire  to  call  the  attention  of  your  Honors  to  the 
iti m  tor  premiums  of  insurance,  for  which  our  learned 
fiii  lids  claim  over  ^7(10;  it  is  criticised  at  page  4ou  of  our 
iiii;uiiient,  and  that  criticism  has  not  been  dealt  with  in 
tliiii  printed  reply  or  in  oral  argument  by  the  learned 

.;(i ciiiiii.sel  on  behalf  of  Great  Britain. 

Sir  C.  H.  Tupper:— I  did  not  wish  to  repeat  anything 
my  learned  associate  has  stated  in  the  other  cases,  so  far 
as  tile  general  principle  is  concerned. 

Mr.  Lansing: — There  is  no  application  of  a  general  prin- 
tilili'  ill  this  case.  In  the  claim,  in  which  yon  referred  to 
till'  insurance,  there  were  no  i)olicies  in  evidence,  and 
tliiii-  cancellation  was  a  conclusion.  Here  the  policies  are 
ill  I'viiience  and  show  on  their  face  that  they  were  can- 
celed on   August  2d,   yet  no  deduction  is  made  in  the 

6o  Hi  it isli  argument  for  return  of  premiums— the  premium 
isrharged  through  to  the  following  March.  That  is  the 
ciitirism  I  make.  We  made  different  criticisms  in  differ- 
ent rases,  and  only  one  was  dealt  with,  that  in  regard  to 
till'  ■'Thornton,"  in  which  case  the  policies  were  not  pro- 
•liiMMJ,  but  in  those  claims  in  which  the  policies  were  put 


il'llll. 


• 


\if 


PfFT- 


IIT 


07L' 

(Mr.  Lansing's  Argument.) 

in  evidence,  my  learned  fiiends  made  no  comment  in  tli.  ii- 
oral  argument,  and  I  submit  our  criticism  is  entirely  jiNt^ 
that  where  it  states  on  I  lie  face  of  the  policy  that  it  was 
canceled  on  such  a  day,  it  is  prima  far  if  evidence  that 
the  (uvner,  or  his  agent,  received  the  balance  of  th(>  luc- 
minm  from  that  time  mitil  the  expiration  of  the  policv 
In  refeience  to  the  seal  skins  seized  upon  the  '•  Dolpliin  " 

loand  "Grace."  which  we  shewed  were  resold  to  Wan vii, 
my  learned  friend,  Sir  Charles,  criticised  our  statenn  nt 
that  the  owner  can  only  righlfidly  claim  the  amount  |mm1 
for  them  by  his  agent,  on  the  ground  that  the  skins  had 
been  damaged  by  rats,  and  weie  not  therefore  wortii  as 
much  when  lecovered  as  when  seized.  At  the  time,  I  iv- 
inember,  I  challenged  the  statement  which  be  made,  stating 
that  I  thought  it  was  incorrect,  and  that  the  Record  shewed 
the  "  Henrietta's"  skins  'vere  the  only  ones  damaged  liy 
rats;  but  1  find  that  I  was  in  erior,  and  T  desire  to  correct 

20  my  mistake  by  reading  the  evidence  in  the  liecoid.  Tliu 
-forence  is  to  page  l!t!t'_',  line  4:5,  which  contains  a  pail  of 
lue  repoi't  of  the  ap]traisers  read  into  the  Kecor<l  hy  (nie 
of  Her  Majesty's  coinisel,  which  is  as  follows:  "  A  nuinhfi' 
"  of  sacks  had  been  jiartially  tcn'u  and  rendered  useless, 
"  having  been  gnawed  by  rats,  and  from  the  same  cause 
"  about  a  ilozen  jx'lts  irere  fovnd  to  hove  l)eeii  (fdnHdjcd.'" 
So  far  as  those  dozen  skins  ar(>  concerned,  I  desire  to 
qualify  what  I  said,  but  no  (nrther;  and  we  aie  very 
willing  to  concede  liability   foi'  the  full  value  of  these  ll* 

SOskins.  l^ut  in  th(>  case  of  the  other  |ielts  we  consider  tiiat 
the  claimant,  if  he  is  entitled  to  reco\cr  at  all  before  this 
Commission  (which  we  deny)  was  only  damaged  to  the 
extent  of  the  sums  which  be  |iaid  for  these  skin.s  when 
they  were  sold  at  auction  by  the  United  States  autiioi'- 
ities. 

The  "Ada." 

In  regard  to  the  claim  of  the  "  Ada,"  I  simply  dt^siie  to 
say  in  n'lation  to  the  duration  of  her  s(>ason  that  pi.icti- 
40cal  experience  has  shewn  (and  1  thiidc  1  demonstrated  to 
your  Honors  th>s  morning  very  conclusively  what  such 
experience  was)  that  the  close  of  the  season  was  approxi- 
mately tlH>  LTjtb  of  August:  and  when  Captain  tiaudin, 
who  never  had  heeii  sealing  before,  and  lu'ver  has  liecii 
sealing  since,  attempts  to  say  he  intended  to  stay  in  the 
Sea  after  that  dale,  I  submit  that,  even  if  he  had  re- 
mained, tbei'c  is  no  probability  that  be  would  h.ivo 
secured  a  single  seal. 

There  is  no  discussion  hy  my  learned  friends  of  oiir 
50 criticism  of  the  claim  made  for  insunuice  premiums  in  the 
"Ada  "case;  and  no  disrussion  of  (jur  statement  that  some 
of  the  canoes  and  guns  were  returned.  It  is  fair  toas-uiiie 
that  tlicy  ((udd  find  no  answer  to  our  statements,  whicii 
are  sujiported  by  am|)le  evidence. 

'J  lu' Cfinunissioiier  (111  the  part  of  the  I'nited  States:  - 
Mr.  liansing,  if  Mr.  Cooper  w;is  the  owner  of  these  ves-els 
(the  "  (irace"  and  "  Dolphin"),  how  can  you  chaige  liiiii 
with  what  Mr.  Warren  made  on  these  skuis. 

Mr.  Lansing: — because  be  entered  them  all  on  the  JMMiks 
(jcof  Mr.  Cooper. 

Sir  C.  H.  Tujtper: — Have  you  the  I'ecord  for  that? 

Mr.  Lansing:— You  will  find  that  he  st.ites  they  were  so 
enteri'd. 

'i'he  Conunissioiier  on  the  part  of  the  United  Stale>:— 


l> 
I)oe^•  the  reference  to  the   b'ecord   here,  page    llv^L   ■-' 


IcW 


(17;^ 


(Mr.  Lansing's  Argument.) 

all  that?  If  not,  you  had  better  give  me  the  additional 
rrlVrences. 

Mr.  Lansing:  -In  regard  to  tl  e  money  received  from  ilie 
M;irslial,  I  will  shew  it  was  crei'ited  on  the  liooks  of  the 
schooner. 

Sir  C.  H.  Tupper:  — Cooper's? 

Ml.  Lansing; — Certainly,  as  Cooper  owned  the  vessel.  I 
Rishiiuld,  perhajjs,  say  the  hooks  of  the  schooners.  They 
aifcalled  "  Cooper's  hooks  "  i)y  Warren,  hnt.  perhaps,  tliey 
li.ive  not  that  title  on  their  covers.  They  |)rohahiy  have 
tilt' name  of  tiie  vessel.  From  tho.se  hooks  the  C'ooper 
claims  |)resented  to  vonr  Honors  are  made  np. 

.Mr.  Dickinson: — Presented  at  Paris,  and  sworn  to  as 
(  I  toper's  claims. 

ThcConnnission".'on  the  part  of  the  United  States: — Vou 

ini'd  not  stop  for   rc^'.-rence  now,   it   is    not   necessary  to 

delay.     I  suppose  the  cancellation  of  the  item  of  insurance 

20 is  the  .same  on  hoth  vessels-  that  is  to  .say  the  "Grace" 

ami  the  "  Dolphin  "--substantially  the  same  facts? 

.Mr.  Lansing:— -Yes,  substantially  the  same;  there  is  in 
pncli  case  a  claim  made  for  premiums  until  the  expiration 
of  the  policies,  when  in  fact  the  latter  were  cancelled  soon 
alter  the  seizure.  You  will  find  the  item  for  insuiance  in 
each  .schedule  fully  discussed  in  our  printed  biief. 

There  was  one  matter  I  omitted  in  dealing  with  the 
value  of  vessels  to  which  1  desire  to  refer,  and  that  is  in 
ivl.ifion  to  the  credibility  of  ovvntMS  of  vessels  as  wit- 
;oiies.scs  to  pntve  their  value.  It  met  with  severe  criticism 
fioin  my  learned  friend,  Mr.  Bodwell,  and  I  jno]K)so  to 
shew  that  the  comments  l)y  the  United  States  upon  the 
testimony  of  these  three  nu'U,  Munsie,  Warren  and  Spring, 
as  to  the  value  of  vessels  is  entirely  justifiable.  I  refer  to 
page  :.'!I0  of  the  United  States  argument,  where  there  ap- 
jiea is  .in  extract  from  the  report  of  the  Committee  ap- 
piiiiited  by  tlie  Hoard  of  Trade,  relied  upon  by  (ireat  Britain 
ill  the  (ieiieva  arbitiation,  which  is  (jnoted  in  the  connter- 
case  iif  (ireat  Hi'itaiu  at  page  i;?4  (Oeneva  Arbitration  pa- 
40|ie!si,     The  extract  is  as  follows: 

■  It  will  1)0  at  (Hicc  adniitti'd  liy  thoso  wlio  an>  at  all  familiar  with 

■  till'  |iiiicti(»'  of  tlio  courts  in  luaritiino  cawcn  that  it  is  inipossililo  to 
■'  iiliic  c  miu'li  reliance  on  the  o|iiiiioii  or  evidence  of  ship  owners  or 
'■  i.iiTehiints  as  to  the  value  of  |iroi)ertv,  which  they  are  seeking  to 
"  icrover.     Hhip  owners  are  in  the  haliit  of  foundinfj;  their  estimate 

■  not  on  what  wouh'  lie  tlie  niark't  [)rice  of  the  vessel  at  the  time  of 
•'  hi  T  loss,  but  on  the  original  cost  price,  and  oft(>n  take  into  account 

•  the  anioupts  whii'h  they  have  ex)pended  at   ilitt'erent  times  without 

■  iUiy  proper  deiluctiou  for  the  wear  and  tear  and  danuige  which  has 
'■  Imim  sustained." 

le  reasons  set  out  in  that  extract  I  claim  that  any 
.   ...:*. ..,^^,,^_  Warren,  who  claims  to 


^0     |',,rth 
eviili'iice  given 


by  the   witnesses,  U 

be  ,111  nwner,  Mtinsie  and  Charles  Spring,  in  relation  to 
the  vessels  in  which  they  are  interesteil.  aial  their  lesti- 
iiimiy  as  to  the  valiu>  of  other  vessels  slioiild  \>o  received 
with  extreme  caution. 

Ill  relation  to  the  crediliility  of  Warren,  1  tiu'u  to  page 
■jvi;  (lithe  IJecord,  line  IJt,  where  apjiears  ;ui  extract  from 
till'  lilidavit  of  Warren  on  which  the  claims  v.ere  made 
Uji.il  nttaw.a,  in  ISST,  in  which  In-  bases  his  Bering  Sea 
'lalrli  iipoii  Ihe  catch  of  i:!  vssels  "  in  and  about  Beiing 
".^ea"  lb' stilted  in  eNplanation  of  this  lliat  he  was  n- 
stinctedat  ( )ttawa  I  b'eiord,  pagei'ss,  lino  jo)  to  make  up 
till  catch  for  Bering  Sea,  which  he  could  not  possibly  do, 
"  l.ii."  he  s.iys,  "I  did  not  have  the  figures,"  ;ind  so  he 
iniile  oiit  the  list  in  the  way  he<liil,  put  ting  in    the  catch 


(!74 

(Mr.  Lansing's  Argument.) 

for  the  entire  season;  but  lie  kneiu  the  Bering  Sea  cat  li 
of  the  "  Dolphin,"  the  vessel  of  which  he  was  master,  \.t 
he  puts  her  catch  in  his  schedule,  from  which  he  draws 
a  general  average  as  a  basis  for  computing  an  estiinai.il 
catch  for  Bering  Sea,  at  2,t)(il  skins,  while  the  "I1..I. 
phin  "  in  fact  took  but  2,(»;{7  skins  in  the  Sea;  lli.. 
"Giace"  is  credited  with  2,550,   while  she  took  on   li.  r 

10  northern  trip  l)Ut  1,7()5,  .icconiing  to  Warren's  own  tt'>-ii. 
mony;  and  the  "  Saj  ward  "  L'.725,  while  she  took  luit 
l,5i)(').  Now,  these  were  facts  that  Capt.  Warren  kn.  w 
at  the  time  he  made  out  his  scliediile,  and  yet  lie  incindid 
the  catch  of  each  of  these  vessels  for  the  whole  season  ui 
his  list,  from  which  he  attempts  to  show  wiwit  a  ve^-MJ 
would  have  done  in  Bering  Sea  alone.  1  suhniit  th;il  a 
man  who  wonid  do  that  under  oath  is  a  witness  ivho-c 
statements  we  have  a  right  to  (Question,  i)ar  ticularly  i'|m,|) 
values.     'I'lieic  is  an    evident    miention   to  exaggerat.    m 

20  this  prestMitation  of  claims  at  Ottawa,  ami  we  have  cm  1  y 
reason  to  expect  that  in  giving  oral  testimony  he  would 
not  hesitate  to  employ  the  same  methods,  especially  wImiv 
he  is  asked  his  oi)inion,  which  it  is  impossible  to  prove 
false.  In  regard  to  that  schedule  of  Warien's,  I  iiftr 
also  to  page  2M5of  Kecord,  line  t!8,  where;  his  testinionv  is 
as  follows: 

"  Q.  Just  tell  us  how  you  compiled  tliat  table?  A.  I  Umk  llf  •■.ihl, 
"  of  cn'lahi  scliifiiefs  iti  Be/iriiiif  iSni/<ir  ISSfi,  vr^  ••''■  that  I  kuew  tn  lii> 
"  in  the  Sea,  aud  those  I  did  not  know  to  bo  in  !!i'   S  .\  I  left  out." 

•^°  ile  knew  tliat  he  was  taking  the  cau^i.  for  the  whuji' 
season  instead  of  the  catcii  in  Bering  Sea;  he  knew  that 
he  had  endeavored  to  establisii  the  Bering  Sea  catcli  from 
a  general  average  for  tiie  entire  season,  but  does  lie  in- 
form your  Honors  of  his  methods?  No;  not  until  his 
counsel  suggests  an  explauation.  Sucii  methods  aiv 
enough  to  thi'ow  discredit  upon  all  the  testimony  given 
by  James  l)(jnglas  Wan  en. 

I  now  call  youi'  attention  to  the  evidence  of  diaries 
Spring,  at  i»age  s77  of  tlie  Kecord,  aud  read,  bt^ginning  ;it 

'*°Iine  10,  the  following  from  his  cross-examination: 

"  (^.  You  liavf  i)ut  in  a  claim  heretofore  again.st  the  United  Studs 
"  (Jovcruiiicut.  in  which  you  .stateil  that  the  'Onwai'd  '  took  400  ^,luus, 
"  aud  you  deducted  those  400  skius  from  an  estimated  catcli  for  llic 
"  seasciu,  and  claiiaed  from  the  United  States  (iovernment  the  lialiiuce. 

"  The  ('omiiiissionerou  the  part  of  the  United  States: — Mr.  Warren, 
"  that  evidently  is  in  writinj?.  The  proper  course  is  to  show  him  Ihe 
"  claim." 

Then  his  a(fi<lavit,  apjiearing  at   page  tin,   volume  .")  nf 
the   .Ameiiran   reprint,    was   sh  two   the   witness,  and  liis 
Soci'oss-examination  continues: 

"Now,  Mr.  8j)rinp;,  you  know  that  the  'Onward'  took  more  tli;in 
400  skins  in  lieriug  Sea  that  year,  do  you  not  ?    A.   Yes,  sir." 

And  yet  that  affidavit,  made  in  ( )ctobei,  188(1,  is  swniii 
to  hy  Spring,  when  he  knew  that  the  vessel  had  taken 
more  than  4o(i  skins;  in  fact  he  testifies  that  be  knew  she 
had  secured  1)07.  1  submit  it  isheieshown  that  there  was 
an  intentiou  ou  the  part  of  the  witness,  when  he  nmle 
that  atfidavit,  to  deceive;  and  if  he  intended  to  deceive 
oothen,  it  is  fair  to  presume  tliat  he  would  havt!  deceived  at 
Victoria,  if  opportiuiity  had  olfered,  and  the  oppoitmiity 
was  offered  when  he  testified  as  to  the  vj-'-e  of  vessels. 
in  estimating  the  catch  of  the  "  Onward  "  in  l^Hii,  he  ex- 
aggerated, and  in  placing  a  vale.  H[,y>i\  th(!  "  (";iioleii,i  " 
and  "  Onward  "  1  charge  that  he  has  again  exaggeialeil 


-„-'3B3k 


ti7r> 


W 


(Mr.  Lansing's  Avgiiment.) 

I    read    now    from   t,lie  evidence   of   Gustav    Hansen, 

(lii'i'ord,  pageSdl,  lino  r)4): 

"  Q.  Do   you   romomber  a  schooner  oallod  tho    '  Winnifreil  ? '     A. 
'•  Y'  <,  «ir. 
"  (,).   Had  you  auy  interest  in  iier  ?     A.   I  bad. 
■•(,).   What  interest  had  yon  in  licr  V     A.  Oue-third." 

"Sow,  let  US  tui'n  ti)  tlio  testimoiiy  of  Spring,  at  page 

1017:,;',  of    the   Record,    linc^  (Jo.       He   was    asked:     "  Did 

luil  ('apt.  Hansen  own  a  part  of  this  vessel  who'i  she  was 

sci/rdr"     "^vot  reeorded  "'  is  his  answer,   an  e\ident  at- 

trni|it  to  avoid  the  tri.th. 

■  (,)     I  asked  yon  if  he  owned  her  ?     A.   i  d,>u'i  liiink  so. 
■•(,>.   What  do  yon    mean  by  not   •  recorded  '  V      A.   He  is  not  regis - 
■  inril  as  an  owner. 

■  ().  I  am  not  asking  von  abotit  that;  illil  h' own  (fi  iiiliTfsl  in  the 
■•  ivw,Y.»     A.    No." 

Here  is  a  direct  contradiction  hy  the  witness  Hansen  of 
'■^ihr  witness  Spring. 

Sir  C.  H.  Tnpper:  — Read  tiie  next  statement,  so  as  to 
get  the  full  nKNiiiing  of  the  last. 

Mr  Lansing:  I  will,  thougli  my  learned  friend  will  see 
that  it  is  also  contradicted  l)y  Hansen. 

'•  t).   Wliat  was  liis  rehition  to  the  vess(d  ?      A.   Something  in   eon- 

■  lu'ctiou  with  an  aj^reenient  betw('(^u  him  and  one  of  the  owners  ;  I 
"don't  exactly  understand  the  mitnre  ot'  it;  /  diil  nut  halhe.r  iiii/self 
■■  a-ilh  il." 

.(,  .Xcuv  [  will  tui'n  to  tile  testimony  of  Hansen,  at  line  27, 
page  S04  of  tho  Record: 

•  Q.  You  did  not  pay  for  her  (tho  "  Wiunifred  "|,  as  a  matter  of 
••  t'iu't?    "  What  did  you  agree'  to  i)ay  for  hor?     A.  I  hadn't  made  any 

■  ^ftth'HU'Ut. 

■•<,).    Wlio  ilid  ;iofi  ijHt  hi'f  from?     .\.    Mr.  Sjirini/." 

Hansen  testifies  he  got  the  vessel  from  Spring;  and 
S|iiiiig  says  that  there  iiki//  have;  been  an  agreement  with 
oiii'ot  the  owners,  hut  he  did  not  "hotiier  '  iiimself  ahout  it. 
Niu\ ,  one  of  these  two  witnesses  is  giving  .also  testimony, 

41  aiiil  I  submit  that  tiu>  credil)ility  of  hoth  can  ligiitfully  lie 
iliu'slioned.  'I'liere  is  a  complete  contradicticjn  l)y  Spring 
of  .1  witness  largely  relied  ii|)oii  by  (Jreat  Britain  and 
|Kiiliculariy  relied  upon  in  the  "  VVinnifrtnl '"  case.  If 
tiii>t;iv  Hansen  swore  falsely  in  this  matter,  what  will 
vuiir  Honors  do  with  his  testimony  in  the  "Wiunifred" 
case^  If  Spring  gave  false  evidence,  and  there  is  veiy  good 
reason  tor  believing  that  he  did,  then  I  say  that  his  testi- 
iiioiiy  in  regard  to  tiie  value  of  the.se  vessels  is  unworthy 
of  any  ciei.lence  wliatsoever. 

;o  'I'iie  leslimony  of  William  Munsie,  which  is  stam|)ed 
troiii  coNcr  to  cover  of  this  Record  with  deception  and 
tal>ily,  wdl  be  fully  coiisidei(>d  by  my  associate,  Mr. 
Waireii,  although  I  am  contideiit  that  your  Honors  have 
already  reachccl  the  conclusion  that  his  statements  are 
often  untrue  and  always  unreliable. 

I  also  leave  to  my  associate  the  discussion  of  the  value 
of  M' ilskins,  tluMpiestion  of  intent  as  a  factor  in  detei'- 
iiiiiinig  the  duration  of  the  sealing  sea.son,  and  the  re- 
iiiauider  of   the  separate  claims,    which    are    before  this 

"  iii^;h  Commission. 

1  have  been  dealing  with  the  facts  which  are  in  contro- 
vi'r.sy,  but  there  is  out*  fact,  perhaps  the  only  one,  in  con- 
lU'ctieii  with  this  tribiiiKil  upon  which  the  counsel  for 
lioili  nations  are  in  full  accoi'd.  We.  like  our  distin- 
^ui^luil    fiieuds,    liave    been    deeply  im[)iessed   with    the 


(iTf) 


(Mr.  Lansing's  Argiuntiit.) 

uniform  faimi'ss  ami  consideration  wiiicli  lias  marked  tne 
conduct  of  tiiis  High  Commission  from  its  first  session  at 
Victoria  to  tlio  jiresent  time.  And  in  view  of  the  past  wo 
confldently  anticipate  tliat  the  linal  award  will  enilxiily 
those  jirinciples  of  justice  wiiich  liave  made  famous  tho 
hencii  of  both  nations,  and  wliich  siiould  distinguish  tlnir 
international  tiihunals  as  well. 

lo  '^'om'  decision  is  to  become  a  precedent  for  future  com  ts 
of  this  natui'e.  Your  inteipretation  of  the  law,  yoiii'  de- 
termination of  the  sufticiency  and  conclusiveness  of  (ho 
evidence  for  the  allowance  of  such  claims  as  are  bei'die 
you,  will  1)0  hereafter  invoked  hy  the  United  States  or  by 
lireat  Britain. 

To-day  the  claims  presented  are  against  the  United 
States;  to-morrow  similar  claims  may  he  made  against  llio 
Government  of  Her  Majesty.  'I'hese  -hums,  as  now  pre- 
sented, aggregate  over  a  million  and  a  <piarter  of  dollars. 

20 The  niwt  may  be  for  fifty  times  that  amount.  Tluio 
should  be  then  no  appeal  to  the  geiiiM'osity  of  the  United 
States,  no  d(>niaiid  for  liberality,  no  comparison  of  the 
poverty  of  tli»>  claimants  with  tlit^  wealth  of  the  Uniled 
States.  Coiii|)romis(>  and  conciliatiim  ai'ethe  instrmnents 
of  diplomacy,  not  of  justice.  The  time  for  such  appeals 
ceased  on  the  sth  day  of  February,  ISitt;,  when  the  treaty 
constituting  this  tribunal  was  signed. 

What  we  ask,  and  what  we  have  reason  to  anticipate, 
in  view  of  tlie  high  judicial  character  of  the  members  of 

30  this  Commission,  is  an  award,  which  will  coirectly  inter- 
pret the  law  and  deal  e(pial  justice  to  the  claimants  and 
to  the  United  States,  an  award  to  which  the  future  may 
tiun  with  full  confidenc<'  that  it  contains  not  one  iota 
of  compromise  nor  one  tlollar  of  damages  assessed  beyond 
what  the  evidence  discloses  and  the  law  allows. 

Such  an  award  will  bind  still  more  closely  the  friendship 
which  exists  between  these  two  great  Kuglisli-spcaking 
nations  and  will  give  a  new  stimulus  to  the  cause  of  inter- 
national  aibitration  and  per|)etual  peace. 

40     At  four  o'clock  the  Commissioners  rose. 


Commissioners  under  the  Convention  of  February  8, 

1896,    between   the   United   States   of 

America  and  Great  Britain. 


r.egislativo  Council  Chamber,  Provincial  Building, 
At  Halifax,  September  Hi,  18!>7. 

'0  Mr.  Wakken'-^  Ahoumknt. 

At  1().3(»  A.  M.  the  Comniiss-'ionerH  took  their  seats. 

Mr.  Waircn:— May  it  please  the  High  Commission:  The 
learned  counsel  for  (lireat  Britain  have  occupied  and  forti- 
fii'd  every  legal  position  which  the  facts,  as  they  would 
cunstiue  them,  demand,  and  their  ingenuity  has  at  times  so 
prevailed  njjon  us  that  the  principles  of  law  which  should 
rule  the  questions  at  issue  before  the  High  Court  have 
20iihnost  been  concealed. 

Learned  counsel  have  brought  into  the  discussion  this 
contention:  The  Cnited  States  intended,  when  seizing 
these  ships  while  hunting  in  the  waters  of  Bering  Sea, 
tliat  the  taking  of  seals  should  be  prevented,  and  there- 
fore, the  speculative,  uncertain  and  contingent  profits  of 
seal  hunting  sliould  be  allowed  the  claimants  as  damages. 

We  had  understood  that  the  rule  of  law  laid  down  by 
tile  courts,  which  declares  that  damages  sliould  not  be 
measured  by  uncertain,  future  profits,  was,  as  announced 
30 by  that  High  Ti'ibunal  convened  at  (leiieva,  based,  not 
iipnn  the  fact  that  tli<>y  are  too  remote,  but  on  the  fact 
that  the}'  are  too  uncertain  to  be  accepted  by  a  court  as  a 
just  measiu'o  for  estimating  damages. 

I  read  from  the  Award  of  the  Geneva  Tribunal: 

•■  .\ii(l,  wlioroaH  prosjiootivo  parninRR  numot  properly  1)0  made  the 
■  siiliject  of  comin'usatioii,  inasuiueli  as  tliey  ilepeiKl  in  tiieir  nature 
■•  Mpou  future  and  uncei-tain  contingencies,  tlie  Tril)uual  is  uuaui- 
••  iiiiHisly  of  opinion  tluit  tliei'C  is  uo  gro\uid  for  awarding  to  the 
"  I'liiti'd  States  iiiiii  sum  V)y  way  of  indemnity  under  tliis  liead." 


40 


;o 


(O 


Counsel  have  labored  unnecessarily,  therefore,  in  seek- 
ing out  authorities  bearing  upon  theipiestionof  intention, 
lleie  there  is  no  question  of  the  remottMiess  of  damages, 
and  the  intention  of  the  wrongdoer  is  impoitant  only  as 
hearing  on  remoteness,  where  pimitive  ore.xem|)iary  dam- 
ages are  not  demanded.  The  Barof(Jreat  Britain  ought 
not  to  search  beyond  the  famous  casi>  of  llddlcji  v.  Iht.rcii- 
(lii/r  lor  authority  to  establish  the  e.stent  to  wliicii  a 
winngdoer  is  liable  for  the  damages  consequent  upon  his 
tortiiiuis  act. 

Baron  Aldei'son.  delivering  the  opininn  ot  the  Court  in 
that  case,  said: 

■' We  tiiinli  tile  proper  vnlo  in  such  a  case  as  the  present  is  this  : 
'Wiieretwo  jiarties  have   madi'  a  contract   which  one  of   them  has 

•  lirnkeii,  the  damages  which  the  other  )>arty  ought  to  receive  in  re- 
■'  spcct  of  such  lireach  ot  contract,  should  he,  siu'h  ,.■<  nniy  fairly  and 
"  rcufoualily  l>e  considered  either  arising  naturally,  /.(.,  acc<u'ding  to 

•  thi'  iismil  course  of  things,  from  such  breach  of  I'ontraet  itself,  or, 
"  siii'li  ii>  may  reasoualdv  lie  sujiposed  t<i  have  liei'ii  in  the  contem- 
"  plotimi  of  both  jiarties  at  the  time  they  made  the  contract,   as  the 

piiilialili'  ii'sult  of  the  hreaeli  of  it.  Now.  if  the  special  circum- 
stiiiii'es  under  which  tilt  I'outract  was  actually  made  were  I'on'.mu- 
uicuted  liv  the  plaintiH's  to  tfcic  defendants,  and  thus  known  to  hoth 
IMirtiex.  thie  damages  resiijtiiiuf  from  the  lireiu'h  of  such  a  coutraet 
■  ■>  liicli  thri"  would  rCHHOualdv  contemplate,  would  he  the  amount  of 
injury  wlueh  W4ir,u.i  ordinarily  follow  from  a  hreaeh  of  contract 
under  tliet*  spi'ciiul  circumstunces  ho  known  ami  communicated." 


678 

(Mr.  WaiTon's  xXigiiiiieiit.) 

And  before  the  decision  in  that  case,  the  eminent  Ficinli 
jniist  and  publicist,  i'othier,  with  wlioso  work  on  ohlj. 
gations,  pul)lishod  last  century,  the  learned  counsel,  Mi. 
Hciqne,  will  lie  familiar,  laid  down  this  doctiine;  nor  was 
it  original  witli  that  eminent  writer,  for  he  cites,  if  I  rc- 
niemher  corre'.-i,ly,  in  this  work  on  Obligations,  tlie  ti\t 
of  the  Pa'idecls,  where  the  principle  was  declared. 

10  In  our  ov.'M  lountry.  in  ls;!l,  the  SupremeCourt  of  Ihe 
State  of  Jiouisiana  decided  the  case  of  Lobdell  vs.  Parkn, 
by  this  same  principle,  and  in  the  State  of  New  York,  in 
ls;!!».  Blaiichard  rs.  Ely  was  dt^cided  and  this  |)iin(i|i|(' 
applied. 

So  that  tliK  counsel  for  the  United  States  do  not  conte.-^t 
t.'ie  accuracy  of  the  proposition  that  a  wi'ongdoer  is  [ire- 
sumed  to  know  the  natural  and  ordinary  conse(iuences  of 
bis  own  wrung  a(;t,  and  is  liable  theicfor,  or  that  a  tort- 
feasor is  responsible  for  the    natural  and    ordinary  conse- 

2o<|nences  of  his  own  act  and  for  all  of  those  coiise(|Ui'iiri.vs 
which  he  had  reason  to    believe  would   follow  when    lie 
committed   the  tort,  but  we  enquire  what   relevancy  that 
principle  has  to  the  claims  referred  to  this   High  ConiiniH 
sion. 

The  argument  of  the  learneil  counsel  is:  When  y(  r 
Honors  shall  delermine  that  it  was  the  intention  of  '  - 
FiXecaitive  Department  of  the  (iovernment  of  the  ['ini  ', 
States  t(»  prevent  the  taking  of  seals  within  the  waters  ,.,' 
Bering   Sea  by  these  seized  ships,   then   your  minds  will 

johi'  picpiued  foi'  the  ascertainment  of  /(iris  which,  beloie 
the  intention  of  the  I'nited  States  became  ap|)arent,  were 
too  uncertain,  speculative  and  contingent  io  be  (>stimate(l. 
By  wi)at  nietlind.  we  ask,  can  the  intention  of  the  ti;it- 
f(,>asor  transmit  the  powtM'  to  a  'rribniial  todetei'unne  with 
accniacy  or  justness  ihe  facts  to  serve  as  a  basis  for 
aw.irding  damages^  'I'he  animus  of  a  tort-feasor  can 
never  render  pessible  the  just  determination  of  that  which 
is  impossible  of  ascertainment. 


40  My  associate,  Mr.  I.ansmg,  has  reviewed  with  care  ami 
accanacy  the  testiuumy  in  this  Record  bearing  uiion  llu- 
contingencies  modifying  the  catch  of  seals  and  the  im 
possibility  of  estimating  a  future  catch.  He  has  lecounti'il 
to  your  Honors  the  almost  insurmountable  obstacles  ot- 
feieil  l>y  natuie  ;ind  the  dil'liiMilt  ies  encountered  in  this 
business  o(  seal  hunting,  and  reviewed  the  teslinumy 
hearing  upon  the  clim^itic  eondilions  pievailing  in  lier 
ing  Sea.  .\nd  wa  have  the  tc^stimony  of  the  Hjiiglisji 
p<:et,  Mr.  Ki|)ling.  concerning  this  sea  of  fogs  and   nusts, 

50  for  lie  has  Avritlen  these  words: 

■'  Hulf-stciim  iilieail  by  tj;noss  iiiul  U'lid, 

fur  the  sun  is  mostly  vcileil; 
Tlu'iiiiffli  fdf^  to  fot;  l)y  luck  and  lo^;;, 

sail  vc  as  IJi'i'inK  sailed; 
And  if  till!  liKht  shall  lift  avi^lit 

to  tiivo  voiir  landfall  plair. 
North  and  liy  Wist  from  Zapru  Crest, 

yo  raise  the  CroH.soH  Twain." 

The  task  of  elucidating  the  legal  positions  of  the  L'niteil 
(K^Slates  will  devolve  upon  the  learn(-d  Senior  Counsel  I'nr 
the  United  States,  at  whose  feet  we  sit  now  and  at  all 
times  on  questions  of  law.  I,  for  myself,  beg  the  attention 
of  the  High  Coimnissioners,  while  I  recall  youi' minds  to 
the  real  facts  in  contioversy,  and  ask  you  to  breathe,  as  it 
were,  tlie  atiaosphei'e  of  the  case. 


»)7!> 


10 


:o 


(Ivlr.  Warren's  Argument*) 

Adverting,  first  of  all,  to  those  cases  wliich  wei-e  last 
ccin^iilered  by  the  learned  Senior  Counsel  forlJreat  Britain, 
I  rt  lor  to  paragraph  five  of  the  Conv(>ntion,  uiidei'  which 
tins   High  Connnission  is  convened,   which  reads  as  fol- 

■■  Anil,  whereas,  it  is  clnimoil  liy  (treat  Uritain,  tliouRli  not  admitted 

■  In    the  United  States,  tliat  ])rior  to  the  said  award,  eertain  other 

■  ciiiiiuH  against  the  United  States  aeeriiod  in  favor  of  (Jreat  Britain  on 
•iiir.innt  of  seizures  of,  or  interference  witli  the  followiug  named 
'  Jdilish  sailing  vessels,  to  wit:  the  '  Wanderer,'  the  '  Winnifred,'  the 

•  '  lliurietta,"  and  the  '  Osear  and  Hattie';  and  it  is  for  the  mutual  in- 

•  t(  list  and  eonvenienee  of  botli  the  high  eontraeting  ])avtieH  that  the 

•  hiil'ility  of  the  United  States,  if  any,  and  theaiuount  of  compensation 

•  1(1  lir  paid,  if  any,  in  respect  of  such  claims,  and  each  of  them  should 

•  ;il-n  he  determined  under  tlie  provisions  of  this  convention;  all 
•cliiiiiis  liy  (ireat  Britain  under  Article  V.  of  the  ruiilua  i-i>-i;nli  of 
'  A|iril  IH,  IHO'J,  for  the  ahst<Mition  from  fishing  of  BriMsh  sealers  dur- 

•  inn  the  jx'udency  of  said  arbitration,  having  been  dbtiuitely  waived 

■  111  lore  the  tribunal  of  arbitation." 

I  wisii  to  call  your  Honors'  attention  jtarticnlarly  to  that 
p,ir,i.t;rai)h.  >.'o  (j-,iestion  relating  to  these  additional 
claims,  so-calleii.  w;'.s  determined  by  the  Paris  Tiilmnal, 
iiml  no  wrongful  act  on  the  part  of  any  officer  of  the 
r  nit  I'll  States  is  admitted  or  any  liability  confessed. 

The  "  Oscau  and  Hattik." 

1  ((insider,  first,  the  chiim  of  the  owners  of  the  "  Oscar 
and  ilatti<' '"  I  shall  take  it  for  granted,  if  your  Honors 
please,  that  wo  all  know  this  Kecord,  and  when  I  make  a 

Wstatcment  of  fact,  if  the  I'eferences  are  not  given,  I  court 
intci  Tupfion  by  the  learned  counsel  for  Great  Britain,  and 
will  Mippiirt  my  statements  by  the  liecord. 

The  "Oscar  and  Hattie  "  was  seized  in  the  harbor  of 
Attiiu  Island  on  theliOth  day  of  August,  JS'J2,  by  the  com- 
inander  of  tlie  United  States  cutter  "  Mohican."  The 
vessel  was  towed  to  Unalaska,  and  there  delivered  to 
C.iplain  Parr,  in  command  of  Her  Majesty's  ship  "  Mel- 
peniene."  Ca|)tain  Pair  ordered  her  to  proceed  to  Vic- 
toria.   The  ship  was  deliveied  to  tbe  Collector  of  Customs 

4"ot  that  i)ort;  was  eventually  libelled  in  the  Kxchequer 
t'diiit,  l)istri(;t  of  British  Colinnbia,  and  was  condeniiied 
ami  1(11  feited.  The  Kxchequer  Court  found  two  things.  It 
fiiund  the  "  Oscar  and  Hattie  "  (fit ill n  of  acts  in  violation, 
iitit  of  the  )ih)(lits  rirciidi  of  lS'.t-2,  but  guilty  of  acts  in 
vinlation  of  tlii>  Seal  Fisheries  Act,  an  act  passed  by  the 
I'ai  liament  of  (ireat  Biitainiii  1S!»1.  It  also  fdund  that 
there  existed  probable  taust'  for  the  .sei/.ur(>  of  tlu!  "Oscar 
ami  Hattie,"  for  without  that  the  first  linding  would  have 
111  III  inii)(issil)le. 

?"  All  appeal  was  eventually  taken  to  the  Supreme  Court 
111  the  Duminii  11  of  Canada,  of  which  your  Lordship  is  so 
ilhistiious  a  meiiilier.  and  that  Court  reversed  the  tinding 
orilic  IdWer  Court  on  but  one  biaiicli  of  its  judgment. 
The  Siipieme  Court  of  the  Doiuinioii  of  Canada  found 
that  there  existed  y<y7';/((//Wc/c'  cause  f(ir  the  seizure  of  the 
\e>srl,  but  (!"termine(l  that  there  was  imt  rcd.soiiKhli'  canse 
till  her  <'iiii(h  iiniatioii. 

Tlie  vessel  ii'id  been  already  .sdid  by  order  of  the  lower 
("lilt.    Thesu:a  icali.'.ed  was  i-eluinedto  tiie  (iwneis,  and 

'"Ihi  rlaiin  is  in  v  made  against  the  (ioveiiuneiit  (if  the 
(  iiitiil  States  f(  ;•  a  hiss  df  si  l.Iiti,').  occasioned  by  the  sale 
(il  I  lie  scliooiier  a. el  her  cargo  for  a  less  sum  than  she  was 
.1'  iiially  worth,  i  lie  United  States  deny  any  liability  to 
th.  i.wners  of  the  "  Oscar  and  Hiittie  "  in  any  sum  what- 
(•\  i-i . 


lu 


080 


(Mr.  Warren's  Argument.) 

The  ground  upon  wliicli  tlio  claim  is  advanced  by  I  he 
counsel  for  Great  liritaiu  is  that  the  Supreme  ('cut 
of  Canada  held  there  was  not  adetpiato  cause  foiiho 
condenuiation  of  the  vessel,  and,  therefore,  the  Uiiiinl 
States  is  responsihie  for  the  act  of  its  officer  who  oi -fi- 
nally made  the  seizure. 

This  position  is  taken  because  of  a  misconception  by  :\w 
lolearned  counsel  of  the  decision  of  the  Supreme  Couit  nf 
the  Dominion  of  Canada.  That  Court  did  not  decide  tli:it 
there  was  not  /•('f(.so///>/e  cause  fov  seizure,  but  did  (IcnilL' 
this,  and  this  only,  that  tlieie  was  not  adeiinnte  cause  lor 
the  c(>ti(leiiitiat/(»i  of  the  "Oscar  and  Hattie."  And  this 
position  is  taken  by  the  learned  counsel  also,  becuis.',  I 
conceive,  of  a  niisconc-eption  of  the  charge  upon  wbicji  this 
vessel  was  libelled  in  the  Exchequer  Couit  in  Victoii;i. 

The  counsel  for  Great  Britain  proceed  in  the  discussinn 

of  this  case,  botli  in  their  written  and  in   their  oral  ai-ii- 

2onieuts,  as;  though  the  "  Uscar  and  Hattie"  was  tried,  ccjii- 

denuied  and  forfeited  for  a  violation  of  the  modus  vinutU 

of  lsyL>. 

Why,  if  your  Honors  please,  the  Convention  of  \><y> 
was  not  possessed  of  any  force  as  to  subjects  of  (I  nit 
Britain  beyond  this:  It  was  an  agreement  on  the  pan  of 
Great  Britain  that  that  nation  would  thereafter  tnait 
sufficient  legislation  to  i)revent  its  citizens  from  takinj; 
seals  within  the  waters  of  Bering  Sea.  In  the  Uiiiteil 
States  of  America  all  treaties  and  conventions  constitute 
30a  part  of  the  laws  of  the  land.  Not  so  in  Great  Britain. 
In  that  country  an  act  of  Parliament  was  necessary  to 
prevent  its  subjects  from  taking  seals  in  the  waters  of 
Bering  Sea,  and  Parliament  enacted  legislation  known 
the  Seal  Fishery  Act,  which  beca^ne,  as  it  were,  a  jiarl 
the  iiioiliis  v/rendi. 

When  a  British  vessel  was  seized  in  Bering  Sea  she  was 
not  seized  for  a  violation  of  the  modus  vivetidi,  but  for  the 
violation  of  the  Seal  Fishery  Act  of  ISIU. 

The  third  article  of  the  Convention  of  18!t2,  known  as 
40 the  modus  vivvndi,  reads  as  follows: 

"  Every  vessel  or  person  oftomling  against  this  prohilatiim  in  tlie 
'•  .laitl  waters  of  Bering  Hea,  outside  of  the  ordinnry  territorial  limits 
"  of  the  United  States,  //j'ly  he.  seUml  iiml  ddidneil  hi/  the  naval  nr  'ilher 
"  ihdji  commisniniied  dlfkers  of  eitler  of  the.  hi</h  conlrndhii/  parlies,  hut 
"  llwy  sh'iU  be  li'intletl  over  as  so'tii  as  pniclioihle  lo  the.  anlhoritiea  cf  ihe 
"  iKilioii  to  irhich  thei/  rei/iedir'-li/  Iielomj,  wlio  shall  alone  have  jurisilic- 
"  tiou  to  try  the  oH'ense  and  impose  the  jienalties  for  the  same.  'I'lic 
"  witnesses  and  proofs  neeessary  to  establish  the  ofl'ense  shall  alsci  lie 
"  sent  with  them." 

^Q  L'uder  that  aiticle  Great  Britain  gave  authority  to  the 
"  cruising  officers  of  the  United  States  to  make  sei/nius 
within  the  waters  of  licring  Sea.  not  only  of  sbi])s  of  the 
United  States,  but  it  gave  them  autboiity  to  seize  ves-els 
belonging  to  subjects  of  Great  Britain.  To  seize  vessels 
doing  what,  if  your  Honors  please?  Not  conunitting  aits 
in  violation  of  the  modus  n'nnidi.  but  in  the  Sea  in  viela- 
tion  of  the  Seal  Fishery  Act  of  ls!»l. 

Now  the  Seal  Fishery  Act  of  isiu  (Kxhibits,  p.  -''i:!) 
contained  this  paragra])h: 

"  [fit  ISrithh  nhip  is  foiind  within  lieririi/  Sea,  having  on  hoanl  tin  lenf 
'  fishinii  or  shooliii'j  implements  or  sealskins  or  hmlies  0/ seals,  it  shall  iii-'ni 
'■  llie  iiinier  or  master  0/ such  shi/i  to  prove  that  the shiji  n'aa  not  iiseil  or  <in- 
"  ployeil  in  conlravenliou  0/  this  act." 

My  contention  is,  therefore,  that  by  the  modus  riii  ^nli 
of  lsit2  Great  Britain  bad  authorized  the  cruisers  ol  ilio 


as 
of 


Oo 


OKI 


(Mr.  Warren's  Argument.) 
iiited  States  to  seize  a  vessel  found  within  the  waters  of 


;o 


tlic  Bering  Sea  violating  the  Seal  Fishery  Act  of  iHltl,  he- 
ciiise  the  Seal  Fishery  Act,  we  have  seen,  was  a  vital  and 
111  ces-sary  part  of  the  iiiodns  rireiidi  and  the  niotlns  pro- 
vultnl  that  the  naval  officers  of  either  country  could  seize  the 
sliips  of  suhjects  of  hoth  countries;  and  the  Seal  Fishery 
Art  of  isyi  provided  tiiat  if  a  British  ship  was  found  within 
lotli''  waters  of  Bering  Sea  having  on  hoard  fishing  or  shoot- 
ing in)plements  or  seal  skins  or  hodies  of  seals,  it  should 
[if  on  the  owner  to  prove  that  the  ship  was  not  used  or 
('iii|)loye(1  in  contravention  of  that  act. 

Was,  I  ask,  the  "  Oscar  and  Hattie  "  within  the  waters 
of  ik'ring  Sea  at  the  time  she  was  seized,  having  on  hoard 
seal  skins  or  the  hodies  of  seals  or  implements  for  taking 
gt'iilsif  IJjton  that  (piestiou  ahtne  does  this  case  tiwn,  and 
I  leler  your  Honors  to  page  227  of  Exhihits,  line  11. 

"  Q.  When  you  were  seized  in  Gotzleb  Harbor  you  liad  all  vour 
"calinK  equijimcnt  on  boaril,  hadn't,  yon  -  your  gnna,  and  all  the 
■•  nocoHsary  appliances  for  Healing,  on  board  of  the  vessel?  A.  On 
'•  Imiird  theaehooner? 

"  Q.  On  board  the  schooner?    A.  They  were  there,  sure. 

"  Q.  And  you  had  certain  sealskins  on  board?  A.  Yes,  air.  But 
•■  tlipy  were  not  caught  in  the  Behring  Sea." 

Continuing  at  page  227  of  Exhibits,  line  22: 

"  Q.  When  yon  sav  fully  equipped,  captain,  what  do  you  mean  by 
"  that  exactly?    A.  Well,  fully  equipped. 

"  Q.  Let  me  understand  you;  you  moan  you  had  your  guns  and 
p  ■•  fishing  boats,  and  that  sort  of  thing,  used  in  sealing?  A.  Yes,  sir; 
•■  there  on  board. 

'■  ().  They  were  on  that  schooner  when  you  were  seized?  A.  Yes, 
•'  sir. 

'•  ().  And  you  were  equipped,  except  with  provisions?  A.  I  was  not 
•'  ('i|ui))i)ed  with  provisions. 

"  ^.  Now,  is  it  the  north  or  south  side  of  the  Aleutian  Islands  that  is 
••  tlic  boundarv  of  the  Uehriug  Sea?    A.  I  believe  now  it  is  the  north. 

"if.  The  north  side?    A.  Yes." 

It  is  admitted  tiiat  Gotzleh  Harbor  is  in  the  waters  of 
Hniiig  Sea,  Attoii  Island  being  the  most  westerly  of  the 
40  Ali'iitian  Group. 

Tlicii,  if  your  Honors  jdease,  the  captain  of  the  United 
Slalfs  cruiser  "  Moliican,"  instructed  by  the  iiioihis  viremli 
of  ls',i2  that  he  could  seize,  not  only  the  vessels  of  persons 
owino-  itllegiance  to  the  country  whose  flag  his  Oiuiser, 
flew,  but  that  he  could  seize  the  schoouers  of  subjects 
of  the  nation  which  was  the  other  party  to  that  Conven- 
tion, and  l)eing  instructed  to  prevent  the  violation  of  the 
Sell  Fishery  Act,  and  finding  the  "Oscar  and  Hattie" 
uiiliiii  the  prohibited  waters  with  every  indication,  as 
5°|iiii\i(l('d  by  the  terms  of  the  act,  that  the  vessel  was  vio- 
lating tliat  act,  seized  iier  in  the  performance  of  iiis  duty. 

W  liat  was  ids  duty  after  the  seizure?  Under  the  terms 
of  Artiilo  HI.  of  the  iiiodits  riveiidi,  he  was  compelled  to 
driiver  the  vessel  over  to  the  authorities  of  the  nation 
ali'iic  having  jurisdiction  to  try  the  offense  and  impose  the 
jM  nalties.  Tlie  nation  having  jurisdiction  over  the  "Oscar 
aii'l  llattio"  was  Great  Britain,  because  there  is  no  claim 
in  tills  case  of  American  ownership.     Did  the  captain  of 


60 1 


tin  "  Moliican  "  perform  this  duty?  The  testimony  shows 
I  betook  tile  vessel  into  the  harbor  of  Unalaska  and 
til  II'  delivered  her  to  Captain  Parr,  the  commander  of 
II'  r  Majesty's  Naval  Forces  in  those  waters,  who  there- 
Mfiii'  ordered  her  to  Victoria  foi'  trial. 

I 'ait  the  learned  counsel  for  dfreat  Britain  states:— You 
iii;    lead  the  act,  referring  to  the  Fishery   of  18itl.     The 


♦^|. 


I 


in 


088 

(Mr.  WHrien's  Argument.) 

words,  "it  shall  lio  on  tho  owner  or  the  master  of  sik  h 
ship  to  prove  that  his  ship  was  not  nsed  or  employed  m 
contravention  of  this  net,  mean  that  it  was  the  duty  uf 
the  seizing  oflicer,  in  this  ease  tiie  captain  of  tlio  "  y\i)\\\. 
can."  to  act  as  a  coin't  on  hoard  his  ship  there  to  try  tlm 
"  Oscar  nnil  Hattie  "  and  ascertain  whether  or  not  she  liail 
committed  acts  in  violation  of  the  Seal   Fishery    Act  uf 

I0  189].  The  learned  counsel  contend  it  was  not  his  duiv 
to  turn  that  vessel  over  to  the  authorities  alone  iiavinn' 
jurisdiction  to  try  the  offense  and  impost!  the  pouiiltic-,, 
but  his  duty  was  to  try  and  finally  determine  whetlier  m 
not  the  vessel  had  connnitted  acts  in  violation  of  the  Scil 
Fishery  Act. 

If  there  was  any  such  discretion  as  that  to  he  exercised, 
who  was  tlie  officer  to  exercise  the  discretion?  Admittinj;, 
for  the  purpose  of  |)resenting  the  argument,  that  to  liavu 
been  tlie  intention  of  tiieact,  and  adverting  again  to  Arti'lc; 

20  III.  of  tho  mod n,s  vi rend/  of  18!tii,  wo  find  that  when  a 
cruiser  of  tlie  United  States  seized  a  British  vessel  willuii 
the  wateis  of  Hering  Sea.  she  should  be  delivt'ied,  as  soni 
as  practicable,  to  tlie  authorities  of  the  nation  to  wliicli 
slie  bclongf^d.  Again  we  ask.  who  was  to  exercise  I  lie 
discretion  if  there  v»as  any  discretion  to  lie  exerci'^nl; 
Was  it  the  seizing  offict^-r  on  hoard  the  cruiser  of  the  rtiiti(| 
States  of  America,  or  was  it  (^aptain  i'ari-,  commandiii^^ 
Her  Majesty's  fleet  witiiin  the  pioliihited  waters?  'I'lio 
agieeiiient   between   the    two  sovcit^igii  i)Owers  had  s.iiii: 

30  Vou,  Captain  of  the  "  Moliican,"  when  you  seize  a 
Britisii  sealer,  shall  deliver  her,  as  soon  as  piacticablB,  to 
the  autliorities  of  the  nation  to  which  she  belongs. 

The  Supreme  Court  of  the  Dominion  of  (^anada  did  iiel 
put  tiiis  construction  on  the  Seal  Fishery  Act  of  Is'.H. 
That  Court  held  that  there  was  fn-ima  f<tcie  cause  for  the 
.seizKie  of  the  "  Oscar  an<l  llattie,"  hut  not  tidetjiiidc  evi- 
dence for  her  coiideiinKdtoii.  And  when  that  Court  ile 
cided  there  was  a  priiiid  fdcie  cause  for  the  seizure  of  the 
"  O.scar  and   Hattie  "  wiiat   did   the  Court  mean?    This, 

40  that  the  United  States  cruiser  was  compelled,  hy  the 
Seal  Fishery  Act  of  I8!»l,and  the  modus  rire)idi  of  Is'J-J, 
to  seize  a  vessel  within  the  prohibited  waters  having  on 
board  seal  skins  and  implements  for  taking  seals,  and  tliat 
the  o//((,s  rested  on  tiie  owner  to  ])rove  that  he  was  iint 
guilty.  Prove  where?  The  decision  of  that  Court  isdrawii 
on  the  theory  that  the  onus  sliould  only  bo  removed  hy 
trial  hefore  a  court  of  justice  and  not  by  some  inrornial 
proceedings  before  the  seizing  officer  of  a  United  Stales 
cruiser. 

50  I  wish  to  read,  for  the  purpose  of  convenience,  the  words 
of  the  judgment  of  the  Supr(;me  Court  of  the  Dominion 
of  Canada,  h(dding  that  there  was  a  [trimii  fiicic  cause 
for  the  seizure  of  this  vessel  (Kxhihits,  l)age  2.52,  line  a.")!. 

Keferring  to  sub-section  r>  of  section  1 — not  of  tin;  madus 
I'iivndi  of  lSlt2— but  subsection  .I  of  section  I  of  the  Act 
of  the  Parliament  of  Gieat  Britain,  the  Court  .says: 


CyO' 


"  If  a  liritisli  Hlii|)  is  found  witliiu   Heriug  Sea  liiivini;  on  l)e;i 
thoroof  lishiiit;  or  Hliootiuf?  iiiipIonientH  or  seiil  skinH,  or  l)0(lii"< 
seals,  it  kIiuII  lie  on  the  owner  or  Master  of  s)ioh  Hliii)  to  prove  tl 
'  tho  ship  waH  not  used  or  enn)lo,vod  in  coutraventiou  of  this  act.  " 


.f 


And  the  judgment  continues  (Exhibits,  p.  253,  line  ;ii: 

"  Suffleieut /))'iwa/i/('i«  proof  of  this  was  undouhtedly  afforded  liy 
"the  fai't  that  the  Hhip  wuh  found  within  the  boundaricH  of  pio- 
"  liiliited  waters,  with  shooting  implements  and  seal  skins  on  lioanl. 


«is:! 


(Mr.  WiiiTi'irs  Argiimoiit.) 

■•  rill'  iilUl.--  VMis  tluiN  i'iikI  nil  the  owiii  IH  lo  ))rovii  lliiit  tliii  sliip  liiiil  not 
••  lifi'ii  I'liiplovi'd  in  killing,  takiiif^  or  liimtiiiK  suhIh  or  in  atti'iii|>tiii« 
•'  III  do  HO  within  Hi'iiii),'  Simi." 

•■Till'  i|iH'«tioii  thus  Ihmoiiii's  imi'clv  oiii'  of  I'vidi'iici'.  Iliivi'  tln' 
"  I'liiiliiiuits,  liy  tlu'ir  (H'oiiFm,  diH|ilu('i'd  //"'  /in'oim/ilimi  'iriiiiii/  hi/  /uriy 
■•  fl'  lie  Ttlli  niili-.<r''->ii)i)  lit'  Sf.Hiiiii  1  III'  tliiiitfl  I'rniii  Ihi'  I'liiiililiniiK  umlur  ii'liirh 
"  till' ship  wus  I'oiuid  ill  Ki'riiif^  Sea. 

■ 'I'hi' Imrdi'ii  of   proof  lii'ini;;  t  hils  oil  I  III'    (•liiiiiiiints,  tlir   owners    of 
"  till' ship,  it  «iis  for  thi'iii   to   ri'liul   tin'  statiitorv   iiiti'ri'iifi's  iirisin^;- 
'O'-froiii  tliii  I'irriinistaiici's.  uiid  if  thi\v  Imvi'   fiiihil    in    doiiif;  this,  tlif 
"  slii|)  wus  propi'riy  rondciiiiii'd." 

Is  llii'i'(^  iiiiytliiii}^'  ill  Miat  dciMsiuii  wliicli  say.s  that,  Lluuc 
was  not  roasoiialilc  and  pnihalilu  (lauso  for  tlit^  sciziiro  nl' 
till' "  Oscar  ami  ilattic;""  Is  there  aiiytliiiig  in  tliat  laii- 
i^iiani' which  iiiliiiiatcs  that  tlic  o«/(.s  of  provin^^  that  im 
act  had  hccii  cniniiiil ted  in  cuiitraAi'iitioii  of  llic  .Act  id' 
IMM  coidd  he  K'innvcd  at  a  iirariny;  hcl'ort'  the  soi/iii^' 
olliccr  liinisoif,  acliii.i;- as  a  court  f  Tlu' decision  .says  tliat 
,,,tlii'  mnis  was  tiiiis  cast  on  tln^  owikh's  to  prove.  'I'o  prove 
wheiv^  To  prove  in  a  court  ol'  justice  and  in  a  Hritish 
romt.  which  idone  iiad  jurisdiction  to  try  tiie  oiyeiisc  and 
iinpiise  the  pelialt  ies. 

There  \vas  no  irregularity  coniinitled  in  connection  with 
tlie  seizure  of  this  vessel.  There  was  notiiinj^  done  by 
any  ajA'cnt  ot  tlie  I'nited  States  in  violation  ot'  any  Con- 
vention or  Act.  The  sei/iiifi;  otticer  of  the  I'nifed  States 
acted  ill  good  faith;  and  to  prove  and  siip|)ort  tlie 
contention  that  he  (hd,  1  recall  to  your  Honor.s'  minds 
;otliis  fact,  that  th(;  Excheipier  Coui't  of  the  Dotnin- 
ioti  of  Canada,  haviiio' all  the  testimony  hefore  it.  having 
the  li»;netit  of  an  examination  of  witne.sses  by  (!o\iiisel. 
ik'ciiled  e.\a(;tly  what  the  seizing  officer  of  the  rnited 
States  decided,  that  there  was  rcdsoiidh/i'  and  probable 
caiist>  for  the  seizure  of  th(i  "Oscar  and  Hattie,"  and  went 
beyonil  and  over  what  the  .seizing  olticer  of  the  Uitited 
States  decided,  and  determined,  that  there  was  mli'tjiititc 
cMiise  for  iier  coiK/ciiinnl/oii. 

Isfliere  any  force  in  the  argument  of  the  British  counsel. 

,1, tliat  the  liiited  States  seizing  offiiier  acted  without  iea,son- 

alile  cause,   when  a   British  court  not  only  atfiriued  his 

art.  hut  went  further  and  coiidemneii  anil  forfeited  the 

vessel  for  the  coimuission  of  acts  in  violation  of  the  law. 

.\  British  court  did  that,  with  every  word  of  te.'stimony 
iieloie  it  that  the  seizing  officer  had.  indeed  the  seizing 
otlicer  had  only  the  luisworn  statements  of  prejudiced  and 
|iartial  witnesses. 

TliiMc  is  one  other  question  to  wiiicli  1  wish  to  allude 
ill  the  case  of  the  "Oscar  and  Hattie."  It  was  raised  by 
;(,  the  Coniinissioner  on  the  part  of  the  United  States  by  a 
(|iiestion  addressed  to  the  learned  senior  counsel  for  (Ireat 
Hiitaiii.  when  he  was  discussing  this  case  in  his  oral 
afKunieiit. 

When  the  captain  of  the  "  Mohican '"  delivered  that 
vi'ssel  to  Captain  Farr  in  tiie  Harbor  of  L'nalaska,  within 
tivr  days  after  her  seizure,  or  abt)ut  September  .'ith.  can 
tlie  rnitod  States  be  held  resiionsible  for  the  act  of  the 
Ooiiimanderof  Her  Maje.sty's  Heet  in  the  waters  of  Bering 
Sen,  who  ordered  her  to  Victoria  for  trial;  The  captain 
mV'!  the  ••  ^bihican "  took  the  "Oscar  and  Hattie."  her 
fill  ire  crew  and  cargo  and  delivered  all  to  the  captain  of 
tile  "  .Melpomene,"'  Her  Majesty's  vessel. 

il"  I  he  seizing  officers  were  to  act  as  a  court  to  ascertain 
whither  or  not  there  was  reasonable  cause  for  the  seizure 
"f  tills  vessel,  why  did  not  th<>  naval   officer   representing 


M       ji 


r  * 


ivi 


^ 

^\^ 

^v< 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0     ^lii  1^ 


1.1 


IL25  HI  1.4 


IH^I 


m 

1.6 


Sdaices 
Corporation 


23  WIST  MAIN  STRUT 

WUSTH.N.Y.  MSIO 

(716)«72-4S03 


'^ 


o^ 


^ 


(iS4 


(Mr.  Warren's  Argument.) 

Great  Britain  tieterniine  that  the  "OKcarand  Hatlie"  wis 
not  jjniltv  of  any  act  in  violation  of  the  Act  of  I'arlianicnt 
uf  1891?  ' 

The  learned  conu-^el   seem   to  appreciate  the  force  i>| 
this  argnment,   for   Itefore   it   is  made  they  i-ndeavoi  |i, 
avoid  it  hy  this  observation:  All  thetestnnony  was  no!  In 
tore  Ca))tain  Pari'  at  Unalaska,  and  all  the  testimony  w.ik 
I,) not  before  the  Con rt  in  British  (.'ulnnihia.     Now,  wliai,  is 
tiiis  assertion  based   npon?    Two  letters;  one  written  liv 
Captain  Joinison  to  Commander  Kvans- (Captain  .lolin 
son  wiis  the  commander  of  the  "  Mohican  "  and  theo(1i(  ci 
who  seized  tht>  "Osiarand  llattie '")— (»n  the  :?lst  <l;iy  ol 
Angnst,  which  was  the  day  after  the  s"iziire,  in  whicii  In 
reports  that  one  gronnd  for  tho  seiznrc  was.    "  having  uu 
board  L'T*!  skins  and  a  complete  s(>aling  onttit    in   viohilimi 
ot  the  nioiln.s  liroidi" 

Wonid  that  letter  have  benelitled  Captain  I'arr  in  del.  i 
.'()  mining  whet  her  or  not  the  "Oscar  and  llattie"  wasj;iiiliy 
of  acts   in   violation  of    the    Seal    Kisbery   Act   of   IM'I; 
Snrely  not.     That  letter  only  set   out    the   fact  that    llir 
"Oscar  and  Haltie"had  on  board  s»>ai  skins  and  a  sealinj; 
onlfit.     Did  not  Captain  I'arrofthe  "Melpomene''  know 
that  the  "Oscar  and  llattie"  had  on  boa  kI  these  seal  skiii> 
and  a  sealing  onttit?     1  have  allnded  to  the  testimony  i  Kx 
liibits,  p.  L'^'J.  commencing  line   Mi,  wbicli  says,  thai  the 
"Oscar  and  Hattie,"  having  her  entire  cargo  on  boaid. 
having  on  board  every  article  on  her  when  seized,  was  il( 
;()livere(l  to  Captain  I'arr. 

Mr.  Peters:— WonId  yon  mind  showing  me  in  what  |i.irl 
cif  our  brief  we  have  inserted  what  von  have  jnst  now 
stated? 

Mr.  Warren:  -You  took  that  position  in  the  oral  aigu- 
ment;  yon  said:  '"'J'here  is  now  additional  evidence  wliiili 
ronchisively  shows  that  the  seizing  odicer  at  the  time  lie 
seized  the  vessel  did  not  really  believe- 

Mr.  I'eters:— That  is  not  the  |»oinl.     My  learned  frieiiil 

says  that  we  took  the  point  in  our  brief  that  Captain  Tan 

40^hould  have  decided  this  matter,  and  that  he  diti  not  have 

this  «'vidence  before  him.     That  point  is  not  mentioned  in 

oiu'  brii'f. 

Mr.  Warren:  -1  say,  that  in  addition  to  that,  my  leaiiud 
friend  took  the  position  that  this  evidence  was  \\u\  lieloic 
the  couits  of  British  Cohn)d)ia. 

Mr.  I'eters:— 1  took  that  ground  in  my  oral  argnment. 
Von  said  1  took  it  in  my  biief.  I  took  the  point  in  niv 
oral  argnment  that  this  eviden("e  was  not  before  Captain 
Tari".  You  sai<l  1  (ook  that  )ioint  befoi'e  the  snggesimn 
;,  was  made.  1  never  took  that  point  in  my  brief,  and  wlial 
I  di<l  say  in  the  oral  argnment  was  said  in  answer  to  a 
-nggesfion  from  the  Conunissioiu'r. 

Mr.  Wairen:— The  (  onnsel  foi' (ireat  Britain  did  niaki' 
Ibis  statement  in  their  brief,  at  page  IT*':  "'These  letter.- 
which  were  not  before  the  Canadian  courts,  nrove  the 
fact  that  the  schooner  was  si'ized  not  foi'  a  bi'ea<  h  ot 
the  modus,  but  for  two  charges  of  contravention  of  llie 
Uevemie  laws  of  the  United  States,  neither  of  which  li  mI 
any  foundation  whatever  in  law  or  fact,  and  upon  a 
((lebarge  not  of  having  broken  the  teirns  of  the  niiiilns 
lint  «)f  having  a  nundter  of  seal  skins,  &c.,  on  board.  wlii<  li 
is  no  breach  thereof." 

1  have  read  the  cause  of  the  seiznie  of  the  ve.s.sel  fnin 
the  letter  of  Captain  J(»hnson,  which  was  because  ahe  had 
seal  skins  and  iniplements  for  the  taking  of  seals  on  hoard 


*•»:, 


Hattie"  w.is 
'  I'arliaiiicni 

the  foicp  ul 
t'lidoavor  to 
f  was  not  lie 
utiniony  wub 
ow.  wliai.  is 

writtfii  l)y 
il'taiii  Jiiliii 
1(1  tlKMil1i(  i-i 

:nst  iliiy  ut 
ill  which  he 
"  having  on 
ill    violation 

'air  in  dclri 
"  was  jiiiiltv 
\v\  ol  I  mm"; 
let  tliat  III.' 
iiid  a  scaling 
u'lU' ''  know 
'sc  s('alskill^ 
linioiiv  I  Kx 
vs.  tli'al    the 

0  on  hoard, 
iz«'d,  was  (If 

in  what  pail 
ve  just   now 

('  oral  ai^ii 
dciu't*  wliicli 
the  tiiiio  ill' 

irnt'd  frii>ii(l 
'aptaiii  i'air 
lid  not  have 
ncntioiicd  ill 

.  my  loai  iit'd 
IS  not  hct'oif 

1  ar^niiK'iit. 
|K)iiii  in  iiiy 
ore  ('a|ilaiii 

snujicslioii 
id',  and  wlial 
aiiswor  to  a 

n  did  inaki' 
'h«'S('  U'tlii.-' 
s,  nrovi'  tilt' 
a  Itrt'ai  ii  «it 
ntioii  ot  IIk- 
f  whicii  had 
iiid  npoii  a 
the  iiii'dii'i 
Hiard.  wliirli 


(Mr.  W'arren";i  Argument.) 

williin  thu  prohihitcd  waters;  and  I  liave  sh«>wn  the  niis- 
riiiut'ption  of  tho  conns*']  wlu-n  stating  tliat  there  was  no 
violation  of  tlie  (//o///(.v.  The  vessel  was  seized  tor  a  vio- 
lalioii  of  the  Seal  Kisliery  Act.  not  of  th»'  Hindus. 

riii'  othei-  letter  relied  upon  is  a  letter  dated  Septemhor 

loth,  and  a  copy   of  whicli  is  found  on  page  I7<»  of  the 

aiuiinient  of  Oreat  liiitain  in  chicd".     This  letter  was  writ- 

,tcii  hy  Commander  Kvaiis  to  the  Secretary  of  the  Navy, 

nil!  is  as  follows: 

"  l>iiriiiK  till'  liittrr  |iiirt  ol'  Aii^iinI.  I  liml  sent  I  lie  '  Miiliii'iiu'  to  the 

■  M.iiiifyof  Atfoii  ImIiiuiI  tn  a|>|iri')ii-iiil  iiiiil  riipturi'  iiiiy  Hi'iilcrN  from 
'  till'  KiisHiiiii  Hiilf.  wlio  iiii|;lit  lir  fouiiil  in  that  vicinity.  I  foiti't'il  tliat 
■ -I'liii' of  lliti  Mi'liooni'i's  lifter  vviiti'rinn  i»t  Attmi,  would,  in  t-iisc  of  f»<)o(l 
•  wcatlirr,  stop  for  «  fnvv  iliiys'  sciiliii^  in  KiM'iiiK  Mi'x.  wliii'li  I  ili'tor- 
"  iiiiiii'il  HJionlil  not  III'  clonr.  iiiiil  at  tlio  Hiimi'  tiino  I   wiNlii'il  ItritiHli 

"  M'liiMincrs  to  niiiliM'stiinil   tliat  tlicv  coniil    no    Ion){i'r  iniiki'  a  con- 
\,  Miriicr  of  AiiKirii'iiii  ports  ili<>)riiily   for  nn'ryinj?  on  tlirir   sralinK 

■  .i|i('i'atioii.     On    my  arrival  lirri'  (Unalaskii)     *  ~      I   fimiiil   tin? 

■  ■  Osriii' anil  tlattir'   in   port,  liaviiif;  t»'rn  I'liptiircil  at  tiol/.lt'li  Hiir- 
'  Ixir.  a  Hiiiall  watering  port  on  the  Islaml  of  Attoii,  'ly  tin'  '  Moliicaii.' 

■  oil  Scptcmlii'i'  1st.  ami  si'iit  Iiiti'  in  rliai'frc  of   an  ollicor  ami  priz<> 

■  rn«.  Wln'ii  raptiir)'<1  she  liail  on  Imaril  27ti  fur  si'al  xkiiis,  takfii  on 
'  till'  riiiist  of  .Japan,  ami  a  full  Hcalin^  onttit." 

\\  hat  fact  does  that  letter  contain  whi(h  was  not  he- 
loir  ('a|dain  I'arr.  Her  Majesty's  represeiitalive  in  the 
llailiiir  of  I'nalaska?  Thecoinisel  for  (Jreat  Britain  says, 
I  iiiii'iiander  Kvans  states  that  the  sealskins  were  not 
lak  II  ill  Hering  Sea  hiit  tin  the  coast  of  .japan.  I  ap|)re- 
litiid  that  your  Honors  will  consider  the  sourci-  of  Coin- 
iiiander  Kvans'  iiiforniatioii,  and  that  yon  will  determine 
till'  source  of  that  information  to  have  heeii  what  was 
lound  hy  the  seizing  oHicer  on  hoard  the  "Oscar  and 
llatlif."  Kroin  no  other  source  did  he  (d)tain  any  infor- 
mal khi.  and  was  not  the  same  source  of  information  open 
to  till' captain  of  the  "Melpomene."  for  did  ho  not  have 
hi  his  possession  when  he  or<lercd  that  schooner  to  Biitish 
I'lpjimihia  for  trial,  the  same  schooner,  the  same  cargo, 
till' same  papers  that  the  captain  of  the  "  Midiican  "  had 
when  he  seized  her  in  (lotzleh  Harhor^  Is  it  of  any  iin- 
jioitaiice  that  the  report  of  Commander  Evans  was  not 
ill  lore  Captain  I'arr  when  all  the  facts  whicli  served  as  a 
lia-is  for  the  report  wt'ie  hefore  that  olficerf  Is  it  of  any 
iiiipoitaiice  that  the  report  of  Commander  Kvans  of  the 
•  'I  uiktown"  was  not  hefore  the  trial  Court  when  all  the 
tads  were  hefore  the  Court;  I  apprehend  not.  if  your 
llii'.iiiis  please. 

What  next<  Captain  I'arr  received  the  schoont-r  prior 
III  the  loth  day  of  Septemher. 

I  lie  Commissioner  on  the  part  of  the  I'nited  States:— Do 
von  know  the  precise  day  on  which  she  wjis  delivered  to 
i  'iptain  I'arr; 

Sir  Waireii:  The  vessel  arrived  in  the  lliirhor  of 
I  iiaiaskrton  the.'itliof  Septemher  (.Kxhihits,  p.  l'lM.  line 
-II  111  :m.  and  K.xhihits,  |i.  •2-2-2,  line  :'.7)  The  captain  of 
ilio  "Oscar  and  Hattie"  testifying  i  Kxhihits 'Ji':'.,  lino  14) 
St, ill  -  that  the  Comniander  of  the  "  Voiktown  "  told  him 
tli.it  ii|inn  arriving  at  Cnalaska  he  should  wait  until  Her 
M  ijisty's  ship  ■•  Melpomene"  arrived. 

■  ()■  Willi,  in  aliout  Ion  iiayn  yon  wurc  .I'llcri'd  liy  (taptain  I'arr  of 
'   till'  '  Mi'tponii'iii' '  to  proiici'il  to  Victoria  ?     \.    Yes.  Mir." 

It  your  Honor  please,  that  is  the  neaivst  we  Ciin  de- 
li i  mine  the  date  from  this  Record.  On  the  ftth  of  Se»)- 
I'  'iilier  the  schooner  arrived  at   Tnalaska  anri  the  "  Mv  i- 


J, 


it 


I'lStl 


(Mr.  Warnii's  Aif^miiciit.) 

))on))'iie"  Wiis  iiiil  ill  tlw  li.iilxir.  ('i)iniii;'iiil(i-  Kvmii  .; 
tlic  "  Yiiikluwii  ■■  okIciciI  llio  •'Oscar  aiitl  lliittic  '  i,, 
await  I  lie  arrival  of  Hit-  '•  Mt'lpoiiicntv"  Tlio  "  M»'l|niiii(.|i,  ' 
arrived  williiii  ti-ii  (la\>-  allt-r  the  .Mil  ol'  Si'|it»'iiil)ci,  1„ 
cause  file  laplaiii  stairs  tlial  in  alitnit  ten  il.iys  he  u,i~ 
ortlercd  liy  Capt.iiii  I'air  of  the  "  Me!|iniiieiie"  (o  |m<i(m,| 
to  Virtdiia.  It'  llieie  iii  aiivlliiiig  iimre  eeitaiii  in  i|,. 
loKeoin!  [  will  advise  your  liniior  later. 

Tlie  {"(iiimiissioiiei- oil  tin-  pait  dl'  the  I'liited  Slat. - 
I  tlesire  to  ask  yi.ii.  Mr.  Warren,  whether  there  i>  ,i:,\ 
tiling  in  the  K'eeord  to  show  that  tlie  iiislrnetioiis  ;^iveii  liv 
the  Navy  |)e|iartllielil  to  the  olliceis  of  the  lliifed  Sljl,-. 
vessels  in  the  heriiij;  Sia.  were  (■oiiiniiiiii'ated  to  tli. 
UritiNh  (ioveiiinieiit. 

.Ml.    Warren:  - 1  helieve  tliev   were  eomiiniiiicated,   Imt 
I  will  answer  lli.it   i|uestiou  this  .itieriiooii.  your  lloiioi-. 

[At  a  later  time  diiriiiji  the  iiroj^iess  of  the  irj;iiiii> m 
2oof  tli(!  Senior  Counsel  the  eorrespoudeiiee  liansiiiilnn- 
the  instruttions  to  the  Uritish  (iovei  iinienl  was  read  Innii 
tlie  "FoniKU  h'elation  of  the  IJuited  States"  for  iht'  ye.u 
isjti.  This  eoirespondeiice  diseluses  that  Secretary  Itl.tiin 
advised  (ireat  liritain  as  to|low.«: 

"  111  ivply,  1  lijivcthi'  lioiior  to  inform  voii  tliiit  lliiK  ( iiixi'iuni  m 
"  ilot'.s  nut  tliiiik  it  ni'ci'SNiuv  to  nioilifv  tlir  iustriictions  (»ivni  to  t||. 
•■  Nuviil  otlictT.s  of  till'  I'niti'd  Stiitt'».  If  ii  vchki'I  is  foiiiiil  in  liciin- 
■-  .Sell  with  II  Hcjilin^  outlit.  tlic  onlv  silfr  i-oiirsi'  to  take  ix  to  c'niii|ii  I 
'■  lirr  to  Inivr  llnti  Sen.  unit  tliiK  I'liu  only  ln'  rtleclivi'ly  iloiie  liv  takiii;; 
,  ••  luT  out  undiT  coiivov.  'I'/iis  l/if  lliiitt'il  Sliilrs  f;//l(r;.s-  iirf  iliri;-l,;l  i,, 
J  ••  (A)  mill  III  liirii  kih/i  lirilisli  rexsi'ls  (ipit  In  Ihr  liritish  Xurul  njlin  r  .ii 
■■  I'linliisliii.  //■  III'  ili'msfs  III  Inkr  llif  ri'SiiiiiisHiilili/  iif  rfleiishi't  sncli  ■-. -- 
"  sels,  llien  it  o  A/>  rii/lil  In  iln  sii." 

( I'ajif  f>4u.  Koieioii  IJ.'Iatioii  of  the  I'liited  States.  Is'.M. 


]  think  that  I  have  shown  that  the  seizing  otticei.  \vli'< 
was  the  oHicial  of  the  I'liited  States,  delivered  to  t'a|itaiii 
Parr   all    the   evidence  a.s  rciiuired  l»y  .Vrticle  ill.  of  tin- 
4oM<)ilii.s  ]'/rriiih'  of  jsji'j.  which  provides: 


'•  Tilt' witni'MNi's  uiiil  proofs  mi'i'ssiiry  to  rstiililixli  tlie  oHins 
iiIho  lie  sent  witli  tlii'in." 


>\m\\ 


He  took  the  proofs  that  were  in  his  possession  hei.iij-..' 
he  took  tlu'  sclioonur,  the  entire  caij;o,  the  entire  <ie\\. 
every  iniplenieiit  for  the  taking  of  seal  skins  which  wa* 
on  hoard  that  ves.sel.  every  article  oii  ho.ird,  and  ileliveiiil 
tlieni  to  Captain  Pair. 

Now,  I  ask,  can  a  siihject  of  (ireat  Kritain  come  lieldo 
50 this  high  Court  and  obtain  damap's  from  the  rniteil 
States  because  his  vessel  was  ordered  by  a  Hritish  otlidr 
to  a  British  court,  was  tried  by  a  Hritisli  court. coiideiiintil 
by  a  British  court,  forfeited  by  a  British  court,  all  ot 
which  resulted  to  liis  damaged  The  [iroposition  of  ijir 
learned  counsel  for  Cireat  Britain  is  that  he  can. 

The  United  States  severed  its  connection  absoliiii|\ 
with  the  "  Uscar  and  Hattie"  on  the  day  that  Cnin 
luandei  Kvans  of  the  "  Yorktown  "  di'livered  her  in  111- 
harbor  of  I'nalaska  to  Captain  Parr  of  the  Koyal  Navy 
U)  Why,  if  this  was  a  private  Iiti)j;ation  and  this  proposition 
of  the  British  counsel  was  stated,  it  would  not  be  arjiiml 
as  long  as  it  has  been  here.  Here  are  two  agents,  oiielli'' 
agent  of  the  I'nited  States,  the  other  the  agent  of  (livai 
Britain.  The  agent  of  the  United  States  .seizes  the  ve>,sil 
for  ii  violation  of  British  law,  and  seizes  her  as  ho   w.i- 


iillcliMi  ,  >lmll 


Ill- 
Fi- 
ll '• 


t»87 

(Mr.  Warren's  Argument.) 

inicte'l  by  the  uiotlns  vivemli  of   1S)»2,   and  the  Seal 

lieiy  Act,  a  necessary  part  of  the  iiioiliia,  takeM  her  on 

iiyago  of  six  days,  and  thereafter,  as  soon  as  possible. 

:i vol's  her  to  the  agent  of  (Jreat  Britain.  From  that 
(i;i\  the  United  Slates  Tias  novi^rseen  tiiat  vessd.  From  that 
(1,1  \  no  court  of  tile  United  States  lias  sought  to  condemn 
li\  its  judgment  the  "  Oscar  and  llattie."  From  that  day 
10 111'  ii'presentativK  of  the  United  States  has  done  any  act 
ill  connection  witli  tlie  s(;h()oner  "Oscar  and  Hattie," 
liiit  :\  citizen  of  (treat  Britain  seeks  !?  11, < too  damages  from 
till'  United  States. 

Wlien  first  taking  up  the  consideration  of  tins  claim,  I 
Mliiiied  to  the  fact  that  by  the  r>tli  paragraph  of  the  Con- 
V(  111  ion  under  wiiich  this  Commission  is  convened,  the 
(iiitt'd  States  admit  no  iiabihty  whatever  in  comiection 
w  iili  the  *  Oscar  and  Hattie,"  and  also  stated  that  no  fact 
h;i  I  liccn  iletermiiied  by  the  Triitunal  at  Paris  in  connec- 
.'0 1  hill  witl)  the  seizure  of  this  vessel. 

Now,  when  the  facts  are  all  before  this  High  Coumiis- 
siiiii.  the  United  States  deny  any  liability  whatever  to  the 
owners  of  this  ves.sel. 

Cuniniissioner  on  the  part  of  the  United  States: — lam 
;iii\ious  to  know  al)out  these  instructions  for  this  reason; 
Til.'  British  act  evidently  tlirows  upon  a  vessel  situate  as 
tins  vessel  was  the  duty  of  |)roving  .soyHcH'Ae/r  that  she 
w.is  not  sealing  in  Bering  Sea  or  iiad  no  intention  of  seal- 
iiii;  tliere.  The  instrnctions  fi(tm  the  Navy  Departnipnt 
^oto  the  Commander  of  the  United  States  fleet  in  Bering 
S.  .1  eviileiitly  interpreted  this  Act  as  meaning  that  it  was 
to  lie  proven  in  comt.  and  tl)e  instructions  without  (piali- 
tiratiou  directed  the  officer  to  seize  a  vessel  fonnd  in 
lii  ring  Sea  with  bunting  implements  or  seals  or  skins  on 
Imi.ikI  of  her.  It  gives  biin  no  option  whatever,  and  if  be 
iljil  not  seize  her  he  would  act  at  his  own  peril,  no  matter 
\vli;it  liis  personal  belief  was.  If  be  did  not  seize  her,  and 
il  ^lie  was  afterward  round  sealing  in  the  Sea,  of  course 
lie  would  be  sul)joct  to  a  court  martial.  The  British  in- 
4,i>iiiictioi)s,  as  found  in  the  court  record,  do  not  contain 
tiic  particular  instructions  given  by  the  United  States 
N.iw  Department  to  their  officers  in  Bering  Sea. 

Mr.  Dickinson:  The  British  Act  sets  forth  the  same 
tiling. 

The  Commissioner  on  the  part  of  the  United  States:— 
V'lii  claim  so,  but  it  is  not  there  in  terms.  What  I  want 
I"  know  is  whetiier  the  instrnctions  were  communicated 
I'liher  to  tlu' officer  in  tlie  Bering  Sea  or  to  the  British 
(luveriinient.  They  clearly  proceed  on  the  byitotbesis 
;otii,it  it  Captain  KiVans.  altbongli  he  believed  that  this  ves- 
>'  I  hail  hot  liecn  sealing  in  Bering  Sea.  had  discharged 
li'i .  he  would  have  done  so  at  iiis  own  peril. 

\lr  \Varn>n:--He  could  not  resort  to  ;niy  method  of 
jiiilicial  einpiiry  iit  sea. 

The  Commissioner  on  the  part  of  the  United  States:— 
111  it  was  evideully  the  construction  put  upon  the  Act  by 
ill'  .Navy  Department  of  the  United  States.  I  desire  to 
Kn  w  is  that  in  the  Kecord.  The  Supreme  Court  of 
(  inula  pursues  the  inatler  at  page  'J.jii  of  the  exhibits 
'o  till  I  her  than  the  extracts  in  the  case  from  either  side 
sli.w.     The  juilgmeiit  goes  on  to  say: 

Till'  l)nr(l(>n  of  proof  Iipiiik  t.liUH  on  the  clainiantH,  tlic  owncrR  of 
'till'  uliip,  it  WB8  for  thorn  to  roltnt  the  Htatntor-  infpri'nc(>«  ariHing 
'  fi  iiii  till'  circuiuHtaufcH,  anil  if  they  have  failed  in  doing  this  thn 
•■  -hip  wan  properly  coudeinnod." 


i  I 


i'-i 
1(1 


♦IhS 


(Mr.  Warren's  Argument.) 

It  <l(M's  not  say  wlicn'  tliey  are  to  r»'l»ut.  \V«  liav.  ,i 
great  many  fishery  anil  game  statutes  of  all  kimls  \vlii<  h 
re(|iiire  the  seizing  ottieer  to  seize  where  there  are  cert  lin 
suspicious  <  ircumstances,  and  to  siihmit  the  matter  t'  a 
court  of  justice.  Just  what  this  statute  means  is  nut  it 
forth,  altiiough  I  may  have  mv  own  idea  ahout  it. 

Mr.  Peters:  -1  hope  your  llonors  will  not  take  it  ;  r 
I o granted  that  we  admit  the  construction  put  on  the  Ki.; 
lish  statute,  or  that  we  admit  that  the  Knglish  staluie 
contains  anything  hke  the  positive  insiructions  that  i  m 
the  American  Act.  VVe  contend  tiiat  the  Knglish  statu'r 
does  not  contaia  the  instructions,  and  we  do  not  wish  to 
he  understood  as  adopting  that  constnu  tion  of  it. 

Mr.  Warren:  —  !  call  your  Honor's  attention  to  a  pa ii 
graph  in  the  wiitten  argument  of  the  United  States  .  n 
this  case,  at  page  47i»: 

"  Tlie  Captain  of  tlip  I'nitod  Ktnten  rcvonue  cutter  'Moliiciin' 
■■  flndiuK  tlio  '(War  nud  Hattio'  wit!:iu  the  watorH from  wliicli  hlic  uas 
"  exfluded  l)v  the  Conveutiou,  having  on  Imard  int|ileiu<MitH  fortiikuii; 
"  senlH,  wliied  coiiHtituted  n-aHonalile  eauHe  for  Heiztiro  an  |>rovi(|i'<l  m 
"  the  iuNtructionH  iHHued  t>v  tlicHocrctary  of  theNavv,  and  l>y  tlio.  ;il 
"  P'ishery  Act  of  18!U,  and  liuviuK  on  board  alAo  Itodica  of  Heain,  u  ln.l, 
"  placed  on  tlie  owner  of  the  ship  the  ouuh  of  proving  that  tlie  gliip  uas 
"  not  UHed  in  contravention  of  the  imxliis,  an  provided  in  tlio  Seal  I'i^li- 
"  ery  Act  of  18i(l,  neized  the  Hchoouer  ou  the  3(Hh  of  AuRugt." 


20 


And  at  page  4H1,  aie  these  words: 

30  "  Tlie  United  HtatcH  contend  that  the  captain  of  tho  revenui'  cntii  r 
"  '  Mohican  '  had  reaHonaMe  cauKc  for  Hcizing  tho  '  OHcar  and  Hiitln  ' 
"  The  construction  placed  upon  tho  inoihis eipunli of  \H\Y2hy  l»>tli<iuv. 
"  ernmentH,  oh  contained  iu  the  Fixhery  Act  of  IH'.H,  and  in  the  iusti  iir- 
•'  tions  of  tho  (Jovernmcnt  of  the  United  Htutosto  her  cutters  iu  IJciiii),' 
•'  Sea.  was  a  reattonaMc  and,  moreover,  the  controlling  couBtructidii." 

There  is  one  matter  that  might  Ih'  made  clear  liere.  It 
is  apparent  to  the  minds  of  all  of  ns.  perhaps,  that  the  Sr.il 
Fishery  .Act  of  IsiM  was  passed  in  accordance  with  tiiu 
iiiixhis  rirciidi  (A'  1S!M,  ami  that  the  modus  rircmli i){  h:":.' 
40  was  l)ut  a  contihii.ation  of  the  iiuithis  viieudi  of  l^!t|,  .ind 
that  the  Seal  Fishery  Act  of  Ih'.M  construed  and  hecainca 
part  (if  the  iiindiis  of  1S|»2  hecause  it  construetl  and  Ix'ciiiiu) 
a  part  of  the  modus  of  iv.M. 

Mr.  Peteis:     There  is  no  douht  of  that. 

C'onnnissioncr  on  the  part  of  the  United  States:  — Is  tin  iv 
any  sp<'ciH<'  i)rovision  in  the  modus  rirendi  of  l!Sy:i.  tliMt 
yo!!  desire  to  refer  to,  Mr.  Warrenif 

Mr.  Warren:— Idid  refer,  if  your  Honor  please,  toArtirlr 
111.  of  the  i//ef//(.s  f/(t')/f//  of  lv.12,   found  on  |)age  •_'•',(  1  df 
50  the  K.xhihits. 

1  call  your  Honor's  attention  to  this  position  o(  tin.' 
(ounsel  for  the  United  States.  We  contend  that  liy  llic 
terms  of  Arli(  le  HI.  of  the  modus  rheiidi  of  Imil',  In 
which  I  have  just  leferred,  the  cruisers  of  the  liiilni 
States  weie  autliorized  toseize  Hiitish  ves.sels  for  violaliiij:, 
not  the  modus  lininfi,  but  the  Scjii  Fishery  Act  of  j^'.•l. 
Therefore,  it  is  unnecessary  to  look  beyond  that  convni- 
tion  and  beyond  the  Se.al  Fishery  Ait  of  fs'.tl. 

Tlui  Coinniissioner  on  the  part  of  Great  Kritain:-  In 
6oCaiia(la  or  in  Kiigland,  that  is  the  only  act  it  couM  be  m 
violation  of.     With  you  a  treaty  is  part  of  your  law.  Imt 
with  ns  it  is  not.  an<l  there  had  to  be  an  Act  of  I'ailii 
ment. 

Mr.  Warren:  -That  is  exactly  our  |)osition. 

The  Conmiissioiier  on  the  part  of  the  United  States  - 


««(» 


ill  iccordanct'  with  IIih  iiKi'^'i'iiifiit  betwci'ii  tlu'  (Jovt'in- 
III.  lit  lit'  (iivat  Britain  aiiu  the  (loveinmont  of  the  ITnited 


(Mr.  Warren'H  Argument.) 

Till' ilifficiilty  is  that  thero  is  nothing;  in  tho  act  which 
ill  |iiisi>H  a  ponalty  for  \K'iu^i  in  the  Kea  with  seal  skins. 
Mr  Warren:— The  Act  of  IHltl  which  was  an  act  passed 
(lance  with  the  au;reonicnt  be 
(Jreat  Britain  anu  the  Govern 
SI  lies,  said  that  if  a  .schooner  was  foinid  within  tho  limits 
i<\   Hcring  Sea,  having  on  hoard  seal  skins  or  implementa 

10 ti  <  taking  seals,  t!  r  onus  of  proving  that  she  was  not 
<(  ininiling  acts  in  violation  nf  the  Act  t)f  IM'.M.  should  lie 
on  tlie  owner  of  the  vessel.  I  submit  to  your  Honors  that 
>lf  niU!-t  be  seized,  because  the  schooner  could  not  shew 
ii'  I  innocence  without  that,  or  without  api>eaiing  for  trial. 
Tlie  Commissioner  on  the  part  of  the  I'nited  States;— 
Till' mere  fact  that  she  is  in  the  Bering  Sea  does  not,  so 
1,11  :is  I  can  make  out,  create  an  ot!Vnse,  and  this  Article 
III  relates  .simply  to  an  olTeiuling  vessel. 
\1 1 .  Wan  en :     But  it  said  that  the  United  States  cruisers 

;o^ll"llid  have  authority  to  seize  Biitish  vessels. 

Tlie  C'onnuissioner  on  the  part  of  the  United  States:— 
dUiiiding  vessels. 
Ml.  Warren:— Offending  vessels  of  either  nation. 
The  Commissionei-  on  the  part  of  the  United  States:— 
Till'  instruction  to  the  navy  conunandeis  proceed  upon  the 
piiiiciple  that  the  phnce  in  which  a  vessel  was  to  prove  her 
iiiiiiiceiice  was  in  a  Briiish  court. 

Mr.  Warren:  -Exactly.  The h/«m//(.s  r/rc»(f// did  provide 
lliit  the  cruisers  of  the  United  States  should  have  au- 

3otliniiiy  to  seize  any  vessel  offending,  and  that,  the  cruisers 
(il  llie  United  States  should  have  authority  to  seize  British 
vi-M  Is  otTending.  As  the  learned  Commissioner  for  (Jreat 
lliii.iiii  has  stated,  they  could  not  otfend  against  a  treaty 
111  roiivention  in  (treat  Britain,  and  therefore  the  Parlia- 
iiii  lit  of  (Jreat  Britain  passed  an  act  kn<twn  as  the  Seal 
I'l-ln-ry  Act  of  ISIM,  which  enabled  the  United  States 
( inix'is  to  seize  any  Biitish  vessel  oflfending  against  that 
.'Kt.  Therefore  the  cruisers  of  the  Unite«l  States  were 
;iiilli<irized  to  seize  a  vessel  which  was  violating  the  Seal 

40l:sln'iy  Act  of  ISiM  Thus  far  we  ai  call  agreed.  Now,  the 
Si  III  Kishery  Act  of  ls!t|  ])rovided  that  "  if  a  British  ship  is 
tniiiid  within  Bering  Sea  having  on  boiird  thereof  fishing 
ni  -iJUHitiiig  implements  or  seal  skins  or  bodies  of  seals, 
it -hall  lie  on  the  owner  or  master  of  such  ship  to  jiiovo 
til  it  the  ship  was  not  (jccupied  or  employed  in  contraven- 
li  11  nf  this  Act."  That  language  cannot  mean  anything 
iiiili>s  the  vessel  was  to  be  seized.  The  owner  or  master 
(iiiilil  not  rebut  the  presumption  until  the  ship  was  seiztnl. 
Tin  refoie  the  seizing  officer  had  to  tike  the  vessel.     Here 

>Oiiiii  views  diverge.  The  cotuisel  for  (Jreat  Britain  con- 
ti  Mil  that  the  captain  of  the  seizing  ship  sIk  uld  have  de- 
t<  iiniiieil  whether  or  not  that  boat  had  violated  the  Seal 
Ii  Iniv  .\ct  of  ixi'l.  We  claim  th-it  the  officer  was  corn- 
In  ll<i|  by  tlu'  modus  rirvmli  of  isjt^  to  dejivi'r  tiie  ship 
iivi  In  the  authorities  of  the  nation  alone  having  juiis- 
ili'  Hull  to  try  her,  iiiid  if  there  was  a  discretion  to  be  e.\- 
(•i.  1-1  il  iiy  anybody,  it  was  to  be  exercised  by  the  anthor- 
iii  "if  (Jreat  Britain  .•md  not  by  the  seizing  officer  of  the 
li.iifd  States.     The  authorities  of  the   United  States  did 

feii'ii  uider  this  vessel  to  Victoria  for  trial,  and  liiul  no  con- 
II'  liiiii  with  tho  disjiosition  of  the  vessel  after  she  was 
til    vired  to  Captain  I'arr  in  the  F'   rbor  of  Unalaska. 

I  111'  Commi.ssioner  on  the  part  of  the  United  States: — 
It  (Ills  to  me  whether  the  naval  officer  was  not  bound 
til     ize  her,  no  matter  what  his  belief  was. 


(■r 


ttuo 


-I- 


(Mr.  Warren's  Argument.) 

Mr.  Warren:— Certainly,  your  Honor,  and  he  had  to  di' 
liver  her  under  the  modus  vireudi. 

Mr.  Dickinson:  — We  .ind  the  instructions  were  com- 
niunicatcd.  your  Honor,  nnd  later  on  we  will  read  tlii> 
correspondence. 

The  Commissioufr  on  the  p'lrt  «)f  the  Tnitod  States;  - 
If  the  instructions  were  communicated,  and  not  ohjcctiil 
!<-  lo,  that  is  an  important  element  in  this  connection. 

The  Commissioner  on  the  part  of  Her  Majesty:  i 
understand.  Mr.  Warren,  your  argument  is  that  hy  the 
law  of  the  coimtry  of  the  vessel,  it  was  legal  to  seize  In  r, 
acting  hoiHi  fide,  of  course,  under  the  existence  of  cert.iiii 
facts  which  were,  hy  the  law  of  that  country,  n)ade /i/////(( 
facie  of  the  wrong  (loing. 

Mr.  Warren:— Exactly,  your  Honor. 

The  Commissioner  on  the  part  of  Her  Majesty:  — Hij; lit 
or  wrong,  that  is  your  position; 
20  Ml.  Warren: -That  is  our  position,  and  in  connection 
with  that,  the  authority  to  so  seize  was  derived  from  tlif 
»iOf/».s  Vivendi,  which  provided  that  Tniteil  Statis 
cruisers  could  seize  British  ships  and  the  law  of  the 
coimtry  of  the  vessel  wfis  a  necessary  part  of  the  modus 

The    "  WiNNIFKED." 

I  will  take  up  the  consideratitm  of  the  claim  ot  ilif 
owners  of  the  "  Wimiifred,"  discussed  at  page  4s4  of  mir 
argument,  and  leferred  to  this  High  Commission.  iiikIii' 

30 the  toinis  of  paragraph  .">  of  the  Convention.  The  L'liilid 
States,  as  shown  when  I  was  considering  the  rase  ot  tln' 
"  Oscar  and  Hattie."  admit  no  liahility  with  reference  to 
these  additional  claims,  and  no  question  of  fact  u.is 
determined  l»y  the  Paris  Trihunal  in  connection  therewith 
The  '■  Winnifred"  was  seized  July  :i'»,  Isuii.  in  Bcrinj; 
Sea,  l)V  the  authorities  of  the  United  States,  for  violalinii 
of  the'Seal  Fishery  Act  of  ISJU. 

One  (piestion  of  douht  should  he  removed  at  the  outset; 
leferent'e  to  the  testimony  of  Captain  Coulson,  Heciiid. 

40 page  lots,  line  'ja,  discloses  that  the  "  Wiimifred  "  was 
seized  for  an  actual  violation  of  the  pvohihition  agmn^t 
sealing  in  the  waters  of  iJering  Sea  in  1S!»2.  At  the  tiiiic 
of  her  tirst  seizure  I  v  Captain  Coulson  he  was  not  in  pii< 
session  of  tlit;  facts  which,  at  a  later  period,  led  the 
authorities  of  the  Ciuled  States  to  lihel  this  vessel  tm  a 
violation  of  the  revenn  >  laws  of  the  United  States. 

1  refer  to  this  liecause,  in  oral  argument,  Mr.  Meii|iic 
contended  that  the  seiz'iig  officer  of  the  United  Sialcs 
knew  at  the  time  the  "  Winnifred"  was  seized  that  >\u- 

5^  had  committed  acts  in  violation  of  the  revenue  laws  of  thu 
United  States,  and,  as  he  expressed  it,  the  United  St.itos 
took  advantage  of  its  right  of  seizurt^  under  the  ini'ilns 
vireudi  of  isi'ii.  and  thereafter  tried  and  condeniii'd 
this  vessel  for  a  violation  of  her  own  revenue  laws. 
The  apparent  inference  from  that  contention  is  that  tlu' 
United  States  otlicer.  having  knowledge  of  the  fact  tii;it 
till'  '•Winnifred"  had  violated  the  revemie  laws  of  tlu' 
United  States,  under  color  of  his  right  hy  the  terms  of 
the  modus  vivvndi  of   ls!tL>.  seized  this  vessel  and  theif- 

^'Oafti'r  |)iociired  a  consent  from  Her  Majesty's  represeiita 
five  in  those  waters  to  release  the  vessel  from  trial  I'oi  a 
violation  of  the  SenI  Fisheries  Act,  and  had  her  lihellid 
for  violation  of  the  revenue  laws  of  the  United  States. 

The  information  of  tiie  violation  of  the  revenue  laws  hy 
♦  lie  "  Winnifred  "  was  communicated  to  Captain  Coulson, 


til. 

Ill  > 

III- 


«lt>l 


(Mr.  Warren's  Argument.) 

>*>i/,inK  officer,  by  Captain  HoopHr,  who  was  in  coni- 
1(1  of  the  fleet  of  the  Unitetl  States  in  Bering  Sea,  and 
letter  is  foniul  at  Record,  pa>(e  l.'ils,  line  1: 


10 


'(  >|>tAin  W.  <'.  ('otTijHtiN, 

"  U.  H.  K.  M.,  ooiiiiimndinK  Ituvciiiie  Bteamor  'KuRh.' 

•Sir 

'  I'iio  followiuK  imtiiotl  UritiHli  H«a1iuK  HcliooiiprH  rocoi^'cd  rarf(0  from 
'  iiii'l  triiUHfcrr<>(l  carKo  to  thf  HritiMh  Htouiiior  '  Coiinitlau,'  witliiu  the 
'  hniitH  iif  tiu>  ('ollcctiou  DiHtrict  of  AluHkn,  nii  tlu*  IKtIi  iuMtaut,  con- 
"  ti.irv  to  law  and  aro  Hiilijvct  to  Hoi'/iirc:  '  Hrcuila,'  '  Uiiiliriua,'  'HfM 

1,1.11.'    *     »     •     'Wiuuifml.'     »     •     • 

■'  Very  ro»|n>ctfiilIv, 

"  ('.    L.     H(M>PER, 

"Cai.tuiii  V.  H.  H.  M." 

\i  line  IS  of  the  Record,  page  LMH: 

■  ().  Now,  ('apiaiu,  w)\o  was  tho  Hoiiior  olHcer  of  the  UDitoil  States 

■  l!i  vcinu"  Marino  Ht'ct?    A.  ('a|)taiu  Hoopi-r. 

,         •().  Yon  took   Hoiiiu  Htatuiiu-iitH  of  tlic  t-aptain   and   crew  of  the 

•  ■  Wiiinifred,'  did  ,vou  iiotV     A.  Yi'h,  «ir. 

■*f.  Hud  you  then  tho  Captain    Hoopor  U'ttor  in  y<mr   poHHCRsion? 

■  A    Yt'H,  I  had  tho  Hooper  hsttor  in  my  posMosHJon  thou. 

■i}.   Hud  iiOH  U  in  your  itmn'sxiuu  III  tke  timn  o/i>eitur*T     A.    ,.Vo." 

This  faft.  then,  is  conchided  i»y  the  Record.  The  seiz- 
iiiu  iitHct'r  did  not  have  in  his  possession  information  of 
ilir  violation  of  the  revenue  laws  of  the  United  States  hy 
the  '■  Winiiifred  "  at  the  time  lie  first  seized  her. 

Mr.  Heif|ne:  — I  do  not  think  you  will  find  in  my  argu- 
jQiiHiit  that  I  said  anything  to  the  contrary. 

Mr.  Warren. —After  Iwing  seized,  the  "  Winnifred  " 
w.is  taken  to  I'nalaska  and,  on  the  27th  day  of  July,  Coni- 
iii.iiiilcr  Kvans  of  the  United  States  Navy  and  Captain 
I'm  (if  the  Royal  Navy  met  in  confeivnce  with  Captain 
('(iiilMtii.  the  seizing  officer.  That  is  estahlished  at  page 
l."il.">(»f  the  Record,  where  will  tie  found  a  letter  of  the 
sci/iii^  officer  addressed  to  the  Secretary  of  the  Treasury. 
"On  .Inly  27th,  Connnander  Evans,  U.  S.  N..  and  Cap- 
tain .\.  11.  CluiM'  Parr,  R.  N.,  conunanding  Her  Majesty's 
^,  iiivallorce  in  HeiiiigSea,  met  hy  appointment  on  hoard 
ilic  ■  Rush.'  and  after  a  full  discussion  of  the  matter,  it 
irii.s  (iiiri'ed  on  l/w  fxiif  of  ('djitaiii  I'arr  that  liis  (foreni- 
iiiriil  iraiild  iraire  the  riijlit  (tf  ciistodf/  of  tlw  svizai  vessel 
liiilil  she  iKuUteeti  hied  bji  the  United  States  Courts  for 
liiilidioii  of  the  ('.  S.  Hevenae  Ldies.  prorided  that  in. 
(IS,  of  fa  it  II  re  to  coiirirt  her  on  those  rhaii/es,  the  vessel, 
1(11  III rijo,  onljits,  d'c.  and  master  and  vreiv  iiere  to  Ite 
I'll  ,ird  over  to  Iter  Majestf/'s  the  Qneen  of  EmjlainVs  reji- 
!■  -ii  iiliilives  at  I'ictoria,  li.  ('.,  for  tritd  on  the  rharije  of 
■.^.|  iiihition,"  and  so  ftirth. 

i'lie  facts  are.  then,  that  the  "Winnifred"  was  unde- 
in.iliiy,  and  hy  the  admis>i(in  of  hercaittain  in  this  record, 
^'•iliii^i;  in  till' waters  of  Bering  Sea  at  the  time  she  was 
^1  i/('(i.  in  violation  of  the  Seal  Fishery  Act  of  iH'.ti.  There 
I-  MO  ilis|iute  about  that.     The  seizing  officer  so  .states  and 

•  .i|ilain   Hansen  so  testifies,  and.  if   the   testimony  is  de- 
>iii  il,  I  will  read  it.     If  not,  I  will  he  content   with  mak 
in:;  lilt'  statement.    This  conference  was  held  at  Unalaska. 
TImI  Unalaska  is   within   the  jiuisdiction  of  the  United 

(K)M  it(  s  this  High  Cotninission  will  take  judicial  notice.  At 
lliii  conference  Captain  Uarr  agreed  as  follows:  I  read 
fi  Ml  Record,  page  1.51.">.  line  :{(>:  "  .\fler  a  full  discussion 
el  I  lie  matter,  //  ivas  aijreed  on  the  part  of  Ca/ttain  I'nrr 
ll'"l  liis  Government  n-onld  iraive  the  riyht  of  cnshnlif 
I'J   'III'  seized  vessel  until  she  had  been  tried  tty  the  United 


V    ■ 


i'At'J 


(Mr.  VViiiTen't*  Ainmiiciit.) 

Sl(ih:s  Cniirls  fur  ritiliilioii  nf  thv  U.  S.    Iteveuiw  l,ii,  v, 
prnvidvil  that    hi  rtisi'  of  I'diline  tit  rnnrict  her,"  and     ,, 
fortli.  the  vt'ssci  would  1m>  (IflivcrtMl   ov»>i'  to  (iH^anlli  i 
iti«>s  (if  (!i<>at  hritaiii  to  lie  tiit'd  for  a  violation  of  tho  ^   i| 
Kishnv  Act. 

('a|itain  I'air,  tht'ii,  wlio  was  tlu*  i-«*|>ri's*>iitativ*.>  of  11.  i 
Maj«»ty's  M«'t'»  in  tin*  watt'is  of  Hi'iin^  Sea,  rons«'ntci| 
loatul  ns  to  this  tlit>ro  is  no  dispnte,  as  that  wiilenco  is  tKit 
contradirtcd  in  tho  Hcconl  Ity  any  witness  that  llii. 
"  Winnifri'd  "  shonld  l»'tri»'(l  for  a  violation  of  tlu'  Uivcii'ic 
TiHWs  of  tho  I'liitcd  Statt's. 
Tli(>  claim   is  niailf  on   lirhalf  of  tho  nwn(M's  that 


lllL- 


I'nitoil  States  (tovoinniont  is  liahlo  for  tho  loss  tn  ili 
ownois  for  tho  roason  that  tho  vossol  was  not  triod  umlir 
thf  tt'inis  of  tho  Soal  Fishory  Act,  hnt  on  anothor  cliai-,  ■, 
nanioly.  that  of  violating  tlio  Hovonuo  I,iiws  of  th,. 
United  Statos. 

20  Tho  Unitod  Statos  on  its  part  donios  any  liahiliiv 
whatovfi- to  tho  owiiors  of  this  vi'ssol.  I  havo  icad  tiic 
agi<'*>in,'nt  of  Captain  Parr,  connnandor  of  Hor  Majoslv's 
naval  forcos  in  Boring  Soa,  whoroin  lu'  consontod  tli;it 
the  rights  of  iho  British  (Jovorninont  shonld  ho  Wiiivul. 
This  wo  contend  is  tinal  and  conclnsivo,  for  tho  na-n 
tiiat  tho  connnandor  of  Hor  Majesty's  floot  had  antlmniv 
to  ropiosont  his  govornniont  and  toniako  whatovcr  a^iiic 
nu'nt  ho  choso  to  niako.  Tho  law  npplicahlo  to  tho  I.k  i> 
of  tliis  caso  will  ho  discnsod  and  hronglit  to  tho  attonliMn 

30of  vour    Honors   hv  tho  sonior  connsol    for   tlio   I'niinl 
Statos. 

Tho  vossol  was  roloasod  by  Captain  Parr,  was  forin.illv 
ro  seized  within  tho  jnrisdiction  of  tho  l')iitod  States,  and 
that  is  liie  point  on  which  this  caso  tnrns.  Tlio  vc- -i>l 
was  roloasod  l»y  Captain  I'arr,  and  was  seized  within  ili 


piri! 


diet 


lonii 


aters  of  the  United   States,  and  of  (his 


tlioro  is  no  ((no.stion. 

Mr.   I'oters:  -Will   you  show    us   the  evidence  on  I  lie 
point  of  tho  release? 
40     The  Coniniissioner  on  tho  jiart  of  the  Unit«Hl  States: 
That  she  ever  wont  into  the  custody  of  Captain  Pan   is 
the  ipiostion  they  raise,  Mr.  Warren. 

Mr.  Warren:  H'  yoin-  Honor  i)leas«'.  1  will  considi  1. 
fiist.  the  testimony  I  iiitonilod  to  road,  ostahlishing  mv 
cnntonticin  that  the  vessel  was  roseizod  within  the  ttr 
ritoivof  tho  United  States.      At  IJocord,  page  LM;"),  line  I": 

"  .V«'tiu(?    undiT    iuHt  met  ions   rocoivi'tl    from    Coinuiiinili^r    Evans. 

"  V.  H.  N.,  I  have  tlioi-oforo  iiindc  foriuni  Hoiznroof  the  '  Winifred  '  ami 

'•  iirrowtt'il  lit'r  iiiUHtt>r.  (J.  M.  (>.  HiinHcu.  itnd  orow,  for  violation  of  (In' 

50  "  V.  S.  Ucvt-nuo  LawH  as  aliovc  citt'il,  and  as  soon  as  the  iu'ci'>.-;irv 

•'  pajH'rs  can  lie  jirocnrcd,  sho  will  lie  di'livorod  into  the  (■nHto(l\  uf 

"  Ijit'ut.  Conuiiandrr  TaiiiH-r,  I'.  H,   X.,  ooniniandiii);  IT.  S.  >Sti'a r 

'•  '  .Xlhatross.'  for  didivcrv  into  tin'  haudsof  thi-  U.  S.  DiHtrit^tAttoni'.v 
'•  at  Sitkn.     Very  rfHiicctfiiliy." 

And  at  Record,  page  l.'ill.  line  44.  we  find  this  bs 
linmny : 

'•  B.v  iliroction  of  Coniniandcr  Evans,  the  vcskoI  was  formnli.t  .li'- 
••  oiarod  seized  for  violation  of  the  revenue  laws. 

"if.  That  is  what  dav  ?    A.  That  is  the  date  of  the  coDforouce,  thr 
Co-   ;»7thof July." 

Tho  vessel,  then,  was  seized  in  the  harbor  of  Uiialask  1. 
whi(!li  is  within  tho  jurisdictional  waters  of  the  liiii'  d 
Stato-i,  for  a  violation  of  tho  revenue  laws  of  the  Uiiiiil 
States. 


nee  on  the 


608 

(Mr.  VV'aiivn's  Aigunient.) 

Now,  1  n|)|M(>li(>ii(l  tlu»  (|uostion  of  (ho  Henior  counsel  for. 
(icit  Britain,  is  this:  \»  there  teHtiniony  in  the  Uecord 
111  it  cstuhUshes  the  fuct  thi't  the  "  VVinnifred  "  wiih  lurtii-, 
iiiiv  iind  iihyisinilly  deUveretl  to  Cnptuin  I'arr  of  Her  Mu- 
j(   iv's  Navy  in  uccordaiK^e  with  tho  terms  of  the  modus, 
I,  I  iidi  it{  IHlt'i}     In   reply,  1  ask  this  qnestion:  Is  there 
aiiv  testimony  in  the  Uecord  to  eslahhsli  the  fact  tlint  she 
u  i~  not  so  delivered?     When  we  have  llie  p<»sitive  testi- 
iiy   that   slie   was  formerly  reseized  in  the  hnrhor  of 
;iiaska,  «loes  the  presumption  not  arise  that  lln'se  off]- 


III 


CI  I  Is  (if  the  United  States  seized  the  "  VVinnifred  "for  a  vio- 
l;iiiipiiof  the  revenue  laws  of  the  United  States  after  s!ie 
li.il  heeu  tend«'re(l  to  Captain  Parr,  in  accordance  with 
til  iHitdits  rivviiili  of  IM1»2  and  refused  hy  him.  She  was 
t(  iiilt'n'd,  I  will  say  further,  to  v..aptain  I'arr  of  the  Koyal 
N  ivy.  in  accordan«re  with  the  ihimIiis  riveiidi  of  1H)»2,  he- 
(Miise,  otherwise.  Captain  I'arr  would  have  had   no  hiisi- 

iQii'^'*  in  connection  with  this  vessel,  and  would  not  have 
Imm  11  on  the  deck  of  the  "  Yorktown"  in  conference  with 
tin  otticers  of  the  (Jovernment  of  the  United  States. 
(',i|itiiin  Parr  was  there,  and  the  vessel  was  tendered  to 
linii,  or,  otherwise,  he  could  not  have  ^iven  his  consent 
till  her  release,  whi(;h  consent  is  in  the  Record. 

NnW,  I  ask,  iKtcause  the  words  are  not  in  the  record 
Ihii  "1,  Captain  Coulsen,  seixing  olHcer,  today  towed 
till'  '  Winnifred'  alongside  of  some  place  that  Captain  Parr 
dill  ited."  hav(«  we  failetl  to  prove  that  she  was  ever  ten- 

;oili'i<il  to  Great  Hritain)  I  say  again  unless  she  was  teu- 
(I.  i(  i|  to  (ireat  Hritain,  why  was  Captain  Parr  on  the  deck 
(if  the  "  Yorktown  "  in  conference  with  Conunandor 
Kv.iiis  an<1  Captain  Coulson?  And  if  she  was  not  tendered 
ill  ;ii  lordance  with  the  terms  of  the  iiiodiis  viri'iidi  of 
h'.'L',  how  could  Ca|itain  Parr  release  her  and  waive  his 
I  i^lil  tor  trial  under  the  terms  of  the  modus  rirendi/  Are 
MMM  Honors  to  presume  that  the  language  is  void  uf 
iiK  iiiiiig  when  Captain  Cuulsou  writes,  in  his  connnuui- 
(aliciii   to  the   Honorahl<>  Secretary   of   the    Treasury   at 

4o\\  i-liington,  that  it  was  agreed  on  the  part  of  Capiain 
I'.iir  that  his  Government  would  waive  the  right  of  cus- 
tiilv  (if  the  seized  vessel  until  she  had  heen  tried?  And 
.11  •  von  to  conclude  that  Captain  Parr  was  doing  a  vain 
tliini;.  that  he  was  agreeing  to  something  that  he  had 
Ml  Ml  heen  asked  to  agree  to,  that  he  was  tendering  to  the 
aiiiliMiitit's  of  the  United  States  a  vessel  that  had  never 
li'i'ii  tendered  to  him?  And  when  Captain  Conlson  testi- 
tji  ~  that  he  formally  seized  that  vessel  within  the  juris- 
ili'  iiiiial  waters  of  the  United  States  for  a  violation  of  the 

joii^'imc  laws  of  the  United  States,  is  that  testimony  to  he 
taki  II  as  void  of  meaning?  .And  are  we  to  helieve  that 
Cap!  liii  Coulson  seized  a  vessel  that  he  had  no  necessity  to 
st'i/i\  for,  according  to  the  contention  of  our  learned 
fri'iids,  the  "  VVinnifred  "  remained  in  the  possession  of 
till'  rnited  States  authorities?  1  do  not  think  there  can  he 
iiin  si-iioiis  dispute  ahout  the  (acts  in  this  case.  No  other 
int.  iiiice  can  he  drawn  from  the  tttstimony. 

I   VIS  asked  to  refer  to  the  testimony  showing  that  Cap- 
tin  :  I'arr   had   possession  of  this  vessel.     1  rejdy  that  we 

601I11  lit  r('(|nire  such  testimony;  that  we  have  ah.solute 
kii  wlcdge  that  the  vessel  was  tendered  to  Captain  Parr 
111  1,1 1  ISO  ho  tendered  her  hack;  that  she  was  ilelivered  to 
C.i  lain  Parr,  hecause  he  waived  his  right  of  sending  her 
t(i  ituria  for  trial;  that  she  was  in  possession  of  (treat 
Hii:  Mil.  hecause  she  was   leseized   in   the  jurisdictional 


1          ■    'T" 

7"  TT't" 

)■  'i 


:'       ■•         l:.«. 


*(!»4 


m^ 


(Mr.  Wiinvn's  Argiiiii<>iit.) 

wntiTfl  of  tlio  lliiit«'(l  Htiites  l»y  th«'  aiithoritieH  «»f  ||,. 
Uiiitod  States  iiftor  tlio  waivur  t)f  cuHtotly  was  ina<h' I  \ 
('ai)tain  Parr. 

Thf  ComnuHsioiu'r  «ii   the  part  of  Her  Majesty;    TIm 
expression  "  waived  the  riKlit  of  custody,"  if  strictly  in 
terpreted.  would  hardly  support  the  notion  that  there  wis 
cuHtody  in  fact,  woidd  it,  do  yon  think?     I  moan,  if  on. 

lo  looks  at  it  narrowly? 

Mr.  Warren: -If  yonr  Honor  please,  in  reply  to  tji  , 
sn«;gestion.  1  would  sny  tliis:  It  is  in  evidence  that  tin 
vessel  was  tendered  to  the  British  authorities.  Siii< .' 
when  did  it  l)e(rome  a  principle  of  law  that  the  tender  m| 
personal  property,  and  the  refusal  by  the  person  who  Ii;ii| 
the  rijrlit  to  its  custody,  is  not  wpiivjilent  toa  physical  dr. 
liveryf  This  vessel  was  tendered  to  Captain  I'arr;  hen 
fused  it;  ho  waived  his  right  to  have  the  veH.sol  delivcitil 
to  a  British  comt  for  trial  on  the  charye  of  a  vicdation  ui 

2othe  Seal  Fishery  Act  of  isui.  Would  it  sifrnify  anytlim- 
more  if  we  found  witnin  the  covers  of  tliis  Uecord  tli.' 
testimony  to  piove  tliat  Captain  Tarr  had  a  line  on  tlir 
"  Wimiitred  "  and  had  her  idongside  some  dock?  Since 
when,  I  ask  again,  was  it  estaltlished  that  ,1  tender  of  per 
sonal  property,  and  a  refusal  hy  the  person  entitled  to  its 
custody,  is  not  in  I'vcrv  respect,  in  a  <'o\n"t  of  justice, 
e<|uivalent  to  the  physical  possession  hy  the  per  ■  n 
whom  the  lender  was  madef 
There  is  in  our  hrief  another  ground  <if  iK'fonse.     dm 

30 learned   frienl.   Mr.  Beique,  read   from    page  154  of  our 
argument,  these  words: 

"  Till- iutcrnaliiiuul  i|ueMtiou  iif  jnriHilictidii  Iit'iiiK  *>ut  uf  tlic  wuv, 
"  iMHiK-  is  tiiki'u  witli  the  |iiiNitiiiu  of  tli<>  liritiHJi  couuhcI  tliat  tlir  i'nm- 
••  iiiiHHiouci'H  uuilcr  tilt-  |irf8t>ut  Couveution  t'liu  r(>vim>tlietiii<liiiK  of  ilic 
■■  Ctinrt  t)f  AliiHkiiDU  ituv  jnriiti('ii!i|tiOHtitiii.  Nointcrnatinnnl  court  lun 
"  revisi!  the  jn<U^iiifiit  of  the  court  of  aiintion  uuIuhh  thitt  jmlKiiii'iit  li.- 
•'  hy  tlie  court  of  liiHt  rcHort  in  its  judicial  «yHtciu.  This  ruh-  iHcstnli. 
"  liHhed  UN  onu  of  iiiiiverHal  application,  to  whicli  there  can  be  no  <  x- 
••  ceptiou,  unU'HH  an  appeal  wan  prevented." 

40  The  learned  counsel,  after  reading  that,  admitted  |li;it  |i> 
he  the  law  if  the  vessel  had  been  seized  within  the  juris 
diction  of  the  I'liited  States.  That  is  his  statement  in  onil 
argmnent.  I  shall  not  discuss  that  |)rinciple  of  law.  lnil 
content  myself  hy  rejiding  the  position  of  the  rnil.il 
States,  asset  out  in  the  argument,  and  I  only  read  it  lor 
thepmposeof  replying  to  the  argtniient  of  the  learned 
counsel  for  (rreat  Hritam.  The  tact  is  that  the  rc.s.sW  nuis 
sciu'd  iiilhiii  llii'jiiiis<liiiii)ii  0/  ///c  L'liitcd  Staffs,  nwA  I 
have  reail  the  testimony. 

50      Mr.  Bei»iiu':     My  po.«ition  was.it  seized  within  the  terri 
tory  of  the  United  States  for  the  violation  of  nnnii(  iptl 
law  in  the  United  States. 

Mr.  Warren:— My  reply  was  e.xactly  to  that  content mii. 
that  she  was  seized  in  the  harbor  of  Unalaska  for  a  vjuhi- 
tion  of  the  revenue  laws  of  the  United  States;  and  1  rr.id 
at  page  l.'il.")  of  the  Uecord,  as  follows: 

•'  Acting  under  instructions  received  from  Conmiandtr 
Kvans.  U.  S.  N.,  I  have  therefore  made  formal  seizin lut 
r)othe  '  Wimiifred'  and  arres^ted  her  master,  t».  M.  0.  Han- 
sen and  crew,  for  violation  of  tho  U.  S.  Ke venue  La w.^.  ;is 
aliovtt  cited,  and  as  soon  as  tho  necessary  papers  can  In' 
j)rocm('d  she  will  bo  delivered  into  tlio  custody  of  Lieut. 
Conunander  Tar.nei-,  U.  S.  N.,  conimanding  the  U  S. 
Steamer  *  Albatross  '  for  delivery  into  tho  hands  of  the  l'. 


(tO.'i 


(Mr.  Warren's  Argument.) 


S  DiHtrict  Attorney  at  Sitka,"  as  aln>v«)  cittfl.  'I'lmt  was 
\Mii-ii  ('aptain  ChuIhcmi  \v;ih  in  tlin  li.irhiii'of  rnalaskii. 

Mr.  Btti(|U«:     But  you  st>i/t'(l  heron  tli<>  lii^li  s«>as,  mid 
lii'iiKlit  litM  l>y  forco  within  the  jinistHction  of  tho  Tnittnl 

SI  iti'H. 

Mr.  \Van«'n:  -SciztMl  h«'ron  th<>  lii^h  seas  lor  a  violation 
(il  ihi'  iiinilus  riinuh'.  Milt  she  wiis  m'i/ftl  for  a  violation 
II.:  llif  Uevcnut'  Laws  of  the  riiitrtj  Statt-s,  within  the 
jiii  isilictioiial  w'iiti'isof  tin- L'nitcd  Statc-^,  ami  at  tlx-  tri.il 
III  I  owners  could  havt>  laiM'd  tlif  (|iii-stion  of  jiirisilirtion 
,iiiil  taken  an  a|i|)eiil  to  thi>  Sii|)r<Mne  Court  of  tin*  I'nitfd 
.*^i,ites.  liut  wliat  did  tin-  owners  do  afh  r  this  vessel  wan 
M  i/eii  and  taken  toSitka^  They  entered  tlieii'a|)|)earan('e 
i'l  I  hat  case  and  pi  ve  testimony,  and  did  not  r.tise  tiie(|ues- 

II  III  of  jui  isdiclion.  And  what  more  did  they  do^  Th*>y 
;iliiilei|  Ity  thedecision  of  the  (Nairf  at  Sitka.  .\ii  appeal  to 
till  Supieme Court  of  the  I'liited  Slates,  which  is  Hie  lii>;hest 

.•iiniiirl  ill  our  coinitry.  w,is  no*  perfected. 

I'lie  learned  I  iiiinsel.  .Mr.  I     iipie,  admits  the  correctness 

III  the  propositiiiii  thiit  no  in'  inafional  court  can  revise 
till'  jiid|;nient  of  a  court  of  a  uatioii  unless  that  jiidKineiit 
lir  liy  the  court  of  l.isf  -isoit  in  its  judiciil  system.  The 
coiiiisel  for  tlie  I'liitt  ''  fates,  iherefiie.  say,  with  refei- 
iiH  e  to  this  claim  .idvanced  liv  th.'  owners  of  the  "  Win- 
.iilii'd,"  that  the  hoat  was  s"M/,e(l  within  the  juiisihction 
(if  the  I'liitcd  States  for  viol.Mioii  of  tile  revenue  laws, 
wa-^  convicted  after  a  rr^iil:ii'  trial:  and,  no  appeal  having 

;(iliiiii  taken,  it  is  not  open  to  this  llinh  Court  to  revise  the 
jinll^nieiit  of  the  Distiict  Coiiif  for  the  heiietit  of  the 
iiwiiersof  this  vessel,  riierefore,  the  Lniled  States  deny 
;iiiv  liaiiility  whatever  to  the  owners  of  the  "  Winiiifred." 
Moreover  the  vessel  was  at  the  time  of  her  seizure  in 
till'  liij^li  seas  jictnally  t.ikiii^  seals  contrary  to  the  laws  of 
liiilli  countries.  It  would  he  aj^iinst  piihlic  policy  for  her 
III  recover  damages  resultiufjf  from  a  seizure  made  for  the 
|iiii|iose  of  enforcinj;  the  laws  of  the  I'liited  States  and 
i^ieal  liritain  and  to  recover  daiiia<;es  for  the  interrnptioii 

41 1  111  a  voyage  admitted  to  have  heeii  iiiideitakeii  contrary 
til  the  law  of  the  country  of  the  vessel. 


dfi 


The  "  Waxdkkeh." 

I  now  come  to  the  consideration  of  the  claim  of  tiio 
iiwiieis  of  the  '■  Wanderer."  No  ipiestion  of  fact  was  de- 
li iiniiiedhy  the  I'aiis  Tiihunal  in  connection  with  this 
1 1  Hill.  Tliis  High  Cominissioii  is  to  consider  this  claim, 
iiiil  'pendent ly  of  all  other  tiihtinals. 
;ii     III  the  schedule  in  the   liritish  argiimeiil    in  chief,  the 

I I  inn  is  made  for  ^!S, 447  for  tin- prospective  or  estimated 
1  .ill  II  the  schooner  would  have  secured  if  not  interfered 
uilli.  The  I'liited  States  contend  that  there  was  110  iii- 
ii'ilerence,  in  fact;  and  deny  any  liaiiility  whatever  to 
t  111'  owiieis 

A^aiii  I  -ay  that  unless  I  am  asked  to  give  reference  to 
till'  Kccord,    1  will  state  the  facts,  helieving  that  they  are 

III  the  minds  of  all  of  us,  and  I  ask  the  learned  counsel  for 
till  at  Ihitain,  at  any   Mnio  to  interrupt  with  a  reqr.est 

i«)lli.il  the  asseition  or  statement  of  fact  he  suhstantiated  hy 
a  ii'lereiice  to  the  testimony. 

The  "  Wanderer"  was  never  outfitted  for  a  voy.ige  in 
I'  I  iiig  Sea. 

Mr.  Heiqiie:- We  deny  that.     We  prefer  that  the  evi- 
li'  iice  lie  cited. 


Hi 


ti',)*; 


{Uv.  WaiTt'ii's  Ai-giinuMit.) 
Mr.  Warren: — Hontrd,  pa^i'  ir>;!«t,  liin'Td: 

"  In  188i>,  von  wort-,  1  Iwliovf,  on  the  '  WHi'.ileror,'  won>  von  u  t  v 
-A.   \Vh. 

"  Q.   As  luiiBtor  nutl  owuor  of  f  li«' vt>HH«'l  ?    A.   Pnrt  owntT,  vck 
"  Q.  Anil  iiiiiNt'T  of  tlio  v«'HM«>l  y    I)jil  von  oiittit  th«>  vi'KHol'for  lllo 
"  oouHt  autl  lt)>liriuK  H<'n?    A.   Yen,  |)iirtly. 

"  if.  Whiit  do  von  nifiin  l)v  prti'tlv?     A.  Well,  what  I  uionu  ih  lli.i  I 
"  tliil  not  take  ii  full  Btoi'k  o^  itroviniouH  with  nio;  I  took  inuui>,v  iil.  an 
'O  ••  to  linv  proviMionH." 

Mr.  Hodwt'll: — And  \\v  honght  tliein  aftiMwardrt. 

Mr.  Warrt'n: — Yon  aro  in  t-rror;  liti  novcr  lumglit  mu. 
dollar's  worth  of  provisions  aftorwards  bccaust'  In;  wis 
not,  on  tl)at  voya^(^  within  one  tlionsand  inil«>s  of  ilio 
placo  whero  ho  said  ho  intondod  to  pnrt-liaso  provisimis 
(Record,  pago  lit'M,  lino  iiiS): 

"  Q.   WhiTC  I'oulil  you  Hi>cure  ndditioual  prpvisiouH?     A.   I  had  ;;nt 
"  proviHiouH  at  Uu^or  Island,  at  Yakiitat,  Hitka. 
20      "  Q.   M  IhinlaHka?    A.   I  could  got  tlifui  at  UnalaHka  l)ut  I  was  i\<<\ 


likoly  to  go  to  rualnHka. 

"  Q.  ProvisioUH  could  UHtially  be  got  at  that  plaoo?    A.  Oh,  yi's  ' 

What  fads  thon  do  we  find  in  connection  with  IIik 
claims  This  vessel  never  «.nttitted  for  a  voy;ige  in  Hcrinj; 
Sen.  hut  the  captain  testilies  that  he  had  four  or  five  Imim. 
dred  dollars  with  which  to  bnj-  provisions,  and  that  lie 
sealed  along  the  coast  of  Vancouver  Island.  On  the  SMli  or 
loth  of  May,  ISS').  the  Indian  hunteis  nuitinied,  and  the 
captain  aliandoned  the  pro|)osed  voyage  to  Hering  Sea  aiul 

-^° returned  to  Victoria  and  never  went  to  Hering  80a  mi  a 
luniling  voyage. 

Interfered  withi  If  your  Honors  please,  there  is  not  ,1 
line  of  testimony  tending  to  show  that  any  officer  of  a 
Unitt'd  States  crni.ser  ever  saw  the  "  Wanderer."  evii 
knew  that  the  '■  Wanderer"  was  in  existence,  ever  saw 
the  ca|»tain  of  the  "Wanderer"  or  any  niendter  of  tlic 
crew  of  the  "  Wamlerer,"  or  that  any  otlicer  or  agent  n( 
the  United  States  ever  saw  any  hunter  on  hoard  tlir 
"  Wander*'!.''     l>o  the  learned  counsel  tpiestion  that/ 

40     What  occurred  on  the  loth  of  May,  issj*^    The  cipt 
says  (  h'ecoid.  page  IMl,  line   lai.  and  because  of  tin 


ini 


50 


(juest  of  the  learned  counsel  1  inti-nd  to  lead  thistestiinmiv 
and  n<>t<lepenii  upon  nienioiy,  for  we  conceive  this  claim 
to  he  entirely  fictitious,  entirely  sinnilated.  without  fonnda 
tinn  in  fact  and  without  any  basis  whatever: 

•'  {.).  How  far  dill  you  fjo  V     A.   Went  us  fur  as  CaiM'  Si-ott. 

•'  Q.  You  did  not  rcai'li  Hclirinn  Sea  V     .\.   No,  I  did  not. 

"  Q.  Whv  y     .\.  Till'  IiidiauH  went  liai-k  ou  nii'. 

"tj.  Wlii-rcy     A.  (HrCapfHcott  " 

Iv'cferriiig  to  the  maps,  you  will  discover  that  Cape  Scoti 
is  one  Iboiisand  miles  from  Hering  Sea.  It  isat  the  iinrili 
ein  e.xtremily  of  \'ancouv«>r  Island.  That  is  where  tlii-< 
boat  went.  She  was  never  on  this  voyage,  according  tn  llic 
feslimonv  of  the  captain,  anv  nearer  to  Hering  Sea  than 
Cape  Sciitt. 

Hefoic  consideiing  the  testimony  of  the  captain,  pernut 
me  to  say  th.it  although  he  endeavoicd  to  cre.ite  tlie 
impression  and  establish  the  belief  that  this  vessel  was 
6odeprived  of  her  season's  earnings,  the  facts  were  devi  I 
oped  by  the  Cnited  States  counsel  that  the  '  oat  ic 
tin-iu'd  to  Victnii.i  after  the  loth  of  May,  made  a  chaitti, 
went  to  Shnmigan  islands  at  the  entrance  to  Hering  Sea, 
brought  hack  a  cargo  of  seal  skins  and  received  her  (ny 
for  the   services.      The  captain    was    sdent  on  all  t 


697 

(Mr.  Wari'en'rt  Aigunioiit.) 

N,it  a  woi'il  of  MuB  diai'ter  until  tln^  Unite<l  Staies  coiiii- 
8t  I  had  leaiiu'd  from  the  witness,  Captiiin  Rucknain,  that 
til  •  •'  Wanderer"  was  at  Shnnii^an  Islands  after  the  lolh 
(il  May,  and  had  foreetl  from  the  witness.  William  Mini- 
Si.,  .ifter  a  vigorons  cross  examination,  the  fait  that  the 
"  W.iiiderer  "  had  lu'en  chartered  for  thepnrposeof  hring- 
iiL;  l)aci<  seal  skins  from  the  vessels  which  discharged 
lolli'ir  cargoes  before  entering  tlu)  Beiing  Sea.  No  amount 
is  ivdited  for  the  money  received  from  that  charter  in  the 
si  lii'dide  attached  to  thisc'aini.  Since  wht'n  could  a  vessel 
01  I  |»eison  sue  for  loss  of  tinje  or  interruption  to  husinesB 
wiiliout  K'ving  credit  for  the  money  earned  during  the 
tiiiH'  which  it  is  allej^ed  was  lost? 

I  proceed  now  to  the  reading;  of  testimony  at  page  1537, 
liiH'   lt>: 

•■  I,).   You  (lid  not  reiioli  BolirtuK  Sfa  ?     A.   No,  I  diil  not. 
•■  (,).   Wliv  y     A.  Tilt"  IniliiinH  went  hiu-k  ou  me. 
20      •<,»    Where  V     A.  Off  Cape  Hoott." 

\\  allied  'oy  oflicers  of  the  United  StatesI  Why  did  ho 
III. I  i;(i  to  Hering  Sea<  The  Indians  refused  to  proceed. 
Ami  lii'tause  the  Indiiins  on  hoard  the  "Wanderer"  re- 
fii-Mii  to  make  the  trip,  the  United  States  (4overnnioiit  is 
tip  lit'  mulctetl  in  damajjes  to  the  extent  of  ^18,000. 

I  he  alisurility  of  this  claim  is  so  appsrent  that  it  almost 
shiH-ks  the  sensiltilities  to  discuss  it. 

■'  !,».  Wliiit  \vnn  the  occuHion  of  tlioir  K*>''>K  hi^ck  ou  you?     A.  They 
;o  "  liiMiil  from  nnotlier  vesnel  tliiit  the  AmerieuuH  were  threatening  to 
••  iiiaki'  seizureB  ami  they  refuned  to  go. " 

Miici'  when  was  it  established  ;is  a  principle  of  law  that 
a  |Misun  coiiM  leceivedamai^esfi-om  another  because  some 
lliinl  person  circulated  some  diapliaiious  rumor  about  the 
>iivi  Is  that  the  second  pi'ison  intended  to  commit  some 
ai  I  ,it;ainsl  tin-  inU'iests  or  property  of  the  tiist  person? 

I- 1  here  within  the  ctivers  of  this  Wecord  ttstimoiiy  that 
an  iilliii'i' of  some  revenue  cuttt>r,  in  the  service  of  the 
liiilid  Stiites.  instructed  some  uncivilized  Indians  (m 
lin aicl  smnc  otlier  schdoiier  off  the  cnast  of  \^incouv»M'  Is- 
laii'l  to  lell  some  more  uncivili/ed  Indians  ou  Itoard  the 
"  W  .nideit'i  "  that  the  United  States  (iovernnient  was  to 
Ml  iLi'  seizures  in  the  waters  of  lierint;  Sea? 

■  (,»    tliid  you  engiigeil  them  to  go  to  thi- IteliringSoii?    A.   Yew,  sir. 

■  (,».  Wliiit  rcuHon  did  tliey  tlieu  iiHHJgu  to  you  for  refuHJng  to  go? 
■'  .\  .Ml  tlii'v  wanted  to  know  wiik  wlu'thcr  1  was  a  rich  man  or  a  poor 
'   iiiMii,  if  I  liad  lots  of  iiione,,   to  pay  them  if  I   got    si>i/.eil.      I  told 

■  ih.iii  lui;  they  then  refused  to  go." 

;i  Miice  when  was  it  established  as  a  principle  of  law  that 
a  Hi  III,  tinancially  miabh'  to  carry  (»n  his  business,  could 
iiiiki'  ,1  tlaim  ag.iiiist  a  ptvcinnieni  because  bis  operatives 
(I'lised  to  work  on  the  grounds  that  he  was  poor^  lie 
lliat  if  he  hatl  been  a  rich  niiin  and  by  rich  Captain 
I'.iNioii  means  that  it  he  badccinmaiiiled  sulticient  money 
In  .liable  him  to  cany  on  the  opeiations  of  Iiis  schooner — 
III.   liiilians  would  have  continued  on  the  voyage  to  liering 

■  ','.  Do  you  know  whether  any  of  them  had  Iteen  in  Itehring  Sea 
•  1'.  I.'i-e?     A.    Yes. 

"  i,>    (111  hoard  what  vessel?     A.  I  don't  know  whether  it  was  the 

■  Viiim  Hcrk  '  or  the  Mlraee. ' 
'  <,>    llciw   do  you   eome   to   know   that?      A.  In    talking   to    the 

'  II:  llllllH. 

'  1,1    Was  tliere  any  refereneo  nuide  liy  tliom  to  the  faet  of  tlieir  liav- 

■  III.  Iicen  in  lleliriuK  Sea  Iteforti  and  after  lieing  seized  ?    A.  Yes,  th«'y 


II. 1. 1    K 

^av 


^-^,1 


"lin 


^1 


098 

(Mr.  Warren's  Argiiineiit ) 

"  said  tkev  had  suffered  great  hardHhi)iH  and  would  not  go  again  si- 
"  less  I  would  guarantee  tlicii  pay  for  what  skiuH  they  might  Ij.  .i> 
"  when  the  vessel  got  seized." 

Thi^<  is  tlic  tt'stinioiiy  to  which  our  loanioil  frionds  \\\\\ 
refer  in  reply,  and  I  wish  to  impress  upon  your  Hon  is 
the  meaning  ot  it.  It  is  found  at  line  ;W  at  page  l.":;7; 
"Unless    1   would  guarantee  their  pay."     Is   tl)e    Uiin.il 

10 States  responsihle  for  the  fact  that  Captain  I'axton  wn niil 
not  guarantee  the  pay  of  those  Indians? 

The  Trihunal  of  Arbitration  convened  at  Paris  Ininul 
tliat  seizures  had  actually  heen  made  of  certain  sciilni;; 
schooners  in  the  wafers  of  Bering  Sea,  and  that  winn- 
ings had  actually  heen  given  to  certain  other  hcIumpih  is 
within  the  waters  of  Bering  Sea,  and  these  cases  ui  ic 
refeiied  to  this  High  Commission  for  the  pinposf  of  li  i\- 
ing  the  damages,  if  any,  determined.  This  is  not  <inf  if 
tho^e  ca.ses.     The  claim  of  this  vessel  was  not  before  iln' 

20 Paris  Tribunal.  I  have  no  doubt  that  when  the  AuiIms 
sador  who  negotiated  this  treaty  mi  behalf  of  (ireat  Brit  lin. 
re(|uested  that  the  claim  of  the  "  Wanderer"  be  reliiinl 
to  this  High  Connnission.  he  acted  vvith  the  belief  tliai 
the  evideiKc  would  establish  that  some  actual  imtj 
tication  bad  been  given  by  some  officer  in  the  set  \  ue 
of  the  I' iiited  States  Goveiiiment  to  the  person  in  dni 
mand  of  this  vcss-el.  The  testimony  is  before  this  Ciiu- 
missinn,  and  there  is  not  one  word  to  establish  iliit 
any    warning   was    ever    given   by    any   officer    ot    ihe 

30  United  States  or  any  person  in  authority,  to  ihc 
captain  or  other  oOicer  in  charge  of  this  voyage  oliho 
sciiooner  "Wanderer."  The  Andtassador  was  evideiiily 
lai)oriiig  nndei-  a  misapprehension  when  he  urged  ih.ii 
this  claim  be  incorporated  in  the  schedule  of  claiins  to  Im' 
attached  to  the  Convention,  and  he  was  basing  bis  lull  f 
upon  the  word  of  the  captain  of  this  schooner.  Tliei;i|i 
tain  of  this  schooner,  who.  if  your  Honors  please,  di  lili- 
erately  took  the  witness  st.ind  at  Victoria  and  tesiiti.d 
iet;aiding  the  voyage   of   the  "  Wanderer  "  and   did   imt 

40i>ven  mention  her  charter  to  go  to  the  Shiunigan  lsl,iiuj>; 
not  a  line  in  his  testimony  regaiding  it.  What  br-iile 
this  df)  we  know  of  the  captain  of  this  vessel.  I'.i.xtnn 
is  the  same  Paxtoii  who  sailed  the  "Black  Diamond"  in 
1S80.  The  claim  of  the  "  Black  Diamond  "  for  issc,  is  uiic 
of  those  claims  which  rtsis  upon  a  very  flimsy  fouMiinlinn 
intact.  It  is  objected  to  bv  the  coimsel  for  tbel'iiiinl 
Stales,  as  not  propei ly  befor(>  this  Commission.  Iml  in 
fact,  what  i^  the  claim  for  the  "  Black  Diamond";  The 
captain    testifies   that   in    ISsCi,  on   the    1st  of  .Jidy,   .hh' 

SOmonth  before  any  seizures  were  ever  niade  by  thi'  I  niiril 
Stales,  he  was   told,  not   by  any  officer  on    board  one  of 
the  cutter.- of  the  Uinted   States  but   by  the   Deputy  Tnl 
lertor  of  Customs  at  the   harbor  of   Unalaska,  that  llnie 
were   to   be  sei/uics.   ;md    he   makes  a   claim   foi    tli.it 
There  is  no  evidence  in  the  Kecord  that  the  Deput\  i"! 
lector  of  Customs  ;it  Unalaska  was  ever  informed  tli at  ilif 
I'nited  States  had  decided  to  make  seizures  in  ISHd,     And 
what    is  the   bistoiy  of   the  movements   of  the   "  Hlu  k 
Diamond"^    She   remained  in  Bermg  Sea  until  the  l"tli 

'^'Oor  irith  day  of  AiKjiifil,  :n)d  if  the  counsel  wish  testinionv 

to  substantiate  that  fact,  1  will  icfer  to  it.     She  reinai I 

in  Beiiiig  Sea  until  the  Kith  or  1.5th  of  August,  and 
this  is  the  other  claim  of  this  man  Paxton,  upon  wimse 
testimony  the  claim  of  the  "  Wanderer"  rests. 

We  have  had  the  records  of  the  State  Departnieni  at 


(Mr.  Waiien's  Argunitiut.) 

\\  isliinntoii  searchfd  for  the  correspondence  disclosing 
til-  nature  of  tlie  claim  whicli  was  i)roposed  to  he  referred 
till  his  Conimisisioii,  and  there  is  not  a  paper  in  tlie  records 
ot  I  lie  Department  referring  to  it.  The  (Jovernment  of 
tl)r  United  Stales  was  never  informed  of  the  nature  of 
till-;  claim,  and.  now  heing  inloimed,  deny  all  liability 
wli.itever. 
10  I  cuntinne  reading  from  Captain  Paxton's  testimony  at 
|i;iu;f  ir>;57,  line  lo; 

■if.  You  say  tbat  waH  Home  time  iu  Mny ;  do  you  romomber  what 

■  liiiic  in  Mnv  it  was  tliey  went  l>ack  ou  you?     A.  Alnjiit  tbo  9tli  or 

•  I  Jtli.  somi'tliiuK  like  that. 

■(,».  What  (lid  you  clo  ttuMi?    A.  Went  Imck  to  Viotorin. 
■■<).  They  alisolutely  i-i'fuseil  to  go  to  Belirinn  8ea?     A.  Alwolutely 

•  r.'lilHt'd  to  «<>.  yes. 

■■{).  Were  you  aide  to  proeure  auotlier  crew  to  ^o  to  Uehrinj?  Sea 

•  iliiriuR   that  season   witli  a  vessel?     A.  X«;    liy  that   time  all  the 

•  cicws  were  pieked  ui)  that  intended  to  go,  I  guess." 

Can  the  owners  of  a  vessel  recovei'for  loss  of  time  with- 
(lUi  estalilishiiig  that  they  atlempfed  to  have  their  vessel 
('iii|il()ye(l  (lining  the  time  alleged  to  li.ivo  been  lost? 
Tiiiic  is  no  principle  of  law  more  firmly  est  ihlishetl  than 
llii-.  Mefore  a  person  can  recovei-  for  loss  of  services  nn- 
(Ici  a  (diitiact,  lie  llln^t  establish  that  he  has  songht  em- 
|iliiyiiient  elsewhere.  I)i<l  this  captain  attempt  to  obtain 
aimtlier  (iH'w  after  Ibis  crew  mutinied  and  refused  to  go 
tu  jiering  Seaf  I  will  conlimie  leading  i<>  show  what  ex- 
,  citioiis  be  made  to  jun-sne  his  voyage  into  Bering  Sea: 

•Q.   How  many  wliiti'  men  liad  you  on  the  vessel  ?     A.    Myself  and 
.iiidtlwr  man."' 

Tiial  bears  on  this  qnestion  that  these  were  uncivilized 
liidiaiis  who  brought  the  rumor  back  and  afterward 
iiiiiiiiiied.  The  captain  and  mate  never  came  in  contact 
w  1  li  any  person  who  told  them  that  the  (iovernmeiit  of 
tlir  liiited  State  was  intending  to  make  seizures  in  Her- 
iiiu  Sea.  That  is  not  di.-'piiled.  It  is  simply  the  act  of 
tin  -!■  uncivilizeil  Indians  that  serves  as  the  basis  for  this 
I  laiiii.  1  desire  to  repeat,  that  the  captain  and  mate  never 
liiMiil  from  any  one  iieside  the  Indians,  that  the  L'nited 
Sl.iies  (iovernmeiit  was  intending  to  seize  sealers  in  13er- 
muSea  in  l^sit  i  KitoiiI,  1.''>44,  line  lisi: 

••(,».  ('ajitain   I'axton  liimself  did  not  want  to  turn  around  heeauso 

■  lie  was  afraid  of  seizure  ?     .V    Cuptaiu  I'axtou,  I  taney,  wanted  to  go 

•  lo  tlie  liehriug  Sea  if  lie  could  get  his  Indians  to  go. 

■i).  -Viid   it  was  lu'caiise  the   Indians  did  not  wish  to  go  with  him 

■  tliat  lie  could   not  go  V     .V.    Yes,  that  was  the  reason  that   he   could 
■'  lli>l  go." 

Icalllbe  attention  of  the  High  t'ommissioneis  to  the 
tait  tlial  when  the  learned  counsel  wish  to  establish  in 
\Miii  minds  the  belief  that  tln'  United  States  acted  some- 
what hastily  and  maliciously  in  this  matter  of  !uakmg 
s(i/.iiies.  they  urge  the  fact  that  the  United  States Uovern- 
111'  lit  never  gave  any  notice  whatever,  but,  on  the  con- 
ii  iiy,  allowed  these  schooners  lo  deiiart  from  Victoria 
wilhoiit  any  inf'  i'm.".iion  that  seizures  would  be  made, 
take  on  Indian  hunters  on  the  west  coast  nf  \'ancouver 
ulsiiiid.  partially  complete  their  season  and  then  were 
u;iiiloiiiy  and  willfully  .seized  by  the  authorities  of  the 
I  iiiied  States.  Hut  here  is  a  captain  who  sails  bis  vessel 
al'iig  the  shore  of  Vancouver  Island,  and  his  Indians  go 
<>i<i  III  a  hunting  boat  and  find  out  all  about  the  conteni- 
I'l  iii'd  seizures.     Was  it  so  well  known  on  the  coast  of 


It^i 


II 


'it 

i 

■    ' 

h  I 

70(1 


5fprTi 


(Mr.  Warren's  Argument.) 

Vancouver  Island  in  May.  ISSJt.  that  seizures  would  he 
made,  that  those  Indians  <ould  go  out  in  a  hunting  ho,  r, 
return  and  tell  the  captnin  that  there  were  to  he  seizui  s 
in  Bering  Sea?  The  fact  will  be  .ememhered  that  in  i  » 
year  IshH  no  seizures  had  hcen  Uiade  in  Bering  Sea  ;i  I 
the  (lovernineiit  of  the  United  States  had  announced  tlii 
no  seizures  would  he  made, 
lo  What  attempt  did  the  captain  make  to  secure  anotlii 
crow;  (Record,  l.">;{7,  line  ."»"): 

"  Q.  You  HaiJ  that  von  had  about  8400  or  9500 in  cash  on  board?  \ 
"  Yos. 

"  Q.  To  l)uy  nilditional  proviHionH?    A.  Yes. 

"  Q.  Wliere  fouhl  vou  procure  the  aiUlitional  provisions?  A.  I  1.  i,l 
"  got  provisions  at  tfuger  Island,  at  Yakutat,  Sitka." 

When  I  replied  to  Mr.  Bodwell's  intimation  that  the 
captain  did  purchase  provisions  afterward,  I  stated  tli.it 
he  was  never  within  one  thousand  miles  of  the  place  ho 
intended  to  purchase.  There  is  proof  of  it.  He  intendii] 
to  purchase  at  Sitka. 

"  Q.  At  Unalaska?  A.  I  couhl  get  tliem  at  Unalaska  but  I  was  not 
"  likely  to  go  to  Unalaska." 

Here  the  witness  disclosed  his  unfairness  by  seekiufj  Id 
establish  the  belief  that  l)e  feared  seizine.     "I  could  ^;i  t 
them  at   Unalaska   but   1    was  not  likely  to  go  to  In 
alaska." 

He  had,  at  the  time  ho  decided  to  buy  provisions  ;ii 
^  SitUa,  no  inforniatioii  that  seizures  would  be  ina()('  in 
B<'riiig  Sea.  for  he  claims  the  Indians  told  him  in  .May 
But,  he  says,  that  he  was  not  likely  to  go  to  Unaiasliii. 
The  United  Stales  had  issued  no  orders  to  make  seiziiics 
prior  to  that  time,  the  lOth  of  May,  issi«,  and,  in  the 
previous  year,  l^ss,  there  had  been  no  seizures  and  vessels 
had  entered  the  harbor  of  Unalaska  and  departed  witiiout 
being  interfered  with.  The  "  Mountain  Chief"  went  inio 
Unimak  Pass  and  took  water  on  Unimak  Island  in  Sep 
tember,  isss  (Record.  1447,  line  5t!). 

Again,  at  page  l."):W,  line  ♦m: 


40 


"  Q.  Did  you  stop  anywhere  else  along  the  west  coast  to  get  a  onw 
"  of  Indians?     A.  No. 
"  Q.  Did  you  go  into  t'layoquot?     A.   No. 
"  y.   Did  you  Ko  ill  Kvoijuot?     A.   No. 

"  Q.  Did  you  go  into  iJiircIay  Hound?     A.  No,  I  came  right  back. 
"  y.   Did  you  go  to  Ks|)cranza  Inlet?     A.  No. 
'•  Q.   Did  you  go  down  to  Ciipe  Flattery?    A.  No. 
"  Q.  Did  not  go  any  where?    A.   No,  I  came  right  ho 
'•  Q.  Did  not  ask  for  any  Indians?     A.  No,  I  knew  I  couliin't  petniiv 
"  Q    How  did  vou  know?     A.   15eca\iso  I  knew  at  tliat  time  all  llic 
50  "  luilians  were  picked  up  that  intended  to  go  to  liehring  Sea." 

If  your  Honors  jdease,  that  cannot  be  true.  It  caniidt 
be  tiue,  becau-^e  these  occurrences  took  place  earlier  than 
the  Indians  started  for  Bering  Sea.  We  have  not,  in  this 
entire  record,  as  I  now  recollect,  a  reference  to  a  voyage 
for  Bering  Sea  which  (itmnienced  as  early  as  May  io|h. 
(Record,  1  :.:{'.♦,  line  .54): 

"  Q.  You  took  the  last  Indians  that  wanted  to  go  to  Behring  Sea. 
"  did  you  not  ?  A.  I  don't  know.  I  never  tried  to  get  anv  more  In- 
60  "  diuns  out  of  there.  Half  of  the  Indians  would  not  go  to  behriug  Si  a 
"  in  those  days. 

"  Q.  A  great  many  of  them  did,  though  ?  A.  Only  about  half  uf 
"  them  ;  half  of  them  used  to  stop  home. 

"  Q.  Did  the  '  Black  Diamond  '  have  Indian  hunters  in  188!)  ?  A. 
"  Yes. 

"  Q.  In  BehringSea  ?    A.  Yes. 


701 


l)ut  I  was  IK  it 


(Mr.  Warren's  ArRument.) 

■  Q.  WherR  did  nhe  get  them  ?  A.  She  got  them  from  Cl»yoqnot 
••  >ound,  I  think. 

i).  How  manv  Indians  did  she  take  from  Clayoquot  Hound  ?    A. 
••  I  don't  know;  do  von  mean  in  1889  ? 
Q.  Yt'H  ?    A.  I  don't  know. 
'   Q,  About  how  many  Indians  wonhl  she  take  ordinarily  ?    A.  I 
•■     ippoHo  that  an  ordinary  crew  would  be  from  ten  to  twelve  canoes, 
'•  ii'cording  to  how  many  she  could  get. 

Q.  How  many  Indians  are  there  at  Clayoquot  Hound  ?    A.  I  never 
'0  ■   ,-, muted  them;  I  don't  know. 

■  (}.  Have  you  no  idea  ?  A.  I  suppose  between  two  hundred  and 
"  t)iror  hundred  in  ('layoquot  Hound  altogether.     Yes,  I  guess  there  is 

•  ;ili(mt  six  hundred."' 

This  claimant  never  tried  to  secure  another  crew  to  re- 
pl.ico  tho  crew  that  had  niiitinied,  hnt,  instead  of  that, 
jH'CfCflcd  to  Victoria  and  carried  ont  the  terms  of  a  char- 
t(  I,  which,  I  (ronceive.  was  agreed  npon,  though  dated  a 
fi  w  days  later,  l)efore  he  ever  turned  around  at  Cape  Scott. 
}]<■  .I'Tcpted  that  en)|)lo.ymcnt  and  hrouglit  liack  thousands 
III  -<  al  sUins  from  Shuniigan  Islands  to  V^ictoria  for  other 

OW  1101  s. 

I  lie  ('oinmissioner  on  the  part  of  the  United  States: — 
Till'  British  argument  says  that  the  proclamation  was 
is-^iifd  in  March. 

Mr.  Warren:— I  correctly  stated  the  position  of  the 
United  States.     I  used  the  word  "  instructions." 

Till'  OominiHsioner  on  the  part  of  the  United  States: — 
Villi  do  not  intend  hy  that  to  cover  the  proclamation? 

Mr.  Warren:— No,  your  Honor. 
•^°     rill'  Commissioner  on  the  part  of  the  United  States:— 
Ml    Peters,  I  notice  that  on  page  181  of  your  argument, 
liiii'  -21,  tiiere  is  a  curious  expression — "  coasl  in  Behring 
Sra." 

Mr.  Peters: — Yes,  that  is  clerical  error;  it  should  be 
"•iiastand  Behring  Sea." 

.\t  one  o'clock  tlie  Commissioners  took  recess. 


20 


liiia 


.,,11  ii 


,M'  \i 


is''     ■:■■ 


to  got  a  crtw 


At  half-past  two  o'clock  the  Commissioners  resumed 
■♦°tlirir  seats. 

Mr.  Warren:— When  the  Connnissioners  arose  for  the 
i.Mi-s  I  was  reading  from  the  Recoid,  page  1.5-10,  relative 
fd  till' I'fforts  of  the  captain  to  procure  another  crew  to 
t.ikf  the  place  of  the  Indians  who  mutinied.  I  continue 
rt'Miliiig,  at  line  10. 

•  1,1.  Did  vou  look  for  hunters  in  Victoria  when  you  got  back?    A. 

■  I  .li.l  uot.' 

5Q  ^<>ln•  Honors  will  remember  that  the  loth  of  May  was 
the  ilate  that  the  vessel  turned  about  off  Cape  Scott,  and 
piiici  ('(ling  down  the  west  coast  of  Vancouver  Island,  dis- 
c'li  ii.ucd  the  hunters,  and  sailed  directly  to  Victoria,  with- 
oni  calling  at  Clayoquot,  or  Kyoijuot,  or  Barclay  Sound, 
(11  i^pcranza  Inlet,  or  Cape  Flattery,  for  the  purpose  of 
oil  tilling  Indians,  arriving  at  Victoria  some  five  or  six 
(1,1  \  -  alter  the  10th  of  May.  So  that  the  "  Wanderer"  was 
ii.  ilic  harbor  of  Victoria  aliout  the  Ifith  or  17th  of  May, 
mil  here  we  have  the  captain's  testimony  that  he  did  not 

(jQlii.k  (or  hunters  in  Victoria  after  his  return.  I  read  from 
1ml;('  l.j-10,  beginning  at  line  10: 

'  <,».  Did  you  look  for  hunters  in  Victoria  when  you  got  back?    / 
"  I  iliil  uot. 

•  I,).  You  got  here  the  9tL  of  May?    A.  There  was  no  hunters 

"  ):nt. 


t 


~t)-2 


(Mr.  Warren's  Argument.) 

"  Q.  If  you  dill  not  look  for  anv,  how  tlo  yon  know  ?  A.  I  kii' 'i- 
"  becntim'  other  HchoouerH  had  qnite  a  job  then  running  after  huutcis. 

"  Q.  But  you  did  not  look  for  any  ?     A.  No. 

"  Q.  Did  not  uiiike  any  imiuirieH  ?    A.  No. 

"  Q.  Did  you  try  to  got  ony  from  San  FrnnciBCo  ?  A.  No,  I  ,li,i 
"  not. 

"  Q.  From  Heattle  V    A.  I  didn't  have  money  onongh." 

The  ittli  of  May  stated  in  tlie  que.stioii  I  l)ave  just  k  hI 
'°is  an  error,  for  he  says  he  turned  aliout  on  tlie  *Mh  or  Iniii 
of  May.  We  come  here  to  the  same  ground  lliat  tlie  In 
dians  liased  their  refusal  to  proceed  to  Bering  Sl;i  ujidii, 
Captain  I'axton  did  not  liave  money  enough  to  ()|m  r 
ate  his  l)usintss.  Is  this  court  to  determine  that  tlic 
United  States  sliould  award damagts  to  tlie»)\vners  of  this 
vessel  liecause  the  (aptain  did  not  have  money  enoujili  in 
assure  the  Indians  that  he  would  pay  them  for  seivjds 
actually  performed,  or  because  Captain  I'axton  did  nut 
have  moiie\  »  nough  to  hire  other  hunters  to  go  int(»  Hciin^' 
^°Sea  on  his  vessel? 

Un  cross-examination,  this  witness,  at  page  153t*,  line 
26,  testifies: 

"  Q.  You  say  tliose  IndianK  threatened  you  about  the '.(th  or  1  lit  1] 
'•  of  May  V     A.   Yes,  Hoiuethiug  like  tliat. 
"  Q.  And  they  were  afraid  they  would  u^f  get  their  pay  ?      A.   V. «, 

•  sir. 

"  Q.  For  the  skinn  they  aetually  took  ?  A.  Yes,  that  is  if  (he 
••  vessel  was  seized,  aiul  I  don't  thiuk  tliey  woulil  either. 

"  ().  You  wouhl  liave  owed  tlieiii  that,  would  vou  not  ?  A.  I  ddii't 
,„  "  know  who  would  have  owed  it  to  them,  uie  or  the  United  States  (inv- 
■      "ernment;  tlint  was  the  trouble  with  the  Indians. 

"  Q.  When  tliey  alluded  to  the  '  .\uiia  IJeck  '  and  '  (trace, '  did  tliey 
"  tell  you  they  had  not  been  paid  for  what  they  did  on  those  vessels  ? 

•  A.  So,  I  don't  think  they  did;  they  said  they  were  used  very  liml  ut 
'•  Sitka;  had  to  paddle  iu  their  cauoes  aluuist  all  the  way  to  Viitdiiii, 
■'  the  most  of  them.  Some  of  them  got  drowned  on  their  way  Ikpiih'  to 
••  Vietoria.     They  did  not  want  to  lose  their  time. 

"(j.  They  asked  you  if  you  were  a  rich  man  or  a  jxior  mau  V  A. 
"  Yes. 

"  Q.  If  vou  had  been  a  rich  num  thev  would  have  gone?  \ 
"Yes." 

'^°  Captain  Paxton  intended  hy  the  words,  "  a  rich  man.  " 
a  man  who  was  ahle  to  i  arry  on  the  operations  of  seal 
himting. 

Bearing  on  that,  there  cmiw  s  to  my  mind  the  testiiiionv 
of  witness  McKicl.  who  ti'stitied  that  one  year  he  had 
trouble  with  his  Indians.  In'causc  he  was  a  strangei'  un 
the  coast  of  Vancouver  Island,  and  the  Indians  did  not 
kMt)W  whether  they  would  receive  their  i»ay  or  not.  in 
the  case  of  Captain  McKiel,  theie  bad  been  no  warninf; 
.or  intei  reieiice.  Ho  was  merely  givnig  the  testimony  nn 
^  another  jioiiit.  and  this  fact  was  incidentally  devel(i|"il 
(Record,  07<»,  line  <!7i: 

"Q.  What  crew  did  you  have  Itesides  the  ludiann  ?  A.  Five 
"  iTapanese,  tlie  mate,  a  white  man  and  myself. 

"Q.  How  was  it  you  had  such  a  small  crew  then  "i?  A.  The  sohoouer 
'•  was  strange  on  the  coast  and  the  Indians  were  afraid. 

"Q.  Afraid  of  what  ?  Did  they  not  know  the  owner '?  A.  They  cliJ 
'•  not  know  the  owner  and  they  were  afraid  about  their  pay." 

These  Indians  on  board  of  McKiel's  vessel  were  afraid 
6othey  would  not  get  their  pay.  It  was  a  common  ocim- 
renco  there.  The  Indians  wished  to  know  wlio  their  em- 
ployer was  when  they  juoceeded  to  Boring  Sea,  ami 
whether  they  would  receive  tlieii'  pfiy  when  they  returned 

The  Commissioner  on  the  part  of  Her  Majesty:— With 
regard  to  not  getting  a  crew  elsewliere,  if  it  is  assumed 


\.  No,  I  ,lul 


708 

(Mr.  Warren's  Argument.) 

foi  the  purpose  of  argument  that  a  wrong  was  done, 
riiiuht  it  not  le  an  answer  to  the  claim  tliat  he  ought 
to  hive  recoupefl  to  prevent  the  natural  consequences  of 
till'  wrong,  for  him  to  say  that  he  had  not  the  means  to 
Jill  vont  the  natural  consetjuences  from  following?  That 
is  III  say,  does  it  nut  come  right  back  to  the  question 
wlirther  there  was  a  wrong  done? 

10  Ml'.  Warren:  -  I  am  addressing  myself  to  the  point  that 
is  ii:  your  Honor's  mind.  That  is,  admitting  that  the 
Imliiins  mutinied  and  went  back,  was  it  incumbent  on  the 
ciipiuin  of  the  vessel  to  make  inquiries  and  efforts  to  ob- 
tain another  crew  of  Indians? 

lie  went  to  Victoria,  and  was  thtMe  about  the  Iftth  of 
Miiy.  earlier  in  the  year  than  vessels  sailed  for  Bering  Sea, 
ami  Ik'  made  no  inqniries  whatever  for  the  purpose  of 
fimling  acrew.  Now,  the  fact  that  he  did  not  have  any 
niniit  y  would  not  have  prevented  him  from  making  in- 

joqini  it'S  for  a  crew  which  might  have  consented  to  g )  on  a 
••|;iv"  notwithstanding  his  financial  condition.  The 
•..inic  rule  applies  to  which  I  alluded  this  morning.  Take 
ill"  case  of  a  person  suing  for  a  breach  of  contract,  which 
provides  that  he  should  receive  a  stipulated  sum  f or  ser- 
viics  to  be  performed  during  a  certain  period  and  who  has 
Ixcii  wrongfully  discharged  by  the  other  paity  to  the  con- 
Inirt.  He  sues,  and  will  any  court  permit  him  to  recover 
for  the  entire  time  which  the  contract  had  to  run 
unless  he   shows   to    the    court    that    be    has    honestly 

^oeiulcavored  to  secuie  employment  elsewhere  and 
has  been  unable  to  do  so?  There  is  no  dispute  about  that 
liiiiig  the  law  in  that  class  of  cases.  Now,  here  was  a 
vt's-~el,  with  a  crew  of  Indians  aboaid.  and,  admitting  for 
till'  sake  of  presenting  the  argument,  that  these  Indians 
lu'ard  along  the  coast  of  Vancouver  Island  from  some 
otlier  Indians  that  seizuies  were  threatened— the  only 
basis  for  this  claim  is,  that  the  Indians  mutinied,  and, 
tliei  ('fore,  if  the  captain  coultl  have  procured  other  Indians 
to  take  their  place,  there  would  be  no  claim — was  it  not 

4oiiit  iiinbent  upon  him  to  use  every  reasonable  endeavor  to 
obtain  another  crewjl  Was  it  not  the  duty  of  the  captain 
to  inquire  at  places  where  he  knew  Indians  were  to  be 
toniid?  He  testifies  that  there  were  as  many  as  six  hundred 
Indians  at  Clayoquot  Sound.  It  is  a  well  known  fact  that 
tluM'  Indians  on  the  west  coast  of  Vancouver  Island  ex- 
'\<\ih\  l)V  sealing,  and  here  is  a  captain  who  sails  his  vessel 
by  every  settlement  without  stopping  even  to  make  in- 
i|iii ill's.  In.stead,  he  proceeds  to  Victoria  and  abandons 
;ill  ctlorts  to  obtain  another  crew.     When  at   Victoria  he 

;()is  within  sixty  miles  of  Seattle.  Does  he  go  there  and  in- 
i|ulrt>  for  hunters?  No,  if  your  Honors  please,  he  says 
111'  (lid  not  have  money  enough.  Did  not  have  money 
iiiiiiit;ii  to  make  itujuiries? 


Tl 


fiQ 


10  mate  of  this  vessel  was  August  Bjerre.  He  was  the 
iiiilv  other  witness  who  gave  testimony  concerning  the 
III!  iiir»;iices  upon  which  this  claim  is  based.  His  testi- 
iiiiiiiy  is  found  in  the  liecord,  conuneucing  at  page  1541. 
1  iv  1(1  at  line  4U: 

<,»    Did  yon  continue  to  go  to  Behring  Soft  ?    A.  No,  sir;  we  had 

■  t"  turn  liiiok. 

'■(,>.  Wliy  ?    A.  Bocftuso  the  Indians  refused  to  go. 
•  1,1.  Wliou  did  the  Indians  refuse  to  go  ?    A.  Home  time  in  May,  I 

■  ilnii't  oxaetlv  rememl)er  the  date. 

"i>-  And  wliero  ?    A.  Somi;whero  off  Cape  Scott. 


\m(i 


704 


(Mr.  Warren's  Argument.) 

"  Q.  Will  you  say  what  wan  the  ocoaHion  of  their  refnRinK  to  i  t,, 
*'  BehriDK  8«a  ?  A.  The  IndiauH  wore  Hcared  to  go  ;  they  were  H'  ,:,.j 
"  o(  Heiziire.  Home  of  them,  I  believe,  had  lM>en  Heized  iK-fon-  .iikI 
"they  had  been  talkiuR  with  other  Indians  while  they  wen^  .  tnv 
"  from  the  veRsel  out  huntiuK,  and  they  were  Roared  of  the  v<>k!<.  i>,:. 
"  iug  Heiiied,  and,  as  they  knew  that  Captain  Paxton  had  nothing  i.ui 
"  the  veHsel,  they  were  afraid  that  they  would  get  no  pay  if  thcv  ^rro 
"Heized." 

'°  Is  tlieio  any  statcnu'iit  in  that  testimony  upon  whi.  ;i  i,, 
base  a  demand  for  ditmagt's  from  the  United  States;  In 
dinns,  nncivili/ed  Indians,  out  in  their  canoes,  tall  iii<r 
with  other  Indians!  They  did  not  liear  tliese  Indian^  ^uy 
that  the  President  of  tlie  United  States  liad  issued  a  iki 
clamation  dechiring  that  tliere  were  to  he  seizines;  Inn 
they  were  afraid  of  seizures,  and  they  did  not  want  ti.  -n. 
Why  did  tliey  not  want  to  gof  iJecause  they  were  iiliaiil 
tiiat  Captain  Paxton,  the  owner  of  the  vessel,  would  not 
he  able  to  pay  them  theii-  wages. 

~°  Your  Honors  are  familiar  with  the  cases  that  jiihh' 
before  the  Tribunal  of  Arbitration  at  Geneva,  and  similar 
cases  that  subsequently  arose  before  the  Court  of  CI  linis 
established  by  the  United  States  for  thodistributioudl  ilic 
moneys  awarded  by  the  Geneva  Tribunal.  There  w.  le 
many  cases  of  this  nature  presented,  and  every  one  nf 
them  was  luled  out  and  absolutely  disallowed.  The 
nature  of  those  cases  was  this:  The  owners  nf 
merchant  vessels  made  claims  based  on  the  I'ai  t 
that    their    ves.sels    were    on    the    high    seas    |)uisnint,' 

^°  their  voyages,  when  the  cai»tains  heard  that   the  "Ala 
bama  "--one  of  the  cruisers  that  escaped  from  an  En^Hi-,li 

f)ort  and  destroyed  the  commerce  of  the  United  Static— 
leard  that  the  '"  Alabama"  was  in  the  vicinity,  and  jnit 
into  port  and  thereby  lost  the  resullsof  the  voyage.  Tiicsu 
cases  are  identical  in  principle  with  this  case,  and  tv.iy 
one  was  disallowed  in  toto. 

In  the  luesent  case,  the  "  Wanderer  "  was  off  the  \vi>t 
coast  of  Vancouver  Island,  and  it  is  claimed,  not  thy 
captain,  lint  the  Indian  hunters,  heard  there  were  tn  hu 
'^^ seizures  by  the  United  States  cruisers,  and,  theretnic, 
the  hunters  refused  to  proceed,  and  the  owners  demand 
ifl^.ouo. 

I  wish  to  read  again  from  the  mate's  testimony,  i mi- 
tinuing  on  page  IMl,  line  W\: 

"Q.  Had  you  any  converRation  with  anv  of  the  ludiauH  ou  that  nc- 
"  oaHiouV  A.  Well,  the  ludiauH  woiild  tefl  lue  their  trouhle  as  wili  iis 
"  tell  it  to  ('a]>tiiin  I'axtou,  and  I  liHtened  to  what  took  place  IicIhiiu 
"  Captain  I'lixtou  and  the  ludianw. 

"Q.  Was  that  the  reaHou  that  they  aHHi^ned  for  refusiux  to  j,'o  to 
50  "  Beliriug  Hea?    A.  Yes,  wir;  that  is  the  reason. 

"  Q.  Will  you  nay  the  purport  of  what  vou  understand  fri)iii  tlio 
"  IndiauH on  that  oeoasiou  when  they  refused  to  go  to  Uehring iSiaV  .\. 
"There  was  a  whole  lot  of  talk  on  several  occasions;  it  did  not  all 
"  happen  at  oucc. 

"  Q.  Now,  off  Cape  Seott,  on  the  occasion  in  question,  what  w.i^tlu- 
"  conversation?  A.  Well,  they  were  scared,  as  some  of  them  hml  I'len 
"  seized  before.  The;/  irere  scured  Id  f/o  into  Beliring  Sen  witli  ('■tiUiin 
"  Pit.xtim:  llieii  k»i-xr  thai  hn  /mil  nothing  hut  his  rensel,  and  tlicv  wore 
"  scared  that  if  the  vessel  was  seized  and  he  lost  her,  they  wouM  get 
"  no  pay  for  the  season's  work." 

C^  Were  they  afraid  to  proceed  into  Bering  Sea  on  accciun 
of  seizures?  No,  tiiey  refused  to  go  to  Bering  Sea  with 
Captain  Paxton  because  they  weie  afraid  they  would  not 
receive  their  pay. 

"Q.  I  believe  that  you  did  state  that  they  bad  underston.l  that 
"  other  seizures  were  going  to  be  made  that  year?" 


7(»ft 


(Mr.  Warren's  Argument.) 

Tlial  is  a  question  put  by  the  counsel  on  direct-exami- 
ii.ition  to  avoid  the  runchision  heing  drawn  that  the  mu- 
ti  ly  of  the  Indians  was  based  on  fear  of  Captain  Paxton's 
financial  responsibihty.  The  witness  liad  not  previously 
8t  ited  that  hut  here  answered,  "  Yes." 

Then  the  question  was  put: 

■Q.  WaH  there  any  other  reason  aHsiKDcd  (or  their  refusing  to  go  to 
"^  ■    liehring  Sea?    A.  rio,  sir;  not  that  I  know  of.'' 

The  witness  does  not  refer  to  that  last  reason  but  to  the 
fii-t  reason  he  had  given  for  the  Indians  not  going  to 

Piling  Hea. 

Tlie  captain  had  testified  before  this  witness  was  called, 
hid  left  the  stand  and  Victoria,  and  was  never  there 
aj^aiii,  as  far  as  tins  Record  discloses,  or  that  we  ever  as 
ctitained.  He  had  said  not  a  word  about  the  charter  of 
20\]\<  vessel  to  go  to  ShniniKan  Islands,  and  it  was  not  until 
Ciplain  Bucknani  testitied  that  we  knew  of  the  charter. 
I  refer  your  Honors  to  page  1477.  line  5,  of  the  Record: 

•■().  Ytm  say  yoii  trans-Bhippud  some  skins  before  you  went  into 
•    Miliriug  Sea?     A.  I  did. 

••y.  IJy  the  schooner  '  V/'anderer? '    A.  I  did. 

"  Q.  In  that  the  schooner  that  had  a  claim  iu  here?    A.  The  same. 

•'Q.  Captain  Paxton's  boat?    A.  Captain  Taston's  boat. 

•  •  Q.  And  was  at  Sand  Point  after  the  itth  of  Mav,  was  he?  A.  I  don't 
"  ii'Uiember  that  Puxtou  was  there.  A  man  by  tLc  name  of  Keefe  bad 
'  clmi'no  of  the  vessel. 

••  Q.  The  vessel  was  there  any  way?     A.  The  vessel   was  there. 

•  {).  After  the  9th  of  May,  1H89,  was  she?  A.  Yes;  I  think  we  trans- 
-liil)l)ed  in  July. 

■  C).  Will  you  give  me  the  date  when  you  trans-shipped?     A.  lean 

■  t;rt  ueiir  the  day,  within  a  dav  or  two. 

■  i.}.  Let   us   have  it?    A.   (Ueferring  to   book.)  I   should   say  we 

•  tiiins-Hliipped  Julv  itth. 

■  (,».  How  many  skins  did  you  put  aboard  the  •  Wanderer'?    A.  283 

■  I  lii'lieve  it  was. 

•  Q.   What   did   you    pay  |)er   skin   for   bringing  them    down?    A. 

■  S.imewliere  in  the  neighborhood  of  20  or  30  eents  I  think. 

■  (,).  When  did  yo-j  make  the  arrangement   and  where,  for   trans- 

•  -liiii|)iiig  your  skiuit  to  the  'Wanderer  '?     A.  I  think  it  was  arranged 

■  ill  Victoria,  I  am  not  sure." 


W 


■'i 


lli-i 


40 


timonv.  dni- 


.'fusiug  to  j.'ii  to 


inderstoo.l   that 


Till'  fact  that  the  mate  aftci  ward  testified  (Record.  1542, 
luir  .">:5),  that  the  "  Wanderer  "  made  a  trip  to  the  Shumi- 
gan  Islands  is  unimjiortant,  although  the  testimony  was 
givi'ii  on  direct-examination.  For  the  counsel  for  the 
Liiitcd  States  had  developed  the  fact,  by  this  examination 
III  Captain  Bucknam,  that  the  "Wanderer"  was  at 
Slimni^an  Islands,  and  not  until  this  fact  was  disclosed  did 
rO;iii\  witness  for  the  claimants  give  testimony  regarding 
tlir  Irip. 

\Vt'  put  in  evidence  the  date  of  the  clearances  of  the 
"  Wanderer,'' and  I  state  from  memory  that  those  dates 
i)i~riiise  that  the  ''  Wanderer"  left  Victoria  on  the  23d  of 
M  ly  for  Slnmiigan  Islands.  I  will  verify  that  date  by  re- 
ftiiuig  to  the  Record — at  page  l!H»o  of  the  Record,  line  8, 
tlii^  evidence  is  set  out: 


•'o. 


Ill  the  case  of  the  'Wanderer,'  Claim  Ni'.  '2r),  we  desire  to  offer  a 
"'ititied  copy  of  some  of  the  dates  of  the  i'utries  and  clearances  of 
till'  'Wanderer,'  for  the  year  JSS'J,  and  particularly  two  entries. 
sill'  outered  at  the  Port  of  Victoria  on  the  15th  of  May  from  the 
I'ai'itic  Coast,  and  cleared  on  the  15th  of  May  for  the  west  coast, 
1111,1  cleared  later,  on  the  23d  day  of  May,  for  the  North  Pacific 
I  I'lnn  and  Behring  Sea,  and  entered  this  port  on  the  23d  day  of  July 
li'iiii  the  North  Paciflc  Ocean." 


rV 


\  i. 


m 


im 


I, 


r 


(Mr.  Wan  en's  Ai'KUinciit.) 

Therefore  she  cleared  for  the  West  CooHt  on  the  Ifttli 
May,  and  Shuinigan  Ishinds  on  the  23d  of  May  uh  Htali 
Here  JH  a  vessel,  whose  captain  and  owner  says  nitein 
to  go  on  a  voyage  to  Bering  Sea,  which  turns  about, 
Cape  Scott,  on   the    loth  of   May,    proceeds  directly  u 
Victoria  as  rapitlly  as  it  was  |H)ssil)le  for  her  to  make  tlie 
tiip— 1  state  that  because  of  the  distance  from  Cape  Sci  it 

lo  to  Victoria  and  of  the  tonnage  of  this  little  vessel  -  ;iii| 
cleared  on  the  same  day  she  arrived  at  Victoria  for  i  In- 
Coast.  Why  did  not  the  captain  stay  at  Victoria  a  t.  w 
days  and  obtain  another  crew  to  go  to  Bering  Sea?  Wliit 
beside  did  she  do?  Slit;  cleareil  lat»'r  on,  on  the  2Hd  of  M;i\ , 
for  the  North  Tacilic' Ocean  and  Bering  Sea.  On  the  L''.ii 
of  May  what  else  occurred  with  reference  to  this  vt  s^,  |; 
We  have  in  evidence  the  contract  or  charter-party  Ijl'- 
tween  the  captain  i.f  the  "Wanderer"  and  parties  who 
bad  contracted  for  this  ship  to  make  a  voyage  to  Sbuniij;,ui 

20  Islands  near  the  entrance  to  Uniniak  Pass,  for  the  pui  imj^u 
of  bringing  back  the  seal  skins  that  the  vessels  desiiiiij;  to 
enter  Bering  Sea  had  taken  along  the  upper  coast.  Tlmt 
charter-party  is  printed  at  Record,  ISJW,  line  ."il,  ami  is 
dated  the  2:<(l  of  May.  I  do  not  desire  to  read  it  uiiKss 
my  learned  friends  re(|uest  it.  The  chaiter  is  this:  tint 
the  "  Wanderei,"  with  tliis  same  captain,  should  |)r(!(i'M| 
to  Sbumigan  Islands  and  bring  back  the  skins  to  \  iclmii. 
Tiie  parties  to  that  contract  were  H.  Haxton,  who  u,is 
the    raptain    and    the    witness;    Joseph    Quadros,    (\>\, 

30  Adams,  Carne,  Munsie,  Marvin,  (Jrant,  Walsh  and  liitlut 
&  Company,  all  names  that  are  familiar  to  us  who  \vi  iv 
at  Victoria.  They  wt-re  among  the  largest  niercbanlr,  in 
Victoria,  and  they  chartered  tlie  "Wanderer"  to  ^o  to 
Sbumigan  Islands  to  bring  back  a  valuable  cargo  of  skins 
to  Victoria.  The  captaiii,  in  testifying,  luifortuiiatrly 
neglected  to  mention  this  voyage. 

Now,  I  believe,  if  your  Honors  please,  that  that  charier- 
party  was  agreed  upon  before  the  lUtb  day  of  May,  and  I 
believe,  further,  that  the  "  Wanderer  "  never  intended  to 

40go  into  Bering  Sea,  and  I  support  that  statement  with 
such  reliable  authority  as  the  assertion  of  the  leaiiuil 
British  Counsel,  Mr.  Bod  well,  in  oral  argument,  when  he 
said  that  the  "  Wanderer"  was  built  to  coast  along  \'aii- 
couver  Island  and  was  too  small  and  not  suitable  to  enter 
Bering  Sea.  That  statement  was  niade  before  Ibis  lli^h 
Commission  by  Mr.  Bodwell  in  Halifax,  when  criticising 
the  testimony  of  one  of  the  witnesses  (oral  argument  nf 
Mr.  Bodwell,  p.  330,  line  4!t|. 
The  testimony  of  Captain  Pa.xton   furnishes  the  sole 

50 basis  foi' this  claim  against  the  United  States,  and  I  ;isk 
your  consideration  of  the  testimony  of  Captain  Pa.xtun 
I  call  your  Honors' attention  to  this  fact  again,  that 
Captain  Paxton  took  the  witness'  stand  in  Victoria  and 
testified  in  regard  to  these  occurrences  on  the  westtiu 
coast  of  Vancouver  Island,  then  left  the  city  of  Victoiia 
without  saying  a  w'ord  about  this  charter-party,  and  it 
was  not  until  such  a  time  had  elap.sed  that  page  l.'>;3;i  of 
this  Record  was  printed,  that  the  United  States  was 
allowed,   after  many  difficult   attempts,   to   examine  a 

6c  copy  of  this  charter-party.  Is  the  testimony  of 
that  man,  who,  we  believe,  advances  a  claim  he- 
fore  this  High  Commission  that  is  entirely  fictitious, 
to  be  taken  as  a  basis  for  awarding  damages?  He  was  the 
only  witness,  and  that  this  case  depends  upon  Captain 
Paxton's  testimony,  I  say  advisedly,  because  his  mate, 


707 


(Mr.  WaiTt'ii's  Aigiiinoiit.) 

r>jcrrt\  did  not  siipport  liis  tcHtimony.  Hicrn!  did  not 
-\:\\i-  anything  iihont  tlu>  Indians  iindoi-stantlingthatotliur 
M'i/.iiivs  \vt>r(>  to  l)<>  nwid«>  initil  a  Icadinu  (picstion  was  put 
III  liiin,  wlii'li  is  to  lit;  t'onnd  Humrd  1542,  lino  :<: 

■■().  I  lM<li<'vt>  tliiit  yim  did  Htiitc  whiit    tli<>y  hud   iiudorMtond   that 
'   otliur  Heiziiri^H  wcrv  K*>i"K  tu  liu  iiiad<>  that  year?     A.   YeH,  Hir." 

10     ll«  liad  ti!stiti«d  (Hfcord,  p.igc  l.">4l,  line  ♦(7): 

••  TlioT  wrrc   Hcart'd  to  j^o  into   Xi'liriiiK   Sra  witli  Citptain  I'nxtou; 

tlii-y  knew  tliut  )u'  hiiil  iiutliiii^  liiit  liix  vi-hni'I,  uikI  tli(>y  wt-ru  HcarotI 

"  tliut  if  tho  vi'HHcl  waH  Hcizod  und  lii'  lowt  hor,  tlioy  would  ^ot  uu  pay 

•  for  tho  hoiihou'h  work." 

Tilt'  U'liiiu'd  ('oiiiinissioiuT  I'ur  tin-  I'liitcd  Staffs  this 
iiioi  ning  alliKhxl  t<>  the  fact  that  tic  counsel  of  (ireat 
Untain  di>pt>iidt>d  iijioii  the  proclanialioii  of  the  L'nitud 
States  to  servo  as  a  hasis  for  this  claini.  Wo  claim  that 
^jllic  proclaniiition  has  notliiiig  to  do  wit h  this  ca.se.  The 
liidiaiis  did  not  cl.iiin  to  have  lieeii  advised  hy  the  |>iocia- 
tiialion  of  the  I'lesident  of  tlie  I'liilvd  Stall's  of  seizures, 
uveii  if  we  helieve  that  they  based  their  refusal  on  tli  •  fact 
tliat  theie  were  to  he  sei/mes.  Wt-  lielieve  tliey  rofusod 
to  continue  on  tiie  voyage  hecause  they  were  douhtful  of 
Cilitain  I'axton's  tliiiincial  respoiisihility.  if  they  refused 
at  all.  And  we  are  lirmly  of  the  ln-iief  that  Captain  I'ax- 
toii  never  contemplated  a  voyage  into  Hering  Sea. 

The  only  reference  to  the  prochiination  is  at  liecord,  page 

"  I'srrEi)  Sr.\TKH  ok  Amkrica, 
"  Dki'ahtment  or  State. 
■'  To  nil  whom  tlii'Hc  prpsontH  bIiiiII  roiiK!.  ffrci'tiuj;: 
"  I  I'l'i'tify  iliut  II  jirochiiiiiitioii,  of  wliii-h  the  iiniioxcil  in  a  true  copy, 

■  was  iHsneil  hy  the  rri'Hidciit  of  the  I'liitvd  Slates,  iu  the  year  18HU, 
'  and  that  a  |)roelaiuatioii   of  similar   (iiirport   was  isHiied  hv   him   iu 

cacli  of  the  followiuK years.  ♦"  *'♦:  l^*'''".  l^M  and  1H!I2. 

••  III  testimony  whereof,  I,  ,lohu  W.  Foster,  Secretary  of  State  of  the 

•  I'uited  States,  have  hi'reniito  sul)serilied  my  name  and  eaused  the 

•  Heal  of  the  Department  of  Slate  to  lie  atlixed. 
'•  Done  at  the  City  of  WashiuK'tou,  this  :jl(th  day  of  July.  A.  D.  1892, 

•  mid  of  the  Independenee  of  the  United  .States  of  Amerioo,  the  one 

■  hundred  and  seventeenth. " 


P 


40 


5^' 


(k). 


This  is  a  cortiticat ;  of  the  fact  that  a  proclamation  was 
i-sued.  Then  on  this  same  page  Mr.  Beiipio  read  in  this 
(iiiniMuiiication: 

"  TuEAstnv  Dei'autment, 
"  OrricE  or  the  Secuetahv, 

•'  Washinoton.  D.  C,  May  23,  1880. 
"  Captain  J,.  (J.  Shei-aicd,  Commanding  Hovenue  Steamer  "  Rush,'  San 
••  Franeiseo,  ('alifornia: 
••  Sin:  "The    President    having   designated    the    Hevenne   Steamer 
'Hush,'  under  your  command,  to  cruise  in  the  waters  of  Ueliriu^  Sea, 
for  tlie   jirotection   of   the   seal   lisheries,   and   the   interests  of  the 
'  (iovernment  of  the  Seal  Islands,  and  the  sea  otter  hnntinj?  grounds, 
mill  llie  enforcement  of  the  pi'ovisions  of  law.   you  are  directed  to 
'  liiive  San  Francisco  with  your  comnnind   at  the  earliest  date  prae- 
licalile    for  the    waters    named,    )iroceedinfj;    l>y   wav  of    UnfJta   and 
'  MelcDvskie,   to  Uualaska,  at    which    place  yon    will  take  on  board 
such  supplies   of  coal    as    may    lie    necessary    from  that  in    store 
lii'liiiij,'int?  to  the  lU'venne  Cutter  Service. 

"  From  tlnalaska  you  will  proceed  into  liehrin^,  "^ea,  the  waters  of 
wliii'h  you  dilifjently  ernise,  and  arrest  all  persons  and  seize  all  ves- 
sels found  to  he,  or  to  have  lieen  enKa.i;ed  in  any  violation  of  tho 
laws  of  the  United  States  therein,  proeeoding  to  Uualaska  when 
necessary. 

"  Von  will  remain  with  your  command  in  the  waters  named  as  late 
ill  the  season  as  you  may  deem  proper  to  carry  out  the  instructions 
"f  the  Department. 
•You   will  receive  from  the  owners  of  such   vessels  as  may  have 


m 


(h 


71 1"' 


(Mr.  Waiit'ii's  .\i>;tiiin'iit.) 

"  Mikili-il  for  lli-riiiK  Himi.  cm  nniliiiK  <'r  ntlirr  liiiiitiiiK  voya»{i<H,  (>|ii  u  |,t. 
"  t)'i'H  iif  I'i'i'iill  iiililri'NNi'il  III  llii'  ('ii|itiiiiiH  iif  III!'  Niiiiif,  wliii'li  li'iti  rn 
"  will  III'  ili'livi'i'c'il  if  Hiii'li  vrsMi  I',  lire  fiilirn  in  with  iiinl  iirr  foiiiiil  \i,,\ 
"  t>>  liiiM'  i'i>iiiiiiilti'(l  luiv  vidliiticiii  of  till'  liiWN  iif  llii'  I'liili'ij  Stall  '. 

"  lli'iruitli  lire  tniliiiiiitti'il  lliil'l,\  I'lijiirH  iif  tlic  I'rrsidi'iit'N  |ii'cirlii- 
"  iiiJitiKii  iif  Miii'c'li  21,  IMN',1.  for  iliNtiiliiiiion  to  iiurticH  ult't'clt'il  tlii'nl.v. 
"  lit*  fiir  iiM  iiiiiv  III'  |inirlinilili'. 

••  l''iir  viiiir  ^'iiiiliMMi'  ill  |ircitrrtiii),'  tin'  iiilcrrMtH  of  tin'  UuviMiiiin'iit 
"  (111  thin  rnii>'r,  Miiir  iiltiiiliiui  is  iiivitcil  tii  llir  H|Hi'iiil  iiistnn  t  iunK 
lO  ..  |,f  ,.yi.|,  ,;„(,.  Iiii'i'witli. 

■'  Yiill    will    Uil\  IHi'   till'   i|r|iait  llli'llt   liV  trli');ni|>ll  nf   till'  ilittr  iif  li'iiv- 

"  iiiK  Hull  FniiiiiHrii  mill  nf  vmii'  iit  inn  ti>  tliiit  |ioi't. 

"   lti"«|ii'rt  fullv   MilUN. 

••  \V.    WiNl.llM. 

•■  Hi'i'ii'tiii'\  " 

Tlu'-;t'  Ui'K-  till'  liist  illslllicliulis  issilnl  In  tllc  (1,1,1 
11l;lll(lcls  III'  illlV  <lltli'l:«  I'l  till'  I'llili'il  St  iti  s  In  sci/c  ;iiiy 
vc--('l  ill  I'.ciiii;;  Sci    jii    the  yc-ir    {•">'.•.     iinl    IIh'    linlnnw 

llllllillii'il  oil    till'   /"//((>/' .1/(1//,     I     IHislllilc.    lll.'rilllsc   (HI  till' 
20  .',;,/  ,,/   Mil/l    tile    dIIucIS     Will'    lll>til|(|i(|     Id     lll.lUi'    tllc'si' 
St'i/llll'S. 

'I'lit' ('oiiiiiiis-,iiiiii'i  (III  till' piiit  1)1'  till'  riiitcil  Slate.-:  — 
Al  svliiil  pait  (if  till'  lii't'diii  is  tlit>  inochiiiKitiony 

Mr.  Waiii'ii:  Tlic  iiidcliiiiiiitioii  is  .lol  iii  cvitlcinc 
Till- (iiilv  rclcu'Mcc  III  it  is  this  cfrtiliiMtc  oj'  Mr.  Fd.-ici, 
tiiiit  tllc  |iiiii  l.iiiiatioii  U'ls  is'^iii'il. 

rill"  ( 'iiiiiiiiis>iniii  I  (III  llic  jiatt  III'    Ihc    I'liili'i!   Slates:  — 

1    wisll  Ciillllsel   W.e       ,    lillil    it   tiilivclilclll    Id  elltil    tile  |ii(if- 

]aiii:ili'>ii  (III  tile   I      'ltd. 
,iO      Ml.  W.irrcii:   -I       |ii'(ii'laiiiati(iii   is   in    Vuliinu 


21'in,  Aiiiei  lean    liejii  iiit    of   llie 
Tfiltiiiuil.  ami  reads  as  follows; 


I'k 


)i'ee,llliy;s  ol 


tl 


|ia-e 
I'aiis 


■  A  l'i':iitiiiniiliiiii. 

•  llv   the  I'ri'siilciit  .,f  the    rilitcil  Stiitcs. 

■   riic  fiilliiwiii^'  jirnvisidiis  (if  till'   laws  ef  tlir    United   Stiitcs   a'( 
••  luTiliv  luilili'licil   fertile  iiiferiiKiliiiii  (if  all  I'lini'criii'il; 

••  Section   l'.i."i(i  l{('\isi(l  Sliiliitcs.  Cliiiptci'  :i,  title  'JII,  ciiiicts  tliat- 

••  No  pi'i'soii  sliiill  Uill  any  oti'  r,   miiiU.  niiiiteii.  salile,   or   fur  seal 

•■or  other  fiir-lieaiiii^'  iiniinal.    vitliintlie   limits  of  Alaska  tciiitoiv. 

"  or  111  the  waters  thereof  ;  and  every    iierson  >;iiilty  thereof  shall,  fi.r 

4°  ••  I'aeh    olVeliee,  !"•  tilled  not  less  than  ■JIIO  dolhirs.  nor  more  than  I,IKI(I 

"  (((dial's,  or  iiii|>risiini'i|   not    more  than  si\   months,  or  Imtli;  and  nil 

'•  vessels,  their  tackle.  a|iiiar('l,  fiirnil lire,  and  ciir^'o,  found  eiiniif,'c(l  in 

'•  viidation  of  this  section  shall  lie  forfeited;  Imt  the   Secretary  of  tlic 

"  Treasiuy   shall    have  jiower  to   autlmri/.e  the    killing  of   any   Micli 

'■  niinU.  niarteii,  salile,  or  other  fiir-liearin^,'  animal,  excejit   fur  seals, 

under  such  re^'ulations  as  he  may  |irescrilie,  and  it  shall  lie  the  duly 

■'  of  the  Secretary  to  prevent  the  killing  of  any  fur  seal,  and  to  pni- 

••  \  ide  fill'  the  execution  of  the  provisions  of  this  section  until  it  is 

"  otherwise  provided  li\-  law,  nor  mIiiiII  he  uriint  any  siiecial  jirivilc^'cs 

•  under  this  section. 

••  Section  ;!  of  the  Act  entitled  '  \n  \ct  to  )irovid((  for  the  Jirolcc- 
50"ti()nof  the  Salmon  J'isherics  oi  Ahisk'i,'  approved  the  '.id  Marcli, 
••  I.SS'J,  provides  that 

•■  Section  I'.t.'iti  of  the  Hevisr  d  Statutes  oi  the  I'llitcd  States  U 
"  liercliv  (le(dared  to  include  and  iijiplv  to  all  the  doniinioii  of  the 
••  I'llitcd  Slates  in  the  waters  ot  Hehrinj^'s  Sea,  and  it  shall  lie  the  duty 
•'  of  the  President  at  a  timely  season  in  eiudi  year  to  issue  his  I'nichi- 
"  iiintiou,  and  cause  the  same  to  he  pulilishcd  for  one  niontli  at  least 
"  in  one  U('wspa))er  iif  any  such  there  lie)  iiuldished  at  eueli  I'liitcd 
••  States  port  of  entry  on  the  I'acilic  Coast,  warnint;  all  persons  apiiust 
"  enteriiif;  such  waters  for  the  purpose  of  violalinj.;  the  jirovisioiis  ul 
"  said  nectiou,  and  he  shall  also  cause  one  or  more  of  the  vessels  of 
"  the  United  States  to  dilif^eiitly  cruise  said  waters,  and  arrest  all  per- 
f)0  "  sons  aud  seize  all  vessels  found  to  be  or  to  have  lieen  ouganed  iu  au> 
"  violation  of  the  laws  of  the  United  States  therein. 

••  Now,  therefore,  I,  Benjamin  Harrison,  President  of  the  United 
'•  States,  iiursuaut  to  the  above  recited  Statutes,  hereby  warn  all  pcr- 
'•  sous  against  eiiteriun  the  waters  of  Hehriii^'H  H(!a  withiu  the  domain 
'•of  the  United  States  for  the  jiuriiose  of  viohitiun  the  jirovisious  of 
"  said  yection  I'JSO  Uevised  Statutes,  and  I  hereby  proulaim  that  nil 


70i> 


•H,  ll|lttl     !•  t 

liii'li  li'l>   is 

■!■    fllllllll    !,     t 

.■.I  SIhI,  , 
iiI'h    pi'ii.  Ill- 

ll'll   lIl.T,  l,\. 

Ildvpriiiihiil 
inslnic  ii..iis 

lull'  of  ||M\. 


IIXIM, 

the  riiiii 
si'izi'  II in 
r    Ihiliili^ 

ISC    (III   till' 
aUl'     lllr-.. 

Slutc.-:-- 

t'S  idi'iii  !• 
I-.    Kii.-lcr. 

Sl.it.'s:- 

ic    ."i,  |i,i:^(' 
til'   r,iii> 


»  Htnti's  ii-i 
niiftrt  tliat- 

111-    fur    !-rlll 

I  tciritdrv. 
f  slmll,  fiir 
tliiin  l.iilHl 
th;  luiil  mII 

llffllpMi     Ih 

tiiry  iif  till' 
luiv   >nrh 
t   fur  m;iIn 

>!•  till'  (llltV 

mill  to  |iio- 
iiiitil  It  is 
)irivili'j,'i's 

tlic  in-ntl'l'- 
li.l    Mlll'ril. 

1  Stiiti's  IS 
iiiiiii  1)1'  tlie 
lie  tlu'iluly 
is  ri'iM'la- 
tli  lit  li'itst 
licli  I'liitril 
sons  apiiust 
I'ovisions  III 

II!   Vi'SSI'ls  uf 

rt'Ht  all  iirr- 
ah'oil  ill  iiuv 

the  Uuiti'd 
iiru  all  iirr- 
tlio  (loniain 
'ovisiiiu.s  uf 
im  tbut  all 


(Mr.  Warit'ii's  Ai'Kumoiit.) 

■  '  III  rxiiiiN  roiiMil  III  III'  or  ti>  hiivc  liiTii  i'ii){it^iiil  ill  aiiv  vinliktioii  of  the 
"  iiiwrt  (if  till'  I'liiti'il  Hliili'H  ill  Hiiiil  >Mkti>rN  will  Im  ikrri>Nt<'il  iiiiil  iiuniHhiiil 
••  11^  aliiivc  iii'iiviili'il,  mill  tliiit  nil  vi'mhi'Ih  mh  riii|iliivi'il,  llicir  tiu'klo, 
••  H{'|iuri'l,  furiiitiii'i'  mul  rar^'ni'M,  will  lii'  Nci/.i'il  mul  /nrfi'itt'il. 

Ill  ti'sliiiinny  ulii'i'i'iif,   I  liiivi'  lii'rrniili)  Hi't  my  Iminl  uud  ouusoil 
•'  I  III'  Mi'ul  nf  I  hi'  Ciiiti'il  Stiiti'H  til  III'    IIIm'iI. 

'    li.iiiiat   IliK   City   of   WaKliiimtiiii,   tliiit  'JInI   iliiy  of  Miircli,    IHHO. 
"  iiiiil  uf  lilt'  liiilii|ii'iiil<'n( f  lilt'  lUiiti'il  Hlul<>M  tlK'Hllt'... 

"  (Hixlliul)  HkNJ.    IfAltltlHt.N. 

10     i\,  the  I'roniiU'iit. 

"  itSiglU'll)      JaHRhO.    lil.AINK, 

"  Sfi'i'itiu'v  of  Hfiito." 

Mr   I'i'tcrs:— I  slmiilil  tliiiik  that  was  warning ciuniKh. 
Ml.    Warrt'n:     Tin'    Icaiiirfl    siiiinr    t'duiiscl    lor   (ir»'ftt 
Hi'iliiin  Minni'sls  Unit  lli.'il  was  warning  ciiniinli.     Was  it. 
if  VI  mr  iJollKls  please?      Is  it  |ius>.iMe  that  the  I'llited  StiltOB 
f'jill   hi'   les|M>llKihle    t'nr  (laill.'llies   In   the  owners   o(   every 
vessel  thai  ever  had  an  iiiteiitioii  of  piiii;:;  into  the  MoriiiK 
Sci.  hecaiise  the  President  issued  a  |ii'oelaiiiat  ion  that  t hoy 
'  >|iiiuid  not  hniil  seal  within  those  waters?     If  the  United 
Stales  is  jialtie.  under  such  eirciiinsl.'tnce.s  all  the  sealiiifj 
ilt'ci  of  \'ietoria  would   have  presented  elaiins   and   uiued 
tlniii  against   the  (Joveininent   of  tht»   Uniti'd  States,  he- 
eanse  every  }eai'  from  Iss?  down  to  is'.d,  with  theexcep- 
timi  of  the  year  Isss,  the  I'rcsidenI  of  the  liiited  Status 
issued  a  pioclamatioii  a^iiinst  htintiiij;  seals  in  the  waters 
of  I'.eiiii};  Sea.     And  if  that    piocjaniation    alono    would 
st'ivi'  as  a  hasis  for  daina;;es,  w  liat  heroines  of  the  piiiiciple 
,Qiif  law  eslahiished  hy  the  (ieiieva  Trilainal  and  adojtted 
^  liv  llie  Coiiil   of  Claims,  that  dainap's  so  indirectly  and 
ri'iiinlely  the  result  of  the  wrongful  act  could  not  he  al- 
lowed. 

Fiiiin  the  schedule  attached  to  this  claim  in  the  ai'gu- 
iiK'iil  in  chief  on  hehalf  of  (iioat  Britain,  I  read  this: 

"  I,r(.'al  iiiiil  othi'i'  i'N|it'iiHrH #250  W 

"  'I'iiiir  mill  I'Xpt'iiMi's  iif  owner '200  00 

"  F.Htiiiiiiti'il   riiti'li  of  Ncliooiii'i'  if  not  iiiti'i'fcrod  with  (fl 
■  liiiiitiiit;  ciitiot's  ami  our  ciiiiiu'  hhi'iI  uh  a  stern  boat, 
•  ^'iiliuK  the  whole  Heusou  of  ISh'J  iu  IteliriuK  Keu), 
40      •  l,i;77  skins  at  Sill 1H,447  00 

"  81H,H'.»7  00  " 

Till  re  is  not  a  word  of  testimony  in  the  Uecord   to  sup- 
|Miit  the  items  for  expenses. 

Till'  argnmeiit  on  hehalf  of  Great  Britain  nowhere 
rt'fi'is  to  the  charter  of  this  vessel  to  go  to  Shiimagiii 
Islands,  We  contend  that  the  rule  of  law  in  cases  of 
[laitial  loss,  which  are  similar  to  this  case,  if  there  is  any 
join-t  1  laim,  is,  that  a  vesst-l  is  not  entitled  to  uncertain, 
s|ienilative,  contingent  profits  the  I'stimation  of  which  no 
niiiiil  is  capable  of,  hut  that  her  compensation  is  hased 
ii|iiiii  the  charter  v  ilue  for  the  time  during  which  the 
owiHi  was  tleprivee  of  lier  use.  1  presume  that  that 
ciruier.  and  tlui  ligures  st't  out  therein,  woulil  not  read 
favdi.'ihly  heside  this  claim  for  $ls,Tt7.  'I  he  juxtaposi- 
tiiiii,  if  your  Honors  please,  would  he  unfortunate.  This 
littli  liiiat.  that,  according  to  our  learned  friend,  was  never 

biiill  til  go  into  Bering  Sea 

6o  Ml  Hodwell:  -  1  hope  my  friend  does  not  moan  to  say 
thai  I  said  the  "Wanderer"  was  not  intended  to  go  into 
Biiiiig  Sea  in  the  year  in  (piestion. 

Ml.  Warren: -Not  at  all,  I  do  not  misinterpret  you. 

Ml .  Rddwell:— I  meant  to  say  that  the  vessel   was  not 
'if  till'  class  usually  used  in  sealing  in  Beiing  Sea. 


hi 


710 

(Mr.  WancMi's  Ai>;iii!U'nt  ) 

Mr.  VVanen: — I  was  basing  thisainiimoiitou  tliat  sl.iii.. 
mont,  tliat  liis  idea  of  what  tlio  "  Waiuloivr  "'  was  Ihi,., 
for  substaiitiati'd  my  belief  that  tlie  "  Waiuleivr  "  iiivcr 
intoiidod  to  go  into  Bering  Sea  in  ISSit. 

Tliere  is  one  nnfoitunate  omission  in  that  paiaj;r,i|i|i, 
1  read  from  tbt*  Hritis!.  Argument  on  |)ago  ls;{,  i.l;iiive 
to  the  jnospeetive  catch,  and  tliat  is  a  fact  wliii  h  js 
io|)roniinenlly  set  ont  in  tlie  sciuuhde  attached  to  every  ntli,!- 
claim  of  a  similar  kind.  It  is  the  fact  of  how  lon^  a 
period  the  voyage  of  this  "  Wandeier"  was  to  covir 
Coniisel  advance  the  proposition  that  yonr  Honors  iniir.t 
take  tlu'  intention  of  the  proposed  voyage,  because  thoy 
urge  there  is  no  other  basis  of  arriving  at  the  proli.ilili. 
duration  of  a  staling  voyage.  If  that  be  true,  wliy  luit 
insert  in  the  claim  of  the  •'  Wandeier"  the  date  givtn  hy 
the  captain  as  the  time  he  expected  to  terminat(>  iiis  vny. 
age  in  Heriiig  Sea?  Why  leave  it  out  in  tiiis  case  and  uiit 
20 in  any  other  case?  I  read  from  the  Kecord,  page  ITi!!^, 
line  1(1,  a  «|uestion  addressed  to  Captain  Taxton: 

"For  wlint  U'upth  iif  time  Imtl  you  intonilcd  to  ri>iiiiun  in  Iti'liriiit; 
••  Son  y    .\.   Oh.  1  fxpcfti'il  fo  It'iivo  iibout  till' ljr>tli  An(?ust." 

That  is  wliy,  if  yo\u'  Honors  please,  this  date  is  iioi  in- 
serted in  tlu'  schedule.  Here  is  a  captain,  who.  wroiii; nn 
everything  t-lse.  chances  to  hi*  tight  on  the  duration  oi'tlio 
sealing  season,  but  his  testimony  in  that  regard  is  nol  iv 
ferred  to  in  tb.e  argunn'iit. 
30     Mr.  I'eters:- That  was  calculated  for. 

Mr.  Warren:-  Wt'  asked  thecinestion  how  long  it  w.is 
calculated  fur  the  other  day,  atid  gave  otu'  learned  friends 
a  chance  to  give  us  the  information  duiing  this  argument 
in  Ilalifa.N,  but  the  reply  was  that  it  was  calculated  for 
the  whole  season. 

Mr.  Hodwell:    That  is  the  way  it  is  stated  in  the  claini. 

Mr.  Wall tn:— The  whole  season,  if  your  Honors  phaso; 
do  the  counsel  now  admit  our  contention  that  thesnisoii 
ends  between  the  2ntli  and  2r>th  of  August? 
40     Mr.  Hodwt'll:     That  is  not  the  meaning  at  all. 

Mr.  Warren:  -Then  the  claim  with  reference  to  the 
"Wanderer"  should  be  revised. 

Mr.  Hodwell:— To  the  '-'Mb  of  Atigust,  no  doubt. 

The  Commissioner  on  tlu>  part  of  the  United  Slates:- 
Hoes  any  one  reineiidier  bow  many  skins  she  toidv  up  to 
the  time  when  siie  tuiiie<i  about  for  home? 

Mr.  Warren:— She   was  sealing  on  the  coast  when  she 
turned  around  to  go  home,  ami  we  madt'  no  iiKjuiry  what 
ever  about  the  coast  catch.     She  abandoned,  witlioul  any 
Soapparent  reason,  the  upper  coast  voyage. 

In  closing  this  case  of  the  "  Wanderer,"  1  desire  to  (all 
your  attention  ag.iin  to  the  character  of  Captain  Paxlon's 
test  inioiiy  and  thetact  that  his  mat(Mlo(>s  not  support  liini. 
and  to  his  unfortunate,  intentional  and  fraudulent  (mils 
sioii  (d'  all  rel'eifuce  to  the  charter-party;  also  to  the  dales 
found  a!  I'age  litoo  of  the  Kecord,  showing  that  this  vessel 
was  engaged  in  the  business  of  coasting  along  tlu'  sliereof 
X'ancouvrr  Island;  that  she  entered  the  harbor  of  Vieteria 
the  lath  day  id'  May,  cleared  on  the  same  day  for  the  west 
Cioeoasl  ol  \'ancouver  Island,  returned  and  cleait'd  on  Iho 
'Jltd  day  of  May  for  Shuiuigan  Islands.  There  is  iidlliiii},' 
111  till' testimony  that  would  warrant  the  belief  thai  the 
captain  of  the  "  Wanderer  "  ever  had  in  his  mind  or  ever 
conceived  the  idea  that  this  vessel,  which,  prior  to  that  time 
had  never  bi'cn  in  Bering  Sea,  should  make  a  voyage  llniv. 


711 


(Mr.  Wiinvn's  Aigiimont.) 

I  he  Oomniissioiior  on  the  part  of  tlie  United  States: — 
l)(i.s  tlio  caso  sliow  liow  much  of  tho  seal  in{<;  season  on 
til,  coast  leniaiiKMl? 

Mr.  Wanen:— I  think,  if  your  Honor  plcise.  tliat  wo 
(•(Mild  citotlie  tcsliinonv  showing  the  prohahlo  chnation  of 
til.  loircr  '•oast  season. 

riie  Oonnnissioner  on  the  part   of  tlit>  United  States: — 
loPi  i<  the  ease  show  whetlier  any  of  tliat  season  remained, 
aiwl  wliy  tlie  Indi.ms  weic  not  willing  to  tinish  tlie  eoast 
i\ni,li< 

Mr.  Warren:— Nothing,  ifyoMr  Honor  plea.se,  about  that. 
Till'  lael  is.  in  eonnei  [ion  with  that,  that  the  loici'i-  roatit 
s(;i<iMi  was  over.  The  eaidain  landed  the  Indians  on  the 
wi-l  coiist  of  Nanconvcr  Island,  ;iiid  went  .ahoiil  his  con- 
li'iiipiated  Imsiness.  We  ean  show  fioni  this  Uecord  that 
IJK  -Mason  on  tlu'  we-t  eoast  of  N'ancouver  Island  was  over 
(in  I  he  loth  day  of  May. 
JO  The  Commissioner  on  the  part  of  the  United  States: — A 
v('i\  lew  vessels  entered  Bering  Sea  according  to  this  table 
,.|  Mr.  IVters'  until  about  the  1st  i^f  .Inly. 

Ml.  Warren:  -'I'hey  iis(>  the  intervening  time  between 
ihr  (lose  of  the  lowi'r  coast  season,  in  sealing  on  the  Fair- 
\ve;ilher  grounds  and  on  the  upper  coast,  that  is  above 
Cipe  Scott. 

'['he  t'ommissioiier  on  the  part  of  the  United  States:-  Is 
ih'i  that  a  part  of  th(<  coast  catch? 

Ml.  Warren:     riu>  Fairwealher  ground  catch   is  called 
a'tlic  iijipcr  coast  catch. 

The  (\)mmissioner  on  the  part  of  the  United  States:— 1 
1111,111  .ictiially  outside  of  HeringSeaf 

M I .  I'elers:  —That  is  only  taken  on  the  way  up  to  Bering 

Se.l. 

Ml.  Warren;  If  your  Honor  please,  the  "Mary  Ellen," 
111  the  year  IS.sc,  took  about  1,. ')<•(>  o!  I,()0n  skins  on  the 
Kill  weather  giduiids;  the  "Dolphin"  took  7(M».  and  we 
(.111  show  by  the  Jvecor<l,  that  other  large  catches  have 
lieeii    made  on   those  gromuls.     I  heg   to    suggest  here, 

40 why,  if  the  Indians  were  afraid  to  go  into  Bering 
Se;i,  didn't.  Captain  Pa.xton  take  them  on  to  the  Fair- 
weal  Ikm' grounds,  and  hunt  during  the  month  of  Jiineaud 
llii'  rest  of  May.  for  that  matter^  There  is  no  «'Xplaiiation 
cil  the  fact  that  the  »/)/>cr  c«(«.s7  sealing  was  al)andoned, 
;is  suggested  by  tin;  Commissioner  for  the  United  States. 
The  only  e.\|)lanalion  is  that  the  captain  returned  to  Vic- 
Un  la  to  make  the  trip  to  Shiimigan  Islands,  and  ui>ver  con- 
Iciiiplateii  sealing  except  otf  the  west,  coast  of  Vancouver 
l-laiid. 

Ml  Tlie  Commissioner  on  the  part  of  the  United  States: — I 
ilo  not  tiiid  any  vessels  entered  tlu>  passes  until  the  last  of 
•hiiic. 

Ml  Peters:— There  wei'(<  in  IS.sc,.  Th(>  "Caroleua" 
wi--  Mipposed  to  have  entered  on  the  PUh  of  .liine. 

The  Commissioner  on  the  part  of  llt>r  Majesty:  -  I  <lo  not 
tliiiik  lliey  could  very  usefully  go  in. 

Ml.  Warren:— The  claim  lias  bi-en  made  by  the  learned 
sriiiiir  eoimsel  that  the  season  in  Ht>riiig  Se;i  coiiiinenc(>s 
piMiiiijilly  about  the   tith  or  7th  of  .Inly,  and  that  would 

ivi|i:i\e  permitttHl  the  "Wanderer"  to  se.il  iieaily  two 
iiiHiiths  on  the  upper  coast. 

riie  Commissioner  on  the  part  of  the  United  States:  — 
Tib  point  is,  that  tlu>  Indians  were  not  willing  to  go  into 
HeiiiigSea;  and  why  did  they  uoi  complete  the  upper 
cna^l   catch,  ft)r   which  they    had   tlu'   balance   of    M.ay 


If, 


I'      !. 


V* 


7J2 

(Ml-.  Warren's  Argument.) 

and  all  of  June,  which  they  could  have  done  withir 
danger? 

Mr.  Peters:— Because  you  had  to  hire  the  Indians  f 
the  whole  tiip. 

Mr.  Warren:— There  is  nothing  in  the  testimony  on  tl, 

fioint,  and  is  it  now  suggested  by  the  learned  counsel  tli 
hese  Indians,  who  refused  to  proceed  to  Beiing  Sea  li 
ID  cause  they  feared  seizure,  would  have  engaged  to  son 
other  captain  to  hunt  seals  in  Bering  Sea? 

Mr.  Dickinson:— Perhaps  the  Indians  misunder.stood  tl 
proclamation  and  thought  that  they  were  forbidden 
seal  at  all,  may  it  i)lease  your  Honors. 

The  Commissioner  on  the  part  of  the  United  States; 
What  I  meant  to  say  was,  that  no  catch  was  piohibiti 
by  the  proclamation  of  the  President  of  the  United  Stat 
outside  of  Bering  Sea.  Now,  the  improbability  of  t 
story,  to  my  mind,  and  to  which  I  wish  to  call  the  atti 
action  of  counsel,  is,  that  if  those  Indians  were  prohibit 
from  going  into  Bering  Sea.  they  were  not  prohil)it 
from  sealing  di)vvn  to  the  last  of  June  on  the  coast;  In 
yon  say  that  they  had  finished  their  catch,  so  they  we 
home. 

Mr.  Warren: — The  words  "coast  catch  "  do  not  propci 
include  the  Fairweather  grounds;  that  is  the  tipper  cm 
catch,  and  for  that  reason  I  misunderstood  your  Honci 
question.  I  do  contend  that  they  could  have  proceed 
on  the  upper  coast  voyage,  and  would  have  unless  t 
30(aptain  had  intended  to  return  to  Victoiia. 

'I'he  Commissioner  on  the  part  of  the  United  States: 
had  in  mind  the  coast  as  distinguished  from  Bering  Sen, 

The  Interest  of  Citizens  ok  the  United  States  in 
Certain  Claims. 

Leaving  the  consideration  of  these  special  claims,  I 
come  to  the  discussion  of  the  interests  of  citizens  "f 
the  United  States  of  America  in  the  several  vessels  and 
cargoes  whose  owners  present  claims  before  this  Hijj;li 
40  Commission.  I  shall  confine  myself  to  the  facts  establish 
ing  which  of  these  vessels  and  ventures  were  owiitil 
wholly  or  in  part  by  citizens  of  the  United  States  df 
America.  Having  made  clear  so  far  as  I  am  able  tliat 
fealure  of  the  cjuestion  of  ownership,  the  law  applicable  to 
the  facts  will  be  hereafter  discussed. 

Article   3   of  the  Claims   Convention    provides   in    its 
second  pai'agrai)h: 

"They"  (the  OoinnnssiouorH)  "shall  be  iiuthorizctl  to  hear  nnil 
'  exftuiiue,  on  oath  or  aflirmatiou,  which  each  of  said  Commissiouers  is 
horebv  eiui)o\v('red  to  adiiiinistcr  or  receive,  every  queHtion  of  ffict 
not  found  by  the  tribunal  of  arbitration,  and  to  receive  all  Buitiil'li' 
authentic  testimony  concerning  the  Kanie;  and  the  Government  of  tin- 
'  United  Htatos  shall  have  the  right  to  raise  the  (luestiou  of  its  liabihty 

■  before  the  (Vimniissiouers  in  any  case  where  it  shall  be  proved  tliiit 

■  the  vessel  was  whollv  or  in  part  the  actual  property  of  a  citizen  of 
'  the  United  States."  ' 


IIS 

n- 

rd 

.■.1 
It. 
nt 

■Iv 
's7 
r"s 
"A 
W 


1 


50 


The  claims  in  which  the  U:nted  States  assert  that  citi- 
zens of  the  United  States  of  America  are  interested  are  srt 
out  at  page  bO  of  the  United  States  argument,  and  an  : 
Co  Tile  Coojier  claims:  "Grace,"  "Dolphin,"  "  Anna  Heck  " 
and  "Sayward."  The  Alexander  Frank  claims,  and  tlioii', 
if  your  Honors  please,  I  wish  to  make  a  correction.  We 
have  stated  on  that  page  these  claims  to  lie  the  "Alfivd 
Adams,"  the  "  Black  Diamond,"  seized  July  11,  1889,  and 
the  "  Lily."    There  is  an  omission  which   f  request  your 


713 


ne  withdiit 

Indians  f": 

ony  on tliit 
•ounsel  tli.it 
ing  Sea  l. 
ed  to  801110 

rlerstood  tlifi 
oibidden  tn 

Bd  States; 
i  piohibitoil 
nited  States 
ility  of  tliis 
11  the  attcii- 
B  prohibiti  (1 
b  proliihit'il 
i  coast;  liut. 
o  they  went 

not  properlv 
tipper  cDiisI 
our  Honors 
e  proceed' (1 
3  unless  the 

'd  States:-  1 
ering  Sea. 

States  in 

al  claims,  I 

citizens  of 
vessels  and 
e  this  lliL^li 
t8  establish- 
wei-e  owni'il 
States  of 
in  able  that 
applicable  to 

v'ides  in    its 


il  to  licar  nnil 
inmiasioucis  i:i 
uestion  of  fnit 
ive  nil  HuitiiMi' 
oruiiieut  of  tlic 
uof  it,H  lialiilitv 
1)0  proved  Hint 
of  a  citizen  of 


rt  that  I'iti- 
ested  ai'e  sit 
nt,  and  iur; 
Anna  Heck  ' 
s,  and  there, 
ection.  \\ '' 
^he  "Alfiv.l 
11,  1881),  and 
ecjuest  your 


(Mr.  Warren's  Argument.) 

Honors  to  insert— the  "Black  Diamond"  of  1886,  claim 
>".!.  5.  The  Daniel  McLean  claim:  One-third  interest  in 
tlie"Big  Triumph."  The  Alexander  McLean  claims: 
One-half  ""f  the  schooner  "Onward"  and  of  the  schooner 
"  Favourite.'' 

The  counsel  for  Great  Britain  admit  that  Alexander 
Fi.ink  was  equally  interested  in  the  venture  of  the  "  Black 

loPi  iMiond  "  in  the  year  18S6,  and  of  the  "Alfred  Adams" 
in  the  year  1887,  while  the  United  States' counsel  claim 
tliat  Alexander  Frank  was  interested  in  the  bottom  of  the 
'•  I'.lack  Diamond  "  in  the  year  1880,  and  was  a  half  owner 
of  I  he  "  Alfred  Adams"  at  the  time  she  was  seized,  and 
the  owner  of  the  entire  bottoms  of  the  "Lily"  and  the 
"  lilack  Diamond"  in  the  year  1889. 

I'otnisel  for  Great  Britain  also  admit  that  Alexander  Mc- 
LiMO  was  owner  of  one  half  the  "  Onward  "  when  she  was 
seized,  and  owner  of  one  half  the  "  Favourite"  at  the  time 

20 of  the  alleged  warning.  That  fact  is  conclusively 
est altlished  by  the  testimony  of  both  McLean  and  Charles 
Spi  iiiK'  ft'id  hy  the  agreement  dissolving  the  partnership 
wliic  h  is  in  evidence,  which  although  not  printed  in  the 
Exhibits,  isin  the  possession  of  the  Secretary  of  this  Com- 
mission and  is  referred  to  in  the  Exhibits  as  not  printed  by 
tlie  consent  of  counsel.  That  dissolution  of  partnership 
est  itdishes— if  I  may  be  allowed  to  state  the  contents  of 
th.'  paper— this  fact;  that  at  the  time  of  tlie  dissolution  of 
tile  partnership — in  December,  1886  —Alexander  McLean 

joand  Charles  Spring  each  retained  a  half  interest  in  the 
claims  of  the  "Onward"  and  "Favourite"  against  the 
(iiivernment  of  the  United  States  of  America. 

The  Commissioner  on  tha  part  of  the  United  States: — 
Did  he  so  testify? 

Mr.  Warren:— And  he  so  testified.  And  Charles  Spring, 
his  partner,  so  testified;  that  is  admitted  on  all  sides. 

With  reference  to  Andrew  J.  Berhtel,  Counsel  for  Great 
Britain  admit  that  he  was  equally  interested  with  William 
Muiisie  in  the  venture  of  the  "  Pathfinder  "  in  1889. 

40  With  reference  to  the  Alexander  Frank  claims,  the 
Cdunsol  for  Great  Britain  have  admitted  in  their  printed 
armiment  that  he  was  equally  interested  in  the  voyage  of 
the  "Black  Diamond"  in  1S8»),  which  statement  I  now 
undeistand  that  the  learned  senior  counsel  wishes  to 
withdraw. 
.Mr.  Peters: — We  make  no  such  admission. 
Mr.  Warren:— Your  brief  admits  that  in  terms.  1  will 
read  it.  The  admission  is  found  in  the  argument  for  Great 
Britain,  page  47,  line  23,  where  these  words  occur: 

50  ■■  ill  tho  case  of  tbe  'Black  Diamond  No.  5'  and  tlie  'Alfred 
"  Ailiuiis,'  the  title  was  in  a  Uritish  subject,  but  the  vcHsels  were  oper- 
"  iiiiit  for  the  benefit  of  a  trading  firm  at  Victoria,  comjjosed  of  the 

•  I'WMcr  and  one  Alexander  Frank,  who  was  a  native  Imrn  citizen  of  the 

•  I'liited  States." 

Mr.  Peters:— All  I  can  say  is  that  the  statement  is  not 
(.(il  icct  with  legard  to  1886.  Without  making  any  positive 
or  deliberate  statement  on  this  point,  I  only  wish  to  say 
uow  that  if  your  Honors  will  remember  that  claim  of  the 
"  I'.laek  Diamond  "  in  ISSO  was  a  separate  claim,  and  when 
Ooit  i^  jiiit  there  "  Black  Diamond  No.  5,"  it  is  referring  to 
til'  wrong  one.  That  number  is  wrong,  and  that  is  all 
till!  IS  wrong.  There  were  two  "  Black  Diamond"  cases, 
ou'  No.  6  and  another  No.  15.  Without  making  a  positive 
sta!i'iii(?nt  on  that  point  now,  I  say  at  the  present  time  I 
am  inclined  to  think  that  that  statement  should  not  have 


'>  I 


¥h  1; 


.l[^P 


■i'ri 


A 
«1  («' 


|i         i' 


i 


714 

(Mr.  Warren's  Aiguniciit.) 

been  put  in  that  way.  The  extract  read  by  Mr.  Waii'  n 
is  from  my  argi.nient.  but  I  am  strongly  inclined  to  tliink 
that  the  evi(]en>"e  which  I  have  in  my  hand  shows  th  it 
that  is  not  the  .-orrect  statement.  We  do  not  mean  io 
make  that  admission. 

Mr.  Dickinson: — You  mean  that  the  number  should  Im> 
changed? 

lo  Mr.  Peters:— No;  it  niight  l)e  correct  with  re{;ard  to  tin; 
"Alfred  Adams,"  but  with  regard  to  the  "Black  Dia- 
mond"  that  admission  should  not  lie  made,  because  1li.> 
boat  did  not  belong  to  that  tirni  at  all  at  that  time,  and 
they  did  not  accjuire  their  property  in  it  until  Januai  v. 
1887. 

Tilt'  Connnissioner  on  the  part  of  tiie  United  States;  - 
You  had  better  look  at  it  carefully  and  make  any  conn 
tion  that  is  necessary. 
Mr.  Peters:— I  will  do  so. 

20  Mr.  Warren: — The  rea.son  that  1  quoted  it  with  sik  li 
great  confidence  is  that  it  is  found  in  their  argument  in 
chief,  and  we  accepted  the  admission  in  our  argununt  in 
reply  to  Cireat  Biitain,  and  in  their  argument  in  reply  no 
answer  was  made. 

Mr.  I'eters:— It  is  simply  one  of  those  matters  that  in  a 
case  of  tiiis  length  nnght  slip  in. 

TMr.  Warren.  1  sliail  state  tiien  with  reference  to  Ah  x 
antler  Frank,  the  ct)unsel  for  Ciieat  Hiitain  atlmitled  tlmt 
he    was   et|Ually    iiiterestetl  in  the  venture  of  the  "Black 

3oDiamontl  ""  in  issti.  That  admission  we  will  consider  later. 
The  counsel  for  (ireat  Britain  admitteil  and  do  now  atiinit 
that  he  w.is  etjually  interested  in  the  voyage  of  the  "  .\l 
fretl  Adams"  in  1887.  That  admission  is  found  at  i>agf  47 
of  the  argument,  line  i'8,  wliicli  is  the  same  paragrapli  I 
reati  in  toiinection  with  the  "Black  Diamond,"  claim  Nd. 
5.  So  that  the  dirt'erent;e  between  the  Counsel  for  llt'v 
Majesty  and  the  Coimsel  for  the  United  States  as  to  Ihc 
"Alfred  Adams"  is  this:  The  ('t)unsel  for  the  Unileil 
States  claim  that  Alexander  Frank  not  only  was  intertshil 

4oiii  the  venture  of  the  "Alfred  Adams"  in  1887,  l)ut  that 
he  was  part  owner  of  the  bottom  t)f  the  ship.  With  nter 
ence  to  Alexaniler  Frank's  connection  witii  the  "  Lily 
and  "  Blat  k  Diajuoiitl  "  in  the  year  1881t,  the  claim  is  made 
before  this  High  C'tmimi-ssion  in  the  name  of  Morris  Moss. 
The  Counsel  for  the  Unitetl  States contentl  that  Alexander 
Frank  t)\Mied  the  eiitiie  liottoin  of  the  "  Black  Dianitind" 
in  I88!t,  when  she  was  seizetl,  and  that  he  owned  the  en 
tire  bottom  t)f  the  "  Lily  "  when  she  was  seized,  and  tlii> 
we  claim  we  have  abunilaiitly  establisheil  by  the  evideiuv 

fio  The  Ct)mniissit)iier  on  the  pait  of  the  United  Stat*  >;  — 
As  to  the  "  Palblintler,"  are  ytm  cttming  to  that  vt  >sii 
again?     Ytm  made  a  reference  to  188it,  hut  not  to  l81»o. 

Mr.  Warieii:— As  to  the  "  Pathfinder,"  claim  No.  Jl, 
the  Counsel  for  (ireat  Biitain  admit  that  at  the  time  of 
hei'  seizurt;  in  Is'.to.  in  the  iiarbor  of  Neah  Bay,  within  tlie 
tenitfii'y  of  Washington,  the  interest,  whatever  it  inij;iit 
have  been  in  1^8!i,  t)f  Andrew  J.  Bechtel,  remained  itienti 
tally  the  same,  and  tiie  admission  was  made  in  conned  loii 
with  tilt?  "  Pathtintler"  in  l88!t  that  Bechtel  was  etpially 

fiQ  into  nested  in  the  venture  of  the  ship;  therefore,  the  Coun- 
sel for  (ireat  Biitain  admit  that  he  was  equally  interosUd 
in  the  venture  of  the  "  Pathfinder  "  in  1890. 

We  contentl  that  Bechtel  was  a  part  owner  of  the 
"  Pathfinder  "  in  1889,  and  therefore,  was  part  owner  in 
1890. 


715 


(Mr.  Warren's  Argument.) 

I  have  thus  clearly  drawn  the  issues  between  the  Coun- 
sel for  the  United  States  and  he  Counsel  for  Great  Britain 
oil  the  questions  of  fact  as  to  whether  or  not  certain 
cit;..('U8  of  the  United  States  v.ere  interested  in  these  ships 
aiii!  claims. 

h'iferring  to  the  Cooper  (.laims,  the  testimony  shows 
till  e  claims  are  presented  by  Cooper.  The  question  be- 
10 coi Ill's  a  legal  one  and  there  is  no  question  ot  fact  to  be 
deli  rinined  or  discussed.  Thomas  H.  Cooper  resided  in 
Siiii  Francisco  and  was  a  civil  citizen  of  the  United  States 
of  America  at  the  time  lie  acquired  the  title  to  the  vessels, 
at  I  lie  time  they  vvere  registered  and  at  the  time  of  the 
sti/'iies.  He  was  a  domiciled  foreigner,  having  resided  in 
tlif  Ignited  States  continually  during  a  period  of  about 
iViity  years  prior  to  February,  1896,  when  the  present  con- 
vi'iiiion  was  signed,  and  his  status  will  be  considered  as  a 
question  of  law. 
:o  .Andrew  J.  Beciitel,  who  wasi  a  part  owner  of  the 
•'(arolena"  and  "Pathfinder,"  and  admitted  hj  the 
((Uiiisel  for  Great  Britain  to  be  equally  interested  in  the 
viiitiiie  of  the  " Pathfinder,"  is  a  native  born  citizen  of 
tiic  L'nited  States  of  America;  upon  that  question  there 
can  lie  no  dispute.  We  have  in  this  Record  the  affidavit  of 
.\li.  Bochtel  himself,  in  which  he  states  he  was  born  in  the 
State  of  Ohio,  in  the  United  States  of  America. 

Alexander  McLean,  who  was  an  owner  of  one-half  of 
the  ■'  Onward  "  and  "  Favourite,"  in  1886,  became  a  natural- 
poized  citizen  of  the  United  States  of  America  in  the  City  of 
Bosion  in  1882.     As  to  that  there  can  be  no  dispute.     His 
|)a|icis  are  in  evidence. 

])aniel  McLean  became  a  naturalized  citizen  of  the 
I'liitctl  States  of  America  on  the  1st  of  December,  1882. 
On  the  Kith  of  Octobei-,  188(5,  he  look  out  papers  and  be- 
ranii^  a  citizen  of  Great  Britain.  On  the  7th  day  of  Sep- 
tcinlicr,  1892,  he  made  an  affidavit  in  the  City  of  San 
Francisco,  in  which  he  stated  that  he  was  a  naturalized 
.Vtnt  rican  citizen  and  that  he  resided  in  San  Francisco 
401  Record  1821,  line  50). 

.Alexander  Frank,  who  was  a  part  owner  of  the  ''  Black 
Dianioud"  in  1886,  and  who  according  to  the  admission 
made  in  the  brief  of  Great  Britain,  was  interested  in  the 
veiitiirt'  of  the  "  Black  Diamond"  in  that  year,  and  in  the 
venture  of  the  "Alfred  Adams  "  in  1887,  and  who,  accord- 
int;  to  the  contention  of  the  United  States,  was  the  owner 
lit   the  "Black   Diamond"  and  "Lily"  at  the  time  of 

tlieir  seizure  in  18Sl> 

The  Commissioner  on  the  part  of  the  United  States: — 
foTlie  "  Lily  "  is  the  same  as  the  "  Alfred  Adam?.." 

Mr.  Warren:— The  "  Lily  "  is  the  same  as  the  "Alfred 
.Adams"  with  the  name  changed,  but  there  is  this  differ- 
eiire:  that  at  the  time  the  "Alfred  Adams"  was  seized, 
Jacob  Ciutman  was  alive,  and  at  the  time  tlie  "  Lily  "  was 
sei/,.(i  Jacob  Gutnian  had  departed  tbislifo,  and  Alexander 
Flank  was  the  owner  of  the  entire  vesse!. 

1  was  about  to  state  that  Alexti'idev  Frank  was  a  native 
lioiii  ( itizen  of  the  United  States  of  America,  and  that  is 
not  disjiuted  in  this  Record.  He  never  took  out  papers 
')jfi(iiii  (ireat  Britain  or  took  an  oath  of  allegiance  to  Great 
Biit;iiii.  He  never  made  an  oath  of  any  kind  for  any  pur- 
pose stating  that  he  owed  allegiance  to  ivr.}  sovereignty 
iitlii  I  than  that  of  the  United  States  of  America.  That 
fact  1^  beyond  controversy  on  the  face  of  this  Record.  That 
he  WIS  a  native  born  citizen  of  the  United  States  is  ad- 


it 


t'      M 


I 


[\  , 


rifl 

(Mr.  Warren's  Argument.) 

nnitted  in  some  jtart  of  the  British  argument  to  whicli  I 
cannot  at  this  moment  refer. 

Mr.  Peters: —Til ere  is  no  dispute  that  he  was  a  iiaiivo 
born  citizen  of  the  United  States. 

Mr.  Wr.rren:— He  testified  at  Record,  page  1994,  line  ll: 
"Q.  You  are  an  American  citizen,  Mr.  Frank?  A.  T  .in 
sir. "    That  puts  at  rest  the  question  of  his  citizenshi]) 


10 


The  claim  advanced  by  the  United  States  with  refeniice 
to  these  men,  who,  in  the  course  of  my  argniiiMiit 
to-morrow,  I  shall  endeavor  to  demonstrate  were  intci'. 
ested  in  these  ships,  is  this:  that  being  citizens  of  ihe 
United  States  of  Americn,  and  interested  in  the  bottom  of 
these  ships  and  in  the  ventures,  they  can  receive  no  (l.iin- 
ages  whatever  before  this  High  Commission,  notuiih- 
standing  the   fact   that   your    Honors   should  find  tliisc 

^° United  States  citizens  to  iiavo  been  domiciled  within  llio 
territory  and  jurisdiction  of  Great  Britain  at  the  time  of 
the  seizures  and  warnings.  No  citizen  of  the  Unittd 
States  of  America  car  receive  an  award  from  this  Ili;,rii 
Court  for  damages  resulting  from  a  conflict  between  him 
and  the  exercise  of  autiiorily  by  the  sovereign  powoi'  of 
his  country  of  original  allegiance. 

The  con'  ition  of  the  counsel  for  Great  Britain -in 
order  that  the  question  of  where  these  American  citiziMis 
were  domiciled  at  the  time  of  the  seizures  may  be  clearly 

3° before  your  Honors -is  that  these  United  States  citizcnss, 
granting  they  were  inte?e.sted  in  the  bottoms  of  these 
ships,  were  domiciled  within  the  jurisdiction  of  Great  Bri- 
tain at  the  time  the  several  seizures  and  warnings  wi  ro 
made,  and  therefore  that  nation  is  entitled  to  present  a 
claim  and  recover  damages  foi'  them. 

As  to  the  residence  of  Thomas  H.  Cooper,  there  is  no 
disp'te.  He  testified— Kecord,  lH;i7,  lines  V2  to  C)!!— that 
he  went  to  California  in  is.n!),  since  which  time  ho  liaa 
continuously  resided  in  that  State,  with  no  intention  of  le- 

4°  moving  bis  residence  or  of  returning  to  his  country  of 
original  allegiance. 

The  residence  of  Alexander  Frank,  since  1889,  is  be- 
yond dispute.     He  testified — Record,  2000,  line  18: 

"  Q.  Did  you  dean  them  up  iu  1889,  the  next  year  ?  A.  Yes,  witLiu 
•'  a  very  nhort  time. 

"  Q.  And  since  that  time  voi;  have  resided  in  San  Francisco  ?  A.  I 
"  have  resided  at  San  FranoiHco." 

Whatever  the  controversy  may  be  as  to  bis  domicile 
50 prior  to   1S89,   that  testiinouN'  establishes   the  fact  that 
since  1X89  he  has  resided  continuously  within  the  juiisilic- 
diction  of  the  United  States  of  America. 

Alexander  McLean  has  resided  in  the  City  of  San  Fran- 
cisco ever  since  1889 — Record,  1073,  line  5.5: 

"  Q.  Have  yon  been  in  Han  Francisco  lately  ?  A.  I  left  San  I'liin- 
"  Cisco  about  six  weeks  ago. 

"  Q.  How  long  were  you  there  ?  A.  1  have  been  away  from  tbcre  u 
"  good  deal  ;  I  have  been  there  since  1889." 

60  Our  learned  fritMid  Mr.  Beique,  at  page  121  of  his  mal 
argum<Mit,  referring  to  Alexander  McLean,  says:  "More- 
over, there  is  no  evidence  in  the  Record  which  show.s  the 
ac(piisition  of  domicile  other  than  his  domicile  of  orij;in." 
If  your  Honors  please,  tlio  domicile  of  origin  was 
Nova  Scotia,  and  the  learned   counsel   is  in  error  when 


of  Han  Fiaa- 


717 

(Mr.  Warren's  Argument.) 

Ill  says  that  there  is  no  evidence  to  show  that 
Alexander  McLean  established  any  other  domicile, 
li.canse  here  is  the  testimony  I  have  just  read 
fi(irn  the  Record,  showing  that  he  has  lived  in  San  Fran- 
ci-^co  ever  since  tiie  year  lS8i>,  and  there  is  additional 
tc-timony  concerning  his  residence  in  the  United  States 
of  America  prior  thereto,  for  he  took  out  naturalization 
,o|i,i|u'rs  in  the  City  of  Boston  in  the  year  1882.  At  page 
l(i7r)of  the  Record,  line  38,  he  testified  that  he  resided  in 
Histon  in  the  year  that  he  took  out  his  papers,  and  that 
lie  had  resided  tliere  piioi-  to  that  time,  and  resided  there 
aiier  the  year  1SH2. 

Ill  the  deposition  found  in  the  American  Reprint  of  the 
I'jiiis  proceedings,  Vol.  3,  page  436,  he  states  in  answer  to 
tills  question: 

••  (}.  What  is  your  name,  age,  residence " 


20 


Mr.  Beique: — That  is  not  in  tlie  Record,  is  it? 

Ml'  Warren:  -lam  reading  from  the  American  Reprint, 
Vol.  3,  page  43tt.  It  was  read  into  the  Record  at  page  462 
—not  read  into  the  Record,  bul.  used  for  the  purposes  of 
ciiiss  examination  of  this  witness  by  our  learned  friend. 

•'  <^.  What  is  your  name,  age,  residence  and  occupation  ?"  He  re- 
••  plies: 

•  My  name  is  Alexander  McLean;  age,  32;  residence,  San  Francisco; 
"  oi'cniiatiou,  mast(>r  mariner." 

•'Q.  Are  you  an  American  citizen  ?    A.  lam." 


30 


The  date  of  that  deposition  is  February.  1892.  It  was  a 
(lo|i(>sitioii  taken  for  the  purposes  of  the  Paris  Tribunal  in 
till'  year  1S02,  as  shown  on  page  445  of  Vol.  3  of  the 
Ainoiiran  Reprint,  on  which  page  is  found  a  certificate  of 
the  .Notary  Public  that  the  "  Depositions  of  the  foregoing 
wiliit'sst's  were  taken  on  the  3d  day  of  February,  1802, 
at  Ills  office  in  the  City  of  San  Francisco." 

Daniel  McLean,  !t  was  contended  in  the  oral  argument 
of  till'  learned  senior  counsel  for  (ireat  Britain,  was  not 
(Idiuiiiled  in  the  United  States  in  I8i)2,  and  was  not  an 
'*°Aiiieiican  citizen  in  1H!)2. 

Mr.  Peters:~l  made  no  such  contentions  as  to  1892. 

Mr.  Warren:— Daniel  McLean  made  an  affldavit,  found 
at  pajie  1S21  of  the  Record,  line  50,  which  affidavit  was 
iiiaile  ill  the  City  of  San  P'rancisco  on  the  7th  day  of  Sep- 
teiiilicr,  1.S92  (line  38,  page  1821): 

■'  l)i>|)()sition  of  Daniel  McLcau,  8ealer  (master).  State  of  California, 
"  City  and  County  of  Sau  Francisco,  ss. :  Daniel  McLean,  being  duly 
■  sworn,  deposes  and  says  : — 

■   I  urn  42  vears  of  age  and  am  master  mariner  by  profession." 

riiero  is  a  sub-head  which  [  take  to  have  been  inserted 
In  tlie  person  taking  the  testimony  which  reads:  "Occu- 
pai  idii  -experience." 

Tlie  deposition  then  continues:  "  I  reside  at  San  Fran- 
cisfii  and  am  a  naturalized  American  <-itizen."  "I  am," 
iiiii  "  was,"  as  contended  by  the  learned  counsel — "a 
naturalized  American  citizen." 

i'lie  learned  counsel,  I  remember,  .stated  in  reply  to  the 
(|ii<tion  by  the  Commissioner  on  the  part  of  the  United 
6oSt,ites,  that  that  referred  to  tlie  fact  that  Daniel  McLean 
had  atone  time  taken  out  papers  in  the  United  States,  but 
iicLilected  to  mention  the  fact  that  he  subsequently  had 
taken  out  British  papers.  The  afiidavit  reads  "  I  am '' a 
natiii  ilized  American  citizen  and  "  reside  "  in  the  City  of 
San  Francisco.     With  reference  to  Daniel  McLean,  there 


TT" 

:;  1         1 

i^iMli, 


■^-    1!' 


W 


718 

(Mr.  Warren's  Argument.) 

is  not  a  line  of  testimony  in  the  Record  that  he  t'\ 
changed  his  domicile  from  the  year  1892,  including  t 
entire  period  from  18l>2,  to  the  convening  of  the  Conim 
sion  at  Victoria.  He  has  since  heeu  sailing  out  of  the  pi 
of  San  Francisco  continually. 

There  is  no  testimony  in  the  Record  that  Daniel  McLc; 
ever  was  domiciled  at  Victoria.  His  brother.  Capta 
ID  Alexander  McLean  testified — Record,  1071,  line  65— tli 
Daniel  McLean  lived  in  Boston  prior  to  1882.  The  fa 
that  Captain  Alexander  McLean  is  here  referring 
Daniel  McLean,  is  established  by  the  Record,  1074,  line  .'i 
The  only  testimony  in  the  Record  showing  the  resident. 
of  Daniel  McLean  in  ]8S!»,  is  Record,  421,  line  44: 

"  Q.  Now,  wore  you  out  of  the  country  or  away  from  the  coast  wli^n 
'•  the  'Triumph  '  was  soUl?    A.  Yea,  sir. 
"Q.  Where  were  youy    A.  I  was  in  Han  rranciaco. 
"  Q.  The  '  Triumph,'  as  you  understood  it,  was  sold  up  here?    A. 
Yes,  sir. 

"Q.  You  said  your  lirother  was  in  South  America,  did  you  uniy 
A.  He  was  in  San  Francisco  at  that  time. " 


1-- 

111 

111 

U 

■1 
10 


20 


The  ••Triumph"  was  sold  October  11,  1889  (Record. 
1431,  line  ♦iO). 

Daniel  McLean  made  an  affidavit  relative  to  the  wai  n- 
ing  of  the  •'Triumph  "  in  1889,  and  in  that  affidavit  did 
not  state  that  he  was  a  resident  of  Victoria  (Record,  141^, 
line  10). 

Andrew ,).  Bechtel  testified  (Record,  im,  line  1),  that  liu 
30 had  resided  in  Victoria  for  twenty-three  years;  but  this 
testimony  is  contradicted  by  his  own  affidavit.  Exhibit 
No.  4.  U.  S.  Claim  No.  1,  Exhibits,  page  49,  in  which  lie 
stated  "  I  am  a  citizen  of  the  United  States;  that  my  j)n's- 
ent  usual  place  of  residence  or  abode  is  Auburn,  in  the 
County  of  Placer  and  State  of  California." 

This  affidavit  was  dated  the  9th  day  of  February,  is'.m, 
although  the  date  printed  in  the  Exhibit  is  February  n. 
1896.  The  correction  was  consented  to  (Record,  p.  577, 
line  58). 
40  This  affidavit  must  be  taken  a*i  conclusive  evideuce 
against  Bechiel. 

In  the  morning  I  shall  consider  first  the  question  of  the 
ownership  of  Andrew  J.  Bechtel  in  the  claim  of  the  "  Car- 
oleua  "  seized  in  the  year  1886. 

The  Commissioner  on  the  part  of  the  United  States:-  It 
is  understood  that  we  sit  from  half-past  ten  o'clock  to 
morrow  morning  until  half-past  one  o'clock. 

At  half-past  four  o'clock  the  Commissioners  rose. 


Commissioners  under  the  Convention  of  February  8, 

1896,  between  the  United  States  of 

America  and  Great  Britain. 


H 


the  coast  when 


^e  evideuce 


10 


JO 


Tjegislative  Council  Chamber,    Provincial  Buildings, 
At  Halifax.  N.  S.,  Sept.  17th,  1807. 

At  10.30  o'clock  A.  M.  the  Commissioners  took  their  seats: 

Tilt'  Commissioner  on  tiie  part  of  the  United  States:— 
Tin  CoinmissioniMs  are  of  the  opinion  that  it  is  suflficient 
tli;ii  the  protocols  for  the  sittings  at  Halifax,  until  fiu'ther 
dilution,  be  signed  by  the  Secretary  only,  except  those 
f.ii  tiie  first  sitting  and  the  last  sitting.'and  direct  that 
till-  he  entered  on  the  piotocol. 

Ml.  Bodweli:--!  beg  to  hand  to  your  Honors  the  charts, 
I  ivfcrence  to  which  I  made  the  other  day,  and  which 
cliaits  show  the  sealing  grounds.  I  have  given  a  copy  to 
iiiv  learned  friends  on  the  other  side. 

Till'  Conunissioner  on  the  part  of  the  United  States:— 
I  .Mil  nuuh  obliged  to  ycm,  Mr.  Bodweli,  for  the  con- 
V(  iiitnt  manner  in  which  these  charts  are  arranged. 

Ml.  Warren:  — If  your  Honors  please,  I  had  estalilished 
lit  lure  closing  last  evening,  that  every  American  citizen 
wild  is  claimed  l»y  the  United  States  to  have  been  an  owner 
(ir  ii;ut  owner  of  the  bottom  of  any  of  these  ships  or  the 
.^i^M  nture  of  any  of  these  ships,  was  beyond  any  controversy 
iloniiciled  within  the  territoiy  of  the  United  States  in  the 
veal  ISSlt,  with  the  exce|)tion  of  Andrew  J.  Bechtel,  and 
the  loutradiction  in  his  testimony  was  brought  to  the  at- 
tcniion  ot  tlie  High  Couiinissiouers;  and  it  was  alsoes'  b- 
li^ll^(l  that  from  the  year  18Kit  until  the  time  of  the  sign- 
ini;  (if  the  convention  in  February,  ISjttt,  they  were 
(luiniciied  within  the  jurisdiction  of  the  United  States  of 
Aiiii'iica. 

The  Commissiuner  on  the  part  of  tiie  United  States: — 
•*>^\Va>  Andrew  J.  Bechtel  domiciled  in  the  Uniteil  States? 

Ml.  Warren:—!  made  that  exception  with  regard  to 
liet  litel.  Andrew  J.  Bechtel  testified  tiiat  he  had  resided 
ill  \iitoria,  but  his  attidavit  in  which  he  stated  that  his 
n-ual  |»lace  of  ivsidence  was  in  the  State  of  California, 
u.i-  also  Itrought  to  your  Honor's  attention. 

Ml.  Warren:  Article  1  of  the  Convention  of  February, 
hiMi.  (irovides: 

•  riic  liigli  I'outnu'ting  jMirties  ngroe  tlint  all  olnims  ou  account  of 
lii'ssustiiiiioil  l)y  jxTsoiis  iu  whose  bohalfdreiit  IJritaiu  is  entitled 


■'  t»'  » 
•■  1.1 1 

■■uili 
••  nit 
■■«ll. 
■■thr 

■in  I 


liiu  couiiii'usatiou  from  tho  Uniteil  States,  aiitl  arising  by  virtue 
111'  treaty  aforesaiil,  the  awant  and  findings  of  the  said  tribunal  of 

tiation.'as  also  the  additional  claims  sj)eeitied  in  thooth  paragraph 
he  i)reumble  hereto,  shall  be  referred  to  two  commissioners,  one  of 
1111  sliall  be  appointed  bv  Her  iiritanuic  Majesty,  and  the  other  by 

['resident  of  the  Uuitcil  States,  and  each  of  whom  shall  be  learned 
aw." 


•  /v  ciitilh'd  to  claim  comi)ensation,"  if  your  Honors 
|i|ia-i',  and  that  is  all  1  desire  to  say  witli  reference  to  the 
loii-tiuction  and  interpretation  of  that  clause  of  the  Con- 
'«V(iiiioii.  I  only  insert  it  here  for  the  purpo.se  of  having 
it  111  tore  the  minds  of  your  Honors,  at  the  same  time  and 
jilai' ill  tiie  oral  argument  with  the  testimony  establish- 
iim  I  he  fact  that  every  American  citizen,  witii  the  e.xcep- 
limi  nf  Andrew  J.  Bechtel,  who,  it  is  claimed,  is  iuter- 
1^1'  1  ill  any  way  whatever  in  the  claims  before  this  con- 


I 


n 


1 


72(» 


(Mr.  Warren's  Argument.) 

vention,  was  l)i>yon(l  any  controversy  (lt)inic;ile(l    wji' 
tlie   territory   and  jurisdiction   of   the   United   St;iti'>- 
America  at  tlu>  time  of  and  for  a  consiileralde  nuiiili." 
years  prior  to  the  time  of  the  sij;ning  of   this  Coiiveiin 
under  which  your  Honors  sit. 


The  testimony  hearing  on   the  residence  of  theciti/ns 

ipof  the  United  States  who  are  interested  in  the  cl.iniis 
hefoie  this  High  Commission  is  compiled  at  jtagea  lti:i  tn 
17t)  inchisive  in  our  |>rinted  arginnent.  The  testini.ny 
there  collectetJ  t-stahhshes  tliat  Thomas  H.  (.'oopci  li nl 
resided  in  tlie  city  of  San  Francisco  evttr  since  the  \r;ii 
18oSt  with  no  intention  of  changing  hisdomicile.  Tin  tis 
timony  as  to  tlie  domicile  of  Andrew  J.  Heclitel  at  the 
time  of  the  seizine  of  tiie  **  C'ai-oleiia  "  in  1  -iSO  and  ot  the 
seizineof  the  '*  Patlitlnder"  in  issit  and  ISito  is  conti.nlic. 
tory.     He  testified  that  he  had  resided  in  Victoria  coniin 

2QUously  for  twenty-three  years (Hecord,  H.'i),  l)ut  swoiv  in 
the  atHdavit  dated  Februaiy  !•.  isito  (Kxhil)its,  p.  rti. 
that  his  usual  place  of  residence  oi  ahode  was  Auhiu  n.  in 
the  State  of  California. 

To  the  citations  of  testimony  made  with  reference  In  liio 
residence  of  Andrew  J.  tJechtel  sliould  be  adiied  tlnM- 
liecord  14S.  lines  ♦!  to  17;  Kecord  1.")<!S.  line  20;  lieconl  ll'.i, 
Hue  1;  Kecord  li't!.  line  :io;  Kecoid  1-27.  line  17. 

The  testimony  t'stahlishes  the  residence  of  Alexaiilii 
McLean  to  have  been  in  Victoria  at  the  time  of  the  sei/uiv  of 

,Q  the  "Onward"' m  l.sstl,  and  the  vvarningof  the  "Favoui  iti;" 
but  the  testimony  does  not  establish  that  he  was  peinn 
uently  domiciled  at  Victorin.  for  he  ti'stified  (Record  ^:l|, 
line  ti;^)  that  although  he  resided  in  Victoria  a  portiun  of 
the  time  between  l.ss4  and  Is.h!»,  that  he  was  back  .iiul 
forward  betsveen  Victori. I  and  San  Francisco.  Tlie  diily 
evidence  that  est-ibbshes  a  legal  domicile  is  evideiuc  of 
|)ermanent  residence,  with  no  intention  of  returning' tn 
the  country  of  allegiance,  and  this  testimony  doe.s  imt 
e.-tablish   a   legal    donncile    in  Victoria.     The  testiuidiiy 

,Q relating  to  the  residence  of  Alexander  McLean  is  cjin- 
piled  in  our  aiguinent,  page  1  (■4,  andtotiie  citations  llnii' 
found  sliould  be  added  these:  Kecord  s!»s,  line  45;  Kxliihit 
No.  5,  Claim  No.  :!,  p.  7ti  of  Exhibits;  Kecord  4(h»,  lim.  i; 
Kecord  4-JS.  line  1;  Record  42!»,  line  07;  Kecord  404,  liinL'T; 
Kecord  lit;". I.  line  T)'.*. 

The  only  testimony  in  the  rec(jrd  relating  to  the  doinicil 
of  Daniel  McLt;an  establishes  his  domicile  at  San  Kiiii- 
Cisco  in  the  year  iss'.t,  the  time  of  the  waiiiing  <if  tlit^ 
"Triuniph,"  of  which  be  was  the   owner   of   oiie-tliinl. 

-QThis  tf^stimony  is   found    at    Kecord   421,  line  4S.  which 

'  sliould  be  lead  in  connef'tion  with  Kecord  14:il,  line  iin. 
'I'luse  references  to  the  record  should  be  added  to  the  lef- 
eivnces  found  on  page  17:?  of  the  ]trinted  argument  n|  the 
United  States  (Hecord,  lo71,  line  t;.");  Kecord,  1074,  liiir  Cii; 
Kecoid,  1'.».">1,  line  .")!»;  Kecoid,  I41S,  line  lo;  Kecord,  l','."i7, 
lino  ;!.">;  Record,  tlS'.i,  line  22). 

The  testimony  relating  to  the  re.sideiice  of  Alexamler 
Frank  in  the  years  lss«  and  lf^S7.  and  ISMt,  is  all  roii- 
taiiied  in  the  attidavits  found  at  pages  2o7  to  214  inclii>ive 

6o''f  Kxbibits.  and  the  testimony  of  Frank  at  Jiecord,  li''.':^, 
from  that  to  2(tnl.  inclusive.  There  is  no  evidenc(.'  that  ho 
had  a  legal  domicil  in  the  City  of  Victoria  in  any  of  these 
years.     A  commercial  domicile  is  not  sufficient. 

The  counsel  for  Great  Hritaiu  nowhere  cites  any  Ir^li- 
mony  establishing  that  Frank  was  domiciled  at  Vict.iija 
at  the  time  of  the  various  .seizures. 


721 


m^ 


(Mr.  Warren's  Arguinont.) 

Ri'fore  eiitcriiijj;  upon  tlio  discussion  of  the  quostion  of 
t.H  t  iiH  to  whether  Andrmv  J.  Mechtel  owniul  ono-lialf  of 
til.'  "Carolona"  and  "  Pathfindur,"  I  desire  to  ref»'r  to 
11  i'.;e  li'ti  of  tiie  oral  arj^unieiit  at  Halifax,  made  hy  tho 
ti  lined  counsel,  Mr.  Hei()ue.  He  contended  "under  the 
j;i  itish  Munic^ipal  law,  British  subjects  only  are  «>ntit!ed 
tiown   British  registered  vessels,  and  any  contravention 

lOi'i'iMiites  ipso  J'neto  as  a  forfeiture  of  the  vessel  to  Her 
>l,ijesty."  The  learned  counsel  then  road  the  sections  of 
till'  statute  upon  which  he  liased  this  arsufuent.  This 
o<  Uentioii  lias  not  heen  fortified  hyhiin  hy  any  authority 
liiause  no  authority  could  he  found  to  sustain  such  u 
iniiiciple.  The  Municipal  statute  of  (ireat  Britain  reipiires 
n  .iiDR'lAi-  proceedifKj  and  ttrdvr  of  forj'i'ifure  The  argu- 
iiiriit  itself  is  erroneous.  If,  they  say,  .\ndre\v  J  Bechtel 
(iwiied  the  "  C'aroicna  "  at  the  time  she  was  legistered,  or 
(l^^  iieil  a  pait  of  her,  then  //kso foito  she  liecame  the  prop- 

201  ity  of  the  Cirovernment  of  (ireat  Britain  and  when  she 
WIS  si'ized  in  l-SSti  hy  the  authorities  of  tlie  United  States 
vvilliin  the  waters  of  the  Berin<j  Sea,  the  property  of  Au- 
(livw  J.  Bechtel  was  not  seized,  for  the  "•Oarolena"  was 
t  lull  the  property  of  the  Government  of  (ireat  Britain. 
Is  the  (xovernment  of  (Jreat  Britain  here  advaniiing  a 
(hiiiii  in  its  own  behalf,  for  the  value  of  the  "  Carolena  " 
aiici  the  profits  of  her  venture,  or  a  claim  in  behalf  of  An- 
(livw  J.  Bechtel  who  did  not  own  the  vessel,  according  to 
the  contention  of  the  learned  counsel,  at  the  time  she  was 

joscizt'd?  Can  the  Government  of  Great  Britain  he  heard  to 
advance  at  one  and  the  same  time  the  contention  that 
.Andrew  J.  Bechtel.  Alexander  McLean,  Daniel  Mtd.ean 
and  Alexander  Frank  did  not  own  the  bottoms  of  these 
si  lips  because  they  had  been  forfeited,  when  the  vessels 
were  registered,  to  the  Government  of  Great  Britain,  and 
a  claim  in  beiialf  of  these  very  individuals  for  damages 
sustained  by  reason  of  the  seizur<'8?  We  say  that  such  an 
ai'^ument  is  absurd.  The  Government  of  Cheat  Britain  is 
iidt    before   this   High   Counnission  as  a  claimant  for  the 

40 value  of  the  "Caiolena  "  or  for  the  value  of  any  other 
sliip.  no  matter  what  its  name.  The  article  of  the  Con- 
viiitioii  which  I  have  read  provides: 

■' Thnt  the  High  CoutructiiiR  parties  agree  tlmt  all  claims  on  ac- 
•■  ciniiit  of  iujury  sustaiued  hi/  persons  hi  irhnse  Iwlinlf  Great  lli-i/iiin  is  en- 
"  tilli-d  to  cliiim  compeniui/ion  from  the  Uuileil  Sinks  sliiill  ha  yferri'i/  to  two 
"  Oiiitmissioners. " 

Is  tbeie  any  reference  there  to  the  claim  of  the  Gov- 
ti iniieiit  of  Great  Britain  which  now  contends  under  these 

;oi''',^i-^tiy  acts  to  have  owned  these  vessels  by  virtue  of  the 
foilViture  dating  back  to  the  time  of  the  false  registra- 
tion; Is  there  any  reference  there  to  tlu' right  of  thoGov- 
t'lniiit'iit  of  Great  Britain  to  claim  compensation  from  the 
I'liit'^d  Juiies  foi'  damages  arising  from  the  seizure  of  these 
vessels? 

(ireat  Biiiain  either  has  to  take  one  i)0siti()n  or  the 
cilliiT.  If  she  makes  a  claim  before  this  Gonunission  in 
till'  name  of  these  citizens  then  has  she  waived  her  right 
el  tdifeiture.     If  she  has  forfeited  the  ship  and  then  pre- 

Co'-'iitetl  a  claim  in  the  name  of  these  citizens  before  this 
llii;li  Commission,  then  that  nation  is  estopped  from  deny- 
ing; that  the  claimant  owned  the  vessels.  The  two  posi- 
til  Ills  are  antagonistic.  The  Government  of  Great  Britain 
I  iniKit  advance  a  claim  in  the  name  of  private  individuals 
fur  damages  sustained  by  reason  of  the  seizure  of  ships, 


(.  ,. 


■It-. 


•n     \\  I 


7*J- 


(Mr.  Warren's  ArRument.) 

aii(]  at  the  Hanic  tiriu>  prost'iit  th**  arKnnn'nt  by  U>arii  | 
counsol  that  tlicHo  sanio  iiulividualHclid  not  own  IIiohIiji  , 
bpcanso  tlu'V  had  boon  foif«'it»>d  to  th«»  OovtM'nniciit  .f 
Great  Britain  by  virtne  of  a  falHc  registration. 

OWSKUSmi"  OK  THE  "  C'akoi.kna." 

•o  I  shall  first  conHider  the  (|nefltion  of  facias  to  whetli  r 
William  Munsie  alone  owned  th<*  "  Carolona  "  at  the  tiiu" 
she  was  seized  in  issti.  or  whether  she  was  the  ,  )int  iinij 
equal  i)roi)erty  of  William  Mnnsie  and  Andrew  J.  Hecht'  I, 
a  citizen  of  the  I'nited  States  of  America. 

J  shall  not  weary  yourllonorsby  reading  in  detail  llu' 
testimony  of  lhe.se  witnesses,  for,  as  I  have  said  hereto- 
fore, 1  presume  we  all  know  this  Record  and  particularly 
that  we  know  the  testimony  referring  to  the  relations  ix- 
isting  between  Andrew  J.  Ik'chtel  and  VVilliam  MiniMi'. 
20Liiless,  therefore,  the  evidence  is  called  for,  I  shall  ii<>i 
read,  but  will  content  myself  with  the  as.sertion  that  tlir 
Record  discloses  the  facts  which  I  shall  now  disciiss  At 
the  recpiest  of  the  learned  counsel,  however,  I  will  read  at 
any  time  the  evidence  to  substantiattMiny  statement  of  fii.t 
made. 

Mr.  Bodweil:— If  my  learned  friend  would  mention  tin' 
|)a^e  of  the  evidence  upon   which  he  relies  for  his  stale 
ments,  we  could  then  look  it  up. 

Mr.  Warren:  -I  shall  then,  liecans(>  of  that  rec^uest,  real 
30 the  Record.     At  page  87,  line  ♦!,  William  Munsie  testideil 
in  answer  to  the  (piestion; 

■ '  Q.  Who  woH  the  owner  of  licr  wben  you  commonoed  to  buy  lier  V 
"A.  I  liolieve  Donald  Uniulmrt. " 

1  now  refer  to  ]tage  1022  of  the  Record,  where  the  test! 
mony  of  I'atiick  Ilickey  is  found.     Your  Honors  will  le 
member  the  extreme   dithculty  that  the  connsel  for  the 
United  States  bad  in  obtaining  the  attendance  of  the  wit- 
ness  Patrick    Hickey      You    will    remenit)er    tiiat    alter 

'^^searcbing,  as  appears  by  the  Record  during  a  petiod  of 
two  weeks,  and  aftei'  having  had  a  subpuiua  in  llio 
hands  of  a  iei)resentative  of  the  United  States  duriii.t,^ 
that  time,  we  disco veied  that  Patrick  Hickey  was 
shutting  himself  up  in  his  own  home  m  tlio 
City  of  Victoria,  and  denying  access  thereto  to 
any  person  whatsoever.  Hut,  haviug  obtained  his  appear- 
ance, what  did  be  testify  to^  l^atrick  Hickey  came  there, 
a  pel  son  without  any  interest  whatevt>r  in  the  deterniina 
tiou  of  the  niatteis  before  this  High  Commission,  not  ile 

5°siring  to  come  l)ocause  be  was  a  citizen  of  Victoria,  aihl 
presumably  acquainted  and  perhaps  connected  in  a  busi- 
ness way  with  William  Munsie;  but,  having  come,  tolil 
the  truth  and  testilied  at  line  .W,  Record  1U22: 

"  Q.  Wi>r<!  you  11  joint  imrchaser  with  Mr.  UrquUart?    A.  liuvcsicJ 
"  money  with  ('a))tain  Unjuhart. 

"  Q.  In  th('  purchusf  of  the  Bhij)?     A.  In  the  purchaHe  of  the  8l,i|i. 

"(J.  About  what  year  was  that?     A.  That  waH  iu  1884. 

"  (J.  To  what  extent  did  vou  furnish  money  in  the  imrchase  of  thu 
■•  ship?    A.  85(K). 
60     "  (J.  And  what  was  the  total  cost  of  the  shii)?    A.  I  was  giveu  to 
"  \iU(lerKtand  that  it  was  i?l,00(). 

"  Q.  You  furnished  half  of  the  purchase  price  as  yon  under.stn.iil 
"  it?     A.  Yes,  sir. 

"  Q.  You  wore  at  that  time,  I  think,  an  American  citizen?    A.  I  win. 

"  (j.  Did  that  have  anything  to  do  with  why  you  did  not  take  the 
"  interest  in  your  own  name?    A.  It  did. 


I  to  buv  her  V 


10 


:o 


72:j 
(Mr.  Wairon's  Argument.) 

"  i).  Thnt  WAR  thn  miRon,  was  it  not?    A.   That  wdk  tlin  renfinn. 
'   if.  Ami  voii  pnnthitmtd  Ikt  jointly  with  Mr.  Ur(|uiiitrt,  who  wi.    a 
■  lintiHh  Hudjt'ot?    A.   Y«m,  Mir. 

C/,   llow  lon^  dill   yon   nml    Mr.   lTri|uhiirt   ooiitinuo   to  own  tin 

•  ...  Iiooiicr  iinil  o|n'riit(>  hi-rV  A.  I  liolicvo  wn  inirchiiH(>(l  tho  vohhoI  iii 
'  till'  Nprinx  of  tKH4,  iind  in  tho  winter  of  1HH4  itiid  iNHfi.  I  think  it 
'  wiiM  in  thtt  luiinth  of  .hinuiiry,  ('ii|itiiin  ITninliart  Hold  tho  vohhoI. 

■   (/.   I'rior  to  tho  Hiil«>  of  the  vi^mhcI,  did  yon   innko  Homo  rupiiirH? 
'  \    Vt'N,  I  think  [  liiUKt honed  her. 

■  (,).  What  did  that  cost  the  coiKH-rny     A.   Well,  Hir,  I  don't  ronol- 

•  I,  it  tim  t'xact  anionnt,  bnt  I  l)i'li«vi>  it  van  abont  <flKH)  for  longthun- 

•  illj,'  till)  V(>HH»d. 

■  Q.  And  after  the  rcpairH  on  tho  vohhpI  hal  been  made,  iuolnding 
'  I  he  original  foHt  of  thi'  vuhhoI,  what  did  si""  '-'..nt  youV     A.  Well,  1 

'  .Inll't   rUl'ollpot  thl^  PXIIOt  COHt. 

■  (f.  About?     A.  Wi'll,  tli((  Bnm  iH  ontirolv  bovond  Miv  rocollection. 
().  WaH  it  about  #2,(MMiy     A.   W<i||,  Hir,  It  would  be  uaturolly  over 

■  Q.  When   hIio  wok  sold,    what  was  Hho  Hold  for?    A.  I  couldn't 
!■  II  you. 

"  (^.'  You  were  adviHed  by  Mr.  Urquhart?    A.   Ygh.  sir." 


And  (•(iiitiiiuini;  iit  Record  1023,  line  50: 

•  ().  Now,  yon  got  Homi'  of  tho  proceodH  when  tho  vohhoI  wan  sold, 
••  ilid  you  not?    A.  I  don't  know  that  1  did,  Hir. 

•■  q'.  WoU,  wbh  tho  sale  aocountod  to  you?  A.  The  salo  was  mad o 
'■  hv  ('a|ilain  Urquhart. 

•■(.).  Who  to?    A.  I  underHtood  to  Mr.  Munsie. 

"  (.).  Now,  do  you  remonibcr  what  Mr.  Urquhart  told  you  he  had 

•  received  for  the  solioouor?    A.  I  do. 

"  Q.  What  was  it— Reoord  1024,  lino  3.     A.  Captain  Urquhart  ren- 
•'  ili'reil  mo  a  statement. 
}0     ■•  c^.  Have  you  got  tho  Htatemont?     A.  No;  there  was  no  writing  at 

■  nil,  lie  rendered  me  :?1,00(>. 

"  Q.  For  your  half?    A.   Ah  he  told  mo  it  waH  for  tho  half. 

■  ().   S/iilf'tl  to  you  Hint  he  Hold  it /or  $2,000  and  iioiir  liiil/  was  $1,000? 

■  A.   lie  so  xtdled. 

■  (.).  And  lliiil  ivds  the  Kale  to  Mr.  Munsif?  A.  So  far  nx  I  can  under- 
■■  si' I  lid ;  as  I  undemtood  it  at  thf.  time." 

Now,  then,  whon  William  Miinsie  pnrdiasod  that  ves- 
sel, tilt'  "  Caiolena,"  C'ai>tain  Uiquhart  was  not  the  only 
owiH'f  of  her.  Patrick  Hickey,  a  citizen  of  the  United 
4oStal('s  of  America,  at  that  time  was  owner  of  one-half,  he- 
(■iiiisc  he  states  that  in  the  month  of  January,  ]SS5,  Cap- 
tiiiii  Urquhart  sold  that  boat  and  on  the  g.'ith  of  January, 
js^.i.  the  tiist  bill  of  sale  from  Captain  Urquhart  to  Will- 
iam Munsie  was  executed,  as  apjiears  by  the  l)ill  of  sale 
u iiich  is  an  exhibit.  What  does  Patrick  Hickey  testify 
thcv  sold  that  vessel  for?  He  says  he  realized  for  his  half 
Hh'sihii  of  fJ.OOO. 

Till  n  again  to  page  87  of  the  Record,  line  82,  I  read  from 
the  evidence  of  William  Munsie: 

•"       'M^.  When  you  werebuyingthe  one-third  and  Matthewson,  another 

•  iPMc-third  from  Captain  Urquhart,  was  there  an  v  vahiatiou  put  on  the 

■  vessel  at  that  time?    A.   Yes,  Hir;  about  83,800." 


A 


Three  thousand  eight  hundred  dollars,  if  your  Honors 
|il(';i'<el  And  Patrick  Hickey,  the  owner  of  one-half  the 
vi'.vmI,  beyond  any  doubt,  testified  he  received  $1,000  for 
hi.s  half.  But  the  learnetl  senior  counsel  for  Great  Britain 
suggests— I  hope  the  learned  senior  counsel  did  not  sug- 
pesi  it,  but  that  the  idea  originated  in  the  brain  of  Wi'ii;\m 
'^<i. Munsie— that  Captain  Urquhart  was  engaged  in  a  swind- 
ling operation  to  defraud  his  partner,  Patrick  Hickey,  and 
for  that  reasuii  the  peculiar  amounts  to  which  I  will  call 
yiMii  Honors'  attention  were  inserted  in  the  hills  of  saleex- 
<(  111  I'd  by  Captain  Urquhart  for  the  transfer  of  the  vessel 
to  William  Munsie  and  Matthewson. 


%k 


724 

(Mr.  Waiien's  Argument.) 

Do  your  Honors  see  tlie  fallacy,  if  I  may  use  that  tci  m, 
of  that  suggestion?  On  the  4th  day  of  Fehruary,  is^,,  jf 
I  remember  tJie  date  correctly,  Cantain  Unjuhart  sifii,.  il 
the  last  hill  of  sale,  and  parted  witli  his  entn-e  intercM  in 
this  vessel.  Admitting  that  the  figures  were  first  nsod  'nv 
the  purpo.se  of  misleading  Patrick  Hickey  as  to  the  (.  n 
sideration  obtained  by  Captain  Urquhart  frou)  the  s.iK  of 

lo  the  vessel,  I  beg  to  suggest  why  were  those  figures  insii  it  i] 
in  the  mortgages  that  were  executed  to  Andrew  J.  Htli 
tel?  Were  they  inserted  for  tlie  jnnpose  of  dt'ceiving 
Hickey  into  believing  that  the  vessel  was  sold  for  the  Mim 
of  ^2,i)00?  Captain  Urciuhait  had  parted  with  his  titli  to 
the  ship,  and  did  Captain  Urquhart  have  any  object  wliii- 
ever  that  would  induce  him  to  ])revail  upon  Willi  nn 
Munsie  to  continue  to  use  these  figures  in  mortgage-  in 
which  Captain  Urquhart  and  Hickey  had  no  interest  wlmt- 
soever?    The  argument  of  the  learned  counsel  for  (I iv, it 

20  Britain  is  so  fallacious  upon  its  face  that  it  is  not  woiijiv 
further  consideration. 

If  we  are  to  blacken  the  name  and  reputation  of  ;inv 
man,  let  us  tiu-n  to  the  living  rather  than  to  thodtni. 
Captain  Urquhart  has  departed  this  life,  enjoying,  wc 
trust,  and  for  aught  we  know,  we  believe,  the  contidcnci' 
of  his  fellow  citizens  in  Victoria.  William  Munsie  is  liv 
ing,  and  is  convicted  upon  the  face  of  this  record  of  givni^^ 
false  testimony.  If,  1  repeat,  we  are  to  blacken  tlie  npn 
tation   of  any  man,  let  us  choose  William  Munsie  Vwiw^, 

30  rather  than  Captain  Urquhart,  dead. 

The  first  bill  of  sale  from  Captain  Urquhart  to  Williain 
Munsie  \vas  dated  January  21,  1885,  and  the  :ill  of  >,il(' 
from  Urquhart  to  Matthewson.  who  was  a 
brother-in-law  of  Munsie's,  was  dated  tiie  same  day.  K;n  h 
bill  of  sale  conveyed  21  shares,  or  one-third  of  the  vessel. 
Captain  Urquhait  transferred  the  remaining  onelhinl 
which  stood  in  his  name  to  William  Munsie,  on  the  llli 
day  of  February  of  the  same  year,  and  Matthewson  trans. 
ferred  to  .Munsie  the  one- third  which  he  bad  jnuchased  tioni 

40  Uniuhart  on  the  I'.tth  day  of  June  of  the  same  year. 

Then  we  see  that  on  the  4th  day  of  Febiuary,  iss;"),  \\  il 
liani  Munsie  owiied  two-thirds  of  tlie"Carolena."  What  diii 
he  do  on  that  date?  He  executed  to  Andrew  J.  Bechtil  a 
moitgage  covering,  riot  bis  entire  interest  in  that  ship.  Imt 
covering  exactly  one-half  of  his  interest,  which  would  lie  at 
that  tinieone-tliirdof  thesbip.  What  was  thoconsideiatu  11 
expressed  in  the  mortgage?  ^M7,  if  your  Honors  plea-c. 
What  was  the  consideiation  expi'essed  in  the  bill  of  sale 
from  Cajttain  Uripibart  to  William  Munsie?    ^(WIT,  if  vnur 

50  Ibiiiors  please.  Exactly  the  same  amount.  .stitiT  niulii- 
plied  by  ;i  is  !?2,(iol,  or  we  will  say  .sl\(I(I(I.  i'atri  k  lliclu'V 
testitie'd  that  that  vessel  was  sold"  for  ^2,00(1,  liut  Williaiii 
jluiisi(i  swore  she  was  jjurcliased  f(,.'  ^;!,.S()0.  On  the  laro 
of  tliest'  |»apers,  whose  testimony  is  to  lie  belit"  1  Throw- 
ing aside  the  papi'rsand  acknowledging,  for  tln^  ...Keofiin'- 
senling  the  argument,  that  the  consideration  expressed  in 
the  paper  is  not  always  the  bono  Jidc  consideration,  let  us 
consid<'rwbat  motive  Patrick  Hickey  had  for  testifying  I  hat 
he  received  sl,(i(io  for  one  half  of  the  vessel.  He  had  110 
^'O  motive  whatever,  for  \hi  has  no  interest  in  any  claim  lie- 
fore  this  High  Commission.  On  the  other  iiand,  Willi  nn 
Munsie  had  two  motives  for  testifying  that  he  paid  si:'..-!"' 
for  the  ship.  Tlie  first  of  these  was  that  he  was  seeking 
to  covei'  up  a  transaction  between  himself  and  Andreu  .1. 
Hechtel,  a  citizen  of  the  United  States  of  America,  so  'liat 


725 

(M,v.  Warren's  Argument.) 

V  ur  Honors  would  he  induced  to  believe  that  Andrew  J. 
'[^iclitel  was  not  a  half  owner  of  the  "Carolena."  and  he 
li  111  the  additional  motive  of  desiring  to  increase  tiie  value 
111  tlie  ship  for  which  lie  is  clainiinf!;.  If  William  Munsie's 
ti--timony  is  false  when  he  swore  that  lie  paid  !?3,80O  for 
tiiat  vessel,  and  it  is  false  hricause  Patrick  Hickey  testified 

t!i:it  he  only  received  ^I.OOO 

10  Mr.  Bodwell: — Of  course  I  cannot  control  the  argument 
(il  my  learned  friend,  hut  I  would  suggest  to  him  that  it 
is  line  tiling  to  argue  that  a  man  isgiviiig  false  testimony, 
,ii!ii  another  thing  to  assert  that  it  is  false.  I  would  sug- 
yr-.\  that  there  is  away  to  conduct  this  argument  without 
ii-ing  offensive  terms. 

Mr.  Warren:  —If  your  Honor.^  please,  we  cannot  discuss 
tliis  transaction  in  delicate  terms.    William  Munsie,  I  shall 
.sjii.w  your  Honors,  is  not  to  he  credited,  and  I  shall  sub- 
si  iiit  late   thiit   statement  by  reference  to  the  testimony 
2ofiiimd  within  the  covers  of  this  Record. 

Mr.  Bodwell:--  If  you  will  say  in  your  opinion,  I  will  be 
sadsfied. 

Mr.  Warren:— If  your  Honors  please,  unless  I  read  from 
wune  paper,  I  am  always  stating  my  opinion. 

Mr.  Roilwell:  -Then  put  it  in  that  way. 

Mr.  Dickinson:— Unless  corrected,  the  theory  of  the  iin- 
tnitli  of  some  of  the  testimony  of  William  Munsie  may  be 
St  .lied. 

The  Commissioner  on  the  part  of  Great  Britain:-— I  think 
30((iinisel  cannot  be  I'estrainen  by  us. 

Mr.  Bodwell: — I  was  merely  making  a  suggestion  to  my 
learned  friends. 

The  Coimuissioner  on  the  pait  of  the  United  States:  — 
Counsel  cannot  he  restrained  unless  he  goes  outside  of  the 
li'i'iiiid,  and  I  do  not  see  tliat  Mr.  Warren  has  done  that. 

Mr.  Waiien:— If  your  H(mors  please,  I  believe  I  recog- 
ni/f  my  duties  before  this  High  Commission,  and  I  appro- 
CI  ii(\  ;)nd  am  not  insensible  of  the  fact,  that  this  High  Com- 
mission does  not  desire  to  bear  assertions  that  are  not 
4"loun(le(l  upon  the  testimony  found  within  the  Record.  I, 
iiiivvcver,  tai-'e  it  for  gianted  that  so  long  as  the  American 
(I'unsel  confine!  themselves  to  the  interpretation  and  con- 
si  iiiclinn  (U' the  facts  found  within  the  Record,  they  will  be 
li-li'iicd  t.).  We  have,  if  your  Honors  jilease,  such  emi- 
i^iit  authority  as  Lord  Stowell  to  sustain  our  right  to 
sjnak  in  this  way  of  this  class  of  witnesses.  1  read  from 
liiii  eminent  jurist's  opinion  in  the  case  of  the  "Odin," 
ir|'iiilt'(l  in  1  Christopher  Robinson,  [)ag(!  2i)'^■. 

•■  It  is  wild  conceit  tlmt  any  cinirt  of  juHticc  is  l)i>iut(l  l)y  more  swear- 
•     •  iiitr:  it  is  the  Hwoariug  credibly  that  is  to  conclude  its  judf?ment. 

■  riKiuc.stiouftl)ly  a  court  of  iidiiiiriilty  will  proceed  with  all  reiinisito 

■  .  nitiiin  in  deteriuiuiug  a^ivinBt  regular  papers  ronularly  Mupi)ortod; 
"  I'Ut  if  the  popers  say  one  thing  and  the  facts  of  the  case  another,  the 
"  Court  uiustexercisoaHoberjudffment  and  determine  according  to  the 

•  loiiimon  rules  of  evidence  to  which  the  proponderouco  is  due." 

!  am  discussing  what  the  papers  in  this  case  show  and 
whal  the  testimony  of  William  Munsie  shows,  com- 
jiiivd  with  vvh;\t  the  facts  developed  by  the  testimony 
(if  uninterested  witnesses  disclose.  I  am  endeavoring  to 
6oiiii|iicss  upon  your  Honors  that  we  do  not  believe  that 
\\  illiaiti  Munsie  was  swearing  credibly  when  he  testified 
a-  111'  did. 

'  said,  may  it  please  your  Honors,  that  the  mortgage  to 
1<|   litel,  dated  the  -ith  of  February,  1885,  expressed  the 


Ih 


:('ilt   -   it;,,       ^ 


72(i 


■■  ) 


(Mr.  Warren's  Argument.) 

same  consideration  that  the  bill  of  sale  from  Captmu 
Urquhart  contained,  namely,  $667.  William  Miinsie  un- 
dertook to  explain  away  the  inference  that  would  natm 
ally  be  drawn  from  tbat  fact,  at  Record,  page  81),  line  i  ;. 
I  am  quoting  from  this  testimony  more  in  detail  becan-,(j 
of  the  request  of  my  learned  friend  Mr.  Bodvvell,  and  I  ilo 
not  desire  to  go  outside  of  tliis  Record  for  material  to  vnn- 
iQvict  tbis  witness  of  giving  false  testimony.  At  Ketdnl. 
page  89,  line  41},  Munsie  testified  under  cross  examinatiin: 

"  Q.  What  I  want  to  get  at  is  this:  The  consideration  in  that  iiioit- 
"  gage  is  stated  at  §067;  was  8667  the  amount  you  actually  borrnw.il 
"  or  was  it  more  V    A.  I  borrowed  about  S50(). 

"  Q.  There  seems  to  be  the  same  amount  stated  in  all  these  dm  u- 
"  ments.  For  some  reason  or  another  it  was  put  in  here  at  J^OfiT,  l.iit 
"  that  was  not  the  real  transaction  ?  A.  I  think  the  amount  was  juit 
"  in  to  cover  interest.  I  would  not  bo  positive,  but  that  is  about  I  lie 
"  recollection  1  have  of  it." 

20     Examine  the  moitgage,  your  Honors,  and  by  its  own 
teims  it  does  not  bear  interest.    Th"  ii^ierest  clause  in  tiu^e 
mortgages  is  erased, actually  st  .ick.'n  i  d!  ,  and  yet  Williaiu 
Munsie  swears  8167  of  the  i^'.'t'j"  w,;         ^erted  to  covor  in 
terest. 

Now.  that  fact  is  wortby  of  tv(!isi(*eration.  The  peiiili- 
arity  of  tbese  mortgages  in  tbat  respect  was  first olis^eivcd 
by  tbe  Conuiiissionei  for  the  United  States,  I  believe. 
Tbat  moitgage  did  not  bear  interest.  Wby?  Becaus^e  we 
contend  it  was  not  considered  a  mortgage,  but  was  given 

30  for  tbe  jairpose  of  securing  tbe  half  interest  of  Andrew  ,J. 
Becbtel,  and  to  serve  as  some  indication  tbat  be  liad. 
rights  m  tbat  vessel  as  against  William  Munsie,  who  wa.-j 
registered  as  sole  owner. 

Our  learned  friend  Mr.  Beique  suggehted  tbat  tbe  mere 
fact  tliat  tbese  mortgages  were  recorded,  is  conclusive  evj. 
deuce  tbat  tbey  were  notbing  l)ut  mortgages.  Why, 
tbat  fact  alone  is  one  of  the  tbings  wbich  induces  nie  ii) 
tbiiik  tbat  Andrew  J.  Becbtel  was  partowner.  If  Andrew 
J.  Becbtel  bad  witbbeld  these  n)ortgages  from  recoid,  lie 

40  would  liave  notbing  on  record  to  show  as  against  AVi'liani 
Minisie  tbat  be  bad  any  rights  whatever  in  tiie  "Laid 
lena,"  and  if  tbey  bad  been  witbbeld  from  tli.'  rtx  \l  and 
tbe  ()uestioii  of  ownership  ever  arose,  tb-^  i'luii!  would 
naturally  inquire  why  they  were  kep*  oft"  t.'ie  •"  .i!i!.  In 
cases  of  fraud  where  ibattel  nioitgaget,  are  irivo:  ed,  !»  is 
a  rule  of  law.  1  think  everywheie,  and  ceit>>nlv  m  >  ,i;\ 
jurisdictions,  that  where  mortgages  are  kept  olt  tlio 
record,  it  is  sfime  indii'ation  of  fraud,  and  is  absolute  fraud 
under  some  circumstances  against  innocent  parties. 

50  This  mortgage  was  for  tbe  sum  of  .^667.  William 
Munsie  had  paid  to  Captain  L'rquhart  5^1,:$;U  for  bis  Iwo- 
thirds  intei'ost  in  tbat  boat  up  to  that  date.  One  bait' of 
sl,;!;i4  is  sCitiT.  Therefore,  when  William  Munsie  ga^e  a 
niorlgai-'' for  ^'tiCu  on  one-third  of  that  si'ip,  not  on  tlu' 
two  thirds  which  he  held,  but  on  the  on;  bird,  he  gavea 
iiiortgage  covering  oiiehalf  of  bis  int-r-  ,,  fo;  exactly 
mie  hall  of  the  ainouiit  vvhich  bis  iiiteies  ]•  d  cost  limi, 
according  to  the  bill  of  sale,  and  accordi.";'  so  the  lesti 
nioiiy  of  Patrick  Ilickey. 

*''o  What  other  'icts  do  we  llnd?  On  the  ll>th  day  of  June 
of  this  same  \  -,  v,  \xs^>,  .'Junsit'  i»urcbased  from  Mattliew- 
soii  tin.' one-tl  r-l  interest  iii  the  "Carolena,"  which  the 
latter  b.nl  acirnred  fro'  ''.iptain  Urquhart  and  I'atiirk 
llirkey. 
Now,  if  tluie  peculiar  considerations,  as  suggested  by 


>*', 


727 

(Mr.  Warren's  Argument.) 

tlic  learned  counsel  for  Great  Britain,  were  inserted  in 
thisp  bills  of  sale  for  the  purpose  of  deceiving  Hickey,  I 
nsk  the  learned  senior  counsel  to  infoim  us  when  he  re- 
pliis  why  the  sum  of  $667  was  inserted  in  the  bill  of  sale 
fxrciited  by  Matthewson,  conveying  his  one-third  interest 
t(i  William  Munsie.  Was  Matthewson  interested  in  con- 
liiiuing  this  fraud  for  the  purpose  of  deluding  Patrick 

10 111' key?  Patrick  Hickey  and  Captain  Urquhart  had  no 
iiKUV  to  do  with  that  vessel  on  the  IDth  of  June,  1885,  than 
I  have  to  day.  They  had  parted  with  their  interests. 
Will  your  Honors  be  influenced  by  the  argument  that 
Mniisie,  who  bought  this  vessel  from  Urquhart  and 
Hickey — admitting  that  he  consented  to  the  inser- 
limi  in  the  bills  of  sale  frcin  Urquhart  of  a  ficti- 
tious amount  for  the  purpose  of  defrauding  Hickey — was 
XI  -reatly  interested  in  that  gioss  fraud  that  he  would 
vdluiitarily  continue  to  insert  these  fictitious  considera- 

2otiiiiis  in  all  instruments  conveying  or  affecting  the  title 
for  the  purpose  of  deceiving  Hickey  after  Hickey  and 
Iriiuhart,  the  parties  to  the  original  transaction,  had 
parted  with   their  entire  interest  in  the  vessel?    I  think 

lint. 

It  we  are  to  be  convinced  by  argumcMit  that  William 
Munsie  would  so  lend  his  off(nls  for  the  purpose  of  de- 
trauding  Hickey,  we  might  more  readily  believe  that  he 
is  now  endeavoring  by  false  testimony  to  conceal  the  in- 
terest of  Andrew  J.  Bechtel  in  the  ••  Carolena." 

;o  Tcople  do  not  act  so  consistently  and  gratuitously  for 
till'  purpose  of  maintaining  a  fraud  in  the  interest  of 
other  i)ersons.  When  a  fraud  is  sought  to  be  i)erpetrated, 
ill  some  way  or  other,  it  will  be  exposed;  and  if  a  fraud 
had  been  here  attempted  against  Patrick  Hickey,  at  this 
time,  it  would  have  been  brought  to  light  right  here  when 
Matthewson  sold  to  Munsie,  for  a  dilferent  amount  would 
have  been  inserted.  Did  Unjuhart  or  Hickey  have  any 
iii;lit  whatever  to  dictate  how  much  Munsie  should  pay 
and  Matthewson  receive,  or  Urquhart  have  any  interest 

40  whatever  in  causing  a  fictitious  amount  to  be  inserted  in 
thr  conveyance  from  Matthewson  to  Munsie?  I  think  not. 
Tiie  use  of  the  same  consideration  in  the  bill  of  sale 
from  Matthewson  to  Munsie  abundantly  and  conclusively 
establishes  that  amount  as  the  real  value  of  one-third  of 
the  "Carolena."  If  William  Munsie  testified  falsely  re- 
jiaiding  the  consideration  inserted  in  that  bill  of  sale  when 
he  said  it  was  not  the  real  consideration,  he  swore  falsely 
111  ( cpiinection  with  the  consideration  expressed  in  each  of 
the  other  conveyances,  and  the  mortgages,  and  his  testi- 

yinioiiy  should  be  stricken  from  tht*  Hecord,  and  the  con- 
trary of  the  proposition  for  which  he  contended  found  by 
your  Honors. 

Munsie  acquired  on  the  llHh  day  of  June,  1886,  the  re- 
iiiainiiig  one-third  of  the"  Carolena."  On  that  date  ho  was 
registered  as  the  sole  owner,  if  your  Honors  please,  of  the 
entile  ship,  that  is,  beheld  the  paper  title  to  6-t  shares. 
What  (lid  he  do  on  the  l!>th  day  of  June  when  he  held,  as 
tl  •  papeis  show,  title  to  the  entire  vessel?  He  did  exe- 
cn'e  on  the  4th  day  of  February,  when  ho  owned   two- 

iioliiads  (tf  the  vessel  for  which  he  liad  paid  !i(l,;{IU,  a  inort- 
f,'a,i;e  covering  one-third  to  Andrew  J.  Bechtel  for  ^6f)7  as 
slated  in  the  instrument.  On  this  day  in  June,  iss.'),  he 
e.\(  1  iited  another  mortgage  to  Andrew  J.  Hechtel,  and  for 
Imiw  much?  He  canceled  the  mortgage  for  ^6(>7  and 
si^ii'd  another  mortgage  for  the  sum  of  what!  one  half  of 


ikj 


H      t; 


If 


^ww 


728 


(Mr.  Warren's  Argument.) 
I?3,8()0  or  $l,!tOO?    No.     If  your  Honors  please,  he  exec  u: 


a  mortgage  whicli  recited  by  its  own  terms  that  it  wa--  ;.if 
the  sum  of  !?1,0(M),  and  what  did  that  mortgage  cdv.  ij 
Not  the  entire  ship,  but  one-half,  or  82  shares.  Pecn  iir 
transactions,  these,  that  in  every  instrument  tl.  le 
should  be  expressed  this  consideration  wliich  aj;i 
with   Hickey's  testimony  and   disagrees    with   Mniisi. 

10 that  in  the  mortgages  to  Andrew  J.  Bechtel  not  only  ' 
same    consideration    sliould  be    expressed,    but    exai 
one  half  of   the    interest    that   William   Munsie   had 
the  date  each  of   the  mortgages  was  in  turn   exocin 
shonld  be  covered.     I  reiterate  that  these  were  pecul 
transactions,  justifying  us  in  drawing  the  conclusion  ihit 
these  mortgages  were  nothing  more  than  receipts  sliuu 
ing  the  interest  of  Andrew  J.  Bechtel  in  that  ship    .ml 
conelnsively  establishing  that  he  was  an  owner  of  (iiii> 
half  of  the  bottom  of  the  "  Carolena." 

2o  Tliis  last  mortgage  for  l{>l,0(tO  by  its  terms,  does  not  l'i;u 
interest;  the  interest  clause  is  erased.  What  beside  th  n  is 
stricken  outi!  That  mortgage  does  not  become  due  at  ;>  , 
time;  there  is  no  date  stated  in  the  mortgage  when  it  .ail 
be  foreclosed;  no  time  s])ecified  when  Bechtt'l  shoul';  li.ive 
the  right  to  take  that  ship  unless  tlie  money  w.is  pnid. 
What  else  was  left  out  of  that  mortgage?  The  powci  of 
sale  clause  is  avoided  by  the  date  being  omitted.  Is  that 
an  indication  that  the  instrument  was  a  mortgage? 

William  Munsie  swore  that  in  the  first  mortgage  ^ilf,; 

30  of  the  |!(lt)7  was  inserted  to  cover  interest,  although  when 
examining  the  mortgage  we  discovered  that  it  did  not  licar 
interest.  At  the  time  of  the  execution  of  this  soidiid 
mortgage  the  sum  of  ^i,()0o  was  borrowed  accordiiij;  to 
the  testimony  of  Munsie  (llecord,  p.  S!>,  line  50).  VViiy.  I 
ask,  was  not  the  same  amount  inserted  in  this  secmid 
mortgage  to  cover  interest?  Tlie  mortgage  itself  was  I'di 
the  sum  of  ^l,On(»  and  the  amount  borrowed  accordin;;  to 
the  testimony  of  the  witness  was  ^l.nttO,  therefore  no  simi 
was  inserted  to  cover  interest,  and  by  the  terms  ot  the 

40  mortgage  itself  it  did  not  bear  interest.  This  fact  is  almost 
conclusive  against  the  contention  of  the  witness  that  tluse 
documents  were  hotia  Jhlc  mortgages;  but  let  us  refer  to 
the  testimony  of  Munsie  and  Bechtel  explaining  wiiy  tiie 
interest  clause  was  erased.  Munsie  testified,  Record,  page 
90,  Hue  7: 

"  Q.  Wfts  that  the  usual  aiiiouul  cliarpoil  at  that  time  ou  loan-;  of 
"that  iloacriiitiouV  A.  Yoh,  that  was  a  fair  rate  of  interest  iii  those 
"  dovs. " 


50 


Bechtel  testified,  Hecord,  l.")2.  line  \iO: 

"  Q.  Mr.  Bechtel,  whv  was  that  mortgage  expressotl  to  he  witlMUit 
"  interest?     A.  The  mortgage  for  SI, (MM)? 

"Q.  Yes,  sir.  A.  Well,  the  rate  of  interest  Mr.  Munsio  thi.iit;lit 
"  was  a  littlo  high  and  he  did  not  like  to  have  his  business  exiin'-tcl." 

But  our  friends  may  say  tliat  William  Munsie  in  onici 
to  register  this  ship  swore— William  Munsie  swore  that 
he  was  the  Ixiiia  fide  owner  of  the  entire  shares.  It  is  a 
wild  conceit,  I  repeat  from  Lord  Stowell,  that  im  re 
swearing  influences  the  judgment  of  any  court,  it  is 
6oHwearing  credibly,  upon  which  a  court  bases  its  judginnit. 

Some  receipts  were  produced— some  of  William  Mini- 
sie'srecei|»ts— showing  that  be  had  paid  interest  to  Bechtel 
on  this  mortgage.  Your  Honors  will  remember  tlmse 
receipts,      and     if     yon      will     take     the    trouble     to 


7i!lt 


,'>     * 


lli 


10 


20 


(Mr.  Warren's  Argutneiit.) 

n  i  I'osh  your  recollection  by  examining  them,  they 
wll  present  all  the  argument  that  is  necesssary.  I  hold 
tl.iin  in  my  hand.  Tliey  extend  over  a  period  of  five 
vi.irs.  Every  one  looks  just  like  every  other  one;  not 
ii  litference  in  the  pen  used.  They  are  numbered  from 
I  lo  1^  consecutively,  extending  over  a  period  of  five 
v  us;  tiie  same  printed  blank  used  for  all.  although  they 
(•'vor  a  period  of  five  years,  during  which  time  this  man 
I',!  I  htel  evidently  kept  one  receipt  book  for  no  other  pur- 
lii.-e  than  giving  receipts  to  William  Munsie  when  inter- 
t^i  was  paid.  Did  any  couit  of  justice  in  the  world  ever 
hi  ar  of  twelve  receipts  being  signed,  one  each  six  months 
fill  ring  a  period  of  five  years,  in  the  same  writing,  with  the 
iiaiiie  colored  ink,  the  same  pen,  and  ail  bearing  on  their 
fail',  every  physical  indication  of  being  exactly  the  same 
ai;v<  Does  the  learned  counsel  for  Uieat  Britain  suggest 
that  we  make  use  of  mild  and  refined  term:;  in  speaking 
^iich  transactions  as  these? 

Tlie  pfl'ort  of  William  Munsie  was  to  explain  away  these 
figures  in  order  to  increase  the  value  of  his  ship  and  con- 
cial  the  irterest  of  Andrew  J.  Hechtel.  He  was  one  of 
till'  tirst  witnesses  examined.  His  testimony  lomniences 
at  iiage  !>(!  of  the  Record.  He  attempted  to  do  whatif  To 
osiablish  that  Andrew  J.  Bechtel  was  not  interested  in  the 
'•  C'arolena,"  and  that  these  bills  of  sale  and  mortgages 
w  I  re  irregular  and  not  to  be  considered.  Why  did  he  re- 
i|iiist  the  counsel  to  allow  him  to  do  that?  The  burden  of 
,QliiiK)f,  if  your  Honors  please,  was  asserted  by  the  senior 
■^  ((Minsel  for  Great  Britain  to  be  on  the  United  States  to 
otablish  United  States  ownership,  and  that  order  of  proof 
was  maintained  in  every  other  claim.  But  Munsie  en- 
deavored at  the  opening  of  his  case  to  show  that  these  pa- 
piis  were  irregular  and  did  not  mean  anything. 

Thi'  reason  for  this  attempt  on  the  part  of  Munsie  is  ap 

|i  II flit.     As  early  as  issit,  the  claim  was  advanced  on  be- 

iiall  (if  the  United  States  as  set  out  in  V(il.  3  of  the  Amer- 

i(aii   Reprint,  page  4!t7,  tliat   the  '"Carolena"  was  partly 

.Qiiwiit'il  by  Bechtel.     1  read: 

••  Tlie  'Clnrolcna,'  tliough  uudor  the  British  flan,  was  ownod  une-Lalf 
•  liv  au  American  uamod  Bochtol,  who  furuirthod  also  tho  money  for 
"tlio  outtit.  Bot'htel  was  also  interested  in  the  British  sehoonerB 
■   •  Maiy  Taylor,'  '  Pathfinder  '  and  'Viva.'  " 


I 


■\ 


■  1' 
■,i'X- 


to  lie  witliniit 


Was  Andrew  J.  Bechtel  interested  in  the  "  Mary 
Taylor."  "Pathfinder"  and  "  V'^iva,"  your  Honors?  This 
rrinid  coiulusivt'ly  establishes  that  be  was.  and  it  is  fid- 
inilli'd  by  the  counsel  for  (iivat  Britain  that  he  was  inter- 

;ot-iid  ill  the  venture  of  every  one  of  those  ships.  Was  he 
al-ii  interested  in  the  "  Carolena,"  the  only  one  of  the  four 
vessels,  the  value  of  which  is  claimed  from  the  United 
Slates? 

This  letter  or  report  from  which  I  read  was  written  in 
the  ( ity  of  Victoria  by  T.  T.  VV'illiams,  in  October,  LSSD, 
fei  it  "hears  date  "  Victoria,  B.  C,  October  1st,  18S!>,"  as 
show  II  at  page  riUi")  of  that  same  volume. 

William  Munsie  then  was  notified  that  the  United  States 
\vi  le  |iroparing  to  establish  that  Bechtel  was  owner  of  one- 

(jolialldf  the  "  Caiolena,"  and  he  therefore  rever.se(i  the  order 
ol  |iroof  followed,  I  reiterate,  from  that  day  until  page  2<i02 
of  this  Record  was  pMinted,  and  sought  to  establish  that  a 
titi/eiiof  the  Uiiited  States  was  not  interested  in  the 
"Caioloiia,"  when,  according  to  the  contention  of  the 
counsel  for  Great  Britain  it  was  the  duty  of  the  counsel 


II 


730 


(Mr.  Warren's  Argument.) 

for  the  United  States  to  establish   the  contrary  of  thai 
proposition. 

The  Commissioner  on  the  part  of  the  United  States: 
Do  you  refer  in  tiie  printed  argument  to  the  fact  that 
Beclitel  was  interested  in  the  venture? 

Mr.  Warren: — As  to  the  otiier  vessels  it  is  admitted.  We 
have  no  proof  that  he  was  interested  in  the  venture  apart 
10  from  the  ship  itself.     We  contend  that  he  owned  one -half 
of  the  ship,  and  was  equally  interested  in  the  venture. 

The  Conunissioner  on  the  part  of  the  United  State.s:  — 
I  understand  yuu  to  say  Mr.  Bechtel  advanced  the  nioiuy 
to  fit  out  the  "  Carolena?" 

Mr.  Warren:  -I  read  that  from  a  book  if  your  Hoik  us 
please. 

The  Commissioner  on  the  part  of  the  United  States:  - 
Is  there  any  pioof  in  the  Kecord  that  Beolitel  ever  tuuk 
any  control  of  the  "  Carolena?" 
20     Mr.  Warren:— I  will  come  to  that,  if  your  Honor  please, 
in  a  few  moments. 

I  was  discussing  these  receipts  which  extend  over  a 
period  of  five  years  which  were  produced  by  Mr.  Muiisie. 
I  have  shown  that  the  same  blanks  were  used;  tliat 
they  were  wiitten  wit''  the  same  ink  and  the  same 
pen.  What  did  Mr.  Mi.isie  testify  about  some  of  tlu'?e 
receipts;  that  some  of  tiiem  were  duplicates  and  were  re- 
ceived from  Mr.  Bechtel  recently.  1  quote  from  his  testi- 
mony: "  When  I  was  gathering  up  my  papers  I  asked  Mr. 
30  Bechtel  to  give  me  a  copy  of  the  receipts"  (Record,  page 
90,  line  14). 

Mr.  Bechtel  unfortunately  for  Mr.  Munsie  was  after- 
ward a  witness.  What  did  lie  say  about  those  duplicate 
receipts.     I  read  from  his  testimony  (Record,  l.'ij,  line  1 1): 

"  Q.  Ho  came  and  asked  you  for  those  duplicate  receipts,  diiln't 
"  he,  since  he  began  to  makeup  his  claims  here  ?  A.  He  has  nover  siiid 
•'  any  thing  to  me  about  those." 

Refined  terms  to  be  used  in  talking  about  Mr.  Munsie 
40  and  Mr.  Bechtel  I  William  Munsie  swore  in  order  to  ex- 
plain away  their  physical  appearance  that  some  of  those 
receipts  were  dui)licates.  Andrew  J.  Bechtel  was  not 
present  when  William  Munsie  was  testifying,  and  betook 
the  stand  and  testified  that  he  never  talked  with  Mr. 
Munsie  about  those  receipts;  and  when  a'^ked  (Reconl, 
151)  to  select  the  duplicates,  although  all  the  receipts  hear 
his  signature,  he  was  unable  to  do  so,  and  confessed  tliat 
he  could  not  detect  any  difference  between  the  originals 
and  the  duplicates,  although  some  of  the  receipts  \vt)iikl 
50 be,  at  the  time  he  was  testifying,  eleven  years  old. 

The  Comi  lissioner  on  the  part  of  the  United  States:  - 
Was  that  question  followed  out,  Mr.  Wairen? 

Mi'.  Warren:-  Yes.  your  Honors,  I  am  about  to  read 
the  testimony  (Record,  151): 

"  Q.  Ho  came  and  asked  you  for  those  duplicate  receipts,  didn't  lio, 
"  since  he  l)ef{Rn  to  make  up  his  claims  here  V  A.  He  has  never  suiil 
"  anything  to  me  about  those. 

"  y.  About  giving  duplicate  receipts  when  he  had  lost  some '?  .\. 
"  Oh,  this  was  a  long  while  ago.  He  told  me  that  he  had  lost  our  or 
61^  "  two  receipts." 

WMiat  kind  of  testimony  is  that?  Would  Lord  Stowell 
say  that  was  swearing  credibly,  if  your  Honors  please, 
when  the  two  owners  of  this  vessel,  as  the  United  Stales 
claim,  take  the  witness  stand,  each  in  turn,  and  positively 


oiir  Hoik  118 


3ut  to  IV.'ul 


731 

(Mr.  Warren's  Argument.) 

(uiitradict  each  other  about  a  matter  so  important  as  the 
M  :,Milarity  of  these  receipts? 

riie  Commissioner  on  the  part  of  the  United  States:— I 
liiouglit  away  from  Victoria  very  distinct  impressions 
alioiit  the  testimony  of  Mi".  Munsie,  but  I  do  not  see  your 
[mint  here  as  yet.  The  questions  had  a  little  uncertain 
sdniid.  He  avoided  answering,  or  did  not  answer  them 
lodin'ctly,  but  the  last  question  does  not  seem  to  me  quite 
1(1  support  tbe  proposition  that  they  contradicted  each 
(it  her.  It  may  he  there  somewhere,  but  it  does  not  seem 
t(i  me  to  quite  warrant  that  proposition. 

Mr.  Warren:  -I  will  continue  reading.  He  commences 
hi>  testimony  at  the  top  of  page  U>{  in  regard  to  these  re- 
tcipts  as  follows: 

■'<).  Are  thoso  original  receipts,  all  of  tbem"?" 

Now,  if  your  Honors  please,  those  bear  the  signatures  of 
:o  Andrew  J.  Bechtel.     His  answer  is,  "  I  should  think  so." 

■'Q.  Were  you  ever  called  upon  to  give  dnp.icates?    A.  I  believe 

■  Mr.  Munnie  at  one  time  asked  me  to  give  a  receipt,  that  be  had  lost 
•  Olio  or  two;  mislaid  them  or  Homething;  I  would  not  say  what  ones 

••  tlicy  were," 

and  then  he  gave  the  testimony  I  have  read;  that  it  was  a 
long  time  ago. 

The  Commissioner  on  the  part  of  the  United  States: — 
Was  that  question  followed  upi 
30     -Mr.  Warren:  — "Q.  You  cannot  distinguish  them  now," 
is  the  next  question. 

•'  A.  No,  I  could  not. 

■'{).  Do  you  keep  a  stub  to  these  receipts?  A.  There  was  a  stub, 
••  liiit  where  it  is  1  conld  not  say,  it  is  so  long  now;  it  is  almost  ten 
••  years. 

'  Q.  He  came  and  asked  you  for  those  duplicate  receipts,  didn't 

■  lie.  since  he  begun  to  make  up  his  claims  here?    A.  He  has  never 
"  Miiil  anything  to  me  about  those. 

■'  Q.  About  giving  duplicate  receipts  when  he  had  lost  some?  " 

40    Then  the  witness  apparently  commences  to  think  about 
this  tiling  for  he  replies: 

"  Oh,  this  was  a  long  while  ago;  he  told  me  that  he  had  lost  one  or 

■  two  receipts. 

■■().  About  when?    A.  It  must  have  been  five  years;  at  least  four 

■  yi'iirs  ago." 

Mr.  Warren:  — Why  did  he  say  that?  Because  he  had 
said  he  could  not  produce  the  blank  book  containing  these 
Idrins.  The  counsel  for  the  United  States  had  questioned 
50 Mr.  Bechtel  about  the  fact  that  these  receipts  were  nuin- 
liind  fioni  I  to  12  consecutively,  and  Mr.  Bechtel,  if  he 
;:.iv('  duplicate  receipts  to  Mr.  Mufisie  at  the  time  Mr. 
M I msie  gathered  up  his  papers,  could  have  produced  more 
blanks  like  those,  but  Bechtel  had  sworn  that  be  could 
nnt  produce  the  blanks.  Therefore,  he  had  to  swear  it 
wa-^  four  or  tive  years  ago  that  he  gave  Munsie  any  re- 
(X!|its,  if  he  did  give  him  any. 

.\i)\v.  the  testimony  of  William  Munsie,  which  I  read 
tnmi  page  !Kt,  line  14,  is  tbis:  "  When  I  was  gathering  up 
Cioniy  papers  I  asked  Mr.  Bechtel  to  give  me  a  copy  of  tbe  re- 
oi|its,"  and  it  may  be  uncertain  at  what  time  Mr.  Munsie 
gathered  up  his  papers,  but  if  your  Honors  will  inspect 
the  ntl)er  vouchers  which  are  in  the  possession  of  the  Sec- 
1(1  II  V  you  will  tind  that  tbe  vouchers  were  gathered  up 
wiihiii  tbe  past  year. 


fi. 


!t  i 


.H'l      ii 


j,  h    ■ 


782 


(Mr.  Warren's  Arguniont.) 

Mr.  liodwell:--  Do  you  say  tliat  they  were  not  sent  n 
with  the  original  claims^ 

Mr.  Warren:— I  fay  that  they  were  not  all,  and  1  k- 
tlie  Secretary  to  produce  the  vouchers,  and  I  will  dem  li- 
st rate  the  fact  that  they  were  not. 

Mr.  Bod  well:— That  he  did  not  send  on  vouchers  uih 
the  original  claims? 
lo     Mr.  Warren:— Is   tliat    what   I   stated?     I    said    tlh  ^o 
vouchers. 

Mr.  Bodwelh— Are  those  the  receipts  on  the  mortRiiu"; 

Mr.  Warren:— I  am  not  now  talkniK  ahout  the  receipts 
on  the  mortgages.  I  am  discussing  what  William  Mun-ic 
meant  when  he  said,  "  when  I  was  gathering  up  mv 
papers."  There  is  no  douht  concerning  what  I  am  t  ill< 
ing  ahout,  if  your  Honoi-s  pleas-e.  Did  William  Miui-^ic 
send  those  receipts  on  the  mortgage  to  Ottawa  to  show  he 
had  paid  interest  to  Andrew  J.  Beclitel  when  the  stuic 
2oment  at  Ottawa  did  not  mention  Andrew  J.  BeclihH 
The  learned  counsel  apparently  wishes  me  to  state  tliat 
these  receipts  went  on  to  Ottawa  when  William  Miiii>i(> 
swore  at  Ottawa  that  Bechtel  had  nothing  to  do  witli  ilie 
claim.  These  are  the  papers  I  am  now^  talking  ahoiit.il 
your  Honors  please,  and  I  ask  you  to  look  at  tluH' 
vouchers,  known  as  Exhihit  No.  10  G.  B.  Claim  No.  1.  ami 
determine  when  they  could  have  heen  gathered  up  liy 
their  appearance  (exhihiting  vouchers  to  Commissiomisi. 
Those  vouchers  were  rearranged  for  presentation  witliiii 
30  three  months  of  the  time  we  arrived  at  Victoria,  for  sniuc 
of  tliem  are  duplicates,  as  testified  hy  Munsie,  and  ail  aiv 
backed  with  new  paper  and  endorsed  anew. 

The  Commissioner  on  the  pait  of  the  United  Htatcs:- 
Did  lie  say  that  he  referred  to  these  vouchers?  I  did  imt 
so  understand  his  testnnouy. 

Mr.  Warren: — He  says,  "when  he  gathered  up  lii< 
papers,"  and  that  means  papers  relating  to  this  claim. 

The  Commissioner  (m  the  part  of  the  United  States:— 
Those  words  aie  very  indefinite. 
40  Mr.  Warren:— If  this  case  depended  upon  this  ti  sti- 
mony,  if  it  please  your  Honor,  they  would  be  vet y  in 
definite,  hut  when  we  have  not  only  this  testimony  Imt 
other  testimony  to  which  I  have  already  referred,  uid 
other  to  which  I  shall  refer,  wliich  is  more  definite,  we  aic 
justified  in  disclosing  this  contradiction. 

The  question  to  i)e  settled  is  that  expressed  bj'  th(>  C'lun 
missioner  for  the  United  States,  whether  William  Miiii-ii' 
referred  to  these  pajiers  or  not  I  admit  that.  If  he  diil 
not,  if  y(»ur  Honois  jdease,  what  jiapers  did  he  refer  to! 
50  Those  are  the  only  papers  that  Munsie  brought  before  this 
High  Court  at  the  time  he  was  testifying.  They  were  the 
only  papers  he  had  any  occasion  to  refer  to  in  the  ( a-e, 
because  they  were  the  only  ]>apers  which  have  any  ron- 
nectiou  with  the  claim  of  the  "  Carolena."  I  stated  that 
this  was  not  the  (^ily  testimony  upon  which  this  cl.iim 
depends.  It  is  very  iinniaterial,  |)erhaps,  but  1  have  ( on- 
sidered  the  i)apers  themselves,  the  mortgages,  the  bill>  et 
sale  and  the  peculiar  amoinits  that  are  set  out  in  tlieiii, 
and  now  come,  as  I  said  I  would  come,  to  other  false  tt^ti 
Tio  mony  of  the  witness  William  Munsie. 

The  learned  counsel  for  Great  Britain  criticises  a  state- 
ment found  in  our  argument  at  |>age  ;{!1",  which  read>  as 
follows: 

"  Tlip  presentation  of  tliiH  cliiiin  (the  'Carolena')  in  the  arfruiiniit 
"  on  behalf  of  Oreat  Britain,  radicnlly  differs  from  the  claim  iis  in- 


•;w 


Pi 


10 


(Mr.  Warren's  Argument.) 

-I'nted  by  tbe  testimony  of  tlie  claiinantH  nt  Victoria.  Tho  evidence 
'IVered  relatiug  to  the  uoBt  of  Hupplyiu^  MnnaieV  trading  Htation, 
tho  coat  of  equi]>])ing  a  Healing  vpskcI  for  u  liiiuting  voyage  on  the 
'  west  coast  of  Vancouver  Island,  before  the  departure  of  the  shij) 
■  fur  the  voyage  to  Bering  Sea,  and  the  vouchers  placed  in  evidence, 
i^rgregating  about  8(>,0()0,  which,  according  to  the  claimants,  re])re- 
•  I'lited  the  cost  of  outfitting  this  small  schooner  of  28  tons  for  a 
■  ciiliug  voyage  in  liering  Sea  of  two  months,  received  no  considera- 
tion in  the  British  argument." 

The  learned  counsel  said  that  William  Munsie  never 
( liinied  that  this  money  was  spent  for  a  scaling  voyapeof 
two  months  in  Bering  Sea,  but  that  the  vouchers  on  their 
fill  0  disclosed  the  fact  that  some  of  the  goods  were  pur- 
cli.i.-^ed  in  February. 

Till'  counsel  departed  from  the  original  claim  when  he 
stated  that  William  Munsie  did  not  claim  that  the  goods 
\v.  re  bought  for  a  trip  to  Bering  Sea.  The  fact  is  that. 
Munsie  did  claim  they  were  purchased  for  a  trip  to  Ber- 
20 ill-  Sea.  At  Record,  page  135,  he  testified  regarding  this 
|iiiicliase: 

■  Q.  Were  they  put  on  board  of  her  to  trade?  A.  No,  thev  were 
••  nut. 

•■  Q.  What  wore  they  put  on  board  of  her  for?  A.  To  go  down  niul 
"  I'l-iiciii'e  //i"'  crew  o/  IiKlians,  come  hack  here  Id  fl/  oiil/or  liering  Sen,  mip- 
"  I'lien  enoiif/h,  prodisinim/nr  the  crew  und  the  Inilittiis. 

"  ().  You  don't  know  what  trading  they  did?    A.  I  do  not. 

••  ().  Never  was  reported  to  you?     A.  I  don't  remember. 

"  Q.  Any  sealing  done  on  that  trip?  A.  I  believe  she  bought  from 
'•  the  Indians." 

XO 

Hought  from  the  Indians!  Any  sealing  done  on  that 
tiipl  if  your  Honors  please?  We  have  the  testimony  of 
till'  witne.-is  Serault  that  the  "  Carolena  "  went  to  the  west 
c.iiist  of  Vancouver  Island,  took  on  board  six  or  eight 
laiiiies,  hunted  up  and  down  the  west  coast  of  Vancouver 
Island,  took  seals,  landed  them  on  the  shore,  went  out 
au  till,  took  more  .seals  and  regularly  hunted  on  the  west 
tvist  of  Vancouver  Island  in  tbe  month  of  February  and 
ilnl  not  return  to  Victoria  until  May.  Did  Munsie  forget 
.qIImI  fact,  if  your  Honors  please?  That  was  the  first  time 
111'  \\  as  ever  interested  in  a  sealing  voyage. 

I  ivlei'  to  tlie  testimony  of  Serault  because  I  have  stated 
that  I  intended  to  confine  myself  entirely  to  the  con;ilera- 
tinii  i)f  the  testimony  (Record,  page  042,  lii  j  12). 

"  ().  l)u  which  trip  of  the  '  Carolena  '  did  he  come  to  Victoria  ?  A. 
'•  I  tliiiik  it  was  when  thevipiit  sealing  on  the  coast,  as  near  as  I  recol- 

••I.Tt." 

■  (,)uit  .sealing  on  the  coast,"  if  your  Honors  pleasel 
\\  litu;  In  the  spring.  As  I  said  in  my  argument  yester- 
■'  (lav  in  connection  with  tbe  "WandiMer"  claim,  spring 
scaling,  or  what  is  called  spring  sealing,  as  distinguished 
fmiii  tiu!  catch  on  the  way  to  Beiing  Sea,  ended  about  the 
tiiiM'  tile  "Caroleiia"  came  back  to  Victoria  (, Record,  (i45, 

lillr   41  I. 

"I,).   Were  there  some  other  Indians?    A.  Yes,  sir. 
■'  i,>.  They  went  up  there  first  and  before  the  canoes  were  put  on 
"  I'laiil,  and  went  sealing  in  the  spring,  in  I'ebruarv,  on  tho  coast? 
••  .\.  V.'s. 

<i>.  How  manv  Indians  did  thev  take  on  that   trip?     A.  I  don't 
6o--Li,.iw. 

•  I).  Did  you  see  any  Indians?     A.  Oh,  certainly. 
>).  They  wont  oi>.  board  the  '  Carolena  '?    A.  Certainly. 
\>.  'iliey  wont  off  on  the  trij)?    A.  Yes." 

I  lie  counsel  for  tho  United  States  went  into  this  niatter 
Willi  great  particularity.     What  for?    Because  William 


Ih' 


H'  ■-  I 


i!,, 


Ml 


M'       M 


784 


(Mr.  VVairt-n's  Argumi'iJl.) 

Munsie.  if  your  Honors  please,  had  denied  tliatthu  "Caio. 
leiia"  sealed  on  the  coast  in  February,  and  it  is  on  the  lis. 
tiniony  of  William  Munsie  that  the  counsel  for  (iii  it 
Britain  rely,  to  prove  that  Andrt  '  J.  Bechtel,  an  Americm 
citizen,  was  not  interested  in  the  "C'arolena." 

Mr.  Bodweil:— What  is  the  page  of  the  Record  win  i>. 
Munsie  says  they  did  not  do  sealing^ 
lo      Mr.  Warren:-  Page  1:^.5,  line 4.5.   t  continue  to  read  ti   id 
Serault's  testimony  (Record,  ti4.5,  line  4!»): 

"  Q.  And  tliey  weut  up  the  coast  Hoaliug?     A.   Yoh. 

"  Q.  And  they  eauie  Imck?    A.  Yes. 

"  Q.  Anil  they  stopped  where?  A.  Stoitped  at  their  place— tlnir 
•'  houie. 

"  Q.  How  many  Indians  went  on  that  trip — the  first  trip — whin  1  lny 
"  went  sealing  ou  the  ooastV  A.  That  1  don't  Itnow.  1  tliink  it  was 
"  six  or  eight  eanoes  the  '  Carolena  '  earried. 

"  I).  They  earried  six  or  eight  eanoes  on  their  first  trij)?    A.  I  il.ai't 
"  remember  how  many  she  took. 
-_      "  Q.   Hut  they  took  eauoes  on  their  first  trip  in  the  spring?    A.  ^  os. 

"  Q.  And  did  tliey  take  Indians  to  man  them?    A.  Certainly. 

"  Q.  And  how  were  the  Indians  armed?  A.  Thoy  had  guns  iunl 
"  spears. 

•'  Q.  How  many  Indians  to  a  canoe?    A.  Two. 

"  Q.  And  they  stot>ped  on  the  way  back  and  lelt  the  Indians  ulV 
•'  with  the  excep'tion  of  Indian  Jinimv?  A.  They  run  in  and  out  all  tln' 
"  time." 

Again,  at  pageWti,  line  1(»: 

■'  Q.  Did  the  other  Indians  come  to  Victoria?    A.  Well,  when  (licv 
"  stopped  sealing  otf  the  coast  thev  came  ashore.'' 
30 

Ran  in  and  out  all  the  time  on  the   west  coast  of  \  an 
couver  Island  sealing,  using  up  the  provisions  which  tlu'se 
laboriously  honest  vouchei's  and  the  testimony  of  Williarii 
Munsie  reiiresented,  went  on  board   for  a   voyage  of  two 
months  in  Bering  Sea. 

I  have  lead  Munsie's  testimony  where  he  stated  that  llie 
"  Carolena"  went  up  to  the  west  coast  of  Vancouver  Island 
for  the  purpose  of  procuring  a  cresv  of  Indians,  and  bring- 
ing them  back  to  N'ictoria  to  niake  ready  for  the  voyage 
40  to  Bering  Hea.  Is  there  any  difference  between  the  testi- 
mony of  William  Munsie  and  John  Serault  here*  Is  tliis 
the  kind  of  testimony  that  Lord  Stowell  would  say  is  cred- 
ible testimony,  such  testimony  as  a  court  bases  its  judj,'- 
meiit  upon?  William  Munsie  says  he  s«?nt  the  boat  u|p  to 
the  west  coast  of  Vancouver  Island  to  bring  his  Indian.s 
back  to  Victoiia  so  he  could  .send  them  to  Beiing  Hea,  and 
he  made  a  claim  at  the  time  the  testunony  was  given  fur 
the  value  of  the  supplies  consumed. 

Mr.  bodweil:  — Munsie  iu  the  same  place  says  that  lliu 
50  "  Carole  I  ;a"'^ 

Ml.  Waneu: -I  am  perfectly  well  aware  of  what  xMi. 
Munsie  says.     1  read  his  testimony. 

Before  taking  up  the  consideration  of  the  testimony  uf 
Andrew  J.  Bechtel  I  wish  to  state  that  my  attention  lias 
been  called  by  the  counsel  for  Great  Britain  to  the  testi- 
mony of  Munsie.  1  ask  your  Honors  to  consider  this 
testimony,  at  Record,  page  13"),  concerning  these  supplies: 

"  Q.  Were  they  put  on  board  of  her  to  trade?     A.  No,  they  were 
not." 


60 


Again  he  says: 

"  Q.  Any  sealing  done  on  that  trip? 
the  Indians." 


A.  I  believe  she  bought  fioiii 


Now,  counsel  suggests  that  when  he  so  testified   lie 
meant  that  she  bought  skins  from  the  Indians  with  these 


735 

(Mr.  Warron'a  Argnmont.) 

previsions.     But  he  had  just  stilted  that  the  supplies  were 
lUii  k  at  on  for  the  purpose  of  trade. 

What  more  did  he  do?  He  jtroduced  Owen  Thomas  as 
a  witness,  after  tiie  cross  examination  of  Charles  Spring 
(H'  ((.rd,  242)  had  disclosed  that  tl»e  "  Carolena  "  had  hinded 
supplies  at  the  trading  station  on  the  west  coast  of  V^an- 
L'diiver  Island,  and  Thomas  testified  (Record,  2r>7,  line  32) 
loiis  Idllows: 

■  Q.  Wliot  ilid  you  go  there  for?    A.  For  u  crew  of  Indians  for  Belir- 
■'  iii^'  Sen. 
"  {).  Did  you  get  the  IndianH?    A.  No,  Hir. 
•■(,).  Did  you  take  Home  Bajii)li«8  down  thereV    A.   Yes. 

■  (,).  What  were  you  going  to  do  with  the  HUppheH?    A.  Qoing  to 
•  ficd  the  ludianH. 

"  (,).  To  keep  the  IndianH?     A.  Yes,  sir. 

•  (,).  Was  it  your  intention  to  laud  the  supplies?     A.  Yes,  sir. 

■•  {.).  After  you  found  out  that  the  ludiaus  wouldn't  come,  what  did 

■  vcpu  do  with  the  supplies?    A.  Took  them  ahoard. 

'■■(.}.  Did  you  or  did  you  not  leave  any  Hiip))lies  there?    A.  No. 
-'^     ■(.).  You  got  no  Indians?    A.   No  Indians;  the v  would  not  go. 

••  (),  How  long  were  you  at  this  place?    A.  Quite  a  long  time  there. 
■'(,).  What  were  you  doing  there  all  the  time?     A.  The  vessel  laid 

■  llii'if  and  wo  tried  to  coax  them  to  go. 
■•(,».  And  you  failed?    A.  Failed,  yes. 

"  (,).   And  then  you  went  wliere?    A.  To  Victoria. 

•  Q.  Direct?    A.  Direct,  sir. 

■  ().  Stop  at  no  other  place?    A.  No,  sir." 

This  witness,  Owen  Tliomas,  was  actually  brought  into 
Com  thy  William  Munsie,  who  went  to  the  hospital  where 

jOtlic  witness  was  ill  and  himself  brought  him  to  the  Court. 
His  testimony  is  conclusively  established  to  be  false,  for 
Suianlt  testified  that  the  "Carolena"  did  se^l  on  the 
((last  in  188(1,  hut  William  Munsie  produces  this  witness 
fill  the  purpose  of  establishing  the  fact  that  the  vessel  did 
not  limit  seals. 

The  attempt  of  Munsie  was  to  compel  the  United  States 
to  pay  for  every  dollar's  worth  of  |>rovisions  and  to  re- 
pla(  f  in  his  hands  every  dollar  be  had  paid  out  on  the 
^rouiul  that  it   was  for  the  voyage  of   the  "  Carolena " 

40iii  isst;  in  Bering  Sea.  That  was  the  leason  why  he 
put  in  all  of  these  vouchers  because,  if  your  Honors 
liliasc,  if  that  was  not  his  idea,  why  were  the  v  jch- 
ers  placed  in  evidenced  Why  did  Munsie  testify  .s  to 
what  was  put  on  board  tliis  vessel  in  February  un- 
less the  United  States  was  to  be  asked  to  pay  for  the 
aiiic  (iiit  expended?  This  man  wilfully-  I  say  it  advisedly 
-  attempted  to  mulct  the  United  States  in  damages  for 
^upplies  which  he  alleged  were  used  on  the  voyage  which 
was  interrupted  by  officers  of  the  United  States  Oovern- 

y^mciit,  hut  which  were  actually  used  'n^  Li;e  west  coast  of 
Vancouver  Island,  during  which  tiM"  Mie  vessel  sealed 
ami  traded  on  that  coast  and  earned  money  which  Wil- 
liam Munsie  received. 

The  attempt  of  the  counsel  for  the  United  States  was, 
in  ciiiss-examining  Munsie— and  your  Honors  will  roinem- 
licr  it  distinctly — to  establish  that  a  large  portion  of  these 
t;oiHis  and  supplies  that  were  put  on  board  these  vessels 
were  used  for  the  purpose  of  supplying  his  trading  station 
on  t lie  west  coast  of  Vancouver  Island  and  for  the  pur- 
pus.'s  of  sealing  in  the  spring,  but  William  Munsie  denied 
iliit,  and  it  was  not  until  the  counsel  for  the  United 
Slates  developed  the  fact  beyond  any  doubt  that  Munsie 
was  attempting  to  deceive  this  High  Commission  that  the 
t;iiis  concerning  the  sealing  voyage  on  the  west  coast 
wciv  disclosed. 


'w 


lM-1 


f 


III 


786 


(Ml'.  Warren's  Ai^miu'iit.) 

The  CoinniissioiiiT  on  tlio  part  of  the  Uiiiti'd  States  | 
tliink  I  nskod  yon,  and  jHTliapH  yon  anssvcivd,  hnt  I  do  .t 
i'(nn»>inlier  catchinji  thMansvv»>r,  ni  snbstanco,  wlietlit'itli  iv 
was  any  evidcnci'  Hhowing  that  Mt'clitol  took  contml  ..f 
this  vessel,  except  in  regard  to  some  (Jispnted  facts  of  i  he 
case.  Is  tliere  any  evidence  in  the  case  that  any  of  ilie 
snpidies  for  the  "Caroleiia"  at  Viclocia  were  pnrcha-.il 
10  by  BediteU 

Mr.  VVairen:  -1  am  jnst  now  coming  to  the  connec  i,  u 
of  Anchow  J.  Bechtel  with  tlie  "  t'aiolena."  1  was  ali'  m 
to  say  that  Bechtel  was  called  at,  u  witness  by  the  conn  .1 
for  (ireat  Britain  and  testified  on  directexaminali'  ii, 
page  147,  line  (l.'i: 

"Q.  Auil  you  wori'  ou  board  of  hor  before  bIio  Hiiih>il  V  A.  Yes,  -n  " 

This  testimony  refers  to  the  last  trip  of  the  "  Caroleii  i," 
for  jnst  before,  and  on  the  same  page  of  the  Record,  iho 
20  witness  had  said  that  Captain  Ogilvie  went  away  in  l^-^ii, 
and  never  retnrned.  Hedidieturn  from  the  coast  tup. 
And  the  next  ipiestion  at  the  bottom  of  page  147  disdnvrs 
that  the  iiujuiry  was  concerning  this  last  trip  for  the  wit 
ness  was  asked  about  the  provisions  aboard  when  --Ih' 
sailed. 

He  was  cross  examined  at  l)age  l;");},  line  150: 

"  (.}.  Whou  you  wout  on  the  Hliip,  ilid  you  k<>  below?  A.  No,  I  iliil 
"  not." 

30     That  was  when  the  "  Caroiena"  was  lying  in  tiie  bailor 
at  Victoria.     Continuing,  t      witness  said: 

"  Q.  Didn't  Ro  below?    A.  ]  1 1  did  go  in  the  onbin. 

"  Q.  Didn't   go   below   ontc  una(?t>    deck — below   deekK     to 

"  see  what  tiipy  Imd  on  l>o»rd?  A.  Not  in  the  hold  where  they  Kipt 
"  their  Hni)i)lies. 

"  i).  What  did  you  go  there  for?  To  say  good-by  to  Ciiiitain 
"  Ogilvie?     A.  Yes,  sir. 

"  (.).  Ever  l)een  on  her  before?  A.  Oh,  yes;  I  hod  been  on  hci 
"  severnl  times. 

"  Q.  ,Tust  wout  on  to  visit  the  cajitaiu?  A.  Yes,  to  see  the  caj'tiin. 
40"  th'il  is, ill." 


I  call  your  Honcns'  attention   to   the   testimony  of 
witness  John  Cotsford,  Kecord,  HTT),  line  2: 


no 


"  Q.  Whom  did  you  tell  this  to?     A    Mr.   Hechtel. 
"  ().  Was  Mr.  Beehtel  at  that  trading  j)ost  that  spring?    A.  Ho  loft 
"  here  on  the  schooner  with  us  and  went  down." 

Be<  litel,  vvlio  said  he  went  on  board  to  say  good-by  to 
the  captain,  sailed  in  this  .-chooner   for  three  days  to  tiie 
west  coast  of  Vancouver  Island  when  the  schooner  left  tor 
5"  the  voyage  to  Bering  Sea. 

"  Q.  On  what  schooner?    A.  The  'Caroiena.' 

And  the  counsel  for  the  L'nited  States  was  hero  greally 
surprised  and  put  these  questions: 

"  i).  Mr.  .Tohii  A.  Bechtel  or  Andrew  Bechtel,  otherwise  called?  .\. 
"  Andrew  ]{echtel. 

"  Q.  He  started  ou  the  sealing  voyage?  A.  He  loft  here  on  the 
"  'Caroiena.'  and  went  to  Clayoiiuot  with  us. 

"  Q.  You  knew  him  ]>retty  well,  did  you?  A.  Yes,  sii-  I  knew  liiiii 
00  "  j„.f.ttv  well;  I  had  been  acquainted  with  him  a  year  oi' two  bcfiTo 
"that."^ 

"  Q-  Was  he  carried  off  ou  the  'Caroleno'  by  mistoke  or  agniust 
"  his  will?     A.   I  tliink  not. 

"  Q.  Ho  did  not  say  good-bv  to  Captain  Ogilvie  before  he  cairitd 
"  him  away,  did  he'/  You  didn't  hear  anything  about  his  cominfr  I'li 
"  board  to  say  good-by?    A.   No." 


(Mr.  VVunoii's  Argumt'nt.) 

I  <iill  your  Honors'  attention  to  tht;  testimony  of  James 
Mi  liner.  <i  lirother-iii  law  of  Mcclitel  (Itcconl  (!3I,  line  49): 

().  It  h««  been  ntutiul  tlmt  Mr.  Ut'rlitdl  was  on  lionrd  nt  tho   time 
'■  -lio  went  up;  iH  that  f«)rroot?    A.  Yeg,  he  wout  up  with  ub." 

I  refer  to  tlie  tostiinoiiy  of  David  HiiHHeli,  page  589, 
liiM'  iS5; 

'"  ■  1^.  On  that  trip  upon  the  '  CnroU^ua,'  tUil  you  iitop  anywhere?  A. 
'■  W 1'  Htiiiipeil  at  Clayi)(|Ui)t, 

"  ().  VVuH  John  A.  Hei-htol  on  board  when  you  loft  hero  and  Btoppod 
'•  iliorfy    A.  Yos,  sir." 

standinft  alone  we  have  the  teatiniony  of  John  Andrew 
Ht  I  litel,  this  United  States  citizen,  testifyiiij?  he  vveut  on 
tic  11(1  that  schooner  to  say  good-by  to  the  captain. 
(»|  posed  to  him  is  the  testimony  of  three  disinterested 
wiMiesses  who  say  that  he  not  only  went  on  hoard  the 
vt'-scl,  hut  sailed  for  three  days  and  was  landed  at  Clayo- 

^'^t)!!"!  on  this  very  voyage  to  Bering  Sea.  Anything  aiispi- 
( lulls  about  the  testiniuny  of  Mnnsie  and  Hecbtel?  I  ask 
i-  I  lure  any  reason  why  your  Honors  should  l)elieve  either 
(il  llies(«  witnesses  in  tlus  face  of  that  testimony?  I  eon- 
tciiil  ilijit  the  testimony  of  both  these  witnes.ses  regarding 
til' II  iiiteiest  in  the  "Carolena"  shouhl  he  stricken  from 
tliN  Kecord  and  totally  disregarded. 

I  read  from  1  Christonher  Robinson,  t)age  255,  whtn-e 
1,111(1  Stowell  connneiit('(i  upon  a  case,  the  facts  of  which 
;iii  ;iliiiost  identical  ui  h  the  facts  concerning  which  John 

-■'  A.  I'.echtel  was  here  It  stifying,  and  I  ask  your  Honors  to 
fi'.isidei'  tiie  conclusions  to  which  Lord  Stowell  came  in 
ri'K'id  to  testimony  of  this  character. 

Mr.  Hals  was  tho  captain  of  the  ship  and  a  man  named 
Kiniiiie  was  on  board  the  boat,  and  the  question  l)efore 
111!  (iiiirt  involved  the  status  of  Ellniore.  Lord  Stowell 
cdiiiineiiting  on  the  rule/o/.sHS  in  itiio,  falsns  in  onniilms, 
saiil; 


^0 


■  Now,  to  apply  this  test  Mr.  Hals  (to  whoso  projudieo  I  am  unwill- 
il|^'  til  strain  auythiuK)  says  iu  positive  tornis,  '  that  tlioro  were  seven 
I'ii^sciij^erH  on  lioard  tliis  vessel;  their  names  were  John  Klmore,  John 

■  I'.wiiifr,  f  XV,)  ehildreu  of  a  Mr.  Eude  of  Bengal,  a  child  of  a  Captain 
•■  I'iiwi's,  a  black  servant  belonpfiug  to  tho  same  ehildreu  and  a  black 

■  >"  rviuit  belonging  to  the  second  mate;  that  the  said  John  Elmore  is  an 
"  lii'^liiimn,  formerly  master  of  tho  ship,  and  at  times  assisted  the  de- 

■  ]"'iH'iit  in  the  navigation  of  her.'  " 

l"liii  A.  Hecbtel  says  that  he  was  not  on  board  that  boat. 
T'li  A  hilt  i-easoii^  For  tlu'  purpose  of  removing  the  pre- 
siiiii|ili(iM  or  belief  fronj  your  Honors'  minds,  created  by 
tln' .iiiiiearaiice  of  the- papiMs  that  were  in  the  case  and 
.W||ir  testimony,  that  he  and  Munsie  owned  this  ship.  He 
\vi-hi(l  to  deny  that  h(!  was  ever  on  board  tho  "Carolena"' 
<>i  rvei  had  aiiythiiig  to  do  with  it,  so  he  said:  •*  Yes,  I 
\vi  111  nil  board  to  say  good-by  to  the  captain.  My  statno 
w;is  imt  tliat  of  an  owner;  1  did  not  go  out  on  the  voyi.<.;e. 
I  "as  a  friend  of  Captain  Ogilvie  and  I  went  there  to  say 
gi'"il  liy  to  him." 

Ni'w,  what  did  Lord  Stowell  say  about  that  kind  of  tes- 
iiH'iiv; 


CiO  "Niiw,  it  does  happen  that  Mr.  Elmore  himself  is  exomincd;  and 
"  lii^t.  what  does  he  say  witli  respect  to  the  i)asseugersy  He  says 
"  tiuiT  wfi-,'  four  jiassongers  ou  board;  Mr.  Ewiug,  an  American,  iiud 
"  iliiii'  cliildren,  whoso  uaiues  he  meutious.  According,  then,  to  this 
"  :i.  .uiiiit,  there  were  ouly  four  j)asseugcrs,  of  whom  he  docs  not  at 
" 'ill  number  himself  as  one.  He  is  asked  iu  another  interrogatory, 
"  ill  what  capacity  he  belonged  to  the  ship,  he  answers;  '  That  he  was 


fW 


l<'l 


1      i 


73.S 
(,Mr.  Wanen's  Argument.) 

"  sea  pilot  or  navigator,  and  that  he  was  engaged  to  go  iu  that  cli  m. 
"  actor  upon  tbis  voyage.'  He  liaH  not  thought  it  ueceaaary  to  hioiiiimh 
"  upon  what  terms.  But  he  says  this  official  oharaoter  diil  liclou^;  (,, 
"  him;  he  was  an  olHoer  on  board  the  ship  and  so  api)oiuted  liy  Mr, 
•'  Keating.  Now,  if  this  be  the  case,  I  ask,  is  it  a  true  represeutiil':..]! 
"  or  a  false  one  which  Hals  has  knowingly  given  of  this  matter?  I  i,is 
"  question  must  be  determined  by  what  every  man  must  underNtaiul 
"  Hals  meant  to  convey  re8])ecting  the  situation  and  character  of  | ;|. 
"  more.     If  he  meant  to  convey  this  impression,   that  Klnmre  \v;i    a 

10  "  i)assenger  and  a  passenger  only,  who  occasionally  lent  a  liaiul  1)  m 
"  mere  inclination,  is  not  that  a  gross  falsiticatiou  on  the  part  of  IImN. 
"  who  Vieing  the  master  of  the  vessel  could  by  no  possibility  be  inno- 
"  rant  Jhat  Elmore  was  on  board  this  vessel  as  a  hired  ofticeron  iicnu- 
"  tract  with  their  common  owner?  Ttikiug  it  in  l/iis  riiu;  /  finiK,/  i.ii 
"  think  t/iiil  it  iriiiitil  lieii  iiiokI  idiiKitiiriil  slrniii  nf  ilmrilii,  sue//  (w  musl  ■lo 
"  riijlence  Iu  <nni  iiiiin'n  iiii(lir^tiin(liii</  <,/•  his  niinci  ill/,  nut  Ic  jii  mnn.ni,  l,,ii 
"  Hills  /'iiK  must  i/rossli/  iirtruririilcil  iu  his  lejiii'Sfiitdtiim  1/  this  n,,,:  . ,-. 
"  And,  ihei'i'/urf,  ii-hultn  r  his  i/tninil  vhannltr  muj/  I'O,  uhaiit  ii-hiili  '■■,,/ 
"  Diitci  iis  hiire  luitt  iiiiiih',  that  must  lie  e.rtrm'li'il  frinn  other  mulfriuls,  in  ,,. 
" /oiinti  elsrirhrrf  ;  Init/riin  irhul  is/onjiil  hiii;  Iain  uihIit  llir  nrrrssin,  >.f 
"  )ii,ldi>i(i  him  II  ivilniss  iitliflii  unicorlliif  of  nil  cri'ilil  In  this  miisi' .-  .i,,./  / 

20  "  "'".V  rrntiiri'  to  sirikv  his  mntv  out  of  Ihf  list  of  iritnessvsfn-  Ihr  nu;.., 
"  reiison." 

These  three  witnesses  conclusively  eslalilish  that  Andrew 
J.  Beclitel  swoiv  falsely  wlien  he  testified  that  he  weni  dii 
hoard  the  "Carolena"  to  say  K*><''Jl'y  to  the  cfiptiim. 
The  wiine.^s  inidouhtedly  thought  tliat  if  lie  said  tlial  lio 
was  aboard  vessel  on  that  voyage,  the  cdnclnsioii  Wduld 
he  drawn  hy  your  Honors  that  he  was  a  part  owner  ot  Ww 
"Caiolena,'"  and  he  therefoie  desired  to  appear  in  no  way 
connected  with  the  voyage. 
30  J^eaving  that  testimony,  we  have  his  testimony  at  pai^e 
145,  line  14,  of  this  Record,  and  I  call  your  Honors'  nttcn- 
tioii  to  that,  testimony  because  here  again  iMnnsit  iiiid 
Bechtel  absolutely  contradict  each  other: 

"  Q.  How  long  have  you   V)een  engaged  in  the  sealing  business 
"  about  how  long  ?    A.  I  cannot  say  exactly  as  to  a  month,  over  tiiri't- 
"  years. 

"  Q.   About  three  years,  you  mean  V   A.  About  three  vearN—Inngir. 

"  Q.  What  was  your  business  before  that  ?    A.   Hotel  busintss." 

,Q     And  just  helow  is  the  following  testimony: 

"  Q.  Prior  to  1880,  I  id  you  anything  to  do  with  the  sealing  Imsi- 
"  ness  ?    A.  No,  sir. 

"  Q.  Had  you  anything  to  do  with  Hhipi)ing  ?    A.  No,  sir. 

"  Q.  Did  you  know  anything  about  ships  up  to  that  time  ?  A.  -No. 
•'  sir. 

"  Q.   Had  you  owned  any  ship  before  then?    A.   No,  sir. 

"  Q.  Had  you  any  share  or  intcri  st  iu  any  ships  of  any  kind  11)1  to 
"  that  time  ?     A.   Not  any. 

"  Q.  And.  in  fact,  had  you  iu  188<i  any  interest  iu  any  ship  ?  \. 
•'  Not  anv. 

"  i}.  Or  iu  18H7  ?    A.  No,  sir. 
50      "  y.  Or  in  1888,  as  a  matter  of  fact  ?     A.  No,  sir. 

"(J.  Or  in  188!)?    A.  No,  sir. 

"  Q.  And  I  believe  I  might  also  say  1890  ?    A.   No,  sir  ;  not  in  181'ti  ' 

That  testimony  must  he  read  in  connection  with  tiie 
(juestion: 

"  Q.  How  long  luive  you  been  engaged  in  the  sealing  bu.siiicis, 
'■  about  how  long  ?  A.  I  cannot  say  exactly  as  to  a  month— over  tliric 
"  years." 

The  testimony  of  Bechtol,  page  14S,  lino  1,  should  al.>o 
^>obereadin  conneition  with  this   testimony,  for  theio  iiu 
clearly  shi.vvs  that  he  was  intending  to  establish  the  bdii'f 
that  lie  did  not  enter  the  sealing  business  until  ISitO; 

"  Q.  You  did  not  outer  tho  smilin;/  husiuess  until  1890?  A.  1  think 
"  it  was  in  1890  I  bought  a  vessel  in  Han  Francisco. 

"  Q.    I'oii  hull  no  interest  in  thv  senliui/  htisiness  before?     A.   No,  sir." 


10 


73!) 

(Mr.  Warren's  Argument..) 

William   Miinsie  took   the  witnpsjs  stand  again  in  the 
••  I'athtinder "    case,    and    testirted,    Record,   page   156-1, 

•  Q.  In  1889,  vou   say,  Mr.  Bechtel  h'vd  no  interest  in  the   '  Path- 
•   limler'?    A.   ISoi  iu  the  vesBcl. 

•  Q.  Wlir.t  (lid  ho  have  an  interest  iu?     A 
•i).  He  oiittitted  forthe   HealiuR  voyage? 

■  ■^t  iu  my  ;>ro»iieetive  profits  of  that  year. 

•  Q.  Jii /hf  aedlhii/ biiniiieKX  ?     A.   Vph. 
■•  ().  Did  lie  ;iutiit  the  vessel?     A.  No;  I  outfitted  her. 

■Q.  Ho  coutn?)uted  for  it?    A.  No;  1  oiittitted  the  vessel. 
"  t^.   He  liitd  been  inlercsleil  in  the  aeiilinr/  biminess  before  iril/i  i/ou  ? 

r->." 


He  had  an  interest 

A.  No;  ho  had  au  iuter- 


A. 


sealing  husi- 


;o 


|!(H  litelintoit  stud  in  tliost'.iiingbnsiiu'ss  before  1889,  when 
h.  positively  swore  in  tlie  testimony  that  1  liave  just  read 
tl,  it  lie  had  no  connection  with  the  sealing  business 
|iiiiir  to  three  yeau',  from  the  date  that  he  was  testifying! 
,.\iiy  contradiction  between  these  two  witnesses,  upon 
uhii-^e  testimony  their  claims  for  amounts  of  some$:i7,()00 
;iiiil  s;i4,(ioo  depend? 

Then  he  proiveded  to  say  that  Hechlel  had  an  interest 
ill  liie  sealing  voyage  of  the  "  f'athtinder  "  in  1S87,  liSSH 
;iihI  ISS'.t.  Bechtel  denies  that  he  had  any  connection 
wli.itever  with  it.  A  period  of  over  a  month  had  elai)sed 
hil ween  the  time  tiiat  Mechtel  had  given  his  testimony 
:iii(l  Muiisie  testified,  and  before  I  close  my  argument  con- 
II  rninji  these  two  men  I  will  demonstrate  the  fact  that 
iillcr  Mimsie  bad  left  the  stand  in  the  "Carolena"  case  he 
(Mine  to  the  conclusion  that  he  would  not  testify  before 
III!--  High  t'ommi.ssion  tiiat  Bi'chtel  was  not  interested  in 
llic  •  I'athtinder  "  for  the  reason  that  the  bills  of  sale  ai\d 
iiinitgages  in  the  case  of  th<>  "  Pathfinder"  were  identical 
in  (Very  ii'spect  as  regards  the  considerations  expressed  in 
till  in  and  the  shares  which  tht»y  cover  with  tho"Caro- 
iiii.i  ■■  papers.  He  decided  that  be  woidd  admit  that 
l!i  I  htel  was  interi'sted  in  the  voyage  of  the  "  I'athtinder," 
JKcMise  the  counsel  for  (Jreat  Britain  contended  that  by 
ivi-^on  of  the  clause  in  the  convention  under  which  we  are 
pi. needing,  the  United  States  was  estdpped  from  proving 
aii\  thing  but  that  a  citizen  of  the  l'nit(?d  States  was  a  |)art 
uuiKT  of  the  bottom  of  one  of  these  ships,  and  because 
tlh' counsel  for  (Jreat  Britain  contended  that  it  made  no 
ilillVicnce  whether  or  not  a  citizen  of  the  L'nited  States 
ui-  inlerested  in  a  venture  of  a  sealing  schooner,  for  the 

t s  of  tluf  treaty  itself  said  tiiat  it  was  only  open  for  the 

I  iiilcd  States  tiisbow  that  one  (tf  its  citizcMis  was   iiiler- 
I  -till  ,is  owner  in  whole  or  in  part  of  any  of  these  shij)s. 
;o     Tlic  ( 'oinmissioiier  on  tin-    jiart  of  the  l'nited   States:  — 
V'lii  nnan  to  say  that  tin'  ■  ma<le  that  contention  in  Vic- 
i"ii;i  in  the  hearing  of  Mr    Minisio. 

Ml.  Warren: -At  Victwiia. 

Mr.  I'eters— I  would  like  to  have  the  Record  cited. 

Till'  C'oinniissioner  on  the  part  of  the  United  Slates:— I 
il'.  nut  remember  it,  so  I  would  like  to  have  the  Record. 
h  iiii-lit  be  in  the  pleadings. 

Mr.  I'l'ters:     It  is  in  the  ph^idings. 

Tlic  (  ommissioner  on  the  part  of  the  Uiiitcd  States:  — 
iioHi!;   as  bearing  on  the  testimony  of  Mr.  Miinsie,  it  must 
iif  -liown  that  it  was  niade  openly  at  Victoria. 

\li-,  Bodwcll:— These  were  our  ple;idings  bet'oi(<  the  cas(^ 
"I  I'lic  "Carolena"  was  begun  and  W(i  never  changed  oiu" 
t;i"  md. 

Mr.   W^arren:— 1    made   no   as.sertioii   that   llu'  counsel 


40 


7-10 


(Mr.  Warren's  Argument.) 
changed  their  grounfl.     I  assert  tliat  Mr.  Munsie  knew 


if 


lis  ; 


the  position  assumed  by  counsel. 

The  Commissioner  on  the  i)art  of  the  United  States  _ 
Your  proposition  was  that  after  Munsie  found  out  lliat 
they  made  that  contention,  he  changed  his  testimony. 

Mr.  Warren:  Not  clianged  his  testimony  but  adojud 
a  different  course  in  the  "  Patlifinder  "  claim.  The  |i -j. 
lotion  is  taken  in  the  pleadings.  Munsie  has  been  showi:  to 
havo  given  false  testimony  and  a  man  who  was  once  w  il- 
ling  to  give  false  testimony  without  good  reasons  foi'  pii>. 
senting  the  truth,  or  something  like  it,  would  continue'  in 
the  way  he  liad  first  intended.  When  there  is  a  suddi  n 
shifting  by  a  witness  from  a  j)osition  that  is  proven  lo 
have  been  false,  to  a  position  which,  althougli  not  tnit ,  is 
sufticient  of  an  admission  to  apparently  weaken  ihc 
strength  of  the  position  of  tiie  counsel  appearing  again-t 
bin),  that  change  is  to  be  accounted  for  by  something  i  Im' 
20 than  the  dictate >  of  that  man's  conscience.  When  1  ((unc 
to  the  case  of  the  "Pathfinder"  I  do  not  intend  todwill 
upon  the  relations  of  Hechtel  and  Munsie,  tiierefore  dl 
the  transaction  will  be  considered  and  discussed  in  the 
"Carolena  "  case. 

Now,  in  reply  to  the  suggestion  of  +he  Commissiuiu'i 
for  the  ijnited  States,  that  in  order  to  have  a  binding  tnice 
upon  William  Munsie,  we  should  show  that  the  counsel 
took  this  position  to  which  I  have  alluded  on  the  faee  of 

the  Record 

30     The  Commissioner  on  the  part  of  the  United  States:     [ 
understand  that  they  agree  to  it. 

Mr.  Warren:— I  now  refer  to  another  rea.son  wliy  Mini 
sie  clianged  his  position  when  be  came  lo  the  case  ot  the 
■*  Pathfinder."  At  Record,  ln4,  line  44,  this  witness,  when 
testifying  in  the  "  Carolena"  case,  was,  on  his  direct  e.\-. 
amination,  asked  concerning  an  immaterial  (luestioii-  im- 
material as  to  the  "Carolena" — as  to  how  much  he  jiaiil 
f(»r  the  "Pathfinder"  and  answered  that  be  paid  alidiii 
!i<4..")n(i  for  her  in  Halifax.  .After  that  the  counsel  for  (he 
40  United  States  look  up  in  a  very  forcible  manner  the  ck^s 
examination  of  Munsie  regarding  these  bills  of  sale  :iiid 
mortgages  which  be  has  produced  with  reference  to  the 
"Carolena,"  and  the  discovery  was  made  that  thes(>  mkmi- 
gages  and  bills  of  sale;  ex|»ressed  a  consideration  wliicli.  if 
the  true  consideration,  made  the  testimony  of  Willi.iin 
Munsie  absolutely  tal-e 

The  counsel  for  the  United  States  also  asked  foi  Ilie 
register  and  the  niortgnges  in  the  case  of  the  "  Patli 
finder"  before  .Munsie  took  the  stand  in  the  case  of  tiic 
50  ••  Pathlinder."  and  these  moitgages  relating  to  the  trans- 
fVi' of  title  of  the  "  Pa'litinder ''  contained  a  convini  in,:;' 
argmnent  on  their  fac.-  that  they  weieof  the  samenatiuv 
as  the  mortgages  i'!  the  case  of  the  "Carolena,"  iieiauM' 
Munsi(>  bad  testified  in  the  first  part  of  this  Recoid  thai  !iu 
paid  %;4. "(00  for  the  "Pathfinder."  and  the  mortgage  ici 
Andrew  ,1.  Mecbtel.  produced  at  the  re(|Uest  of  counsel  fm 
the  I'nited  States,  disclosed  that  it  was  for  the  sum  nf 
^l.inT.  A  very  Olid  figure  lo  be  inserted  in  a  moitga^i' 
when  the  moitgage  is  given  for  money  borrowtul.  .\  \riy 
60  odd  Sinn  of  money  to  be  borrowed  b}'  one  man  from  m 
other. 

What  does  four  times  sf,  fo7  makei!  ^'4,4^s,  and  Miin-iu 
testified  that  he  paid  about  S4,r.no  for  the  "  Pathfinder  ' 

Referring  to  bis  testimony  given  at  a  later  time,  Keniil, 


isie  knew  of 

«1  Stat(v  - 
iid  out  11. at 
Uiinoiiy. 
but  adojii-d 
I.  TheiM.i- 
■en  shown  to 
as  oiicf  w  il- 
=«oiis  for  |iio- 
c'ontinui'  in 
)  is  a  sudden 
is  provt'ii  to 

I  not  true,  is 
weaken  llu> 
ring  ajiaiiivi 
nethin^-  ilso 
I'iieii  1  cduie 
end  to  (hvi'll 
lieivfoii"  all 
Lissod  in  I  he 

ininiissioiiff 
indiii";  foict' 
the  counsel 

II  the  faiv  (if 

d  States;  -I 

n  why  Mini- 
'  case  of  t  he 
itness,  when 
is  direct  ix - 
Iestion--illl■ 
nicli  he  paid 
paid  ahout 
nsel  for  the 
r  tlie  ('loss- 
:tf  sale  and 
•ence  to  the 
these  luiii t- 
)U  which,  if 
)f    William 

vcd  for  the 
lie  •'Path- 
case   of    till' 

o  tlie  trans- 

cniivincin^' 

anie  nalnn' 

a,"  hecausc 

cord  that  ii« 

lorl^Mj^e    to 

'  counstd  for 

tlie  snin  of 

a   niortna^^e 

'd.      A  Very 

n   from  an- 

and  Mine-i(3 
thtinder  ' 
mo,  Kecnid, 


741 

(Mr.  Warren's  Argument.) 

l.M  ">,  line  U.  we  ascertain  the  actual  amount  paid  for  the 
••  I  atlitinder"  at  Halifax: 

•Q.  Anil  she  cost  you  at  Nova  Scotia  otitfttted  and  ready  for  sea, 
••  the  amount  you  have  stated  ond  which  we  have  in  proof  elsewhere, 
"t  1.428?    A.   Yes,  sir. 

We  discover  from  the  mortgages  produced  at  our  re- 
loquest  that  Bechtel  had  a  mortgage  not  on  the  whole  ship 
hut  on  Hi  shares,  or  one  fourth  of  the  ship  for  exactly  one- 
fdiirth  of  the  amount  which  Mnnsie  says  he  paid  for  that 
ship,  and  that  Myre  N.  Bechtel  had  a  mortgage  on  16 
sillies  for  exactly  one-fourth  of  the  amount  which  Muii- 
sie  had  paid  for  the  "  Pathfinder." 

W  hat  kind  of  transactions  are  these,  that  when  Mnnsie 

nil utgages  to  Bechtel  he  should  always  execute  a   mort- 

ga:;!'.  not  covering  his  entire  interest,  but  such  a  proportion 

of  the  siiip  as  the  sun)  of  money  expressed  in  the  mortgage 

jpti'  I'e  the  loan,  beats  to  the  true  value  and  co.stof  the  ship? 

Mnnsie  had  testified  early  in  the  "Carolena"  case  that 
hi  |iaiii  about  S-4,5(»0  for  the  "Pathfinder"  and  he  was 
therefore  unwilling  to  attempt  to  convince  your  Honors 
hv  his  testimony  that  Bechtel  had  no  interest  in  the 
••I'athtinder." 

Sii  that  we  find  a  reason  for  William  Munsie  taking  a 
dill'eicnt  jjosition  in  the  case  of  the  *'  Pathfinder,"  and  he 
was  supported  by  the  assertion  of  the  coinisel  for  Great 
Britain,  that  it  was  immaterial  whether  or  not  a  citizen  of 
-otlie  I'liited  States  was  interested  in  the  venture  of  a  ship, 
fill  they  claimed  the  clause  or  paragraph  of  the  Convention 
of  Fehruary  8,  189t),  excluded  the  United  States  from  pre- 
seiitini!;  any  evidence  of  ownership  except  that  a  citizen  of 
the  I'liited  States  was  part  owner  of  the  bottom  of  the  ship. 
.Ml  Mnnsie  thought  he  was  saving  the  "Carolena"  claim 
and  not  sacrificing  the  "Pathfinder";  that  be  was  mak- 
iii}:  his  testimony  a])peai'  more  reasonalde  to  the  minds  of 
your  Honors,  and  at  '  ■•  same  time  not  abandoning  his 
claim  to  one  dollar. 

I  shall  take  up  briefiy  the  conli  nlioii  of  the  learned 
iiiiiiisel  for  (ireat  Britain,  that  1 1, e  clause  of  the  tre;ity 
limits  the  Ignited  States  tt)  estal)lishiiig  that  cii  i  I'lis  of 
the  I'liited  States  are  the  owners  of  tlu'  bottoms  of  the 
Hhips.  hut  for  the  piuixiseof  this  argument,  it  is  siiHicieiit 
to  show  to  your  Honors  that  William  Mnnsie  bad  a  reason 
fill  hidieving  that  was  the  inteiprt'tation  whii  li  would  be 
nivi  11  by  your  Honors  to  this  chiuse  of  the  '  onveiition 
under  which  you  sit. 

;o  Tlie  Counsel  for  (ireat  Britain  admit  that  Andrew  J. 
I!i  1  liii  I  was  interested  in  the  veiitiireof  the  "  Patbfiinler" 
ill  l^-^'.i.  We  accept  the  admission.  But  we  go  fuiiher, 
and  We  assert  tliat  he  was  a  part  owner  of  the  '  Path- 
tindii."'  We  claim  tiiat  Andrew  .J.  Bechtel  eau  be 
awaidei!  no  sum  of  money  whatever  by  this  High  Cou)- 
iiii— loll  I'nr  the  seizure  of  the  "  Patbfimh'r,"  provided  ho 
wa-  ii|ually  interesteil  in  the  venture  with  William  Mun- 
sie, and  that  lit;  was  is  admitted. 
1  will  call  your  Honois"  attention   to  the  clausi^  of  the 

6otiiaiv  wiiicii  contains  the  words  that  the  counsel  depend 
ii|ii  ii.  It  is  found  ill  the  last  paragraph  of  Article  ;J,  and 
is  a-  follows; 

Thry  shall  lu>  authorized  to  hear  and  examine,  etc.,  every  ques- 
'■  It'll  iif  fiii't  uot  found  liv  the  triliunal  of  arliitration,  and  to  receive 
"  111!  Miitalile  authentic  testimony  ci)nccrniii«  the  same;  and  the  Gov- 


ill. 


rj:  'tr 


742 

(Mr.  Warren's  Argument.) 

"  ernment  of  the  Uuited  Stateu  sliall  have  the  ri^ht  to  raise  the  i|;,.'h. 
"  tion  of  its  liability  Viefore  the  Commissioners  in  any  case  wlui  jt 
"  shall  be  proved  tiiat  the  vessel  was  wholly  or  in  part  the  aci  ml 
"  property  of  a  citizen  of  the  United  States." 

Tliat  is  the  clause  which  the  learned  counsel  say  |  o 
vents  the  United  States  fron)  advancing  succet^sfuliy  ihy 
claim  that  a  citizen  of  the   United  States  who  was  iiii,|- 

lOested  only  in  the  ventuie  of  one  of  the  seized  or  waiinil 
schooners,  cannot  recover.  That  is  hnt  one  clause  of  ilu; 
Convention,  and  if  the  construction  placed  upon  that  el;!  use 
by  the  counsel  for  Great  Bri'^ain  is  correct, this  result  wmild 
follow.  If  it  slundd  he  demonstrated  that  Andrew  ,1. 
Bechtel  was  equally  interested  in  the  venture  ot  In. 
"  Pathfinder "  at  the  time  of  her  seizure  and  he  esi  ih. 
lished  tliat  he  was  a  citizen  of  the  United  States,  niiiivo 
born,  that  be  had  never  put  his  foot  upon  British  soil,  ih  it, 
he  had  continued  to  reside  from  the  day  of  his  birth  until 

20  the  time  the  vessel  was  seized  within  the  jurisdictiun  ,,f 
the  country  to  which  he  owed  allegiance,  then  the  ((nin 
sel  for  (ireat  Britain  would  urge  tliat  Great  Britain  wuuld 
be  entitled  to  claim  and  recover  for  that  United  St.iics 
citizen  who  was  never  even  domiciled  within  the  bonlirs 
or  juiisdiction  of  (ir»'at  Britain.  Can  they  advann'  ;iny 
such  claim  as  that  iiefore  this  Commission?  Articli^  l 
reads: 

"  The  Higli  ooiitractinfj:  jiartios  uKrec  that  all  olaima  on  nc'oiuil  i4'  in- 
"jiirien  Kiifil'iiiifil  ht/  pernoiis  hi  ii  I„, .-<■•.  b-hulf  Oreiit  Ih-ilaiii  /.<  enlillnl  lo 
30  "  dinin  c'impi'iiaiiliiiti  from  llie  Unitfil  Stiitea,  iiiid  arising  by  virtuiM.l'  llm 
"  treaty  aforesaid,  the  award  and  the  findinKs  of  the  said  Trilniinil  of 
•■  Arbitratiou.  as  also  the  additional  claims  specified  in  the  tiftli  pain- 
"  graph  of  the  preamble  hereto,  shall  be  referred  to  two  Connuis.sinu- 
"  ers,  etc." 

Does  that  mean  that  a  citizen   of  tbe    Uniti'd  Stutcs  nf 
.America  who  never  set  his  foot  within  the  jurisdiclion  dt 
(ireat  Britam,  if  it  be  demonstrated,   that  Ik,'    was  intir 
e.sted  in  one  of  these  claims,  can  lie  represented  by  (iriMt 
Britain  and  recovei'  damages  before  this  High  Conuuis>i(iii? 

40  If  Andiew  .).  Bechtel  was  never  domiciled  within  the  ler 
ritory  of  (Jreat  Britain,  would  counsel  for  Great  Britain  still 
claim  that  Ibey  could  recover  for  him?  .And.  if  it  u.is 
established  that  any  citizen  of  the  United  States  domiciled 
in  the  United  States,  w;is  inteiested  in  the  venture  of  tlic 
"  Carolena  "or  tbe  "  Patbfinih'r'"  or  tbe  "  Favourite,'")  (mid 
your  Honors  award  that  United  States  citizen  any  sum 
whatever  for  damages?  Tbe  logical  answer  of  tbe  learm  d 
counsel  for  (ireat  Britain  would  be  that  you  could.  But  im 
such  content  ion  can  be  found  in  their  printed  argument 

50  Advt  rtiiig  again  to  tbe  suggestion  of  tbe  Conunissimirr 
for  tbe  United  States  that  1  should  show  what  connect mti 
Andrew  ,1,  i?e(litel  bad  with  tbe  "Carolena."  I  icfer  in 
tbe  testimony  of  .loiin  Cotsford,  on  i):ige  :i7;}of  the  Henml, 


line  «:>.      lie 
this  vovage. 


was  a   liimter  on  hoard  the  "Carolena, 
and  be  gives  tbe  following  testimony: 


on 


"  ()■    How  were  vou  emjiloyed  and  jirevailcd  on  to  go  ?     A.   liy   Nicl 
•'  Shields'  iiersuiisKiii  1  at  last  eouscutcd  to  go. 

•'  ().   .And  In  whdiii  did  you  state  that  you  would  go?     A.   Tn  Mr 
■'  Muusir  iiud  1(1  Mr.  IJi'ihtel. 
f  „      "  i).    1  '1(1  thcv  both  come  to  your  shop  together  to  emjiloy  you  ' 
'  Mr.  l'i't(rs:-N(>w,  I  really  think  tliat  is  a  little— — 
"  Mr.  DicUiiiKdii; — I  am  going  to  make  this  e.\amiuutiou  unless  I  xm 

"  stoplicd. 

"(,).   Willi  was  present  when  yon  finally  agreed  to  go,  and  when  ymi 
'■  were  cmpl(iyi'(l  lo  go  V     A.   Mr.  Munsie  and  Mr.  IJechtel. 
"  *.).  At  your  shop  V     A.   At  the  sho|)  where  I  was  working. 
'   (^.   Did  they  come  together  '>     K.   Yes,  sir. 


7+:^ 

(Mr.  Warren's  Argument.) 

•■  Q.  What  time  was  this  ?  A.  1  could  not  say  whether  it  was  in  the 
'■  imviioon  or  the  afteruooii. 

■g.  What  mouth  ?     A.  The  mouth  of  Mav. 

■  g.  188(5?     A.  Yes,  sir." 

Tliat  is  tlio  same  voyage  upon  vvliioh  t!ie  "  Carolena '' 
w  IS  seizeil.  On  cross-examination  of  tills  witness  at  page 
:^.i,  line  17,  he  said: 

10      ■  Q.  You  started  out  l)y  sayiug  that  you  wore  hired.     Who  were  you 

•  liii'il  liy  first  V     A.   lu  the  tirst  j>laee,  Ned  Shields  spoke  to  me  aud 

•  I  hell  Mr.  MuDsie  si)oke  to  me,  aud  then  Mr.  Muusie  and  Mr.  Beeh- 
••  1(1  came  together. 

■  (ji.  What  did  Shields  say  ?     A.  He  wanted  nw  to  go  sealing  in  the 

■■  Sril. 

•  g.   Did  you  eouseut  ?     A.   Not  at  first. 

■  (^).  Whom  did  you  see  next  ?    A.  Mr.  Mnnsie  was  next. 

■  i).  AVhere  '?     A.   lu  IJoliiusou's  Maeksmith  shop. 

•  i}.  Was  he  aloue  V     A.  He  was  alone  the  lirst  time. 

■  g.  What  took  ))laee  lietweeu  you  and  Muusie?      A.    He  wanted 

■  iiic  to  go  on  the  sehoimer. 

20     •   (,).  Did  you  eonseut  ?     .\.  No,  sir;  not  then. 

•■(,).  Did  you  refuse  V     A.   I  did  not  refuse  outright,   but  I  said  I 

■  .III!  not  earo  about  going  or  something  to  that  efleet,  but  after  a 
■■  while  I  consented  to  go. 

g.  Did  you  eousei>t  at  that  interview  ?    A.  No,  sir. 

■  g.  Did  you  go  away  stating  to  him  that  \m\  would  go  or  that  you 

■  would  not  go  ?     A.  I  do  not  think  I  agreed  either  way. 

•  g.  You  left  it  o|)eu  ?     A.   Yes. 

■  g.  Who  did  you  meet  next  ?    A.  They  both  came  in  the  shop  and 

■  1  suppose  I  might  have  met  Ned  Shields  in  the  meantime. 

•  g.  And  the  next  time  Mr.  Muusie  and  Mr.  Beehtel  eame  together, 

•  von  sav  V     A.  They  came  together  when  I  agreed  to  go. 
;0     "  g.  rtad  you  known  Mr.  Beehtel  before  ?     A.  Yes,  sir. 

■  g.  Intimately?     A.   Not  intimately. 

■  g.  Were  voti  friendly  with  him  ?    A.  I  was   on  speaking  terms 

•  with  him.     'riie  nuin  had  always  treated  me  well,  and  I  did  not  see 

■  why  I  shoiild  not  be  friendly  disposed  to  him. 

■  t).  Did  you  know  Mr.  Muusie  better  than  you  knew  Mr.  Becbtel  ? 

■  A.  No,  sir. 

■  g.  They  eame  together  at  the  same  time  ?    A.  Yes,  sir. 

•'  g.  And  Mr.  Munsie  begun  to  talk  about  that  voyage  ?    A.  I  think 

■  he  WHS  the  lirst  one  to  speak;  they  came  together  and  asked  me  in 

■  n^fiiird  to  going  sealing. 

•  ().  You  think  Mr.  Munsie  sjiokc  first — and  what  did  he  ask  you  ? 
Ill  •■  A.  He  asked  me  if  I  was  going  on  the  'Oarolena  '  sealing. 

■  Q.  What  did  you  say  V  A.  1  cannot  tell  you  word  for  word,  but 
'■  it  was  something  or  other  about  going  sealing  on  the  '  Carolena.' 

■   g.  Did  he  ask  yon  to  go  on  the  'Carolena?'     A.   Yes. 
■g.   Did  you  eonsent  V     .\.   I  agreed  to  go  then. 

■  {).  Did   Beehtel  try  to  persuade  you  to  go  ?     A.  They  lioth  per- 

■  ^uaileil  me  to  go;  they  spoke  to  me  about  going, 
g.  .\nd  then  yon  eonsenteil,  and  you  say  Beehtel  went  down  the 


st  coast  with  you  ?     .\.   Yes,  sir.' 

A^ain,  John  C'otsfonl,  testified,  and 
:<,  line  I'd: 


1   read  from  i)age 


■•(,),  Well,  who  engaged  in  the  purchase  of  canoes  at  Clavoquot? 
A.   Mr.  Ilechtel  did  the  most  of  it. 

'■(,),  Yon  had  about  the  best  canoe  in  the  lot,  didn't  you?  A.  I 
hiul  the  largest,  and  I  su|)pose  considered  a  little  the  best. 

■(,>.  How  niueh  did  it  cost?  A.  Eleven  dollars,  I  believe,  that  is 
wiuit  1  undt>rstood  the  |irice  that  was  paid  for  her. 

•  t^.  .Viid  you  had  some  talk  with  Beehtel;  he  did  not  want  to  buj' 
liir  liiciius(>  she  cost  so  niucliV  A.  Somebody  objected  to  the  price; 
111-  tlumght  a  smaller  one  would  do,  but  I  i)referred  it." 

Tht're  is  Beehtel  at  Clayotiuot  after  this  ship  liad  started 
,1111  hi  r  voyage,  before  the  coinpU'tion  of  which  she  was 
-  i/t'(l.  purcliasing  canoes  for  the  Indian  luniters. 

.\;.;ain,  at  page  :{Ss.  line  -J;"),  Colsford,  (»n  cross-examina- 

ihni.  says: 

■  •(•.  Have  you  any  recollection  at  all  as  to  tho   price?     A.   There 
■  wc  re  a  few  words  between  Beehtel  and  I  about  my  canoe  costing 


744 

(Mr.  Warren's  Argiiineiit.) 

"  more  than  the  others,  and  he  aaked  me  why  I  did  not  get  as  cht.M|>  a 
"  one  as  the  others." 

At  page  147  of  the  Record,  line  30.  we  have  a  refenn  .e 
to  the  connection  of  Andrew  J.  Bechtel  with  this  chiiii, 
which  is  of  a  most  convincing  nature.  Mr.  Btrli;,'! 
testified: 

lO      "Q-  Wlj"  1'"*  *l'^  flaiiu  in  for  Mr.  Ogilvie?    A.  It  was  througli  uif 
"  that  the  claim  was  put  in." 

Ogilvi?  was  the  captain  of  the  "Carolena"  on  this 
voyage  and  Andrew  J.  Bechtel  made  out  his  claim.  .\, . 
cording  to  his  story  he  was  appointed  administratdi  if 
Ogilvie's  estate  for  the  purpose  of  collecting  whatever  miih 
m;iy  be  coming  to  Captain  Ogilvie.  Now,  the  leariM  d 
counsel  may  say:  "  Why,  Bechtel  was  a  friend  of  Capt, mi 
Ogilvie  and  that  is  the  reason  he  put  in  Captain  Ogih  it  "st 
claim."  That  is  what  Andrew  J.  Bechtel  swears;  l.iit 
mere  swearing,  I  repeat,  does  not  conclude  the  judgiii'  nt 
of  the  Court.  It  is  credible  testin)ony  upon  whicli  judg- 
ments of  courts  of  justice  are  based. 

The  counsel  for  the  United  States  believe,  as  they  b.ivo 
urged  in  their  printed  argument,  in  more  than  one  plno-, 
that  Andrew  J.  Bechtel  was  owner  of  half  the  "  Caroli'ii,!  " 
in  lS8t),  wlien  she  was  seized,  and  we  accept  the  adniissi.;ii 
of  the  counsel  for  Great  Britain  tliat  lie  was  equally  in 
terested  in  the  venture  of  the  "Pathfinder"  in  IHSli,  inid 
,Q contend  that  that  fact  alone  prevents  this  High  Coimnis 
sion  from  awarding  him  any  sum  whatever  for  daiuips 
arising  by  reason  of  the  seizure  of  the  "Pathfinder"  in 
1881t.  but  assert  that  he  was  an  owner  of  pait  of  tiio 
"  Pathfinder." 

I  have  little  more  to  say  than  I  have  already  said  in  cnii- 
nection  with  the  claim  of  the  ''  Pathfinder"  for  1SS9,  hut 
desire  to  read  from  page  ;{5;i  of  our  printed  argUMtciit 
these  words: 


2o 


40 


"  He  also  stated  that  Hechtel  niMiuired  an  iutcroHt  in  the  voutuii'  of 
"  the  '  Pnthtiuder '  in  the  year  1H8C.  Tliis  is  u  positive  denial  nf  tlio 
"  statement  (if  Andrew  ,T.  Ueehtel  that  he  was  not  interested  in  t  ho 
"  sealing  Inisiness  until  about  tliree  years  j)rior  to  the  time  that  he  was 
"  testifying,  whieli  would  bo  1«92  or  1893." 

Willian\  Munsio  testified  early  in  the  Record  that  tlie 
cost  of  the  "  i'atlifinder"  was  ai)out  s4,r)(i0. 

On  direct-e.xamination  in  the  case  of  the  "  Pathfinder." 
lie  testified  that  the  actual  cost  was  exactly  four  tinns 
$I,lu7,  or  ^4.42>!.     Record,  page  15»ir),  line  15: 

.         "  Q.  And  she  eost  you  at   Nova  Seotia  outfitted   and   ready  for  sea 
■*     "  the  aiiiouut  von  havi'  stated,  and  which  we  liave  in  proof  elsewhoii', 
"  iif4,42SV    A.  "Yes." 

Is  more  conclusive  proof  than  this  desired?  Bef'on>  tlir 
"Pathfinder"  arrived  at  Victoria,  when  William  Mnnsir. 
going  directly  Jicross  the  continent,  reached  Victoria,  lie 
executed  a  mortgage  to  Bechtel  for  $1.1(»7  on  si.xtren 
shares.  Can  there  he  any  more  <  onchisive  evidence  than 
that,  I  n-<ki  Is  it  not  indeed  proof  that  these  two  vessnis, 
"  Cai'olena  "  and  "  Pathfinder,"  were  the  joint  projiertv 
Coi)f  these  two  men? 

I  do  not  overlook  the  testi  nony  in  the  Record  to  which 
the  learned  counsel  for  Oreat  Britain  leferred  in  hisniil 
argument,  where  it  is  disclosed  that  the  brother,  Myre  \. 
Bechtel,  held  a  mortgage  on  sixteen  shares  of  the  "  Path- 
finder" for  the  suinof  sl,lo7.     The  amounts  were  exactly 


get  as  cilia  I .  n 


as  throuRli  me 


745 

(Mr.  Warren's  Argumen*^^.) 

til     same  in  both  instruments,   and  the  shares  covered 
id,  iitically  the  same. 

When  Miinsie  attempted  to  explain  away  the  inference 
tc  ill'  drawn  from  the  considerations  expressed  in  tiie  bills 
ol  sale  and  mortgages,  conveying  the  "  Carolena,"  he 
St.  tod  that  although  the  atnount  inserted  in  the  mortgage 
\\:i~  stltiT,  that  hut  ^r)0(>  was  actually  borrowed.  So  in 
lotliis  case,  when  it  is  disclosed  that  the  mortgages  are  for 
till  siun  of  $1,107  each,  or  exactly  one-fourth  of  the  cost 
tlh  ship,  Munsie  testifies  that  he  borrowed  but  $2,000, 
til  it  is,  two  sunjs  of  $1,000  each.     Record,  page  1566,  line 


ih-i 


d   that  till' 


•  Q.  Dill  you  borrow  81,000,  as  you  said,  from  A.  J.  Bechtel,  or 
'•  ,li<l  you  borrow  81,107  '!    A.  I  l)orroweil  81,000  from  each  of  them. 

'■  Q.  Hut  you  piit  in  a  mortgage  for  the  full  value?  A.  For  the 
"  full  value. 

'•  (,).  Aud  you  put  in  the  mortgage  to  Myre  N.  Bechtel  the  full  value 
"III  his  shares  ?    A.  Yes,  the  full  value. 
^0     ■■  ().  Aud  vou  put   in — into  both   their   names  together— the  full 
"  \  ;i  1  lit'  of  half  the  ship  in  the  exact  figures  ?    A.  In  the  exact  figures. " 

111  the  "Carolena"  case  Munsie  testified  that  $167  of 
thr  ■r^tit)'  was  inserted  to  cover  interest,  and  although  the 
^('ii'iT  was  exactly  one-third  of  the  price  paid  for  the  ship, 
aci  Hiding  to  the  testimony  of  Hickey,  the  witness  thought 
ills  story  would  be  plausible  for  the  reason  that  no  note 
\v;is  given  with  that  loan,  according  to  his  former  testi- 
nil  my,  and  the  mortgage  by  its  terms  did  not  bear  in- 
3oti'i>'st. 

How,  I  ask,  will  the  counsel  reconcile  the  statements  in 
cdiiiuM'tion  with  the  "Pathfinder?"  Munsie  states  that 
lu'  borrowed  $l,oOO  from  each  of  the  Bechtels,  although 
iu'  ^Mvu  a  mortgage  to  each  for  the  sum  of  $1,107.  This 
iSl.  lot  is  exactly  one-fouith  of  $4, -128.  the  cost  of  the  vessel. 
Was,  1  ask,  the  $107  inserted  to  cover  interest  because 
tlit'ic  was  no  note  given,  and  because  the  mortgage  did 
nut  hear  interest?     liefer  to  the  Record,  at  page  1566,  line 

-^*-'     "  Q.  The  mortgages  were  drawn  without  interest  ?    A.  The  promis- 
■•  soiy  note  bore  interest. 

•  (,i.   You  say  that  the  promissory  note  bore  interest  ?     A.  Yes. 

••  (,».  Hut  the  mortgages  themselves  had  carefully  erased  the  pro- 
"  vision  for  interest  had  they  not,  aud  underlined  the  words:  '  With- 
■'  (Hit  iuterest '  ?    A.  Because  the  jiromissory  note  bore  interest. 

'•  (,>    And  you  put  that  in  aud  erased  the  provision  for  interest?    A. 

"  Yes," 

Till'  i)romissory  note  was  never  introduced  iu  evidence, 
nor  was  any  promissory  note  ever  claimed  to  have  been 
-oliv  iifchtel  to  Munsie  introduced  in  evidence. 

\\  luMi  there  was  a  note  given,  why  insert  in  the  mort- 
pi-r  tile  sum  of  $107  to  cover  interest?  The  attempt 
(if  I  liis  witness  to  explain  away  these  transactions  by  such 
t('i-!iiiioiiy  is  too  apparently  weak. 

That  in  every  mortgage  there  should  be  added  to  the 
anioiiiit,  which  Munsie  claimed  was  borrowed,  exactly 
enough  as  interest  .so  that  when  added  to  the  principal 
siiMi  the  correct  amount  paid  for  the  proportion  of  the 
siiiji  lovoied  by  the  mortgage  should  be  produced,  is  a 
6ofari  wiiicli  is  ai)solutely  inexplainable  on  any  other  theory 
tlii!i  that  these  mortgages  were  receipts  given  to  Bechtel 
as  'MiJt'Mce  of  his  interest  in  the  vessels. 

Tiu'  fact  that  a  brother  of  Andrew  J.  Becljtel  took  one 
(if  I  lie  receipts  showing  Bechtel's  title,  antl  that  by  some 
Mnuis  or  other,  fair  or  false,  atid  presumably  false,  these 


I  ' 


M- 


r4« 


(Mr.  Warren's  Argument.) 

witnesses  have  invented  some  plan  of  showing  on  pa'ti- 
that  a  sum  of  money  was  paid  to  the  estate  of  MyioN. 
Bechtel  is  not  wortliy  of  serious  consideration. 

Andiew  J.  Bechtel  did  have  an  interest  in  one  fomili 
of  the  vessel  on  the  face  of  the  records;  he  did  have,   n 
cording  to  Munsie's  statement,  an  interest  in  one-hnlt  ..f 
the  venture  of  the  "  Pathfinder,"  and  Munsie  makes  no 

10 mention  of  Myre  N.  Bechters  interest  in  the  venture.  Imt 
only  of  the  mortgage  to  Myre  N.  Bechtel,  and  that  is  uliv 
I  say  that  testiniony  is  not  worthy  of  serious  considcia- 
tion.  for  it  is  immaterial  in  whose  nauK!  these  mort};,i-.s 
were,  as  long  as  Minisie  testified  that  Andrew  J.  Beelihl 
was  the  man  who  had  a  one-half  interest  in  the  vent  me 
of  the  ship. 

We  do  not  care  what  the  mortgages  stated,  because  we 
have  obtained  some  knowledge  of  what  Munsie  aiui 
Bechtel  can  make  mortgages  say. 

20     [  refer,  however,  to  theKecord,  at  page  1585,  line  ()(»: 

"  Q.  Was  M.  N.  B<\litel  interewted  with  A.  J.  Boolitel  in  the  sial- 
"  ing  buHiness,  or  was  it  A.  J.  Bechtel's  private  matter?  A.  \  J. 
"  Bechtel's  private  matter." 

Again  at  Record,  page  1575,  line  38: 

"  Q.  Did  you  from  time  to  time  pay  interest  on  the  mortgagcH  ilmt 
"  were  on  that  vessel?    A.  Yes. 

"  Q.  To  whom  did  yoii  pay  them?     A.  I  paid  them  to  A.  J.  Beolitel, 
"  Q.  Did  he  act  for  his  lirother  as  well  as  himself.     A.  I  holiove 

-,Q  "  that  he  acted  for  his  brother  as  well  as  himself,  and  the  interest  wus 

■*     "  indorsed  on  the  promissory  note." 

Again  at  page  1583,  line  27: 

"  Q.  When  did  you  destroy  that  note?    A.  I  think  that  it  was  can- 

"  celled — when  the  mortgage  was  cancelled  I  think  I  destroyed  it.     I 

"  never  keep  a  note  after  it  is  cancelled. 
"  Q.   And  a  similar  note  ran  to  M.   N.  Bechtel?    A.  No,  it   wus  ii 

"  joint  note  for  3:.?,0()0,  §1,{)1)0  each.     It  was  a  note  to  them  jointly,  to 

"  A.  J.  Bechtel  and  Myre  Bechtel  from  myself. 
"  Q.  But  while  you  took  a  joint  note — you  gave  a  note  to  tlium 
jointly,  but  you  gave  separate  mortgages?    A.   Oave  separate  mort- 
gages. 
"  Q.  Was  there  any  reason  why  it  was  not  referred  to  in  the  uunt- 

"  gages?    A.  I  don't  know  as  there  was. 
"  Q.  Then  the  semi-annual  interest  payment  which  you  paid  on  the 

"  note   would  be  semi-annual  interest   pavment  on  ii?2,0()0?     A    On 

"  §2,000. 
"  Q.  Which  you  would  pay  to  A.  J.  Bechtel  for  both?    A.    Ves,  /,<< 

"  (lone  Iht  hnniiianH/o)-  lii>;  liri>lli<r.\" 

!Same  testimony  was  introduced  as  to  the  payiniiil  uf 
the   mortgage   debt   to   M.  N.   Bechtel,   and   I  a^k    Vdur 
50  Honors  ttt  consider  the  testimony  at  page   1585  of  Kecoid, 
line  ('>;3: 

"  Q.  Then  his  interest  in  the  profits  of  the  sealing  business,  as  ymi 
•'  testiiied  at  a  former  session,  was  with  A.  J.  Bechtel?  A.  Wlmlly 
"  with  A.  J.  Beehtel,  witli  the  exception  of  one  year,  IH'.IO,  tlie  vc<sol 
"  made  a  trip  which  profited  him,  Mr.  Beclitel  desiring  to  help  his 
"  brother's  children,  divided  his  profits  with  tliem. 

"  Q.  Did  you  have  anything  to  do  with  that?  A.  Nothing  whatever 
"  exeei)t  by'the  instructions  from  A.  J.  Bechtel  to  pay  money  over  to 
"  Mr.  Eaynes  for  that  estate. 

"Q.   In  IS'.tO?     A.   18it0;  that  is  all. 
f>0      "Q.   And  if  you  gave  a  check  of  §1,000— you  did  give  cheeks  to 
"  Havnes,  which   vou  charged  to  A.  J.  Bechtel,  did  you  not?    \   In 
"  IHil'o? 

"  Q.  1H90,  the  year  just  mentioned,  is  the  one  in  which  A.  ,T.  licch- 
"  tel  gave  some  of  the  jjrotits  to  the  estate  on  account  of  the  cliililn  uV 
"  You  did  give  checks  on  that  account  to  Hayncs?  A.  Yes,  1  lielieve 
"  it  was  to  the  estate. 


40. 


r47 


m 


iiortgagCH  tlmt 


)  in  the  iiunt- 


(Mr.  Warren's  Argument.) 

'  Q.  You  gave  it  to  Haynes?    A.  I  don't  remember  now  how  the 

•  ■  .lit'cks  were  drawn;  I  have  forgotten. 

•  (}.  Such  checks  ns  you  gave  to  Haynen  to  that  account,  from  A.  J. 

•  '  Ki'chtcrB  profits,  you  charged  to  A.  J.  Bechtel,  did  you  not,  in  your 
"  ari'ount  of  the  sealing  buHinuss  with  Bechtel?  A.  \Voll,  I  had  no 
"  ii.'cuuut  with  him. 

' '  Q.  But  such  as  you  had,  did  you  take  out  of  Beohtul's  share?  A. 
••  \i'm;  took  it  out  of  Bechtel's  share." 

10  Alter  this  testimony  was  given,  the  attempt  was  made 
tci  -liow  that  one  of  these  checks  was  given  in  satisfaction 
(il    tlie  My  re  N.  Bechtel  moitgage.     Record,  page  1590, 

\\w  .'i.'i: 

■■(,).  There  is  an  entrv  here  '  By  cash  from  William  Munsic,  account 
•■  •  >cliooucr  '  Pathfinder,'  «1,()00?'     A.   Yes,  sir. 

•■{^.  That  is  the  whole  entry?     A.  Yes,  sir. 

■■Q.  And  that  entry  is  exactly  the  same  as  when  you  received  the 
•' liiiok,  of  course?    A.  Oh,  yes,  sir." 

,\ik1  again  at  Record,  page   1597,  line  27,  this  matter 
-°iv;is  considered: 

•i).  The  first  entry  is,  '  1890,  November  8th.  To  cash  received. 
"  ■  From  William  Munsie,  schooner  '  Pathfinder  '  81,000.'  This  is  the 
••  account  put  in  by  the  Administration,  I  believe?     A.  Yes,  sir." 

.Anil  at  line  45  of  the  same  page  of  the  Record  is  this 
ti'>liinony: 

'{).  That  account  also  contains  the  item  '$.3,484,  by  order  of  A.  J. 

•'Itcchtel.'    What  is  that?    A.  That   was  from    Mr.  Bechtel  to  the 

"  diildren.     The  property  was  not  bringing  them  in  much,  and  so  Mr. 

^0  '  liccbtel  said  that  he  would,  in  consideration  of  the  three  children 

"  iillow  tLeni  half  of  his  profits. 

•'  Q.  lu  what?  A.  In  the  schooner  '  Pathfinder.'  Half  of  the  prof- 
"  its  that  he  received  from  the  schooner  'Pathfinder'  for  the  year 
"  IS'.lO  was  to  go  to  the  children  for  their  benefit. 

"  (^>.  And,  therefore,  by  his  order  it  was  paid  to  the  estate?  A.  Yes, 
"  sir. 

"  (.}.  Was  that  paid  before  you  took  the  estate  over?  A.  Yes,  that 
■•  WHS  paid  to  Mr.  Haynes." 


4" 


W 


And  at  page  1599  of  Record,  line  S,  this  check  was  again 

considered: 

•  ().  Mr.  Munsie  did  give  a  check  for  a  81,000,  and  that  is  entered 
"  on  Iho  estate  accounts  as  '  Check  from  William  Munsie  on  account 
•■  of  tlio  schooner  '  Pathfinder  '?     A.  Wm,  sir. 

■•  i).  Do  you  know  to  whose  order  fliat  oheck  ran.  Have  you  got 
"  the  check  anywhere?    A.  No,  sir;  I  htve  not." 

(In  the  same  page  of  the  Record,  line  37,  is  this  testi- 

inimy: 

"  (.).  It  appears  from  the  account  that  the  three  principal  items 
•  crclitcHl  were  there;  81,000,  83,484.63,  and  the  8250  from  real  estate? 
'■  .\.  Yes,  it  appears  that  way." 

"V-  And  both  of  the  large  amounts  were  Mr.  Munsie's  checks?  A. 
"Yes,  sir." 


»»•! 


Il  is  (iierefore  apparent  that  this  $l,00fi  was  paid  from 
tlir  |ii(>tits  of  the  schooner  "  Pathfinder  "  in  the  year  1890. 
Till' checL  on  its  face  says:  "On  account  of  the  schooner 
'  I'atlitiiider,'  "  and  the  entry  in  the  account  says;  "  Check 
"trmn  William  Munsie,  on  account  of  the  schooner 
•  r.itiitinder.'" 

Tlicro  is  no  reference  lo  the  money  being  paid  in  satis- 
fy f;ut  ion  of  a  mortgage,  no  ^rmount  was  paid  for  interest, 
and  tli(?ro  is  the  testimony  of  Munsie  that  in  the  year  1890 
A.  .).  Bechtel  gave  to  the  children  of  Myre  N.  Bechtel  one- 
liall  of  his  profits  in  the  s^chooner  "  Pathfinder." 

Tliore  is  nothing  inconsistent  with  the  contention  of  the 
oiunsol  for  the  United  States  here.     The  claim  is  that 


-  !N 


).'r  1  ■ 
'■'(■  ",  -,  '■ 


»( ■.  > '! 


748 

(Mr.  VVant'ii's  Aigumt'iit.) 

Beolifel    was   half  owiht  and   (.ertaiiily   was  oiilitkil  to 
chocks  coveiiiip;  tlx'  inoHtH 

I  proceed  to  read  fioiii  paj^e  Hfj;}  of  our  printed  ,11-11. 
ment: 

"The  8UI11  of  tlu>  two  iiiortKiiK'-'*  (iplifai'iuKou  tho  rogiHttTH,  iih  j,'p.  .  h 
"  to  the  BiH'htfl.s,  would  lie  ii^'2,'J14,  or  ime-hulf  the  value  of  the  '  I'.iili- 
"'tinder.'     These   (icculiiir   proportiouH   existed  in  the   ease  ol   ilu' 

10  "  '  Caroleuft,'  although  Mr.  Muusie  there  eudeavored  to  establiMli  ilmt 
"  he  had  paid  mouev  in  addition  to  the  consideration  expressed  in  tin. 
"  bills  of  sale,  in  order  to  avoid  the  neoossary  eonelusion  that  Mr.  hi,! 
"  was  an  e(iual  owner.  But  I'atriek  Hiekey,  who  swore  that  Imt  >J,- 
"  000  was  paid  for  the  vessel  when  Munsie  purchased  her,  eoutrailiricil 
"  him,  and  proved  eouclusively  that  the  mortgage  to  Beehtel  ou  il,,, 
"  '  Caroleua  '  was  one-half  its  value. 

"The  details  of  the  eross-examination  of  Munsie  relative  tu  tin. 
"  trausaetion  with  Beehtel  eoueerniug  the  '  Pathfinder,'  and  whicl  are 
"  found  in  his  cross-examination.  Record,  pages  15()3  to  15ti!t,  estaMisb 
"  the  conviction  that  liechtel  was  a  half  owner  of  the  '  Pathiimlcr.  us 
"  ho  was  a  half  owner  of  the  'Caroleua.' 

20  "  In  the  argument  on  behalf  of  (treat  Britain  it  is  adniiitcil  ilmt 
"Beehtel  was  eiiually  interested  in  the  venture  of  the  '  I'atlit'iinlir' 
"  in  188i>.  The  mortgages  which  are  in  evidence,  executed  by  Munsie 
"  &  Came  to  JJechtel,  have  the  same  peculiar  characteristics  as  the 
"  mortgages  executed  on  the  'Carolena. '  They  do  not  bear  int(>n'st. 
"  the  interest  clauses  being  erased. 

"  Andrew  J.  Beehtel  testified  that  he  was  not  interested  in  any  ship 
"  in  the  sealing  business  nutil  about  three  vears  before  the  tiinr  \w 
"  was  testifying.  This  was  before  Munsie  had  decided,  in  order  to 
"  attemi>t  to  save  the  'Carolena  '  claim,  to  acknowledge  that  lieclitel 
"  was  interested  in  the  venture  of  the  '  Pathtinder  '  in  the  year  IHHO, 
"  and  to  give  the  history  of  their  dealings  in  the  years  1886,1887,  1888 
Q  "  and  1889. 

J  "  The  only  conclusion  which  can  be  drawn  from  the  testimony  nnd 
"  from  the  exhibits  found  in  the  Record  in  connection  with  these  two 
"  claims  is  that  Andrew  .7.  Beehtel  was  a  half  owner  of  the  '('nrolinu' 
"  at  the  time  of  her  seizure  and  a  half  owner  of  the  '  Pathfinder '  nt 
"  the  time  of  her  seizure. 

"  The  imiiression  created  by  these  witnesses  at  Victoria  was  tliiit 
"  these  mortgages,  as  said  by  one  of  the  High  Commissioners,  wore 
"  '  whitewash  mortgages '  and  that  impression  was  never  removed,  aud 
"  a  reading  of  the  Record  does  not  now  remove  it." 

Your  Honofs  will  remeniher  that  the  claim  of  the 
40"  Pathfinder"  is  entirely  for  the  value  of  the  seal  skins 
actually  taken,  an<l  for  the  use  of  the  vessel  hetween  the 
time  she  was  seized  in  Berinjj  Sea,  and  the  close  of  the 
sealing  season.  Although  the  "Pathfinder"  was  sni/i'd, 
she  did  not  proceed  to  Sitka  as  instructed,  but  sailcil  to 
Victoria,  and  there  is  no  claim  heforc;  this  Higli  Commis- 
sion for  the  vahu!  of  the  hottom  of  the  ship. 

Andrew  J.  Beehtel  was  a  half  owner  of  the  skins  liiat 
were  seized,  and  was  entitled  to  a  half  interest  in  wli.it- 
ever  the  vessel  would  have  earned  during  the  time  tliat 
joelapsed  between  the  date  that  she  actually  left  theSeaaiui 
the  ordinary  and  natural  termination  of  the  sealing  voyage 
in  Bering  Sea. 


OWNEHSHIP   "  PaTHKINDEU  "  ClAISI    NUMBER  21. 

With  reference  to  the  claim  of  the  "  Pathfinder  "  for  the 
year  1890,  which  is  claim  No.  21,  it  may  be  convenient  to 
have  at  this  place  the  admission  made  on  behalf  of  (inat 
Britain  that  at  the  time  of  the  last  seizure  the  interest  of 
60  Andrew  J.  Beehtel  remained  unchanged  from  the  lime 
the  vessel  was  seized  in  issit,  at  which  time  he  was  :i  lialf 
owner  of  the  venture,  acconiing  to  the  adn)ission  nl  tlie 
counsel  for  Great  Britain. 

Tiiat  admission  is  not  in  the  argument  for  Great  Britain, 
but  is  found  in  the  Record,  at  page  1811,  line  20. 


741» 


m 


s  t'lititlid  In 
lintod   ai-ii- 


10 


(Mr.  Warren's  Argument.) 

The  counsel  for  Great  Biitain  had  made  a  statement 
wliich  is  found  at  the  top  of  the  page,  as  follows: 

"  The  relatioDB  betwoou  Mr.  Beclitel  aud  Mr.  Mnnsio  were  tbo  name 
"111  IHOO  an  they  were  in  1889,  in  reupeot  to  the  '  PatLHndor,'  and  bor 
"  ontcb." 

At  line  19,  the  same  page  of  the  Record,  the  counsel  for 
the  United  States  replied: 

"  Taking  tbe  statement  of  our  learned  friend  aa  to  the  interests  of 
"  Jk'ohtel  being  unchanged,  whatever  they  wore,  in  tbo  '  Pathfinder,' 
•'  and  in  tbe  venture,  as  already  in;  wo  have  nothing  further  to  add, 
"  except  to  call  the  Court's  attention,"  etc. 

Here  is  an  admission  in  open  court  by  the  Senior  Coun- 
sol  for  Great  Britain,  which  vvas  accepted  by  the  Senior 
(Viuiisel  for  the  United  States,  that  the  relations  of  these 
parties,  whatever  they  were  in  1889,  remained  unchanged 
up  to  and  including  tne  time  of  the  seizure  of  the  "Path 
^°  finder  "  in  Neah  Bay,  in  1890. 

At  half-past  one  o'clock  p.m.  the  Commissioners  rose. 


ctoria  wan  that 
iiissioners,  wire 
er  removi'd,  uud 


1  i 


'  ■  ■'  I 

^ 

GommiBsioners  under  the  Convention  of  February  h. 

1896,  between  the  United  States  of 

America  and  Great  Britain. 


lo  Legislative  Council  Chanibor,  Provincial  Builtiiii^. 

At  Halifax,  N.  S.,  September  18,  ISHT. 
At  10.30  A.  M.  the  Commissioners  took  tlieir  seats. 
Mr.  Warren:— May  your  Honors  please, 

I  desire  briefly  to  state  the  facts  which  establish  beyoiiil 
any  controversy   that   Andrew  J.    Bochtel   was  a  hiili 
owner  of  the  "  Carolena  "  and  the  "  Pathfinder." 

William  Munsio  has  testified  that  in  l8H(i  Andrew  .1. 
Bechtel  was  equally  interested  with  him  in  the  "  I'ath. 
^°  finder,"  so  that  they  had  a  business  connection  in  the  seiii- 
ing  business. 

The  testimony  of  Andrew  J.  Bechtt  i  >  llecord,  page  '.V.H. 
line  ;{8),  discloses  that  they  were  engaged  together  in  tin* 
sealing  business: 

"  Q.  Dill  you  n'Kitttcr  Mr.  Miin8ic  iis  tlio  maunKiu^  owner '/  A.  I 
"  boliovo  so;  Mr.  MuuHio  whh  tli<>  iiinuagiuK  owuer;  that  is  to  huv,  Im 
"  nianagod  the  vchhi'1  for  me  (lurioK  uiy  abseuoo. 

"Q.  Wan  Mr.  Muiisio  the  mauagiug  owner?  A.  He  managed  t  lie 
'  vessel  when  I  was  away." 

This  testimony  does  not  refer  to  the  ''Carolena,"  l)iit  in 
cited  only  as  showing  the  relations  between  the  partiis 
at  a  later  time. 

Andrew  J    Bechtel  denied  what  was  admitted  by  Mini 
sie  that  he  bad  an  interest  in   the  '    ^■^\'  .aider."     Will 
iam  Munsie  came  to  the  City   of  Halifax,  purchased  tln> 
"  Patlifinder  "  for  ^4,428;  journeyed  across  the  continent 
to  Victoria  while  the  **  Pathfinder  "   was  sailing  around 
Cai)e   Horn,   and  what  did    he  do^     Before    that    vessel 
40 •■t'ii*'l't'd    Victoria   he  executed  a  ninitgago  to  Andrew  J. 
Bechtel.      For    how     nnich<     ^1.107,    covering    sixteen 
shares,  or  exactly  one  (juarter  of  the  ship,  for  a  consider 
atioii  of  exactly   one-fourth  of  the  amount  that  Munsie 
had  paid  for  the  vessel  in  Halifax.     Munsie  also  executed 
to  Myre  N.  Bechtel  a  mortgage  for  the  same  consideration 
and  covering  sixteen  other  shares  of  the  ship. 

Now,  if  your  Honors  please,  if  those  were  mortgages, 
why  was  tiiat  consideration  expressed?  That  was  not  the 
sum  that  Munsie  claims  he  borrowed,  and  there  is  110 
50 other  explanation  for  the  inseition  of  the  sum  of  SI,  In; 
in  each  of  the  moi  tgages,  except  the  fact  that  that  was 
the  real  cost  of  ii)v  proportion  of  the  ship  covei'ed  by  eaeii 
of  the  mortgages. 

When  William  Munsie  arrived  at  Victoria,  he  received 
from  Andrew  J.  Bechtel,  who  used  in  one  mortgage  bis 
brother's  name,  the  sum  of  ^2,214,  or  exactly  one-half  of 
the  amount  that  be  had  paid  for  the  ship  in  Halifax. 

Why,  if  those  woie  mortgages,  did  Munsie  mortgage  :t 
ship  to  Bechtel  which  had  never  been  in  the  Port  of  Vie 
6otoria?    Mortgage   a   ship  which  was   on  its  way  around 
Cape  Horn  to  the  Bechtels   for  exactly   one-half  of  the 
money  which  he  had  paid  out  in  the  City  of  Halifax? 

Because,  I  contend,  if  your  Honors  please,  that  he  re- 
ceived that  money  from  Andrew  J.  Bechtel  to  reimbuise 
him  for  what  he  had  paid  for  Bechtel's  benefit. 


T51 

(Mr.  Wum-n'H  Ai>;mnt'nt.) 

llii'si'  Hkuivs  ront'spoiid  rxtictly,  lliat  is,  in  tli»>  propor- 
tiiiii-^  l\w  considerations  t'xpivsscd  in  the  inoitjiaps  suh- 
tiiiii  to  tlio  actual  cost  of  tlic  siiarcs  of  tlic  ship  covered  l)y 
the  niortK''<W'''^.  with  the  Holies  expressed  in  and  the  iniin- 
iici  of  shares  coveted  liy  tiie  nioityaK''s  on  the  "Caio- 
Ifii.i." 

Willi,  ni  MuMsie  niortgatted  exactly  one-half  of  the  iii- 
lotriest  lie  pi>ssessed  in  the  "C'ai'oiena"  to  Andrew  ,). 
Heciitel  for  exactly  one-iialf  of  theanioinit  of  money,  ac- 
rdiiliiiK  to  the  testimony  of  Patrick  llickey.  that  was  |)aid 
III  Captain  I  icpdiart  and  Patrick  llickey  for  that  vessel. 
He  siiys  in  explanation  of  the  first  moilnaj.',e  that,  he  oidy 
Imrrowed  !i<."iOo  insti'ad  of  s^titiT,  ami  tiiat  the  >^H\'  was  in- 
siiled  to  cover  interest. 

1  hron^ht  fo  your  llonois'  attention  the  fact  that  the 
inort^ajie  did  not  hi'ar  intei'est,  and  that  when  tin-  next 
iiiorlnaKe  was  executed  for  sl.noo,  that  is,  for  half  tho 
20 Millie  of  the  ship  after  Miuisie  hail  acipiired  the  entiro 
interest,  liiat  niortt;a^(!  did  not  hear  interest,  and  did  not 
ill  liide  any  amount  to  cover  inleiest. 

The  latest  mortgan'e  was  for  sl,(MMt.  and  nothing  was 
iiiM'ited  to  cover  interest,  and  the  sl.onu  was  exiictly  one- 
lulf  of  the  amount  that  Munsie  had  paid,  according  to  the 
testimony  of  llickey,  for  the  vessel. 

I'lie  other  mortgage  was  for  ijstldT,  and  Munsie  claimed 
that  i^HiT  was  inserted  to  cover  interest  hecausi;  he  desired 
to  avoid  the  conclusion  that  would  necessarily  he  drawn 
^ofiom  the  fact  that  this  mortgage  was  for  >?tl»17,  exactly 
eiie  half  of  !?1,:'.:!1,  which  Mi'.  Munsie  had  paid  to  rnpihart 
and  llickey  at  the  time  that  this  first  morfgagt;  was  exe- 
cuted, for  he  had  tlien  acipiired  two-thirds  of  the  ship,  and 
tud-tliirds  of  sl'imio  is  sj,:!;;-!. 

The  Commissioner  on  the  part  of  the  l^iuted  States: — 
"1)1(1  he  say  how  much  was  advan(!ed  on  the  second 
nmrtgager' 

Ml.  Waireii:   -"  He  said  !?l,uu(i." 

The  Coiumis-^idUei  on  the  part  of  tiie  United  States: — 
4-'"('aii  yoLi  give  me  the  reference  to  that^ 

.Ml.  Wain'U,  at  |)age  sx,  approxiniately  line  aO; 

"  (,).  Dill  vdu  Ki'ttlc  tliiit  inoi'tRiiKiMij)  in  tlii' followiiif;  Jnni^?  (That 
"  is  iilVii'iiij;  t(i  tlic  .IrliCi"  luoi'tgaKi'.  i  A.  WTuui  I  timinlit  Miitlu'soii  out 
••  ill  .Iniii',  I  lioiTowt'il  S011U'  iiuiri'  iiiiiiu'y,  n\iii't>lli'il  tliiit  iimrtnaiic'  auil 
•  Kiivi'  one  for  Si, ()(•(».      I  t)orr<i\voil  tliiil  from  Mr.  IJocliti'l." 

It  he  hoi  rowed  it!i,noo  from  Mr.  Bechtel  and  the  mort- 
,L;;i,i;e  ilid  not  hear  interest,  why  did  he  not  insert  sf>me- 
ihing  to  cover  interest?  He  thought  that  story  of  .slt!7 
;ol'eiiig  inserted  in  the  first  mortgage  would  he  plausihle, 
lierause  the  interest  clause  was  stiickeii  out,  and  the  infer- 
riuo  would  lie  that  Mechtel  desired  somtdhing  to  securi?  to 
liini  the  payment  of  interest;  hut  here  is  a  similar  transac- 
inm,  and  no  amount  was  inserted  to  cover  interest,  al- 
ili'iiigh  they  l)()th  testified  that  no  note  was  given. 


1       I 


1  refer  to  the  testimony.  Record,  laSS,  line  ;{'.•: 

■'(,).  How  imii'liiliil  lie  imyV  A.  In  18H7  liis  projiortionof  tlio  i)rofitH 
■'  ami  curnintiH  was  iilioiit  iS2,5(tO.  'I'/ml  n-ns  Irfi  i„  //,,■  fmiil.  Ho 
'"J"  iiiiiil''  alxiut  !#5liO. 

"K^.  iHil  you  I'lmic  to  any  ai-i-ountuijj;':'  A.  Well,  yi's,  lint  lio  iliiln't 
'■  lalii'  any  money  out. 

•■(,(.  Ill  this  ari'iiuutiiif;  what  was  ('liavjjcil  aKainst  tho  fund  for  your 
•■  joint  ai'oount  to  asoortiiiu  tlie  protttsV  A.  'I'hi!  rnnuiu){  ox2>ouso»  ot 
■'  llio  vi'ssol  for  tho  yoar. 

•Q.  luchuliuK  onttit  iiutl  wages?    A.   Evorythiug. " 


w 


H 


<;>:; 


(Mr.  Wanen's  Arguiiiont.) 

Unless,  I  ask,  Bochtel  was  a  half  owner  of  the  "  Paih 
finder,"  why  did  lie  leave  the  profits  which  he  made  in  lii,. 
bnsiness?  If,  as  Munsie  testified,  he  had  only  pnrcli,i-i  ,1 
an  interest  in  the  profits,  why,  when  the  profits  had  l)i en 
made,  did  he  not  ri'ceivo  his  share?  The  fact  tliat  tlic 
money  was  left  and  a  joint  fund  created  conclusively  is 
tablishes  that  there  was  a  partnership  existing;  hetwii  n 

lothese  two  men,  for  on  no  other  theory  can  the  fact  tii  it 
Bechtel  allowed  his  earnmgs  to  remain  in  the  bnsiiitss 
be  accounted  for. 

These  facts  and  the  apparent  contradictions  disclosnl 
between  the  testimony  of  B(>chtel  and  Munsie,  and  the 
false  testimony  jjiven  by  each,  fiiiidy  establish  the  fact 
that  Andrew  J.  Bechtel,  a  citizen  of  the  Tnited  States  of 
America,  was  an  owner  of  one  half  of  the  "Carolena" 
and  the  "Pathfinder,"  and  that  he  is  the  owner  ot  one 
half  of  these  claims. 

20 

Ownership  of  tmk  "Bl.vck  Diamond,"  issd. 

I  will  ne.xt  take  up  the  consideration  of  the  interest  of 
Ale.xander  Frank,  in  the  claim  known  as  the  "  Hla(  k 
Diamond,"  for  the  year  18S6,  which  is  discussed,  'u'^in- 
niuK  at  i)ap;e  '.\~ii  of  our  printed  argunusnt.  During  my 
oral  argument  I  road  the  admission  found  in  the  British 
Argument  at  i)age  47,  line  )i'\: 

■iQ  "  III  the  cn.ie  f/  tite  '  Bliick  l)iiimoii<l  No.  -T  anil  the  'Alfred  Ail^nns,' 
"  l/ie  title  iriis  in  ii  Ilritiah  siihject,  hut  the  ress'-ls  irere  ojiei-uled  fur  the  /imetil 
"  of  u  triiiiiiifi  firii)  lit  Victoria,  composeil  of  the  oinier  iiiiil  one  Alcrdudci- 
"  Fratil;  trim  ii-fis  n  mitire  Imrn  citizen  of  the  United  States." 

After!  read  that  admission  made  in  the  argument  of  the 
counsel  for  (Jreat  Uiitain,  the  learned  senior  counsel  an isr 
and  said  that  he  desirtvl  to  make  some  correction  there  as 
that  was  a  mistake,  and  he  based  his  assertion  on  tills 
fact,  that  the  itartnershi))  lietvveen  (iutman  and  Frank  did 
not  commence  until  January,  1SS7. 

40  Mr.  Peters: — It  is  necessary  to  find  out  lirst  whether  I 
ever  made  such  a  statement.  I  certaiidy  never  did; 
nothing  like  it;  that  the  partnership  began  at  a  ceitain 
date.  1  was  referring  to  the  transfer  of  the  shij)  to  (iut- 
man. I  was  jiot  referring  to  thei:'  partnersiiii),  and  was 
not  thinking  of  it. 

Mr.  Wairon: — If  your  Honois  |)lease,  the  United  Slates 
in  their  reply  to  that  admission  on  the  ]>art  of  (ii'eat  Brit- 
ain said,  at  page  ;!"!•  of  tin- argument:  "  Tlu*  Record  diir'- 
closes    that    Alexander    Frank   and    .lacol)    (Iutman.    de- 

SOoased,  were  e(pial  partners,  which,  taken  with  the  adniis 
sion  made  on  behalf  of  (ire;  t  Hrit.iin,  conclusively  proves 
that  Alexander  Frank  is  a  half  owner  of  this  cbum." 

1  propose  to  show  whenever  .lacob  (iutman  had  an  iir 
terest  in  any  of  these  vessels,  Alexander  Fr'ank  was  also 
inteii>sti'd:  ;ind  the  Record  does  uot  disclose  any  testimony 
oi'  any  intimation  that  the  partnership  of  (iutman  ami 
Frank  beg;in  on  the  first  day  of  .lanuary,  js.sy,  |)nt  cleaily 
sliows  that  (he  parlnersliiit  relation  existt.'d  early  in  Ism;. 
I  rest  it  tipon  this  ground  solely:   If  that  vessel  was  opcr 

^oateil  for  the  benefit  of  that  firm,  as  stated  in  the  argument, 
on  behalf  of  (ireat  Biit.ain,  then  .-Mexander  Fi'ank  was  in- 
teri'sted  as  an  owner;  if,  at  the  time  of  the  seizure  of  tlic 
"  HIack  Diamond  "she  was  not  operated  for  the  benelit 
of  tliat  lirm.  tiieii  the  United  States  do  not  claim  thai 
Alexander  Frank  was  interested.     Tht>  contention  of   the 


753 


[ho  "P;ill|. 

nade  in  tln' 

purcliii-iMl 

s  liad  li'  111 

3t    tllflt    th,' 

hisivoly  cs 
It;  l)PtucTii 
in  fact  lirit 
lie  biisiiiiss 

IS  disclosed 
ie.  and  Um 
!h  the  t';l(t 
d  Statrsol' 
'  Carolt'iia  " 
nor  ot"  one 


ISStl. 

interest  nf 
lie  "HIack 
ssod,  !ic;;iii- 
Dnring  my 
tiie  British 


l/red  Ail'ims,' 
id  for  till!  Iifiiefil 
one  Alexander 


ment  of  \\w 

)nnse!  ai'isc 

on  there  as 

m   on  tiiis 

Frank  did 

whether  I 
never  did; 
a  certain 
ip  to  (!ut- 
),  and  was 

lited  Slates 
(Jreat  Hrit 
\ecord  (lis- 
linan.    de 
the  adniis 
•eiy  i)r(ives 
aim." 
Kid  an  in 
was  also 
testimony 
it  man  ami 
)nt  cieailv 
y  in  Is^-ti. 
was  o|ier 
art;ninenl 
nlv  was  in- 
'.ni'e  of  the 
he    henelil 
laini   thai 
ion  ot   the 


(Mr.  Warren's  Argument.) 

T'nited  States  is  hasod  solely  on  this  ground  that,  wlien 
the  |)artner.ship  of  (Intmnn  and  Frank  owned  any  vessel, 
wiiatevei'  its  name  may  have  been.  Aiex.ander  Frank 
owned  one-lialf  of  the  interest  owned  hy  the  firm;  and 
thi'  United  States,  therefore,  accepted  the  admission, 
ni.ide  advisedly  and  delilierately  hy  all  of  *]w  coimsel  for 
diva'  Britain,  that  the  "  Black  Diamond  "was  operated 

lofoi  the  henetlt  of  a  trading  firm  "i  V'ict(n-ia,  composed  of 
one  .lacol)  Gutman  and  one  Alexander  Frank,  wlio  was  a 
( ili/."n  of  the  United  States  of  America. 

K'eferring  to  the  Record  f(n'  the  purp(we  of  ascei'taining 
wiieii  the  partnership  of  (hitman  and  Frank  did  coni- 
nience.  I  cite  page  ISilo,  line4!>.  Witness  Theodore  Fill bbe 
w  IS  t(>stifying  as  to  the  piii'chase  of  skins  in  the  year 
jsMi.  and  he  said,  in  answer  to  this  (piestion:  "What 
boal  were  tliey  oft'  of^  A.  (iiiliiKtii  (t)iii  Frank  I  boiiijlit 
Ihriii  <;/","  and  gives  the  date,  Sfpleiiihcr   l-'>lli,    ISSd. 

20  1  refer  your  Honors  to  the  liecor<l,  page  IKU.  line 'jt>, 
w  here  the  witness  J.  D.  Warren  testifies  as  follows: 

■•(^».  Did  (iutiimii  iV  Frank  Imvo  a  station  up  tlicro  in  aililitiou  to 
••  Minis  ?     A.   No,  they  rcntoil  tlic  Htatiou  that  year  t'nini  nir. 

■  {).  'I'liiw  ('(lutuius  H  coiTi'ct  Htatcnifnt  of  what  ".as  fiiruishoil  tho 
••  •  jielpliin  '  at  Clayociuot  on  lliat  trii)  '!  A.  Yes,  ul)  wiiat  I  got  from 
•■  tlii'iii  thi'i'o. 

•i).   Von  kept  iu  your  hautlwritiufj  itiMu  liy  item  y    A.   Yes. 
■•  {).   Were  ( rutnian  &  .Frank  interestoil  in  scalint^  ?    A.   I  think  so. 
•O.   \Miat   voHsi'l  hail   tlioy    in    1887?      A.   I   think  they   ha.l  tho 
■   ■  Alfnd  .\ilanis  "  at  tliat  time. 
Xy)     ■■  (,).   Was   that  the  Hrst   voar  tl\ov  had  a  storehouse  at  Olayoquot  ? 
■     •■  A.   Yes. 

••  ().  .\iul  they  rented  it  from  you  V  A.  Yes,  they  got  it  from  me  or 
"  friiin  Unscowitz,  but  I  think  I  did  it  in  ISSO  " 

The  lestiinony  found  at  page  111*  of  the  ]{ecord,  line  ."52, 
shows  that  the  schooner  "Active"  was  sold  in  the  year 
Issi'i  to  Gutman  &  t'ompany,  who  were  necess.arily  doing 
hii-inessat  that  time. 

••(,).  .\nd  you  say  that  the  '  .Vctive.' from  the  information   vou  had 
■  .li  riveil  in  yovu' business,  was  sold  iu  18Ktl  V     A.   In  188(5  or  tlie  latter 
40  ••  |iart  iif  I880,  I  am  not  sure  wliie'i." 

Til.'  register  of  the  "  Alfred  Adams,"  Fxhihits,  page  l!»s, 
line  l."i,  discloses  that  a  mortgage,  dateil  FehriKiri/  Htli, 
issi;,  was  executed  by  Jacob  (hitman  to  Alexander 
Frank,  and  that  the  mortgage  was  ivcorded  on  the  l!»th 
(lay  of  Fehruary.  issC). 

The  evidenct' of  these  transactions  clearly  estiihlishesthat 
(inlman  .and  Frank  were  engaged  in  liusiness  in  the  early 
liarl  of  the  year  issti.  and  the   "Black    Di.imond"  is  not 

joalle^cd  to  have  been  wai'iied  until  the  lirst  d.iy  of  July, 
|s>>ii.  We  have,  therefore.  coniJusively  established  th.it  if 
Jacob  ( hitman  lia'l  any  intt>rest  in  the  "  Black  Diamond '' 
ill  llie  ye.n-  jssti,  it  Was  the  int'rest  which  he  held  as  a 
iiieiiiliei' of  th(>  linn  of  (hitman  i^v:  Frank,  and  I  will  later 
roiisjih.|' the  testimony  clearly  demonstrating  tli.it  .lacob 
(liilinaii  was  interested  in  the  "  Black  Diamond"  in  the 
year  jssti. 

I  now  refer  to  Kxhibits,  l':ige  l'(»7,  where  the  allidavit  of 
.\le.\aiider  Frank  is  printed;  and  from  this,  if  your  Honors 

^o|)le,ise,  ii  is  as  dear  as  any  fact  found  wiihin  the  covt'is 
eliliis  b'ecord  that  .Mexandei  Fr.ink  and  .lacob  (hitman, 
wlniiever  they  commenced  business,  were  e(|iially  iiiter- 
I'sleil  ill  till' ships  they  operated,  l-'rank  says,  "That  the 
siiiij  e-tate  of  the  said  Jacob  (liitinan  "  consists  ot  certain 
'Iiiiil;'^,  iiieiitioning  them,  and  be  continues: 


•lM'l-(: 


754 


(Mr.  Warren's  Argument.) 

"  32/64  \one-half  of  IIip  s/iip\  of  mid  in  n  certain  shi])  Monr/itii/  In  ///^ 
"  Mill  firm  nf  (lulinan  «fc  Frank,  but  tchich  soil/  Idsl  menlioneil  n/ii/i  /,<  ,;<i. 
"  isterfii  (it  the  sniil  Port  of  Viiioriii  in  the  timne  if  the  sniil  Jacob  (liitni'm, 
"  and  is  registered  under  the  name  of  the  '  liluck  Diamond. ' " 

Is  there  anytliing  doubtful  about  that,  if  your  Hoimis 
please?    This  is  at  page  207,  line  22,  of  the  Exhibits,  ;inil 
IS  not  cited  in  our  brief, 
lo     I  do  not  desire  to  be  misunderstood  about  the   cont-i: 
tion  on  the  part  of  the  United   States  as  to  the  ovvnerslii|) 
of   the  "Black    Diamond,"' because,  in   the  cases  of  I  ho 
"  Black  Diamond  "  and  '"  Lily  "  for  the  year  lS8i>,  our  ai- 
gument  is  based   upon  the  fact  tlu.t  Jacob  Gutman  .iikI 
Alexander   Frank    were    in    partnership   and  were  i'(|nal 
owners  of  the  ' '  Black  Diamond  "  and  the  '"  ^  ily  "  at  niic 
time,    and   oui'   argument   in   the   case   of    lik;    "  AUnd 
Adams"  in  the  year  1887  is  based  on  the  same  infoiiiia- 
tion,  therefore  - 
20     The  C'onmiissioner  on  the  part  of  the  United  States;—] 
understand  that  so  far  counsel  agree. 

Mr.  Peters:-  We  do  not  agree  that  Frank  owned  anvdf 
these  vessels  in  188i);  we  distinctly  proved  that  he  did  ii"t; 
nor  do  we  admit  anything  of  the  kind  in  any  one  of  rlii- 
years. 

Mr.  Dickinson:— I  think  we  really  miderstand  tln'ir  pD- 
sition,  your  Honor 

Mr-.    Warren:  -  You    admit    the    "  .-Mfred    Adams."   in 
1887; 
30     Mr.  ret.'rs:-Not  at  all. 

Mr.  Warren: — It  is  in  their  brief,  if  your  Honors  please. 

The  Connnissioner  on  the  part  of  tlie  United  States: - 
I  misunderstooil  the  counsel,  merely;  proceed,  Mi'.  War- 
ren. 

Mr.  Warren: — f  hope  I  have  made  my  position  cl(>ar,  if 
your  Honors  please.  1  do  not  want  to  imj)eril  our' ;u<;ii. 
merit  in  the  case  of  the  "Black  Diamond"  and  the 
"  Lily  "  in  18.sit  by  endeavoring  to  go  beyond  wiiat  I  lie- 
lieve  to  be  the  absolute  tacts  to  establish  that  Frank  was 
^o'"terested  in  Ibis  "Black  Diamond"  in  issn.  1  sav 
frankly  that,  if  this  pai'trrei'sbip  was  not  in  exislcirce  lii 
July,  isstl,  and  this  vessel  was  not  operated  for  the  lienc 
tit  of  this  ])arlrrersbip  at  the  time  of  her'  alleged  wairriiij;. 
the  Unite(l  Slates  do  rrot  assert  that  .Vlexaiider  Frank,  a 
citizen  of  tli"  United  States  of  .Vmerica,  biis  any  irrteivst 
whatever-  in  the  claim:  birt,  iirrtil  the  contrary  of  that  tait 
is  established.  1  do  claim  that  what  I  read  fi-oni  the  L'cc 
ord  establishes  tli.it  (iutmari  and  Frank  were  in  luisimss 
in  .July  of  the  year-  Issi;,  and  that  the  "  Black  Diarriornl  " 
-Q  was  owned  by  Alexander-  l<'rank,  .la(-ob  (lutman  and  ('a[i- 
tain  Paxton.  who  simply  held  a  nraster's  interest. 

I  desire  to  refer  your  I  louois  to  cei  tain  (itations,  \v  Imli 
iire  not  in  oiir  briet.  in  (-oniiection  wilii  this  claim:  l'a;;i' 
2n7  of  F.xhiliits.  line  .^o,  arrotber-  allidavit  of  .Ale.xandci- 
Frank  is  lorrrid.  and  m  that  allidavit,  at  the  to[)  of  |iai;i' 
2ns,  he  slates  I  bat  the  estate  of  Jacob  (iutmaii  coirsi-ls  ot 
one-b.ilf  interest  in  the  property  of  such  par-tirerslii|i: 
and  attached  is  a  schedule  setting  out  byn.imethe  "  IlLnk 
Diamond."  i  also  refer  to  page  21o  of  the  F.xlribils.  at 
r,otlre  top  of  the  page,  where  is  I'ourrd  the  irrvenlory  m- 
.SI  I  led  rile  ;iniie,\e(l  lo  lire  allid.ivit  of  .Xlexainler-  Frank,  ic- 
terring  to  "  oirehalf  part  or-  slrar-e  of  and  in  the  following 
moneys,  pr-operties.  effects  and  cr-edits;  our  .siliintiwr,  ri'ijls^ 
IciTil  <il  the  /loii  iij  I  'ichirin  in  I  lie  iKtiiie  of  .hicoh  (liilinuu, 
<l<'Vi'(isiil,  (tiiil  kikIciIIic  ikiiiii;  o/  Hit'    '  lihu'k  DkiiiihikI." 


755 


t^nmrw^^m 


beloti(jitt<i  til  llw 
meil  skill  is  rcq- 
Jiicnb  (liilmnn. 


•our  Hoik  lis 
xliibits,  and 

the  coiit"ii- 
o  osvn('islii|) 
;'asi's  of  I  lie 
1SS!»,  our  ar- 
jutinau  and 
wore  i'(|nal 
'  ily  "  at  (iiu> 
„io  "  Allivd 
me  iufonna- 

id  States:— I 

(WiH'il  any  itf 
t  lu'  ilid  iKit; 
y  out'  of  tlu' 

;uh1  tlndr  po- 

Adauis."  in 


miors  please. 
ted  States;- 
•d.  Mr.  War- 

itiou  clear,  if 

ril  (lur  ai>;ii- 

d "   and   Ihe 

i  uliat  1  lie- 

t  Frank  was 

isst;.     1  say 

t  xistellee  in 

for  tile  bene 

4t'(l  warnin},', 

(let  l''raid<,  a 

auv  ihterrst 

of'  that  fact 
roni  the  \Ux- 
e  in  husiiiiss 
U  Diaintind  " 
lan  ami  ('a|i- 
rest. 
ilidiis,  u  hiili 

e-laiin:  Taj^f 
f     Alexallilrr 

lop  'S  |iai;i' 
III  ('(insists  ol' 

paitiierslii|i: 
ethe  ••  illaik 

Kxliil)il>,  al 
iiiveiitiiiy  or 
er  Frank,  iv- 
tlie  fcdlowint; 
lin<iin'i\  ri'ijis- 

tctill  (I'lllliniK, 

l)i<niiuii(l.'" 


(Mr.  Warren's  Argument.) 

Alexander  Frank  was  the  only  man  in  partnership  with 
Jai  oh  Gutnian,  and,  if  the  partnership  owned  the 
8(1  II loner,  Frank  was  interested.  1  have  read  from  page 
2(i7  of  the  Exhibits  where  he  uses  the  fraction  "32/64," 
and  swore  that  the  other  part  belonged  to  him. 

I  also  read  from  page  211  of  the  Exhibits,  line  3,  "that 
in  the  month  of  February,  in  the  present  year,  the  said 
loJaiol)  Gutman  sailed  from  the  port  of  Victoria,  British 
C'dliimbia,  aforesaid,  in  one  of  oui'  said  schooners,  knoivn 
()// Ihe  name  of  'Black  Diamond,'  bound  for  Clayoquob 
Sound  aforesaid." 

In  the  face  of  all  this,  if  it  please  your  Honors,  is  it  con- 
clusively established  that  Jacob  Gutman  owned  these 
vessels,  and  that  Alexander  Frank,  a  citizen  of  the  United 
States  of  America,  did  not  own  them  when  he  swore  that 
he  did? 

He  never  denied  making  the  affidavits,  but,  on  the  con- 
2otrai  V,  admitted  the  execution  and  signing  of  every  one  of 
tlieiii  wlien  he  was  examined  as  a  witness. 

1  also  refer  to  page  212  of  Exhibits,  line  52:  "In  the 
matter  of  the  estate  of  Jacob  Gutman,  deceased,  intestate, 
the  following  is  a  list  of  the  assets  of  the  firm  of  Gutman 
&  Frank  and  in  which  the  above  named  deceased  owned 
one-half  interest:  Schooner  '  Black  Diamond,' ^1,000." 

At  page  213  of  Exhibits,  line  55,  are  these  words:  "  That 
the  v:.!ues  of  the   following  property,   schooner  '  Black 
Jlidinond'  $l,oOO,"'  ami  then  follows  the  values  of  other 
30  property. 

This  is  an  affidavit,  not  of  Alexander  Frank,  but  of 
Moritz  (Jutman,  the  administrator  of  the  estate  of  his 
ill  other,  Jacob  Gutman;  and  in  that  affidavit  Moritz  Gut- 
man .says,  at  line  41.  page  213:  "  That  the  said  Jacob  Gut- 
"  mail  at  the  time  of  his  decease  was  a  partner  in  the  firm 
"  of  Crutnian  &  Frank  of  the  City  of  Victoria,  aforesaid, 
"  merchants  and  Indian  traders,  and  that  tlie  only  estate, 
"  property  and  effects  of  the  said  Jacob  Gutman  in  the 
"  I'lovince  of  British  Columbia  consists  of  a  moiety  half 
40"  part  share  of  interest  in  the  assets  of  the  said  firm  of 
"(iiitman  &  Frank,  and  that  the  said  estate  of  Jacob 
•'  (iufnian,  deceased,  is  liable  to  a  moiety  of  the  liabilities 

•  of  the  said  partnership  firm  of  Gutman  &  Frank;  that 
"  the  account  hereunto  annexed,  marked  'A,'  is  a  true 
"  account  of  tlie  assets  and  liabilities  of  the  said  partner- 
"  ship  firm  o*^^  the  said  Gutman  »&  Frank;  that  the  value 
"  of  the  following  property,  schooner  'Black  Diamond' 
"  >f'l,f/"(>,"  and  so  forth. 

These  alhdavits  of  Alexander  Frank  and  Moritz  Gut- 
jo  man  relate  to  the  condition  of  the  title  in  February,  1H87, 
and,  therefore,  all  reference  to   the   interest  of   Captain 
l'a,\to:i  is  omitted,  for  he  had  parted  with  his  interest  in 
Dicemberor  November,  1880  (Record,  p.  17<ll,  line  10). 

•'i}.  Uei'einber  or  Novemlier,  1886,  tbeu  wuh   it?    A.  Yi;h,  I  think 

HO." 

The  vessel  was  held  in  July,  188(),  by  these  persons  and 

in  these  proportions:  Jacob  Criitman  and  Alexandi>r  Frank, 

,M  slnires;  Ca|)tain  Paxton,   13  shares.     Therefore  Alex- 

^oaiider  Frank  was  tiie  owner  of  oneiialf  of  fourtiftlis  of 

the  vessel  or  two-fifths. 

The  claim  is  made  that  (Sutman  was  not  interested  in 
l^^il  and  that  it  was  not  until  January,  iss7,  that  he  had 
any  title,  althoujjh  Captain  I'axtoii  testified  that  he  sold 
to  (iutman  in  November  or  December,   1880.      But  the 


750 


(Mr.  Warren's  Argument.) 

registry  shows  that  Paxton  did  not  transfer  to  Gutnui,  , 
tlie  counsel  will  say,  until  January  Id,  1.sh8,  for  tlie  bill  i 
sale  transferring  his  interest  is  dated  January  lo,  1S8m. 

This  discloses  the  value  of  the  register.  Jacob  Uufiinni 
ifos  lirotviied  betireeu  Febrnnry  and  April,  ISdi'.  Ex- 
hibits, page  211,  line  8,  and  page  212.  line  41,  show  tlu' 
date. 

Was  Captain  Paxton  dealing  with  a  dead  man?  The 
10 registry  is  no  evidence  at  all  of  those  transactions,  for  tin; 
transactions  were  not  recorded  until  the  time  came  in 
18S8.  when  Alexander  Fiank  wished  to  clear  up  the  tilii', 
as  lie  was  then  the  sole  owner  of  the  property,  bavin;; 
purchased  from  the  estate  of  Jacob  Gutman  the  inten  >t 
of  Jacob  Gutman. 

Does  that  indicate  that  Jacob  Gutman  alone  owned  the 

"Black  Diamond 'V    "  Register,"  the  counsel  says!     We 

care  not  what  the  register  says  about   wlio  owns  tiic-i' 

vessels.     Registers  obtained  from  the  port  of  Victoria  ,is 

20evidence  are  not  worth  the  pajier  they  are  written  on. 

We  have  it  on  this  Record,  if  your  Honors  please,  that  -n 
reliable  a  gentleman  as  Theodore  Luhbeowned  an  inteic-t 
in  the  "  Mary  Ellen" and  "Favourite" and  "Onward"  win  n 
he  was  a  citizen  of  flie  United  States  of  America,  and  tiiat 
these  vessels  were  registered  in  the  name  of  so  estinnbic  a 
gentleman  as  William  Spring,  who  necessarily  made  (laili 
that  he  was  the  sole  owner  of  the  bottom  of  the  ship.  W  r 
have  it  on  this  Record  that  Patrick  Hickey  was  a  citi/i  n 
of  the  United  States  and  that  he  owned  half  of  the  bottom 
30of  the  "  Carolena  "  and  that  she  was  registered  in  tlir 
name  of  Doiiahl  Urquhart,  a  British  subject,  who  neces- 
saiily  swore  that  he  was  the  sole  owner.  We  have  it  mi 
this  Record  that  Alexander  McLean,  a  citizen  of  the 
United  States,  was  the  owner  of  half  the  bottom  of  the 
"  Onwanl  "  and  "  Favourite,"  and  Charles Spriug,a  Briti>li 
subject,  made  oath  before  the  Paris  Tribunal  that  he  was 
the  sole  owner. 

Mr.  Bodwell:— What  part  of  the  evidence  do  you  refer 
to  as  to  Lubbe's  owiiershi|i?     Was  not  Lubbe's  son  the  n'l; 
4oistei'ed  owners 

Mr.  Warieii:— Lubbe's  son  was  never  registered  as  (Ik; 
owner. 

The  Commissioner  on  the  part  of  the  United  States:-  It 
oiilv  conu's  as  an  incidental  fact. 

Mr.  Dickinson:  "The  counsel  foi-  Great  Britain  have 
taken  a  large  amount  of  time  to  show  that  the  register  is 
conclusive. 

The  Comnn'ssioner  on  the  part  of  the  United  States:- - 
The  counsel  must  judge  for  themselves  and  must  foUdW 
50 their  own  course. 

.Mr.  Warren:—  I  have  said  enough  to  establish  this  ai^ni 
ment:  That  that  law  of  Cheat  Britain  or  tht*  law  continu- 
ing tb(!  registry  of  ships  was  a  dead  letter  in  the  port  dt 
Victoiiii  in  ihos(>  years  -that  men  who  were  interested  lu 
tlu;  sealing  business  paid  no  attention  to  the  fact  tli:it 
they  were  reiiiiired  to  make  an  oath  stating  that  tln'v 
wt'ie  the  sc^le  owners  when  they  ivgistered  a  ship.  Tin  lu 
is  no  doubt  about  the  fact  that  some  of  these  men  Uinw 
that  they  were  making  a  false  oath,  and  S()me  of  thiin 
60  who  were  as  reputable,  from  the  facts  that  we  have  out- 
side this  Record,  as  Theodore  Lubbe  and  Charles  Spriii^', 
wfre  willing  that  tiiis  kind  of  oath  should  be  tiiken  lir 
the  piM'pose  of  allowing  citizens  of  tho  United  States  to  In; 


757 

(Mr.  Warren's  Argument.) 

iiiiorested  in  the  sealing  business  out  of  the  port  of  Vic- 
t.iiia. 

l?efore  closing  with  the  "  Black  Diamond  No.  5,"  I  will 
It  liM' to  our  brief,  page  ii7!>,  where  the  United  States  ac- 
cept the  admission  of  Great  Brit.ain  that  the  vessel  was 
(i|n'iatod  for  the  benefit  of  the  trading  firm  of  Gutman 
jiii'i  Frank,  and,  therefore,  the  counsel  for  the  United 
loSiiti's  say  at  the  time  this  action  is  alleged  to  have  ac- 
riiu'd.  Alexander  Frank  was  interested  as  an  owner. 

Tilt'  Commissioner  on  the  part  of  the  United  States:  — 
])n  the  counsel  agree  as  to  the  time  when  the  partnership 
ol  (iutman  &  Frank  was  formed. 

Ml'.  Warren:  "I  have  stated  all  that  the  Record  d\s- 
i-l..s,.s. 

Mr.  Peters: — We  nevei'  attached  any  importance  to  that 
(liif.  I  made  the  statement  the  other  day  that  the  vessel 
WIS  not  acquired  by  any  one  of  the  firm  until  1S87,  and 
20tlirK>fore  that  they  could  not  have  any  interest  in  iSHti.  The 
•■  lilack  Diamond,"  in  ISSH  did  not  belong  to  either  Gut- 
ni.iu  i-Sc  Frank,  or  either  of  the  firm,  and  all  this  argu- 
niriit  about  ownership  has  nothing  to  do  with  the  case. 

Mr.  Warren:— Do  I  understand  that  the  counsel  for 
(livat  Britain  says  that  neither  Gutman  nor  Frank  were 
inh  rested  ill  the  "Black  Diamond"  in  lASiM 

Mr.  Peters: — That  is  correct. 

Mr.  VVarren:— I  will  demonstrate  that  the  onli/  witness 
irlin  Icstijied  hi  this  case  coiicerniiKj  tlie  oiniersliip  swore 
lotliiil  (Jittiiiaii  ivds  interested  ill  tlie  "  Blucic  Diamond"  in 
ism;  to  flie  e.ctent  of  four-fiftlis. 

1  ivad  the  testimony  of  Henry  Paxton  at  page  1759, 
lini'  <1l',  of  the  Record: 

■Q.    You  spoke  of  Mr.  Oulmnii nn  the  indiitiffinj  owner?     A.    Yes. 
■•(,).  Who  else  were  you  thinking  of  as  owner?     A.  I  am  the  other 
••  owni'v. 

•  (,).  Of  the  '  Black  Diamond  '?    A.  Yes. 
••(,).  At  that  time?    A.  At  that  time. 
■■i).    You  <md  Mr.  Gutmnii  owneil  her?    A.    Yes." 

■^^'  K  (liei(>  ni)w  any  doubt  about  the  Record  on  that  prop 
ii>ili(iii,  that  the  only  witness  who  testified  in  connec- 
t  it  111  with  these  facts  swore  tliat  Jacob  Gutman  was  a 
part  Dwiier  of  the  "  Black  Diamond  "  at  the  time  she  was 
«i"i/.('(l;  The  captain,  accurding  to  the  register,  only  held 
a  title  to  thirteen  shares  in  that  boat,  ami  (Hitman  & 
Frank  owned  the  remaining  four-fifths. 

Tlif  United  States  do  nut  depend  ujion  those  registries. 
1  liavc  alluded  to  the  fact  that  the  law  controlling  the  reg- 
i-iiy  of  ships  at  Victuria  was  in  those  years  a  dead  letter; 

5*-' that  subjects  of  the  United  States  and  Great  Biitain  were 
willing  to  make  false  oaths,  and  tlid  make  false  oaths,  for 
tlh'  purpose  of  having  vessels  registered  in  the  name  of 
liiilish  subjects  that  were  partly  owned  by  citizens  of  the 
riiiti'tl  States. 

Tlif  hill  of  sale  is  not  in  evidence  and  it  is  never  left  to 
th.  ivgistry  to  prove  owiicrsliip.  Within  the  covers  of 
thi-  K'ecoid  there  is  not  contained  any  reference  to  a  bill 
111  -  lU',  and  the  registry  alone,  which  1  have  in  my  hand, 
(uiiiains  a  reference  to  a  bill  of  sale  to  Jacob  Gutman. 

*^'^.\iiil  wiiat  does  that  register  show/  The  first  reference  to 
.lai  (ill  (iutman  on  the  fac(i  of  the  registry  of  the  "  Blnck 
lii.iiiitdid"  is  this;  Number  of  transaction,  24,  Joseph 
(.iiiiilros;  number  of  shares.  51;  date  of  registry,  Novem- 
h>  I  s.  IS5JH,  JO  A.  M.;  bill  of  sale  dated — -"'  VVl'ieii^  Prior 
ti.  iNS(i<    No,  if  your  Honors  please,  "Bill  of  sale  dated 


1' 
.      I. 


n 


758 


T&iVi^iSU^- 


(Mr.  Warren's  Argument.) 

3d  of  January,  1887;  name,  residence  and  occupation  df 
the  transferee,  Jacob  Gutman,  of  Victoria,  B.  C,  nur- 
chant." 

Captain  Paxton  testified  that  on  July  1st.  188«,  Ja(ul> 
Gutman  owned  an  interest  in  this  vessel,  and  we  know- 
that  whatever  interest  Gutman  had  belonged  to  Gutni;iii 
&  Frank.     The  bill  of  sale  is  not  in  evidence.     The  k  - 

loistry  is  set  out  at  page  3"«)of  the  Exhibits,  and  the  stai.  - 
ments  which  I  have  referred  to  are  found  on  i>age  ;',7i( 
at  line  35.  J  call  your  Honors'  attention  to  the  dale 
of  the  recording  of  tliis  bill  of  sale,  the  record  nf 
vvliich  I  have  read.  It  is  "November  ^'th,  IS.ss,  in 
A.  M  ,"  and  the  reason  that  I  call  your  attention  to  1 1 lat 
date  is  this:  That  on  that  same  date  was  recordcil  a 
fraudulent  bill  of  sale  to  Morris  Moss,  covering  the  "  Blai  k 
Diamond"  and  the  "Lily."  Of  that  fraudulent  bill  uf 
sale  to  Morris  Moss    I  will    speak   later;  but  this    fad. 

2o which  comes  to  my  mind  as  I  talk,  shows  that  there  was 
an  attempt  to  conceal  from  hegiuning  to  end  the  owik  r- 
ship  and  interest  of  Frank,  the  American,  in  this  "  Bla(  k 
Diamond." 

Captain  Paxton  swore  that  in  ISSti— July  Ist—Jacol) 
Gntnian  owMied  ;")1  shares,  although  Gutman  had  no  Mil 
of  sale  on  record  until  November  loth,  1888. 

The  Commissioner  on  the  part  of  the  United  States:  - 
Now.  Mr.  Warren,  iiow  can  you  expect  the  Coiuiuis- 
sioners  to  be   intluenced  by   a  statement  made  ten  years 

3oafter  n  tiansaction,  as  to  whether  Gutman  or  Fiauk.  or 
even  both  of  them,  owned  that  vessel  as  against  the 
written  record  of  a  different  date? 

Mr.  Warren:  -Captain  Paxton,  who  testified,  was  the 
joint  ownei'  at  the  time.  And  if  the  testimony  of  a  man 
who  is  a  joint  owner  is  not  better  evidence  than  the 
registry,  ot  the  ownership,  then  I  do  not  know  the  vahii' 
of  evidence.  The  liili  of  sale  is  not  produced.  I  will  sluiw 
yoiu'  Honors  that  the  attempt  to  conceal  the  interest  of 
F'rank  is  honeycombed  with  fraud. 

40  The  Coinmissicmer  on  the  part  of  the  United  States:— 
We  are  looking  now  at  one  transaction.  We  cannot  prove 
that  that  is  fraudulent  by  proving  that  others  are  fiaiulu- 
lent. 

Mr.  Wairen:— I  rt'fer  again  to  the  evidence  of  Pa.xtoii 
at  ])age  ITalt,  line  ;?',».  fi'om  which  I  read  in  order  to  show 
that  this  man  Paxton  was  concealing  the  inteiest  of  I'"rank 
at  that  time: 

"  Q.   How  did  yon  Imjjpen  to  tell  Mr.  Frank  anything  about  it?    A. 

"  Mr.  Frank  was  a  man  in  business  ashore  here  with  Mr.  (hitman  in  tlic 

CQ  "  Ruu  store,  and  all  the  business  of  the  vessel  was  done  iu  that  stuio. 

'•  i).  What  was  the  name  of  that  business — iinder  what  name  wan  it 
"done?     A.   The  (^un  store? 

"  Q.  Whatever  you  may  call  it?  A.  I  do  not  know  what  it  \vun; 
'•  they  had  two  or  three  stores." 

Two  or  three  stores^  Two  or  three  trading  stores  on 
the  west  coast  ot  Vancouver  Island.  Of  what  use  wire 
trading  stores  on  the  west  coast  of  the  island  without 
vessels  to  reacii  them  fioni  the  Port  of  Victoria?  Tlicie 
is  no  railioad  from  Vancouver  to  tho  west  coast  of  the 
(3q  island: 

"  Q.  Under  what  name  was  the  businesB  conducted?  A.  I  suiiimsi' 
'•  it  was  (iutnuin  and  Frank. 

"  Q.  Mr.  Frank  was  interested  in  the  purchase  of  seal  skins,  wum  ho 
'•  not?    A.   I  don't  know. 

"  (i).   Did  you  not  know  that?     A.   No. 

"  Q.  Did  you  not  know  that  ho  purchased  seal  skins?  A.  I  Aou't 
"  know;  I  am  sure. 


76l» 


(Mr.  VVai Ten's  Aiguinoiit.) 

•■  Q.  You  do  not  know  wlipthor  lio  over  Hold  any  or  not?    A.   No. 

•  (}.  When  did  yon  hoo  Mr.  rriiuk  liiHt?  A.  ImiwMr.  Frank  luHt  in 
•'  lS!tl. 

•  •  Q.  Did  you  not  seo  liim  when  ho  waH  up  here,  witbin  three  niouths? 
■    A.   No,  I  have  only  liccn  horo  thri'c  W(>i'kw  niyKi'lf. 

■  ().  You  spoke  of  Mr.  (intnmn  iis  the  nianiij^ing  owner  ?    A.  Yes. 
■•(.).  Who  else  woro  you  thinking  of  as  owner?     A.   I  am  the  other 

•  iiwuer. 
■■{.}.  Of  the 'Ulaek  Diamond' ?     \.   W'h. 
10       ■  t,).  At  tliat  time?     A.   .\t  that  time. 

■  (.).   Yon  and  Mr.  tiiitnian  owned  lu'r  V     A.    Yen. 

■  I).  Wliom  did  you  buy  your  interest  in  the  '  Ulack  Diamond  '  of? 
■  :\.  A  num  named  t^nadros,  or  soniethi^ig. 

•  Q.  Where  did  ho  live  ?     A.  Ho  lived  up  north.'' 

•  (jliiadros  oi'  somcthiiifil "  Tliis  man  Paxton  knew 
(jiiiadios  as  lie  knew  Ills  own  liiotlier. 

•  {).  Where  did  you  l)uy  the  lioat?     .\.   In  Victoria. 

■   (,».   .\t  whnt  time  ?     A.   It  was  the  latter  part  of  18H5  or  the  early 
■■  |,art  of  IHKt;. 
:o     •■  i).   How  ninpli  of  her  did  you  l>ny  ?     .\.   Thirteen  shares. " 

I'nrn  to  the  document,  wliicdi  I  read  and  it  .shows  that 
|:',  -hares  were  transferred  by  l)ill  of  sale,  dated  /fifh  of 
JiiiiiKir/i.  /.sw;,  to  Henry  I'axton.    The  witness  continued": 

•  I,).  When'  does  this  man  live,  or  where  diil  he  live  at  that  time  ? 
•    A.   .\t  that  time  he  lived  here. 

•  (,).  'I'lie  nmn  from  whom  you  lionnht  V     .\.   Yes. 
••(,).    Wliere  is  he  living  now  ?     X.    I'p  north. 

•  i).   Where  is  '  up  ncu'th,'  what  town  ?     A.   Close  to  Alert  Bay. 
"  t^.  What  is  his  Hrst  name  ?     A.   Joe." 


"  (,)nadros  or  somelliin^'  I '" 
iiaiue  is,  he  answeis  "  Joi'."" 


And  asked    what  his  first 


■  Q.  ])i<l  you  pay  any  cash  for  your  shares  that   you  bought  ?     A. 
I'ait  cash  ;  well,  the  same  as  easli  all  through. 

■' t^.    WliiiiiliitMr.  GhIiiiiiii  hill/ lii^  l>(irl  ii/' l/iti  '  Bliiik  Dinmonil?'     A. 
•'  >'.!»(»■  (/(((/.<  "//'■'■,  /  tliiiih\  III'  lir/iire — J  lliiiik  I lioii;/!il  mi/  part  fimt.     Quad- 

■  iiis  owed  me  eousideralde  mouey  and  he  gave  me  these  shares  to  rep- 

■  resent  the  mouey." 

Some  days  after  i'axton  took  iiis  title  Jmniarij  16,  1886. 
'  Not  oidy  did  (,)na(hds  tiansfer  to  tiutm.in  before  1886 
and  liefoie  that  hdl  of  sale  to  which  I  nderi'ed,  was  re- 
(Midid,  hut  I'a.xton  Inmself  transferred  to  (intman  as  T 
will  show  by  his  osvn  testimony,  prior  to  the  recoidinji  of 
aiiv  hill  of  sale  on  the  ref;istry  to  Jacob  (iutinan.  The 
wiiiu'.'^s  continued: 


■  (,».  What  did  yon  jiay  for  these  shares?  A. 
piiiil  aliont  t'r>ll()  altogether. 

•  (,».  Fiv(>  hundred  dollars  for  one-third  of  it? 
shares.     One-tilth  of  it." 


I  don't  remember;  1 
A.   No.    for  thirteen 


iu 


•"II  ' 


V    what  it  was; 


ns?    A.  I  deu't 


riieii  he  j;oes  on  to  sonietliiiig  immaterial  and  proceeds 
at  line  .">!•: 

"  ().   Dill  Mr.  (iiiliitiiii  hill/  Iiis  sliiiri'  frotit  /he  Siime  miin  of  irhich   i/oii 
•■  ''nicihl  i/oiirs'.'     A.    Till' Slim' iiiii'i-" 

Thei'e  is  tlH>  hill  of  sale  which  I  read— Jacob  Gutnian 
licu^ht  from  (,)na(lrosand  that  l>ill  of  sale  was  not  executed 
mill  not  recorded  luitil  November  8,  IS8S.  And  was  re- 
(didcd  then  because  on  the  loth  day  of  November,  1888, 
''otlic  register  of  the  same  "Black  Diamond"  contains  a 
siatcment  that  tlie  hill  of  sale  to  Morris  Moss  from  the 
isjati'of  Jacob  (iutman.  }i;iveii  to  Moss  as  a  trustee,  was 
ncorded  of  this  same  "Black  Diamond,"  and  the  title  of 
the  i'st;ite  of  Jacob  (Jntman  could  not  be  perfected  until  a 
hill  (if  sale  from  Joseph  Quadros  was  put  on  record.    That 


\    .     . 


7t»(i 


(Mr.  Wiinen's  Aigiiinfiitj 

is  why  it  was  necessary  to  record  it  then.     Continuing  it 
line  «>0: 

"Q.  Did  that  man  own  tlio  entire  boat?    A.  That  man   owned  tin 
"  boat,  yes. 

"Q.  Ami  (/id  Mr.  Qittimin  bin/ all  the  oilier  nhiires?    A.    Vim;  so  I '  ■ 
"  lieve. 

"Q.  Did  vou  know  what  Mr.  Outniau   paid   for  his  shares?    A    I 
haven't  any  idea. 
10       "  Q.  Did  , vou  have  any  idea  tlien?    A,  N... 

"  Q.  Never  knew?    A.   Never  knew. 


Then  I  will  show  where  ho  sold  tc  "iutman  himself, 
lino  'A  of  the  Record,  page  17(>1: 


it 


"  Q.  To  whom  did  vou  sell?    A.  I  sold  to  Outman. 

"Q.  Then  you  sold  to  Outman  in  the  last  part  of  1880  or  the  fn'-t 
"  part  of  1887?  A.  No;  I  think  it  was  in  November,  1887,  I  solii  In 
"  Outman,  or  December. 

"  Q.  The  last  part  of  1887?    A.   1886. 

"Q.   You  just  said  1887?     A.  No,  I  didn't. 
20       "  Q.   December  ov  Noremher,  18H(l,the)i,  ii'im  il?     A.    Yes,  I  think.-:  . 

In  Novemher,  1S8U,  thnt  he  sold  to  Gntman!    And  (!ui 
man's  title  is  recorded    NoveniixM',  tHS8.     Now,  I  ask.  ,iiv 
we  to  be  conclnded  hy  snch  documents  as  tliese  rosistcis 
in  the  face  of  such  testimony  as  I  have  read; 

The   testimony  of   Cai)tain    Paxton,  Record,  page  IT'iJ, 

line  1.5,  finally  puts  at  rest  thequestionas  to  whether  or  not 

Jacob  Outman  was  interested  in   the   "  Black  Diamond  " 

in  July,  isst!.     Paxton  was  one  of  the  owners,  and  gave 

3° this  testimony: 

"  Q.  Have  any  sealing  book?  A.  No;  I  had  one,  but  I  hiivon't 
"  it  now. 

"Q.  WhaC  did  you  do  with  it?    A.   I  r/are  it  to  Ike  mannying  owner. 

"  Q.    Whenilid  i/oii  seeitbisiy     A.   Jii  I'SSO. 

"  Q.   ^^'heu  i/ifl  i/oii  < isle  for  it  lust?    A.  I  never  asked  for  it. 

"  Q.  Who  has  the  papers  that  lielonRod  to  Mr.  Outman?  A.  Tliut  I 
"  don't  know. 

"Q.   Wiioni  did  you  consult  with  about  this  claim?    A.  Nobody. 

"Q.   Yoii  lire  part  owner  of  the  vessel,  were  at  that  time  ?    A.   I  was 
"  part  owner;  yes,  sir. 
40      "  Q'   Who  represents  Mr.  Outman  ?     A.  Since  his  death  ? 

"  Q.   Yes.     A.   I  don't  know. 

"  Q.  yoii  hiin^a't  miiile  11111/  effort  to  Jim  I  the  papers?  A.  No,  I  onhi 
"  ini/itireil  iif  his  brother,  ami  his  brother  said  he  did  not  knoio  anything 
"  about  the  jiaiifrs. 

"  Q.  Hare  i/ou  made  ani/  <illempl  to  find  the  chart  or  this  prodamaiion. 
■' as  i/oii  call  it  ?     A.   .^'o. 

"  Q.  Hare  i/nn  iminired  for  it  ?  A.  Old;/ a  f/eneriil  iniptiry  to  fiiol  if 
"  Mr.  (itilinaii's  brother  kin'ir  nni/tliiiii/  about  it. 

'  Q.   Is  (lutmau's  brother  here  in  the  city  ?    A.   Y'es,  sir. " 

Jacob  (lut man's  brother  was  on  the  witness'  stand,  aini 
50 he  (lid  not  s-tale  tliat  tlie  estate  of  Jacob  (iutman  had  no 
interest  in  the  claim  of  the  "  Black  Diamond  "  for  tlio 
year  ISStl,  and  th<>re  is  no  testimony  in  the  Record  any- 
where that  contradicts  the  testimony  of  Captain  Paxton, 
who  states  that  he  was  a  joint  owner  with  Jacob  (fnt- 
man. 

Is  it  possible  that  the  entries  in  the  register  of  a  ship, 
when  shown  not  to  contain  a  correct  histoiy  of  the  trant. 
actions,  because  at  the  d.'ite  tluit  the  bill  of  sale  purports 
to  have  been  executed  by  Captain  Paxton,  transferring 
6ohi-<  interest  Jo  Jacob  tUitman,  Jacob  tintman  was  d«'aii, 
aie  entitled  to  greater  weight  than  the  testimony  of  onu 
of  the  owners  who  positively  swears  not  only  that  Jacub 
Gutmaii  was  interested  in  the  boat,  hut  that  shortly  pri>ir 
to  the  time  that  he  was  testifying'',  he  had  consulted  tlio 
executor  of  the  estate  of  Jacob  Gutman  for  the  purpe-e 


^p*^ 


nn 


^ 


es,  I  think  XII. 


3ut   I   biuen't 


ying  oteiier. 


(Mr.  Warren's  Argument.) 
ui  securing  cDrtain  papers  which  were  desired  as  jiroof  in 

tilt'  CilSO  < 

Wliy  should  Captain  Vaxton  consult  with  Moritz  Chit- 
Villi)  alxiiit  the  do  ha  of  the  "Black  Diamond"  uhless  tht 
I  -hde  of  Jacob  Outmaii  had  some  interest  therein  f 

The  correspondence  between  SwJuhan  Pauncefote  and 

^.  (  retary  Gresham  relative  to  the  clain-s  that  were  being 

loalviinced  l)y  Great  Britain,  contains  this  reference  to  tlie 

•  r.lack  Diamond"  of  I88ti. 
Sir  Juhan  writes: 

•  Additional  claim  Hubmitted  by  MasttT  Henry  Paxton  for  dam- 
'  a^on  alleged  to  have  been  siiHtained  by  reason  of  the  above  veRscl 
■•  Imviug  lu'en  ordered  out  of  Bering  Sea  by  the  United  Stotes  aiithor- 
••  ities;  entimated  patch,  1,000  at  87.50— price  of  HcalskinH  in  Victoria 
..  „i  IHHti— 557,500. 

•  This  claim  wa»  gent  in  too  late  for  insertion.  In  view  of  the 
"  irn({th  of  time  oomi)laiued  of,  Her  Majesty  caused  inquiry  to  be 
••  iiinde.     The  reason  given  was  at  the  time  of  the  seizure  of  the  vessel, 

20  ••  the  owners,  who  were  three  iu  number  [Paxton  had  a  Co})taiu'B  in- 
"  tiiest  of  thirteen  shares]  were  doubtful  as  to  how  far  an  appeal  for 
"  iiilress  to  the  United  States  Government  could  bo  asserted.     In  the 

•  following  year  one  of  the  owners  was  lost  at  sea  [that  was  Outnian, 
"  ;is  shown  by  the  evidence],  aud  another  left  the  country  [that  was 
"  l"niuk|,  aud  it  was  only  after  imblicatiou  of  the  award  that  the 
"  siirririiif]  iHirliiei;  after  consultation  with  his  solicitor,  and  upon  in- 
"  furniation  that  he  had  a  good  claim  for  compensatiou^that  the 
••  claim  was  then  drawn  up  and  presented  at  once." 

Tlie  owners,  therefore,  were  not  Paxton  and  some  nn- 
knnwii  party,  but  were  Paxton,  Uutman  and  Frank.  The 
J'^'du  iier  wlio  left  tiio  country  was  a  man  named  Alexander 
I'Viink,  and  my  friends  were  right  in  stating  the  position 
(if  (inat  Britain  in  their  printed  iugument,  as  Great 
[iritiiin  understood  it,  that  Frank  was  interested  in  the 
■•  l'.l;i(k  Diamond"  in  the  year  ISSti. 

A  hill  of  sale  is  only  prima  facie  evidence,  hut  no  evi- 
(1(  luc  at  all  is  an  entry  made  in  a  registry.  We  have  the 
ti -I  inioiiy  of  the  joint  owner  here  that  makes  th(*  asser- 
tiiiii  nil  the  part  of  the  learned  senior  counsel  for  Great 
Hiilaiii  an  error,  when  he  savs  that  Jacob  (iutman  had  no 
'*°titl.'  in  the  "  Black  Diamond"  in  IHSrt. 

Now,  Captain  Paxton  says  that  the  firm  of  Gutman  and 
Frank  were  trading  at  the  time  and  Jacol)  Gutman  was 
iiiliit'sted  in  that  vessel,  and  Frank  says  at  page  iin7  of 
tlir  Kxliibits  that  later  Gutman  owned  j^ths  of  that  ship 
and  that  lie  owned  the  other  82  shares. 

.\ii(l  adverting  to  another  fact,  Theodore  Lubbe  testi- 
(nil,  at  page  18!>0  of  the  Record,  that  he  bought  Bering 
Si' 1  skins  from  Gutman  and  Frank  in  the  year  IS^C,  on 
Si  |ii('iiiher  tilth.  What  vessel  did  Gutman  and  Frank 
'  liivi'  ill  Bering  8ea  in  I88t)  except  the  "  Black  Diamond?" 
^\  ill  tlie  leaiiied  counsel  for  Great  Britain  answer  that 
i|Lii  ->tioii  from  the  Kecoid? 


Ilf 


M 


TlIK   Ow.VKHSIlIt'   OF   THK  "  Al-KUIOD   AdAMS." 

I  1  nine  now  to  tht  consideiation  of  Alexander  Frank's 
iii'rii'st  in  the  vessel  known  as  the  "  Alfred  Adams." 
Fnuii  page  47  of  the  British  Argument  in  Chief,  1  read: 


6o., 


Ill  the  case  of  the  'Black  Diamond,'  No.  5,  and  the  'Alfred 
A.liims,'  the  title  was  in  a  British  subject,  but  the  vessels  were 
"  I'l'oriited  for  the  benefit  of  a  trading  rtrm  at  Victoria,  composed  of 
"  I  hi'  owner  and  one  Alexander  Frank,  who  was  a  native  born  citizen 
"I'f  the  United  States." 

I  lii'ie  is  an  admission  on  the  part  of  Great  Britain  that 
Al' xander  Frank  was  equally  interested  in  the  "  Alfred 


h?: 


7«2 


Ml 


(Mr.  VVjirivn's  Aigumont.) 

Adams'"  in    Uh>  yoai-  Ihs7.     Tlio  cl.iim  of  tlie  "  Aid  ,| 
Adams"  for  tliiH  year,  1h>7,  is  for  tli(>  sum  of  ^i!(t,74('(,  m. 

....1 '..!■   I    oui'   I  .,1.;....    1  ;. L- 


lO 


Adams  lor  iniH  yeai',  i-^^*,  is  lor  iii(>  sum  oi  ipi:t', (4(i,  m 
cliiding  tlio  vaUn>  of  1,8H(>  wal  skins,  and  is  a  cast?  of  p  r 
tiai  loss.  'I'iiu  owni'i's  liavc  no  claim  Ihmo  for  Mic  hnticn 
of  the  shi|i.  .lacol)  Uulman  and  Alfxandcr  ]''riUik.  ;i 
native  bom  riti/.cn  of  llic  United  States,  wore  tH|ually  m 
tcn'stod  in  tli<<  vcntniv  of  tlio  "  Alfred  Adams,"  tliercidir. 
Alexander  l^'rank  owns  one  lialf  of  these  seal  skins,  ,iiii| 
seeks  an  award  for  one  half  tlieir  value. 

Ale.xandi'r   Frank  was  equally  interested  with  ]iis|i;iii 
nor  in  theeariiinj;s  of  tliat  ship,  ami  the  claim  liefore  llii-: 
Hif;h  Commission  is  for  tiie  earnin^is  t)nly. 

It  is  needless  to  say  more  with  refen-nce  to  this  cljiim. 
I  yesterday  alluded  to  the*  argument  of  the  counsel  |,ii 
(ii'eat  Britain  that  tiio  United  Sfalts  is  precluded  hy  il,,. 
clause  of  the  treaty,  which  says  that  the  United  Staiis 
have  a  right  to  prove  the  factot  pait  ownership  or  owmr- 

jo'^hiji  in  entirety  in  citizens  of  the  United  States,  in  these 
ships,  from  proving  anything  beyond  That,  and  icferred  lo 
another  article  of  the  treaty  i)roviding  that  (iicat  {{rii.im 
can  recover  oidy  for  persons  for  whom  she  is  entitUd  to 
I'ecover;  and  (ireat  Britain  is  not  entitled  to  recover  fm  a 
citi/en  of  the  Uiuted  States  of  Ameiica. 

The  ownership  of  the  bottom  of  the  ■"Alfred  Adam-" 
becomes  important  when  considered  in  connection  uiih 
the  claim  lor  the  "  I'.lack  Diamond  "  in  ISSH,  and  thedanns 
for  the  ""  Black  liianiond  "and  "  I.ily  "  arising  out  of  lliiir 

-os^i'izure  in  the  year  Jssit.  The  owneishiiiof  Frank  isdeiiiinl 
in  iill  these  claims,  and  if  we  have  esliiblished  that  lie  iIhI 
own  a  part  of  the  "Black  Diamond"  in  b'^sti  and  sli.iJI 
prove  that  he  owned  a  jiarl  of  the  "Alfred  Adams'"  in 
lss7,  then  his  testimony  in  tlie  claims  for  iMSlifor  "  Hlark 
Diamond  "  and  "  Lily  "  will  not  be  entitled  to  ciedeiu c 

What  testimony  is  this  admission  of  the  counsel  fortioai 
Britain  that  Frank  was  e(|ually  interested  in  the  vcninrr 
only  based  upon?  There  is  not  a  line  in  the  Record  to  base 
il  upon,  if  your  lloiiois  jdease.     The  only  evidence  in  this 

^oKecord  is  what  1  shall  read  you;  at  Jiage  iil4.  Fxhibiis, 
line  It*,  is  the  affidavit  id'  Mori  is  Giitman,  wjiu  was  llu- 
only  witness  sworn  in  thecaseof  the  "'  Alfred  Adams,"  No 
^,  at  Victoria,  he  says: 

••Tlmt  till' said  firm  of  liutnmu  .V  Frank  liavo  a  claim  against  the 
•■  (idvcnmicnt  of  tin'  I'niti'd  States  of  .Vnu'rica  for  the  annmnt  of 
"  ??'2((,4:il!,  such  claim  1  icing  for  the  seizure  of  a  certain  schooner  known 
'•  by  the  name  of  the  '  Alfred  .Vdams  ,"  and  owned'" — not  that  .Mexuii- 
••  der  Frank  is  interested  onlv  in  the  venttn-e.  Imt  —  "ocv/ci/  /-i/  i/ip  Mii'l 
"tirm  of  (inliiiiiii  i(!  Fnink,  mul  nf  ci'iidiu  Sfiilskiiis  hctiiiniiiiti  In  lli" 
'•  .<iii(/J!r)ii,  and  that  jiroceedings  commenced  are  now  being  iirosecntcd 
50  '■  for  the  recovery  of  these  damages." 


That  is  this  claim;  the  amount  stated  there  is  >;2o,4;'H, 
and  the  amount  claimed  in  the  British  argument  is 
?^:^(»,74(i.  D'  any  one  (d'  the  learned  counsel  will  call  alien 
tion  to  any  evidence  concerning  the  ownership  :if  ilio 
""  Alfred  A(lains  ""  (Jiilside  what  1  have  read  and  shall  leail. 
it  will  be  something  that  has  escaped  our  notice. 

And  what  else  is  there    in    this    Record  to  show  that 

Alexander  Frank  owned  the  "Alfred  Adams"?      Tlie.-c 

^,Q facts  which  I  now  shall  advert  to  briefly,  and  which  aiv 

not  cited  in  our  i)rinted  argument.     In  Exhibits,  pagei'i'T. 

line  tiiS,  is  found  an  atlidavit  of  Alexander  Frank: 

"That  the  said  Jacol)  Giitman  was  at  the  time  of  his  deceiisc  11 
"  partner  with  me  in  the  busines.s  carried  on  by  us  at  the  Citv  ,if 
■'  Victoria,  as  merchants  and  Indian  traders,  and  that  the  esta  e  of  tlif 


7(1H 


(Mr.  Warren's  Argutiu'iit.) 

■•  <iu(l  Jacob  Gutiimn  couBiBts  of  oui>-hnlf  intorcBt  iu  tho  property  of 
■  <nu\  iiortnersbip." 

Attiiclied  to  that  tiftidavit  is  a  Hcliodiilo  setting  ont  the 
ii.itine  of  tlie  proiu'ity  of  tlin  (ItMcascd  Jacol)  (hitman. 
^nlll•  Honors  will  ii'collect  tiiat  these*  affidavits  vv(M'o 
iiiiuic  by  Alo.xandor  Frank  for  tlu'  imrposo  of  hcin^?  Hied 
in  llie  Prol)ato  Court,  or  wiiat  wo  would  call  tlit!  I'rohate 

I'^Mi'iirt.  of  British  Coluniiiia,  in  connection  with  tiic  estate 
(il    .hicoh  (hitman,  deceased,      This    particular    afliduvit 

fr which  I  read  is  dated    2d  Octohor.   IHSH,  and   was 

iiul  made  ft)r  the  purpose  of  protecting;  the  rights  of 
;\lixaiuler  Fr.ink.  this  I'nited  States  citizen,  hut  was 
iii:icle  for  tlie  pnr[)oseof  inforniinga  court  of  justice  of  the 
truth  regaiding  the  estate  of  'lis  deceased  i)artner. 

That  schedule  which  is  ai  i.iched  to  that,  attidavit.  con- 
tains a  reference  to  the  British  schooner  '"  Lily."  What  is 
tiic  Hiitish  schooner  '"  Mly  "i     What  was  the  name  of  the 

-'"-Miiiiisli  schooner  "  Ldy  "  hefore  she  was  known  as  the 
"  Lily  "t  I  refer  yoni'  Honors  to  the  I'cgistiy  of  tiie  ''  AI- 
friil  .Vdams,"  which  is  piinted  on  page  1!»7  of  Kxhihits;  at 
the  liottom  of  that  page  I  read  this: 

•■  rioviHioiial  oertiHcatc  from  nritinh  CouhuI  iit  SiinFraiiciMcd,  United 

•  Siiilfs  of  .Viiierieiv.  Jaimarv  17,  1K8'2,  name  clnniKed  to  '  F,ily  '  liy 

•  niiicr-in-Council,  dated  'J,M\x  Marcli,  IHHH,  nudor  Heotion  ^14!t  of  tlio 
■•  lirilish  IjUwh." 

The  name  of  the  "  Alfred  Adams"  was  changed  to  the 

',o"Lily""  on    March    •2'>,   IHss.     Alexaiidi'r  Frank   swears, 

O(toi)er  2,  isss,  that  Jacohthif  man  owned  one-half  of  the 

•  i.ily."' and  necessarily  that  lie  himself  owned  the  other 
halt,  because  he  was  the  only  artner  of  Jacob  (hitman, 
ami  the  partnership  owned  the  entire  schooner. 

On  page  'Jos  of  E.vhibits.  line  4S.  there  appears  among 
the  assets  of  the  estate  of  .Jacob  (hitman,  deceased,  one- 
liaU  of  which  assets  Jacob  (hitman  owned,  ,  id  one-half 
of  which  Ale.xanrler  Frank  owned: 


40 


'Claim  aKftin«t  tlio  U.  H.  Govornmeut  ir  seizure  'Alfred  AdamB.'  " 


Is  there  any  doubt  about  who  owned  this  schooner  when 
.MiNaiuli'r  Frank  swears  that  he  owned  one-half  of  the 
siliiioner  and  one  half  the  claim  now  being  i)ressed? 

(Ill  paue  L'o;i  of  tli«'  F.xbibits.  line  4(i,  Ale.xaiKh-i'  Frank 
sniais  that  the  schedule  is  a  true  statement  of  the  assets: 

■  1,  Alexander  Frank,  of  tho  City  of  Vietoria,  in  the  Province  of 

■    lliitisti  Colnmliia,  Merchant,  hereliy  make  oath  and  say  as  follows: 

•  1.    Tliat  I  am  the  aliove  mentioned  .Administrator  of  the  Estate 

■  iii'.il  itVccts  of  .Tacol)  (Sutnutn,  deceased, 

I      'J.    I'lmt  the  Inveidory  or  Schedule  hereunto  annexed  and  marked 

■  witli  tlic  letter  '  A '  is  a  true  and  perfect  Inventory  of  the  Estate  and 

■  I'lli'cis  of  the  said  .Tacoh  Outmaii,  deceased,  and  tlnit  the  same  is  ex- 

■  liiliitcd  liy  me  as  such  in  accordance  witii  the  order  of  the  H<moral)le 

■  (11.  .liistice  Crease,  one  of  the  tTud)j;eH  of  the  above  court,  ai)poiutiufj 

■  iiic  the  administrator  ilnriinle  mhuire  dUile  of  the  above  estate." 

lliie  is  Alexander  Frank  swearing  that  he  owns  this 
inn  now  under  consideration,  and  we  are  discussing  the 

ipositioii  whether  he  owns  it  or  not. 
The  learned  counsel,  1  dare  say,   in  his  re[)ly  will  say 
at   .Mexander  Frank  had  on  record  a  mortgage  on  the 
.MliVil  .\(lams."     (haul  that  he  did.  for  it  is  a  fact.     If 
in  Ihiiiors  please,  we  have  some  evidence  of  what  kind 

iiiciitgages  were  drawn  up  in  the  City  of  Victoria  iu 
is  (lass  of  cases;  but  to  place  beyond  discussion  the  ques- 
i!i  of  what  kind  of  a  moitgage  this  mortgage  of  Alex- 


el; 
I'l 

(-o'li 
\  I 

ol 
til 
ti< 


llfl 


>V1 

■■:■    1 


Tti4 

(Mr.  WiiirtMrs  Aigniiu'iit  ) 

jindor  Finiik's  \v;is,  I  call  your  Hoiwus' nttcntioii  (o  tlu' 
sclu'diiic  (111  piip'  'JUS  ot  the  Kxliiltils,  which  siiows  ii,,t 
only  the  iis-Ht'ts  uC  .lacoli  (iiitmjiirs  estate,  hut  tlio  lialiili 
tics.  If  the  estate  of  .la(M>l)  (iiituiaii  owed  Ale.xaiidri 
Frank  hecause  of  this  iiioi Inane,  vhy  diil  not  Aiexand.  r 
Frank  put  (hat  indehtediiess  into  the  liahdities  of  ihi. 
estate  of  Jacol)  (iutman.  deceased^     There  is  no  ineiitidii 

lothere  of  the  indelitedness  of  .lacolt  (iiitiiian  to  Alexamlt  i 
Frank.  Would  this  man  who  was  making  theallidavii 
fdiget  th.it  .laioli  (intnuin  owed  him  mI.lThi^  No.  Hiis 
man  Frank  knew  that  was  a  fictitious  mortnane.  and 
he  knew  that  lie  wonld  he  unking  a  false  oath  if  he  in 
eluded  the  deht  in  the  statement  of  the  liahilitles  of  jn^ 
decea^icd  paitnei'. 

Turn  to  page  I'ln  of  the  K.vhihits,  hue  s.  to  the  artidavii 
signed  by  Alexander  Frank,  dated  April  'Mi,  Isss,  iml 
swoiii   to  hy  hitn  on  that   day.     That  attidavit  contains 

20  this  statement : 

"  The  Invkntouy  of  Hchekclk  in  tiik  Annexki>  Apfipavit  of  .\i.i;\ 

"  ANDKll  Flt.VNK   Hl'.FKHRKK  TO. 

"  Oiu'-lmlf  |iiirt  or  Hliiirc  of  iiud  in  tlic  following  moneyH,  iiroportiis, 
"  ctli'cts  and  ci'i'ilitH. 

"  (hie  Kcliiiiiiior  riijislcri'il  til  llf  I'm  I  nf  Vicloriii  in  Ihv  mime  uf  Jumli 
"  (iuliiiiiii,  till!  i/eri'iiiii'i/,  mill  iiinlur  llie  iiinne  </  llie  '  lilmk  Diiinioml.'" 

Wiiy.  "  i(>gistered  in  the  name  of  Jacoh  (Jutmaii."  if  lii> 
owned  it<  Why  did  not  Frank  say  "  owned  hy  Jacnb 
3o{iutman";  Because  he  had  sworn  in  another  attiilavit 
that  lie  ownetl  15J  shares  of  that  vessel. 

"  One  half  part  or  share  of,"  etc.: 

"  One  other  schnnner  ii/no  rer/ixlerei/  nl  Ihe  Purl  0/  Vivtnviii  in  l/ie  mime 
"  nf  Ihe  siiiil  Jiiciih  (liilinnii,  anil  iini/iT  llif  mime  0/  '  Lily,'  itiii//,,niifiii/ 
'•  oilleil  l/ie  '  Al/iril  Allium'.'" 


Further  in  the  same  attidavit,  line  157: 

"  (Maim  a^aiust  tlic  Uuitoil  States  (ioveruincnt  for  the  vnlno  of  tliir- 

"  tt'on  liunilri'd  ami  t'if;htv-Hix  soal  skiua  ami   for  (laniaK''K  for  tlu' 

40  "  Hei/urc  by  till"  staid  (iovoriiincnt  of  tlio  schooner  '  Alfred  A.luiiis ' 

'•  and  for  the  detention  of  tho  said  skins  and  eertaiu  guns  and  aniiui- 

"  uition.' 

Turn  now  to  the  British  argument,  page  lis.  whvw 
they  claim  on  iielialf  of  the  owners  of  the  "Alfivd 
Adams"  for  l.;!s<'.  seal  skins  .s!»,0(il).  ('an  there  he  any 
doulit  ahoiit  the  identity  of  these  claims,  if  your  Honors 
pleased  The  claim  was  not  at  that  time  foi'  the  value  of 
the  seal  skins  alone,  hut   for  the  seizure  of  the  schoniier 

50"  Alfred  Adams. '^  Who  owned  the  claim?  Alexander 
Frank  swore  there  that  Jacoh  (iutman.  his  partnei-.  owned 
ouehalf  ot  it,  and  who  liesidi's  .Jacob  Gutman's  paitiici, 
Alexiiiidei-  Frank,  could  own  the  other  lialf^  And  that 
claim  is  made  not  for  one  half  of  the  venture,  not  for  one 
half  the  value  of  the  seal  skins  alone,  but  for  on(!-halfof 
the  damages  for  the  seizure  of  the  .schooner  "  Alfrcii 
Adams." 

At  page  I'l:.' of  the  Exhibits,  line  hs,  is  found  a  reCci- 
eiice  to  the  sc  lioouer  "  Lily."  as  being  one-half  owned  liy 

60  Jacob  (Jutman. 

On  pageiilHof  the  Kxhibits,  line  a?,  is  a  reference  as 
follows: 

"  That  the  values  of  the  following  property,  schooner  'Hlack  Dm- 
"  moiid.' fifteen  hnndr<!d  (?JI,50()J  dollars,  .vc7(H0He/-  '  Lili/,' Ji/leen  lom- 
"7/-e</(Sl,r.OO)  iloll.irx." 


nv 


AVIT  OF    Al.KX- 


VH,  i>r()i)i'itii'.s, 


Ttir) 

(Mr.  WaireiiH  Argunu'iit.) 

I'liis  is  froni  the  aHidivit  <if  Moiitz  (hitman.  Morilz 
(iiitiiiaii  Minjports  lh«^  utlidiivit  of  Alt'xiiinh'r  Frank  and 
\v.  ,iit'  imiuninn  wlit'thtT  Altixander  Frank  owntMl  a  liaU'  of 
tlii-i  schooner!  liut  1  will  not  wtuiiy  thi'l'oiiit  by  reailin^ 
fintn  tliis  K'fon'nct'. 

( •nt'  otlitT  citation,  and  tlio  last  1  wish  to  ndVr  to,  is 
p;i-.'  '2\i  of  the  Fxliihits.  Uno  1!>.     This  is  tim  affidavit  of 
10  Mmil/ tiiitnian,  dated  iN'ovcinhcr  i>,  IHss.     He  says: 

•  Tliat-  till'  s'lidtlriii  {>/  (hiliHiin  unil  Fruiik  liiivo  a  claim  aK'iinst  tlio 
"  (iiiviTiiinciit  of  the  Ihiiti'd  Htutos  of  Aiiii>rii'a  for  tlif  amount  of 
"  twctity  thotiHantl  four  liuuilroil  uuil  tliirty-tlircti  iIoIIui'h  (ii?iJ0,4ii;i), 
"  fucli  vl'iiiii  hitiiiij far  llii'  :<eUi(re  nf  <i  ci'rl'iiii  Kchiiinmr  knaini  In/  th"  iiume 
"  (if  /he  '  Al/tvil  Adiiiiin  '  •mil  innied  hi/  the.  miiil  flnii  of  lliilmiiii  iiwl  Frnnk, 
"  luiil  of  I'oi'tain  Hcal  Hkiiis  licloiiKiiiK  to  the  Haiil  firm,  aiul  that  pro- 
"  I'coiliiiKH  have  Ixm'u  (■oinmi'iiccil  and  arc  now  bciu^  proHtioutod  for 
"  the  recovery  of  Huch  damancH." 

1  leave  tho  claim  of  the  "  Alfied  Adams"  with  this 
2ost,itetnent,  that  even  Alexandei'  Fiank,  when  he  ^ave  his 
testimony  at  Victoria,  did  not  testify  that  he  did  not  own 
the '•  Alfred  Adams."  I  wish  to  icficsh  yoiif  llonois' 
recollection  with  i'P}i;afd  to  the  testimony  of  the  witness 
Fiank.  The  witness  was  endeavotiii}^  to  escaiu;  th(^  con- 
clusion that  yonr  Ilonois  would  reach  that  he  U'as  in 
tcrested  ill  these  schooners,  and.  therefore,  he  set  up  an 
alisiird  contention  which  I  will  consi<ler  later.  At  page 
U'its,  line  4o,  he  testified  as  follows: 

"(,).  It  in  stated  in  the  inventory  that  Jacob  Outmau  owned  one- 
30  ••  Imlf  of  tho  Hcbooncr  '  Hhi(!k  Diamond '?     A.  Yes. 

"  I).  Anil  Hint  Jiicob  (tiitmiin  uinieil  iiiie-hiit/'i/ilin  '  Al/reil  Ailnms  '  and 
••  Ihiil  i/iiii  owned  the  other  h(i[f?     A.    Tliiil  h  when  f  did. 

"  That  is  iilien  J  did,"  r(;^'errh^g  to  tho  time  he  made 
these  affidavits. 

Are  we  compt'lled  to  still  serionsly  argiio  the  question  of 
wiii'ther  Alexander  Frank,  the  United  States'  citizen, 
owned  one  half  of  the  "  Alfred  Adams  "  at  the  time  of 
her  seizure,  after  presenting  to  yonr  Honors  such  con- 
(hisive  proof  of  the  truth  of  our  contention  that  he  did,  as 
■*  tills  ti'stiinony  of  Moritz  (Jutmau  and  these  affidavits  of 
Alexander  Frank  himself? 


^m 


'ference  as 


TllK    OWNKKSIIIP    OK    THK     "  BLAC'K     DIAMOND "    AND    THE 

"  Lily  "  in  thk  yeak  18S!). 

I  now  come  to  the  consideration  of  Alexander  Frank's 

coiiiicition  witli  the  "Black  Oiamond"  and  "Lily"  in 

IsMt.     At  page  4:i4  of  the  Arfj;unient,  filed  on  behalf  of 

the  Liiited  States,  these  claims  are  considered,  and  this 

'  statement  made: 

'•'I'lii'  United  States  assert  tliut  Ali-xandcr  Frank,  a  citizen  of  the 
"  riiiti'd  States  of  America,  and  a  resident  of  the  City  of  San  Francisco, 
"  was  the  owner  of  the  "  Ulack  Diamond  "  and  tlio  "Lily  "  at  the  time 
"  of  their  seizure,  and  that  no  damages  can  be  awarded  him  by  this 
"  Hii;li  CommisHion." 

Tiicsf  claims  I  will  consider  at  one  and  the  same  time. 
Till'  lacts  that  demonstrate  that  Alexander  Frank  owned 
thr  entire  bottom  of  the  "  Black  Diamond  "  in  f  SSt).  at  the 
6osaiiii' time  establish  that  be  owned  the  entire  bottom  of 
thi' "  Lily."  1  rested  the  arf:;unient  in  the  "  Black  Dia- 
iiinnil  ■■  riaim  in  lS8ti,  solely  upon  the  testimony  which 
csl.ililisbes  that  Jacob  (TUtnian  was  interested  in  the 
"  blarU  Diamond  "  in  isstl,  and  Alexander  Frank  and 
Jamb  (iutnian  were  in  partnership  in  IMSO,  and  if,  as  ad- 


■fit] 


(Mr.   Warren's  Argument.) 

niitted  in  the  Britisli  argument,  that  srliooner  wat<  o|m  i 
ated  for  a  trading  tirm,  then  Alexander  Frank  was  a  part 
owner  of  the  "  Black  Diamond"  in  is.sti. 

But  we  ast;ert  that  Alexander  Frank  owns  the  f*////.' 
claim  for  the '•  Black  Diamond"  and  "  Lily  "  arising  (nit 
of  the  acts  of  the  authorities  of  the  United  States  Govern 
nient  in  the  year  issy.  We  assert  that  Alexander  Frank 
lOowned  the  liottom  of  hoth  of  these  shi])s  at  tli(!  tiini' nf 
tlieir  seizure.  The  counsel  for(ireat  Britain,  at  page  \^in\ 
of  the  ivecord,  line  ;U,  was  asked: 

"Mr.  Dic'kinsou:— I  woukl  liko  to  ask  tlio  counspl  for  Grout  Hritiiiu 
"  who  tliov  L'liiim  to  1)0  tlic  owiiorof  tlii'  '  Illiii'k  Dinniond  '  in  tlir  olaim 
"  now  iionding  before  the  ('oniuiissiouV 

'•  Mr.  I'fttMs:— So  funis  we  nro  eoncerued,  we  tiud  tliis  vessel  at  (lie 
"  time  of  her  seizure  reijinleretl  in  llif  mime  nf  Miirrh  Moss,  and  we  claim 
•' for  her  »7(ijcci/' may  lie  entitled  to  her;  ire  mv  cluimiiii/  mi  lic/ml/  at' 
"  Gifiil  Jlritiiiii,  inn/  we  hnro  prituflhal  the  vessel  wasreijislereil  in  the  ii<nne 
' '  iif  Morris  Moss. " 
20 

Turn  to  the  Kecoid,  |)age  ISlTi.  line  44,  and  we  find  the 
ffidavit  of  Morris  Moss,  originally  made  and  pi-esented  tn 
the  Dominion    Government  of   Canada.     What   docs    Iib 
say^ 

•'  I,  Morris  Moss,  of  the  City  of  Viotoria,  iu  the  Provinee  of  liriti^li 
"  Coluniliia,  Dominion  of  Canada,  fur  dealer  and  shi|)  owner,  do  sol 
•'  ei'.inlv  anil  sineernly  declare  as  follows; 
••  1.  "l  am  a  15ritish  sjibject  hy  hirth." 

-Q  1  wish  t(i  (all  your  Honors'  attention  to  that  statement 
in  the  lirst  in.^tance.  1  ask  your  Honors  to  turn  to  din' 
other  athdavit  in  the  entire  schedule,  from  1  to  t!o,  in 
elusive,  which  contains  any  statement  similar  to  that,  ,1 
statenieiil  that  any  British  suhject  who  was  a  registend 
owm-r  of  any  vessel  vvt.s  '(  Ihitisit  snhject  hi/  birth.  \\\w 
was  that  statement  thouglit  to  l)e  necessary? 

"  1  am  a  British  .subject  l)y  birtli  and  the  '/.  '  /  rer/islerei/  oicner  of  the 
•'  .schooner  '  Lili/,'  " 

,Q       TUK  ■■  DI'LV  iCt/i.stcrKl  OWNKU,"  .NOT  THK  OWNKK. 

Alexandei'  Frank  was  the  only  witness  examined  in 
these  two  claim>,  and  he  was  called  hy  telegram  from  S,ni 
Francisco,  svheie  he  resides,  and  gave  his  testimony  on  I  lie 
last  day  of  oiir  se;-sion  at  \'ictoiia.  The  testimony  nf 
this  witiies.-^  IS  hiief,  and  a  careful  reading  theicof  ni 
connection  with  the  Fxhihits  relating  to  this  claim,  will, 
we  helieve,  satisfy  tlie  High  ronanissioners  that  he  wa^; 
the  owner  of  these  vessels  at  the  time  of  tiie  seizure,  ,iiiil 
that  he  is  the  person  whom  counsel  for  (treat  Bril.iiii 
i^ohad  ill  mind  when  he  stated;  "  We  c/ii/in  fur  Iter  iflim  ri  r 
111(11/  In-  riilil/cil  to  ln'f.  ll'c  lire  fill i in i  111/  Oil  liclidlf  uf 
(I'li'iil  Ihitiiiii,  iiiiil  ire  liine  /Udoj  /lull  tlir  rc.s.sc/  ini.s  mj 
istcrril  ill  till'  11(11111'  of  Morris  .l/o.s,s." 

'i'lie  only  evidence  against  the  affidavit  of  Alexjuuler 
Fi;ink  hetore  this  High  Commission  is  the  so  c;illed  evi- 
(It  lice  fi.imd  in  the  legisteis.  and  if  uc  ;ire  to  call  sm  h 
regist<Ms  ;is  tlii'se  evidence  of  facts,  then  lhei'(>  nuiy  he  ;t 
.scintilla  of  evidence  to  siijiport  the  claim  of  Morris  Moss. 

Commissioner  on  the  pait  of  the   United  St;ites;— l>ois 
<''o  not  Alexander  Frank  swear  squjirely    that    Moss   was  tiic 
owner? 

Mr.  Warren:  1  say  he  was  the  only  witness,  and  the 
ohlv  e\  idejice  outside  of  l''rank"s  testimony  is  the  register. 
I  mleiid  to  considei'  Alexiinder  Frank,  hut  putting  Iniii 
oii'.-ide  iif  1  his  case,  the  oiilv   evidence  found   within  tlie 


7()7 

(Mr.  Wanen's  Argumont.) 

(I .vers  of  the  Record   to  support  the  claiin  that  Morris 
Mii>s  was  the  owner  is  found  in  the  registers. 

No  oath  of  Moss  tiiat  he  vas  the  owner  of  these  vessels 
IS  lii'for(>  tlie  Oonrt.  If  tlieie  was  an  oatli  made,  and  filed 
Willi  tlie  Kegister  of  tiie  I'ort  of  Victin'ia,  it  is  not 
liili.ie  this  High  Coniniission.  Tlie  k'arneil  (•onnsel  for 
Hi  rat   Britain,   Mr.    Heiqne,   stated  in   his  oral  argument 

lolliat  the  hills  of  sale  e.xeented  liy  the  exeeutois  of  Jacob 
(liilnian  to  Morris  Moss,  were  ni  evidence.  That  state- 
iiH  lit  is  an  error.  The  Hecoid  does  not  include  the  hills 
(il  >alc  fiom  the  (>.\ecutors  of  the  estate  of  .Jacob  Gntman 
til  Morris  Moss.  They  are  not  printed  as  Kxhibits,  and 
the  learned  counsel  was  mistaken  in  supposing  I  bat  thciv 
\vt  re  printed  among  the  Kxhibits.  The  statement  on  the 
|i,ige  of  the  Exi>ibits  to  which  he  did  refer  is  the  printed 
(■(i|iy  (if  the  register  of  the  "•  Black  Diamond,"  and  of  the 
ntlii'i'  register,  tliat  of  the  '"  Lily."     No  bill  of  sale  is  before 

:oviiiii  Ikinors,  only  memoiandnm  entrits  made  in  registi'rs 
of  the  ships.     No  doubt  about  that  fact. 

In  reference!  to  this  registry  wiiich  it  is  contended  is 
Mime  evidence  of  title,  let  nie  read  to  your  flonors  the 
ii|iiiii(in  of  liord  Stowell,  in  the  case  of  the  "  Odin,"  re- 
|iii:te(l  in  1  Cluistophei'  Kobinson,  commencing  at  page 
.'4'.i,  and  reading  from  page  -J."):.'.     Lord  Stowell  bere  says: 

■  Nut  oiilv  flu'  bill  of  sale," 

Here  was  a  bill  of  sale,  not  the  registi'y  only. 

•  Not  oiilv  the  bill  of  sale,  l)nt  tliore  are  other  papers  whiph  bavo  a 
"  ii'tiuliir  appearance  ;  so  that  it  th(>  court  prouounces  against  the 
•  ilaiiii.  it  must  ))ronounce  that  these  papers,  several  iu  uuiul)er,  ai'o 
■  nil  re  fabrieatious  utterly  void  of  truth." 


IH 


t'.fl  tUt'lti'l'  (>/'  tJlt^ 


Liird  stowell  puts  the  proposition  s(juarely  before  hinj- 
sell  iiiid  says,  that  if  he  declares  against  ibis  claim  he 
would  declare  these  iiajjers  "mere  fabrications  utterly 
void  of  truth." 

•  'I'lie  first  observation  luiule  ou  the  part  of  the  captors  is,  thatin-oi^ 
4<^'  •■  auv  supposition  the  juiiiers  would  berefjiihir  ;  and  it  is  true  ;  '.'or  the 

■  viTv  intention  of  the  fraud  is  uf  it  be  a  friiud)  todeceive  bv  the  regu- 

■  liinlv  of  the  papers  ;  it  is  the  necessary  a])paratuM  and  niaeliiuei-y  of 

■  Midi  a  case — and,  tliereforc.  it  is  by  uo  means  eneut^h  to  say,  'Our 

■  |iapirs  are  all  iu  order.'     What,  it  is  asked,  do  you  liold  jiapers  for 

■  iiotliin^j  '?" 


Lord  Stowell  there  puts  a  (juestion  to  himself,  and  he 
|iul<  another: 

•  .\re  we  to  have  a  new  law  of  nations  in  which  it  is  to  lie  held  that 

■  rci,'ii];ir  documents  are  of  no  avail?     Certainly  not     such  papers,  duly 
'•■  vcritied  and  suiiportcd,  are  strouf; /)/■(///<(/.(■  (c  evidenci'   in  all   cases; 

"  uiiil,  if  unopposed,  are  conclusive  evideix'e;  luit  if  there  are  circuui- 
"  stiiiicrs  and  facts  ap|>eariu)4:  ui  llie  ease  leadinji  justly  to  tlie  coiudu- 

■  sioii,   that  those  papers,  though    foniiul   in  themselves,  and  though 
•   fMiiiiiilly  supported  by  oath " 

May  it  please  yoiu' Honors,  llmiKjIi  /nniid/li/  sKjipor/nl 
li/l  iinlli  in  this  case  which  Lord  Stowell  was  cou-^idering — 
II  I  r.iiiiially  Miiiporteil  by  oath  in  this  present  case,  be- 
ein-e  the  oath  of  Morris  Moss  is  not  belore  tins  High  Com- 
niis~iiiii  to  support  the  entrit's  in  th(  se  registries. 

l.oid  Stowell  continues: 

lire  iievertlieleBs  falne,  it  would  be  ridiculous  to  say  that  the  Court 
"  i^  liound  l)y  them.  It  's  a  wild  I'onccit  that  any  court  of  justice  is 
■■  lioiiiid  by  mere  sweariiu;  it  is  the  .sinvov/e/ (■(•('(///•/// that  istoconeludu 

■  ilsjiidgment.    rnquestionably  aCourt  of  .Admirally  will  proccedwith 
■   nil  ii'i|iiisite  caution  in  di'tcrmining  iigaiiist  regular  piipeis.  regularly 


B  "'Vl 


rrts 


lO 


20 


(Mr.  Warren's  Argument.) 

"  BUpportod  ;  hut  if  Ihe.  piipevs  sni/  one  thi.iij  a  ml  the  facts  nf  the  t'nse  <(»«///,  ,-, 
^' the  Cdiirl  must  e.iyvcise  (I  solier  JKi/r/meiil,  (im/  </elermiiie  (icconliiit/  In  Ihe 
"  cummoii  rules  of  eviiletice  to  ii'hivh  Ihe  prepnnderotice  is  due." 

Ijord  Stowell  hi  aiiMuirity  in  tliis  WMjrld  whercviM' ((unts 
of  justice  arc;  to  be  found,  and  iio  declares  that  tiie  Uiiit.'il 
States  of  Aiiieiic.'i,  before  this  lliy;li  (\)ininission,  shall  imt 
be  concluded  by  any  statenu'iits  in  the  rej^istries  of  ihi'^e 
8hii)s.  uidess  the  facts  of  the  case  establisli  that  those  cu 
tries  are  collect,  and  further  says,  that  if  the  facts  of  ihe 
case  establish  the  contrary,  that  it  is  the  duty  of  the  Cdiut 
to  weigh  the  evidence  and  lo  conclude  its  judgment  on  llic 
side  for  which  there  is  a  picponderance  of  evidence. 

I  read  from  "(ireenleaf  on  Kvidence,"  at  Section  1:14, 
Volume  ].  fifteenth  <'ciition.  This  autlior  wlio  is  autln  r- 
ity  in  the  courts  of  both  great  nations,  in  considering 
documents  of  tills  very  iiaturt',  in  fact,  considcing  the 
weiglit  to  he  given  a  ship's  register,  says: 

"  Tlie  'regislrii  of  u  shi/>'  is  iidt  of  the  untiii'c  of  tlic  i)nlilir  or 
"  official  rofiistcvH  now  muter  cousiileratioii,  tlic  entry  not  liein^;  ef 
"  any  tninsaetion  of  whieli  tlie  public  ofticer  who  makes  the  entrv  ia 
"  conusant.  Nor  is  it  a(lo<'\iinent  reiinired  liy  the  hiw  of  nations,  ,is  <  x- 
"  pressiv(>  of  tlie  slii|i's  national  cliaracter.  The  TJcf^istry  .Vets  iiri'  con- 
"  sidereil  as  institutions  i)urely  local  and  municipal  for  i)Mrpiisi'^  nf 
"  i>ul)lic  i)()licy.  The  ren'ister.  therefore,  is  not  of  it.-iclf  eviileiicc  of 
"  property,  e.rcejit  sofurcis  it  is  emijirmeil  hi/  soiin:  (iii.rilidiy  circniiislnini-, " 

There  is  language  tiiat  is  preci-e       "here  is  language 
30  that  fits  this  case,  as  we  say.  is  on  .ill  fc'tu's  with  this  case 
that  we  ,ire  now  considering: 

"  Exce|)t  so  far  as  it  is  articnunl  hy  some  auxiliary  circunistaiu'o, 
'■  showiuK  that  it  was  inaili'  liy  the  authority  or  assent  of  the  person 
"  named  in  it,  and  who  is  sought  to  lie  charged  as  owner." 

Is  there  anything  before  this  High  Commission  to  siili- 
st.'Uitiate  the  entry  in  that  registry;  is  tiiere  any  oatli  of 
the  owner,  or  the  claimed  owner  Morris  Moss,  before  rhis 
High  Commission;  There  is  not  one  weird  of  testinidiiv 
40to  bi'  found  in  this  h'ecord  to  establish  the  regulaiitv  of 
thosi'  entries. 

I  say  further,  if  your  Honors  please,  advisedly  and  with 
due  consideration.  I  say.  that  th(>re  is  not  one  word  in  ihe 
Hecord  to  establish  Morris  Moss'  owneiship  of  these  vcs 
sels.  other  than  the  words  of  Alexander  Frank,  and  I  do 
not  forget  the  testimony  to  which  niir  learned  friends  will 
no  doubt  refer  when  I  iiiakf;  tluit  assertion:  that  is  the 
testimony  of  Owen  Thomas. 

Owen  Thomas  was  the  captain  of  this  ship,  .nid,  on  di- 
Street  examiiKition,  in  reply  to  a  leading  (juestioii.  he  said 
that  Morris  ^foss  was  the  owner  of  Ihe  vessel  Tiiat  les 
timonv.  yiiiir  Honors,  was  given  on  diiect-examination; 
on  cniss  examin.itidii  he  gave  this  .testimony,  h'eciud, 
page  ITsI,  line  I't: 

"  (^.  Yon  do  not  testify  that  Mr.  Morris  Moss  was  the  owner  V  A. 
"  No,  I  (In  not.      All  I hiiitir  is  tlc(i  la-  ir.is  III''  in  mlh'O  shipped  in-." 

That  dis]iose^  of  the  only  bit  of  testimony  in  this  Ivecnid 
''Oth.'it  did  not  fall  from  the  lips  of  Alexander  Frank. 

The  Commissioner  on  the  jiart  of  the  I'nited  States:- 
Jt  might  not  entirely  dispose  of  it.  \'  ■  Warren.  Vmi 
mean  tn  say  that  is  all  there  is. 

Mr.  Warren:  -That  cross-': .cair.ination  disposes  of  the 
witness. 


769 


lliKCnxeiinnihrr^ 
(iccnrtliii'i  I,)  ilig 
■.e." 

I't'vt'r  cDiiits 
ttlie  UiiiliMl 
:in,  sliall  luit, 
■ies  f)l'  these 
at  those  (Ml 
t'act.s  (if  tlie 
il'  tlu'Cmiit 
;iiii'iit  (111  ilit> 

IcIlCt'. 

Section  4!I4, 

o  is  autiii  r- 

considcriiig 

sidc'inj^  (lie 


till-    pulilii'  or 

-■    not    ll.MMH   (if 

Li'M  tilt?  onti'v  is 
imtidiis,  as  fx- 
'v  Acts  lire  Cdii- 
ir  iiiii|Mist>s  of 
elf  cviclciicc  of 

is  iaii^iiafie 
it'll  t-iiis  casn 


('ll'CUHistllUOO, 

t  (if  tlic  |iiTH(in 


■^loil   to  .-llli- 

any  oath  of 

hcforc  rhis 

f  ti'stiiuony 

ej^ulaiity  (if 

lly  and  witli 
word  in  tlie 

f    tllCSO    VCS- 

ii<,  and  I  do 
friends  will 
that   is  the 

.  and,  on  di- 
ion,  lie  said 
.  Tliat  tcs- 
xaiiiin.itiiiii; 
|v.     lu'Cdni, 


he  (iwii(»i'  V    A, 
fil  III-." 

1  this  K'(>( md 

laiiiv. 

ed  States: - 

ii'en.      You 

luses  of  (lie 


(Mr.  Wan  en's  Argument.) 

Tiie  Commissioner  on  the  pait  of  the  United  States:  — 
I  do  not  think  so.  He  says  tliat  Morris  Moss  sliippecl 
him,  and  tlie  effect  of  that  is  another  matter. 

Mr.  Warren:-- He  says,  "All  1  know  ahoiit  it  is  that 
Moiris  Moss  ship[)e(l  me." 

The  Connnissioner  on  the  part  of  Great  Britain:— It 
niifiht  Ix'  a  eircnmstance  to  he  taken  in  coinieetion  with 
10  (it  her  matters. 

The  Commissioner  on  the  jiart  of  the  lTnite(l  States:  — 
It  does  not  seem  to  disjiose  of  it  in  the  sweeping  way  you 
have  stated,  Mr.  Warren. 

Mr.  Warren: — Wh(>n  I  st  y  that  disposes  of  it,  I  was  ex- 
pressin,!;;  my  opinion,  if  your  Ffoiiors  jilease,  and  I  may 
liave  ^one  slightly  beyond  what  I  was  justified  in  stating 
unless  I  went  further  and  informed  yoer  Honors  of  what 
was  in  toy  mind  when  I  made  that  statement.  Owen 
Thomas  says: 

'■  All  I  know  iiliont  it  is  that  he  is  the  miiu  '.lint  8hip|)e(l  me." 

1  will  cite  testimony  for  your  Honors  from  this  Record, 
(li'.(  losing  that  Moriis  Moss  was  a  man  (Engaged  in  the 
business  of  managing  ships  for  other  owners  in  the  Citj' 
of  Victoria.  1  will  cite  the  liecoid  to  pidve  that  Morris 
Moss  shipped  masteis  of  other  vessels  that  he  did  not 
own.  That  fact  is  beyond  doubt,  and  there  comes  to  my 
mind  now  the  case  of  the  "Ada  "in  lss7.  Moiris  Moss 
?liipii(>d  the  crew  of  the  schooner  "  Ada,"  and  she  was  not 

30(iwiied  i)y  iiim.  In  the  year  ]SS7,  and  for  a  nund)er  of 
years  thereafter,  Morris  AIoss  was  doing  this  kind  of  Inisi- 
ncss.  and  as  I  do  not  desiie  to  state  the  testimony  from 
memory.  1  will  inscMt  in  the  notes  the  evidence  bearing 
uiioii  tliat. 

In  addition  to  what  T  have  said  in  refeience  to  th.e  fact 
that  Morris  Moss  was  an  agent  repiesenting  other  owners 
(if  schooners.  I  (l(>sir(>  to  call  your  Honors'  attenti(jn  to 
wiio  th.is  Owen  Thomas  is  and  \hat  we  know  of  him. 
Owen    Thomas    is    the     man     wii om     William     Munsie 

-+^Mirougbt,  when  lie  was  an  invalid,  fcom  the  liospifal  to  the 
(■(lint  room,  ti)  give  testimony  concerning  the  voyage 
of  tii(>  "Cai'oleua"  on  the  coast  of  Vancouver  Island 
in  the  spring  of  the  yeai'  issti.  What  did  William 
Munsie  jiroduce  this  witness  for?  He  actually 
produced  him  hims(df,  hecaust!  the  testimony  shows 
thiit  Mimsie  went  to  the  hospital  and  brought 
Thomas  from  there  to  the  court  room.  The  witness 
was  pro(hiced  and  testified  that  tin*  "  Carolena "  did 
no  trading  on  the  coast  in  the  spring  of  ls8ti,  and   for  the 

3"pnipose  of  establishing  that  tlu^se  supplies  .put  on  board 
the  "Carolena"  were  solely  for  a  voyage  to  I'ering  Sea. 

I  read  fidtn  the  testimony  of  the  witness  Thomas,  itec- 
iii'd,  page  'Jiu,  line  l'H: 

••  Q.  Mr.  Thonms,  vdu  live  in  Victoiiii?     \.   Yes. 
"  Q,   And  (1(1  Villi  rcincinbcr  the  sclKHHicr  '  Ciirdlcna'y     A.   I  do,  .sir. 
"  t^    In  IHHti  wcrevdu  (111  till' schooner  '  Ciivoli'nii '?     A.   Yt>s,  Hir. 
"  (.}.   Ah  n  pilot  or  something  of  tliiit  sort?     A.    Yes,  sir. 
"  Q.  Where  did  you  ^o  on  lierV     A.   Went   to   New  C'hatelet  (Espe- 
"  ruuza  Inloti  Home  time  aliont  the  middle  of  Fehniarv," 


6o 


This  was  the  voyage  of  1>>^<>. 

"  (,).   What  did   yon   no   tlii're  for?     A.    For  ii  crew  of  Indians  for 

Hi'lirini.;  Sen. 

"  l^.   Did  yon  ^et  the  liidians?     A.   No,  sir. 

"I).   Did  yiiu  tidve  Home  supiilieH  down  there?     A.   Yes. 


Ill' 


M 


77(» 


(Mr.  Warren's  Argument.) 

"  Q.  What  were  you  going  to  do  with  tlio  Hupplies?  A.  Goiug  t.i 
"  feed  the  ludiiiiiH 

"  Q.  To  koi'i)  the  ludinus?     A.  Yos,  sir. 

"  (J.  Whs  it  jour  iiitt'utiou  to  laud  the  supiilios?     A.   Yes. 

"  Q.  After  you  fouud  out  that  the  ludinus  wouldu't  eome,  wlnit  ili.l 
"  you  do  with  the  supplies?     A.  Took  them  ahoai'd." 


10  a 


20 


He  testilied  that  lie  landed  the  supplies  and  took  theiu 
hoard  again.  There  is  a  witness  wlio  contradicts  him 
bsohiti'ly  on  that  point,  hut  1  will  pass  that: 

"  Q.  Did  you  or  did  you  not  leiiv(!  any  supplies  there?    A.   Xo. 

"  Q.  You  got  no  Indiiius?     A.   No  ludians,  they  wouldn't  go. 

•' Q.  How  long  were  you  at  this  jihiee?     A.   (^uite  u  long  time  tlicn' 

"  tji.  What  were  you  doing  there  all  the  time?     A.   The  vessels  liii,| 

there  and  we  tried  to  eoax  them  to  go. 

"  ().  And  you  failed?     A.   Failed,  yus. 

■•  y.  And  then  vuu  .veut   where?     A.   Vietiiria. 

"  Q.  Direet?     .\.   Direct,  sir. 

'•  Q.  Stopped  at  no  other  phiee?     A.   No,  sir." 

Consider  the  te.stiniony  at  pap(^  M'2  of  the  Record.  liiH- 
•2,  il  >i>iii'  Honors  please,  of  Michael  Serault: 

'•  ().  On  whieh  trip  of  the 'Carolena  '  did  he  come  to  Victoria?  A.  1 
think  it  was  when  tliev  ipiit  sealing  on  the  coast,  as  near  as  f  retcil- 
lect." 


.Michael  Serault  testified,  a  witness  pioiluced  hy  thissiino 
William  .Mnnsie,  that  the  "  ('aioleiia  "  sealed  on  the  coa-t 
ill  Fcliruary,  ls>t'i.  i  will  take  it  for  granted  that  your 
30 Honors  renieinher  the  testimony  of  this  man  Serault.  1 
read  yesterday  where  he  specifically  said  tliat  they  were 
sealnig  on  the  coast,  but  at  Record,  page  <)4.5,  line  41.  lie 
said  as  folio ws: 

'•  ().  They  went  up  there  tirst  and  before  the  canoes  were  put  mi 
"hoard,  and  went  sealing  in  the  spring,  in  February,  on  the  coast y 
•■  A.   Yes." 

Owen  Thomas  isahsoliiteiy  contiadicted  on  the  most  ma- 
terial matter,  as  to  whether  or  not  a  great  (jnaiitity  of 
40provisions  were  put  on  the  "Carolena"  for  u.se  in  Bering 
Sea,  oi-  tor  use  on  the  west  coast  ot  N'ancouver  Island  in 
trading. >r  in  sealing -alisolutely  convicted  of  giving  false 
testimony. 

Tile  Commissioner  on  the  part  of  the  United  States:- 
W'liat  IS  vonr  ntcreiice,  Mr.  Warn  11,  to  the  legistry  of 
tlie  "  Lily""; 

Mr.  Warren:-  i'ago  1!»7  of  the  exhibits. 

The  Commissioner  on  the  part  of  the  Unite'.  States:— 
Who  put  il  into  the  case^ 
50      Mr.  Warren;-   It  is  put  into  the  case  as  Exhibit  No.  sii, 
claim  No.  mjii  the  part  of  ( irt'at  Britain. 

The  Commissioner  on  the  part  of  the  United  States;— 
Did  you  refer  tothe  registry  of  the  "Black  Diamond"? 

Mr.  Warren:-  It  is  printed  at  jiage  liTit  of  the  exhibits. 

.Mr.  BeKpie;  Thr  register  of  the  "Lily"'  is  continiR'ii 
from  p  ige  l'.»7  to  page  ;iS4. 

Mr.  Warren;     'i'hat  is  an  error,  Mr.  Bei(pie.     The  r-'gis- 
try  IS  not  continued  at  page  :!s4.     On  page  ;is4  is  prinlid 
a  copy  of  a  papci'  taki'ti  from  the   "Lily"  when  sire  was 
'^o seized  in  Bering  Sea. 

Sii' diaries  llibhert  Tupper:-  Can  you  give  tiKMefereiuo 
III  llie  Record  with  regard  to  Morris  Moss  shipping  the 
crew  of  tlrt^  "  Ada"< 

.Ml.  War'r'en:-  Record,  page  l-':i4,  line  lo;  liecord.  page 
Il':'..">.  line  !.">;  Recoril,  page  ['XV2,  due  i!;<. 


■■■I 


771 

(Mr.  VVaiTcirs  Argument,) 

Sir  Charles  Hibbeit  Tupper;— I  asked  if  you  could  give 
nil'  \hv  reference  to  iiis  shipping  the  crew.  Page  123-t 
(|(H's  not  do  it. 

Mr.  Warren:— If  your  Honors,  please,  I  would  prefer  to 
give  the  entire  testimony  this  atteinoon. 

The  C'oininissioiier  on  tiie  I'.irt  of  the  United  States:  I 
uiiiild  like  you  to  tell  nie.  Mr.  Warren,  whether  there  is 
knUiv  fvidenci^  that  tlie  mortgages,  or  what  you  say  were 
iiihirmal  mortgages  on  tjie-^e  vessels  iield  by  Frank,  were 
ovci'  (lischaiged  until  atter  the  scizurr-s,  and  wh'ther  or 
not  there  is  any  evident  e  ihat  these  inoitgages  were  dis- 
|ioM'.|  of  m  connection  with  the  alleged  sale  (»f  Morris 
Mos^. 

Mr.  Wari'en:  lean  answer  your  Honor's  (|uestion  now. 
i'licn'  was  a  inortgagi'  on  hut  one  of  the  hoats,  namely, 
thi'  '•  liily."  'Ihcre  was  no  mortgage  on  tlu^  "Black 
hiainond"  to  .Alexander  Fi'ank.  The  mortgagt'  on  the 
.M'l.ily"  to  Ale.vander  Frank  l)ore  <iate  Fehruarx' t'>,  ISSO, 
l)riiig  the  mortgage  on  the  "  A  If  led  Adams,"  recorded 
K(  lirnary  li»,  l^^sc,  Fxhii)its.  iiage  l!ts.  line  4.");  and  that 
iiiiiitgage,  which  was  not  included  in  the  estate  of  Jacob 
(iiilman.  as  one  of  the  liabilities,  was  not  dis'harged  of 
ividid  at  the  time  Moriis  Moss  took  that  title,  and  was 
ncMM  discharged  of  record,  until  tiie  itth  day  of  February, 
l-'.M.  when  vve  find  this  (F.\hil)its,  p.  l!t!»,  line  H(»): 

•  liisi'liarfji?  of  J[oi'tp;iijii'  •  A  '  for  !B1,250,  mroipt  tlntud  intb  Novem- 
■  111  r.  ISS'.l.  and  oi'dcr  in  council  aiitlioriziug  discliurgo  of  Mortgage 
30  •■  '  .\,'  till'  iiriKiuul  liaviug  Imu'u  lost." 

1  had  intended  to  refer  to  that  later  in  my  argument  iu 
( (iniitiction  with  tin  sc;  claims,  l)ut  I  put  it  in  here  be 
<-,iiise  of  the  iiuiuiiy  of  the  learned  Conmiissioner  for 
the  L'liited  States.  I  desire  to  call  your  Honors' 
iittciition  to  the  fact  that  the  receipt  is  dated  the  ISifb  day 
(if  November,  1?>S'.t.  What  brsides occurred  on  the  i'.tth  <lay 
111' November,  l.ssi'?  On  that  day  Morris  .Moss  parted  with 
his  jiaper  title,   and  to   vvhom^     To  Victor  Jacohson.     In 

4  till'  month  of  -Xovember,  1S.S!»,  what  els(!  happened^  Alex 
under  Frank  went  to  the  City  of  San  Francisco  to  reside 
iH'iinaneiitly,  and  never  put  his  foot  on  British  soil  after 
tli.it  day,  with  the  iiitention  of  remaining  there.  That  is 
wJKit  happened  in  the  mouth  of  Noveinijei-.  issit.  1  said 
the  month  of  .\ovt'ml)er,  Issit,  but  1  will  reaii  tiii'  Record 
l.ttrr  to  show  that  it  was  in  the  fall  of  iss'.t,  and  as  I 
(Id  iiol  desire  to  static  a  fact  which  is  not  foinid  in  the 
IJniird.  ]  will  withdraw  the  use  of  the  word  "  Novem- 
lii  T."     Therefore  this  fictitious  mortgage  which  was  never 

^iijncliided  ill  tlie  liabilities  of  -lacoh  (iutman's  estate,  the 
oiiomai  of  which  the  order  in  I'oniicil  says  was  lost,  re- 
ih.iined  on  recoid.  while  Morris  .Moss  iield  that  title  as 
(■i|nilaiile  trustee  -as  trustee  for  Alexander  Frank  -and 
wiis  never  discharged  until  Morris  Moss  parted  with  his 
|i:i|ier  title  at  the  time  that  Alexander  Frank  sold  his 
iKiiliiig  stations  on  the  west  coast  of  Vancouver  Island, 
;iiiil  jell  the  City  of  Victoria,  as  far  as  busiiu'ss  was  con- 
ii'ined,  and  for  every  purpose  whatever,  to  reside  in  thi> 
I'll',  of  San  Fi.incisco. 


I  w;i>  reading,  if  your  Honors  please,  from  Creenleaf  on 
Kv  ideiice,  and  1  ((Jiitiniie: 

■  TW  rf i;istr\  .  tlu'vi'tmie.  is  not  of  itsplf  oviilcm-o  of  |iro|)i'rty,  pxpei)t 
"  Ml  {m.t  as  It  i>  'oiitirnied  liv  somt'  iiaxiliarv  ('irciiniHtiincc  showinj,;  tliat 
■  It  was  mailr  tiv  tlii'  uutllorit^  or  assHnt  of  the  owner  nanu'il  in  it. 


(Mr.  WarnMi's  AigmiKnt. ) 

"  iind  who  is  sought  ti)  he  churned  us  owui'V.  Without  siu'li  (-(111111  i. 
"  illj;  l>roof  the  rn/i.iler  /kik  lieni  liehl  mil  li>  lie  evfii  primii  fuch'  eriii  n,-^ 
"  (i>  c)mr<ie  a  iiersoii  as  inniT,  niiil  oven  with  such  proof  it  is  not  ('dii- 
■'  olusivo  ovidt>uci'  ml  ownorshlp;  for  mi  ei/iiiltih/H  litlt;  in  oni>  ))«■!>.(  in 
•'  umv  w(>ll  consist  with  tlio  (locumeutary  title  at  the  Custom  Hoinc 
"  in  another." 

No  l;iMj;iiis«'  wiittcn   by  any    man,    \vlu'tlit>r   lie  lie  so 
lociiiiiit'iit  a^  urccnlcaf  or  not,  cimld   1)0   iiuirt' apjilicalilf  to 
the  ci.'cnnistanct's  wo  are  now  consideriiiy,'. 

'•  Without  such  oonnei'tiug  jiroof  tlie  renistrv  lias  lieen  held  nol  lo 
••  be  even  iinnin  fiirif  eviilence  to  ehurf^e  a  iiersoii  as  owner;  iiiiil  cmh 
••  with  siicii  jiroof,  i(  is  not  eouelusive  evidence  of  ownershij);  for  llic 
••  eiiuitalilc  title  in  one  person  mitilit  well  consist  with  the  doeuimii- 
'•  tarv  title  at  the  I'ustoni  House  with  another." 

"  W'liere  the  iiuestion  of  ownersliip  is  nier(dy  incidental  "  -(iricnl.  ,if 
continues,  and  I  call  your  Honors'  attention  to  this  laiiKnau.  . 
"  where  the  i|iiestioii  of  ownership  is  merely  iucidtuital,  the  rej;ist.r 
"  alone  lias  heeu  deemed  suHicient  prii'i'i  facif  evidence,  Imt  id  /(inn-  nf 
2Q  "  the  pfrxiin  cldiiiiiiif/  an  oinirr.  il  is  no  I'riileiice  at  nil,  l>eh>g  imlliini/  """'f 
''  lliim  liisowii  <led'ir.ili(i)i." 

If  your  Honor.'^  ploa^^o,  what  roniains  of  thi.s  rooistr\  ;is 
ovidence  for  tlio  roniisol  who  claim  for  Morris  Moss^ 

At  ono  o'clock  the  Conuuissioneis  took  I'occss. 


-^      At   half-past  two  o'clock    the  Coninii.ssioners  rosiinic(| 
^    their  scats. 

Mr.  Warren:  I  think,  if  youi'  Honors  please,  that  I 
have  ostalilished  those  facts;  that  the  testimony  of  Ow.n 
Thomas  alone,  ontsido  the  testimony  of  .Moxandor  Traiik, 
snpports  in  any  way  the  onti'ios  in  the  ship's  I'ogister,  ami 
his  testimony  is  di.-posod  of,  tiist,  hy  his  own  cross-e.xami 
nation,  ;ind  secondly,  by  the  jiroof  that  ho  has  f;iven  faNo 
testimony  in  another  cast*;  that,  on  Iheanthority  of  (irccii 
leaf,  the  shijt's  rejiistor  is  no  ovidtMice  at  all  for  Mori  is 
40  Moss,  foi' (irconleaf  says,  "lint  in  favor  of  the  person 
"  claiming  as  owik  r  it  is  no  evidence  .at  all,  heing  iiotliiii;.; 
"  moioiiian  his  own  declanition  ";  and  that  Lord  Stowdl 
has  decided  that  if  the  ship's  jiapors  say  one  thing  and  the 
snrronnding  circmnstances  disclose  a  very  ditVerent  state 
of  facts,  it  is  the  dnty  of  the  Court  to  decide  in  accord.ince 
with  till'  prepoiidei.ince  ;uid  weight  of  the  evidence. 
Having  disposed  then  of  the  testimony  of  ( )wen  Thomas, 

is  110 
Morris  Moss,  upon  wli.il 
Solely  ii]poii  the  testimony 


iiid  having  ostahlished  that  the  icgister 


if  wo  have 

fvidonce  to  siipjioit  the  claim  ol 

50 testimony  does  this  claim  roslf 
of  Alexander  Frank. 

A  St  rangf' tact  it  is  that  no  wiliioss  covdd  ho  prodnc  id 
except  Aloxander  Fr.ink,  who  would  testify  th.it  Mom- 
Mos'^  hail  any  mtoicst  in  those  vessels.  The  executor  of 
the  estate  of  .i.acoli  ( iiitman  was  a  witness  and  teslitiid 
tiiat  Ale.x.andor  Frank  coiitimiod  the  hnsiness  foriiiorly 
conducted  hy  his  lirot iiei ,  .l.acoh  (intman  and  .Me.xandcr 
Frank  1  Record .  p.  K'.ti,"*,  lini'  lioi.  Not,  one  of  all  tlio 
persons  ill  Victoria  who  were   intorosted    in    sealing,  and 

f)(jWho  wore  coiiveis.int  with  the  interoslsof  the  various  pci 
sons  in  the  schooiiois  iis(>d  in  t  he  se.aliiig  hnsiness,  tostilied 
that  Moriis    Moss   had  ;iiiy  connection  whatexcr  with  the 

'•  Black  Diaii 1  "'  and  the  "  Lily  "  in  tlu.  year  lss!t. 

Mefore  I  t.ake  up  the  discussion  of  the  weight  to  ho  given 
Alexaiiiler  Frank's  testimony,  1  wish  to  call  your  Honors 


Hlich  COUUl  il- 
it  is  uot  <'ou. 

.11    Olio    ptTM.U 


■r    111'   he  so 
|iplical)le   lo 


■n  liolil  rioi  1,1 
ner;  iiuil  i\r„ 
'VMhip;  I',, I-  tin, 

tllf  lloCUIIM'll. 
1  "— Wl-Cl'lllrilf 

«   lanniiHt;-!  , 
1,  the  rct,Mst.'r 
/nit  ill /(in  11-  I,/ 
g  iiiilliini/  iiinfe 


rojiistrv  as 
Moss? 

;s. 


■rs   rcsiiiiifd 

easo,  tlial  1 
ly  of  Ow.ii 
luh'i'lMaiik, 
I'j^istcr.  ami 
iiss-cxaiiii 
givoii  lalsc 

of  (IlCl'll- 

for  Mollis 
lie   pi'i'.soii 

nj:  iiotliiiii; 

ird  Stowi'll 
iiK  '111(1  till' 
■rent  stato 

iii'conlanct' 

U'C. 

Ml  Thomas, 
•  tcr  is  no 
poll  what 
t('stiiiion\ 

|ii(»(lii('i'(l 
iiat    Morns 

Nrciltur    (if 

id  tcstiticil 
fdiiiici  ly 
Alexander 

(f  all  the 
■aliii^,  and 
aiioiis  per 
is,  test  died 
M-  with  the 

I  ss!t. 

to  1)0  ^;i  von 
iir  llonois' 


(Mr.  Wanen's  Argiiniont.) 

aitcidioii  to  Olio  fact.  I  have  hero  cei'titied  copies  of  the 
ship's  papers  taken  off  tlu>  "Black  Diamond  "  and  the 
"  Lily  "  when  they  were  sei/.(>d;  and  what  name  is  in  tiie 
certificates  of  iefj;istiy<  The  name  of  Morris  Moss?  No, 
,Iacoh  Oiitman.  U  there  is  any  douht  ahoiit  that,  T  will 
K  ad  it.  if  not.  1  will  refer  to  it  simply.  Tliev  are  Kx- 
lilMts,  No.  20,  li.  S.,  Claim  No.    K'.  and    Exliihi't  No.  11:5, 

lodnat  Britain,  Claim  No.  1.");  and  ;iiiiong  those  papers, 
(Ml  lied  hy  this  captain,  Owen  Thomas,  and  taken  olf  of 
tliost"  vessels  when  they  were  seized  in  the  year  ]H8i»,  was 
fdiiiid  a  certificate  of  rej^istiy.  stating  that  Jacob  Gntiiian 
was  the  owner  of  thost>  vessels. 

The  CommissioiKM' on  the  part  of  the  United  States:— 
What  is  the  date  of  that  cfMtificatt^  of  registry,  Mr.  VVar- 
rciif  There  is  one  attached  to  the  pr(.<!eedings  at  Sitka 
and  printed  in  llie  t>.\hil)its;  tliat  is  the  "Lily." 

Mr.  Warren:  -They  are  both  in  evidence,  if  yonr  Honor 

20 please,  lint  only  one  is  printed;  th(>  other  is  in  docn- 
ineiitary  form  in  the  hands  of  the  Secretary.  One  of 
these  registri<s,  that  for  the  "Lily,"  Ixvirs  date,  so  far  as 
the  ownership  is  concerned,  the  I'tith  day  of  April,  ISSS; 
lint  I  call  yonr  Honors'  attention  to  this  fact  that  no  certi- 
ti(atcof  registry  was  ever  shown  to  have  been  issued  to 
M(ii  lis  Moss,  and  on  this  certificate  is  contained  a  niemo- 
iMiidiim  as  follows: 

••  I  li('rol)y  cortifv  that  Joliii  Riley  lifts  lioen  aiipointod  master  of  the 
"  uitliiii  iiftineil  sclioouer,  Custom  House,  Vietoria,  H.  V.\  fileil  Septem- 

10--  I.r-JOIIi,  188!)." 

.\ii(l  on  the  other  jiapers  taken  olf  the  "Black  Dia- 
iiKind  "  is  this: 

•  Hi'iiiy  Hmith  is  this  day  appoiuted  master  of  the  within  named 
"  silimmer;  (ieorge  Euo,  Surveyor.  Owen  Tliomivs  has  this  dav  been 
••M|i|Miinted  miister,  Februiirii  V'tli,  1SS9,  A.  R.  Milne,  Collei'tor." 

The  Commissioner  on  the  part  of  the  United  States:  — 
WlitMi  does  Mr.  Fi;ink  claim  to  have  scdd  to  Morris  Moss? 
40  Mr.  Warren:- -NovtMiiber  lo,  issS;  after  her  certificate 
(if  registry,  so  fai'  as  the  ownership  is  concerned,  beais 
(late.  I  only  ndVr  to  these  papers  in  jiassing.  for  the  pur- 
pose of  showing  that  no  other  certificates  of  registry  ever 
were  issued,  and  that  entries /icii/'/^;/ (/(*/c  /.s'a'.'>,  concern- 
iiij;  the  apiiointmenl  (d'  her  master,  were  made  on  tlie.se 
papers. 

'I'iie  Commissioner  on  the  part  <>f  the  I'liited  States:  — 
I  snppos(>  that  til  change  of  masters  was  rtvpiired  to  be 
"11(1(11  sed  oil  the  ceititicati's  ol  registry  on  the  enrollment; 
ji-dint  1  do  not  know  what  the  law  is  in  (ireat  Britain  in 
(•eiinectiiiii  with  taking  out  new  registiMs  on  change  of 
iivviii'iship 

Ml.  Warren:— If  yonr  Ibniois  please,  hefure  we  finish 
(iiir  side  of  the  case,  the  IJegisliy  .Acts  of  (ireat  Britain 
will  he  called  lo  your  Honors'  atteiiti.ni  and  made  jihiiii. 

Tlie  (  uiimissioiier  oo  the  part  td'  the  I'liited  States: — 
l'\  iiiir  I  w  a  vessel  reliiining  to  a  home  |)ort  would  be 
ii(|iiired  ;  1  surreider  ,1  cerlilicale,  and  take  out  a  new 
eiie.  but  tb  V  do  irit  always  comply  with  it. 
'*  Ml.  Warivu:  -I  merely  adverted  to  lli(>s(>  facts  for 
uhal  they  wi  e  worth  ,iiid  ,ilso  for  (he  |iurpose  of  going 
'■eiiicu  hat  lie\  nil  tiiesi  papers  .iiid  shdwing  aiidlher  aiul 
an  additional  fail,  that  in  the  testimony  given  by  Captain 
Slii|i;ird  at  Sitka,  at  the  time  the  skins  from  these  vessels 
wi  le  condemned-  because  the  skins  were  taken  to  Sitka 


(\]r.  Warren's  Argiitnoiit.) 

and  tlu'ic  lilu'llcd,  condenined  and  lorfoitcd  to  th«;  Unit,  d 
States  -lie  said: 

"  Wlu'u  tilt'  Hohoonor  '  Lilv  '  wnn  tlrst  Hinlitod,"  &o.,  "  on  liourd  iiic 

"  vt'Hscl  foniul  frcsli  seal   Hkiim  mid   lilood  on  di'i'k.     '\'\w  hcIum i- 

"  'Ijilv'   WHS  lit"   (mill  tliis   ri'liitrH  to  tlic  conti'iitioii  Li'i'c)   '•(i^.7."l 
"  tou»,  WUN  owiit'il  liy  Frmik-  '(ml  (liitiiHiu  of  Vii'toriii,"  t'ti'. 

,p  VVheit!  did  Captain  Siiciiard  asi't'itain  tliat  (Jut man  ami 
Fiank  owned  this  vi'ssi'l;  lie  was  doubtless  iitiawaiv  nf 
tile  death  ot  Jaeol)  (intinan  between  tlie  yeai's  l.s<7  .hhI 
ISSH;  bnt  in  llie  veai-  issT  lie  say,-,  in  liis  lestinioiiv.  m 
cuiineetioii  with  the  "  Hlark  Diamond '': 

"  Tlic  vi'Nsi'l  mill  outfit  wciv  owiKul  liy  tracoli  Ontiiiaii  ami  .\lrxiiiiili>r 
"  Frank  of  N'ii'toiiii,  J{.  V.  Mr.  [''rank  uifornit'il  inc,  in  1HS7,  tljul  lir 
"  waN  a  citi/cn  of  tlii'  Ihiiti'il  ^Statt's." 

'That  language  doi's  not  fi;o  to  the  Uei'iiel  of  the 
^  issue.  I  niiderstaiid.  It  is  not  that  Alexander  Frank 
t(d(l  him  that  he  owned  these  vessels;  hut.  it  it  is  not  lair 
to  pi'eMime  that  when  Alexainlef  Frank  told  him  thai  he 
was  an  Aineiicaii  citizen  they  were  talking  ahoiit  his  in 
teresis  in  these  vessels,  then  we  cannot  go  I'ar  with  pic- 
snmptions,  Hut  we  do  not  have  to  rely  on  ( apl.nii 
Shepard  to  show  that  in  JSsT  Alexander  l<'rank  did  own 
thesis  vessels,  hccanse  1  have  demonstrated  that  he  did 
own  halt  of  the  "■  Alfred  Adams"  in  l^ST,  and  was  in- 
leiested  in  the  "  Hlai'k  Diamond"  in  Issti;  there  is  no 
^  dotiht  in  my  mind  ahoiit  that,  although  Frank  denied  ||i;it 
-^  he  ever  was  interested  in  these  schooners.  The  fad.  that 
these  jiajieis  were  aboard,  and  that  new  papers  were  iie\ir 
taken  out  by  Morns  Moss,  tends  to  show  lliat  in  reality 
tlieie  was  no  sale  to  Morris  Moss. 

1  wish  to  consider  the  testimony  of  Alexander  F-'raiik  as 
brietly  as   ]iossibK',  and  not  weary  the  t'onrt  with  a  re.id 
ing  ot  his  artidavits,  but  simply  cite  them  and  read  biiillv 
from  his  testimony, 
lo      Th(i  testinioiiv  conimenccs  ill  the  Record  at  jiage   \W.\, 
lineal: 

"  Q.  You  wi'ii'  a  paitncr  witli  Jaroli  (iutniaii  lioforii  liis  iti'atli  uiul 
••  up  to  tliat  tinu'  '!     .\.    Yi's,  sir. 

"  Q  You  arc  awarr  tliat  tlic  '  Ulack  Dianioml  '  ami  the  '  Lilv  '  woro 
"sold  to  Morns  Moss  on  the  lOtli  Novrniln'r,  IHHH  ?  A.  l"do  nut 
•■  know  the  date,  lull  1  know  that  tlii'v  were  sold. 

••().   Aiiliroxiniatelv  tliat  V     .\.   Sonicw  lirri' aliout  that  tiuic. 

"(j.  You  know  of  tlii'ir  having  lii'rn  sold  to  Morris  Moss  ?  A.  Yos, 
"  sir. 

"  C^.  Will  vou  sav  if  tho  salo  to  Morris  Moss  was  a  gonuini-  salo  ur 
.o"notV" 

That  (piestion  'vas  not  answered.  'J'heii  the  U'aiiicd 
counsel  put  this  (|iiestioii  to  the  witness: 

'•  ().  'I'lii'  only  fai't  I  want  to  elicit  is  wliother  you  were  iiiteri'Klid 
"  ill  till'  imicliase  as  niiidc  hy  Mr.  Morris  Mohh  of  the  two  vessels  in 
"  iiuestioii?     A.   I  was  not." 

lieaiing  upon  that  statement  I  will  road  from  the  cross- 
txaminatioii  of  this  witness  (iiecord,  page   l!tt>l»,  line  (io); 

('.        "  (i).     i'dii  !,ire'ir  l/iiit  Morris  Miis.'i  iitnin  l/iiti  claim  iif  Ihe  'Lili/'  wiainst 
•'  llip  Uiiilcil  Sliili'K  Giirrriimenl?     A.    IIV//,   im;   I  iritl not  xwrar  llinl, 

"  i).  W'i/I  i/oii  yirrar  thai  Min-rin  Mosa  iiiriin  Ihe  '  lildck  DitiiiKimr  li'iiiit 
"  iii/tiiiix/ III!'  Uiiilfd  •Sliilrs?    A.   y  mill  mil  niitnir  In  il." 

I'heii  wb;it  does  this  witness  say: 
"  Morris  JIoss  is  dead,  vou  will  recollect." 


775 


wm 


li'l.;  '   :i, 


(Mr.  Warren's  Argument.) 


his  (li'iitli  iiiul 


10 


\V;is  that  \]w  n\ison  wliy,  if  your  Honors  ploaso,  he 
\vi  lid  not  Hwcar  tliat  Morris  Moss  owned  llieso  clainia 
;iu  liiist  the  (iovernmont  of  tlie  Uiiit«!d  States?  The  re- 
in iik  shows  the  ciiaracter  of  this  man.     Tlie  ne.xt  qnes- 

ti.'ii  is: 

■I).  Di>  i/i'i(  sweur  Ihnl  the  eslole  <>!'  itori-is  M'^ss  (hits  mc/i  the  eluiiii  of  the 
'••  I  :iil'  tuidhisl  the  I'liltiil  States':'     A.    I  tcili  iii}l  sir,,ir  tn  it. 

1,1,    Ihi  ijuii  sieiiir  th'it  (lie  eslile  of  Man-is  Mi'ss  mniiil  the  etiiiiti  uf  the  '  liUivIc 
I    n/i'i/id'  aii'tiimt  the  I'liitc:!  Stales?     A.   /  leitt  imt  sireur  tit  il." 

Xowhi'ic  within  the  covers  of  this  Record  does  .Alexan- 
il(  '  I'VaiiU  swear  that  he  w;is  not  interested  in  tiie  venture 
1,1  ihose  hoats  in  tlie  year  jss!*.  or  tlijit  he  (lo(\s  not  own 
ill.  ,.'  claims  a;;ainst  tlie(  iovernnient  of  tlu^  I'nited  Stales. 

Why  did  not  ^h)ritz  (inlman  testify  that  th(>  estate  of 
J;i,.il)  liutinan  sold  the  schooners  to  Ahiri'is  Moss?  He 
si-iicd  the  alle^;ed  hill  of  sale,  lie  petit ioned  the  I'rohate 
liivi-inn  of  the  (.'ourt  for  authority  to  sell  to  Alexander 
-'•^jMniik  and  certainly  could  have  lestitied  that  Morris  Moss 
w.is  tiie  real  |inrchaser,  if  such  was  the  fact. 

Thf  direct-e.xainination  of  Ale.xander  Frank,  on  page 
I'.i'.i;'..  line  r)S,  is  as  follows: 

•  (,».  ttiiil  yon  Htnrtcd  tlic  new  liuHiiii'SK  in  Hun  FriiiiciHco  V  A.  I  liad 
•  ;i  iKUhii'i'  ill  IHS'I  tlic  1st  .liiiiniiry  F  tliinU,  ISHi)  „f  IS'.Kt.  1  do  not 
•■  Know  tin"  rliitc  exiu'tly  ;  it  wuh  nut  ii  new  Inisini'ss  l)nt  iiu  old  estub- 
"  li-.|iiMl  liusineas." 

Alter  the  1st  Jamiary,  ISsit,  he  says  afiain  it  was  1880, 
joimt  |s',Mil  Ale.xander  l-'rank  then  continued  to  own  these 
ti;nlin;;  stations  on  the  west  coast  of  X'ancouver  Island 
iiiilil  llie  h'all  of  issif,  and  Morris  Moss  held  the  title  to 
tliise  ships  until  the  sth  day  of  Novemher,  1SS!»,  when 
tjifv  were  hoth  sold  and  transferred,  and  then,  and  then 
only, was  a  receipt  given  for  the  mortgage  on  the  "  Lily," 
wliicli  mortgage  the  ( (rder-in-Council  sul)se(juently  shows 
cdiild  not  he  prodnceil.  'I'he  cross  e.xamination  was  taken 
lip  at  Ifecord,  page  liiJtt;,  line  tis.  Alexander  Frank  testi- 
licd  as  follows; 

"  (,).   Did  V(ni,  lit  the  time  von  took  tlio  property  in  accordance  with 

•  this  bill  o'f  sale,  dated  Htli  Kovombor,  1888  "— 

ilhal  is  not  the  hill  of  salc>  to  Morris  Moss,  which  is  not 
in  evidence,  hut  a  hill  of  sale  to  Ale.xander  Frank,  convey- 
iiij;,  as  I  will  show,  these  very  schooners,  and  which  is  in 

eviiii'iice) — 

"  iinil  cxi'i'utt'd  on  tlio  Otii  day  of  NovonilH'v,  which  Ih  Exhiliit  No.  127, 
"  (i    I!.,  take  all  tlu>  assets  of  tho  estate  of  Jai'ol)  Gutnmn,  and  as- 

•  Muiic  all  the  lial)ilities,  exet^it  the  ehiim  of  tho  '  .Vlfri'd  Adams,' 
'  dill'  half  of  it  V     A.   The  tinn  was  inscdvf'nt  at  the  time. 

'   (.,)     I'liat  iloes  not   answer  tlie  iiuestion.     A.   The  ox])lanatiou  that 

•  I  uKUl'.'il  to  nive  " 

■'  I'hc  Commissioner  on  the  part  of  the  United  States:— That  can  be 

•  l^iMU  afterwaids.     The  (inestion  is  very  simple. 
'The  Witness: — Well,  I   assumed  all   the  assets  and  all  the  liabil- 

'  itii's." 

■  Cross-examination  by  I\[r.  Warren  coutiuned: 
'■<,>.  You  did   at  one  time  own   a  half  interi'st  in  the  'Lily,'  and 

'  (bii  own  at  one  time  a  half  interest  in  the  'Black  Diamond,'  did 
'  v.iii  not?    A.  7  iliil  mil  i)ir7t  litem;  I  claimed  to  own  an  interest  :n 

'  thrill. 

■  (,).  By  that  you  mean  that  you  were  not  the  roRistored  owu(>r?  A. 
'  1  claiiiied   to  own  an  interest  in  them  to  protect  my  interest  when  I 

•  foMiid  that  the  firm  was  iusolveut.  There  was  nobody  to  dispute 
■  luv  iit,'lit  in  them. 

•  (,»  Were  they  partnership  property  at  the  time  you  and  Jacob 
'  (liiliium  were  in  partnership?    A.  I  was  in  iiartnershij)  with  him." 


;o' 


6o 


M^ 


«!•' 


M 


77t'. 

(Mr.  Wivrron's  Aigumeiit.) 

Look   at  tlio  answor  of  this  witness  to  tlit'se  questions, 
lllusivo,  evasive.     xVgaiii  tliequostion  is  i)ressed: 

"  Q.   /  ii»keil  i/nii  if  llieif  wcru  juirliier.iliip  pro/terlt/  when  >/nu  wen' o, 
"  pdytiifrnliip  iril/i  Jiical)  (Jxlman?     A.    Thei/  were  mil." 

"  They  wtMo  not."  I  have  road  at  least  five  artidavits 
j^mado  by  this  man  in  wliich  he  swears  that  thcij  Kwri'  fun  I 
iiersliip  property,  and  of  tliat  fact  there  is  no  sortof  ddiilil. 
These  affidavits  arc  found  in  the  Exliihitsconinu;ncin{<  finm 
page  207  and  continuing  to  page  214,  inchisivo.  I  siiali  imt 
read  them  ail  again  because  I  have  road  from  them  whi  11 
discussing  the  "  Black  Diamond  '"  for  issti  and  the  "  AU'ivil 
Adams,"  hut  will  simply  cite  the  references  made  to  tin  so 
two  vessels  in  those  allidavits.  Page  207,  Kxhibit  1,  lino 
22,  I  will  read: 

"Thnt  the  Raid  pHtatc  of  the  Haid  Jacob  Outman  oonHistH  of  (iniir 
20  "  alia)  a  Hritisb  Hliip  r('Kinterc(l  iu  tho  uaiue  of  the  Hiiiil  Jacob  (hitiniui 
"  at  the  Port  of  Victoria,  BritiHli  Colmubia,  aforcHuid,  nuch  »\\'\\i  biiut; 
"  reniwtoreil  as  the  'Alfred  Adams,'  and  thirty-two  sixty-fourtlis<i{  ainl 
"  in  a  certain  whip  heloni/iny  lo  the  S'lii/  Jirm  nf  '  Uiilniim  mid  Frank-,'  Init 
"  which  Haid  hist  mentioned  ship  is  registered  at  the  said  Pdit  .if 
"  Victoria  in  the  name  of  the  said  Jacol)  Outmau.and  ia  registcn  d 
"  under  the  name  of  the  '  Black  Diamond.'  " 

Never  owned   these  ships!     And   here  on  the  31st  ef 

Janviary,  188S,  he  swore  to  an  affidavit  in  which  he  spcci- 

cally  and  emphatically  said   that  one-half  of  the  vessel, 

30 the  "Black  Diamond,"  belonged  to  hiniaud  the  other  half 

belonged  to  Jacob  Gutman. 

At  page  207,  line  (>3,  is  this  statement: 

"That  the  said  Jacob  Gutman  was  at  the  time  of  his  decease  » 
"  partner  with  me  in  a  business  carried  on  by  us  at  the  City  of  Vic- 
"  toria  ax  merchants  and  Indian  traders,  and  that  the  estate  of  the  said 
"  Jacob  Gutman  consists  of  one-half  interest  in  the  property  of  hiuL 
"  partnership.  That  the  account  hereunto  annexed,  marked' A,'  w  it 
"  true  account  of  the  assets  and  liabilities  of  the  estate  of  the  said  Jacdli 
"  Gutman,  deceased.  That  the  account  hereunto  annexed,  marked  •  If,' 
"  is  a  true  account  of  cash  received  and  payments  made  Viy  me  from  the 
40  "  4th  day  of  October,  1H87,  up  to  ami  until  the  present  date,  ou  the  ac- 
"  count  of  the  said  partnership  tirm,  and  that  such  account  shows  tlir 
"  dealing  of  the  said  tirm  and  with  the  said  partnership  jiroperty  duviii^' 
' '  and  between  the  said  dates. 

"  (Sgd.)        Alex.  Fkank. 


"  In  the  matter  of  the  estate  of  Jacob  Gutman,  deceased.  ' 
"  lowing  is  a  list  of  assets  of  the  estate  of  the  deceased.  The  1 
"is  entitled  to  one-half  interest  iu  the  following  i)roperties: 
"  Schooner  '  lilavk  BiamonJ,'  IJrilin/i  Schooner  ' Lilj/.'  " 


The  fc.l- 

ilcceaseil 

Brih.<fi 


50  At  page  209,  line  42  of  Exhibits,  he  swears  that  tlio 
schedule  is  correct.  On  l)ago  210  of  Exhibits  is  (he 
schedule  sotting  out  by  name  both  the  "  Black  Din 
mond"  and  the  "Lily,"  and  alluding  to  the  "Lily"  ii.s 
being  formerly  called  the  "  Alfred  Adams,"  and  at  Hue  47 
is  a  reference  to  the  claim  of  the  "  Alfred  Adams  "  agaiusl 
the  (iovernmeiit  of  the  I'nited  States. 

And  in  another  attidavit,  at  page  2lo  of  Exhibits,  coin 
mencing  at  lino  50,  reading  from  lino  tlli,  Frank  sweai.s 
that  "  III  I  lie   course  of  our  saiil   Imsiness  our  Jinn   pos- 

■60 "  .sc.s.sr'/  ////■('('  .s(7/(>o/(('/'.s,"  and  at  page  211  of  Exiiiliits, 
line  8,  he  says:  "  In  the  mouth  of  Eebruary  in  the  piv-^- 
"■entyear"  (that  year  is  1887,  the  allidavit  being  swcjia 
t(j  on  the  1st  November,  1887)--"  said  (jutman  sailed  in 
'' one  of  uur  saiil  schooners  hioini  iis  the  ^  Black  l>io- 
"  'mond.'" 


n   i/oit  wer,  n, 


777 

(Mr.  Warren's  Argument.) 

At  pnge  212,  Kxhibitfl,  coinmencinc  nt  lino  51,  is  found 
a  M'luHiiile  called  "  A,"  stating  tliat  tho  following  is  a  list 
(ii  ships  of  the  firm  of  Outnian  lSc  Frank  in  wiiicli  the 
ai lovo  named  deceased  owned  one-half  interest: 

"  Schooner  'Black  Diamond' Jfl.SOO  00 

"HoLooner    'Lily' 1,500  00." 

'0  At  Exhibits,  page  2 IS,  line  3;?,  is  found  tiie  affidavit  of 
Miiiitz  (jrutman,  who  swears  thai  Out  man  and  Frank 
iiniKut  till'  "  lilacli-  DiamoniV  and  "  fjily,"  and  owned 
till' claim  of  tho  "Alfred  Adams"  against  the  Govern- 
iiiiiit  of  the  United  States.  And  when  I  say  that  ho 
f^wdie  that  (lUtman  and  Frank  owned  them,  I  use  his  ox- 
a' !  language  as  regards  the  "  Alfred  Adams,"  and  when 
I  -ay  that  he  swort;  that  they  owned  tiie  "  liily  and 
•'  lilack  Diamond,"  his  language  u|)on  which  tho  assertion 
i-  hased  is,  that  the  estate  of  (iutman,  of  tho  firm  of  C«ut- 

-0 III  111  &,  Frank,  is  entitled  to  one-half  interest;  therefore 
Frank,  tho  only  partner  of  (rutman,  was  owner  of  one- 
lialf. 


Hi 


Now,  we  come  to  the  actual  bona  Jide  sale  made  by 
judicial  authority — by  the  sanction  of  the  Probate  Court 
till  the  Province  of  British  Columbia — of  these  very 
sclmoners  to  Alexander  Frank.  And  when  was  tho  order 
piit(  red  ordering  and  confirming  that  sale?    On  the  Uth 

3i',|ay  (if  November,  IHSS,  which  was  exactly /oHr  daysafter 
Mdiiis  Moss  recoi'ded,  if  he  ever  recorded,  a  bill  of  sale. 

i'liat  bill  of  sale  to  Alexander  Frank  and  the  order  of  the 
I'diiit  are  not  printed  in  the  exhibits,  but  they  are  in  the 
Ktciird,  and  I  call  your  Honor's  attention  to  the  Record 
wlicio  they  are  found. 

'i'lie  Commissioner  on  the  part  of  the  United  States: — I 
undiistand  the  state  of  the  case  is  that  Mr.  Frank 
a  iiiiits  that  he  bought  these  vessels  and  claims  that  he 
sdM  to  Morris  Moss. 

40  Ml'.  Warren:— He  denies  that  ho  ever  owned  them,  de- 
iiii's  that  he  sold  them  to  Morris  Moss,  denies  that  he  ever 
liatl  title  to  them.  I  have  read  to  your  Honors  tho  testi- 
iiKiny  where  he  denies  that  he  ever  owned  them,  and  he 
lu'vir  changed  it.  If  the  fact  was  that  Frank  acknowl- 
e(l;.,'('(l  tliat  he  and  Gutmau  owned  these  boats  and  that 
thuy  were  transferred  to  Moss,  that  would  be  a  very  dif- 
fcii  lit  and  a  more  dilTicul  tease  of  manufactured  testimony 
tddcal  with,  but  that  is  not  the  fact.  The  fact  is  that  he 
suoie  at  Victoria  that  he  and  Jacob Gutman  never  owned 

501I1C  sliips,  and  he  was  examined  as  to  these  affidavits 
only  on  cross-examination.  That  is  tiie  fact.  He 
saiii  that  the  estate  of  Jacob  Gutman  sold  these  ships 
to  \hirris  Moss.  I  say  that  the  estate  of  Jacob  Gutman 
siild  the  interest  of  Jacob  Gutman  to  Alexander  Frank  by 
Old.  r  of  the  Probate  Court,  and  that  the  equitable  title  is 
ill  .Mt'.xander  Frank,  who  afterward  had  the  vessels  regis- 
tcivd  in  tho  name  of  Morris  Moss  because  he  was  a 
LJli/i'ii  of  the  United  States,  and  could  not  register  tiiem 
iiiiiiM'lf.     And  the  entry  in  the  registry,  which  states  tliat 

''lotin'  lull  of  sale  to  Morris  Moss  was  recorded,  recites  that 
thai  iiill  of  sale  was  recorded  on  the  loth  day  of  Novem- 
liii  iss.s— the  same  date  in  both  registries,  the  10th  of 
.XHM'iiiher,  18SS. 

1 1  your  Honors  please,  I  trust  that  I  will  make  myself 
clc  Illy  understood  about  these  transactions,  and  that  it 


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(Mr.  Warren's  Argument.) 

will  not  be  believed  that  Alexander  Frank  swore  that  lie 
owned  the  schooners  at  one  time  or  that  he  had  trans- 
ferred them  oi  sold  them  to  Morris  Moss.  He  swore  tliut 
he  never  owned  them,  ond  the  affidavits  only,  put  to  liim 
on  cross-examination,  contain  the  statements  that  lu>  dul 
own  them. 
The  Commissioner  on  the  pait  of  the  United  Statis:  I 
loremember  Frank's  testimony  quite  distinctly;  it  is  alxiui 
the  only  testimony  I  do  renu'mber.  His  testimt)iiy  in 
substance  was  this:  he  played  fast  and  loose  on  the  poinl 
that  tlu'so  vessels  were  in  such  condition  that  he  cdiild 
claim  them  or  not,  and  after  the  death  of  Mr.  (iutiii.ui, 
findinji;  that  the  (iini  was  insolvent  and  tliiit  it  was  iii'(  ■■; 
sary  to  claim  these  vessels  in  order  to  |.i'(itect  iiiiiiM  If 
against  the  liabilities  of  the  liiu),  he  claimed  them.  Niw, 
here  is  the  pith;  here  is  where  tiiis question  turns  (Ueciml, 
I'.t'.tO.  lint'  »;o): 

"I  toll  you  wt>  uevor  iiwnod  thoni  joiutiv,  It  was  after  his  ilnitli 
"  wht'u  I  cliiiiiu'd  tlii'in,  liitviuff  foniid  out  lie  was  loHt,  to  iirotcct  luv 
"  inti'i'fst. 

"Q.  When  did  you  ndonse  the  cliiiin  of  the  'Lily'  and  '  lilark 
"  Diuiuoud '?     A.  Wlieu  thoy  wero  Hold." 

That  is  to  say,  he  claims  that  after   Gutman   died   tin.' 
title  vested  in  him  and  that  he  sold  tiiein  in  order  to  wiinl 
ui»  affairs.     That  is  his  position.     So  that  by  his  own  ad 
mission,  unless  he  sold  these  vessels /<o»(//fV/e  after  (iiit 
man  died,  be  was,  as  I  remember  his  testimony,  theowmi 
^   of  the  whole  of  them  in  lf>s)>. 

Mr.  Warren: — He  swore  emphatically  that  bo  ncv.i 
owned  them. 

The  Conunissioner  on  the  part  of  the  United  States: 
I  know  that  lie  swore.     But,  assuming  that  ho  did  own 
them,  be  adn)its  that  be  claimed  them  after  Gutman  iliwi 
and  that  he  sold  them  as  surviving  partner,  I  suppose. 

My  recollection  is  that  in  his  testimony  somewheie  lio 
states  that  he  sold  out  this  jwoperty  in  order  to  liquidate 
the  affairs  of  tlie  concern.     Ho  sold  various  kinds  of  proj)- 
'^  erty  from  time  to  time. 

Mr.  Warren: — He  first  swears: 

"  Q.  You  aud  tlutmau  uover  owned  the  '  Lily '  and  the  '  Black  Diii- 
"  moud  '?    A.  Ho  l)ought  them. 

"  y.  Now,  aiiHwer  the  quoHtiou,  did  you  or  did  you  not?  A.  I  IdM 
"  you  we  never  owned  them  jointly. 

"Q.  Thut  is,  before  Outman'H*  death?  A.  It  was  ofter  Outiiiaii's 
"  death  when  I  claimed  them. 

"  Q.  When  did  you  rcIeiiHO  (not  i/mir  lille)  i/oiir  cluiin  on  the  '  X.iU  ' 
"  and  the  '  Ulack  Diamond  V    A.  When  they  "were  sold." 
50 

I  did  not  ;usk  him,  ''  When  did  you  release  i/oiir  titti'" 
because  be  bad  sworn  (hat  he  never  had  <t  iUle. 

Now,  let  us  jterceivo  clearly  the  absmdity  and  falsity  nf 
his  position.     Does  a  man  have  to  claim  to  oivn  bis  df 
ceased  jtartnei's  property  in  order  to  satisfy  the  debts  ol 
thetirm;    Since  when  was  it  established  that  as  to  pail 
nership  property  after  death  the  property  of  the  deceased 
partner  was  not  lial)le  for  partnership dei)ts?    Hesaid  that 
he  had  to  claim  tiie.se  schooners  in  order  to  protect  bis  in- 
6oterest.     This  is  a  tictiti»»us   reason — a   reason   absobittly 
void  of  meaning — this  pretence  that  one  jiartner  is  coin 
i)elled  to  claim  tiie  property  of  another  partner,  and  i'H 
rorc  d  to  make  false  affidavits  in  order  that  the  survivinjj 
partner  may  be  able  to  subject  the  deceased  partner's  i-s- 
tate  to  the  payment  of  debts  of  the  partnersliip.     Every 


and   '  Hla<  k 


77)» 

(Mr.  Warrfn's  Ar(;unient.) 

(liillar's  worth  of  Gutnian's  property  was  liahlo  and  Frank 
w  IS  compelled  to  take  m«)  steps  whatever,  and  ahove  all, 
w  IS  not  compelled  to  swear  falsely. 

The  Conunisvioner  on  the  part  of  the  United  Statbs:— I 
tlhPiinlit  you  had  pass«>d  by  iss"  and  iHHti  and  that  you 
\\i  r«!  now  disciissui};  the  position  of  matters  in  IIS«}»< 

Mr.  Warren:— I  wish  t<t  call  attention  to  the  fact  that 
lulu'  never  stated  tliat  he  sold  imt  these  vessels;  1  remember 
viiy  distinctly  the  impression  his  testimony  made  on  my 
mind.  I  reff'r  to  his  positive  statement  th<'re-  that  he 
111  \  CI  owned  the  vessels  -for  the  purpose  of  showing  com- 
|i|ctely  its  falsity. 

I"iu' Commissioner  on  the  part  of  the  United  States:  -Is 
tlii'it' tMiougb  in  this  record  to  enaltle  the  Commissioners 
III  (ivercome  that  |tositive  statement;  It  st-ems  to  mo  that, 
S'l  far  as  I  am  concerned,  this  is  the  »)«estiou.  Of  course 
hi-;  manner  of  answcrinj^  any  question  has  its  weij;ht. 
20  Mr.  Warren:— I  was  endeavoring  to  demonstrate  first, 
lli.it  be  swore  that  be  never  owned  the  ships  jointly  with 
(iiilman,  and  then  to  show  that  be  was  contradicted  abso- 
hili'iy  l)y  bis  own  atlidavits  made  years  before. 

Tlie  Commissioner  on  the  part  of  tlie   United  States: 
Tli.it  loucliCK  his  general  credildlity  but  does  not  touch 
tliis  point 

Mr.    Warien:-That    injpeaches    him  absolutely.     He 
says     "it    was  after   his  death    when  I  claimed    them." 
Claii.it'd  them  for  what;    I  do  not  mean  to   n'peat  that 
H)|>'>int  again,  that  that  did  not  mean  anything. 

The  Commissioner  on  the  part  of  the  United  States: — 
Tlic  Commissioners  understand  that. 

Ml.  Warren:-  1  do  not  wish  to  repeat  that  one  partner 
I-  not  comi»elled  to  claim  a  deceased  partner's  property  so 
llial  Id-  can  pay  th(>  debts  of  the  firn),  and  that  the  estate 
nt  trie  deceaseil  is  liable  for  the  partner.sbip  debts. 

Now,  be  says  that  be  never  owned  the  boats;  he  says 
tiial  be  claimed  them  and  that  is  shown  to  be  without 
iiiiaiiiiig,  a  mere  pretence  and  evasion.  What  next;  They 
4i,liavi'  a  registry  which  1  have  shown  is  no  evidence  at  all 
111  Morris  Moss,  according  to  the  standard  author  on  evi- 
(liiitf,  but  they  have  it. 

'I'lu'  Commissioner  on  the  part  of  the  United  States:— 
Till'  register  simply  shows  that  there  was  a  bill  of  ^ale  to 
Muris  Moss.  There  is  no  dispute  about  that;  there  is  no 
il "iilil  that  he  did  g(»  through  the  form  of  sale. 

Mr.   Warren: -There   is   no  donbl    that    this    registry 
sImiws  tliat  there  was  a  bill  of  sale  filed.     Beyond  that  I  do 
iiiil  know. 
;u     Mr.  DickinstMi:— The  register  is  no  evidence  of  title. 

The  Commissioner  on  the  part  of  the  United  States: — 
That  lias  been  settled. 

Mr.  Warren:— With  regard  to  whether  bills  of  sale 
^M'lc  tiled,  1  do  not  want  to  make  any  charges  against 
any  otlicer  of  either  government,  but  I  would  say  that 
iht  ic  emanated  from  the  same  officer  the  statement  that 
I'laiik  owne(l  these  boats  in  l8Nt),  from  that  same  office 
that  recorded  (he  bill  of  sale.  Hecoid,  page  lwt7,  line  40  (\o. 

What  next?  The  registry  shows  that  on  the  l(»th  of 
di  .NMVt'ii'.ber,  18MS,  a  bi'il  of  sale  from  the  estate  of  Jacob 
(iiilman  to  Morris  Moss  was  filed.  On  the  Hth  day  of 
N'M'mJK'r  what  occtnredf  Morilz  Ciutman,  who  was  the 
a  liiiiiiis.fiator  of  his  brother's  estate,  signed  a  jn'tition— 
lalltil  a  petition  in  our  practice— to  the  Supreme  Court  of 
I'llisb  Columl)ia,   in    Probate,  entitled  "  Petition   ni   le 


f! 

Ul 

:  'jiiiii 

P'W 

m 

^  '''HfiOl 

iifi 

1)4 


78(t 


(Mr.  Warren's  Argument.) 

Estate  Jacob  tiutninn.   Deceased."     This  connnences    it 

Fage  2i;J  of  the  E.\hihits,  an<I  what  does  that  \r  tition  asl<( 
call  particular  attention  to  this  petition. 
(Mr.    Warren    here    read    the  petition    referred  to    is 
signed  l»y  Moritz  (ititninn.) 

In  that  petition,  parugr^iph  )t  is  as  follows: 

IQ  "  Thai  I  hiive  receireil iin  offer  from  Alexmuler  Frank,  Hip  purlmi  ,f 
"  Mff  fiiiil  Jiivoh  (hilinnn,  (li'cemieiK  iii  the  »iii'l  Hrm  of  '  Oulmiin  tC  FriV'k' 
"for  the  iinrchimf  of  the  hilfresl  of  the  miiil  Jacob  (fiitmnn,  di-censeil,  in  ilm 
"  (li^i-lg  of  lhi>  itiiiii  ftm  (<'"ft>|itiuK  tliorcont  tho  Hiiid  I'laiin  of  32li,  I  i.i 
"  HKuiuHt  the  United  Htiiti'M  aiithoritioH),  tlio  ooimidoratiuu  oflV'rril  in 
"  tlin  Hiiid  Aloxaniler  Frnuk  for  Hiidi  ])uroliaH<>  Ixnii);  tlie  asHuiiiiili.ii 
"  by  tlio  Hnid  Alt'xaudor  Frauk  of  all  the  liabiliti)<H  of  tlu>  Haid  tirm 

This  is  dated  the  !Mh  day  of  November,  1H8H,  and  is  .  nc 
day  before  the  bill  of  sale  as  they  claim  was  dated,  traiis- 
ferrinj;  tiie  boats  to  Morris  Moss;  one  day  before  that  liill 
of  sale  to  Morris  Moss  was  tiled. 

Noir,  the  sclioniier.s  "  Lilif"  and  '"  Hfnck  Diaiiiomr' 
irere  actiKiHi/  solil  ami  transfer  red  to  Alexander  Fntnlc, 
who  iiev»«r  transfeired  them  to  Moriis  Moss,  coiiseciiiently 
Morris  Moss  never  held  any  title,  bnt  simply  took  a  papiT 
title  from  the  t'state  that  had  already  sold  to  AlexaiidiT 
Frank,  and  used  it  for  the  purpose  of  having  tlie  boats 
registered. 

Paragraph  7  refers  to  the  account;  that  is  the  8chediik>, 
which  contains  by  name  the  "Black  Diamond"  and  the 
"  Lily,"  and  shows  an  e.K(;ess  of  liabilities  over  the  a^^scts, 
^  to  the  amount  of  !t!H!t!>..^)7;  that  schedule  is  printed  on  pa^^cs 
'il'i  and  213  of  Exhibits,  and  if  your  Honors  will  di'diict 
the  liabihties  from  the  assets  you  will  see  that  the  balance 
is  |s!»!>.r»7;  the  figures  are  not  brought  out  on  the  Heconl. 
In  that  schedule  is  set  out  the  following: 

"Schooner  '  Black  Diamowl' »/,.7W«  00 

"Schooner  ' Lily' 1,500  00 

Total 93,000  00 

40  These  figures  aie  alisolutely  necessary  in  that  schedule 
to  produce  the  t)alance  of  !tsH!>!>.57.  I  wish  your  Honors  to 
see  that  that  is  true— that  these  figures  are  absolutely  nec- 
essary to  give  that  balance  of  ^S!t!i.r)7,  and  that  \\hrn 
Moritz  (iutmau  afterward  states  that  he  desires  to  sell  iiul 
transfer  the  proptM'ty  to  Alexander  Frank  be  states  that, 
"  .s'((7/  (tnaccDiiid s/inirstin  e.rces.soffhe lialiilitie.sorcr  tin: 
assets  of  an  anionid  of  ^S!»!t.,'"»7."  showing  cunclusivily 
that  be  petitioned  the  Court  to  sell  these  two  schooners  to 
Frank. 

?o  And  did  be  transfer  themil  1  trill  read  to  i/oitr  IIdihiis 
the  hilt  of  .safe  that  he  actnalli/  sit/ned  transferritiij  tlusc 
tiro  ressils.  That  petition  thai  1  have  read,  dated  tin'  'Mli 
of  .\<»v<Mubei'.  isss.  was  Hied  in  the  Probate  Court  on  ilic 
14th  of  Novcndter,  and  on  tl:e  14tli  day  of  Novcinbfi  ilic 
Supreme  Court  of  the  Province  of  British  Columbia  niiule 
the  order  set  out  at  Record,  page  Is.V.t,  line  ad.  I  liive 
stated  that  this  aftidavit  was  tiled  on  the  14th  day  of  No- 
vember; mv  |»i(iof  of  that  is  Uecord,  page  IKa!*,  line  1^!, 
where    I  stated   to  the  comt  that   we  desired  tobavrit 

'^'noted  that  it  was  filed  on  that  day.  The  order  allowing 
the  sale  is  as  follows; 

"  lu  tho  Hii]iroiiie  Cmirt  of  BritiHli  ('olunibia,  iu  Probate. 
"  In  tilt'  matter  of  tlio  OHtate  of  .lacott  (Intnian,  dui-tMiHod. 
"  Upon  lu-urinK  an  a|i|)lifatiou  on  l>fbalf  of  Moritz  Outman,  tin  ud- 
•'  miniHtrator  of  the  eHtate  of  .Iacol>  Outniau,  defeased,  and  upon  i'  ml- 


781 


(Mr.  Wan  en's  Argument.) 


■'  in^  the  affidavit  of  tho  Haid  Moritz  Outniun,  fllud  licruin  ou  the  14tk 
•■  ilay  »)f  November,  1888,  /  ilo  oriirr  that  the  sniil  Morilz  tlulmiin,  the  miid 
'   niliiiiiiistnilor,  lie  iit  lilierti/  Iti  fell,  contei/,  iinMyn  (tint  otheririne  umiure  to 

•  AlexiiHiliT  Friiiik  iif  the  Citji  i>f  Vicliiriii  in  the  I'roriiae  of  Urilinh 
•■  ('iiliimhid,  nil  the  rmil  miil pi-rxmntl  cnlntK  iind  effrv'K  iif  the  iihore  iiaiiieil 

•  .Iftcob  Outman,  deccaHcil,  of  the  Province  o'l  UritiHli  Columliia,  ex- 
"  ('cptin);  thereout  the  intereHt  of  the  Haid  Jacob  (lutmau  in  u  certain 
"  I'laiiu  made  Iit  the  Arm  of  Outman  &  Frank,  of  the  Hai<l  Cit,v  of 
'   X'ictoria,  mercliantM  and  Indian  traders,  uKaiust  tho  Oovernnien't  of 

10  ■  t  lit'  United  States  of  America,  for  the  Bum  of  920,433  for  the  seizure  of 
"  II  certain  xehooner  and  seal  skins  seized  bv  the  said  Oovemment.  That 
"  ill  consideration  of  the  conveyance  assignnient  or  other  assuranee  to 
"  )>e  made  under  this  order,  the  said  Alexander  Frank  do  assume  and 
"  |iiiy  all  the  debts  audliubilitieH  of  the  said  Arm  of  Outman  k  Frank 
"  '.vliich  debts  and  liabilities  are  |iarticularly  set  out  iu  the  exhibit 
"  marked  '  A  '  annexed  to  the  said  affidavit  of  the  said  Moritz  Outman, 
"  and  therein  appear  to  amount  to  the  sum  of  818,222.8(),  and  tliat  the 
"  said  Alexander  Frank  do  enter  into  security  to  Iho  amount  of 
"  SIH.222.80  to  indemnify  the  estate  and  ef  fects  of  the  said  Jacob 
"  Outman,  deceased,  from  the  pa^fuient  of  any  of  the  debts  and  liabil- 
"  ities  of  the  mid  iirm,  such  security  to  tie  to  the  satisfaction  of  and 
20  •■  iii)proved  by  the  KeKistrar  of  this  Court. 

'•bated  th'is  fourteenth  day  of  November,  1888. 

"(SRd.)  '     Heniiv  p.  Pellew  ('iieahe,  J., 

"  One  of  the  Majestv's  Judges  for  the  Supreme  Court 

"  of  British  Columbia." 

All  the  effects  of  Jacob  Gutman,  iiicliKling  the  "  Black 
Diaiiiond"  and  "Lily,"  estimated  at  the  sum  of  if  1,. WO 
paili,  to  be  conveyed  to  Alexander  Frank!  Alexander 
Fiaiik  offering  to  buy  all  the  assets  of  the  estate  and  the 
Cniirt  ordering  a  sale  to  him  and  he  swearing  that  Morris 
30 Moss  bought  the  schooners,  which  constituted  a  part  of 
tilt'  estate! 

It  would  be  too  great  a  strain  of  charity  to  believe  this 
witness,  whose  story  is  supported  by  no  disinterested  |>er- 

SIHl 

What  schedule  is  that  mentioned  in  that  ordnr,  if  your 
MtiiiDrs  please*  It  is  the  schedule  printed  (m  pages  'iia 
tmii  2i;{  of  the  Exhibits,  containing  by  name  the  schooners 
•niack  Diamond  "and  '  I.ily." 

Total  liabilities,  $l,S,222.St),  says  th"  order  of  the  Court! 
4oTinii  to  the  statement  of  the  liabilities  on  page  213  of  the 
Kxhibits.  and  your  Honors  will  find  tiiat  the  liabilities  are 
stiitf.l  to  be8rH,i»J2.S((. 

What  next f  A  bill  of  sale  convey iixj  flie  schtumirs  to 
A/i'.iaiidcr  Frank,  Itcdiiini  ilntc  Xon'iiilx'r  H,  ISSH.  is  oc- 
hiiilli/  t'.recnted  before  the  date  that  these  registers  show 
tliat  Morris  Moss  had  any  title  whatever,  and  if,  as  I  con- 
ctivc  we  can,  we  establish  that  Frank  owned  these 
scliooners  by  virtue  of  a  conveyance  from  the  executor  of 
tilt'  I'state  oif  Jacob  (intman  before  Morris  Moss  took  his 
jopapcf  title  even  from  the  estate  of  Jacoi)  (Jutman  and  that 
ill' never  received  any  title  from  Alexander  Frank,  who, 
altir  the  Hth  day  of  November,  L^ss,  owiual  these  two 
silidoiiers,  then  what  will  be  the  conclusion  of  your 
lidiiors?  That  hill  of  sale  conveying  to  Alexander  Krank 
is  luiMid  at  page  :<!»!»  of  the  Exhibits.  It  is  a  bill  of  sale 
si^'ii.tl  liy  Moritz  (intman.  N*iw,  that  antedates  Morris 
Moss'  registered  title,  and  I  propose  to  show  that  by  the 
liiiMs  of  that  bill  of  sale,  thesf  two  vessels  were  transferred 
to  .Alexander  Frank. 


tH.1 


Ami,  wlu'niiH,  it  Iiuh  liieii  ii^riid  IhIwicd  tlii'  piirtirH  to  tbiHe  preHcnts 
t'"tt  the  sittil  Morilz  fiitliuittt  sliiilt  tissiijH,  tfniitl  find  I'iinrey  tin'o  nut!  tn  llie  use  of 
^'.i  s.iiil  Altniiiiler  Frank  nil  iiml  siminldv  Ihr  i>r<ii»'rlii  of  ihe  miiil  imrhifisliii)  stl 
fill  in  tlir  livxl  .svhetlnlr  lifrelo  (or  llir  ('iiiiNiili-nitiiiiiH  hrri'lii  iiKiilidiittl;  and, 
''  Whi^i'cHN,  it  Ih  fHtiiiiiiti'il  lliiit  till'  liiiliilitii'H  iif  tlii>  wml  purluerHliip  ixcti'd 
II.'  iihKils  tlierciif  by  the  siiiii  of  ei<//i(  liiuxlrnl (inil  nini li/-ninf  Jollurii iinil  t'tftfl- 
>••!■?,  c(ii(.'((*.V.'*.V.5/),"  Ac, 


%k 


,!:i 


If 


-A2 

(Mr.  Warren's  Argument.) 

That  halance  of  |WM».57,  as  1  tUMiionstated  to  yn n- 
Honors  a  moment  ago.  is  only  possible  when  the  valm  f 
the  "  Black  Diamond  "  and  the  "  Lily"  is  included  in  tio 
assets.  That  halance  can  he  obtained  in  no  otijcr  w  .v 
than  by  putting  in  as  ))art  of  the  assets  of  that  estate  ili.- 
value  of  these  very  schooners  now  in  (piestion. 

I  refer,  in  order  t«)  have  these  matters  together,  to  the 
lo  Exhibits  at  the  to}>  of  page  21:1  where  that  halance  ti  t 
ap|>ears.  and  ask  your  Honoi"s  to  see  that  the  value  of  liio 
two  schooners  appears  among  the  assets. 

The  bill  of  sale  then  recites: 

"And,  whorcaH,  i'  from  tlip  aHsetR  hh  aforcRaid  tliere  ho  (Ipdiut.  d 
"  the  Httid  roal  t'Htntt-,  aud  from  the  Huid  liabilitieH  the  Haid  ninrtriu'i' 
"  or  luortKaKOH  the  liai)ilitiim  of  tlio  naid  pnrtucrHlii])  exceed  tlui  iivs.ta 
"  thereof  liy  the  huui  of  throe  thousand  six  hundred  and  niuetv-uiuv 
"  dollars  aud  fifty-8e%-en  ecutH." 

Excluding  what?  Not  these  ships,  but  excluding  rn- 
tain  real  estate;  and  certain  mortgages,  and  necessarily 
including  these  ships.     I  coutiiuie  reading: 

"Now,  tliis  Imli'Utnre  Witiic»seth,  tlmt  in  consiilonitiDn  of  tlic  preiiiisn  .nl 
"  iu  coiisiilci'Rtion  <f  tlic  cum  imiitH  licrtiliKfIrr  coiitniucilby  tlicwiid  Ali  Xiui  it  r 
"  Friiiik,  liiN  rxci'iilxi'M.  nduiinUti'iilorB  or  nssi^OK  to  be  iicrfdriiKil.  'I'h-  ^  i ;./ 
"  Mmilz  liiiliniin  iIkHi  heiilii/  (/run/,  iivvii/ii  <iii(/  nmreii  iiiifodiid  In  Ihe  nne  iif  tif  -  m./ 
"  .Utxiiuihy  Flunk,  liis  hriis,  rxmilorn,  nilmiiiiHliiilnis  iiiiil  nsHiiiiis  nil  Ihe  ►,,,.. 
"  tiiihl,  lillf  mill  inlfi;.\l  ii/liini  Ihe  sniil  Morili  Oiilmnii,  im  the  iKliniiihlrnl'ir  fi  Hit 
"  tstnte  null  efl'er  .1  ui' Ihe  sniil  •Inrnh  iIuIiikiii  in  ami  In  alldml  simjtildr  Ihe  ;Ti.;.nri/ 
"  ill  the  riyst  Hi'hi'll'ite  hti'etii  I'lnitiiiiiiil  nt  irhal  unluye  siiirer.*' 


30  That  schedule  attached  refers  to  these  schooners.  Tin  sc 
tigures  slated  there  cdustitutn  the  balance  Iwtween  tlie 
assets  and  liabilities,  and  can  imly  be  obtained  when  tla- 
ships  are  placed  in  the  schedule  of  asset.s  aud  thesclu'dulo 
attached  to  the  conveyance  itself  shows,  aside  from  this 
balance  estal)lishing  the  fact,  that  the  'Black  Dianioiul" 
and  "  Lily  "  were  included  in  the  sale 

Commissioner  on  the  part  of  Her  Majesty: — There  r-  a 
dift'erence  in  the  amounts  of  the  schedule  of  liabilitirs 
Tlicy  are  larger  by  sl.'nu  in  the  schedule  attached  to  that 

40  conveyance  than  in  the  other  one  you  l)efore  alluded  to. 
Mr.  Warren:  -I  can  e.xjdain  that,  your  Honor.     But  he- 
fore  taking  up  the  (piestion  of  the  tigures 

Conunissionci'  on  the  part  of  Her  Maje.sty: — Yon  mcd 
not  take  it  up  now;  perhaps  it  is  not  worth  while. 

Mr.  Warren:— It  nmy  be  saiil  tliat  the  schedule  attached 
to  the  bill  of  sale  does  not  mention  the  "  Lily  "  ami  liie 
"Black  Diamond."  1  say,  if  vour  Honors  please,  tiiat 
the  schedule  attached  to  that  bill  of  sale  does  mentiitn  ilu' 
■■Lily"   and    the    "  Bhick   Diamond,"  aud    I   ask    ymir 

50 Honors  to  read  the  schedule  at  the  top  of  page  4oi  of 
Exhibits.  Your  Honors  will  see  that  although  the  iiaiins 
do  !iot  appear,  the  tigures  there  used  to  state  the  balaiH  e 
set  out  in  the  bill  of  sale  in  |)aragraph  2,  namely,  ^sw  ,i7. 
could  not  have  been  obtained  unle.sa  the  value  of  tlif 
schooners  was  included  in  the  schedule  of  assets. 

Let  me  further  show  your  Honors  conclusively  that 
they  are  contiiined  in  that  schedule  and  were  transferr>  il. 
Kiist,  let  me  call  your  Honors' attention  to  the  reaM'ii 
why  the  names  are  not  used.     Because  an  American  citi 

6ozen  could  not  register  these  vessels  in  his  own  name,  ami 
when  a  bill  of  i-ale  was  made  transferring  these  buais, 
they  did  not  specify  them  by  name,  hut  concealed  tlie 
kind  of  property  that  was  being  transferred,  under  this 
language:  '*  All  other  pmpvrtij  (ttul  clinses  in  action  of  ihe 
said  firm,  estimated  at  $,i,iHt(/"  (Exhibits,  401). 


rs8 


(Mr.  Warren's  ArgumMit.) 

rum  to  tho  oriKiiial  schpfliik'  and  we  see  that  there  is 
II'  t  nil  item  appearing  in  the  tli'st  sohiMhile  flied  as  an  in- 
V(  iitory  of  the  estate  of  Jacoli  Gutman,  left  out  of  this 
Hi  lit>(hile  attached  to  the  <-onvevanfe  ti»  F'rank.  except 
tlir  '•  HIack  Diamond  "  and  the  "  Lily,"  ♦!,. 500 each:  total, 
ii'.doo.  Shall  we  discuss  the  <|neHtioii  of  whether  or  not 
tliit  schedule  includes  the  "Lily"  and  the  "Black 
lol'i.iiiiond  "?  I  claim  that  there  is  conclusive  evidence  of 
till'  attempt  of  these  neii  to  cover  up  tlieir  dealings.  We 
h  ivt<  read  this  schediile  time  and  tinu>  a^ain,  and  the  same 
luhiiiceisuscd.  In  that  first  schedule,  which  is  the  source 
c.|  liie  schedule  attached  to  this  conveyance  to  Alexander 
j'l.ink.  are  found  two  item-*,  the  "  f-ifi/,'  St/iHO,  the 
"  lllitck  DiaiiKtiid,"  !*i.r»oo."  In  this  last  form  of  the  sched- 
ule they  are  included  in  thes«'  words:  "All  other  firoiK'ilj/ 
mill  choses  in  nctiou  of  tliv  utiiil  /inn,  eslnnated  at 
s.:niHlJlO.'" 

:o  Transferred  to  Alexander  Frank,  Novemher  sth,  IHSS? 
W  hat  then  did  Alexander  Frank  do<  He  procured  Morris 
.\|ii>s  to  a(  t  as  trustee,  and  had  Moritz  Uutmui  transfer 
ill.'  title  on  paper  t(»  Morris  Moss,  a  British  subject. 
Moiitz  Uutmaii  had  no  title  to  transfer  on  the  loth  day  of 
.NOveruher.  ISSS,  because  jirior  to  that  he  had  transferred 
It  to  Alexander  Frank.  Moritz  Ctutman  had  no  authority 
t(i  transfer  to  Morris  Moss  because  the  sale  wouhl  be  void 
wjiliout  the  consent  of  the  Probate  Court,  and  the  Probate 
Court  Imd  authorized  the  transfer  to  Alexander  Frank,  an 

;o .American  citizen. 

I  want  to  show  this  l)eyond  any  doubt.  The  only 
ai^iumeut  that  can  be  made  is  that  Alexander  Frank  took 
tlirse  boats  by  this  bill  of  sale  before  he  sold  tho  boats  to 
Mollis  Moss.  If  your  Houois please,  why  all  of  this  man- 
Miivering  for  such  a  transaction  as  that<  If  Alexander 
I  r;iiik  wanted  the  estate  of  Jacob  (lutninn,  of  which  he 
\v;i<  in  absolute  control,  to  convey  these  ships  to  .Morris 
Mii><5,  a  British  subject,  wln>  could  hold  the  ships,  why  go 
into  the  Probate  Court  and  obtain  an  order  confirming  a 

40tr;iiisfer  to  Alexander  Frank,  an  American  citizen,  who 
(•  iiild  not  hold  thenW  Why,  it  Alexander  Frank  did  not 
piiicliase  these  ships,  and  if  Alexandir  Frank  did  not  want 
tiiise  ships,  were  they  ever  transferred  to  him!  Would 
iiliavebeena  dilticult  matter  I <>  insert  in  these  petitions 
imi  in  the.'ie  orders  the  name,  Morris  Moss,  instead  of  the 
uiiiie.  Alexander  Frank,  as  the  |)urcliaser  of  these 
-I  liouiiers?  The.se  transactions,  unless  we  believe  that 
iiaiik  bought  these  boats,  are  absolutely  without  re.ason. 
It   Morris  Moss  bought   these   bt»ats,  why  did  not  Moritz 

'  (iiitnian  say  he  had  an  offer  from  Morris  Mo.ss  t\)r  their 
imivliase?  And  if  Morris  Mo.ss  had  filed  a  bill  of  sale 
oil  tlie  loth  of  November,  ISHS,  which  was  .1  bona 
fill:  hill  of  sale,  why,  on  the  14th  day  of  November,  1S8S, 
iliil  the  Probate  Court  autliorize  and  ci>nHrm  a  transfer  of 
tln'se  sbi|)s  to  Alexander  Franks  I  repeat  that  the  trans- 
;ii  lion  is  absolutely  void  of  meaning  if  considered  in  that 
li^:lit. 

And  of  what  force  are  these  entries  in   these  registers, 

111  uing  date  November  10,  isss.  when  we  have  absolute 

'«|>iouf  tli.at  Alexander  Frank  took  the,se  schooueis  by  virtue 

of  ,1   bill  of  sale  dated   yoreiiilier  SIh,    ISSS,   and  never 

[Miti'd  with  his  title. 

iliere  is  no  law  of  Great  Britain  ireventing  Alexander 
I'l  Ilk  from  owning  these  vessels.  The  only  law  is  that 
li'     hall  not  register  them.     They  were  his  property  and 


» 


7.S4 


•  ■■•.■■  I'*- 


I    '* 


(Mr.  Wuri'en's  Arguiix-nt.) 

h«  wua  oiilitled  tu  liold  tlieiii  iiiiiU>i-  tliu  laws  of  (ir.  it 
Hi'itiiiii,  and  was  tMititlcd  to  poHHosHJoii  of  tliu  vusshIh. 

What  beside,  if  your  Honors  phsaHo.  ht-arK  on  this  t|ii.  >. 
tiont  Alexander  Frank  r«  inainud  in  the  City  of  Virtitij.) 
until  the  fall  of  IHHi»,  and  i  assert  that  he  carried  on  ilu* 
business  previously  contlncled  by  (iutniauiS:  Frank  on  tlio 
west  coast  of  Vancouver  Island  with  these  vessels,  and 
lothat  fact  is  proven  beyond  the  shadow  of  a  doidtt  by  the 
testimony  in  this  liecord.  I  refer  your  Honors  to  the  \\  - 
tiniony  of  Morit/  (intnian,  at  page  \W!>,  line  \i'A: 

"  Q.  About  Ootolwr,  1888,  you  were  a|>|>oinU<d  i»h  executor  ?  A  I 
"  waH. 

"  Q.  At  the  time  of  hiH  ileath,  your  lirotlier  waH  in  imrtuerHhip  unii 
"  Alexauiler  Frank  ?    A.   Yen. 

"  y  Ami  I  liftifre  lh<U  Atexitniltr  Fnink  cimliiiueil  the  husinrxf  nf  il,.- 
'■firm?     A.    Ihili.l." 

"  y.  What  ttecanic  of  your  brotlier'H  liookH  or  the  booko  of  the  Hrin  V 
"A.  /  le/i  Victuriii  tome  limf  in  ISHS.  tinil  AleMimler  Fniiik  cimliH'ii-i.i 
20  ■'  the  huHinetn  ami  of  coume  kei>l  th«  liuok-K. " 

Continued  what  business?  CondnctitiK  the  trading  st.i 
tions  on  the  west  coast  of  Vancouver  Island.  WithiPiit 
any  ships  I  askf 

What  nioief  Alexander  Frank  made  use  of  one  of  I  lie 
vessels  and  went  to  the  trading  stations  himself  in  js^it. 
I  refer  to  the  testimony  of  Captain  Owen  Thomas,  page 
1780  of  the  Hecord,  line  L'4: 

"  Q.   Had  (JulimiH  «C  Frank  a  trailing  tialion  im  the  nonsi  in  IS8!).'    A 
3°  ' '  Mr.  Frank  liail  one. 

"Q.  Where?    A.  At  Clayoquot. 

"  Q.  Where  else  ilitl  lie  have  one  ?  A.  Ho  had  one  on  Queen  C'liur- 
"  lotte  iHland  for  a  lilaek  cod  tiHliinK  Htatitiu. 

"  i).  Did  he  have  any  other  trading  Htation  on  the  west  coast  tlian 
"  the  one  at  (.!layoquot  ?    A.  Not  that  I  know  of. 

"  y.  Did  vou  Btop  at  (Uayoquot  on  the  way  down?  A.  Ych,  Hir, 
"  and  landed  the  IndiauH  t''ere. 

"  Q.  Did  you  take  the  proviHionn  into  tlie  trading  Rtores?  A.  Vrs. 
"  I  n^ve  them  Home  htuff  there.  He  asked  if  I  could  let  him  huvr 
"  Home,  and  I  told  him  I  would  lot  hiin  have  Home. 

"  Q.  The  man  in  charge  of  Mr.  FraDLx  trailiu^  Htoro  anked  you  fur 
40  ••  Honie  provinious?     A.   Yoh,  nir." 

This  captain  who  is  convicted  of  giving  false  testimony 
in  another  case  puts  language  on  the  Hecord  here  whicii  is 
not  as  conclusive  as  a  reliabh  witness  could  have  made  it, 
but  is  conclusive  eiiougl'  toi  our  pui poses: 

"Q.  Did  lie  pay  yon  for  thi'i a?  A.  No,  ho  Kavo  moarecoipt  for  tlii> 
'•  amount." 

A  receipt  to  do  whatf    To  give  to  Alexander  Frank  oi 
50  the  person  repre.scnting  Alexander  Frank,  when  the  boat 
got  l)a(k  to  Victttria. 

"Q.  Vou  gave  him  a  connideralilo  amouiit,  did  you  not?  A.  I  fur- 
"  get  now  liow  much  it  waH. 

"  {.).  'I'he  paperH  that  you  liad  on  board  the  vomhoI  at  the  time  tiiat 
"  you  wore  seized,  hIiow  that  Mr.  Frank  wan  one  of  the  ownern  of  tlic 
"  *  liliu'k  Diamond'?    A.  That  \»  more  thou  I  can  tell  you. 

"  (^.   You  do  not  know  about  tliat?     A.   No,  nir;  1  do  not. 

"(J.  Did  you  know  what  kind  of  papers  you  had  on  board  of  the 
"  ■  black  Diamimd  "/     A.   No,  Hir;  I  do  not.     1  did  not  look  at  tkeiii." 

60     What  next;     Page  17H1  of  the  Hecord,  line  3.5: 

"Q.  What  did  von  do  with  the  remainder  of  them?  A.  I  left  tlii'iu 
"  on  board,  and  tlien  I  made  atri])  to  Queen  Charlotte  Islands  two  ur 
"  three  weeks  afterwards. 

"Q.  You  went  up  to  Mr.  Frank's  Hnhiug  ntation  on  Queen  C'harlolii' 
"  IslandH?    A.  Yes,  sir." 


786 


icwtor  ?    A    I 

'tDerHhip  wiiii 

SutineM  iif  ill.' 

18  o(  tlip  tiriii  y 
■(ink  cimtinunl 


oil*?  of  tlu' 
i\f  ill  Inyt. 
ninas,  page 

III  1S80:'    A 

Quoon  C'liar- 

i8t  coast  tlian 

A.   YcH,  HJr. 

res?    A.  Yf9. 
lot  him   liiivi> 

»Hke(l  voii  for 


(Mr.  VVarivii's  AiguiiiHnt.) 

MfXiiiKh'i' Frank  contimiiiiK  this  hii.sinossaf  ti'rNovoiiibor 
^  l^*^H,  until  tlif  fall  of  IHHU,  an<l  tlicrte  ships  th<Miis*>lvu8 
I  iiininn  to  his  tradinu  station  aft^r  they  had  come  from 
|;  ling  S»«a.  and  yot  Alexander  Frank  did  not  own  them! 
I- :  ink,  with  his  title  to  the  schooners  from  the  estate  of 
,1  (ill  (tiitman,  owning  them  hecansethey  were  necessary 
t>  till'  trading  stations,  and  Morris  Muss  only  having  a 
10  li  I  it  ions  title  given  hy  the  estate  after  the  execution  of  a 
(..iiveyaiice  to  Alexander  Frank  and  never  having  any 
(.imcction  with  the  lioats,  engaged  in  liusiness  for  Alex- 
ai;  It-r  Fiaiik  constantly,  and  Fiank  not  owning  these  ves- 

Ciiiitinning  reading  from  Record,  page  ITHl,  line  4(i: 

'  i).  And  you  utilized  tlio  iirnviHioiiH  that  romaiued  on  lioard  the 
"  llluok  Diamond'  (or  the  imrpoKe  of  that  trip  to  the  Queen  ('har- 
"  loite  InlandN?  A,  Yen,  xir;  there  were  a  lot  of  odds  and  cndn  got 
•■  fri'sh,  of  eonrse. 

■■*.).  I  uuderHtand  that.     What  load  did  you  tiring  linck  from  the 

(^iii'en  CharlottO'lHlandH?    A.   Blaek  cod. 

Hldck  cod!    Turn  to  the  testimony  on  page  1780,  line  28 
wlitie  the  witness  is  asked: 

•■  Q.  Where  elHe  did  he  have  one  (trading  Htation)?  A.  He  had  one 
"  on  Queen  ('harlotte  Island  for  a  lilwk-  coii  flohing  Htation." 


Reading,  again  from  Record,  page  1781,  line  40: 

30  "  Q.  For  Mr.  Frank?  A.  For  Mr.  Frank,  and  some  for  Mr.  Baker, 
■  i  think. 

"  Q.  What  load  did  you  take  up  to  Queen  Charlotte's  Islands?  A. 
'■  Wc  took  some  lumber. 

"  Q.  To  be  used  for  what  nurpose?  A.  Lundberg  was  going  to  build 
'■  n  Imuse  for  himself.     He  ua<l  stayed  close  to  Mr.  Frank's." 

I  said  that  Frank  himself  was  on  hoard  this  vessel  in 
tlii>  year,  and  I  will  show  that  he  was.  On  p.ige  1781, 
liin'  "o,  this  witness,  Owen  Thomas,  was  asked: 


20 


40 


■■*).  Was  Mr.  Frank  in  Victoria  at  that  time?    A.  Yes,  sir. 
•Q.  I)it'  you  know  him?    A.  Oh,  I  knew  the  man;  yes,  sir. 
"Q.  Did  you  see  him  in  the  year  1889?    A.  Yes,  I  saw  him. 
"Q.   Dili  i/oii   nee  him   on   hmird  the    '  Uitick  Dimiionil'?     A.    Fen;  he 
'  niiiir  iliiwii  on  her — oh  liiiiiril  of  hfr. 
"  Q.  Was  it  liefore  vou  went  to  the  Bt>hring  Sea  that  he  was  on  board 

■  till'  '  Hlaek  Dianiont\ '?    A.   When  wo  came  to  the  West  Coast. 

•  •  Q.    lt7i«H  i/oii  ireni  to  llw  Dehriiig  Sen  you  took  Mr.  Fniiik  to  /lis  trmling 
'  si'itiiiii  nil  the  Wi'Kt  Const  f     A.    Yes,  sir;  thnt  irns  in  Fehntiiri/. 
••i).  It  would  Iw  more  eorreet  to  say  that  when   you   went    out  on 

■  ynnr  spring  trip  you  took  Mr.  Frank  up?    A.  Yes,  sir. 

•■»/  You  left  Mr.  Frank  ot  Clayoquot  in   February  or  Mareh?    A. 
•  Sciinewhere  about  there." 


Im 


i  i 


...iv 


,.  I  left  them 
lands  two  ur 

?en  Chorlotti' 


Now,  that  is  the  spring,  and  if  the  learned  senior  coiin- 
sc!  will  lememher.  it  is  not  the  spring  that  Morris  Moss 
pii  his  title,  hut  the   next   spring,  the  spring  of  t,he  year 

•■  l^.  When  )ie.tt  did  i/oh  see  Mr,  Frank  on  bonril  the  'If luck  Dinnwnd'f 
•■  A    //.'  iriis  (iroiind  the  store  most  of  the  time.     I  irns  sniiiiir/  out  of  Cluyof/uot 

"  llrl'  >pl  ini). 

'•().  You  mean  bv  that  that  you  would  seal  in  good  weather,  and 
f  "tlwii  in  bad  weather  you  would  run  into  Clayoijuot,  where  your 
^'    In. liiius  lived?     A.  Yes,  sir. 

•■  i).  .\iiil  irheii  i/oH  Clime  into  Gliiyoqiiol,  yon  would  see  Mr.  Frank  there? 
'■  A     //'■  iriis  there  most  of  the  time,  and  he  iras  iiieiiy  unite  a  while,  Ino." 

W  .IS  he  there  taking  care  of  Morris  Moss"  hoatsf  We 
tak  ■  it  not.     Ho  was  there  operating  his  trading  stations 


i| 


Tn 


786 


(Mr.  WniTi'h'rt  Ai(;iiiiiont.) 

niu)  Hiipt'iiiitoiidinij;  thu  moveiiieiitti  uf  his  vvsselu.     \V!j  i 
next? 

"  Q.  Hnt  yon  did  ncfl  liini  at  timeit  wlien  you  wi-nt  into  ('layoi|ii.  - 
"  A.   Yon,  Mir. 

"  Q.  Did  you  l(>avu  your  HkiiiH  nt  ('liiy<H|ii<it?  A.  I  wbh  told  to|n, .,. 
'•  them  tlifft)  l>«)for«  I  wont  to  tin-  Hi-ii. 

"  (j.  And  you  loft  nil  of  tliti  HkiiiH  yon  ^ot  on  your  KprinK  trip  tin  i  ' 
._  "  A.  All  of  tlicni;  ycH,  nir. 

"if.  You  luft  tlu'iii  at  Clnyo(|u<>t  Hound,  nt  Frank'H  tradiuK  Htiili>>.  ' 
"  A.    Yi'H,  Hir;  that  wuh  my  ord«rH  from  Mr.  Mohm  to  Icnve  tlifm  tiuT' 

Tlii.s  honest  witness  then  aJteiiiptecl  to  hay  that  tin  , 
were  his  orch'rs  Ironi  Mos-i.  This  captain,  who  is  cnn. 
victetl  ot  swearinj;  lalsely.  once  in  a  while  (o  help  out  tin* 
man  Fraiii{,  maizes  sonic  reference  to  Morris  Moss.  \\\\\ 
take  his  ian^nage  exactly  as  it  is,  where  did  he  leave  |||,> 
.seal  skinsf  At  Alexander  Frank's  trading  station,  aiiWI 
a.ssert  from  the  memory  of  the  occasion  of  the  takinj;  nt 
20 this  testimony,  hecanse  I  renieniher  it  so  clearly,  that  im 
m»'diately  after  that  this  witness  was  convicted  of  an  iji 
patent  attempt  to  sliield  Frank,  he  tried  to  help  out 
Alexander  Fr.iiik,  and  he  was  in  the  midst  of  dii)icnlii<  > 
at  once      Record.  paK*'  ITM',  line  .'iJt: 

"Q.  Did  you  tukc  your  HkinHnll  in,  or  wouhl  yon  land  tlirni  iim  vmi 
"  Kot  tluMu?     A.   I  would  land  what  I  hud  wlu-n  I  wont  in,  ovory  tiimv 

"  Q.  Did  Villi  Hiilt  tht'iii  on  hoard,  or  woro  tliov  Haltod  iiHhort'y  \ 
"  I  Niiltod  ovt'i'viino  luyHolf,  on  hoard  tlio  vchhoI,  and  then  1  Hiilti-d 
'•  tlioni  on  shoro  iiiy»olf. 

"  Q.  They  had  hcoii  Hultod  at  Clayoijuot  Hound,  at  Mr.  Frank's  trml. 

iuK  HtatiouV     A.   Yen.  Hir. 

"  Q.   Do  you   know    who   took  theui  down  to  Victoria?     A.  TImt  is 

moro  than  1  can  tell  you;  thoy  woro  tboro  when  I  left." 


30. 


40 


Wlio  took  them  down  t(»  Victoria?  This  man  went  lo 
Bering  Sea  with  the  schonner,  and  Alexander  Fraidv,  ulio 
was  at  the  trading  station,  took  the  skins  hack  to  Vii'torJ;i 
and  sold  them.  '1  hen  he  says  that  wliich  is  important  ;is 
hearing  on  tlie  ahsnrdity  of  Frank's  retaining  the  tradin- 
station  and  not  ki'i'ping  the  schcjoners,  page  17hH: 

'•  t^.  Von  Sill/  thill  i/iiii  liiiik  Mr.  Frank  to  Cliiifo</uot  in  Fehrwirii.'  \. 
"    )'(".«.  sir;   III'  ireiil  i/inni    with  Uf. 

"  y.  Wrri:  tlfve  mii/  sleiimrrs  in  Ihime  <iai/»  riiniiinij  /rum  i'icliirin  In 
"  Ctdi/dijiiiiK'     A.    Ad,  sir. 

"  Q.  Anvhiu/i/  irliii  li'iil  til  1/0  In  CliiiioifuiU  from  Victoria  hnii  to  i/n  In/ 
"sriii'inii'i/     A.     I'l'S,  sir. 

"Q.  Ihi  i/ou  kiiiiir  irliiil  biisiiitss  .Mr.  Frniik  hml  nl  Cliii/oi/iiot  in  IHH'.f/ 
'"A.  /  snji/iosr  hi'  irrnl  In  tnnk  n/li'r  his  stnrr,  unit  In  snt  11  mini  hr  hml  .//./■ 
*'  .7"'i/  "  shiitl  III'  snnmlhimj  fur  n  rnnl  niine.'^ 

Think  of  Aie.xander  Frank  owning  trading  stations  <iii 

50 the  west  coast  of  Vancouver    I.sland   and    not   havinj;  a 

schooner  to  reach   them;    No  «)tlier  man  ever  owned  ,1 

trading  stiition  on  the  wist  coast  of  Vancouver  IhIhihI 

unless  lie  had  a  schooner  or  schooners. 

.James  1).  Wan  en  was  one  that  owned  schooners  ami 
trading  stations.  William  Munsieand  Charles  Hpriii^ ami 
Alexaiidei'  McLean  are  the  others;  they  owned  tradiiij^ 
stations  and  they  owned  schooners.  The  witness  tried  to 
explain  in  nMlirect-examination  that  he  had  left  skiiis.it 
stations  l)efore  that,  in  order  to  remove  the  presuinptinii 
60 that  he  had  left  them  there  hecanse  they  were  the  |»ni|) 
ei'ty  of  Frank,  and  w  hat  difliculty  did  he  get  into; 

it  was  discovered  that  every  time  he  ever  left  any  seal 
skins  there  that  they  helonged  to  tlie  man  that  owned  tlic 
trading  station,  and  that  is  a  fact  supported  by  the  testi- 
mony found,  connnencing  at  page  17m4  of  theliecord,  luic 


r*^; 


'•If,  I 


JO 


(Mr.  Warren's  ArKumcnt.) 

I'p,  where  we  show  tliut  the  HkiiiH  left  there  wen*  the  pi-op- 
Illy  of  Wnrren  and  that  Wurreii  owned  the  tradinK 
vi  ition,  and  that  thJH  captain  waH  Healing  on  Wnrren^ 
\  ssel. 

I  have  referred  to  «)ther  teHtiniony  tliut  eHt-il>nHheH  the 
t  H't  that'Alexander  Frank  continiUMl  the  trading  ntatinns 
Miiil  the  partnership  linsineHs  after  Xovenil»er.  |smh.  That 
i,,tr-tiinony  wnH  given  Ity  Morit/  (intnian,  where  he  said 
I  lull  Alexander  Frank  continued  tli«>  imsineKH  and  kept 
till'  hookH.     ICecord,  page  i:{«l'i,  line  2)': 

■Q.  At  the  tiiiii*  of  Iiih  il<>nth  your  lirothi'r  wah  in  |inrtnor8liip  witli 

Ali'xnuilor  Frank?    A.  Yoh. 
i).  And  I  tii>liov<>  that  Aldxnndor  Frank  coutinuint  th«  IniHintiM  uf 

lilt'  nrmV    A.  He  tliil. 

•Q.  \V lull  litriimi' 1/ i/oiir  linithfr'*  honks  nr  lli»  iMHtkn  It/ Ihf  Jirmf  A.  / 
••  /.y?  Vuiiiriii  Home  liiiii'  in  lUtiS  ami  Uexiiiiilfr  Fnink  conliimtil  the 
•■  hiisiitess  tinil  i>/ ciiiivst  kf/il  llif  Inioks." 

Alexander  Frank  continued  the  hnsuiess  nf  the  flrni 
iiirr  isss!  VViiy  couuHel  claim  that  Moss  continued  the 
l>ii>iness. 

Wf  also  have  Alexander  Frank's  own  testimony  that 
III'  omtiinied  the  liusiness,  and  this  captiiin's  testunony 
null  erning  the  empl«)yment  of  the  scluxniers  in  connec- 
li  >M  with  the  trading  stations. 

Alexander  Frank  made  no  arrangements  toivard  wind- 
in;;  up  the  husinesH  of  Oiitman  &.  Frank  until  during  the 
vr.ii' lxHi».  Frank  himself  was  the  active  niemher  of  the 
til  III,  and  the  schedule  of  as.sets  and  liahilities,  tiled  in 
''the  I'rohate  Division  of  the  Court  discloses,  page  208 
lit  KxhihitB.  line  W.\,  that  S.  H.  Fiank  &  Company 
lit  San  F'i'ancisco  were  practically  the  owneis  of  the  husi- 
ness  of  Ctutman  and  Frank,  hecause  they  were  creditors  to 
the  extent  of  ?(10.r)Si».3i.  The  death  of  Jacoh  IJutmau  did 
111  it  interfere  witli  the  husiness,  which  was  conducted  hy 
b'iMiik  after  the  death  of  (iulman  in  April,  issT,  until  the 
full  of  1HS{(,  during  all  of  which  time  he  employed  and 
u^ed  these  schooners,  which  were  necessary  to  the  o|)era- 
tiiiM  of  the  husiness  on  the  west  coast  of  Vancouver 
hiaiids. 

I  Mil' learned  friend,  Mr.  Beique,  suggests  that  the  affi- 
(hvits  which  are  in  evidence,  and  which  cstiihlish  heyond 
iciiitioversy  that  Alexander  Frank  swore  falsely,  are  not 
to  he  received  as  evidence,  hecause  this  is  not  Alexander 
I'l, ink's  case,  hut  is  the  case  of  (Jreat  Britain,  as  the 
ruiiiisel  for  (Jreat  Britain  claim.  Since  when  was  it  de- 
terinint>d  that  if  a  witne.ss  takes  the  stand  and  testifies, 
that  the  statements  made  in  his  affidavits,  put  in  on  cross- 
-I, examination,  made  concerning  the  same  suhject- matter, 
^  aiv  not  to  he  taken  as  admissions?  The  rule  (tf  evidence  is 
that  they  are  admissions,  and  that  is  the  way  the  affi- 
davits were  used.  I  am  aware  that  the  affidavits  were  in 
lietore  Alexander  Frank  was  on  the  stand,  hut  I  also  re- 
iiHiiiher  that  Alexander  Frank  was  cross-examined  on 
eviiyone  of  them  after  they  were  in,  and  admitted  the 
exi  iiition  of  them  all. 

What  explanation  did  Alexander  Frank  make  for 
li.iviiig  signed  these  affidavits*  His  explanation  illustrates 
f^lhe  iharacter  of  the  man.  He  was  asked  at  page  1!M»0, 
liii.'  :'.(»: 

"(,).  Did  you  make  that  affidavit?  A.  I  do  not  know  anvthing 
alinni  it  further  than  my  ottomey — I  did  whatever  he  saw  fit,  and 
wintti'vi'r  saw  fit  for  me  to  sign,  1  signed. 

"  <,>.  Wliother  it  was  true  or  not?  A.  I  8U)>|)OHed  he  would  look 
nut  t.i  see  that  I  swore  to  the  truth." 


40 


II H  ' 


(Mr.  Wuitoh'h  ArKinntMit. ) 

That  would  ixTliapH  Hutiiui  plausiltio  to  hoiiiu  coiirlH,  \,\\\ 
whi'tlii'i- or  not  a  vvitiH>ss  Ih  to  liu  lH>li«>ve(l  when  Iih  t<>Mi 
HoH  that  hu  nia(li<  six  or  Huvcn  alTidavitH,  all  of  tlii m 
reiterating  tli(>  saint'  Htateincnt,  without  kiiowin}{  wliii 
ho  waH  tioin^,  or  what  he  wan  Hwearin^  to,  does  not  i  ' 
(|uire  discuHsion  hefore  this  TrihunnI  And,  that  his  .ii. 
tornoys  did  not  invi'iit  (he  idea  that  heowned  this  "  M!,i.  |< 
lo  Diamond,"  and  this  "  Lily,"  and  tiiis  "  Alfred  Adams,"  i> 
heyond  qnestion. 

At  pa^e  ll>!)!»,  line  I,  this  witnes-t  admits  himself  lli  ii 
he  niiide  a  false  oath: 

"  y.  Pill  fiiiii  mri'iir  In  III"  Cniirl  llinl  J^icnh  (hiliiinii  nwitnl  hiilf  ot'  ilir 
"  »/»//)  irhen  i/mi  kneif  thai  hf  nwiiml  it  nil?     A.    Thiil  is  whit  I  iliil. " 

That  hears,  if  yonr  Honors  please,  upon  the  siij^gi'stioii 
of  the  (Commissioner  on  tiie  part  of  the  IJniteil  Static, 
ma<le  sometime  since,  that  this  man  admitted  that  lie 
20()\vned  these  schooners,  and,  here  it  is  shown  that  lie 
nt'ver  did  admit  that,  hut  positively  swore  he  never owmd 
them,  and  he  swears  a^ain  here: 

'Q.  /)/■</  //""  Hirxiir  In  lh»  Cimrl  Ihul  Jucoli  Uuliinin  iiienml  liiil/ 1/  ilir 
"  »hii>  trlirn  y'"'  kiiein  that  hi-  oinieil  il  (ill?     A.    Tliiil  in  irhiil  I iliil. 

He  dem'es  ahsolntely  that  he  ever  owned  the  hoats  and 
.admits  making  a  false  oath.  This  man  admits  makin;;  ,i 
false  oath  and  we  are  seriously  discussing  whether  or  lot 
he  is  now  to  he  helieved?     Fafsiin  in  uuo  fatsiis  in  mini,- 

^^hiis.  Where  were  all  the  sealers  of  Victoria  th;it  nonr  nf 
them  could  he  found  to  testify  that  Morris  \i,i  ,  owned 
these  schooners?  No  one  hut  Alexander  Frank,  the  only 
person  interested,  would  perjure  himself. 

The  estate  of  Morris  Moss  contains  no  reference  to  tlicsi' 
claims  (Kecord.  page  -.'Ool,  line  45),  and  no  one  represent- 
ing his  estate  w;is  at  Victoria. 

Ale.xander  Frank  absolutely  denied  that  he  ever  owned 
the  "  Black  Diamond  "  or  that  he evei' owned  the  "  Alfieil 
Adams"  or  any  parr  of  either.     This  testimony  is  concln- 

'^^sively  estahlishe<l  to  have  heen  false  because  his  own  afli 
davit,  page  'Jo7,  line  2<!,  contains  the  following  statement: 

"  Aud  tliirty-two  Hixty-fourtliH  of  aud  in  a  oertain  Bbip  l)«loDKi»K  to 
"  tli<>  Huid  firm  of  (liitmau  tV  Frank,  wliicli  Haid  laHt  muntioncd  Hliip  iH 
"  roKiHtiTod  lit  Maid  I'ort  of  Victoria  in  tlie  namtt  of  Huid  Jacol>  Outnmu, 
"  aud  iH  roKiHtorcd  under  tlu>  uaniu  of  tliu  '  Black  Diamond. '" 

And  the  atlidavit  of  Moiitz  (Sutman,  Exhibits,  pageiMi, 
line  1!»,  contains  this  statement: 

50  "  That  tlif!  Hniil  tirni  of  Oiitnian  &  Frank  liavo  a  claim  agaiiixt  tlie 
'■  (lovcrnnii'nt  of  tho  United  States  of  America  for  tlie  iimontit  of 
"  ^'2ii,43:i,  Hiu'h  claim  Ix'iiiK  for  the  Hci/.ure  of  a  certain  Hclioouer  kiiewii 
"  l)y  the  name  of  the  '  Alfred  AihiXHH,'  (iml  owiinl  hi/  snid  Jlriii  nf  (Inhiiia 
"  i('  Fi-iiiiky  and  of  certain  HealskinH  belonKinK  to  tlie  Haid  firm,  ami 
"  that  proceedinnH  have  been  commenced  and  are  now  being  i>r<ise- 
"  cuted  for  tlie  recovery  of  Buch  damagen." 


And  the  letter  of  Sir  Julian  Pauncefote.  heretofon?  set 
out,  shows  conchisively  that  Alexander  Frank  was  intei- 
ested  in  the  '"  Black  Diamond"  in  the  year  IH8«,  and  that 
f>o  he  was  the  surviving  partner  and  presented  the  claim  to 
the  (Joveinment  of  the  I'nited  States  or  to  Her  Majestvs 
(iovcrmncnt  for  the  purpose  of  being  presented  to  I  ho 
(iovernment  of  the  United  States.  If  Krank's  testimony 
is  false  regarding  his  interest  in  these  vessels,  why  slmnld 
we  credit  him  with  telling  the  truth  regarding  his  interest 


789 


(Mr.  Wjiirt'ii's  ArKtimi>nt.) 
BiHck   Diuinoiid"  and   thu   "  Lily 


in   the  yi-iir 


ih  lilt! 

If  I  hnd  time  I  thinit  I  «  onid  show  oxn(;tly  what  Franlt 
|i;wt'(l  his  HlatorncntH  on  and  why  ho  thonj^ht  \m  conid 
hiiti'iy  testify  that  he  novcrownod  lialfof  th»'Me  schoonerH. 
All  attenipt  was  made  to  have  him  admit  that  lie  had 
^;v  <iin  in  one  of  tlieHe  ulTidavits  that  he  owned  half  these 
10 lii  I II Miners,  and  the  witness  evaded  the  qnestion  l>y  saying: 
'  I  (lid  not  swear  I  (twned  half,  I  swore  that  Jacolt  Unt- 
•   iii.in's  estate  owned  half." 

r.iif  he  was  the  only  partner  that  Jacoh  Ontinan  had  and 
till  firm  of  (iiitnian&  Frank  owned  the  vessels,  1  beg  to 
n^l<,  who  owned  the  other  half  if  Alexander  Frank  did 
:ii't? 

I  am  not  talking  about  snhjerts  of  Great  Britain  now, 
niid  1  have  no  hesitation  in  saying  that  this  (.laiinant  ali- 
sdliitfly  swore  falsely.  He  admitted  in  these  attidavits 
2ovvln  II  his  interest  was  not  involved,  that  he  owned  half  of 
tlii-i'  srhooners.  and  we  claim  tiiat  his  testimony  is  not 
iiiiw  to  be  received  as  evideiv  '  ,it  all.  With  his  testimony 
(lilt  of  the  case,  the  registiy  iM)t  being  a  jniiiia  J'avie 
(videpce  of  ownership,  the  claim  on  behalf  of  Morris  Moss 
iiiiist  fall. 

Hearing  upon  the  weigl.'  to  bo  fiiven  the  ""uct  that  Mor- 
ris Moss  held  the  title  t  ...ese  scliooners,  I  wish  to  refer, 
iiiii'lly,  to  the  teslinu)ny  of  the  witne.ss  Theodore  Lubbe 
ili'rcoVd.  page  «iH(i.  line  55): 

^*^  "  Q.  And  knuT/iuK  of  hi»r  arriNai,  did  yon  write  a  letter  atiunt  it  at 
•'that  time?  A.  Well,  on  Octo)H>r  11,  1888,  I  ttdenraidied  to  New 
"  Viirlt  in  cypher:  '  'Han  Diego'  arrived  with  000  AlsHkan  HvalH.'  " 

I  continue  reading  from  page  «!>1,  lino  47: 

••  Q.  Do  yon  know  Morris  Mohs  of  Victoria  ?    A.  Yes. 

"  Q.  Is  lie  interested  in  the  sealing  buniness  as  you  are  in  any  way  ? 
••  :\.  I  do  not  know. 

"  (^.  He  is  a  Kood  citizen  here  is  ho  ?  A.  I  do  not  know  anything 
"  iilmnt  him. 

••  if.  I  think  he  was  agent  for  Lielie's  &  Conipanv  of  San  Francisco  ? 
40 ••A.   Y.'H. 

"  i./.  You  know  Mr.  Moss,  we  do  not.  Would  it  ohungo  your  mind 
"  at  all  if  Mr.  Moss  were  to  say  that  on  that  1883  voyage  the  'San 
••  Dii'Ko.  caught  2,200  skins  ?     A.   J  < fun' I  'urewlial  J/«ss'«/i//»,  Mr.  Dick- 

"  imnil. 

( III  ledirectexamination  by  the  Senior  Counsel  for  Great 
Brittiin.  this  witness  (Uecoid,  page  <)!»3,  line  35),   testifies 

;is  luljows: 

"  (/.  You  were  nsked  questions  as  to  Morris  Moss,  and  as  to  whether 

"  if  111'  Hrtid  there  were  two  thousand  skins  taken  by  the  '  San  Diego  ' 

50"  ill  IHH3,  you  would  change  your  mind,  and  you  said  no.     What  has 

"  lii'comc  of  Mr.  Morris  Moss  ?    A.   /  ito  nul  lik'^  lo  nni/  <iiii/thiiig  nhout 

"  liini.      The  tiion  is  ileml  iiair." 

Ml.  Lublio  had  testified  that  the  "San  Hiego"  had  ItOO 
stil  skins  in  jsss,  and  T  read  from  the  aHidavit  of  Morris 
Mii~s  (  Uecord,  page  Mt4i>,  line  45): 

•In  ISSil,  the  American  schooner  'San  Diego,'  of  San  Francisco, 
••  i>iiti>i'od  tlic  Hi- A  and  after  taking  about  '2,200  seal  skins,  brought 
"  llicm  to  Victori,;  and  sold  them." 

6o  .\lc.\;inder  Frank  owned  these  ships  in  the  year  188!) 
ami  (ii»erate<l  them  on  the  west  coast  of  Vancouver  Island 
incdiinection  with  his  trading  station,  which  he  owned 
iimil  the  fall  of  that  year,  and  the  United  Slates  deny  all 
li;iliilitv  whatever  in  the  claims  of  the  "  Black  Diamond" 
Mild  the  "l.ily  "  in  the  year  188y. 


I  ■ 


On 


!  i 


«  1'- 


790 


(Mr.  Warren's  Argument.) 

I  have  taken  up  and  considered  in  turn  each  ofjtl.> 
cases  in  which  a  citizen  of  the  United  States  is  claini<  I 
to  have  heen  interested,  and  concluding  that  brnnch  '  i 
my  argument,  I  wish  to  state  briefly  wliat  we  contend  wm 
have  established: 

That  Andrew  J.  Bechtel  was  the  owner  of  one-half  thr 
'"  Carolena  "  at  the  time  of  her  seizure. 
ID     That  Andrew  J.  Bechtel  was  not  only  the  owner  of  h.iU 
the  venture  of  the  '  Pathfinder"  in  )!S8!>,  as  admitted  Iv 
Gieat  Britain,  but  was  owner  of  half  that  schooner. 

That,  as  admitted,  Alexander  McLean  was  the  own.  i 
of  half  the  "Onward'"  and  the  "  Favorite"  at  the  tinif  m( 
the  seizure  of  the  "Onward"  and  the  warning  of  Ihc 
"  Favoiirite." 

That,  as  admitted,  Daniel  McLean  was  tlie  owner  of 
one  third  of  the  "Big  Triumph"  at  the  time  of  lui 
warning. 
20  That  Alexander  Frank  was  the  owner  of  one  half  tin- 
interest  held  in  the  name  of  Jacob  (Tutman  in  the  "  Mlarl; 
Diamond  "  in  the  year  1.S80,  when  she  was  seized,  beoaii-t' 
we  have  clearly  pIiowm  tliat  the  firm  of  Outrnan  &  Frank 
was  in  existence  early  in  the  year  lSH(i,  and  the  "  Bl.nk 
Diamond  "  claim,  if  any  exists  in  fact,  arises  from  aru 
conunitted  in  July,  18Hr>. 

That  Alexan<ler  Frank  was  the  owner  of  one  halt'  Ilk' 
bottom  of  the  "  Alfred  Adams"  in  188".  It  is  admittid 
that  he  was  e(|iiaily  interested  in  the  venture,  and  tlic 
30 claim  l»efore  \our  Honors  is  entirely  one  foi  loss  of  sn 
vice  and  loss  of  pro|)erty,  exclusive  of  the  bottom  of  the 
ship. 

That  Alexander  Frank  was  the  sole  owner  of  the  "  Hlaik 
Diamond  "'  and  the  "  Lily  "  in  188i»  when  they  were  seized. 

Of  the  "Cooper"  claims  I  have  not  spoken.     Thev  aro 
the  "  Grace,"  "  Dolphin,"  "Anna  Beck"  and  the  "Say 
ward"  -and   the  consideration   of   these  claims   will   in' 
taken  up  by  the  senior  counsel  for  the  United  States. 


40 


V'.vLUE  OK  Seal  Skins. 


I  pass  now,  if  your  Honors  please,  to  the  value  of  the 
seal  skins  in  the  various  years.  The  contention  of  I  In- 
United  States  is,  that  tlie  price  to  be  awarded  for  the  seal 
skins  actually  seized  and  confiscated  is  the  price  ruling;  ni 
the  t'ity  of  Victoria  at  the  time  when  the  cargo  wouUI.  in 
the  ordinary  course  of  events,  have  l)een  placed  ujton  that 
market.  No  rule  of  law  is  more  firmly  established  than 
-othat  which  declares,  that  the  value  of  the  cargo  is  deti'i 
mined  by  the  market  price  ruling  at  the  port  of  depart  niv 

There  an-  but  two  exceptions  to  this  rule.  If  binding' 
contracts  are  proven  to  have  been  in  existence  between  thi> 
owner  of  the  cargo  and  the  purchaser  at  the  market  dI 
ultimate  delivery,  and  the  vessel  is  proven  to  have  artn 
ally  started  upon  the  voyage  of  delivery,  the  price  ruling 
at  the  port  of  delivery  is  sometimes  allowed;  and  if  it  he 
estaldislied  that  there  is  no  market  at  the  port  of  depart 
ure,  the  Court  will  look  elsewhere  for  evidence  of  the 
f,o  value  of  the  cargo. 

Vour  Honors  are  familiar  with  the  law  to  be  here  ap 
plied,  and  there  is  no  object  in  discussing  it.     In  tlie-c 
cases  not  only  are  no  contracts  in  evidence  for  sales  else 
where  than  in  Victoria,  but  the  voyage  of  delivery  was 
not  even  begun. 


7ftl 


^■. 


lit'  tfstiCicd  at  Record,  page  1893,  line  lO,  concerning 
tile  iiKirlx-et  ralue  of  skins  in  Victoria  in  isstl,  and  that  is 
tlic  iiiily  testimony  in  this  entire  Record  concerning  tlio 
mill  kit  value  of  seal  skins  in  the  year  issti,  and  that  testi- 

niniiv  is: 

riic  liigUoHt  I  know  of  ^-as  87,  and  the  lowoHt  W.50. " 


■if     ; 


one- half  tli 


u 


(Mr.  Wanen's  Argument.) 

()p|iosed  to  this  contention  of  the  United  States,  the 
( I'linsel  for  (treat  Britain  advance  the  proposition,  that  the 
III  II ket  price  prevailing  in  London  should  he  taken  as  a 
lusis  for  determining  the  value  of  the  seal  skins.  Con- 
tints  are  not  claimed  to  have  heen  made;  and  counsel  for 
(iicit  Britain  rely  on  an  attempt  to  prov»'  the  intention, 
ih  iwoclannsout  of  the  entire  numher  of  claims,  (o  stil 
(111  the  London  mark«-t  at  puhlic  auction,  and  ask  your 
II. 'iiors  to  infer  that  all  the  owners  of  seixed  caigoes  in- 
t.  inled  to  sell  in  London  at  puhlic  auction. 

Here  again  are  we  dealing  in  uncertainties,  and  specu- 
laiitiiis  and  c«)ntingencit's.  Your  Honors  are  luged  to 
iiM  I'jtt  as  the  measure  of  the  value  of  the  cargoes,  the 
iiinket  price  ruling  in  the  Oily  of  London,  where  the 
sales  are  conducted  at  puhlic  auction,  and  to  determine 
till  price,  not  haseil  upon  any  proof  of  the  sums  realized 
at  |iiil)lic  .luction,  but  upon  the  testinumy  of  one  witness 

20  ill  I  lie  year  IHH't  concerning  one  sale  in  the  City  of  London, 
wliicli  sale  was  later  than  the  regular  auction  sales  in  that 
(ii\  The  other  evidence  relating  ti>  the  prices  ohtained 
at  the  sales  in  London  is  as  to  the  year  \SH7,  and  that  also 
relates  to  a  sale  by  one  man  of  one  small  cargo  of  skins  at 
piililic  auction.  There  is  iioirfieie  irilliiii  the  curerti  of  this 
liiinnf  Hill/  erideiice  wtdiwed  on  tie.htilf  of  tlrtul  liritain 
nhiliir  to  the  market  value  of  seal  skins  in  the  City  of 
1,11, idon  at  any  time  whatsoever. 
Cases  involving  the  value  of   the  cargo,   where   there 

;oliave  l)een  collisions  at  sea,  your  Honors  are  both  familiar 
with.  The  books  are  full  of  them,  and  I  will  therefore 
only  consider  the  testimony. 

The  United  States  sought  to  establish  the  market  value 
of  seal  skins  in  the  Port  of  Victoria  in  the  years  isSfi,  1887 
and  18f>!t,  and  produced  for  that  purpo,se  the  witness, 
Tlu'ddoio  Luhlns  whose  competency  and  reliability  remain 
iiiH|iiestioned  by  either  side  to  this  controversy.  He 
was  accepted  as  a  fair  and  competent  witness  by  both 
parties. 

40  At  pugw  18SH>  of  the  Record,  line  57,  this  witness  testi- 
ticil  concerning  a  s;ile  on  the  market  at  Victoria  in  the 
year  1S8»>,  and  said  that  he  was  a  part  owner  of  the 
"  Mary  Kllen;"  that  he  sold  the  "  Mary  Ellen's  "  sRins  on 
tlif  market  at  Victoria  for  ^((.."iu.  These  were  Bering  Sea 
seal  skins: 


'  Mary  Ellon  '  Hkius  that 
did  yoti  not  ?    A. 


•■y.  Yim  were  agent  for  the  mile  of  tlie 
'■  oeiisim  iu  1886  V    A.   I  owned  in  her. 

"Q    Yi)u  had  charge  of  the  bale  of  her  catch, 
•■  Yi's. 
)      •(,»    Did  you  Hell  them  ?    A.  Yoh. 

••{}.  To   whom?    A.  They   were  sold  to  the  Alaska  Commercial 
"  C'liminiuv  B  repreHeutatives  at  Victoria. 

••(}.  What  price  did  they  realize  ?    A.  80.60." 


fi 

I' 


Till  re  is  no  question  about  that.  That  is  the  only  testi- 
inniiv  of  the  market  value  of  seal  skins  iu  Victoria  in  the 
vcai  !>st!,  and  counsel  aiv  not  far  apart  as  to  the  price  in 


793 

(Mr.  Warren's  Argument.) 

that  year.     $7  is  claimed,  and  we  contend  that  the  ckiiiji- 
ants  should  have  the  market  vahie,  so  that  the  cont. n 
tions  as  to  the  price  for  tiiat  year  is  easily  disposed  ot. 


m{ 

1 

r: 

' 

1 

Market  Value  in  1887. 

The  only  witnesses  who  gave  testimony  concerning  ihc 
^o market  value  in  1887  were  Theodore  Lubhe,  Captain  VV;ir. 
ren  and  Richard  Hall,  and  they  all  testified  to  )|55.50. 

The  testimony  of  the  witness  Lubhe  is  found  at  Recoi.l, 
page  1882,  line  17.     Ho  says: 

"  These  were  bought  from  C.  Spring  &  Co.  July  9,  17  BultuU  fur 
"  seals  at  *5.25  each,  889.25.  October  10th,  l,02-'i  salleU  geids  at  $r:(, 
"  aich.  «7,312.50." 

The  counsel  for  Great  Britain,  on  oral  argument,  ciiii- 
2oCised  the  statement  with  reference  to  this  which  is  ni.ido 
in  the  argument  of  the  United  States,  and  says  these  \vt  re 
not  Bering  Sea  skins.  1  shall  read  to  your  Honors  tin- 
testimony  that  establishetl  that  they  were  Bering  Sea 
skins.     At  line  21,  page  1882  of  the  Record: 

"  Q.  From  whom  did  you  buy  these  skins?  A.  The  sdiuuntrr 
''•Kate.'" 

At  line  29: 

'*  Q.  When  you  made  your  statement  as  to  the  average  price  pniil  in 
30  "  that  year  you  did  not  include  the  purchase  of  pups?  A.  1  Liivf 
"  given  you  in  many  instances  the  purchase  of  pups.  Fur  instiude  in 
"the  Behring  Smi,  the  schooner  "  luile'  did  not  coiitdin  any  grey  piijis  In 
"  speak  of;  the  may  have  contained  a/eir,  but  in  the  other  the  pups  are  in- 
"  eluded." 

Therefore,  that  is  a  purchase  of  Bering  Sea  skins  in  tlie 
year  1887  for  ^-1.50  on  the  Victoria  market. 

The  Commissioner  on  the  part  of  the  United  States: - 
What  are  the  lespective  positions  of  counsel  for  both  coun- 
tries with  regard  to  the  price  that  year? 
40  Mr.  Warren:— The  counsel  for  Great  Britain  doniaiul 
ise.SOaskin.  The  United  States  are  willing  to  pay  for  skins 
actuallv  seized  $5.50,  and  believe  that  was  the  niailvi't 
value  tnat  yeai'  in  Victoria.  Here  I  have  cited  a  purciia>e 
of  Bering  Sea  skins  for  if4. .'')(». 

At  Record,  page  189(»,  line  25,  the  witness  Lubbe  testi- 
fied, in  reply  to  this  cpiestion: 

"  Q.  In  1887  vou  bought  very  few  Behring  Sea  skins?    A.  I  think  I 
"  only  bought  the  '  Kate's'  lot  of  l,fi26. 
"  Q.  That  was  all  the  Behring  Sea  skins  you  bought  that  yoar?    A. 
50  "Yes." 

1  contend  that  the  criticism  of  counsel  for  Great  Hrilaiii 
that  these  skins  were  not  Bering  Sea  skins  was  inaijo 
through  erior.  1  have  read  tlu*  tt'stinxiny  of  tiie  wilm-s 
himself  that  these  were  Bering  Sea  skins,  and  that  llicv 
contained  no  urey  pups  to  s|»eak  of. 

At  Recoid,  page  IKbH,  line  27,  Lul)be  testified: 

"Q.  In  the  year  1887  who,  liesides  yourself,  were  purchasiti).'  seal 
"  skins  in  Victoria?  A.  .J.  Uhlniaii,  of  New  York,  bought  tlif  •I'lilli- 
f)0  '  flndor '  collection,  2,377 skins,  at  ^■^'.  Of  course,  I  nni  taking  this  tinm 
•'  a  letter  I  wrote  at  the  time  to  New  York.  Amongst  those  2,377  lliiii,' 
"  nmy  have  been  10  or  15  grey  pups,  which  would  change  my  tit;iiit's 
"  slightly,  hut  iroiild  nut  innount  to  anything.  I  bought  the  '  I'i'Iii'Ih|ii'  ' 
"collection  of  1,500  ai  $.'t.~iO.  Liebos  &  Company  and  the  HikImii's 
"  Hay  Company  and  others  bought  some  of  the  skins  that  year,  muk- 
"  ing'  a  total,  according  to  these  flgures,  of  10,200  in  Behring  Hen." 


7!):$ 


V.^' 


'Ill 


(Mr.  Warren's  Argument.) 

In  tlie  British  argument  in  chief,  at  ()age  85,  line  2,  the 
Bi.itement  is  made  that  part  of  Munsie'a  catch  was  the 
gpiing  catch,  and  consequently  less  valuable  than  the 
Filing  Sea  skins.  In  that  statement  the  learned  counsel 
f<ii'  Great  Britain  are  mistaken.  I  just  read  from  the  Kec- 
(iid  where  the  evidence  of  that  sale  is  set  out,  and  it  was 
Miiiisie's  schooner,  the  "  Pathfinder's"  collection  of  2,337 
lo.skins,  and  the  witness  Lubbe  wrote  in  his  book: 

"Making  •  total,   according  to  these  flguren,  of  10,200  in  liehring 

Se'>." 

From  Record,  page  1884,  line  5,  I  read: 

"Q.  What  were  the  prices— (that  is  the  year  1887).     A.  The  'Path- 
tinder'  85.50,  the  '  Penelo]|)e' and  the 'ThereMa' 85.25;  I  think  they 

■'  lire  subject  to  a  very  slight  increase  on  account  of  a  few  gray  pups;  it 

"  would  not  amount  to  any  wore  than  5c.  per  skin. 

"Q.   Doe*  the  nmounl   which  you  now  reml,  $-'i.2-'i  and  $-'i.-'>0  per  skin 
20  '■  ,,(ch — 1»  thit  the  price  of  the  skins  of  these  severnl  schooners?     A.    Vet, 

"  sir. 
"  Q.   And  all  these  skins  were  Behring  Sen   skins,  or  northern   coastf 

••  A.    Yes,  sir;  Behring  Sen  skins." 


The    sclioiiiier 


skins  ill  tlic 

ed  Statt's:— 
)r  both  couii- 


Lubbe  tcsti- 

V    A.  I  think  I 
that  yearV    A. 


rreat  Hiil;iiii 

,s  was  made 

the  widit'ss 

nd  that  llnv 


^'our  HoMors  will  see  that  there  can  be  no  dispute  about 
that  yuestion  of  whether  or  not  this  witness  was  testify- 
ing concerning  Bering  Sea  seal  skins. 

"Q.  Could  you  give  us  the  date  of  that  last  purchase?    A.   October 
'    /;///.  18S7;  that  refers  to  the  '  Penelope,'  the   '  Pathfinder  '  and  the 
30  "  'Theresa.' " 

The  Commissioner  on  the  part  of  the  United  States:--  Is 
tliat  the  year  in  which  the  skins  sold  for  lower  at  the 
cliisc  of  the  season  than  in  the  early  part? 

Mf  Warren: — You  aie  cori-ect  in  that,  your  Honor. 
Till'  variation,  however,  in  1887,  was  very  slight;  and  I 
will  show,  before  I  close,  exactly  the  prices  at  all  times, 
and  rite  the  testimony  bearing  on  the  market  value  of 
skins. 
40  .\t  Record,  page  1932,  line  ia,  referring  to  the  year  1887, 
Tiit'Otloie  Lubbe  testified  as  follows: 

'•Q.  Who  else?  A.  Uhltnan  was  here,  went  away  and  came  back 
"  )ii'r(>,  and  bought  three  lots,  and  went  away  again.  He  bought 
"  wliilo  here  the  '  Pathfinder's  '  and  •  Theresa's  '  for  various  parties. 
"  Uhlman  appeared  to  have  enough.     Davis  conld  have  bought  a  lot  at 

That  is  a  quotation  from  liubbe's  book  and  it  is  quoted 

in  his  hook.   It  was  an  entry  made  at  the  time.  There  are 

Sotuii  instances  of  sales:  one  at  'h'l-OO,  and  the  other  at  |<5; 

and  tlieie  were  intermediate  sales  at  $5.2.")  and  *5.50.    Our 

iiiiili'iition  is  that  the  market  price  is  ^5.50. 

Tills  witness  was  e.\ainine(l  as  to  the  Victoria  market 
imrcs  prevailing  in  the  year  1887,  throughout  the  entire 
viMi,  and  gave  his  testimony  at  Record,  page  1933, 
iinr  :U: 


'  Q.   In  1887  iBoiUd  9-'i.  50  be  a  good, /air  average?     A. 
",■  i/es,  sir." 


I  shoidd  think 


60 


TIlis  citation  was  in  our  printed  argument,  and  was 
cntirizcd  by  the  counsel  for  Gieat  Britain,  because  they 
s;iy  Lubbe  was  not  then  referring  to  Bering  Sea  skins, 
Itnt  I  will  show  your  Honors  that  he  was  referring  to 
iKiihing  else. 


li 


it 


• 


m 


794 


(Mr.  Warren's  Argument.) 
At  Record,  page  1884,  line  10,  he  says: 

"Q.  Does  the  amount  which  yon  now  read,  95- 2ft  and  $5.60  <>^'t 
"  skin  each,  is  that  the  price  of  the  skins  of  these  several  schooneV.i? 
"  A.  Yes,  sir. 

"Q.  And  all  thest  skins  were  Behring  Sen  skins  or  nor IherfC coast?  A. 
"  Yes,  sir;  Behring  Sea  skins." 

,o     There  the  witness  does  refer  to  Bering  Sea  skins  di 
rectly,  and  gives  the  price  and  afterwards  gives  the  gtn- 
eral  market  pri(;e  based  upon  his  former  testimony  of  a 
particular  transaction.     That,  if  your  Honors  please,  con 
eludes  the  testimony  of  the  witness  regarding  the  average 
price  in  the  year  1887. 

At  half  past  four  o'clock  the  Commissioners  rose. 


Commissioners  under  the  Convention  of  February  8, 

1896,  between  thn  United  States  of 

America  and  Great  Britain. 


(M 


10 

Legislative  Council  Chaiuber,  Provincial  Building, 
At  Halifax,  September  20,  18!>7. 

At  10.30  the  Conimissionei-s  took  their  seats. 

Mr.  Warren:— If  the  High  Coinniissioners  please,  I  will 
IHiiitH'd  with  the  discussion  of  the  value  of  seal  skins.  I 
Ii;i(l  concluded  the  consideration  of  the  testimony  of  Theo- 
-o<li,it'  Lubbe  in  legard  to  the  market  price  in  1887  in  Vic- 
tdi  ill.  Captain  Warren  gave  testimony  as  to  the  value  in 
1>>7,  at  Record,  1872.  line  11. 

' '  Q.  What  was  tho  ruling  market  price  of  Hkins  in  Victoria  in  the 
■  vfur  1887,  in  tho  fall?    A.  Well,  an  near  as  I  can  remember,  it  was 

■'  ■ihiiiil  $5. SO,  what  the  buyers  icere  pai/iiiy  here." 

At  Record.  1873,  line  33,  he  repeats  the  testimony.  I  re- 
ft r  to  the  following  citations  from  Volume  i  of  the 
American  Reprint  of  the  Proceedings  at  Paris,  page  146, 
■'^■sidi-  page  12,  page  155.  These  citations  are  not  in  our 
limited  argument.  Page  1»>0,  pages  h\i,  170,  174  and  177, 
at  which  places  affidavits  of  these  owners  are  found,  and 
till'  statement  concerning  the  value  of  seal  skins  is  Hint  the 
market  value  of  skins  in  the  t/ettr  /-SST  in  Victoria  was 
f  T. :".  There  was  no  other  witness  except  these  two  wit- 
ii(s>t's,  Lubbe  and  Warren,  who  testified  as  to  the  market 
vnliK'  of  skins  in  Victoria  in  1887. 


II      |i 


40 


Makket  Value  in  lsHi». 


I  proceed  to  the  testimony  bearing  on  the  value  of  the 
skins  in  the  year  1880.  The  counsel  for  Great  Britain  in 
(Hal  argument  stated  that  we  ha<l  made  the  assertion  in 
oiii  printed  argument,  that  the  year  1888  not  being 
(liivctly  involved  in  this  controvei'sy,  the  testimony  relat- 
ing to  the  value  of  skins  would  not  be  discussed.  It  is 
tint' we  made  that  statement  and  we  believe  that  is  the 
fa(  t.  Mr.  Bodwell  then  |)rocee(ied  to  treat  of  tho  value  in 
.^tlif  year  1888  as  bearing  upon  the  fact  that  in  that  year 
sknis  were  siiipped  to  London.  That  is  the  only  com- 
nil  lit  ho  made.     I  will  refer  to  that  later. 

i'lieodore  Lubbe  and  Richard  Hall  are  the  only  wit- 
ness's who  testified  regarding  the  value  of  skins  in  1880. 
Waiivii  was  not  in  business  in  18s<»  in  Victoria  and  testi- 
tifil  tliat  he  was  not  able  to  give  the  market  value  of  these 
skins.     Theodore  Lubbe  testified  at  Record,  103»i,  line  10: 

■  Q.  You  have  been  asked  to  say  whether  a  certain  swiii  would  be  a 
"  f.iir  average  of  the  northwest  coast  latch  is  Ijampsou  classiAcd  them 
('o"  ill  IHH',1,  and  you  also  say  that  that  is  not  a  fair  way  to  get  an  aver- 
"  \n:<'  price  for  Uehring  Sea  skius.  Cmi  i/oii  qiee  us  the  tivernf/e  price/or 
•'  Hfi'i-hiii  Sea  tkiim/or  the  year  1889?  A.  You  mean  a  sum  in  London 
"  uimI  litTeV 

"  (j>.  Take  it  both  ways,  if  you  can,  or  if  you  canuot,  give  us  either 
■'niir  way  or  the  other?    A.   The  price  here  w<ia  $7.75  uiui  $7.60  in 

,,  ;ss'.';." 


IM; 


Wf  ' 


"!•»•) 


(Mr.  WaiTfii's  Art^iiiiuMit.) 

1  call  your  Honors'  attention  to  the  ciitkisnj  of  <.\\,> 
counsel  for  Ort-at  Hritain,  that  in  our  brief  wo  had  i  a 
stated  that  Luhhe  was  talking  of  tlie  coast  catch  autl  i,..t 
of  tho  Bering  Sea  catch.  When  the  counsel  made  (liit 
statement  he,  through  error,  did  not  reter  to  the  tt-ii- 
uiony  cited  in  our  argument  in  support  of  the  statenicni. 
This  is  the  testimony  and  it  relates  to  Jien'iit/  Sea  .shi„s 

lOo/j///. 

This  is  the  market  value  of  skins  in  the  City  of  Victoi  i  i, 
from  tile  witness  Mr.  Lulthe,  for  the  year  1S8!»,  it  rel.ii.s 
solely  and  only  to  Beriiiy  Sea  skins.  At  Record.  Imi:;, 
line  -2S: 

"  Q.  If  vou  can  answer  this  ^ouoral  <innstiou  it  will  do  just  ns  wc  ||. 
"  Will  you  toll  tlio  CommiHsiouers  the  liirjliest  tinfket  price  o(l'ere.il  f.,- 
"  iie/;ri;;7  "S'''!  skiuH  in  the  year  IHSit,  at  Vii'toriii?    A.  $7.(10.' 

"  Q.  Will  vou  tt'll  tho  lowest  price  for  the  sumo  year  ?  A.  I  tlnnl; 
"  tlu'v  weronll  »7.(!(l. 

"  y.   All  (ihoiit  $1.(10?     A.    Yes. 

"  Q.  Autl  that  is  for  the  skius  as  thov  ran,  including  gray  pups,  juhi 
"  like  the  Loudon  sales  ?    A.  Yes,  sir.'' 


20 


30 


40 


That  means  giay  pups  taken  in  Bering  Sen,  not  lliu 
coast  catch  jit  all,  and  there  is  a  very  small  proj)ortioii  in 
the  Bering  Sea  catch,  and  they  are  included  just  as  tin  y 
are  included  in  the  London  sales.     Record,  1S!>4,  Hiu'   In: 

"  Q.  Mr.  Bod  well  asked  you  a  (juestiou  if  *hat  was  practically  the 
'•  lowest  i>rice  then — I  do  not  know  whether  you  answered  that  01'  imt, 
"  IHflO  ?     A.  I  don't  think  there  wore  many  skins  sold  hero  in  IHH'.i. 

"  Q.  I  asked  vou  to  give  the  highest  jirice,  and  you  said  97.  W  V    .\ 
*  Yes. 

"  Q.  117//  you  txrn  to  i/oiir  book  unitfiml  a  higher  offer  than  $7.lin  nr 
"  ^7. 7.5 .'     A.    There  in  no  higher  offer. " 

Record,  1431,  line  24,  the  testimony  of  K.  Crowe  Baker, 
not  cited  in  our  argument,  shows  an  actual  sale  of  seal 
skins  in  the  year  iss'.t,  taken  by  the  "Triumph,"  ono  of 
the  boats  now  claiming  !?11  in  the  same  year: 

•'  Q,  Will  you  look  and  see  if  I  read  correctly  the  account  sales  ymi 
produce,  'With  H  Liebes  &  ('(-..'San  Krauci'sco,  October  1,  IHHlt.'ue. 
count  of  sales  of  furs  received  from  schooner  'Triumph,'  271  Ke'ihlius 
III  $(!.2't,  SI, •!(•:».  7"),  and  51  seal  jmps  at  «l.r)(t,  »7.'>.50;  total  81,77(l.'.>5. 
(Signed)     H.  Liebes  A- Co.  (Behrijg  Hea)?    A.   Yes." 


The  Commissioner  on  the  |)art  of  the  United  States:— 
Was  not  that  under  contract? 

Mr.  Warre'i;     That  was  under  Ins  contract. 

The  Connnissioner  on  the  |»art  of  tlie  United  States:— 
We  have  got  that  fact;  it  is  fully  explained  in  your  priiiloil 
aigument. 
50      Mr.  Warien: -This  is  m  actual  s:ile. 

The  Commissioner  on  the  part  of  the  United  States:  -it 
is  part  performance  of  the  contiact? 

.Mr.  Warren: —Ve-^.  i»art  performance,  "  .Ol  .«eal  pup.s  nt 
$1..")0,"  showing  that  pups  were  not  included  in  tlie  prid'. 
The  words  "  Bering  Sea"  are  written  on  that  memoraniltim 
and  appear  in  \\w  Record. 

In  tiie  atlid.ivits  in  Volume 4 of  the  Proceedings  at  \';\\\<, 

pages  isl,  l!»|,  1!)4,  lit"  and  rid'),  these  owners  claim  tlio 

timrh't  vithii'  hi  Virlorid  in  1SS!»  to  Imvc  been  ^M,     '/'Ai  sc 

f-    irere  the  oriijiniil  cJiii  ins  filed  willi  tlie  Dominion  (ionm- 

inent  made  ilirectlij  after  the  cause  0/  action  aro.sy. 

Record,  ll»:il,  line  28:  "  In  l.ssi»  the  average  selling  price 
t»f  skins  in  Victoria  was  ^7. •>.">." 

The  Counnissioiicr  on  the  part  of  the  United  States:  Is 
that  ^)ortion  of  Volume  4,  referred  to  in  the  Record? 


ro; 


- 

" 

Sf 

If 

gray  pnpH,  just 


t/i(in  $7.  fill  III 


ed  states:— 


I  States:- It 


(Mr.  Wairen's  Ai'Kiiin<u)t.) 

Mr.  Wai ren:- These  paiticular  portions  wem  read  ioto 
tli>'  Hecord  by  counsel  at  Victoria. 

I  liave  considered  the  testinioiiy  adduced  by  Counsel 
f.ir  the  United  States  bearing  upon  the  value  of  skins  in 
Victoria  in  1886,  1887  and  188<.>.  I  call  your  Honors'  at- 
t.  iition  to  this  fact  that  the  greater  portion  of  the  seal 
Skins  actually  seized  in  l!«87  were  of  the  coast  catch.  I 
ion  id  from  Record,  1872,  at  line  MK  to  substantiate  that— 
fiirn  the  testimony  of  Janies  D.  Warren: 

"  Q.  And  the  skinfi  seized  from  vonr  ImatH  in  BohringHea  in  18H7  wore 
"  111  most  allot  them  the  coant  catch — the  northern  coast  catch?  A. 
■   Vi'»,  what  I  Bold  waH  the  Hpring  cateh  of  them  veBHels. 

••  Q.  The  skins  that  were  actually  taken  from  the  'Dolphin,' 
"  '  (irace'  and  '  Anna  lieck'  in  liehriug  Hea  were  the  northern  coast 
•■  cutch,  were  they  not,  Imcaiise  you  had  not  had  time  for  hunting  in 
"  llchring  Sea?  A.  A  good  part  of  them  would  l)e  the  catch  on  the 
••  way  np." 

:o  I  refer  to  the  testimony  of  Theodore  Lubbe.  as  to  the 
value  ()f  these  skins.  Record,  1882.  line  48.  This  te.sti- 
iiiiiiiy  of  the  witness  Lublie  beai-s  directly  upon  this;  prop- 
(i^ition  that  I  am  now  discnssinj!;: 

•  Q.  Will  you  tell  us  how  many  skins  yon  purehoscd  at  Victoria  in 
'•  tlie  year  1^0,  and  what  was  the  average  price  ]»aid  ?  A.  10,75)7  seal 
•'  skins  in  salt,  average  price,  84  891,  882,'211.(i4. 

"  Q.  And  in  the  year  1888,  how  many  skins  did  you  purchase? 
•' (live  us  the  total  number  and  the  average  price?  A.  3,8U5  skins, 
■  seals  in  salt,  84. 3S  average. 

•   (,».  And  in  ttie  year  1889  ?     A.  50fi  skins  in  salt  for  82,900. 
3^^     •■  i).  That  is  an  average  of  85.74  per  skin  ?    A.  I  have  not  averaged 
"  tliciii.     YcH,  that  is  an  average  price  of  85.74  per  skin." 

Tlidse  were  my  Hguies  put  to  the  witness  and  I  find 
tliat  1  w.is  incorrect.  The  witness  adopted  my  figures; 
till'  statement  should  be  that  it  was  an  average  of  $.5  90. 

The  Commissioner  on  the  part  of  the  United  States:  — 
Wliat  page  is  that  of  the  argument? 

Ml.  Wairen:  I  think  it  is  not  in  the  argument.     I  am 

^;i\  iiig  this  testimony  as  bearing  upon  the  statement  that 

40 1  made  that  the  skins  actually  seized  oil  the  .schooners 

were  skins  taken  on  the  way  up.     And  I  cite  also  Record, 

r.ij'.t.  line  20,  bearing  on  this  contention. 

We  believe,  therefore,  that  the  market  prices  pievail- 
iii;;  in  Victoria  in  ISSC,  1S87  and  18S!).  at  the  outside, 
w.  re:  In  1880,  between  ^O..")0  and  ^7;  in  lss7,  ^.^j.no,  and 
l>v.t.  S7.20  to  if!7.7r). 

(Ill  behalf  of  (Jreat  Britain,  what  testimony  was  offered 
to  -.upport  th<>  contentitin  that  the  London  price  should 
piiivailf  For  IS80,  no  testimony  was  offered  as  to  the 
jopiiies  prevailing  in  the  f^ondon  market. 

Counsel  now  cites  Victor  Jacobson's  testimony  as  bear- 
ing on  the  pi  ict;  for  the  year  IS87 — Record,  page  270,  line 
;U  liiit  be  neglected  to  read  from  the  same  page  at  line 
41.  This  witness  was  not  e.xainined  as  to  the  market 
vahio  of  skins  in  Victoria,  but  only  as  to  an  individual 
sale  (or  bis  own  account;  and  be  was  on  the  witness 
st;iii(i  long  before  the  tpiestion  of  the  value  of  seal  skins 
\v,is  under  consideration.  Your  Honors  will  r<^call  that 
tail  tioiu  the  mere  page  of  the  Rtcord- 27(5  -for  the  value 
(lool  seal  skins  was  not  tak(>n  up  for  serious  considetutiou 
iiiiiil  about  pageissoof  the  Record.  He  was  not  cross- 
e.xaiiiiiied  relative  to  this  testimony,  and  it  iras  not 
lifil/nioiii/  tis  to  the  111(11  Ixct  rutin'. 

The  learned  counsel  referred  to  the  testimony  of  William 
Muusie,  page  111  of  the  Record,  line  1,  and  reail  tht;  testi- 


Ih'i 


H 


.     '  » 


H: 


► 


;i»s 


(Mr.  Warren's  Argnineiit.) 

nioiiy  there  found  as  evidence  of  the  vaUie  of  seal  skin.-^    t 
Victoria. 

"  Q.  Did  yon  (liBpofle  of  thoBe  Real  Hkin§  that  year,  and  at  wl  it 
"  pri(.-e  ?    A.  Yes,  I  Hold  tbeiii  for  97  per  shin  as  they  ran. 

"  Q.  Did  you  aell  them  in  the  suninier  or  in  the  fall  of  IHHO  V  A  ( 
"  sold  them  on  the  arrival  of  the  '  Pathtindor '  that  same  year." 

lo  Referring  to  the  date  of  that  sale,  which  was  not  ci;.  1 
but  is  in  the  Record  at  page  110,  line  35,  and  following, 
your  Honors  will  see  that  the  "  Pathfinder  "  in  that  vi  .^r 
left  the  Sea  on  the  4th  of  August,  and  proceeded  innni  ili- 
ately  to  Victoria,  according  to  the  testimony  of  Capt.im 
O'Leary.  Page  ^1)2,  line  4H  of  the  Record,  shows  thai  iIh' 
last  "  lowering  day  "  was  August  4tli,  and  that  she  left  I  lie 
Sea  August  C,  IHHJi.  This  was  not  testimony  as  to  llio 
market  value  of  sealskins  in  the  fall  of  18H«,  hut  tesii 
mony  of  a  particular  transaction,  one  sale  by  Munsic  in 

20  1*580,  and  was  given  before  the  question  of  the  valuf  nf 
seal  skins  arose,  and  the  witness  was  not  cross-exaniiin  il 
regarding  it. 

This  testimony  was  erroneously  cited  by  Mr.  Bodwell  tn 
show  the  market  value  of  seal  skins  in  18.H7— to  show  llmt 
they  were  worth  ^7.  1  have  read  your  Honors  the  testiindiiv 
which  shows  that  this  was  the  year  IHHC>,  and  that  com! 
sel  was  in  error  in  citing  it  as  bearing  on  the  value  in  Is^T. 
William  Mun.sie  did  not  give  this  testimony  in  relation  lo 
the  year  18S7,  but  in  relation  to  the  "Pathfinder,"  wliji  li 

30 It'ft  the  sea  August  »>,  18S(!,  and  arrived  in  Victoria  vi  1  y 
soon  thereafter.  This  witness  was  cross  examined  as  to 
the  price  or  seal  skins  in  1SS7  in  Victoria,  at  page  ilH  of 
the  Record,  line  5»!: 

"  Q.  Now,  leaving  out  the  amount  of  seals  you  got  in  1887,  cnn  vou 
"  tell  me  the  price  of  seal  skins  in  1887?    A.   A/ioiil  $(i. 

"  y.  Where  did  you  sell  your  seal  skins  that  year,  and  to  whom  ilul 
"  you  sell  them?  A.  Isold  2,320  to  Jos.  UUman,  of  New  York,  or  to  lii» 
"  agent  here." 

I  call  your  attention  to  that,  he  sold  them  to  Jost|)ii 
4t>  UUman   for  s^d.     But  the  witness  is  directly  contradicted 
here  by  Theodore  Lnbbe,  at  page  1884,  line  4,  where  In- 
stated : 

"  Q.  What  were  the  prices?    A.   The  '  Pcil/ifiHtler '  $.7.50." 

That  is  in  the  same  year,  and  bo  read  from  a  book,  while 

Murisie  did   not.     That  disposes  of    Munsie's   testimony 

which  was  cited  for  the  price  of  skins  in  1887  to  show  tiiat 

skins  were  worth  ^7. 

Mr.  Bodwell:— Was  not  the  witness  Lubbe reading  tnnii 

50  a  letter? 

Mr.  Warren:  He  read  from  letters  or  a  book.  I  think 
he  read  from  tissue  paper  copies  of  letters,  telegrams,  &c., 
but  he  swore  that  they  were  written  at  the  time  they  imr- 
ported  to  be. 

Mr.  Bodwell:  That  was  information  as  to  another  mans 
business,  for  he  did  not  buy  them.  It  was  information 
that  he  had  about  what  UUman  was  doing,  and  of  comso 
was  only  hearsay,  whereas  Munsie  was  testifying  about 
bis  own  business. 
"°  Mr.  Warren: — These  skins  were  Bering  Sea  skins,  as  is 
shown  by  the  testimony  immediately  following  on  i)age 
1884  of  the  Record,  line  10: 

"Q.  Does  the  amount  which  you  now  read,  85.25  and  95.60  per  xk in 
"  each— isthot  the  price  of  the  skins  of  these  several  schooners?  .\. 
"  Yes,  sir. 


■ 

m 

it 

"j'1 

•5 

I' ' 

10 


7!t!» 

(Mr.  Warren's  ArgiuiK'Ht. ) 

■■(/.  And  all  tlicHe  HkinH  wt-ro  Hehrini?  Hon  HkiuH,  or  nortUorn  ooast? 
•■  A.    K'-d,  sir;  IMiriiii)  Shu  skins." 

lie  j.^ivos  th«'  (liite  of  the  salt'  of  them. 

Tli(>  <;oiiiisel  for  (Jreat  Britain  read  from  the  ar^n- 
tn 'lit  of  the  United  States,  page  :it!o,  where  this  state- 
iiii'iit  is  made: 

•  In  the  arKumrnt  on  behalf  of  Circat  Tiritain,  CliarloH  H)iriuK  i« 
•■  clti'il  at  having  Hold  Iuh  Hkiiis  that  year  for  87.  If  CharlcH  S|>riuK 
••  Mild  any  Hkiiin  tliat  year  at  !f7,  it  was  imich  earlier  in  the  year 
"  tliiiii  the  earno  of  nkins  from  any  of  the  vesselK  wei/ed  would  have 
'•  li.iu  landed  in  Vietoria." 

Tliat  is  one  of  tlie  few  statements  made  in  oui  argn- 
nii'iit  without  a  citation,  and  it  tiierefore  misled  our 
ItMiiu'il  friends,  who  did  not  sean;li  for  tin;  testimony.  I 
will  iiho  the  citation  wliicli  w;is  omitted  from  the  margin 
win  re  the  statement  is  inatle  in  (»nr  aignment.  It  is  page 
•°h:i  (.f  tlie  Kecord,  line  :<.">. 

Mr.  Bodwell:  — I  read  that  evidence  in  my  aignment. 

Mr.  Warren: — You  read  a  part  of  it. 

"Q.  In  the  early  part  of  the  season  what  time  did  you  sell  for  97^ 
■■  A.  To  the  middle  of  September,  I  think." 


ii 


u 


.i,i^ 


»  1887,  can  vou 


The  witness  Spring  is  mistaken  about  the  facts.  He 
states  at  line  2(1.  same  page,  that  he  sold  the  catch  of  the 
••  Favourite"  at  $7  in  IShT,  and  he  then  proceeds: 

■Q.  Did  vou  sell  any  at  a  less  priee  than  87  in  1887  ?  A.  Yes,  I 
•'  .lid. 

■•{).  For  what  price  ?    A.  For  85. 

"Q.  That  was  the  spring?  catch  ?  X.  That  was  later  on  in  the  same 
•  veiir.  Late  in  the  season,  a  considerable  time  after  all  the  schooners 
•'  liad  arrived  in,  quite  a  few  skins  had  arrived  here,  and  mine  bein^,'  the 
•'  last,  of  course  everybody  had  been  supplied." 


til  to  Joseph 
contradicted 
4,  where  he 


book,  while 
5  testimony 
;o  show  that 


other  man's 
iiiformatiuri 
id  of  course 
Fying  about 

skins,  as  is 
ag  on  page 


85.50  per  skin 
cbooners?    .\. 


40 


■',0 


Now.  if  your  Honors  please,  let  us  see  if  this  is  so,  tiiat 
they  arrived  late  in  the  season.  The  witness  Spring  testi- 
titMJ  that  he  sold  for  ^5  in  issT.  Those  seal  skins  were 
iitccssarily  from  the  "  B^avourite,"  which  Cliarles  Spring 
owned  in  1SS7,  for.  on  page  lss2,  line  17,  it  is  disclosed  he 
sold  the  "Kate's"  skins  to  some  one  else,  not  to  Morris 
Moss,  hut  to  Theodore  Lubbe  in  1HS7,  and  therefore  these 
wtiv  the  skins  from  the  "Favourite,"  as  the  "Onward"' 
had  been  seized  in  18S(>,  and  Spring  had  only  tlie  three 
sclnioners.  Now,  the  "Favourite"  left  the  Sea  August 
•J'lth  (Record,  page  7Hn,  line  .'»(>),  according  to  the  testi- 
tuduy  of  Laughlan  McLean,  the  captain.  So  that  it  would 
ajipear  that  this  sale  of  ?(;')  was  the  sale  of  skins  from  a 
-I  lidDuer  that  terminated  her  sealing  season  about  the  time 
that  counsel  for  the  United  States  contend  the  sealing 
season  ordinarily  closed.  This  witness  says  tiie  schooner 
arrived  later  than  all  the  others.  We  have  the  log  of  the 
"Favourite"  before  this  High  Commission  to  tell  what 
time  she  arrived,  and  she  came  dii-ectly  to  Victoria. 

Dtarmg  upon  this  decline  in  price  in  ls>7,  I  read  from 
till!  Record,  page  1934,  line  21: 


(X) 


Did  it  considerably  decline?    A.  Yes 

Commencing   when,    1887V     A.  Commencing  about  October, 


•  (,». 

IHS? 

•  ().  When  the  Behring  Sea  catch  had  been  made?    A.  Yes,  sir. 

•  ().  What  was  the  decline?  .\.  Oh,  15  i)er  cent.  I  thinlc  it  was, 
iiliiiiit  15  per  cent. ;  seals  fell  oflfin  1887  and  the  early  part  of  1888  on 
iiciiuiit  of  the  tariff,  but  they  improved  in  the  fall  of  1888  and  through 
ISNilaud  18iM)." 


il: 


SflO 


(Mr.  Wairon's  Argument.) 

Consider  the  t«'stiinonv  of  William  Miinsie.  wlioisciii.  ,1 
"Till)  piont'er  sliii»|K'r  of  skins  to  London."  n-gaidiii^  lin. 
sale  at  Victoria  or  the  "Pathfinder's"  skins  in  1>^7  it 
^:>  .")H  ( Ht'cord.  1SS4.  line  4».  Does  that  tend  to  estahli,!, 
that  the  liOndon  |>ri(:e  should  he  awarded* 

Mr.  Bodwell  says  that  Joseph  Boscowitz  sold  skin-  m 
London  in  l^'ST.  and  therefore  all  these  (■laiinants  slioulij 
lohe  allowed  the  London  jirices  hecause  of  this  one  sale 

Mr.  Hodwfll:— I  do  not  accept  tiiat  as  a  statement  nt  inv 
argument. 

Mr.  Warren: — I  say  that  this  is  the  only  sale  prnvin  m 
fiondon  in  iss;  by  any  man  from  the  City  of  Victoii;i,  iinl 
if  the  London  price  is  to  he  awarded,  this  testimony  nnii-i 
he  the  hasis. 

K.xamine  the  testimony  in  tin-  Kerord  at  |>ap'  |s7l.  liiii' 
:').  and  proceedinn  on  that  p.'i^e.  an<l  what  does  it  siuiw; 
That  s<>.:{(i  was  the  Inghest  price  that  the  witness  W'.imn 
20 claimed  he  received. 

'■y.  What  (lid  tliov  uet  von  lioro  after  |mviiiK  uU  oxpenscV  A 
•'S(i.:«)." 

Then,  at  lin«!  4s,  ho  says  that  there  shonld  he  ahoiit  Il'.I 
cents  deducted  from  that  to  give  the  net;  and.  in  aiiotln  1 
jtlace,  he  states  there  would  he  more  to  take  off  for  p.u  k 
mg  and  storing  the  skins  in  Victoria  if  he  had  not  lifcii 
l)rovided  with  his  own  place.  That  is  the  only  testimony 
to  support  this  demand  for  st;.r)0  in  London,  and  docs  it 
30 support  it? 

I  stated  that  this  was  the  only  sale  in  London  in  I^^T; 
1  was  referring  to  BviiiKj  Sat  skins.  The  only  other  tos- 
tiniony  in  the  Hecord,  and  I  say  it  advisedly,  of  any  ^alo 
in  London  in  issT.  is  the  testimony  of  Jacobson.  wliidi 
was  a  sale  in  the  sjjring.  In  that  connection  1  read  fidin 
the  testimony.  Record,  page  lss4,  line  til: 

"Q.  lu  tbo  year  1887,  you  told  us  that  JoHcph  Boscowitz  was  tin' 
"  only  person  you  knew  of  who  sent  skins  to  London  directV    .\.  Yes, 
"  sir. 
40     "Q.  Ho  WHS  the  onlv  person  vou  knew  of  here  in  Victoria  wlio  did 
••  that?    A.  Yes,  sir."' 

The  witness  Captain  Warren,  who  gave  this  testinKniy 
ct)nccrning  the  sale  in  London,  was  not  testifying  in  re- 
gard to  tin'  market  vulni'  in  London,  but  confined  his  tts 
tiniony  entirely  to  the  returns  of  one  sniall  sale.  Joscpli 
boscowitz  was  a  dealer  in  fur  skins  in  the  City  of  VictorlM, 
and  before  I  leave  this  question  of  the  value  of  skins,  i 
will  show  that  William  Munsie,  the  other  ship|)er  to  L<iii 
rQdon.  was  also  dealing  in  seal  skins,  buying  them  in  Victoiia 
and  reselling  them  on  the  I^ondon  market. 

The  counsel  for  the  United  States,  wlien  this  question 
first  aiost)  as  to  the  uutrket  rafne  of  seal  skins,  ol)jectt'(i  tn 
testimony  of  this  nature,  which  was  confined  to  a  siiKjk 
tidiisdct/on.  This  objection  is  on  the  Kenord  at  pa^e 
lst;L>,  line<i.s,  and  is: 

"  Mr,  Dickinson: — Permit  me  to  object  to  the  testimony  of  a  siu),'li' 
"  sale  l>y  a  single  owner  in  the  City  of  Loudon. 

"  Mr.  Peters :— 1  will  ask  the  (general  (luestion  as  to  what  they  realized 
'•  in  the  City  of  London? 

•'Mr.  Dickinson: — We  object  to  itasau  incompetent  method  of  |)niv- 
"  ing  the  value  in  Victoria,  and  as  not  competent  evidence  of  the  Luu- 

don  market  oven." 


60 


The  learned  counsel  for  Great  Britain  says  that  aftir 
tile  year  1888,  and  in  the  year  isss,  all  sealers  and  owners 


ictorin  wIki  ilicl 


801 

(Mr.  Warion's  Arguinunt.) 

of  sfaliii);  scliooiiers  would  nocossiirily  havo  shipixMl  tlieir 
-kins  to  Loiiiloi),  ami  lie  read  from  oiio  placMf  in  Tln'odoro 
I, iiltlw's testimony  where  lie  madn  a  f^cnoral  statenit'nt.  I 
will  supplement  the  residing  of  that  testimonv  with  the 
,1  (inate statements  given  hy  Theodore  Luhheo^  tiio  facts. 
I  nad  from  page  IMi,  hoginning  at  line  2<): 

••(J.   In  the  year  1H8H,  who,  brnide  yourm-lf,  waH  |inri-lMkHiii(<  HkiuH 
10  ■   ill  Vu'toriay    A.  Tliut  ih  prrtty  liunl  to  Huil  out.     I  think  then!  were 

•  vi'i-y  fnw  Hkiu8  sold  Lure  tbat  year.     They  were  all  Hhippcd  by  the 

•■  iiWUl'M." 

I  road,  if  your  Honors  please,  a  statmunt  from  the  same 
witness,  at  page  IHS.'),  liue  17: 

'  Q.  YdU  iiioiilionrd  the  nami*  of  Williiiiii  MniiHii-  who  did  tliiit,  und 
■   I  want  to  know  now,  if  you  havo  u  niciiioninduni  of  unv  oni'  t'lm'  who 

•  ,li(l  that  in  IHHHV    A.  I'thouKht  you  ha<l  got  thiongh  with  IfWM.     Mr. 
•■  MuuHi>>  was  the  piunuer  Hhijiper." 

20  We  iiave  seen  that  Munsie  sold  skins  in  Victoiia  in  IHS". 
Tlii'iefore  if  he  was  the  pioneer  shipper,  he  was  the  only 
sliijiper  in  l.ss.»<,  or  the  tirst  shipper,  and  the  iiecord  dis- 
cliises  only  one  other  small  sale,  and  I  will  give  llie  cita- 
tion. It  is  jiage  1KH."»,  line  HO,  where  the  testimony  refers 
to  the  shipment  to  Ullman  &  Company,  and  of  tlie  skins 
(it  the  "  Juanita"  in  I.sh.h,  prohahly  to  Lampson.  That  is 
tlic  oidy  other  te.stimony  in  this  entire  Record  concerning 
the  sliipment  of  skins  to  London  in  IW.S.s. 
At  page  l!S8«»  of  the  Record,  line  45,  Luhho  testifieil: 

30 

•■(,).  Xow,  Mr.  Luld)o,  referring  to  your  hnokH  there,  will  you  tell 
•'  till'  ClominisKiouers  the  namen  of  any  other  parties  than  Munsie  \ 
"  Companv  who  sent  skins  to  London,  on  their  own  aecouut,  in  the  year 
'■  lHH<r>    A.   I  cannot  tell  you." 

Referring  to  the  Record,  page  18<!7.  line  1,  the  testimony 
of  William  Munsie,  we  find  him  stating: 

•  i}.  In  1H87,  wore  you  not  the  only  one,  exeejit  Captain  Warren, 
"  wliii  shipped  skins?     A.  I  did  not  ship  any  in  1H87. 
■•  Q.  Did  you  know  of  a  single  otherowner  of  seal  skins  who  shi))ped 
40  ••  to  tile  Loudon  market  the  catch  of  18Hr>,  or  the  cateh  of  1HH7V     A.   I 
"  (111  not.     lioscowitz  probably  shipped,  but  I  do  not  know. 

"  Q.  And  for  the  catch  of  18S',>?  A.  Cai)tain  ^Vnrren  is,  jirobably, 
■'  the  imly  one  outside  of  the  Hudson  Hay  t'oini>any ;  if  he  did ;  I  do  not 
'■  know  whether  he  did  or  not.     I  cannot  answer." 

Captain  Warren  did  not  ship  in  1889  for  he  was  not  in 
iiusiness. 

Tliere  is  the  testimony  of  William  Munsie  himself  as  to 
the  shipment  of  skins  to  London  in  the  last  year  in  con- 
troversy here.  There  are  some  small  amounts  claimed 
5° for  the  value  of  seal  skins  in  18i)2,  but  they  are  not  im- 
portant. 

Referring  to  this  last  year,  we  have  Boscowitz,  The 
Hudson  Bay  Company,  and  Munsie,  all  dealers  in  fur  seals. 
That  the  Hudson  Bay  Company  was  dealing  in  skins,  of 
course,  does  not  need  to  be  estal)lished.  Joseph  Boscowitz 
was  a  dealer  as  established  by  the  Record,  and  that  Will- 
iam Mimsie  was,  I  will  now  proceed  to  establish.  Record, 
page  l.'JoO,  line  55: 

(x)  "  Q.  You  said  a  moment  ago  that  you  had  no  memoi'y  of  how  many 
"  Were  lirought  down,  but  you  remember  thiit?  A.  I  don't  remember 
"  huw  many  she  brought;  I  know  I  hoiighl  Nixon'a  skins  I/kiI  i/enr. 

"(,>.  How'  much  did  you  pay  for  them?    A.  I  don't  remember. 

"  i).  (!an  you  remember  the  amount  i)er  skin?  A.  No,  I  don't  re- 
"  mi'iuber  the  amount  per  skin  that  I  paid  for  them. 

"  i).  Nor  the  number  of  skins?     A.  No. 


::» 

Y<«H, 

"O. 

thr 


(Mr.  VVniicn'H  Arniitnt'iit.) 

Ami  linvf  nolliiiiK  to  nIiowV    A.  Tlic  nci'iinnt  Nnlon  will  ibow 
AiToiiiit  of  '  Allii'  I.  AJKiT  'y    A.   1  tliitik  mi>. 
Ari>  tlit'V  M<>)>uriit<'tl?     A.   I  tliiiik  hu. 

Till' HiiiiKt  lii'iMiiiiit  Hitltm  to  wliit'li   villi  liiivu  jiiHt  riiffrruil?     \ 
I  think  tlii'v  art'  tlii'  i>riKiiiiki  iti'i'imiit  hhIi'h. 
Winilil  it  Htiiiw  tluMiiiiiilii'r  of  tlir  '  Arii'l'H  '  iikiiiH  No|iariiti'  fi' m 
llii'i'H?    A.   No.  I  liiiil  tintliiiix  til  ilii  witli  tlii>  'Arii'l'H.' 
"U.    I  iloii't  want  till'  lii'i'iilliit   NulrH  of  vniir   IiOliiliui   iii(i'iit  of  tin. 
"  '  Allii' I  .VIkit.'     I  wuiit  what  v(iu  puiil?    .\.   I  tlim't  ri'iiicmlii'r  ul,;,t 
'""  I  [mill. 

"  <^.  'I'lirii  till'  ni'i'oiint  HitlrH  froni  your  Loiiiloii  itKi'iit  would  n.ii 
"  hImiw  wliitt  volt  |iiiiil  Nixon  for  tin'  '  .Mlin  I.  Al^i'r'H'  HkiiiH,  u.iii.l 
"it?    A.  No,"  it  wouiil  not  mIiow. 

"  Q.  .Villi  wi'i-i'  till' '  .Xrii'l'i*'  BkiliH  '.Ml'i?  A.  Hovi-n't  tho  ri'innii,! 
"  iili'ii  wlmt  Ihi'v  wrri'. 

"if.  Von  liiiv'.'n't  till-  ri'iiioti'Nt  iili'ii  within  50(1,  Imvi'  yon?  \.  N,,  | 
"  liiivi'  not.    I  linil  nothiiiM  to  ilo  with  tliu  hninllinK  of  thi'iii. 

"I).  |)iil  the  '  .Vrii'l  '  hi'iuI  iIowii  HkiiiM  on  tlio  '  Wiiinlrrcr '?  A  | 
'■  ilon't  I'vi'u  know  tliiit  tlio  '  Arirl  '  Hi'iit  Hkiun  on  tin-  '  Wiimlcrrr. ' 

"  Q.  .Villi  yi't  you  liouKlit  Nixou'M  HkinH?    A.  Tho  Nixon  HkiiiN  un,. 
"  not  tlir  nkiiiM  of  till'  ■  .Vrii'l. ' 
20      >'(f,    1  niriint  till'  •  Allir  I.  .VIkit';  that  Ih  my  miNtitki-;  tlir  '  Allir  I 
•' Al^rr. '     WiiH    till'   iiinoiint    of  tho  '  Allio    I.  AlK<'r'»  Hkiim  that  wee,. 
"  ItrouKht  ilown  on  tho  '  Wiiiuli'ri'r '  WVi'f    A.   1  ilon't  ri'mcnilii'i'  Imw 
"  iiiiiny  hIh'  ilid  liavi',  or  wlii'thcr  even  it  waw  thai  yi'iir  or  not. 

"{).  You  don't  ri'nirmlirr  whcthor  tin?  HkinwIioUKht  from  Nixon  »iro 
"  till-  rati'li  of  tho  '  Allii'  I.  .Vlnt'l','  or  wlii'thiT  that  waH  tin*  vnir  \\w 
"  '  Wunilpri'r  '  lirouKht  down  tho  Mkinn  yon  lionKht?  A.  I  ilon't  i,.. 
••  nii'mluT.  In  l8!Ht  tho  'MiKchii-f  went  \i\>;  it  may  havo  boon  ilmt 
"  yi'ar. 

'"  (^.  What  did  you  rofor  to  your  ai'i'ount  salon  for?     Did  tlioy  n"t  ^m 
"to  London   iu  tho  Hnm''  kit  with   tlii)   '  I'athflndor's  '  NkiuH  uiiil  tlic 
'•'Viva'n'?     A.  Them       int  HaloH  for  Movoral  yoarH  aro  thoro. 
30      "  Q.   Do  not  thoaoi'i  waloH  of  tho  '  Allio  I.  Al«or'H  '  tikinM  touliic'li 

"  you  havo  roferrod  11  lU'o  tho  Hamn  aooouut  HaloH  an  tho  nkiiis  u( 
"tho  'Viva 'and  '  ratlumdor,' your  own  Hhijm';  A.  It  would  hv  Ww 
"  Hanio  itooount  HaluH;  tho  namo  aooouut  naloH  will  hIiow  tho  hiiIi'  "I'  lur 
"  HkiUH. 

"i.).   Did  you,  at  tho  time  yon  Nhippod  tho   HkiuH  from   tin     I'litli. 
•'  ttuilor  '  and  •  Viva'  to  Loudon  for  sale,  Mini)  nkiuH  from  the  '  Alliu 
"  I.  .Vl^or'  that  you  liouKlit  from  Nixon?     A.  Vch. 
"  if.   .Vnd  that  waH  in  iHHit,  wnK  itnot?    A.  I  am  not  Huro  of  tho  your." 

It  wa.s  lss!».  lH'cau8L'tl)at  was  the  yenitlie  "WaiKlcni" 
went  to  ShiiMia^in  I.slands  That  is  ronchisively  »sl,il) 
4oli!sliO(l,  hi'causo  it  was  at  the  time  the  "  Wanderer"  was 
chartered. 

Tlierefore.  on  the  testimony  of  these  men,  and  tlii'se 
men  alone,  who  were  dealing  in  seal  skins,  do  counsel  sii'k 
to  claim  tlie  London  market  for  others  who  were  not  (Iciii- 
ers  in  seal  skins  but  who  sold  them  on  the  Victoria  mar- 
kot. 

Captain  Warren  is  cited  hy  the  learned  cotmsel  as  tlioiif;!) 
he  testified  that  he  intended  to  sell  his  skins  on  theLomloii 
market.  Captain  Warren  ^ave  no  such  testimony.  His 
50  testimony  was  confined  to  one  }';M;t,  and  that  was  to  one 
sale  in  London,  and  he  nevei  testified  that  he  intendoil  to 
sell  on  the  London  market,  and  such  testimony  from  him 
cannot  be  found  within  th<  covers  of  this  Record. 

Mr.  Bodwell:— Did  not  I  read  Captain  Warren's  testi- 
mony? You  have  an  unfortunate  way  of  stating  my 
arj^ument  that  I  do  not  a}j;ree  to  at  all. 

Mr.  Warren:  — I  did  not  know  that  I  quoted  your  arjiu- 
ment. 

Mr.  Bodwell: — No,  but  you  said  that  we  based  our  claim 
60 on  that  one  sale  testified  to  by  Captain  Warren. 

Mr.  Warren:— That  was  the  only  sale  that  Captain  War- 
ren testified  to.     It  is  claimed  in  their  brief. 

Now,  I  read  from  the  affidavit  of  Captain  Warren.  \'ol- 
nme  IV.  of  the  American  Reprint  of  the  Proceedings  at 
Paris,  page  Itlo,  regarding  his  intention.     What  did  he 


nli'N  will  nIii 


it  nifi-rrod  y     \ 


Id 


80» 

(Mr.  NVjiiit'irH  AiniiiiH'iit. ) 

H(iv  in  IHH7,  tlu'  HjiiiH'  year,  (•(iiircriiiii^j;  wliicli  he  j;!ivt'  tint 
ti'stiiiiony  of  tlio  oniv  Halt>  in  honilon^  I  iriul  nnra- 
Ki.i|.li  14:  ' 

"  'I'lii'  |>ric«  |M'r  will  Hkiii  rliiirKcii  in  Kx.  '  A,'  iiutiu'ly,  5  ilol.  Whv  per 
"  hkiii  for  tli«  Hi'ul  NkiiiH  on  liounl  tli<'  '  Uriici' '  wIu'm  Mci/iul  iiiitl  tukcii 
"  nut  lit  I  lillllisku,  iras  t/m  imnkil  juiin  ul  Virlitiiii  "I  tlii'clusii  1/  tin:  srul- 
■■  inij  si'iiniDi  of  1HH7  ii'/ifii  llir  ciilrli  uf  Ih'  '  th'ure  '  fiif  llint  neniitin,  in  lln' 

.ni'iiiiirii  aiiimr  of  rrtiih,  iroii/il  loirf  I'rfii  /ilnieil  on  tlin  murkvt." 

I  ieii*l  from  |>:iK«>  t)>(  of  IId;  sanit*  volninuof  tliu  (iociuva- 
inii  of  I  aptain  VVarn-n: 

"  And  till'  jirii't'  per  Hkin  cliiirKril  Tor  tlii'  nnti  HkinH  tiiki'n  from  the 
■■  '  Aiiliii  Hi'ck  '  wlii'li  Nt'i/ril  IS  llo'  iii'iikii  jii  Iff  Iter  skin  runt  ul  iil  i'lr- 
'•  Inrio  ii/oirs'iiil  lit  Ifitt  cloHf  if  llif  nmsitii  (■/'  ISSt,  irlifii,  in  lliH  orilinuri/ 
•  (iiiiin- of  frmlf:,  flif  ciihh  of  l/m  '  Anmi  lirvk'  wmilil  Imvt'  \hh'U  Jiliicmt 
■'  Mil  >./((/  timrki't." 


(I  «  I 


uro  of  tliovcar. " 


;o 


ill 


Ml.  Hodwfll:- My  aininncnt  as  to  Captain  Waiicn  wuh 
tlii-~:  'i'liat  lit'  was  a  pai  tnor  with  Hoscowitx,  an<i  as  a  niat- 
1(1  .if  law,  would  Ih'  t'ntitU'd  to  what.  ljos(;owit/  j;ot  out  of 
ihf  -all'. 

Mr.  Waiit'n:— If  they  will  conflno  it  to  tlic  skins  of 
(',i|it.iiii  Wancn.  and  not  liaso  tlwir  claim  for  tliu  value  of 
ntlit'i  >kins  upon  that,  my  argument  will  he  without  mean- 
ing:, lint  that  is  not  the  fact.  The  fact  is  the  c(»uiiselclaim 
liie  l.iiiidon  in'ice  for  all  skins  and  the  only  tesliiiiony  with 
it'jiard  to  that  is  the  testimony  to  which  I  am  referring?. 
If  the  contention  is  that  William  Munsio  should  have  the 
1,(111  loll  price,  and  every  other  sealer  tho  Victoria  price,  the 
1  (intention  and  statement  of  tho  learned  counsel  would 
Imve  some  meaning,  hut  the  argument  in  chief  fordreat 
Hiiliiin  demands  the  London  price  for  every  claimant  he- 
Inic  this  Commission. 

Iliave  |iassed  the  year  J.s.sT.  having  considered  all  the 
t> -limoiiy  in  the  Hei'ord  as  to  the  market  valiu!  in  that 
vcir. 

I'l.i  the  year  1SM».  the  counsel  for  Gicat  Hrilain  claim 
s||  ,1  skin,  and  that  is  hased  on  the  testimony  of  a  singk* 
witness,  William  .Munsie.  ^vho  purchased  seal  skins  in  tho 
Vi(  tdiia  market  for  sale  in  liondoii.  I  read  from  the  testi- 
iiiuiiy  of  William  Munsie,  at  page  If^OH,  line  .'iU; 

"  (,).  .Vnd  vim  Imvc  miidc  u  calcnliition  lu'ro  wliowinK  wlmt  tliev  pohI 
•  |Mi-  ^kin;  ("m  tlic  Hrst  lot,  S7"i  skiuH,  .^7.S»'21 ;  is  tliiit  riKht?    A.  .s7..'>in. 

••  <).  Now,  tlicn,  kindly  look  at  tho  next  Hi'hooui'r;  you  liiive  thuHum« 

licrc.  "Hold  'i,2'2(')  sonlxkiuH,  cx-Mchoonor  'Viva,'  Ih  that  another  of 
■  till' same  Hchoonrr's  catch?  A.  It  i«  tho  same  schooner'.^  catch  for 
■'  tlic  same  year;  that  in  for  lielinn^  Soa. 

"(.).  TfU'mc  how  much  that  netted? 

*  *  *  a  i^  *  *  * 

•  Direct-examination  l)y  Mr.  Peters  continued: 

■  ().   Will  you  Kive  me  the  net  of  thafr     A.   811. (MlJ. 

'■().  (live   me  the  date   of  the   nales   in   Loudon?    .\.   i::]th  dav  of 

Niivcmlicr,  IHHJt. 

•  (,».   Both  thcHo  account  Hales  are  sales  in  188!>?     A.   1H80. 

■•{}.  And   they    both,  apparently,  took  place  on  the  same  date?     A. 

Tlif  same  date." 


i 


.\iiclioa   sales  on   the  same  date  netting  such  ditl'oient 

|ii  i( cs.     Are  those  sales  to  he  tho  hasis  for  determining  the 

(„)i'\ciMge  market  value?     1  am  aware  that  one  of  these  was 

;i  (lillVrent  catch  than  the  other.     I  will  continue  reading: 

■  (}.  One  was  the  spring  catch,  yoii  take  it,  and  the  other?    A.  The 
■  HciiiiuK  Hea  catch. 
••{).  The  smaller  numl)er   being  the  Behriug  Sea  catch?     A.   Yes, 


H0+ 


iO 


(Mr.  VVaneu's  Argument.) 

"Q.  Have  you  got  another  iiccount  Hales  here  for  tbe  game  viiir, 
"  1889,  for  a  sale  taking  plaoo  at  the  name  time,  of  the  schoonir 
"  '  Marv  Taylor"?     A.  Yew,  wir. 

"Q.  XV'ill  you  tell  nie  how  many  HkinsV     A.  ■16/  skins;  uet,  l^N.K.i 

"  The  Commissioner  ou  the  part  of  the  United  Htates: — Have  yon  fjot 
•'  the  dates  of  the  sales? 

"Mr.  Peters:— The  preeise  date  of  the  sales  is  marked  Octiilur 
"  30th.  t«8!t. 

"  The  Witness:— They  are  all  dated  the  30th  day  of  October,  imw. 
lO      "  Direct-examination  by  Mr.  Peters  cimtinued: 

"  Q.  Did  you  sell  any  of  the  '  Mary  Taylor's  '  catch  earlier  iu  that 
"season?  A.  Yes,  in  .Inly;  the  4th  day  of  July.  There  were  .V.s/ 
"  skins  sold  at  net  $8.  -77. " 

That  is  his  testimony  regarding  sales  in  London,  but 
there  is  nothing  there  to  sliow  the  market  price  in 
London. 

Commissioner  on  the  part  of  the   Uiiiteil  States:— Ymi 
do  not  contend  that  lie  got  more  than  the  maiket  ]>riif. 
do  yoii^ 
^°     Mr.  Wairen:— We  have  testimony  here  in  the  Reconl 
of  wliat  the  market  price  was. 

Commissioner  on  the  part  of  the  United  States: — If  you 
have  evidence  that  estahlishes  the  fact  that  he  got  a  i)iice 
above  the  market  ]>rice,  I  slioiild  like  to  see  it. 

Mr.  Warren:  — We  have  positive  evidence,  or  more  posi- 
tive evidence  than  that  of  Mnnsio's,  which  I  will  read  to 
your  Honors.     Page  1!);U  of  the  llecord: 

"  Q.  So  that  a  man  in  Victoria  with  a  cargo  of  suited  seal  skins 
■  must  look  to  London  for  his  market  ?  A.  They  are  constantly  sliift- 
'ing." 

Now,  I  will  read  the  testimony  of  this  witness  Luhhe. 
as  to  the  market  valne  of  seal  skins  in  London  in  18M9, 
page  IDHt),  line  Id: 

"  Q.  Yoti  have  been  asked  to  say  whether  a  certain  sum  would  be  a 
"  fair  average  of  the  northwest  coast  catch  as  Lampson  classified  tliem 
"  in  1889,  and  yon  also  say  that  tliat  is  not  a  fair  way  to  get  an  avernfjc 
"  price  forBeliring  Sea  skins.  Can  you  give  us  the  average  j)rice  for 
"  Behriug  Hea  skins  for  the  year  1889  ?  A.  Y'on  im>an  a  sum  iu  Loudmi 
"  and  here  ? 

"  Q.  Take  it  both  v/ays,  if  you  can,  or  if  you  cannot,  give  ns  either 
"  one  way  or  the  other  ?  A.  Tlie  jjrice  liere  was  <57.7.5  and  .'«7.(i()  in 
"  1889.  Til e  price  in  Loniion,  I  s/iaulil  think,  iroulil  riinqe  hflirefii  $11.  Id 
'^  mill  9!>.5I);  the  net  results  to  shippers  exporting  skins  would  !«■ 
"  between  S9.40  and  S9..5(),  the  average  results." 

Commissioner  on  the  part  of  the  United  States:-  -Tiiat 
is  the  average  for  the  season. 

Mr.  Warren: — That  I  am  going  to  show  is  the  average 
for  the  fall.  His  testimony  as  to  another  sale  in  London. 
5oat$7.7»i.  in  ISSIt  (at  page  iiCSS,  line  Hl'),  refers  to  a  i»ar 
ticnlar  sale,  and  not  to  the  market,  hut  is  of  as  nuich 
value  as  William  Munsie's  testimony  of  a  sale  at  ^11.  I 
am  referring  directly  to  the  market  now,  and  at  line  .M  of 
the  Record,  page  1938,  the  following  appears: 

"  Q.  The  average  price  of  the  Hehriug  Sea  catch  that  you  gave,  Iiow 
"did  you  arrive  at  the  average  which  you  gave  for  1889?  A.  In  l/n' 
"  iiiiliinin,  October  3IHh,  1889,  t/iere  were  tiro  sules  in  Liimlini,  oiif  of 
"  l-'i,()00  skins  for  C.  M.  Liiinpsnn  &  Compiini/,  nreriKjing  'l'>  sliilliiif/i : 
"  iind,  on  the  siime  dm/,  CuherwelL  Brooks  tfc  Gompnny  sold,  I  think, 
"  10,4111),  iind  the  nrenige  wns  4  (  shillini/s  and  6  pence. 
'>0  "Q.  You  nuide  the  average  j)ri('o  from  these  two  sales?  A.  Yes; 
"  they  were  the  two  loading  sules  in  that  year." 

There  is  positive  testimony  of  the  sales  of  Culverwell. 
Brooks  &  Coni|)any,  and  C.  M.  Ijanipson,  in  the  London 
market  in  the  fall  of  that  year,  issjt,  given  by  the  onlye.x- 


40 


H05 


e  in  the  Record 


.1  States:- -That 


(Mr.  Warren's  Argument.) 

|M  it  on  the  stand,  ami  I)y  the  only  witness  who  testitied 
as  to  the 'market  value  in  London. 

.At  Record,  page  l!»H!>,  line  8(».  the  witness  mtikes  the 
<i}-('ia(je  net  at  Victor  hi  %9.-i0.  There  is  in  this  Record 
positive  testimony  substantiating  the  testimony  of  the 
witness  Tlieodore  Lubbe,  as  to  the  sales  made  in  London 
liy  Lan)pson  &  Company  in  that  year. 
10     .\t  page  5t(2,  Volume  :i,  American  Reprint,  it  is  stated: 

"Thiit  in  the  your  lH8i),  ;10,5()3  sonl  HkiuH  were  sold  in  London,  the 
•  iivora^e  price  jjcr  wkin  l)eing  3it  HhiMingH,  5  d.,  which  ix  upproximulelt/ 
"  mO.-JT  per  Kkiit," 

Tlie  testimony  adduced  on  behalf  of  the  United  States 
shows  the  market  juice  prevailing  in  Victoria  in  the  year 
l>sit  to  be  $7.00.  At  page  1S!»8  of  the  Record,  line  2H,  the 
witne.ss  Tlieodore  Lubbe  says  that  the  average  price  in 
Viitona  was  "  ^7. tin  ";  and  at  Record,  page  1894,  line  24, 

:otli('  same  witness  .says  that  the  highest  offer  was  "  $7.(10  " 
for  skins  in  Victoria  in  that  year.  No  other  shipper  to 
London,  outside  of  Munsie,  Boscowitz.  and  regular  dealers 
like  the  Hudson  Bay  Company.  No  witness  testified. 
Willi  the  one  exception  of  Mr.  Richard  Hall,  that  lie  even 
intended  to  ship  skins  to  London  in  1889;  and  a  claim  is 
made  for  the  London  price,  based  upon  the  record  of  a 
siii^Me  sale  given  by  one  witness,  William  Munsie,  who 
was  a  purchaser  of  seal  skins. 
The  counsel  for  Great   Britain  seem  to  lecognize  that 

30  unless  binding  contracts  were  shown  to  have  existed  be- 
tween the  owners  of  a  caigo  and  the  purchasei's  of  seal 
skins  in  Loiidcm,  the  ordinary  rule  which  declares  that  the 
price  prevailing  at  the  port  of  departure  would  govern, 
would  be  here  applied,  for  they  now  advance  the  conten- 
tion that  all  the  sealers  iiiteniled  to  place  their  catch  of 
skins  upon  the  London  market. 

The  witness  Warien  is  most  strongly  relied  upon  to 
support  this  contention.  We  believe,  if  your  Honors 
please,    that   the  Court,    in   considering  a  claim  of  this 

40 nature,  will  inquire  into  the  history  of  this  intention, 
and  investigate  as  to  when  it  first  arose.  I  have  read 
from  James  D.  Warren's  own  affidavit,  where  he  stated 
that  in  the  ordinary  course  of  events  the  seal  skins 
of  the  "  Anna  Beck"  tvonld  be  placed  on  the  Victoria 
market :  and  that  the  market  price  prevailing  in  1887 
was  $.').. 5(1.  Nowhere  in  this  Record  is  there  any  tes- 
timony that  he  intended  to  sell  in  London  in  188!»— and 
moreover,  he  was  not  in  business  in  188!>.  I  will  cite  the 
Koiord  to  show  that  Warren  was  not  in  business  in  1889. 

50 Record,  page  1872,  line  15: 

"  Q.  Now  you  were  in  buBinefls  in  1889,  of  course,  iu  Victoria?  A. 
"  I  dou't  think  I  was  in  the  Healing  buHinesH  at  all. 

"  Q.  Were  you  acquainted  with  the  market  value  of  seal  skins  in  the 
"  miirket  of  Victoria  in  1889  ?    A.  1  don't  remember." 


H    ■     f 


'[ 


He  gave  no  testimony  regarding  his  intention  in  1889, 
and  he  had  no  skins  for  the  value  of  which  he  makes  a 
claim  in  that  year. 
The  learned  counsel  for  Great  Britain  stated,  in  order  to 
fofiirtlier  establish  this  doctrine  ot  intention  to  sell  in  Lon- 
don, that  the  catch  of  the ''Lily"  and  the  "Black  Dia- 
mond "  would  have  been  placed  on  the  London  market, 
h((  ause  Morris  Moss,  who,  according  to  the  registry,  was 
till'  owner  of  these  vessels  at  the  time  of  seizure,  was  the 
aj^int  for  Liebes  «Sc  Company,  of  San  Francisco,  and  conse- 


N: 


800 


.1   -Mi 

'i  i 


(Mr.  Wanvii's  Ar^imu'nt.^ 

qiUMitly  would  liavo  ri'fi'ivfd  I  lie  Loiuloii  |)iir<>  Cor  tin- 
lafcli  madi'  l>v  his  vt'sscls.  I  rcfir  your  Honors  to  th,. 
Ki'c'ord.  |)aj;t>  issti,  liiioM,  to  ascertain  what  Morris  M..-, 
was  doiiij;;.  Tlu'odoro  Liihl)(>  was  uiuU'r  oxaiuiiiatioii,  and 
the  followiiifj;  appt-ars  there: 

"  t^.  Mr.  liulilio,  I  tliiiik  ynu  snv  tlmt  tlio  m'i\\  Hkin  ImycrH  wimu'  \>n\ 
"  int;  ill  Vii'toi'iii;  tlioy  wi'io  Imviut;  to  ri'Hi'll  on   tlio  London  iimikit. 
lO"  woro  tlu'V  not  '!     A.    IIV//,  mil  eiilirfli/.      Far  iiisttiiicf,  Ihr  Lielu-^,  .nrl 
"  till'  I'lilmmis  hiiiiiilil  for  iii:i)iii/iiiiiiri)ii/  /iiiriii'Hf^. 

"  Q-    I'll'  rrsi  wouKl  lio  sent  on  ti)  Linnloii  to  In'  rcHolil  ?  .A.  Yt'.'*,  ^ii    " 

Lii'hos  iSc  (.'oiiipaiiy,  rcpreseiiti'd  l>y  Morris  Moss,  wt  ir 
not  huyiii^  to  rosell  on  the  London  inarket.  .Xfcoriliii^ 
to  the  only  t'vid(>nci' in  tht>  Keiord.  they  were  hnyiii;;  loi 
inanut'actiirintj;  purposes,  and  were  spciMlically  nicnlinii.  ,| 
by  the  only  witness  i-et'errinu;  to  them,  as  purchasers  nt 
skills  which  would  not  he  sohl  on  the  liomlon  market. 
jQ  This  sauu;  man,  Morris  Moss,  made  an  allidavit  (nn 
tained  in  Volume  4,  .Vmeriean  Kepruit,  page  JUT,  whtivin 
he  saitl: 

" 'I'lu'  viiliu' of  tlic  sciil  HJiins  tiikiMi  from  llu'  '  Fjily,' un  set  oiil  in 
"Biiitl  stati'inciit,  wiiH.  on  or  iilumt  the  t\rst  iliiy  of  (Vtolicr  (wlnn  in 
"  duo  courNO  till'  .«;/</  n.'ififl  inntlti  Inirc  iletirered  her  skins  ,il  \'ici,,i  i.i 
"  ii/'arrsiiiih,  IrlS.OO  jirr  s/tiii." 

So  that  there  is  not  a  eontraet  in  evideui'e  hetwecn  aiiv 
sealer  and  a  London  piirchasi'r.  noi'  is  theieany  evidence, 
,  otitside  of  that  of  Uiehaid  Hall,  that  the  intention  was  to 
■''^  sell  their  skins  on  the  London  market  even  in  the  ycai 
18^!•.  When  1  make  that  statement.  1  exelude  W'iliiain 
Munsie  and  the  Hudson  May  Company,  who  were  pin 
chasers  and  dealers  in  seal  skins. 

In  eonsideriu};- whether  or  not  the  London  priee  slinuld 
prevail,  the  nature  ot  the  London  market  should  he  talvtn 
into  eonsiil.  latioii.  These  sales  in  London  were  at  piililic 
auction  (  U'ccord.  page  ilMt*.  liiu' ;>7;  Volume;},  AmciKan 
IJe|Mint,  page. ">.">!).  .\t  these  auction  sales  the  catch  ul 
one  vessi'l  w.isotlen  sold  at  a  nmch  higher  ligure  than  llic 
'*°catch  of  another  vessel.  1  read  troin  Wecord,  page  |s7e, 
line  !■_'.    where  William  Munsie  himselt  is  testil'ying: 

"  Q.  You  wiTi'  aski'il  an  to  tlic  diH'crcnci'  liotwi'i'ii  tlii'  prins  of 
'■  Hkins,  Ih'Iwi'i'H  one  vi'sscl  and  anotln'r.  Do  not  otlicr  ai'i'ouiil  miIi"- 
'■  hIiow  ditleroiit  prices  for  diU'crent  vcsscUV     \.    Yew,  sir. 

"  i).  Can  yon  givi'  any  reason  wliy  that  is  so?  A.  No.  1  can't,  luit 
"  it  is  a  tiling  that  doi's  occur  and  we  don't   know  wliy  it  is. 

"  C^.  .\s  a  matter  of  fact  how  ilo  tliese  sales  take  |daee'^  A.  liy  iiiic 
"  tioii. 

"  i).   .\nd  they  are  put  up  in  ditVerent  lots  and  sold  at  aiiclioii'.'     A 
"  Y'es,  sir;  to  tin'  hinhest  luilder. 
5'^      "  {.).   .Viid  you  have  to  aliidi' liy  the  result'/     .\.   Y'es,  Hi r. 

"  I).  .\s  a  iiialtir  of  fact,  as  i-egards  sales  in  the  spring  of  JHHlt.  yen 
"  ({ot  more  inoiiev  for  these  skins,  iiiori' than  vou  did  for  the  skins 
••  of  the-  Viva"':'   'a.   I  di.l.  " 


Hearing  upon  this  din'erencc  that  exists  hetwecn  the 
sail'  of  the  i-.itcli  of  one  schooner  and  tlie  sale  of  the  skills 
caught  hy  anollier,  I  rcler  to  the  Ivecoi''  page  l>iss,  line 
ti;i.  where  Thciidore  iaililie  is  testifying: 

"If.   What  class  of  skins  were  they '/     \.   (Dast  skins. 
'      "  Q.    What  iiuality  were  Ihey ;  were  thev  ^ood  or    had    quality'.'    A 
"  The  skins  were  delh'ienl  in  Idiildier,  and  they  were  thin  pelted  on  iic 
"  count  ot  lieiiin  delh'ient  in  hlul)lier. 

"  (.).  What  is  the  eU'eet  of  tliesi-  two  thing's  on  the  value  of  the  skin':' 
"A.  On  .July  lith,  I  speak  of  the  'Viva'  and  '  I'athHnder.' and  1  m'c 
"  that  the  total  numlier  of  skins  was  '.i.lOO.  The  'Viva'  ami  '  i'ulli- 
"  fluder' employed    white  huiters,    and  eoiiseipu'iitly.  the  skins  hiive 


Hi  (7 

(Mr.  Wan  en's  Argument.) 

hoHvy  lilublMT  uu)I  look  w»<ll.     The  'Mary  Tn.vlor '  and  the  '8»p- 

"  |ihire'  ennilovixl  ludiaii  hnutcrH,  ami  the  'nkiuii  appear  thiu  iMu-anHe 

they  have  little  blii1i1>er  iu  them.     I  have  '  Hpeant '  iii  braoketH.     The 

,liferencf  in  pricn  often  .ihillhiijt  is  prohnhh/  iiccounlnl  for  hy  the  fuel 
■■  Ihnt  the  ichita  hnntem  nseil  i/iina  ami  the  Imlinn  hunters  u»fd  speto'S." 

Is  testimony  of  this  kind  tu  establish  the  market  price 
1,1  he  given  for  sealskins,  of  any  service  to  your  Honors^ 
10  I  lliiiik  n<)t. 

In  concluding  on  the  (inestiun  of  the  value  of  seal  skins, 

I  have  this  to  say.     The  enormous  catch  claimed  hv  these 

M  hooners  in  the  years  in  controversy,  when   placed   upon 

the  inarkt't,  would  have  so  depr«<ssed  the  price  of   skins 

that  it  is  doubtful  if  half  tlie  price  riding  at  the  close  of 

iiiiji  season's  hunting  would  have  been  lealized  (liecord, 

|ugo  l'X,M\,  line  t!4;  page  VXU\,  line  S!M.     These  last  n^fer- 

(IK  cs  are  to  the  testimony  of  Theodore  Lubbe.      At  page 

Ht;!;{,  line  (!4  of  the  Record,  he  testified: 

2o 

••  i).  I  HiippoNe  II  larKc  oikti'h  iitftH'ts  tht>  vahio  of  HkiuH  in  tlu>  market? 

•  A.  Oh,  yi>«. 

•  t;.   Materially?    .\.   Y<'h. 

.Mso  at  Uecord,  page  \'XW,  line  ;<!•; 

••  Q.  The  priee  iH  not  altogether  roKulatml  by  the  amount  of  the 

•  iiitrhy     A.   It  iH  to  a  larf(e  extent. 

It  is  a  mitter  of  common  knowK'dge,  of  course,  that  the 
,  siijiply  atfects  the  market ;  anil  that  a  larger  supply  and  a 
'   less  (li'iiiand  decreases  the  price. 


1                                                        <    '         '' 

i 

1               ■ 

, 

Uul 


TiiK  So-(Ai,i,Ki)  "Waumng"  Cr^AIMS. 


at  and  ion'-'    A 


That  class  of  claims,  known  as  the  "  warning  chiims," 
nc|iiire  .'•ome  consideiation.  They  are  iiimierou!^  grossly 
t\tiiilioii.it.c  and  largely  fiaiidiiU'ut. 

The  Paris  Tribunal  found,  as  a  matter  of  fait,  tliat  cer- 

^l;mi  vessels  were  seized  while  carrying  on  hunting  opera- 

''"lions  ill  the  Hering  Sea,  ami  that  the  masters  of  certain 

nihil  vessels  were  warned  against  continuing  tli(>ir  hunt- 

jiil;  oiierations,  under  penalty  of  forfeiture. 

I'he  proposition  that  solely  becaii.se  of  tlie.se  warnings, 
the  owner  or  owners  have  a  valid  claim  against  the  (iovern- 
nniit  of  the  ITnited  States  for  damages,  reipiires  no  consid- 
er,it  ion.  The  burden  of  establishing  a  legal  claim  rests 
iipoii  the  claimant,  notwithstanding  the  fact  that  the 
w:iiiiiiig  is  admitted;  he  must  show  that  the  warning  was 
.  |Oh(yed,  and  that  by  reason  thereof  his  voyage  was  inter- 
iii|itiMl  and  loss  resulted. 

Tile  only  possible  claim  that  could  be  advanceil,  uidess 
the  warning  was  obeyt'd,  would  be  for  the  item  called  in 
the  s(  liednle  to  the  separate  claims  in  the  Argument  in 
Chief  of  tiieat  Britain,  "  Illegal  hoarding  and  Search- 
ing (if  vessel,  $•_', 0(1(1."  Concerning  claims  of  this  nature, 
l.oid  Malmsbiiry,  writing  to  Lord  Napier,  Juno  11,  l.sftS, 
s.iid: 


"  i'li('r«>  no  doubt  may  lie  cireuniHtanceK  which  would  go  far  to 
(v  "  iiKKJify  the  eomplainlH  a  nation  would  have  th(>  right  to  make  furHurh 
■  viiiliitiim  of  itw  Movenugnty.  I/Ihe  olflfer  htul Jiut  (/roiiml/ur iiispirion 
■'  'iii'l  ilfjxirteil  hiiiis-tf  with  proprii'li/,  iloiii;/  no  itijiiri/  nml  pi'iicefiiUy  retir- 
"  11(1/  irhfn  niitinjieil  of  hi*  error,  no  Mn/iVm  votilit  ini  ikes  iic/ii  in  mi  the  suhject 
"  tit' sfrioii»  nwlmnution." 


u 


"If  ff  I-  '! 


;'•<;■ 


HOH 


(Mr.  Warren's  Argument.) 

Then  lie  qnotes  from  Attorney-General  Cass,  and  pn. 
ceeding  says: 

"  Her  Majesty'H  Govorniueut  oouciir  entirely  iu  tluH  view,  ami  tli. 
"  question  therefore  becomes  one  Hololy  of  diHcrotiou  on  the  i)art  of  {].•■ 
"  acting  officer." 

If  your  Honors  please,  this  language,  altiiough  referiiiiL; 

10  to  a  class  of  cases  somewhat  different  from  the  cases  now 
under  consideration,  shows  how  'Mie  nation  considers  tli. 
similar  act  of  an  officer  of  another  nation,  if  performed  in 
a  projter  manner,  and  is  autiiority  for  the  contention  thai 
no  serious  reclamation  would  he  made  hy  the  Governmcni 
of  Great  Britain  against  the  Government  of  tlie  Unili  1 
States,  hecause  the  hoarding  officer,  in  the  case  of  tin' 
"Little  Triumph,"  for  instance,  in  the  Unimak  Pa-- 
hailed  the  "  Jjittle  Triumph."  hoarded  her,  departed  willi 
out  taking  any  part  of  the  cargo  of  the  vessel,  although 

20  there  were  seal  skins  there,  returned  to  his  shi;>,   wlun 
upon  the  officer  in  command  warned  the  captain  of  tli 
"  Little  Triumph  "  from  the  deck  that  the  schooner  slioulo 
not  enter  Beiiug  Sea. 

No  such  claims  were  presented  to  the  Trihunal  of  .AiIh 
tration  at  Paris,  except  in  the  case  of  the  "  Pathtiiidri,  ' 
No.  L'l,  which  was  an  actual  seizure  in   N'eah  Bay,  a  ca-M' 
of  actual  detention,    for  the  vi^ssel   was  taken  from  Ihr 
place  of  seizure  to  Port  TowuscikI. 

This  item  of  the  claims  is  not  a  claim  for  actual  (lain 

3oages  l»ut  for  damages  hecausi;  of  a  willful  tort  conuuitlrd 
hy  the  officers  of  th(!  United  States  (ioviMMment.  As  id 
whether  oi' not  damages  of  this  nature  should  he  awanhd 
hy  this  High  (."onmiission,  the  learned  senior  counsel  Imi 
the  Tnited  States  will  discuss. 

It  is  in  the  class  of  cases  which   1    am   now   to  disrii-s 
that  claunauts  have  attempted  to  pervert  and  delVat   llic 
ohjerts  of  this  High   t'uminission.  ami    when   I  refer  to 
these  claimants.   I   shall  deal  with  them  as  private  mi<Ii 
viduais,  anil  not  with  the  nation  of  Great  Britaiu. 

40  When  we  chara(tt'i'iz(f  sonu?  of  these  warning  claiius  a- 
fradulent,  absurd  ami  prepnsteious,  we  aie  not.  witliniii  ,1 
precedent  foi'  so  doing.  Tribunals  of  this  nature  have 
authoritivt'ly  set  down  in  tiie  books,  that  such  claiiii- 
against  nations  should  be  wt'iglied  caret ully  and  witli  the 
mind  charged  with  the  fact  that  thi'v  ai'e  e.xaggeialel 
beyond  tlu'ir  true  propoition. 


DrU.ATIO.V    OK   TMK    SkASdX. 


50 


The  lir,-t  step  in  establishing  a  fictitious  cliiin  foi  tlie-e 
vessels  that  wine  warned,  was  taken  when  the  claimant 
sought  l)y  their  testimony  to  prolong  the  ordinary  dura 
tion  uf  the  season  in  Bering  Sea  bcfvord  the  last  davs  ol 
August,  for  the  case  of  the  I'nited  Stales  against  tlie-e 
vessels  svas  made  by  showing,  tiiat  alter  the  wariMiiu, 
some  of  tiiem  contunied  to  seal  withm  the  wafers  nt 
BcMing  Sea  during  the  eiiliic  .seas)n.  made  a  catch  and  de 
parted  for  \'ictoi'ia  where  the  catch  was  sold,  and  lln 
6oownerH  received  the  benefit  and  suffer(.'d  no  damage  whai 
ev«!r. 

I  shall  briefly  consider  the  testimony  relating  to  ilie 
duration  of  the  season.  I  take  it  that  the  duration  of  tin 
sealing  season  is  (piite  clear  to  the  minds  of  the  Hi^li 
Commissioners.     1 11  the  .iigument  filed    on    behalf  of  tin' 


80» 


!s,  and  jin 


view,  ami  tli 
the  part  of  th 


gh  reftM'iiiiL 
e  cases  iiuv 
Jiisidt'i's  tli^ 
ei'foi'iiicd  ill 
tention  tliai 
Joveiiuueiii 
tlio  I'liiti  .1 
cast'  of  tilt' 
iiiinak    I'a-- 
)aited  with 
el,  altlioii^h 
ihi;>,   wliciv 
)tain  of  til" 
)oner.shi)nlii 

nal  of  A  rill 
i'ailitiiHli'i," 
Bay,  a  (.asc 
ill  from  till' 

artna!  dam 
t  conimittrd 
leat.     As  til 
l)(3  awanlcil 

■  COllllSl'l     1. '1 


(Mr.  Warren's  Argument.) 

liiited  States,  conimt'ncing  at  page  22M,  tliis  subject  is 
ti!  itod  in  detail,  and  at  page  2H(),  this  statement  is  made: 
•  !//  the  testimony  in  the  Record  relating  to  the  duration 
ol  the  hunting  season  in  Bering  Sea  given  hy  captains, 
111  lies  or  hunters  f>tt  rr.s.sf/.s- ,"7»>.se  rot/ayes  irere  not  iutcr- 
yijili'd  or  hiferfi'ii'd  with,  is  contained  or  referred  to  in 
tins  portion  of  the  argument. 
10  The  word  "all"  in  that  quotation  is  italicised  in  the 
|ii  lilted  ai'gument. 

it  that  is  not  accurate  then  before  the  learned  counsel 
f,  I  (Ireat  Britain  close,  if  they  will  correct  it  in  one  f)ar- 
tKiilar  and  cite  the  evidence  of  the  voyage  of  one  vessel 
tilt  is  not  there  releried  to,  the  counsel  for  the  United 
Stall' will  correct  that  statement.  Every  voyage  the  de- 
tails i)f  which  are  set  out  in  the  Kecord,  anil  which  was 
iioi  interrupted— and  I  state  that,  because  testimony  as  to 
\(  -lis  whose  voyages  were  interrii]tted  would  not  be  of 
josiii  li  ;i  convincing  cliaracter  -  is  citcil  witliin  those  pages. 
.Villi,  when  the  counsel  for  Great  Britain,  Mi'.  Bodwell. 
toiiiid  fault  with  that  statement,  he  neglected  to  carry  out 
his  (ibseivations  hy  citing  to  your  Honors  any  testimony 
tiial  was  omitted. 

Ml,  Bodwell:— 1  think  1  cited  a  good  deal. 

Ml.  Wan-en:— No.  VViien  thecouusel  fortireat  Biit;un 
n  ail  liie  ( itations,  lie  proceeded  to  read  testimony  to  show 
Ih  ii  there  were  peculiar  circumstances  connected  with  the 

vii\  aL;>' 

;n     Mr.  Bodwell:—!   think  I  pointed  out  a  good  deal   with 
ii'tiii'iice  to  that. 

Till' Commissioner  t)n  the  part  of  tli<'  United  States:  — 
Till-  ii'coid  of  tile  argument  will  show  all  that. 

Mr.  \Varren:-()f  the  nature  of  the  criti(i>m  by  the 
luiiiisti  for(iieat  Britain  upon  the  citations  theic,  1  have 
niilv  this  t(j  say:  that  in  every  instance  our  learned 
liii'iid  Ml',  liodwell,  contented  himself  willi  the  leading  of 
till' li^timoiiy  there  cited,  and  v-etaUeit  for  granted  tiiat 
\uiii  Honors  will  read  the  tcsliinoiiy  ami  i'on>-idi'r  tben 
(livvhi  ihrr  oi'  not  the  I'liiiclnsioiis  drawn  are  jiistilicd. 

Till'  reroi'd  docs  not  disclose  that  oni'  single  witness  was 
fVi  I  r.xamined  by  the  counsel  fri'  (Jieat  Britain  relative  to 
tin  -I'lieial  suliject  of  the  duration  of  the  sealing  sea- 
-iiii  III  Bering  Sea.  The  only  two  witnesses  who  were 
aski'il  liy  ciiiiiisel  fur  (ireat  liiilain  a  (piestion  about  taking 
.Ma!s  generally,  were,  Steele  and  .Magiieseoii,  who  were 
askiil.  if  it  weie  possiiile  to  make  catthes  in  September. 
'I'lii'  I  iiited  States,  on  the  other  band,  inddiieed  or  cross- 
>  .\aiiiiiied  the  witiiisses  who>e  ti  stinmiiy  1  will  now  i(>fer 
;  ill  I'll  the  general  subject  of  the  duialiiinof  the  sealing 
-ia-Mii  in  the  Bering  Sea,  during  all  tlie.se  yea  is.  1  shall 
iii>l  irail  tliat  testimony:  but  1  nuiy  say  that  it  estalilisbes 
1 1  \ .  ml  ilispiite  the  proiiositimi  that  ail  of  the  witnesses 
w  h"  were  aski  d  t  his  tjuestioii  stati'd  tlml  llic  s^aliinj  sai- 
.Mi/,  i-liisal  ((ppni.)  iiiniteh/  lichrcen  llic  •l^^th  (ind  -J'tlli  of 
.l".//^s/. 

I  nb'T  to  the  testimony  of  William  T.  Biagg.  These 
lilaiinjisaie  not  all  in  tlie  argument,  for  they  are  citations 
I'f  ,t:i  iieral  testimony  icfeiring  to  the  duration  of  the  sta- 
''uMiii.  William  T.  Bragg  (Record,  i)age  'jt'iCi,  line  'j:!;  and 
Iv'emid.  page  Ttia,  line  "»">)  was  on  the  "  Mary  Ellen."  He 
liiil  not  ttstify,  as  is  now  contended  by  the  counsel  for 
I  ill  at  Britain,  tiiat  because  the  "  Mary  Klleii  "  had  sm  h  a 
l.ni;i'  catch  she  was  ready  ti)  go  home;  but  testified  that 
till'  reason  was  concluded;  and  because  that  vessel's  move- 


l!H^ 


M 


M 


Wrv  •' 


810 


lO 


(Mr.  Warren's  Argument.) 

ments  are-4i«peHd«d' ujK>n  so  much,  I  desire  to  read  hih  i|y 
from  that  testimony  (Record,  page  '26(5,  line  23): 

"  Q.  The  24th  of  AnguHt  won  practioally  the  close  of  the  Ncnljii); 
"  that  year  in  Behring  Sea,  WBHit?    A.  It  was  the  cloge  of  ourHenlui);. 

"  Q.  The  close  of  your  sonling?    A.  That  is  what  my  books  hIkiw 

"  Q,   Did  )ioii  cnmi' iiirini  niHiiT  thill  i/et 
"  ofiliniiri/  Ihiiil  nf  Ihf  Kfidini/  uriisim? 

Iliiit  limi:" 


ir  lliim  ollifrs,  or  ifiit  i/im  .«/.//  thf 
A.    Tliiil  mis  llir  nrt/iniiri/  lii,,,;  ,,/ 


Is  there  any  mention  there  about  having  sucii  a  l;ii„'t; 
catch  that  they  were  ready  to  go  hoinej 

*'  Q.  Id  those  years?    A.  In  those  yearH. 

"  Q.    And  ill  Itfe?  it  iriiH  nhoiit  the  limit?     A.  Ahiml  the  limit  in  1NH7  " 

The  Commissioner  on  the  part  of  the  United  Static:  - 
Part  of  that  is  omitted  in  your  written  argument. 

Mr.  Warren:- -Yes,  it  is  not  set  out  in  our  arguiiiint. 

When  we  were  preparing  our  argument  we  thougiit  iliis 

2o general  testimony  would  not  be  so  convincing  as  actual 

practical  experience,  l)ut  I  am  referring  now  to  the  gi'inial 

observations  of  the  witness. 

Tlie  Commissioner  on  the  part  of  the  United  States:  I 
am  not  asking  you  wliy  you  omitted  to  put  it  it)  ymir 
written  argument,  but  it  would  seem  to  be  in  your  f.iviir. 

Mr.  Warren: — Ves.  it  is,  your  Honor.  This  witiu'ss 
continues: 

"  Q.  The  V)()i,.  that  were  outfitted  to  go  from  Victoria  iu  1H8()  nnd 
"  1887,  wore  outfttteil  so  that  it  would  t-onipd  them  to  leave  tln'  Sea 
3*^  "  at  that  tiracV    A.   The  vessels  that  I  have  been  in. 

"  Q.  Why  did  the  season  close  on  or  about  the  24th  of  Au^'UHt.  1886 
"  and  1887V  A.  Well,  coming  on  the  first  of  September  tli:>  wiatluT 
"  commences  to  get  bad.  The  northwesters  set  in  about  the  latter 
"  part  of  August,  and  as  a  rule  they  take  the  first  northwester  almut 
"  the  last  of  .\ugiist  and  steer  for  home." 

Now.  the  argument   filed   on    bi'half  of  Great    Hiitain 

italicizes  the  statement  of  this   witness;   that   wlieii  thcv 

departed  from  the  Sea  they  set  their  maintop  staysail.  tliK 

concLision  being  suggested,  1  infer,  that  a  vessel  in  a  gak' 

40  would  not  carry  a  maintop  staysail. 

Turn  to  the  log  of  the  "  Mary  Ellen,"  which  is  now  in 
evidence  and  is  found  in  Part  2  of  the  Senate  Dociiiiinit 
lo7.  r>4tb  Congress,  1st  Session,  at  page  n'2,  and  wc  see 
that  between  tlie  l.")t]i  and  litth  days  of  August  tlie  "  Maty 
Ellen  "  took  no  .seals;  tiiat  from  the  lUlh  day  of  August  to 
theLMtii  she  took  seals;  and  the.sciiedule  known  as  Kxliihit 
No.  1*7,  which  is  an  abstract  from  a  meniorandmn  bonk  of 
the  witness  Bragg  as  to  the  catch  of  the  individual  lunittrs, 
shows  that  the  "  Mary  Ellen"  remained  in  the  Sea  t'nitii 
50  the  24tii  to  the  I'Htli  and  look  but  one  seal,  but  not  troni 
a  boat  lowertvl. 

The  "Mary  Ellen"  in  the  Sea  until  August  L'ittli,  iii.i 
not  taking  seals  between  the  ii4tb  and 'J'.ttn.  Does  tliat 
testimony  show  that  the  season  did  not  close  betwcoii 
August  20th  and  2r)th^ 

The  witness  Alexander  McLean  is  criticized  by  couti 
sei  with  tile  intention,  imdoubtedly,  of  affecting  his  testi- 
mony as  to  the  time  the  season  closed,  although  that  (esti 
mony  was  not  directly  attacked.  This  witness,  Willi  uii 
^>oT.  Bragg,  of  whose  honesty  there  can  be  no  doubt,  atui  of 
which  there  is  no  question  ujade,  testified  (Record,  pige 
7(i,^,  Mno  .5,5).  that  the  last  day  they  hunted  in  the  Sea  was 
on  the  '2.")tli  of  August,  exactly  the  same  date  thatCai)iaiii 
Alexander  McLean's  book  states  that  they  hunted;  ami  1 
will  show  your  Honors  that  two  of  the  other  dates  giveti 


811 


''■'''' ''iPi 


limit  ill  1H87 


limiteil;  ami  1 
ir  dates  givi'ii 


10 


:o 


(Mr.  Warren's  Argument.) 

liy  Captain  McLean  are  confirmed  by  the  testimony  on 
lioss-examination  of  witnesses  produced  by  (Jreat  Britain. 
1  refer  to  the  testimony  of  Captain  Wiibam  O'Leary  on 
till'  duration  of  the  season,  Record,  page  773,  line  44: 

•  {.).  lu  1880  for  what  tiiuo  (lid  Tou  outfit?  A.  Uutil  about  thu  first 
■•  I'f  Septomber.  I  Kouerally  allowed  to  leave  Ueliriug  Sea  nhifui  the 
■■  ]sl  t/ Si^pti'inhrr  tir  tlir  lust  of  Ainjiint." 

William  Munsie's  captain  testifying,  if  your  Honors 
jil.ase,  that  the  season  terminated  about  the  last  of  Au- 
gust! 

1  also  refer  to  the  testimony  of  Alexander  Mcljean, 
Hocord,  page  4(Il',  line  5.5: 

•  {.).  What  time  did  vou  leave  the  Behriuf;  Sen  iu  the  '  Mary  Ellen'? 
■A.   I   eaunot   exactly  say,    but   probably  about   the  20th  or  25th  of 

•  AuKust-     I  I'l'  uot  sure. 
"  Q.    Kraiii  i/ii'ir  I'j'/H-i'ifiirr  ir//iil  s/niit/<f    i/nii   villi    tin'    mil   iif  tlif   si'iiliii'j 

isi.ii  ill  Ihlii-iii'i  Hi-ii  ill  thr  iinirn  ISSChikI  18S7?     A.    AIkiiiI  III-'  2(>ih 
Aii'/iist,  I  iriiiilil  iiiiisiiirr   tlir  I'liil  nf   llir    xi'iisiui.      I  iinfil  la  li'urr  llir 
••  ^■•./  llfii. 

■■  Q.   Why  is  that  the  oud  of  the  season?    A.  We  usually  fouud  it  so 
■  lit  that  time 
••  C^.  What  stops  the  season?    A.   The  weather  used  to  be  bad  aud 

•  \vt>  figured  un  ({ottiun  back  about  the  last  of  August  or  the  10th  of 

•  SfptcuiV>cr;  we  usually  outfitted  for  that  time." 

He  gives  the  date  there  when  tiie   "Mary  Ellen"  left 
tlie  Sea  and  William  Bragg  confirmed  it  in  the  testimony 
1  have  just  road. 
;o     i  read  from  the  testimony  of  the  same  witness,  Record, 
[lagi'  410,  line  4S: 

•■(,).    Anil  the  seiisoii  r'ltse-l  wliiii:'     A.    Ahunl  the  20lh  to  tin- 2')th. 

"  (}■  Vf'ir  in  mill  iieur  out?  A.  Siiiiii'liiin:'  I'lirlim'  ninl  noiiu'liiiiea  us  hite 
••   (S  llie  Q'tlli.      I  hiirr  hivii  llinv  us  l,itf  ,is  Sf]itriiil,rr. 

'•  Q.  Dill  1/1)11  liiii'i'  mil/  Si'iitiiii/  in  iSi'jiti'iiiln'r?  A.  I's,  air;  in'  lutd 
"  liiini''. 

"  i}.  ^Vll■^>  thill  r.cii'ptioniil,  ri'miiiiiiiui  nri'r  milil  Si'ptiiiihfr?  A.  IV,<, 
"  iiitiisii'il." 

At  Record,  page  4t)2,  is  found  an  examination  of  Mc- 
40 Lean,  regarding  an  affidavit  stating  that  be  generally  i/ot 
ku'k  about  the  llth  of  September.  I  have  nothing  to  .say 
on  that  jioint  more  than  what  the  Commissioner  on  tlie 
(lait  of  the  United  States  observed  at  the  time  that  testi- 
nuiiiv  was  given,  and  that  observation  is  in  the  Record  at 
j)age"403. 

At  Record,  page  11531,  line  48,  McLean  testifies: 

"  Q  Why  did  vou  leave  the  Sea  on  the  19th  August?  A.  The  season 
"  was  i)retty  well  closed." 

^'^^     At  Record,  page  1333.  line 44,  the  same  witness  testified: 

"  Q.  When  you  left  for  IJchrinj.;  i^i'n  in  lS8(i  as  master  of  the 
"  'I'ftvourite  '  when  did  you  iutind  tf  come  back?  A.  1  intended  to 
"  1)0  back  here,"  that  is  Victoria,  "  between  the  Ist  and  10th  of  Sep- 

"  tcmbcr." 

I  refer  to  the  testimony  of  Captain  Daniel  McLean  con 
taiiied  in  the  atlHdavit  i)rinted  at  page  IM'I  of  the  Record. 
liiii'  45,  and  the  part  I  read  from  is  line  5!»: 


60,. , 


1  usually  enter  the  liehring  Sea  during  the  fore  part  of  July  and 


''■"•■'  ih''  lust  iif  Aiii/iisl.  Till'  Hill  ht'i'iiiii'S  li,ii  riiii;/li  li.  in'ikr  il  jirnjiluhl''  to 
*'  h'liit  si''fl  tifti'i'  Ainfust,  mill  it  is  /hi'  in'ftrtifrj'nr  in'iir/i/  nil  I'l'ssfts  I'lii/iii/fti 
"  III  Iniiiliiii/  si'iil  lo  li'iivi'  iiIkiiiI  Hint  tiinf." 

Tliat  aflidavit  was  niade  in  the  year  1S!):J,  and  refers  back 
tn  tliese  earlier  years. 


IM' 


:1a.. 


PfT 


812 


(Mr.  Warren's  Argument.) 

I  also  refer  to  Reconl,  page  124s,  line  3,  the  testiimiiy 
of  Captain  Raynor: 

"  Q.  When,  in  vour  opinion,  Captain  Raynor,  did  tho  actual  npnlins; 
"  neason  in  1887  dose  ?     A.   Aiiiiiflfiv  frimi  llif  'JO/li  Ainjiist  /n //,■  ;,/ 

*'  Si'jitrnthrr, 

"  Q.  Wliat  event  wonld  ileterniine  what  diiy  between  the  20tli  An. 
"  (,'WNt  and  the  1st  Hejitember  the  Keasou  wouhl  ehiHo  V    A.  Tlie  tir~t 
,_  "  strong  westerly  wind  we  got  we  wouhl  U'uve  the  Sea. 

"  y.    Tlffu-sl  ili-(,ii;i  ivislrrlii  ii-ii,il, it'll, •  llii  2(1111  A'lijii^f.'     A.    F.x,  ,•■■,.•.'■ 

At  Hecorcl,  page  10(^3,  line  42,  is  the  testimony  ot  C'a|i- 
tain  Albert  Folger: 

"  Q.  Ueenuse  you  were  8o  adviHed  you  did  go  away  ?     A.  Yes,  >.ii' 
"  Q    If  yo)i  had  not  been  so  advised  you  wouUl  have  remained  Inti^ror 

"  in  tile  Hea  ?     A.   I  inmlil  /inn'  s/oi/fi/  nnlil  lln'  lullrr  imrl  nf  A"'fi.<t. 

'•   W/ieii  //irflrsl  iiiirl/iirrsi  i/ii/in      iiih-  t  irmilil  linn'  ntni'li'il /m'  hiimi'.      77..  i/ 

"  ili'iii'i-iillil  ciiiiir  lirhrii'ii  lln'   'JOIIi  mill  'J'idi  Ani/iisl.'' 

2Q     At  Record,  jiage   I<i7s,   line   1(1,   is  the  evidence  of  Cap- 
tain Jolin  Steele: 

••  i).  Were  vou  in  the  Hehring  Sea  in  1HH7?    A.  Yes,  sir. 
•  ().  On  wl\at  ship?     A.  On  the  "Mary  Kllt>n." 

"  t).   Were  Vou  sealing  in  1888?     A.  Y'es,  sir. 

"  (}.  Were  you  sealing  in  188it?  A.  Y'es,  sir.  I  was  on  the  onast 
"  thot  year. 

'•  Q.  Were  you  in  the  Behring  Sea  iu  188(i?     A.   No,  sir. 

"  i).  But  yt)U  were  sealing  in  188'.t  on  the  west  coast  of  Vaneouvor 
"  Island y     A.  Y'es,  sir. 

"  Q.  Were  you  sealing  iu  the  Behring  Sea  in  1890?     A.  Y'es,  sir." 

3°     And  continuing  at  line  ">!',  he  said: 

■'  Q.  Taking  yoiir  experience  from  the  time  that  yon  first  arrived  in 
"  Vietoria  and  up  to  18iM),  what  time  would  you  say  the  sealing  scasnu 
"  actually  closed  in  the  Behring  Sea?  I  mean  by  what  time  did  tlirv 
"  stop  lowering  their  boats  and  sealing?  A.  In  those  vears  when  I 
"  was  sealing  myself  we  used  to  consider  thot  the  sealing  would  1m' 
"  about  closed  from  about  the  '20th  August  to  the  1st  Se))t('mlnr. 
"  The  first  strong  gales  that  set  in  from  the  northwest  after  the  -ilth 
"  August  we  generally  left  for  home. 

Captain  Meyer  testifies  as  folio  .vs,  Record,  page  172^. 
4° line  Itl: 

"  Q.  Ifiiir  iliil  iiiiH  fiiiil till'  ni'idiiii/ hi'hivi'ii  Ani/iinl  20lfl  nnil  Ihe  in'l  I'f 
"  AiiijiiM?     A.    Friiin  tin'  2l>lli  of  Aiii/nnt  tn  lln'  I'ml  iif  Ihi^  iiiniilli? 

"  t^.  Yi!>.  A.  IF''//,  /  iliilii't  fiinl  iiiHi/i  ill  it.  Tlni-i'  'I'lis  mil  iiiiir/i  j„iii 
**  ill  stiii/iiifj  lliiil  Hull'/* 

That  witness,  if  your  Honors  please,  was  actually  tlicie 
aft^r  August  20th  and  knew  the  conditions,  as  I  will  shdw 
bearing  on  a  different  subject. 

All  of  that  te.stimony  relates  to  the  general  subject  of 
50  the  duration  of  the  season,  and  nowhere  within  thecovtis 
of  the  Record  is  it  contradicted  by  witnesses  examined 
for  the  purpose  of  ascertaining  the  general  duration  of 
the  season;  given  by  witnesses  of  both  sides,  if  we  .Tie 
to  draw  distinctions  regarding  whoni  witnesses  were  pro- 
duced by. 

Season  of  1880, 

The  actual  experiences  of  vessels  in  the  Sea  in  the  year 
188t)  is  set  out  at  length  in  the  brief  for  the  United  States. 
60  The  counsel  fi'r  Great  Britain  in  commenting  on  the  tes- 
timony of  Ramlase,  who,  I  believe,  was  aboard  the  "K:ite" 
in  I8S(">,  said,  that  the  experience  of  this  vessel  ought  nut  to 
control,  because  she  was  not  outfitted  for  the  full  season 
If  your  Honors  please,  that  is  the  character  of  the  cc^n- 
ments  upon  the  testimony  set  out  in  our  argument.     Aiul 


lie  testiiiiiMiv 


»8  on  tho  const 


813 

(Mr.  Warren's  Argument.) 

what  was  the  testimony  as  to  the  vessel  Uanilase  was  on< 
i;.(()i(l,  paj^e  2)>!>,  line  17: 

■■(.).  How  lonR  <li(l  vou  reinnin  in  tliP  Son,  seiiling?    A.   If  I  romem- 
■  luT  rijiht,  wf  left  oii  tlio  ij.'itli  of  Aunnst. 

•Q.   Why  dill  you  icnvo  on  tlio  25tli  of  August?    A.  I  don't  know;  I 
•  sniiposo  tliikt  wnH  tho  end  of  the  trip." 


10 


20 


Tiie  witness,  at  pajje  ^o(»,  line  42,  says: 

•  {).  Hut  you  say  tlmt  in  188fi  tho  woBthcr  was  not  as  good  in  Au- 
■^'usty  A.  1  don't  believe  it  was.  I  think  we  had  bettor  weather  in 
■.luly. 

■  (}.  You  used  to  leave   the    Sea   between    the  20th    and  25th  of 

■  AiiK'Ust,  did  you,  in  those  years?    A.  That  year  wo  left  the  25th.     I 

■  am  almost  sure  we  did. 

■■{}.  When  did  yon  stop  sealing  in  .\up!ust?    A.  What  year? 

■•(}.  lu  ISHtl?    A.   Well,  as  near  us  I  eaii  remember,  a  few  days  be- 

■  fine  that,  probably  a  eouple  of  days. 

"  Q.  Then  you  left  on  aecount  of  what?    A.  The  vessel  wasn't  fitted 

■  out  for  a  long  cruise;  she  wasn't  very  well  provisioned  going  home." 


That  is  the  testimony  not  set  out  in  the  argument  for 
tlic  I'nited  States,  although  the  testimony  showing  that 
he  left  on  the  2i)th,  and  that  he  considered  that  the  end 
of  the  trip  was. 

The  vessel  was  not  outfitted  for  a  longer  season,  it  is 
said.  When  the  witness  Warren  states  that  his  vessel 
could  have  remained  until  October,  hecause  she  was  out- 
titted  for  such  a  voyage,  that  establishes  the  duration  of 
tiic  season,  according  to  the  claims  of  tiie  learned  counsel; 

3°l)ut  when  this  witness  says  that  he  came  out  on  the  2r)th 
of  August,  because  that  was  the  end  of  the  trip,  and  on 
being  examined  again  states  that  his  vessel  was  not  out- 
fitted for  a  long  cruise  and  was  not  very  well  provisioned 
going  home,  the  learned  counsel  contend  that  such  testi- 
nidiiy  ought  not  to  be  given  any  weight  as  bearing  v  on 
the  duration  of  the  season. 

F.eaiing  on  the  actual  experience  in  1886,  I  cite  the 
Record,  page  'itifi,  line  23;  page  271,  line  3;  page  21»!>,  line 
17;  page  3(iti,  line  t)2;  page  1728,  line  Itj,  and  page  4<i:^,  line 

40 Tm,  without  reading  any  of  the  testimony.  Not  one  of 
these  vessels  left  the  Sea  because  she  was  warned  by  one 
of  tlie  cutters  of  the  United  States  (Jovernment,  or  because 
of  any  knowledge  of  the  seizures  made  earlier  iu  the 
season. 

Season  ok  1S87. 

I  will  next  consider  the  actual  experience  of  captains  in 
tlic  year  lss7.     The  counsel  for  Great  Britain  cite,  as  bear- 
5oiiii;  ujion  another  branch  of  this  controversy,  the  testi- 
mony of  Capt.  Warren,  at  Record,  page  llti'.t,  line  .'JS; 

•  (,>.  Was  there  then  a  rumor  that  the  United  (States  intended  to 
"  nsuine  seizures  that  year?  A.  I  think  not;  I  know  our  author- 
"  itii's  here  told  us  there  would  bo  no  danger. 

"(,».  The  authorities  of  the  Port  of  Victoria  ?    A.  Yes. 

•  (j).  Who  ?    A.  Tho  custom  house. 

•  t}.  They  expressed  the  opinion  that  there  was  no  danger  ?  A. 
'■  No  danger." 

This  was  in  18S7.  Kecord,  page  1 148,  is  also  cited,  line 
ti7.  the  same  witness: 

■■().  It  was  pretty  well  known  in  fact  from  the  experienee  of  1886 
■tlmt  there  would  be  seizures  in  tho  Hehring  Sea?  A.  No,  I  Ihiiik 
"  :iiil.  ll  (/•</.«  ivjiiir/i'il  ill  till'  iiiijirrs  lliiil  till'  ri'.-Ki'h  :«-itril  in  lS8(i  imv  to 
•■  1,1  ri'liirnril,  null  iri'  niiiiiinsi'il  llint  itu/i'il  lln'  siiziiig;  in'  tuok  it  for 
"  '!i''inti'il  ih'it  llii't'i'  irtm/il  ill'  nil  itini'i'  seiziiri'S,'^ 


60 


IM 


n 


¥ 


ifW 


814 


'h. 


(Mr.  Wai-ren's  Arguinont.) 

But  when  conns*'!  lejily  to  our  contention  tliat  actu.il  i  x 
pcrience  slioiild  control,  tliey  way  tliat  you  cannot  (Icpcinl 
U|)on  these  ships,  hecause  they  expected  to  he  sei/cd  m 
18S7,  and  therefore  they  were  mailing  their  nioveuients  m 
accordance  witli  that  knowledge 

If  we  estahUsh  that  there  were  vessels  in  Hering  S  a 
in  I8M7  whose  captains  did  not  know  of  any  warnin;;s  <,r 

lohad  no  knowledge  of  any  seizures  after  they  reached  th,! 
Sea,  their  actual  experience,  we  take  it,  will  have  sonietliint,' 
to  do  with  the  (leterniination  of  the  duration  of  tlic 
season.  As  to  the  experience  of  vessels  in  the  year  I^^T, 
no  one  ol  which  was  svarned,  interfeied  with  or  left  Ww 
8ea  hecause  of  fear  of  seizure,  without  reading,  1  ni;ikr 
these  citations:  Kvidence  of  Kaynor.  Kecord.  page  1:.'I7. 
line  <!1;  Captain  Ijaughlin  Mditan,  Kecord,  7'.M>,  lino  ."..i. 
and  Kecord,  I'.VJ,  line  i';  C'aptiiin  Folger,  Ii(>cord,  losu',  liiir 
5S:  Captain   Meyer.   Kecord.    ITi'T.   line  ")•'.,   ;ind  Kt'|i|Mn. 

20  i:is4.  line  5.  The  tesliniony  of  this  la.st  witness  wascnm- 
nieiited  upon  hy  the  learned  counsel,  Mr.  Hod  well  lie 
stated  that  the  experience  of  this  vessel  ought  not 
to  control,  hecause  the  witness  said  that,  although  tiif 
ship  left  on  the  l.^tli  of  August,  he  was  not  informed  nf 
the  reason  why.  If  your  Honors  j»lease,  if  ti>e  vessel  lilt 
at  that  time  and  Kep|)en  was  not  informed  of  the  ri'axm 
why,  1  should  draw  the  conclusion  that  the  reason  sliu 
left  was  a  natural  reason  rather  than  an  unnatural  mw, 
which  would  have  heen  known  to  the  witness.     His  tes 

30timony  is  at  Kecord,  page  llSsf),  line  4"): 


"  Q.   You  came  out  thiit  vear  ou  the  15tli  of  Augu«t? 
•  g.  Why?    A.  I  dou'tltnow  why." 

Season  of  isss. 


A.   Yos,  sir. 


The  actual  exi)erience  of  vessels  in  the  year  Isss  has 
heen  considered  by  my  associate.  Mr.  Lansing,  in  coniict- 
tioM  with  the  chart  that  he  hasitrei»ared.  1  content  mysilf 
with  citing  the  testimony  hearing  on  that  as  follows:  page 

4o62;v  line  50  and  page  7u:>,  line  42.  The  latter  citatinn  is 
from  the  testimony  of  Edward  Crow  Baker,  ami  the 
learned  counsel,  Mr.  Bodwell,  in  commenting  on  this  tes- 
timony, said  the  reason  why  the  '*  Triumph  "  terminated 
her  voyage  so  early  was  not  known,  hecause  it  was  im- 
possihle  t»)  ohtain  Captain  Daniel  McLean  as  a  witness. 
We  have  the  affidavit  of  Captain  Daniel  McLean  here,  in 
which  he  states  that  the  sea.son  terminated  the  last  nf 
August  generally  (Kecord,  Isi'l,  line  (iui,  and  the  hook  nf 
Captain    Daniel    McLean  was   in   the  hands   of   Kdward 

50 Crow  Baker  when  he  was  testifying,  as  shown  by 
that  citation  from  page  7u-i  of  the  Kecord.  The 
experience  of  Captain  Laughlin  McLean  in  l"^ss^ 
Fiecord,  page  7:5o,  liiu-  <!s;  Captain  Folger.  Recdiil, 
page  10S2,  line  f).">;  Captain  Steele,  l>age  l()7s,  lineL'o;  Cap- 
tain Meyer,  i)age  17'2S.  line  2ii;  Captain  Alexander  ilcLeaii. 
page  403,  line  a!*  and  page(i(;7,  line  S. 

But  the  learned  counsel  say,  in  the  year  isss  the  sealers 
had  information  that,  after  the^uth  of  August,  there  wire 
to  he  seizures,  and  the  learned  counsel,  Mr.  Bodwell.  said 

'«3this  came  from  Ca|)tain  (Jau»lin.  In  that  he  madean  error. 
That  information  came  from  the  witness  Captain  Clarke, 
who  said  that,  after  the  2uth  of  August,  the  United  States 
were  to  seize.  On  the  face  <»f  it  the  story  is  unworthy  of 
comment,  hut  tlieie  are  other  facts  in  this  Kecord.  Victor 
Jacobseii,  who  sailed  the  "  Mountain  Chief  "  in  the  year 


S15 


.;♦ 


(Mr.  Warren's  Argumont.) 

h•^s.  and  whose  vessel  is  the  only  one  prior  to  tiie  year 
h^'.t  that  ever  took  a  seal,  so  far  as  this  Ueconl  shows, 
w  ilhin  the  wat^i-sof  Bering  Sea  in  the  month  of  September, 
ivinained  in  tliat  year  until  the  M  of  September,  and  what 
(lid  bedoon  that  day?  He  went  into  the  harbor  of  Unalaska. 
Ilxause  I  suppose  ho  tlion>;ht  the  cntters  wished  to 
si'i/e  him  after  the  2(»th  of  August,  and  therefore  he  gave 
10 tin  rn  the  opportunity.  Went  into  the  port  wliere  the 
(litters  were  lying,  took  water,  came  out,  and  took  seals 
ill  the  pass  on  the  7th  of  September. 

What.  CI  edit  should  ho  given  this  stoiy  that  seizures 
\Trie  expected  after  the  2nth  of  August,  when  this  captain 
toiik  his  schooner  into  Unalaska  ami  sailed  out  with- 
o'.it  having  her  seized?  If  he  thought  he  was  to  be  seized 
wiiiild  he  have  gone  there? 


II  f 


KXI'KKIKNCE   AFTEK   ACfil'ST   '.'(rrH   0|{   AUOUST  2.'>rH. 


20 


There  is  one  feature  of  this  matter  of  the  duration 
(it  tlie  season  which  is  not  treated  of  in  t>ur  argument,  but 
wliii'b  now  seems  to  me  very  important,  and  it  can 
lie  considered  in  connection  with  the  chart  put  in  by 
the  t:ounsel  for  the  United  States,  showing  the  voyages 
of  tlie  various  vessels.  1  take  it  that,  if  we  can  show 
tliMt  vessels  were  actually  in  these  waters  after  the 
■jiitl)  or  i'.">th  of  August  without  taking  any  seals, 
and    witliout    being    able    to   lower     their    small  boats, 

^oit  will  have  a  very  important  bearing  on  this  question. 
Tlit'se  references  are  not  in  our  argument.  The  witness 
Bragg,  on  the  "Mary  Ellen,"  is  shown  by  Exhibit  27,  at 
piigc  4;{  of  Blxhibits,  to  have  remained  in  the  Sea  between 
August  24th  and  August  2!»th,  in  the  year  1S8*),  without 
IdWtring  the  boats.  Captain  Meyer  remained  in  the  Sea 
from  August  2!»th  to  September  J  Ith  (Record,  p  1728, 
line  It!)  without  lowering  on  account  of  the  bad  weather. 
Ciiptain  Laughlin  McLean,  whose  testimony  is  not  com- 
iiit'iited  upon  even  by  the  counsel  for  Great  Britain  when 

40 tin  y  discuss  the  duration  of  the  season  (Record,  p.  73n, 
line  .">.")»,  testifies  that  the  "Favourite"  remained  in  the 
Sea  from  Augizot  Hvtli  to  September  .5th  without  lower- 
\\]<i  her  boats.  The  statement  of  the  voyage  of  the 
'Triumph"  in  the  year  1S88,  found  at  Record,  page  7n2. 
line  42,  discloses  that  the  last  lowering  day  was  August 
•.'dtli.  and  before  that  the  last  day  the  boats  were  lowered 
was  August  14th,  and  that  was  read  from  a  book  kept  by 
till'  master.  Captain  Laughlin  McLean  (Record.  730,  line 
c.iii  leinained  in  the  Sea  in  the  "  Favourite,"  in  is>ss,  from 

5o.Viiti;iist  27th  to  September  .3d,  without  lowering,  in  spite 
of  tlie  fact  that  they  all  thought  they  were  to  be  seized 
aftci'  the  2<>th  of  August,  and  the  actual  termination  of 
liis  voyage  was  the  27th  day  of  August. 

Witness  William  (1.  Goudie  was  on  the  "Edward 
Welch"'  .  ;.-8S,  and  remained  from  the  28th  of  August 
t(i  Si'ptember  7th  without  lowering  (Record,  p.  677,  line 
4J,  and  Record.  077,  line  38. 

This  same  witness,  at  Record,  page  C7S,  line  5,  testified 
that  lie  was  on  the  "'  Molly  Adams"  in  the  year  1889,  and 

60 tilt' last  lowering  day,  for  the  purpose  of  sealing,  was  be- 
tut  ('11  the  20th  of  August  and  the  2.5th,  and  that  be  re- 
iiiaiiicd  in  the  Sea  until  (Jctober  5th,  without  lowering 
a  lioat  but  once,  on  which  day  they  raided  the  Pribyloff 
Islands.  Captain  Sol.  Jacobs  was  commanding  that  boat 
and  lie  was  in  the  sea  from  the  2.")th  of  August  to  October 


!«:■ 


I  ■ 


i:  S 


i 


81« 


(^Mr.  Wanon's  Argiinn'tit.) 

.M!i,  wiiilinR.  C'niisinj;  aliout  waitiiif?  for  an  ofipoitiinh  >• 
ti>  raid  an*l  never  lnwcrt'il  a  boat  for  seals.  In  tlie  \,.n 
l^<''o.  Captain  Lati^iilin  Mcliean.  again  in  the  "Faviuii. 
ite  "  (  Hecoid,  T.M,  Inie  S.  and  7"»4.  line  l(h,  remained  in  iIik 
Sea  IroMi  August  1  Uli  to  Anj^ust  'JoMi,  witliont  ioweijn;; 
liis  boats;  and  an  exantiiiation  of  the  lojr  used  liy  \\„- 
eounsi'l  lor  (Jreat  Britain  here  in  Hahfax,  on  oial  ai^ii 
lonient.  discloses  tiiat  lie  reniainod  in  tiie  Sea  until  the  jiid 
of  Aiignst.  altlioiijili  the  testimony  was  until  the  u'l  tli. 
Tiie  1(1^,' shows,  and  I  liave  examined  it,  that  he  was  tin  ir 
until  the  :.'.'>d  of  August  witliout  loweriuK  lii«  1  )ats;ili,| 
August  14th;  that  log  is  here  and  your  Honors  van  mmij. 
or  any  one  ean  read,  the  entries  showing  that  he  did  not 
take  ono  seal. 


No  Intkntiox  ok  Skai.ino  ah'kk  tiik  last  ok  Aii.im. 

2o  'i'he  coiuisel  seem  to  have  abandoned  the  attempt  tu  is 
tabli-'ii  a  prolonged  season  on  the  basis  of  actual  experii m  c 
of  vessels  in  the  Sea.  or  on  the  general  testimony  reiatin;; 
to  the  length  of  the  voyagi'  for  which  the  vessel  was  nut 
fitted;  and  now  we  have  the  argument,  which  we  li.ive 
lieietofore  been  unable  to  meet,  because  not  advanced,  tliat 
it  was  tlie  inteiitiuii  of  the  sealers  to  remain  in  llic  Sea 
until  September  b'ith,  and  in  soene  cases  until  October  1st. 
Accepting  I  he  soundness  of  this  argument,  that  the. in 


.^o 


tent  ion  should  govern,  let  us^o  to  the  Kecord  and  see  wjiat 
the  Hecoi'd  shows  th«  intention  really  was.     The  counsel 
for  the  L'nited   States  contend,  after  deliberate  considei a 
tion,  that  the  testimony  shows  exactly  what  the  actual 
experience  established. 

1  take  up  the  testimony  relating  to  each  one  of  the  ves 
sels  Milvancing  claims,  showing  what  the  intention  wa-^  a>^ 
to  the  duration  of  its  voyage. 


DlKATION   OK  VOYAOK   OK  THK    "  CaKOI.EXA." 

4°  'I'lio  "Carolena":  William  Munsie  did  not  testify  re- 
garding the  duration  of  the  voyage,  which  fact  was  ad- 
niitted  in  the  oral  argument  by  the  learned  counsel  Mi 
Hodwell;  and  the  only  evidence  in  the  Record  icgaidinj; 
her  voyage  is  found  at  page  ;{77,  line  !(!,  and  page  tine, 
line  !!.  I  read  from  page  :{77,  line  Id,  theevideni'e  of  John 
Cotsford,  a  hunter: 

"  Q.  Do  you  know  niiytliiuK  itbout  wliiit  llie  tiiut'  ('a]itaiii  ( >Klcvii',  m 
"  did  vou  hear  aiiytliiuK  aliout  tlie  time  ho  wa.s  prejiariuK  to  leave  tlic 
'•  Sea?    A.  Siiiiifirliirf  nln  iit  tin-  20lli  nr  23rtl  i>f  Ain/iis/,  I  hi'lhrr." 

In  the  British  argument  in  chief  (page  fl!*,  line  4oi  the 
testimony  of  the  witness  Munger  is  (juoted,  in  connectinii 
with  theduration  of  the  voyage  of  the  "Carolena":  "In 
the  Sea  the  captain  talked  of  going  home  about  tiie  end 
of  the  month  of  August,'  and  with  that  the  (luotation 
stopped.  I  will  complete  that  testimony  by  reading  froiii 
lieconl,  page  tiStI,  line  'M^,  where  the  same  witness,  Jame.s 
Plunger,  on  cross-exan)ination,  testified: 

60  "  *i*-  ^"'"  reiiipnilier that— you  reuieiuber  tlu»t  your partieuhii'hmitir 
"  talked  to  you  about  goiug  homey     A.  Yos. 

"  ii-  What  did  he  say?  A.  He  said  that  the  veHwel  was  not  iim\  ton 
"  bi«,  and  that  we  had  better  start  home  about  the  cud  of  the  iiKUitli. 

"  Q.  Will  you  swear  whether  the\  said  'about  the  end  of  the  nmiitli 
"  or '2(tth  August'?    A.  Xo. 

"  i}.  You  could  uot  say  which?     A.  No,  not  as  to  the  date." 


Www 


81T 

(Mr.  Wuitom's  Arf;unieiit.  i 

Tliat  is  Jill  tli»'  t<'stitni)ny  in  tlu>  iJi-cnid  re^caidinj^  tlio 
|iro|tos«(l  (liinttion  of  the  voya^t'  of  tlu'  "  Ciirolt'iia."  Ono 
wiliu'SH  says  aitout  tlic  '2titli  or  'J!li<l  of  Aiin\ist,  and  '^e 
oilier  lliK  last  of  Aii>j;ust,  and  wonld  not  nay  as  to  wlivm^:' 
it  was  tlio  2i>tli  of  Angust  or  I'nd  of  August. 


Ill 


DUHATION   OK   VoYAdK  OK    "  (  (NWAHI)." 

Wliat  is  tlu'  tfstiniony  n-lating  to  tho  propoH'd  voyage 
(il  tliL'  "  Onward  "  t  Atlifcoid,  pagt'  stil,  lino  Mo,  the  wit- 
11.  ss.  Ciiailes  Spring,  owner  of  one  half,  testified : 

•'  I).  Will  you  1)1"  kind  t>ii<iii)(h  to  tell  mo  ^.liiit  Mu'  iuHtriictioiiH  wcro? 
•A,  Tlip  iiiHtnu't  ions  were  to  the  ell'cct  tliiit  lit'  hIiouIiI  iirocriMl  to 
"  licliriiiK  Hi'aniKl  contiinu'  there  iih  Ioiik  ii«  iiosHilili',  uiid  to  lie  liuok 
"  Miim-  time  in  tlio  month  of  Sr|itt.'ml>i'r  ut  itiiy  riitr,  to  lie  i(iii(1i'tl  in  ii 
"  iiu'iiHiin'  liy  C!ui)tuiu  IMcLuan-on  tlii'  schooner  '  Fiivouritt' '  iit  that 
"  liiiu' — they  had  agrvtul  to  meet  in  Jtchrinfc  Sea." 

-•^  Turn  to  the  Uecord  — wlien  diil  Captain  Mcl>ean  leave 
till  Sea,  and  did  he  see  the  "OiiwanI  '."  l\v  ii-ft  the  Sea 
An^iust  li>th,  for  he  says,  liecoid,  page  \[VM,  hne  4h: 

•'  {).  Why  ilicl  vou  leave  the  Heu  on  the  I'.tth  August  ?  A.  The  HeaHon 
"  wfts  pretty  well  eloHeil." 

Did  ho  see  tiio  "  Onward  "  '.  Yes,  for  he  took  ftoT  skins 
otV  llie  "Onward  '"  and  hronght  them  to  Victoria. 

Iitrord,  |)age  4o2,  line  5.'),  Captain  Alexander  McLean, 
to  whom  was  entrnsted  the  retnrn  voyage  of  the  "  Ou- 
30w:iiil,"  stated: 

"  (,).  From  yonr  oxperienee  what  would  you  eall  the  uud  of  thoHeal- 
"  111^;  HCiiKon  in  Behrinn  Hea  in  the  yearn  lHMr>  and  1H87  ?  A.  Aliout 
•  tlie  '.illth  of  AuKUHt  I  would oousider  the  end  of  the  seaHou.  I  used 
•■  to  leave  the  Hea  then." 

At  page  4UH,  lino  r>4,  he  says: 

"  (,).  How  many  years  did  you  leave  the  BchriuK  Sea  aliout  the  19th 

"  nr  'J'th  AuKUHt  ?     A.  In  ISHiJ,  the  last  lowering  we  had  iu  the  lleh- 

"  rill),'  Seu  was  on  the  10th  of  Aupust.     In  1HH5,  on  the  2:idof  Aut^ust  ; 

10"  111  l>*^(\  on  the  19th  of  Au^nst  ;  iu  1HH7,  on  the  I'.tth  of  August  ;  iu 

■  l^SH,  on  the  19th  of  August  ;  and  in  1889,  ou  the  'iStli  of  August." 

Tliat  is  all  the  testimony  in  connection  with  the  i>r()- 
|iiisid  duration  of  the  voyage  of  the  "  Onward." 


liartieularhimtir 


Pkoposkd  Voya(jk  of  the  "  Favoirite." 

What  i.s  the  testimony  regarding  the  "  Favourite?"  Re- 
cord, page  i;531,  line  4^: 

50     •■(.).  Wliy  did  you  leave  the  Hea  on  the  19th   of  August?     A.  The 
'■  MiiHou  was  pretty  well  closed." 

Cuptain  McLean's  testimony,  Record,  page  4(>2,  line  ;");■), 
I  liave  just  read  in  connection  with  tiio  "Onward,"  and 
al  iiec'ord,  page  4i>3,  line  M,  is  also  the  testimony  of  this 
Captain  McLean,  which  1  have  read,  and  it  sliowsthat  the 
.Mason  terminated  about  the  2oth  of  August.  That  is  all 
tile  testimony  in  the  Record,  referring  to  the  proposed 
duration  of  the  voyage  of  that  vessel.  When  I  say  all  of 
^it,  I  do  not  mean  that  I  have  read  every  line  of  it,  but 
that  tile  material  fact— the  date — is  brought  out  promi- 
uriitly  in  that  testimony  and  is  contradicted  nowhere. 

1  refei'  no"  to  the  testimony  regarding  the  duration  of 
the  voyage  ot  the  "  Black  Diamond  No.  ."),"  Record,  page 
IT.'m,  line  5(1,  the  testimony  of  Captain  Paxton: 


-..      h 


a: 


wmfmr 


Fi  <    '•: 


818 


)        * 


lO 


(Mr.  Warren's  Argument.) 

"  Q.  Wbv  did  you  start  for  home?    A.  I  was  nfraid  of  a  seizure. 

"Q.  Had  you  any  other  reason  to  leave  the  Behrinn  Sea  exci'it 
"  that  of  being  afraid  of  being  seized?  A.  No,  sir;  I  had  no  otli. t 
"  reason. 

"  Q.  For  what  length  of  time  did  yon  outfit?  A.  Well,  I  exiiected  lo 
"  get  baek  in  the  beginning  of  September. 

"  Q.  You  expected  to  leave  the  IJehring  Sea  about  the  end  of  August  y 
"  A.  Yes,  sir." 

They  claim  to  the  ].")th  of  September  in  the  scliedulc 
The  captain  testitied  that  he  intended  to  leave  Behiiiiij 
Sea  about  the  end  of  August,  and  that  is  all  the  testinxniy 
in  connection  witii  the  proposed  duration  of  the  voyage  of 
the  "  Black  Diamond." 

Duration  of  Voyage  of  the  "  Anna  Beck." 


Next  the  testimony  referring  to  the  duiation  of  tho 
voyage  of  the  "Anna  Beck."   Record,  1(»41,  line  4S,  Cap- 
so  tain  Olsen  testified: 


"  Q.   When  you  entered  the  Sea  in  1887  how  long  did  you  pro] 
'•  to  remain?    X.  Mv  intention  was  to  leave  on  the  last  of  August  if  \ 
••  weather  was  rough,  and  if  a  few  days  fine  I  might  remain  a  lit 
"  longer." 


lost' 

tlll> 

lie 


A  season  is  claimed  extending  until  the  ir>th  of  Septtni- 
ber.  I  refer  to  the  testimony  at  Record,  page  l\2^,  line 
1">,  which  might  be  cited  by  the  learned  counsel  as  con- 
tradicting this  witness.  One  witness  was  the  captain  ami 
^otlie  other  the  mate,  but  there  is  no  contradiction  in  fact. 
At  line  15  the  mate  testified: 

"  Q.  Do  you  know  what  time  the  '  Anna  Beck  '  iutend-d  to  stay  In 
"  Behring  Sea?  A.  Until  after  the  1st  of  September  some  time.  Tlmt 
"  was  the  caloulation;  the  10th  of  September  may  l)e." 

.At  line  55  he  was  asked: 

"  Q.  Do  vou  reallv  know  how  long  ho  intended  to  stav  in  Bi'liriut; 
"Sea?     .V'No. 
"().  You  had  nothing  to  do  with  governing  that?    A.  No." 

4°  That  is  all  the  testimony  regarding  the  proposed  dura- 
tion of  the  voyage  of  the  "  Anna  Beck"  in  18S7,  except  a 
general  statement  of  Captain  Warren,  which  I  will  rctcr 
to  later,  but  the  testimony  of  her  own  captain  siiows  that 
she  was  outfitted  for  a  voyage  to  the  1st  of  September  and 
left  the  Sea  the  last  of  August. 

At  one  o'clock  the  C;onuTiis.'^ioners  took  recess. 


50 


At  half-past   two  o'clock  the  Commissioneis  resnimd 
their  seats. 

If  your  Honors  please,  I  had  before  the  reco 
considered  the  testimony  bearing  on  the  pro' 


"■'<^  citeil  and 
duration 


of  the  voyage  of  a  large  number  of  the  vessels  having 
claims,  and  was  discussing  the  voyage  of  the  "Anna 
Beck." 

When  speaking  of  the  duration  of  the  voyage  of  tlio 
6o  other  so-called  VVatien  vessels,  my  friend  Mr.  Bod  will 
made  an  error.  He  read  what  Captain  Warren  testilii  il 
relative  to  the  year  i6'6'6'  in  connection  with  the  "Sax- 
ward,"  the  "Thornton,"  the  "Dolphin,"  the  "Graiv," 
and  the  "Anna  Beck,"  and  applied  it  to  all  these  claims; 
of  course  it  would  api)ly  only  to  the  "Thornton,"  ns  slio 


8  lit 


^;if^;f  I 


moib  rosiimi'd 


10 


Not  ill  connection  with  tlii'sc  ciainis  for 
-Yes.  it  is  in  my  aigunient,  that  very  quo- 


(Mr.  Warren's  Ar}>;nnieiit.') 

u;is  the  only  on(>  of  lliose  schooners  seized  in  that  year. 
Tlic  testimony  j^iveii  in  relation  to  the  year  IS87  is  foiUKl 
al  page  ll!5t>  of  the  KeconI,  line  ;?(i. 

1  sliali  reaij  the  testimony  of  the  ca|)taiiis  of  the  various 
ships  as  to  the  piohahle  duration  of  the  voyap's  in  1K87. 
W  arreii  himself  was  of  conr.se  in  command  of  only  one  — 
tliongh  he  was  the  manaj^er  of  the  fleet: 

•'  Q.  For  what  Hi'iiMonM  had  thev  atnrtt'il  uiulcr  vour  swiierviHion  ? 
••  A.   lu  1H87. 

••  Q.  YoH,  for  whftt  aeiiKoii;  for  wliat  h'lifjtli  of  time;  wliat  woro  your 
'■  iirnmnciiu'ntH  nmdo  for  V  A.  Woll,  sonio  of  tho  vpbhoIs  I  don't  ex- 
••  lU'tlv  know  how  lou>?  I  intoudod  thi-m  to  Htiiy  out.  I  inttnulod  Rome 
"  of  t\w  veHKtds  to  stiiy  iu  the  Hon  just  hh  h>nn  iih  the  wi-nthor  would 
"  iillow. 

'■  Q.  How  long  could  thoy  liiivo  Htayed  out  iindor  the  arriiugcnieuta 
"  you  had  miid«>  y    A.  The  jirovi»iou»  ? 

"Q.  YeH,  and  animuniti<^u,  and  arnin)(enients  an  to  crows?  A. 
"  'I'licy  could  have  Htaved  out  to  the  end  of  October  for  that  matter. 

••  Q."  In  arraugiug,  tlien,  your  work  and  tilting  them  out  you  saw  to 
-0  ••  it  that  they  could  do  that,  if  the  weather  would  jterniit  V  A.  Yes,  it 
"  was  my  intention  to  send  some  home  witli  the  skins  and  keep  some 
"  of  them  there  in  the  Sea." 

That  is  all  of  his  testimony  on  that  question,  and 

Mr.  Bodwell:-  I  read  that. 

Mr.  Warren: 
the  vear  1887. 

Mr.  Bodwell:- 
t.jlion 

Mr.  Warren:  That  testimony  contains  no  reference  to 
^°tlie  l(>n^th  of  time  the  vessels  would  have  remained  in 
Beiin^i  Sea  The  answer  of  the  witness  refers  only  to 
the  provisions,  and  how  long  the  schoonors  could  possihly 
have  remained  out,  and  savs,  '*  Well,  some  of  the  vessels, 
1  (lon't  know  exactly  how  long  I  intended  them  to  stay 
(lilt     "     ■■'■  I   intended  some  of  them  to   stay  just  as 

Imig  as  the  weather  would  peiniit." 

The  captain  of  the  "  Anna  Beck  "  says  that  he  intended 
to  leave  tlie  Sea  the  last  of  August  or  the  1st  Septemher 
(Record,  p    1(141,  line  4SK     The   claim   is  made  for  all  of 
■*"tlieiii  until  the  ir.tli  Septemher. 

Tin;  Dt :i{ATK)N  ok  thk  Vovaok  of  tiik  "  Am'uki)  Adams.'' 

The;e  is  no  testimony  in  the  Record  of  the  intention  as 
t(i  I  lie  duration  of  the  voyage  of  this  vessel.  This  claim 
\v;iN  pre.sonted  on  the  atlidavit  and  declaration  of  the  mas- 
tiM- aii.l  crew,  and  no  witness  testilied  except  Moritz  (iiit- 
maii.  who  did  not  ttsstify  as  !o  the  proposed  dniafion  of 
till'  voyage  and  who  hail  nothing  to  do  with  it.  But  the 
-pScht'diile  attached  to  the  British  Argument  only  claims  to 
^  Septemher  1st,  not  to  Septeinl)er  ITith,  so  that  claim  is 
not  for  damages  for  lo.ss  of  earnings  to  Septemher  l.^th. 

Tim;  Dukation  oi"  tiik  Vovaok  of  tiik   "  Pathfisdeu." 

TIk!  Counsel  for  (ireat  Britain  admit  that  William 
Miiiisie,  owner  of  the  "  I'athfinder,"  gave  no  instructions 
iis  \i>  the  duralion  of  the  voyage,  hut  tin*  counsel  did  not 
lelci-  to  Captain  O'Leary's  testimony  at  page  7711,  lino  44: 

••  «,>.   In  IHSit  for  wlnit  time  did  you  outfit  V     A.   Until  aliout  the  1st 
(i(i"  Scptenilu'r  ;  I  generally   allowed  to   leave  Hohring  Sea '(/">"/ Me  i.f< 

"  Siiiiriiilii'r  III-  till'  liisl  lit'  August." 

lie  was  the  captain  on  hoard  this  vtvssel,  page  770,  line 

■■  (^.  Wliat  time  ilul  you  leave  that  year?  A.  1  left  there  some 
"  lir.ic  towards  the  end  of  August." 


.ii    .- 


I  • 


fit 


820 


Sif 


fc.r.,!:' 


10 


(Mr.  Warren's  Argument.) 
That  last  answer  does  not  refer  to  1889  of  course. 

"  Q.  The  fact  is  that  that  season  you  hunted  in  the  Sea  about  tijc 
"usual  time  y    A.  Yes. 

"  Q.  And  you  took  600  seals  within  that  period  ?  A.  Yes  ;  I  lift  n 
"  little  sooner  than  I  would  have  left  ;  I  was  short  of  grub  that  ycui. 
' '  We  got  some  of  our  stores  nt  Hand  Point  that  year. 

"  Q.  How  late  in  August  did  you  leave  ?  A.  About  the  25th  of  Au- 
"  gust,  as  far  as  I  oan  remember. 

"  Q.  Von  iieri'r  irrrc  in  llii-iv  liilfr  Ihnii  llif  25///  (if  Aiii/iist?  A.  I ilu  mil 
"  think  so;  that  was  the  last  year  I  was  in  Hehriug  Sea. 

"  Q.  Tlidl  ii-d.i  tlic  /iili'sl  Hull'  /ion  irriv  i-riT  in  Br/irini/  Si'd,  lln-  2'i  ' 
"  An(/nKl?     A.    Vrs,  ton-iirih  tin'  lnnt  iliii/n  of  .\n//iist  nonicn'/n'iv." 

William  Munsie  himself,  however,  has  made  an  affidavit 
whi(;h  shows  iiis  idea  of  the  duration  of  a  proHtahle  scal- 
ing voyage  in  the  Bering  Sea.  I  refer  to  his  affidavit  in 
Vol.  4.  Vage  US.  of  the  American  Reprint  of  the  Proceed- 
ings at  Paris,  vvliich,  when  considered  in  connection  witli 
other  facts  we  Iiave  in  this  Reco!d.  shows  distinctly  his 
idea.     On  that  page  14S,  in  paragraph  7,  he  says: 

"  I  have  this  on  information  given  me  by  the  said  Captain  O'Lciirv 
"  and  by  Captain  Haker  of  the  schoom  i*  '  v  vo.'  also  owned  by  us  iinj 
"managed  by  myself,  and  n^as  m  iirtiru  s,  .,/c  W/o/c  iif  tin'  si^ism,  nf 
"  1S8I).  The  hunting  eqnipu.-i:!,  ni  :..-.  o  schooners  was  abiuit 
"  equal." 

I  refer  now  to  the  testinion";    showing  the  duration  of 
the  voyage  of  the  "  Viva  '"  in  iss'.t,  to  see  what  period  this 
witness  thought  the  entii'e  season  covered.     The  testimony 
30 as  to  the  voyage  is  found  at  jKige  71!),  line  5: 


20 


"  Q.    An'/  ir/nil  ir.is  t/n 
■  A.     T/n'  2'>t/i  Ani/nst." 


tiint  i/iiii  i/ini  tis/n'il  in  Ih'/irini/  Si'H   in    t/nil   i/t-nr? 


That  is  the  testimony  of  the  captain  of  tlie  "  Viva." 
The  "  Viva  "  did  not  leave  the  Sea  liecanseshe  was  warned 
and  feared  seizurn  or  had  lieard  of  seizures. 

Mr.  Hodwell:     Ves.  she  had  lieard  of  seizures. 

Mr.   Warren:-  I    intenil  to  show  f.\;'.ct]y  what  she  had 

heard  of.     1  did  not  let  tliat  fact  escape  me  ('or  a  moment. 

4oCaptain  Maker  nowhere  testified  tiiat  he  left  the  Sea  he- 

canse  of  any  information  he  had  of  any  seizin  e  wliatevor. 

Mr.    Rodweli:-  Si-e  Record,  724  of  our  Ai^;ini<  in. 

Mr.  WairtMi:  1  will  refer,  then,  to  p;!-:-"  7'il  line  40, 
whi<  h  they  depend  on,  and  in  that  conne.:!i"ii  jead  lioin 
page  lis  of  the  Argument  in  Chief  of  (ir  it  '.iritiii,  .as  fol- 
lows: 

•■  With  reference  t(i  the  '  Vivii.'  she  was  uniler  th'  con.,  uv  '  •(  I'up- 
"  tain  W.  K.  Hiikcr;  by  tlic  '21st  of  .Viigust  lie  liad  nmiic  11  <'atcli  nf 
"  '2,1H0  KCiils,  mill  left  the  Hcii  at  tiiat  date.  I'/n'n'  i.t  mi  ilin-r/  sluh  ni'-ni 
t/nit  /n-  /nnt  ill  '/ml  tiinr  rinirri/  uni/  /,niiirlii/<n'  ii/' l/n-  sfimrrn,  but  it  lip- 
pears  tliat  lie  spoke  a  number  of  scliooiiers  in  .Tiily  and  AuK"st.  mid 
having  reference  to  the  iiiovenieuts  of  this  muster  iu  otlicr  ycuis.  it 
is  not  proluibje  that  he  wmilil  have  rctiuiictl  at  so  early  a  date  unless 
he  had  some  reason  to  fear  that  his  viiyii;j;i'  would  be  iiitcrfeied  with 
by  the  cutters,  anil  tlicieby  cansc  the  loss  to  his  ouners  of  the  very 
good  catch  he  had  iiiailc." 


50 


60 


That  is  the  sole  hasis  of  Ihat  claim, 
for  such  a  claiin. 

Mlinsic  te-titied   thai  the  "  Viva  "  \v: 
season,  and  that  she  was  the  mdv  one 


I  is  no  hasis  at 


.■|!i 


•  11  fe  the  <  (itiin 
•  ■  liis  hi/ats  tli.it 
As  to   the  vova);t.' 


was,  and  she  lei t  on  the  :.Mst  August ..... 

of  the  "y;-  ■,  "  ill  i,svs_  jiiul  h(>ariiig  upon  the  point  ,is 
to  when  st:  .renerallv  left  the  Sea,  1  refer  to  lierord.  7-.'ii, 
721  and  7l>:. 


821 


t  the  25th  of  An 


Si'ii   ill    llml   i/iiii'? 


no  li.isis  Ml  .1! 


(Mr.  Warren's  Argument.) 
Proposed  Duration  of  the  Voyage  of  the  "Kate." 

Tlie  statement  was  made  in  oral  argument  by  the 
learned  counsel  for  Great  Britain  tliat  in  none  of  these 
claims,  unless  the  testimony  showed  a  clear  understand- 
iiifj;  that  the  voyage  was  to  be  extended  until  October  1st 
was  the  claim  made  for  a  loss  of  earnings  to  October  1st. 

Mr.  Bodwell:— That  is  not  exactly  as  I  put  it.  I  was 
'^criticising  your  argument  wiiere  you  said  that  we  ex- 
tended the  season  and  I  said  tliat  we  had  extended  it  in 
its!)ect  to  three  vessels,  in  which  there  was  positive  evj- 
(ieiicp  of  an  agreement. 

Mr.  Warren:— That  is  exactly  what  I  said.  The  "Kate" 
is  one  of  these  vessels  whose  season  is  extended  to  Octo- 
ber 1st. 

1  refer  to  the  testimony.  Record,  1:521,  line  .51,  the  cap- 
tain is  testifying: 

20  '•  Q.  Now,  tell  me,  captain,  what  wfiv  your  instructious,  as  to  the 
••  time  you  should  stay  in  the  Sea?  A.  My  instructions  were  to  stay 
"  there  as  long  os  the  weather  would  jjermit. 

"  Q.  Ah  a  matter  of  foct,  what  cauHed  you  to  leave  when  you  did 
••leave?     A.  On  account  of  being  afraid  of  seizure  if  seen  again." 

Tliere  is  certainly  no  positive  statement  there  as  to  iii- 
Btructions. 

At  page  1S71  of  the  lioc  )rd,  line  41,  is  found  tlie  testi- 
iiiDMV  of  Charles  Spring,  the  owner: 

•'  y.  Did  you  or  did  you  not  give  any  instructions  to  tlie  captain  — 
i'^'^  lln'cai)tain  was  Neals  Moss,  was  he  not?     A.   Yes,  sir. 

"  (^.  Did  you  give  him  any  instructions  as  to  the  time  he  was  to  stay 
"  ill  the  iSea?  A.  He  was  to  stay  as  long  as  he  could  possilily  carry  on 
"  Ills  scaling. 

"().  No  more  instructions  beyond  that?  A.  Nothing  more.  I  cou- 
•'  sidcred  that  he  was  well  aware  of  the  work  that  he  had  to  attend  to. 

••(j).  With  ri'i/iiri/  til  jirnn'sidiis,  Imir  liiiii/  iliil  i/iiii  /irnrision  llifhuiil  fur, 
••  II lull  Ifiii/lh  iif  riii/iii/i'?  A.  Aliiiiil  till'  miilillr  iif  Si'/ilfiiiliri;  In  ri'inh  lii'ri' 
"  III  Vicliii'iii/* 


■|0 


"To  reach  here."  'J'liat  is  the  owner  of  the  boat  testi- 
fviiig.  Is  there  a  basis  tbeie  for  a  claim  for  loss  of  time 
toOctoi)er  firstr 

'•  I).  Ho  far  as  provisions  were  concerned,  you  provisioui'd  him?  A. 
"  His  instructions  were  to  see  that  he  was  provisioned  for  the  full 
■  length  of  the  time— somewhere  in  the  middle  of  September." 

At  Record.  1421,  line  8,  Kdgar  Crow  Baker  testifies  as 
til  tlie  duration  of  the  voyage  from  Beiing  Sea  to  \'icto- 
ria.     At  page  1421,  line  22,  he  says: 

'•(,).  So  that  seventeen  days  elajised  before  her  return  here?   Is  that 
J  •' Miui-c   than   the   ordinary  trip   down?     A.   '  '    " 
"Hlniight  back  here.      /  llilii/,lliiil  llu'  riii/m/i 

•■ii.i,,,:' 


I  believe  that   he  came 

litis   hi'rii    iltiiti'  ill    /'iilirli'rii 


There  is  a  man  of  repute  in  Victoria  testifying  that  he 
believed  the  voyage  had  been  done  in  fourteen  days,  and 
thai  an  ordinary  voyage  was  seventeen  days,  so  that  ac- 
ciinling  to  Spring,  the  last  day  that  the  "Kate"  could 
have  been  in  Ber  ing  Sea  would  have  been  the  1st  or  2d 
III' September,  and  her  sealing  voyage  would  iiavo  termi- 
"ateil  before  that  time  because  she  would  have  to  reach 
"'J  Me  I'ass  anil  prepare  to  leave  the  Sea. 

Theie  is  also  the  positive  testimony  of  the  captain  in 
this  case  as  to  the  duration  of  the  season  and  I  call  careful 
alteiiticn  to  it,  because  the  determination  of  the  facts  re 
laling  to  the  duration  of  the  Inuiting  season  involves  a 
lar^^e  sum  of  money. 


Ih 


N 


it 


822 

(Mr.  Warren's  Argiiment.^ 

In  Vol.  4,  American  Hepiint.  page  l'Ol',  is  the  atrnl.ivit 
of  iXeals  Moss,  the  captain  of  the  "  Kate."  relative  to  tins 
voyage,  and  he  says: 

"  7.  Di'furr  lii'iii;/  s/iiiki'ii  /ill  l/'ir  siiiil  ciillrr  mil  iiih'niiiiii  mm  la  ri'mn,,, 
"  in  Berini/  Si'ii  mifi/  llii\/irsl  iif  Se/ili'iiil"'i'." 

That  is  the  captain  of  the  ship  who  makes  that  st;iii.. 
ioment;aii<l  the  owner  Charles  Spring,  made  an  aftid.ivit 
fonnd  on  i)age  2(K5  of  Vol.  4,  of  the  American  Repriiii,  in 
which  he  says: 

"  I  liavp  read  tlie  (leclaration  of  Nuals  Moss  »  «  •  and  I  vcrilv 
"  believe  the  mime  to  be  true." 

There  we  have   the  captain  and  owner  both   testifvin<i 

that  they  never  intended  to   remain   in   Bering  Sea  aftir 

the  first   of  September,   and   the  statements  were  mi.kIi' 

directly  after  the  cause  of  action  arose,  one  being  signed 

2oTth  September,  issit,  the  other  l;ith  of  September.  ISMt. 

Do  yonr  Honors  discover  in  that  evidence  any  trace  uf 
testimony  to  warrant  a  claim  being  made  that  the  "  Kate" 
would  have  remained  in  Bering  Sea  until  October  first? 

The  claim  of  the  owners  of  the  "  Kate  "  is  entirely  '  jti- 
tious. 

Thk    Proposki)    Duration    of   tiik    Voyage    of    the 
"  Wanuerkr." 

The  testimony  of   Captain  Paxton,  I  refer  to  Record, 
30  153S,  line  !♦;  he. 'says: 

"  oil.  I  ex/in/i'it  III  /I'liri'  hIiiiiiI  tin'  2-'it/i  Aiii/iinl." 

I  have  omitted  in  reviewing  the  testimony  relative  to 
the  intended  duration  of  the  voyage,  the  testimony  rclnt- 
iiig  to  some  of  the  vessels,  whicli  I  shall  refer  to  in  dis- 
cussir.g  the  (.'laints  of  tlii>  owners. 

This  te.stimony  establishes  beyond  doubt  what  the  opin- 
ion was  regarding  the  duration  of  the  sealing  season  at 
tlie  time  of  these  occurrences,  and  having  established  so 
4° conclusively  the  fact  that  profitable  hiniting  terminated 
between  August  :iuth  and  August  2M\,  according  to 
the  opinion  of  the  claimants  themselves,  I  dismiss  tlu; 
question. 


Ci,AiM  OF  THK  "Black  Diamond,"'  No.  r>. 

The  claim  of  tiie  owners  of  the  "  Black  Diamond  "  in  Isstl 

demands  but  scant  consideratii>n. 

^        Our  brief  sets  out  the  nature  ot    this  claim.     The  f)lij('c- 

'    tion   to  it  on  behalf  of  the  United  States  is  in  the  iiatnre 

of  a  denitnier.     Our  objections  are  found  in  the  pleadin^^s 

set  out  in  Claim  No.  5. 

The  nature  of  the  warning  alleged  to  have  been  giveu 
this  vessel  was,  that  the  Collector  of  Customs  (there  is  no 
Collector  of  Customs  at  Ounalaska,  however,  there  is  only 
a  deputized  niau  there)  told  the  captain,  July  1.  18St;,  that 
there  were  to  be  seizures  in  tlie  Bering  Sea,  and  thecaptaiii 
says  that  some   time  early  in  Augtist  h<!  decided  to   leave 


60 


the  Sea.  In  the  meantinie  he  sealed  everyday.  Alioni 
the  loth  or  15th  of  August  he  left  the  Sea.  The  captaui's 
testimony  regarding  the  proposed  chnation  of  the  voyajjo 
is  at  Record  17r)7,  line  r)4: 

"  Q.  For  what  length  of  time  (lid  you  outfit?    A.  Well,  I  exjH'ctcil 
"  tn  get  back  in  the  begiuuiug  of  {September. 


II    inis   III    mil, 11, 1 


*     and  I  vcrilv 


iioiid  "  ill  ISMtl 


10 


2<) 


^elj,  I  oxjH'ctoil 


823 

(Mr.  Warren's  Argument.) 

"  Q.  You  expected  to  leave  the  Bebrinc  Sea  about  the  end  of  AuKUsty 
"  A.  Yea,  sir." 

So  if  this  vessel  has  any  claim  whatever  it  is  for  the 
jiiiod  from  the  lOth  or  ISth  day  of  August  to  the  2<ith  to 
'.'..til  of  August.  But  of  this  claim,  and  of  the  law  ap|ili- 
( ablt',  and  of  the  contention,  as  to  whether  or  not  it  is  he- 
toio  your  Honors  to  he  considered,  the  learned  senior 
( (iiuisel  for  the  United  States  will  have  something  to  say. 

No  property  was  taken  hy  the  United  States  Goverii- 
niiiit.  She  left  with  lier  catch  on  Vtoard  and  landed  the 
( ;ii  tio  at  V'ictoria.  A  claim  is  made  in  the  Schedule  in  the 
|;ritish  Argument  for  the  catch  from  the  4lh  of  August  to 
Si  ptemher  1st.  There  is  no  testimony  to  substantiate 
tli.it  claim.  I  iiave  read  the  testimony  of  tlie  captain  as 
ti  when  he  was  to  leave  the  Sea,  and  he  actually  did  re- 
iiiiin  in  the  Sea  until  between  tlio  loth  and  IStb,  accord- 
iiii;-  to  the  testimony  of  the  mate. 

'I'lie  captain  was  Heniy  Paxton,  and  the  owners  were 
.lacob  Gutman,  Alexander  Frank,  the  American  citizen, 
ami  the  captain.  The  question  of  ownership  has  been 
discussed  at  great  length  by  me  earlier  in  my  argument, 
and  our  argument  covers  the  other  facts  in  connection 
with  tiie  claim. 

CL.4IM  No.  !S,  THE  "  ALFKED  AdaMS." 

The  United  States  deny  any  liability  to  the  owners  of 

30 the  "  Alfred  Adams"  by  reason  of  the  fact  that  Alexander 
Frank,  an  American  citizen,  is  tlie  owner  of  half  the 
claim.     This  question  has  been  thoroughly  discussed. 

The  Commissioner  on  the  part  of  the  United  States:  - 
Excuse  me,  Mr.  Warren,  are  you  now  considering  simply 
tii(>  length  of  the  season? 

Mr.  Warren:  I  am  saying  all  we  have  to  say  concerning 
till'  facts  relating  to  these  separate  claims  for  warnings. 

There  is  no  proof  that  the  "Alfred  Adams"  ceased 
Sf  iliiig  or  obeyed  the  warning.     The  claim  wassubnntted 

40011  the  affidavit  of  the  master  and  one  or  two  members  of 
the  crew.  The  affidavit  of  the  master  is  printed  at 
i;('((ird,  page  13<il»,  line  64. 

It  is  true,  if  your  Honois  will  remember,  that  some  of 
tiicse  vessels  were  seized  and  disobeyed  the  warning;  tiie 
(iaiin  becomes  in  those  cases  one  in  the  nature  of  a  claim 
for  partial  loss. 

Tiiere  is  no  proof  that  the  "  Alfred  Adams  "  after  being 
sci/.f'd  did  not  continue  her  sealing  operations.  It  is  a 
kiiiiwn  fact  that  boats  did  seal  after  being  actually  seized 

50  and  ordered  out.  The  "Minnie"  was  seized  on  the  ISth 
liny  of  July,  and  remained  in  the  Sea  until  the  middle  of 
;\ii;;ust,  and  other  vessels  did  the  same  thing.  There  is 
110  proof  that  the  "  Alfred  Adams"  did  not  remain  in  the 
Sta,  and  the  only  fact  in  the  Record  bearing  upon  her 
iiprations  after  that  date  is  thic  statement  in  the  affi- 
davit of  the  master:  "  We  did  not  go  to  Sitka,  but 
arrived  at  Victoria,  British  Columbia,  on  the  Hist  of 
Aiif^ust."  The  learned  counsel,  Mr.  Beique,  contended 
that  because  the  guns  were  taken  she  must  have  neces- 

6osaiily  stopped  sealing.  I  call  your  Honor's  attention  to 
the  luct  that  the  guns  of  tlie  "  Minnie"  were  taken,  and 
sill  did  not  suspend  sealing  operations  but  used  spears, 
and  before  she  was  taken  she  was  not  using  guns,  as  the 
mate  testified  the  Indians  could  not  use  guns,  and  there- 
fiiip  •<ht;  was  in  as  good  condition  after  as  before  seizure. 


(If 


824 

(Mr.  Warren's  Argument ) 

The  claim  is  made  for  a  voyage  extending  to  Septenil .  r 
1st.  The  claim  as  to  the  duration  of  the  voy;i  o 
for  some  reason  or  otiier  is  diminished  by  15  days,'  lit 
the  United  States  contend  with  reference  to  tliat  voyaui' 
tiiat  it  would  have  been  terminated  between  August  '•2>'\]\ 
and  August  25th  in  accordance  with  the  ordinary  dini. 
tion  of  the  sealing  season, 
lo  The  schedule  attached  to  this  claim  in  the  British  Ai;;  i. 
ment  asks  for  a  catch  aggregating  2, 73(»— larger  than  ilu. 
catch  of  the  "Mary  Ellen  "—larger  than  the  largest  catdi 
ever  made  as  far  as  the  Record  discloses  during  the  yt;us 
in  controversy  here. 

Claim  No.  U,  "  Pathfinder." 

The  United  States  deny  any  liability  on  account  of  ihis 
claim  by  reason  of  the  ownership  and  interest  of  AndiYnv 
J.    Bechtel,  an   American  citizen.     This  proposition   li;is 

"° been  thoroughly  discussed,  and  the  facts  '-"lating  to  tlm 
ownershi|)  and  interest  of  Bechtel  ])resente  Counsel  |, ,| 
Great  Britain  admit  that  he  was  equally  interested  in  ihc 
venture  and  the  proof  is  conclusive  that  he  was  a  citi/.c  n 
of  the  United  States  of  America. 

Witli  reference  to  the  duration  of  the  voyage  of  tlio 
"  Patbtindor,"  the  counsel  for  Great  Britain  claim  thai 
the  .season  extended  to  September  15.  I  have  read  in 
connection  with  the  duration  of  the  season  the  testiiiiuiiv 
of  Cai)tain  O'Leary  and  the  owner  Munsie,  and  I  will  ndt 

^°i'epeat  that  testimony.  The  references  to  the  Record  are: 
Page  77;5,  line  44;  page  770,  line  35;  the  affidavit  nf 
Munsie,  page  84;  statement  in  the  British  Argiinuiit. 
bottom  page  08;  voyage  of  the  '"Viva"  in  1888,  refenid 
to  at  pages  720,  721,  727  of  the  Record.  The  testinidiiy 
clearly  establislies  that  the  captain  of  the  "  Pathfimlor  " 
intended  to  leave  the  Sea  the  last  of  August  or  the  fiisl  nf 
September.  Therefore  there  is  no  basis  for  a  claim  (iir 
damages  arising  from  loss  of  time  to  the  15th  of  Seiitem 
ber. 

'^  The  total  catcli  demanded  in  the  schedule  is  2,898  lari^ci 
than  the  largest  catch  ever  made  in  Behring  Sea  duiing 
the  years  in  controversy.  The  testimony  as  to  the  |ii(i|i- 
erty  removed  from  the  "Pathfinder"  is  set  out  in  din 
Argument,  page  418,  where  this  claim  is  considered  ami 
the  statement  is  made  that  the  "  Pathfinder"  took  5o  sials 
after  the  seizure,  and  that  is  the  fact.  The  claim  is  fm  a 
catch  extending  from  July  2!tth  to  September  15th,  ami 
that  should  be  corrected  in  accordance  with  the  fact  that 
is  established  beyond  any  controversy,  that  the  captain 
intended  to  leave  the  Sea  the  last  of  August  or  first  cif 
September.     They  took,  in  the  meantime,  5(i  seals. 

Therefore,  this  claim  is  one  in  the  nature  of  a  claim  tor 
a  partial  l(is.>,  and  the  measure  of  damages  is  the  cliaitfi 
value  of  the  vessel  between  the  date  she  left  the  Sea  ami 
the  ordinary  duration  of  the  sealing  season. 


^o 


Claim  No.  15,  "Black  Diamond." 

In  c(mnection  with  this  claim  I  wish  only  to  refer  to  the 
6otestin)ony  relative  to  the  duration  of  the  season.  Tlic 
claim  is  made  in  the  British  Argument  of  a  season  ii|i  In 
the  J5th  of  September.  The  only  testimony  regarding  tln' 
jtroposed  duration  of  the  voyage  of  the  '  Black  Diamdiul  " 
is  I'oimil  at  page  177<i,  line  1,  where  the  witness  Owrii 
Thomas,  of  whom  we  have  heard  before,  testified: 


825 


(Mr.  Warren's  Argument.) 

•  Q.  For  what  length  of  time  wan  the  vessel  provisioueil?  What 
"  jirovisions  had  you  on  board?    A.  I  had  plenty  of  provisions,  sir. 

•  Q.  For  what  time  had  you  provisioned?  A."  To  the  latter  end  of 
••  ( >ctober." 

That  is  all  the  testimony  as  to  the  duration  of  the  voy- 
aiit!  of  tliat  vessel.  I  refer  to  the  testimony  of  Owen 
Tiioinas  given  in  connection  with  the  claim  of  the  ''  Black 
iol>  iniond"  No.  5,  where  on  cross  examination,  he  ad- 
mitted that  he  did  not  know  anything  ahout  what  the  cap- 
tain intended  to  do;  although  on  direct  examination  he 
stated  what  the  duration  of  the  voyage  would  have  been. 
Tlie  captain  in  that  case  had  testified  that  he  intended  to 
leave  the  Sea  the  last  of  August  (Record,  1757,  line  50). 
At  page  1770,  in  connection  with  the  "Black  Diamond" 
claim  No.  15,  the  witness  Thomas  says: 

'■  <).  You  did  not  limit  yourself  to  provisions;  you  said  that  you 
'•  were  xoing  to  stnv  in  Bearing  Sea  until  the  middle  of  September?'  A. 
20  "  .\tiout  the  10th  oi  September,  or  something  like  that." 

The  captain  had  stated  that  he  intended  to  leave  the  Sea 
till'  last  of  August. 
Now,  at  line  50  what  does  this  witness  say? 

•■(.).  I  want  you  to  be  more  definite  about  it  than  that?  A.  If  I  was 
"  liiiu  I  would  stay  there  until  the  middle  of  September. 

"  Q.  If  you  were  in  his  place?    A.  If  I  were  in  his  place. 

"  (^.  Then  you  are  not  testifying  as  to  what  he  was  going  to  do  from 
"  nliiit  he  told  you?  A.  He  nnvor  told  me  (ini/lhinrf  of  the  nort  as  to  when 
"  //.  inin  f/oiiif)  to  leiire," 

'I'liat  shows  the  value  of  his  testimony  as  to  the  proposed 
duiation  of  a  voyage. 

The  (iaim  in  this  case  is  made  for  acatciiof  3,5!t<)skins, 
and  the  "  Mary  Ellen"  took  2,395,  and  eclipsed  all  records. 

C1.AIM  No.  IC,  "Lily." 

In  connection  with  this  claim  I  only  refer  to  tiie  testi- 
1111  my  as  to  the  duration  of  the  voyage,  which  it  is  claimed 
Wdiiid  iiave  been  September  15tli.  There  is  not  a  word  in 
40  tilt'  Kocord  as  to  the  proposed  duration  of  tlie  voyage  given, 
and,  of  couise,  in  tbe  absence  of  testimony,  our  learned 
fririids  will  have  to  admit  that  the  general  testimony 
given  by  any  witness  concerning  the  duration  of  the 
season  will  control. 


Ill 


'   I! 


m- 


Claui  No.  18,  BIG  "Triumph." 

Cunccrning  this  claim  there  is  only  one  question  in  dis- 
piK''.     It  is  admitted  by  both  parties  that  Daniel  McLean, 

50  whatever  his  citizenship,  and  whatever  his  domicile,  was 
tlie  owner  of  one-third  of  the  vessel.  The  United  States 
claims  that  McLean  was  domiciled  witiiin  the  jurisdiction 
of  the  United  States  during  the  year  18S<),  and  there  is  no 
testimony  tiiat  he  was  domiciled  within  the  jurisdiction 
of  (iivat  Britain.  The  counsel  for  the  United  States 
claiin  that  if  he  was  not  a  citizen  of  the  United  States,  he 
wa-  a  <lomiciled  foreigner  and  therefore  a  civil  citizen  of 
the  United  States.  The  senior  counsel  for  the  United 
Stales  will  consider  the  legal  rights  of  this  claimant. 

60  Tilt'  only  other  question  in  dispute  is  as  to  the  duration 
of  tilt'  season.  This  is  one  of  the  claims  where  the  coun- 
sel (  xteiul  the  season  to  October  1st,  and  u|)on  what  testi- 
MKiiiy,  I  ask  your  Honors?  The  testimony  of  the  owner 
is  the  testimony  that  the  claim  is  based  an,  and  that  is 
foiniil  at  Record,  page  1120,  line  44.    And  because,  if  your 


t  !  ' 


W' 


mm- 


820 


,  <f  ■}) 


(Mr.  Warren's  Argument.) 

Honors  please,  there  is  so  much  involved  in  this  uiijist 
claim  ot  an  extended  season,  1  ask  the  time  to  coiiMii.i- 
briefly  tiiis  testimony  of  Edgar  Crow  Baker,  the  ownfi : 

"  Q.  Did  yon  give  him  any  inHtruftious  iisto  the  time  that  ho  hIh  iiM 
"  Btny  in  the  Sea?  A.  H'l//,  of  nmrsi;  J  nin  ni.l  rnitlii  pnsilirr  ./...  ,„. 
"  slnitiidiin.  I  was  niiiiply  ou(?  of  the  partnerH  mauagni^  the  attaii  -  of 
"  the  schooner,  nm/  a  i/timt  ilful,  jifirsmiri/i/,  irtmlil  lir  ('■/I  In  MiL"iii'^  ,,<. 
10  **  I'l'iiidft,  hf'fftusf  if  irits  Itf  lliiit  fjtit  nil'  til  I/O  info  thiit  rriitiii'i'.  ^'iilm;,  ,_  ^ 
"  imii/il  In'  ijiiiili'il  I'll  his  i-i'jiurl  IIS  In  Hir  lirnimsliiinis  ir/irii  In'  irns  In  ri  -u 
"  But  it  was  distiuetly  understood  between  him  and  mvsclf  that  lie 
"  wonUl  remain  there  to  the  very  hist  of  the  season  tliat  he  cuiiUl 
"  catch  seals,  .s-o  us  In  iisn-rlniii,  if  pussibli',  lii:ir  Inmi  Hull  srnsnit  miii'i  ./,,/ 
"  mill  rniilil  Insl. 

"  Q.  Was  there  any  understanding  at  all  to  that  effect?  A.  V(>~.  he 
"  was  to  remain  there  until  late  iu  September. 

"  Q.  That  was  fully  understood V   A.   Fully  understood  between  him 

'*  and  nie.      In    fin 'I  In'    n'llnlril  In  liiimt'   siitili'thtnij  illiniit  il'ltill  hrrnihi   <■'   /ht^ 
"  srii/s  ii/Irr  lliiii  li'fl  Ihi'  S''ii,  iin'/iiilini/  lln'  Priln/lnff  Islniiils,      Hr  ininh  'I  to 
'*  i/n    If    Hull'    rniinifi'   nf  ilisrnri'l'if   In  it   rri'filitt    I'xtniit,  itilli  tl'tfri'  t/trui   >mil 
20  "  1 1  I'll! II  fill  II  lln  sniiii'  si'iiliini  iit  llii'  snnir  linn'." 

The  Government  of  the  United  States  to  pay  for  t hi  se 
ves!-els  going  on  voyages  of  discovfi-y,  if  your  Hoikjis 
please,  and  for  them  to  •' probably  do  some  seahng  ;it  the 
same  time! " 

Mr.  Bodwell: — Wiiy  do  you  not  read  the  next  qutstinn' 

Mr.  Warren:— I  intend  to  read  it  all: 

"  Q.   It  was  mentioned  between  you,  or  understood,  that  he  cnuM 

"  stay  there  until  pretty  late  iu  Heptember  ?    A.  Oh,  yes.     Tlir  pre- 

30  "  vious  year  he  had  come  back  on  the  10th  of  September,  and  lie  had 

"  everything  on  board  that  would  enable  him  to  stay  there  until  the 

"  end  of  the  year  for  the  matter  of  that." 

If  your  Honors  please,  let  nie  refer  you  to  the  iiccdid 
at  page  7oi',  line  ;$0,  which  shows  that  the  last  day  ot  the 
"  Triiunpii  "  in  the  Sea  in  1SS8  was  Au(just2nth.  That 
is  how  he  remained  the  year  before  up  to  the  loth  of  .">fp. 
tember.  We  have  the  testimony  given  l)y  Mr.  i!iik>r 
with  tlie  book  of  the  captain  in  his  hand,  which  said  his 
last  sealing  day  was  Auyiist  i'dlh,  but  the  last  day  he  lunk 
'*  seals  teas  Augttst  l.'/th. 

Aie  the  United  States  to  pay  for  the  charter  value  nf  a 
vessel  based  upon  a  catch  of  seals  to  be  made  up  to  the 
1st  of  October,  because  this  captain  wanted  to  go  aii  « 
little  roi/aije  of  discorerij,  and  liad  provisions  enough  to 
last  him  until  the  Hist  of  December? 

In  our  argument  (page  443)  we  make  this  observatidii: 

"  If  the  testimony  of  an  owner,  who  was  never  in  Bering  Sen.  tn  the 
"  effect  that  he  had  instructed  his  captain,  who  was  a  man  of  Uiug 

50  "  experience  in  the  sealing  business,  to  stay  in  the  Sea  as  late  us  poa- 
"  sible,  is  to  outweigh  the  positive  statement  of  that  captain  that  the 
"  sealing  season  terminated  toward  the  last  of  August,  the  opinions 
"  of  all  thinkiug  minds  I'egardiug  the  weight  to  be  given  testiniimv  of 
"  this  nature  will  be  disregarded.  Again,  if  the  statement  of  a  wit- 
"  nesH  interested  in  the  results,  to  the  effect  that  he  iustru<'tril  his 
"captain  to  go  on  '  a  little  voyafe  of  discovery,'  to  trace  if  pos'-ible 
"the  seals  when  they  left  the  Pribyloff  Islands  to  proceed  cm  their 
"southward  journey,  and  'probably  do  some  sealing  at  the  >inm> 
"  time,'  is  to  be  taken  as  a  basis  of  establishing  the  duration  of  the 
"  sealing  voyage  in  Bering  Sea,  against  the  testimony  so  clciirly 
"  establishing  the  termination  of  the  sealing  season  between  tin'  Juth 

gQ  "  and  25th  of  August,  there  would  have  been  little  need  of  cxaniiniii!,' 
"  to  sijch  great  length  so  many  witnesses  concerning  the  jiomrai 
"  subject  of  the  ordinary  period  during  which  sealing  operations 
"  could  be  continued  with  profit  in  Bering  Sea." 

The  testimony  of  this  captain  upon  whose  discrition 
the  owner  said  he   relied,   is  found  at  page  1821  of  the 


Bfect?     A.   Yo-,  lie 


next  qiU'stiuiii 


5  observatimi; 


10 


837 

(Mr.  Warren's  Argument.) 

l.'ccorrt,  Iine45.  Captain  Daniel  McLean  male  an  affidavit 
in  18S»2,  in  which  he  stated: 

•  I  usually  enter  the  Bebrinp;  Sea  during  the  fore  part  of  July  and 

'•  liiirf  tilt'  litat  (if  AiKjiisI,  T/ir  Si'ii  lii'itiiiii'.i  liio  ri,ii)//i  In  mnki'  it  prdfiUible 
'•  /..  Iiiiiil  .inil  iifin-  Aiii/iisl.  mill  it  m  tin' /iriirliii'/nr  ni-nrli/iill  rfusi'ls eiiijuf/ed 
"  (II  liiiiitiiiij  sail  to  li'iirt'  iiliiiiit  thill  liiiii:" 

If  your  Honors  please,  if  Daniel  McLean  wished  to  stay 
in  Hering  Sea  to  pursue  the  seal  herd  into  the  Pacific 
( Lean,  and  indirectly  to  find  some  means  of  hunting  them 
there,  a  pastime  which  had  been  indulged  in  before  with- 
(piit  success  by  captains  sealing  out  of  Victoria,  is  the  United 
States  to  pay  for  the  time  of  this  vessel,  and  tbe  catch  of 
this  vessel  during  that  time?  If  so,  then  tbe  testimony  at 
\  ictoria,  or  much  of  it,  has  been  taken  in  vain. 

Thk  Claim  of  the  Ow.neks  of  the  "  Kate." 

2°  The  "  Kate  "  was  v.-arned  to  leave  Bering  Sea  under 
t  hi  cat  of  seizure,  August  13th.  No  part  of  her  outfit  or 
cntio  was  seized,  and  the  vessel  dejjarted  with  her  catch 
dl  770  odd  seals,  .according  to  the  testimony  of  Spring 
(Record,  page  1372,  line  1.5).  In  that  connection  I  de- 
sire to  correct  a  statement  in  the  argument  of 
the  United  States  at  the  top  of  page  458.  where  the 
statement  is  made  that  the  catch  was  73(»  or  740.  The 
witness  Spring  testifies  that  the  catch  was  770  odd  (Rec- 
ord, p.  1372). 

30  The  "Kate"  continued  her  hunting  operations  from 
the  day  after  the  13th  of  August  every  day  *!iat  it 
was  possible  to  hunt  up  to  and  including  the  18th  of 
August.  The  witness  Reppen,  who  was  mate  on  the 
voyage,  testified  at  page  1382  of  the  Record,  line  44: 

"  Q.  Now,  wait  a  minute.  The  fact  ia  that  between  the  15th  day  of 
"  .\u(?u8t  and  the  18th  day  of  August,  inclusive,  it  was  so  stormy 
•'  that  vou  could  not  lower  a  sealing  boat;  was  it  not?    A.  No,  sir. 

"  Q.  What  do  you  mean  by  that;  it  was  or  was  not?  A.  You  couldn't 
"  lower;  it  was  strong  and  windy. 

"Q.  So  that  if  you  had  not  been  warned  on  the  13th,  on  the  16th, 
'  17th  and  18th,  you  could  not  have  lowered  your  boats  any  way,  could 
'  you?    A.  No,  sir. 

"  Q.  It  appears  that  one  day  after  the  13th  of  August,  which  was 
'  tlie  day  upon  which  you  were  warned,  that  your  course  was  north- 
erly? 'a.  Yes,  sir. 

"(j.  That  would  indicate  that  you  were  sailing  way  from  the  Pass? 
'  A.   Yes,  sir. 

"  Q.  So  that  you  were  not  attempting  to  get  out  of  the  Pass  as 
'  iinii'kly  os  you  could  after  you  were  warned,  were  you?    A.  No. 

"Q.  You  left  Behring  Sea  thai  year  about  the  time  the  nasty  weather 
'  m4  in,  did  you  not?    A.  Yes,  sir. 

"  Q.  And  about  the  time  that  the  westerly  winds  were  beginning  to 
'  lio  the  prevailing  winds,  strong  westerly  winds,  is  that  not  so?  A. 
'  Vl's,  sir;  we  were  getting  westerly  winds  all  along. 

»«*«  i  *  *  *  * 

"  {).  And  you  think  that  you  cauio  out  in  1889  when  pretty  nasty 
•  w<'iither  was  beginning?  A.  Yes;  some  fine  weather,  too,  before  we 
'  wi'ut  througii  the  Pa.-ts,  and  then  it  started  in  nasty  afterwards. 
'  Fine  weather  the  day  before  we  went  to  the  Pass. 

"  ().  It  was  not  fine  weather  the  day  before  you  went  to  the  Pass? 
'  \.  Two  days  before  that. 

■'(^.  The  15th  was  the  last  fine  weather  you  had?     A.  Yes. 

■•(.}.  And  you  lowered  your  canoes  on  that  day?    A.  Yes,  sir." 


40 


;o 


60 


Slie  took  140  sea!  skins  after  her  warning. 
Tile  Commissioner  on  tbe  part  of  the  United  States:  — 
lie  British  case  says  OH. 

Mr.  Warren:— The  witness  Moss,  at  p.age  13H8,  line  45, 
-ilitit.s  she  had  taken  771  seals,  and  at  page  1372  Charles 


IH' 


i-l 


wm 


888 


(Mr.  Warren's  Argument.) 

Spring  says  tliey  had  770  odd.  The  Uci-ord  shows  tli  it 
she  had  (i3(»  aboard  when  she  was  warned,  which  woihl 
leave  141  taken  after  she  was  warned. 

Mr.  Bodwell:-- At  |)age  1:538,  line  33,  he  says  that  on  \Ui- 
14th  of  August  he  got  10  seals  on  the  15th  he  got  i'tl  n\.<{ 
on  the  Itith  1,  which  makes  HS. 
Mr.  Warren:— Yes,  hut  that  does  not  include  the  sciU 

lo taken  on  the  13th,  the  day  she  was  warned. 

I  .say,  therefore,  that  this  claim  heconies  one  for  a  p.u 
tial  loss  or  for  lo.ss  of  time  from  the  I8th  day  of  August  lo 
the  close  of  the  season.  Counsel  foi  (Jreat  Britain  li;i\o 
used  the  date  of  October  1st  for  th.e  close  of  the  season.  I 
have  read  your  Hoiiors  the  testimony  of  the  owner  ami 
cajttain  that  this  voyage  would  have  terminated  the  la-t 
of  Augiif-t  I  will  not  lepeat  that  testimony  bearing  u|m.ii 
the  duration  of  the  "Kate's"  season,  hut  only  give  tin' 
references,     liecord.  page  13.S7.  line  .M;  page  1371,  line  II; 

2opage  14:il,  line  8;  allidavit   in  Volume  TV..   American  ir 
print,  at  page  '2i)2,  and  also  jtage  :io3.     Therefore,  theonly 
claim  that  the  "Kate"  can  have  on  the  undisputed  tisli 
mony  is  for  her  charter  vahn;  or  whatever  the  measure  nf 
damages  is,  from  the  I8th  of  August  to  the  2nth  or  L'.".tii 
of  August. 

There  is  no  dispute  about  the  facts  regai'ding  the  tcrntina- 
tion  of  this  voyage,  if  the  Record  is  consulted  to  ascerlam 
the  facts,  and  there  is  no  justification  for  that  dato-<  i, . 
toiler  first.     The  learned  counsel,  Mr.  Bodwell,  found  f.inli 

30  with  the  statement  at  page  4tiO  of  our  argument,  wiiiih 
statcMient  was  inserted  witliont  tlie  citation.  I  give  yoin 
Honors  the  citation  now  — page  14:il.  line  s,  of  the  Kecdiil, 
which  estal)lish(>s  the  statement  beyond  a  doubt. 

Now,  to  refer  to  the  facts  concerning  the  catch  of  tlii-; 
schooner  "  Kate."  She  counneuced  .sealing  on  July  l'oiIi, 
and  sealed  uninteriuptedly  until  August  13tli,  at  whi.  h 
time  she  had  taken  t>3(>  skins,  and  we  are  not  in  (lis|iuti' 
about  that  fact.  The  citation  for  her  first  lowering  day  is 
page  138S,  line  .'i;')  of  the  Record;  and  the  citation  for  I  Ik 

40  number  of  skins  she  took  is  i>age  13s!t,  line  2\  of  the 
b'ecoid.  The  number  of  days  on  which  she  couM  bunt 
would  be  L'4,  and  her  catch  per  day  would  be  2i<  skins. 
She  hunted  every  day  between  the  1311i  of  August  and  tlu' 
Isth  of  August,  and  took  14o  skins  which  can  be  leM  (ml 
of  consideration.  The  best  possible  view  that  can  In- 
taken  of  the  case  for  the  claimants,  is  that  her  sealing; 
season  would  have  lasted  until  the  first  of  SepteiulM  1. 
We  contend  it  would  have  ended  on  the  ^Otb  or  2.Mii  nt 
August,  but    taking   it   until  the  Hist  of   Septeniber.  slir 

Sowould  have  13  days  remaining  including  August  1^  lu 
bunt.  .\s  she  had  taken  previously  :.'6  skins  per  day  - 
during  the  best  season  for  hiuiting  m  Bering  Sea,  iiaiin  Iv, 
from  the  lath  of  July  to  thel.'itb  of  August  — as  was  stitnl 
here  by  my  learned  friend.  Mr.  Bt)dwell,  in  the  oral  ar::ii 
ment  at  Halifax-  if  she  hail  contiimed  taking  skins  at  tln' 
same  rate  she  would  have  secured  33.s.  Hut 
they  claim  that  she  would  have  taken  ll'.'i, 
for"  which  they  want  si'l,!t;'>4.  Twenty-one  tln'ii 
sands,   nine    hundred    and    thirty-four    dollars,    for    th'' 

60  use  of  the  "  Kate"  from  the  isth  day  of  August  to  ilir 
L'olh  or  25th  day  of  August,  or  to  the  first  day  of  Srp. 
tember  at  the  latest! 

Consider  the  extravagance  of  these  claims,  if  your  Ilnii- 
01s  please.  The  date  set  down  in  the  argument  of  tin; 
Hiitish   counsel   is   ab.solutely  unjustified  by  the  Recoi'l, 


Lide  tlio  st;il> 


(Mr.  Warren's  Argument.) 

niil  the  number  of  seals  that  it  is  claimed  wouM  have 
li.  'U  taken  after  the  13th  of  AuRiist,  is  without  any 
1,  on  or  basis  whatever.  I  say  that  it  is  without  any 
li  -.is,  and  I  will  com|)are  it  with  the  catch  of  the  "  Mary 
Kli-n"-  which  is  used  as  a  basis  by  Great  Britain— to 
shitw  that  even  that  affords  no  foundation  for  it.  I  have 
in  re  some  fijjurea  prepared  by  my  learned  associate  Mr. 

10 1  1  using,  and  he  will  vouch  for  their  accuracy.  The 
"  Kate"  took  (530  seals  from  July  2(»th  to  August  13th 
Willi  S  canoes.  I  say  8  canoes,  but  the  testimony  is  in 
conflict  with  regard  to  that.  However,  it  is  immaterial, 
1j(  rause  when  wo  come  to  multiply  the  catch  by  the  num- 
ber of  canoes,  if  we  use  a  largo  or  small  number  it  will 
ni,il<e  no  difference.  The  ''Kate's"  catch  from  July  20th 
t(i  the  13th  of  August  vvas  an  average  daily  per  canoe  of 
\.i<-,:>.  The  daily  average  for  a  boat  on  the  "  Mary  Ellen  " 
I'm  the  same  |)eriod  was  lo.""),  as  taken  from  table  "C" 

:opi'  I'ared  by  Mr.  Lansing.  That  is  ten  times  the  average 
(il  (Hie  of  the  canoes  of  the  "  Kate."  A  boat  on  the 
"  Maty  Ellen"  had  an  average  daily  catch  from  August 
14tli  to  August  the  24tb  inclusive,  of  5.0.  One-tentii  of 
.•i,i;  would  give  the  jiiobable  average  daily  canoe  catch  of 
111.  •'  Kato"  as. 50.  Therefore  with  the  eight  canoes  dnr- 
iii-  these  eleven  days  the  "  Kato"  might  have  taken  5o 
skins.     She  actually  took  141. 

Tlie  Commissioner  on  the  part  of  the  United  States;  — 
Oil  von  make  a  counterclaim  for  these? 

30     Mr.  AVarren:— We  have  omitted  that,  your  Honor. 

That  calculation  is  made  on  the  basis  of  the  "Mary 
Ellen,"  and  it  is  so  fairasto  commend  itself  to  every  one's 
jiidjiinent.  The  "  Mary  Ellen's"  catch  iscompar'^d  with  the 
••  Kate's"  actual  catch  from  July  14th  to  August  13th  — 
tlicie  is  no  (juestion  about  how  many  canoes  and  about 
tlii^  thing  or  that,  but  working  power  is  compared  with 
Will  king  power,  and  the  ])roporlion  is  ascertained,  then  the 
prnlialtie  catch  of  the  "Kate"  is  estimated  accoi'ding  to 
tliL'  iHoportion  her  catch  sustained  in  the  past  to  the  catch 

40(il  the  "  Mary  Ellen,"  on  the  basis  of  what  the  "Mary 
KIKn  ■■  actually  did  after  August.  13th,  and  she  is  entitled 
td.'iii  seals,  but  she  actually  took  141,  and  they  want  ^22,- 
;',M  Cur  this  claim. 

Claim  No.  21,  "  Patukixdku." 

Ti'is  claim  arose  out  of  the  seizure  of  the  "  Pathfinder" 
in  .N'rab  Bay  in  ISIM).  Xeah  Bay  was  then  in  what  was 
till  Tell  itory  of  Washington,  and  what  is  now  the  State 
of  Washington.  The  facts  relevant  to  this  case  are  set 
jOoiH  fully  in  the  printed  argument  on  behalf  of  the  United 
Sl;iirs.  at  page  402,  and  the  law  appli.  il/i-!  is  discussed  at 
Irii-ili  at  page  150. 

Claim  No.   li>.  "  Arikl.'" 

rill  "  Ariel"  was  warned  on  the  30tli  of  Jnly.  Within 
lliivr  hours  after  she  was  warned  she  lowered  her  boats 
and  took  120  seals  that  day.  She  continued  sealing  from 
thai  ilay  uninterruptedly  until  the  ITtli  day  of  August; 
t'Vii  \  (lay  she  could  hunt,  operations  were  carried  on,  and 
^tlial  is  sworn  to  by  the  master  of  the  schooner. 

Ill  the  argument  on  behalf  of  the  United  States  the  con- 
tent,mi  was  made  that  the  "  Ariel  "  was  not  entitled  to 
liainai^i's  for  loss  of  time  beginning  the  3oth  day  of  Jnly, 
wliuli  claim  was  made  in  the  British  argument  in-chief; 
and     j\v  on  the  oral  argument  our  learned   friend  Mr. 


!■    '■ 


i.. 


!H' 


■1' 


880 

(Mr.  Wniron'H  Argument.) 

Bodwell  practically  agives  with  tho counsel  for  the  Unit.  .1 
States,  for  he  sajH,  that  the  "Ariel"  hunted  until  ilni 
17th  or  18th  (lay  of  August.  Therefore  this  claim  is  i  ,i' 
damages  arising  from  tht«  loss  of  timo  hetween  the 
IHth  day  of  August  and  the  ordinary  dunifiMn 
of  the  sealing  season,  which  is  llu'  iitith  ,,[• 
Sfltli  of  August.  The  claim  amounts  to  nothing  in 
lofact,  yet  if  yoiu'  Honors  please  the  claiu)  is  modestly  niul.) 
against  the'United  States  for  !t<20,(it;i. 

There  was  not  a  ^eal  skin  taken  otT  the  "  Ariel;"  tinu' 
was  no  property  of  any  description  taken;  and  these  fiu  ta 
are  admitted.  The  claim  is  entirely  for  loss  of  ca1(  h. 
This  claim  is  treated  at  great  length  in  our  argument,  1m>. 
cause  f»f  the  fa(  t  that  a  claim  was  made  for  the  prospiit- 
ive  catch  that  is  estimated  would  have  been  made  l.'. 
tween  the  Itoth  of  July  and  the  1st  of  OctoluM'. 

Wc  discredited  the  testimony  of  Captain  Bucknani.  ami 
20that  captain  did  give  false  testimony  at  Victoria;  and  Ids 
testimony  regarding  the  prohahle  duration  of  the  seasnn 
ought  not  to  he  given  any  weight.  He  testified  wlnn 
first  on  the  witness  stand  that  he  could  not  tell  the  daii' 
the  "  Ariel  "  left  the  Sea,  because  he  had  lost  his  Ix^iks, 
but  left  the  impression  on  direct-examination  that  he  at 
once  left  the  Sea  when  warned  July  30th.  Hetiiedto 
avoid  the  conclusion  that  this  was  false  by  saying  after, 
waul  he  meant  the  log— I  believe  ho  did  say  ihe 
log  to  l)e  correct— but  he  produced  when  he  was  again  mi 
30thestaiula  "  niemorandum  log,"  which  stated  that  lie 
left  the  Sea  on  the  JOfli  of  August,  and  he  was  a>kt'd 
when  he  last  saw  that  i  'imorandum  book,  and  reulied 
that  he  .saw  it  shoitly  '  re  he  took  the  stand  the  liist 
time. 

The  nation  that  def...  against  claims  of  this  kind 
labors  under  a  great  disadvantage,  because  the  knowled;,'^ 
of  the  facts  is  almost  entirely  within  the  minds  of  the 
claimants  themselves,  or  their  employees,  and  when  ynm 
Honors  discover  that  a  witness  is  endeavoring  to  nii>l(  ad 
4° and  deceive,  I  conceive  you  will  give  little  weight  to  any 
part  of  his  testimony. 

He  te.stified  that  he  left  the  best  sealing  ground— an.l 
that  is  the  claim  now  advanced;  mildly  contended  for,  to 
be  siire,  by  the  counsel,  but  nevertheless  presented. 

We  have  prepared  charts  of  the  course  from  the  liifi 
of  the  "Ariel."  and  I  file  a  chart  of  the  course  of 
that  ship  in  connection  with  my  argument.  The  "  Arid  " 
hunted  over  what  counsel  are  pleased  to  call  "the  best  pes 
sible  grounds"  within  the  entire  watersof  Behring  Sea  after 
SOshe  was  warned,  and  she  took  in  that  time  444  seal  skins. 
She  hunted  through  the  watei-s  called  in  the  British  ari;u 
ment  "  the  best  sealing  grounds,"  the  foundation  for  whidi 
statement  is  Townshend's  chart,  taken  from  Senate  K.\. 
Doc,  page  137,  and  she  went  directly  through  these 
grounds.  She  sailed  over  the  grounds  that  the  "Maiy 
Ellen,"  the  famous  sealing  vessel  of  1886,  sealed  over.  She 
crossed  and  she  recrossed  the  grounds  that  the  "Maiy 
Ellen  "  covei-ed.  She  crossed  and  recrossed  the  groun<l  of 
the  "  Favourite,"  the  schooner  that  made  the  largest  catch 
6o  but  one  ever  made  in  Bering  Sea,  and  she  hunted  every 
day  that  she  could  in  the  sea,  after  the  warning  given  dm 
the  3oth  day  of  July  until  the  17th  day  of  August. 

The  only  way  that  a  claim  could  be  made  for  this  vessel 
was  to  claim  from  July  30th,  although  it  is  not  denied  tliat 
she  continued  hunting,  and  extend  the  close  of  the  season 


K31 


(Mr.  Warren's  Argument.) 

til  tho  first  of  October.  Tlje  modest  demand  for  li!il7,Cll, 
till)  alleged  value  of  the  sealskins  thaf  would  have  been 
ttihen,  is  mado. 

Wo  have  prepared,  if  your  Honors  please,  a  statement 
ol  the  catch  of  the  "  Ariel,"  made  after  the  date  of  the 
winning  and  before  the  date  of  the  warning,  and  we  have 
cMinpared  that  with  the  actual  experience  of  the  "Mary 
ioKllon,"and  let  us  see  to  what  the  "Ariel"  is  entitled. 
Tlicsii  figures  are  prepared  by  Mr.  Lansing,  who  will  vouch 
f(M  their  acciu-acy.  The  "Ariel"  tooi<  400  skins  from 
July  12th  to  July  30th  with  six  boats,  the  average  daily 
CMtch  per  boat  being  3.07  skins. 

Tlie  Commissioner  on  the  part  of  the  United  States:— I 
liavo  34»]  skins  here,  where  did  I  got  thatJ 

Mr.    Warren:— The   "Ariel"'  took    844  skins   for  her 

entire  voyage,   according  to  the    testimony  of  Captain 

p>ii('knam  (p.  704,  line  f>),  and  444  after  the  warning.     The 

jotlill'orence  is  400,  which  she  must  have  taken  before  her 

warning. 

The  Commissioner  on  the  part  of  the  United  States:— 
Tilt'  case  for  Great  Britain  says,  that  she  took  485  after  the 
wiuiiing. 
Mr.  Peters:  -And  you  will  find  that  is  correct. 
Mr.  Warren: — If  my  figures  are  not  correct  T  will  give 
till' correct  figures  later.  She  took  4oo  seals  from  July 
IL'tli  to  July  30th,  and  with  six  boats  this  would  give  an 
average  daily  per  boat  of  3.<»7  skins.  The  average  daily 
lopi'i  iioat  on  the  "  Mary  Ellen  "  in  the  same  period  was  8 
skins,  accordinjj  to  table  "  C  "  presented  by  Mr,  Lansing. 
'I'lic  average  daily  catch  per  boat  of  the  "  Mary  Ellen  "  to 
Aii;iiist  17tb  from  July  ;!lst  was  s.i3«i  skins,  and  the  ratio 
is  tliiMi  S  :  8,130  ::  3.7  :  +•  Figured  out,  the  average 
ilaily  catch  per  boat  of  the  "Ariel"  from  July  3Ist  to 
Aiijiust  17tb  inclusive  would  have  been  3.701  (that  is + 
ill  the  proportion  would  be  3.701)  and  for  T)  boats  (one 
having  lieen  lost)  for  is  days  the  catch  would  have  been 
;i:'.ii  skins.  That  was  what  the  "  Ariel"  was  entitled  to 
take  on  the  basis  of  the  "  Mary  Ellen's"  catch,  but  she 
dill  take  444,  according  to  her  own  figures;  and  if  coun- 
sel tor  (iieat  Britain  is  right  in  saying  that  she  took  485, 
tlicii  she  took  that  many  more  than  she  was  entitled  to 
take  on  the  basis  of  the  "  Mary  Ellen's  "  catch. 

Mr.    Peters:— That    shows    your    argument    must  be 
wniiig. 
Mr.  Warren:— Not  on  the  basis  of  the  "  Mary  Ellen." 
If  she  had  sealed  until  the  24tb  ot  August  she  would  have 
taken  470  skins,  and  she  actually  took  444,  or,  according 
5otii  tlie  counsel  for  Great  Britain,  485.  and  they  want  as 
damages  for  the  owners  of  this  ship  §17,011.     These  fig- 
uies  with  regard  to  the  "  Mary  Ellen  "  cannot  be  wrong 
as  applied  and  presented  in  these  tables. 

The  Commissioner  on  the  part  of  Great  Britain:— What 
you  mean  is  if  she  preserved  the  same  ratio  as  the  "  ?>iary 
Ellen  "  after  the  date  of  the  warning,  that  she  did  prior 
to  the  date  of  warning,  it  would  have  yielded  her  thennm.- 
lier  I  if  skins  you  meiHion? 
Mr.  Warren: — Your  Honor  is  perfectly  right  as  to  my 
(ionuaning.  The  working  power  of  the  "  Ariel "  is  compared 
with  the  working  power  of  the  "Mary  Ellen"  for  the 
same  period,  when  neither  were  warned;  then  the 
aitiial  catch  of  the  "  Mary  Ellen  "  is  taken  after  the 
date  the  "  Ariel  "  was  warned  and  continuing  the 
catch  of  the  "  Ariel  "  in  the  same  proportion,  we  have  the 


40 


it  I 


w^ 


Kn;ri 


U:':u 


882 

(Mr.  Warren's  Argument.) 

"Ariel"  taking  more  skins  than  she  was  entitled  to,  mnl 
yet  they  claim  $17.('»ll. 

This  shows  conclusively  tliat  this  claim  is  entirely  tic  li- 
tious  and  the  result  of  the  dishonest  and  very  appari'iit  it 
tempt  of  the  captain  to  estahlish  as  a  fact  that  lie  oIr'VimI 
the  warning  given  July  Hoth,  when  in  fact  heremaiiuil  m 
the  Sea  hunting  until  August  17th,  and  did  not  aclmilly 
10 leave  the  Sea  until  August  twentieth. 

I  shall  refer  briefly  to  the  testimony  regarding  the  dura- 
tion of  the  voyage  of  this  ship.  Before  doing  so  I  wisli  tt* 
read  the  testimony  of  Captain  Bucknam,  found  at  Recon!, 
page  703,  line  41 : 

"  Q.  You  were  in  the  '  Ariel'?    A.  Yes. 

"  Q.  Wlien  did  you  go  into  the  Sea?  A.  I  don't  know  the  date.  It 
"  was  about  the  10th  of  July. 

"  Q.  And  how  long  did  you  stay  in  the  Sea?  A.  Jmitr  oitl  uliom  !/,,■ 
"  30th  Juhi,  Iihii.k." 

^^     (Janie  out  about  the  ;U)th  of  July!     Why,  he  came  out  on 
the  20th  day  of  August.     Are  we  to  believe  this  witness? 

"  Q.  I  want  to  know  the  date  you  went  out;  how  lonf?  did  you  tutli 
"there?  A.  1  ilmi'l  k-iidw  tin-  ilnh:  TVn-  sliiji's  h<i<i/,s  uiv  IdUl  iiiitl  till'  ',,,/ 
"  liiHik  iilsii." 

He  afterward  produced  the  log  after  cross-examinatiipn, 
which  gave  the  date  that  he  left  the  Sea  as  Ainjust  .'nth. 
Then  at  Record,  page  70S,  line  2o,  cross-examination 

5Q      "  Q.   Have  you  any  record  of  yourBehriug  Sea  catch  iu  1889,  siu'h 
"  as  vou  showed  me  for  the  year  1890?     A.  No,  I  haven't. 

"  <^.  Have  you  the  log  of  the 'Ariel' for  the  year  188!)?  A.  NO,  1 
"  have  a  kind  of  rough  diary." 

At  Record,  l+(W,  line  40: 

"  Q.  You  had  seen  tluH  luoniorandum  just  a  few  days  before  you 
"  the  stand  here  on  the  !i3d  Dftceiuber,  had  you  not'?'   A.  IIhh'/  it  i 

''  fmSSf'Ssitiii, 

"  Q.   And  you  l-.nd  looked  at  it  and  talked  with  counsel  about  it, 
"  you  not?    A.  You  mean  the  dav  I  appeared  here? 

"  Q.   Yes?    A.   The  counsel  hail  it  at  that  time. 

"  Q.   Hut  you  had  talked  with  thcin  about  it,    had   you  not? 
"  luiil  spoken  with  tlicm. 

"  Q.  .Vuil  yon  kiu'w  wliat  time  vo\i  left  lit'hring  Mea  when  yon  \\f\r 
"  on  the  stand  before?    \.  I  could  not  tell  without  the  diary." 

Why,  if  he  cotiM  not  tell  it  without  the  diary,  did  lir 
not  say  so  in  liio  tir.-t  instance,  insl«M(lof  saying,  '  I  (lnn'i 
know  tilt'  (late.  'I'lir  sliip's  books  are  lo.standtlie  loj;  Ixmix 
also"? 

•'  Q.    Did  yo\i  not  know  tliiit  you  liiid  that  diary  wheuy<m  tooli  tin 
stand  tirst?     .V.   1  knew  Mint  counsel  had  it," 

111  our  iiriiitod  argiiiiiciit  wo  niailo  this  oli,scrvaliiiii  nn 
(liat  It'.siiiiioiiy  I  p.  l.">4i: 

"  Hut  little  wi'i'4;lil  will  ]»•  niven  to  the  testimony  of  tliis  witness  iv 
"  Kurd lUK  t lie  niovcmcnts  ol' I  is  ship  after  the  date  of  the  waiiiini,' 
••  He  made  the  delilpiTiite  attempt  to  establish  that  his  sliip  left  llin 
••  Hea  tiic  ItOtli  of  .luly.  jind  it  wiiM  not  until  fcu'ccd  by  the  cross-c\ 
"  ainiinitioii  to  surreiidei'  his  meiuorandum  that  he  did  so,  after  Inn  ii^' 
"  stated  that  he  was  unable  to  tix  the  date  because  the  books  win 
••  lost, 

"  This   same  witness   endeavored  to  establish    the   fact    tliiit  lie  in 
"**-'  "  tended  to  sea!  iu  Hering  Sea  in  the  month  of  October." 

I  will  (onsider  now  his  tivslimony  as  to  whether  iu  u  is 
inten(ling  to  icinain  in  tlio  Sea  until  tlie  tiist  of  (hloiiii, 
and  endeavor  to  liiid  out  whctlior  there  is  any  foiimiatioii 
lor  such  a  claim.     Rtuoid,  page  U")!*,  line  »!S: 


40 


t.MlK 

M  nil/ 


V   1 


so 


h;?:', 


•I  iibout  it.  Ill 


Vdii  tiiiik  till 


I'l'VlUliHl   nil 


[•t    thiit  111-  in 


(Mr.  Warren's  Argument.) 

•  Q.  For  what  time  did  you  outfit  the  vessel?  A.  To  make  a  long 
' '  .seaaon.  We  intended  to  try  October  Healing  in  the  Uehring  Hea,  and 
"  we  fitted  out  for  a  long  Heason. 

"  Q.  To  remoiii  until  October  in  the  Rehring  Sea?    A.  Yes,  sir. 

And  at  page  1472,  line  S(t: 

"  Q.  Who  gave  you  yonr  information  down  hero  at  Victoria  about 

•  soalin^x  grounds  that  y«>ar?    A.  I  ^ot  it  from  general  conversation  in 
10  ■■  a  general  way  from  the  soalers. 

•'  Q.  Who  gave  vou  information  there  was  good  sealing  up  there  in 
'October?  A.  Mii  mule  miiil  lif  Imd  hmi  siio/,cii  In  hi/ a  ir/ni/fr  <niit  iiue 
•'  of  nil/  liiiii/rrn,  iiiiil  if-  liml  linivil  tliiil  jifo/ile  of  the  i.iliiii<l.i  Ihomjlit  thnt 
••  OviiiliPf  iriiK  II  ijikhI  iiidiiIIi  In  hr  Ihrrr." 

All  the  tef-timony  relating  to  tiie  duration  of  the  season 
with  regard  to  this  ship  is  found  at  the  following  citations: 
Ifitord,  page  U()7.  lino  .It*;  Record,  page  1487,  lines  50  and 
i;7;  Record,  page  14S4,  line  ti;  Record,  page  14S5,  line  10; 
li't'cord,  page  148(»,  line  10. 
:o  The  witness  He:  man  Smith  is  depended  on  to  establish 
llie  length  of  the  voyage  of  this  ship,  and  he  testified  at 
|\'(  (Old,  page  1484,  line  M: 

••  Q.  What  understanding  was  there?  A.  On  several  occasions  we 
••  ii'.i't  on  board  the  schooner— that  is,  the  hunters  and  myself  met  the 
"  ('ii|)tain  and  asked  him  to  fit  the  vessel  well  out,  as  she  was  at  that 
■•  I  imc  one  of  the  largest  vessels  out  of  Victoria  harbor;  a  staunch  vcs- 
"  scl:  and  we  had  all  made  up  our  minds  to  make  as  long  a  season  as 
•■  possible  on  previous  reports." 

"  y.  Was  there  any  mouth   mentioned,   or   any   time   mentioned, 

•  which  you  desired  to  remain  in  Behring  Sea  ?    A.  Well,  I  believe 
}fi  ■■  tliftt  I  was  one  of  the  parties  that  persuaded  the  captain  to  provision 

••  tilt!  vessel  up  until  October,  anyway. 

•  ().  What  do  you  mean  by  '  up  until  October  "?  A.  Tti  nl/mr  iis,  if 
•■  ill'  irriil/irr  jirniiilli'il  IIS,  iiiii/ if  llii' rr/iiiiia  in'ri- Iriir  irilh  ri'i/nril  In  uniLi 
"  hi  i  1111/1111111/  lliiil  iiiniilh  ill  llir  lirliriiii/  Sni,  llint  irr  iniiilil  hr  iili/r  In  .tlni/." 

That  witness  was  in  the  Sea  the  ne.\t  year,  and  at 
IJccoid,  page  148(i.  line  4o,  testified  that  he  came  out  on 
the  :U8t  of  August,  and  lie  gave  no  e.xplanation. 

1  refer  to  one  other  witness  who  was  depended  upon  by 
till'  counsel  for  Great  Britain,  and  that  is  the  witness 
4 '(it  row.  His  testimony  concerning  the  proposed  duration 
(i|  the  season  was  not  read,  only  stated.  It  is  found  at 
|i;i);e  14!t4  of  the  Record,  line  tin.  I  read  from  his  cross- 
cMiiiiination: 

•  i).  Did  you  iKMir.  prior  to  Iss!*,  any  scaling  captuiii  say  it?     .\. 

•  (111.  1  have  licnril  it  here  15  or  111  years  imo. 

■  (,>.    Dill  you  hcjir  any  sealing  captain,  prior  to   ISH!>,  say  that  he 

■  «as  in  Hi'liriuti  Sea  in  Octiilicr  ?  A.  No,  all  their  iu formation  was 
'    Ill-Ill  whalers. 

■  (j).    Anil  all  the  whalers   ,1,  '  was  that  as  they  passed  through  Heh- 
.    ••  liiif;  Sea  llu'v  had  some  gooii  weather  in  October,  and  had  seen  some 

"'■•^.■ltls?        A.      VCH. 

lj>.   'J'lii'v  did  not  tell  vir.i  -\  liat  kiml  of  weather  it  was  in   H((pteni- 

■  liir?     A.    I  don't  think  i  I  ^.'.  nientinned  JSi'lilcnibcr. 

'■  (,).   And  you  thought  if  you   could    live  out  the  S;'|itcnil>('r  gales 

■  yn  wiiuld  stay  until  October?     .\.   That  would  be  the  calculatiou 
"  (,».   .\nd  you  heard  of  the  Si'iitcniber  gales  from  the   whaling  cap- 

•  l.iins,  1  suppose  ?     A.   Well,  I  do  not  kuow  as  1  have  liearil  any  (lar- 

■  tuiilar  thing  about  Sei)teniber. 

■  I,).  You  did  hear  before  that  time  about  the  September  gales  from 

■  j-iahng  captains  and  from  whaling  captains,  tn"  '  A.  Well,  it  has 
"  I'lfii  generallv  understood  that  September  is  a  pretty  rough  uiontli 

J     "  ilii're." 

That  is  all  the  tt'stiimmy  tln'ie  is  on  whicii  to  base  the 
ill  iiiiind  for  a  prolonged  .season.  Will  such  tcsliinoiiy  as 
til  it  warrant  an  award  In  ing  made  to  the  owners  of  this 
.'■I  luKiiier  for  loss  of  time  to  October  1st?     VVe  think  not. 


•H 


w^ 


S34 


(Mr.  Wai'ieii's  Argument.) 
The  Claim  of  the  Owners  ok  the  "Minnme." 

Of  this  claim  there  is  little  to  be  said  beyond  what  is 
found  in  our  printed  argument.  A  claim  is  made  for  a 
season  extendnig  to  the  15th  of  September.  The  tcs 
timony  of  the  claimants  themselves  gives  the  date  ns 
the  10th  of  September;  and  upon  the  testimony  of  the 
jQ owner  hitnself  prolonging  the  season  to  the  10th  of  Scn- 
tember,  a  claim  is  based  for  damages  for  loss  of  time  until 
the  15th  of  September.  That  observation  is  true  of  tlio 
"Juanita"  Claim,  No.  13,  and  that  is  all  I  have  to  sny 
with  regard  to  the  "Juanita."  The  testimony  bearing 
upon  the  duration  of  the  season  of  the  "Juanita,"  i-^  ail 
cited  in  our  Argument. 

I  read  from  page  437  of  our  Argument  in  connecfimi 
with  the  claim  of  the  owner  of  the  "  Minnie:  " 

"  The  '  Miuuio  '  enteivd  Bering  Hen  June  27,  1889,  carrying  liniit 
cnnoes,  two  boats,  one  of  whicL  would  be  a  stern  boat,  and  a  cnw 
of  16  ludiauH  anl  5  white  men,  iui-luding  oaptain  and  mate.  Slio 
continued  lier  liuntiug  from  the  iJ7th  of  June  until  the  15th  diiy  nt 
of  July,  at  4.30  o'clock  in  the  afternoon,  when  she  was  seizoil  liv 
the  United  States  revenue  cutter  'Richard  Rush,'  comnmndciMiy 
Captain  Shepard.  The  boarding  officer  directed  the  removal  of  IIS 
skins,  one  breech  loading  shotgun,  one  muzzle  loading  shotgun,  and 
eleven  spears  to  the  '  Richard  Rush.' 

"  The  schooner  was  ordered  to  proceed  to  Sitka.  The  instructions 
were  not  obeyed,  and  '  that  night  made  some  new  spears  and'iuxt 
morning  commenced  liuntiug  as  though  nothing  had  hiii)i)i'iiiMl ; 
we  captured  50  seals  <ui  that  day  and  tK)  on  the  next.  Ki'])t  cm 
hunting  until  the  17th  of  August,  whtni,  liaving  500  seals  on  Ijniiid, 
Ileft  for  the  South."  " 


20' 


30.. 


The  numhef  of  skins  actually  taken  after  tiii^  seiziiiv 
was  not  500,  but  was  4SH,  as  set  out  in  our  argumi'iii. 
Record,  page  144»),  line  12. 

The  I )nly  question  is  as  to  whether  or  not  the  "  .Minni,  " 
is  entitlecl  to  claim  for  loss  of  time  from  the  I5tli  nf 
July,  the  date  of  the  warning,  to  the  J.')th  of  Septemliur. 

Bearing  upon  this  the  original  affidavits  of  Jacobsou  an- 
the  very  best  evidence.  His  testimony  before  this  Cum 
40niission  now  is  entitled  to  no  weight  as  compared  with  lii^ 
original  affidavits  made  immediately  after  bis  ivtiiin  to 
Victoria;  be  !-ai(l  on  cio.ss-examination  (Record,  144."..  liin' 
40): 

"  Q.  Am/  lllf  ii<:rl  nlnniilll/  Ifml  riiliilllflifi'il aciiliinl  '/.•.•  IIkhhiIi  nnllilml  I(,i4 
"  litiiijiiiii'i/?     A.     T/iiil  is  irliiit  in'  iliil. 

'*  Q.  How  many  seals  ilid  you  take  the  day  afttu-  y<ni  were  soi/cil  V 
"  A.  t)h,  I  don't  renicmlicr  that  for  certain. 

"  Q.  Alunit  how  many  V  A.  I  snpjiose  40  or  50  ;  maylx'  not  5(1 ;  In  - 
"  tween  30  and  50  anyliow." 

5°     In  an  affidavit  at  Volume  5,   Anieiicaii  Jiipiiiit,   pauu 
SCO,  Jacobson  said: 

"  I  returned  to  the  schooner,  when  the  Ijieuttniaut  aski-d  uv 
"  for  my  guns  and  sjicars.  He  took  a  l>reecli-loadiiig  gnn  and  ii 
"  muz/le-loadcr,  luit  refused  11  I'rciicli  niuslict  wliicii  I  ullcicd  liini. 
"  He  then  left  witli  his  men,  leaving  oni>  man  on  Ixjaid.  I'lic  cntlii 
"  then  steanunl  away.  The  Lieutiinint  ti.ld  me  liefore  having  tlmt  I 
"  was  (15  miles  soutlieast  by  east  from  Fniniak  I'ass.  .\fter  tlie  inlti  r 
"  h'lt,  the  I'nitcd  StatcH  haihir  t(dd  nii'  he  was  in  charge.  l>nt  lie  ni'vcr 
"  attempted  to  interfere  with  the  working  of  the  vessel.  Sume  tiiii.- 
"  afterwards  he  showe<l  me  his  written  instructions,  wliitdi  were  tiint 
60  "till,  vessel  should  prcx'ied  to  Sitka,  and  there  be  handed  ovi'i  In 
"  I'nitiMl  States  Marshal,  and  that  tlie  captain  and  mate  slionM  In 
"  arrested.  I  then  concluded  1  would  not  go  to  Sitka  but  would  1  nn- 
'■  tinue  my  voyage.  That  night  we  made  some  new  spears,  and  mxl 
"  morning  commenced  hunting  as  though  nothing  had  happcin  d. 
"  We  captured  fifty  seals  that  day,  and  ninety  on  the  ue.\t;  kept  "ii 
"  huU'ing  \intil   the   17th  Augutit,  when,  having  five  hundred  sculs 


n  connecHiiu 


835 
(Mr.  War.en's  Argument.) 

'■  cm  board,  I  left  for  the  south.     After  pnsging  through  Unimak  PasH, 
'•  I  told  the   prize   crew  I  should   steer   for  Victoria.     He  replied:  'I 

•  ill  ways  thought  so.'  " 

111  an  affidavit  set  out  in  Vol.  4,  Americ.in  Reprint,  page 
I'Ht,  Jacobson  stated: 

"  All    hijiir  (If  XII  il/li-r  llir   '  Riisli'   in;, I  iiinii/   l/ii'   mini   IffI   in    rlninii' 

•'  <l,iiiri-il  mf  his  irriltrii  iiis/riiitiiiis/nmi  Cii/ilniii  Slii'jiiiril,ii/'l/ii'  ^  Riilnml 

10  •■  tiiisli.'     An  iinirlii  IIS  I  run  ri'iiii'iiilii'r  tin-  i/in-rliiiiis,  In-  ivns  In  iMirrr  llif 

■■  •  Miiiiiif'  til  llii'  Viiilril  ISIiiIrs  iiiilhiivilii's  ill  ISilkii,  null  pliiir  her  riijilniii, 

••  ,inisi'l/,  mill  iiiilli'  iiiiili'r  iirrrsl.      J  nl  imcr  iiinilr  up  iiii/  iiiliid  Id  slni/  irhriv 

••  /  iriis  mill  iiilili  irliiil  sails  I  fiiiilil.      A'i:rl  iiinriiiiii/  I  innili'  in'ir  Sjirnrs/nr 

•■  /l,i'  liiilimis  mill  si'iil  Ihi'iii   mil  sifnlini/.      I  ri'iiininfil   in    llii'  Si'il   nji  In  llii' 

•■  Pl/li  iif  Aiiijiisl /iilliiiriini,  mid  ill  Ihiil  liiiii'  ijiil  181)  siuils  mill  8  sm  ulli-rs, 

•■  I  iliil  iiiilsi-rmii/lhiiii/  of  Ihr  '  Hush  '  n/li-r  I'hi-  I'tlh  nf  Jiiljl." 

Here  are  two  statements,  one  tliat  he  commenced  seal- 
ing the  ne.\t  njorning  as   though  nothing  had  hajipened, 
and  continued  until  tlie  17th  day  of  August,  and  the  other 
Mslating,  "I  at  once  made  up  my  mind  to  stay  where  I 
was  and  catch  what  seals  I  could." 

Tlie  ■*  Minnie,"  therefore,  lemained  in  the  Sea  until  the 
17th  day  of  August  according  to  that  affidavit,  during 
uiiicii  tune  she  took  48t)  seals,  or  4ss  as  a  matter  of  fact. 
we  cite  tile  testimony  of  Captain  Jacobson  in  our  pi-inted 
aii;iiment  (Record,  page  1441,  line  24),  with  this  observa- 
lion  at  page  440  of  our  argument: 

•■('iiptain  JacoVisen  testified  that  when  he  ^ntered  Bering  Sea  he 

"  hud  150  skins  aboard  the  ship,  and  there  were  418  seized  by  the 

30 "  (litter  on  the  15th  of  July,  making  the  catch  between  the  27th  of 

'■  .liiue  and  the  15th  of  July,  '268,  which,  being  divided  by  the  number 

"  (if  days  occupied  in  making  the  catch,  viz.,  18,  gives  a  daily  catch 

•  (if  nearly  15. 

■■.\fter  the  seizure,  and  up  to  the  time  of  leaving  the  Sea,  the 
'■  '  Minnie'  took  488  skins,  and  hunted  thirty-two  days,  making  her 

•  iivcrage  catch  over  15  seals  a  day." 

And  a  claim  is  nuide,  if  your  Honors  please,  in  respect 
to  tills  vessel  for  i=  ,187  for  the  loss  of  estimated  catch. 
Sue  took  more  seal-,  per  day  after  her  warning  than  she 
^o<lid  before  the  wafning,  and  she  diparted  with  a  cargo  of 
4»'  seal  skins  for  Victoria,  ami  the  United  States  is  in- 
dclitod  to  her,  we  acknowledge,  for  the  value  of  41s  seal 
skins,  making  a  total  of  IM)6  seal  skins,  the  vahi  of  which 
slu'  actually  realized,  or  will  when  tlie  United  States  pays 
tlio  value  of  the  skins  confiscated. 

A  claim  is  made  that  this  vessel  left  the  best  scaling 
fiioniids.  Surely  when  the  effect  of  leaving  t  iio  best  sealing 
>;ionnds  is  to  produce  better  results  than  when  she  was 
(u(U|)yiiig  those  giounds,  the  claimants  cannot  be  in  a 
!;oiiiisitioii  to  base  a  claim  for  damages  on  the  fact  that  a 
I  iiaiigu  of  her  position  was  made.  As  hearing  on  that, 
1(1  me  cite  the  affidavit  of  Captain  Jacohseii,  wucre  he 
said  that  next  morning  he  "commenced  sealing;  as  though 
iiiithiiig  had  happened." 

.And  the  other  affidavit  wherein  he  states: 

"  1  at  once  made  up  my  mind  to  stay  where  I  was  and 
(dell  what  seals  [  could." 

(hanged  the  sealing  ground!  There  is  no  login  evidence 
cl  the  voyage  of  this  schooner,  and  upon  the  testimony  of 
60 one  interested  witness  who  was  mate  of  the  ship,  are  the 
(litjli  Commissioners  to  award  $33,187,  for  lo^s  of  prospec- 
tive catch?  That  claim  amounts  to  over  500  per  cent,  on 
thciostof  securing  the  seals,  paying  the  interest  on  the 
iiivistment,  e(|ui|tpmg  the  schooner,  and  the  original  co.st 
111  llie  schooner;  a  profit  of  over  500  per  cent,  on  the  origi- 


836 


I  I  I 


(Mr.  Warren's  Argument.) 

nal  investment  including  the  lay  and  every  other  expeii'i- 
ture. 

The  printed  argument  of  the  United  States  condnd.  s 
with  this  observation  at  page  441 : 

"  The  Oovernxjient  of  the  United  States  is  liable  for  the  (•hun.r 
"  value  of  the  '  Minnie  '  from  the  17th  day  of  August  to  the  20tli  .r 
"  25th  of  August,  and  for  the  value  of  418  seal  skins,  2  guns,  and  the 

spears  of  the  Indians. " 


10 

The  learned  counsel  for  Great  Britain,  Mr.  Bodwell.  m 
his  oral  argument  said  that  'his  captain  made  new  spt^us 
out  of  old  stuff.  There  is  not  a  word  in  the  Record  to 
show  that  they  were  made  out  of  old  stuff.  Not  a  wnnl 
in  the  record  that  they  were  not  just  as  good  as  any  ollni 
spears,  nor  that  he  did  not  go  there  provided  with  dtltr 
spears  than  those  that  were  seized.  He  tells  ns  liinisilf 
that  he  made  spears  and  hunted  the  next  mornin};  as 
though  nothing  had  happened. 
20  I  refer  to  pages  144  and  145  of  the  British  Argument  in 
Chief  itself,  and  ask  your  Honors  to  make  a  comparisim. 
At  line  30  is  this  question:  "  Q.  Was  there  any  talk  wlim 
"  you  left  for  Behring  Sea  as  to  the  time  you  would  liavc 
"remained?  A.  The  talk  between  me  and  Jacobson  was 
"  that  we  were  going  to  have  ..',000  seals  and  that  we 
"  would  notcomeoutbefore  wegot  them."  They  took '.tm; 
Opposite  that  testimony  the  counsel  claim  for  .^,!>..'(i  anil.s. 
The  original  claim  presented  was  for  no  such  catch. 

I  would  remind  your  Honors  before  closing  the  discus 
30si(m  of  these  particular  claims,  of  a  fact  that  has  not  Ixm 
alluded  to  in  the  oral  argument,  and  that  is,  that  the 
estimated  catch  of  these  vessels,  as  prepared  and  ])\v- 
seiited  at  Ottawa,  was  based  upon  a  table  whicli  ccni 
tained  the  reported  catch  of  13  vessels,  and  the  facts  have 
demon.'<trated  that  there  was  but  one  catch  in  the  eiitiro 
table,  the  details  of  which  are  found  in  the  Kocurd, 
which  in  that  table  was  not  grossly  exaggerated.  Tliat 
one  correct  catch  is  that  of  the  "Pathfinder,"  stated  in 
that  table  and  in  this  Record  the  same;  in  all  other  if 
40  spec,  ts  the  exaggeration  is  great.  For  instance,  the  "  Maiy 
Ellen"  is  stated  as  having  taken  more  than  4,000  skins  iii 
that  table  when  she  took  1!  3!t5,  and  so  it  runs. 

Tlie  Commissioner  on  the  part  of  the  United  States: - 
That  table  does  not  pniport  to  be  the  catch  in  Berini; 
Sea. 

iMr.  Warren:  At  the  beginning  of  that  table  are  found 

these  words:  "Catch   in   and  about  Bering  Sea,"  and  1 

asked  Captain  Warren  if  he  thought  that  "  about  Bci  iuu 

Hea '"  was  down   1,500  miles  from  there,  and  he  said  In' 

5otlit>nght  not. 

The  Commissioner  on  the  part  of  the  United  Stato;  - 
'i'hat  is  much  tiie  same  (piestion  as  asking  about  what  i- 
the  size  of  a  piece  of  chalk. 

Mr.  Warren:— If  your  Honois  please,  here  is  a  courjn 
sive  fact.  Ciii)tain  Waiien  made  that  table  and  lie  di  I 
know  the  catch  of  the  fleet  be  managed,  and  he  ex 
nggerated  the  catch  of  i^veiy  schooner.  The  facts  aiv 
in  this  Record  of  the  catch  of  those  vessels.  He  stited  in 
that  table  that  the  "Grace"  took  2,.^riO  when  she  tnnk 
60  1. 100;  that  the  "  Anna  Beck  "  took  l,4oo  when  she  t'nk 
l.lL>s;  that  the  "Dolphin"  took  I'.t'.ol  when  siu'  tool< 
I'.o.'.T;  that  the  "Say ward"  took  •2,~2:>  when  she  tn,,k 
I, ,■)'.••;.  Those  are  facts -tliat  the  witness  did  know  il, 
aiiil  yet,  when  that  table  is  shattered  regarding  the  cat'li, 
tbeclaini  foi'  estimated  catch  is  increased. 


887 


(Mr.  Warren's  Argument.) 

Mr.  Bod  well: — Do  you  say  that  Captain  Warren  made 
that  table  you  have  referred  to? 

Mr.  Warren: — I  said  that  he  testified  that  he  inserted 
tliat  table  in  the  affidavits  at  Ottawa. 

Sir  C.  H.  Tupper:— It  is  shown  that  the  table  was  taken 
fiotn  the  Marine  and  Fisheries  report. 

Mr.  Warren:— He  took  it  from  that  report,  and  used  it 
10  knowing  it  was  not  right. 

Sir  C.  H.  Tupper: — Will  you  give  your  reference  to  the 
lu'oord  for  that? 

Mr.  Warren:— I  claim  that  as  a  matter  of  argument,  be- 
cause he  nece.ssarily  knew  the  catch  of  the  vessels  he 
managed  as  well  then  as  now  when  he  swears  to  the  num- 
li.r  taken  by  each. 

The  Commissioner  on  the  part  of  the  United  States: — 

Neither  paity  seems  to  be  willing  to  stand  by  these  claims 

as  made  up.     I  do  not  think  we  ought  to  give  much  time 

20  til  them.     There  is  some  doubt  in  my  mind  how  far  that 

IS  in  evidence  here.     I  do  not  know  how  it  was  left. 

Mr.  Warren: — That  table,  if  your  Honors  please,  is  in 
t!ic  Record. 

Sir  C.  H.  Tupper: — And  so  is  the  table  from  which  it 
was  taken,  the  Marine  and  Fisheries  Report  for  1880. 

TnK  Claim  of  the  Owners  of  the  little  "Tkiumph." 


.^0 


rho  little  "Triumph"  on   the  4th  of   August  lay  be- 
calmed at  the  mouth  of  Unimak  Pass,  outside  the  Sea.  On 


■*  that  day  a  cruiser  of  the  United  States  warned  her  against 
entering  Bering  Sea.  She  actually  did  enter  Bering  Sea, 
il  your  Honors  please,  that  very  night,  the  night  of 
Auj^ust  -ith,  and  commenced  sealing  August  5th  in  the 
inniiiing,  and  sealed  continuously  for  eighteen  days  out  of 
t  u  eiity  one,  leaving  the  Sea  on  the  25th  day  of  August  with 
a  catch,  which  when  compared  with  that  of  the  "Mary 
Kllcn"even,  is  greater.  Comparing  canoes  with  boats, 
\]n\  I  in  the  basis  of  two  to  one,  but  in  this  case  on  a  basis 
hree  to  four,  the  mostlibeial  basis,  she  actually  made 


40 


111 

a  laiger  catch  than  the  "  Mary  Ellen."  The  claim  is  made 
fur  sl>,7-2;1, 50  damages  for  loss  of  catch.  The  tonnage  of 
the  little  "Triumph"  is  15.  She  remained  in  the  Sea 
ami  hunted  more  days  of  the  time  that  she  was  in  the 
Si  a  than  any  ship  the  details  of  whose  voyage  are  in  evi- 
dence. She  hunted  from  the  5th  day  of  xVugust  to  the 
L'.ith  inclusive,  eighteen  days,  more  days,  I  say  again,  than 
aiiv  ship  the  details  of  whose  voyage  are  in  the  Record. 
She  made  a  catch  of  4-2(5  sealskins,  which  fact  is  set  out  in 
-pthe  Record,  connnencing  at  page  14oo,  line  W. 

Tile  basis  for  this  claim  is  now  that  tlie  little  "Triumph" 
dill  iKit  I'eacli  the  best  sealing  grounds.  The  mate.  Smith, 
tisiitied,  Record.  1402.  line  :)!•  : 

'■(,).  Wo  wore  talking  aliout  this  Htovni.  Whou  tliis  storm  was  blow- 
••  iiii.'  vou  into  Boliriug  Hoa,  iiftor  you  got  through  Uniumk  Pass,  did 
■  Null  cliango  your  courso  to  go  to  tlio  westwnnl  ?  A.  So  far  as  I  cau 
•■  iriiilli'ot  our  course  was  always  westerly  after  we  wout  through  tho 
•■  rimiiak  Pass." 

NdW,  if  your  Honors  i)lease,  the  argument  has  been 
fiotn  iile  tliat  they  went  to  the  westward  of  Bogosloff  Vol- 
caiiii,  turned  round  and  came  to  tiie  southeast  and  out 
till  ingh  Four  Mountain  Pass.  That  construction  of  the 
tiMJniony  we  cannot  agree  with,  for  the  mate  himself, 
w  lui  is  the  only  witness,  says:  "  So  far  as  I  can  recollect. 


I  I 


838 


(Mr.  Warren's  Argument.) 

our  course  was  always  westerly  after  tee  went  tlirouiili 
rnimaJc  Pass.''  Antf  at  Record,  "paRe  1403,  line  ;i  (,  -,. 
tified: 


ii-.ii- 


10, 


A.   0/<  //„■ , 
II  /it//,' til  III, 


30 


"  Q.  How  niatjy  milrs  of  gronnd  a  day  will  canoes  cover  in  an 
"  nary  sealing  day  while  sealing?     A.  12  to  15  miles. 

"  Q.  And  every  day  that  the  canoes  lowered  off  your  vessel,  tlio 
"  vessel  would  go  about  12  miles  V     A.  Yes. 

"  Q.  And  yon  lowered  18  days  out  of  21  and  proceeded  to  the  wi  st- 

ward  right  along?    A.  Yes,  sir. 

"  Q    t>'i'ii/iiii/  I'rrri/  iliiy?     A.   iSi'ii/iiii/  fn-rii  iliii/. 

"  Q.  And  when  you  "got  over  to  a  jiass  where  you  could  go  out  uf 
"  Behriug  Hea,  you  went  out,  did  you  not?    A.  t')h,  no. 

"  Q.  Y'ou  went  out  of  l"'our  Mountain  Pass,  did  you  not?    A.  Yi'>. 

"  (^.  Are  you  a  navigator,  Mr.  Smith?    A.  I  oui  now;  yes. 

"  Q.  And  you  know  about  the  distances  up  in  Beliring  Si'ii.  .iu 
"  yoxi  not?     A.  Soniewheres  about. 

"  Q.    )'f/»  I'nlirnl  Viihiiiik  Puss  on  l/ie  nii/lil  of  tin-  4lli': 
"qflhi"illi. 

"  y.   Am/  1/(111  tliiiik'  OH  llio  tiionihii)  of  I  hi'  -^/li  i/oii  iri'r 
"  iriird  iif  Uiihiiiik'  I'lissy     A.    Yrs. 
20       "  Q.    Am/  OH  l/ril  i/iii/  i/iiii  loiri'ri'i/  i/oiir  lioiils—//ii'  •'jl/i?     A.    Yfs,  sir. 

"  Q.  Am/  for  21  i/iii/s  i/o,i  l/iiiih  you  iri'ri'  jirini-ri/im/  /o  t/if  inshriirii' 
"  A.     i'rs. 

"  Q.  And  out  of  those  21  days  you  lowered  18?    A.  Yes. 

"  Q.   Am/ iioii  iri'iil  out  of  Four  Atoiiiitidii  Puss?     A.    IVs. 

"  (J.  And  when  the  boats  are  out  sealing  they  will  go  about  12  imlcs 
"  a  day?    A.  Y'es. 

"  Q.  Just  tell  me  how  many  miles  it  is  from  Four  Mountaiu  I'usa 
"  to  Unimak  Pass?    A.  I  will  give  it  as  near  as  I  can,  185  miles. 

"  Q.  Am/  i/oii  l/iiii/i'  i/oiir  roiirsi'  iriis  ii/iriii/s  in'sliniri/?  A.  Alinii/s  «■•  s7- 
"  frljt,  irim/  mil/  irnit/ii'r  jn'riiiilliiii/. 

"  Q.   From  Uiiiiiiid'  Puss?         A.   From  Uiiimii/iPuss." 

He  testified  again  (Record,  148r),  line  5): 

"  Q.  And  you  were  in  Behring  Sea  in  1887,  I  believe?    A.  Yes.  sir. 

"  Q.  And  these  were  the  only  two  years  prior  to  1889  that  you  wore 
"  in  Behring  Sea?    A.  Yes,  sir. 

"  Q.  You  cruised  southeast  of  the  islands  in  1888,  and  you  cruised 
"  in  the  vicinity  of  the  Bogosloff  "Volcano  in  1887?  A.  How  near  do 
"  you  call  the  vicinity? 

'"  Q.  Well  about  fifty  miles  to  the  northward?  A.  O/i,  mi,  ii  n-os  t'nr- 
"  tlii-r  off  l/iitii  l/inl." 

This  vessel  went  through  Unimak  Pass  on  the  nigiit  of 
40  the  fourth  of  August;  proceeded  to  the  nortlnvard  a  siitfi- 
cient  distance  to  be  niore  that  50  miles  north  of  the  H(ii;()s 
lofif  Volcano,  after  which  her  course  was  westerly.  In 
order  to  come  out  throngh  Four  Mountain  Pass  she  tcmk 
a  course  southwest  or  south.  There  is  no  other  construc- 
tion to  be  placed  on  the  testimony,  and  we  have  drafti^il  a 
chart  of  the  voyage  of  the  little  "  Triumph  "  based  upon 
that  testimony,  and  her  lowerings  made  18  days  out  of  l'I, 
during  each  day  of  which  time  she  covered  only  11^  01  l.'i 
miles.  Tlie  foi/dne  of  tliat  boat  took  tier  ihruwjh  ttic  sn- 
SOcalted  best  seali.j  (jrouiids  (IS  s/ioivn  by  the  chart  of  Mr. 
Toirnsend;  tooh:  tier  over  the  (/round  seale(t  over  hi/  llie 
"  Marif  Ellen,''  which  is  called  by  co»n.se/  the  best  .si'iilimi 
(jround  in  Bering  Sea;  tooh  her  over  sei-eral  posiiinua 
referred  to  in  the  Anjunient  of  Great  Britain,  and  citeil  f(s 
tlie  best  .sealing  grou)uls  in  Bering  Sea;  and  duriini  Unit 
time  she  made  a  lar(jer  catch  in  proportion  to  her  jmnir 
than  the  "  Mary  Ellen." 

The  testimony  of  the  captain  was  cited  as  showing  an 
intention  to  abandon  the  best  sealing  grounds.  If  yuur 
60 Honors  please,  a  reading  of  that  testimony  will  dis(|iise 
that  it  referred  to  a  timo  when  bethought  tliey  wi'iild 
not  enter  Bering  Sea,  and  not  after  they  entered  Bering 
Sea.     That  testimony  is  found  at  Record,  13i»8,  lino  tW ; 

"  C^.  Had  you  any  conversation  with  the  captain  that  ninde  you 
•'  aware  as  to  whether  the  captain  intended  to  enter  the  Behiiiijj  Sen 


^■ip 


83U 


10 


(Mr.  Warren's  Ari5unu>nt.') 

or  not?    A.  Not  at  tliet  time,  liut  I  had  at  th.-;  timo  we  entered  the 

Kehriug  Sea.     He  was  compelled  to  enter  the  Bchring  Hea  because 

iif  the  gale  that  sprang  uji  that  night,  and  we  were  so  close  in  shore 

that  we  either  had  to  go  on  the  rocks  or  nin  before  the  gale. 

"  Q.  I  understand  that  the  captain  did  not  tell  you  as  to  whether 

lio  intended  going  into  fiehriug  Sea  or  not  after  being  warned  out  as 

lie  had  been?    A.  No. 

■•(.}.  Uut,  at  a  matter  of  fact,  the  vessel  entered  Behring  Seii?    A. 

Vfs,  sir." 

Kocord,  page  13!>s,  line  31: 

•  Q.  Then  what  did  you  do  after  that?     Did  your  vessel  enter  the 

■  Behring  Sea?    A.  Well,  we  stayed  there  becalmed.     Some  of  the 

•  Indians  who  understood  English  heard  the  hail  tlmt  (.'aptaiu  Shepard 

•  f;ave  us  before  he  left  us,  and  they  naturally  felt  uneasy.     They  de- 

•  inauded  our  immediate  return  homo.     The  captain  and  iiiyself  talked 

■  tlic  matter  over,  and  the  cajjtain  exi)laincd  that  he  had  some  infor- 

•  Illation  as  to  some  possible  scaling  grounds  away  in  the  westward." 

That  was,  if  y(^ur  Honors  please,  before  he  liad  decided 
201,1  inter  Bering  Sea,  according  to  that  testimony: 

■  •  I  cannot  tell  you  exactly  where,  because  at  the  time  I  was  not  a 

•  iiiivigator;  in  fact  the  captain  was  not  very  communicative  on  the 

•  matter.     Anyhow,  he  gave  me  to  understand  that  he  thought  it 

■  would  be  best  to  go  on  some  different  sealing  ground." 

.Afterward  the  captain  entered  Bering  Sea,  on  that  night 
he  went  in.  He  got  good  results,  and  left  the  Sea  August 
L'fith.  having  completed  the  season. 

Tlie  tonnage  of  that  vessel  was  IT)  tons,  and  the  claim 
is  made  to  the  15lh  of  September.     I  will  not  say  any- 

-^° tiling  regarding  tiie  testimony  of  the  proposed  duration 
of  tlie  voyage  of  tiiis  vessel.  It  is  established  that  the 
ordinary  dination  of  the  sealing  season  in  those  years,  and 
this  was  in  18>7,  was  between  the  'Joth  or  2oth  of  August; 
and  this  vessel  sealed  up  to  and  including  that  date,  and 
left  on  the  2«th,  after  having  made  a  full  catch.  She 
canied  four  canoes  and  no  stern  boat.  I  compare  her 
actual  exjterience  with  that  of  the  "  Mary  Ellen."  The 
•.Mary  Ellen"  took,  from  August  Hh  to  August  -iitth, 
witli  lier  five  boats,  (iS'J  skins— those  are  the  actual  figures 

'*°— a  daily  average  per  boat  of  5.3.  On  the  basis  that  the 
hunting  power  of  a  canoe,  compared  with  a  l)oat,  is  three- 
tiuiiths,  a  canoe  would  have  taken  3.1)75,  and  on  the  one- 
luiU'  hunting  [)Ower  basis  2. TiS.  The  "Triumph"  was  in 
thf  Sea  from  August  4th  to  August  ^Oth,  and  carried  four 
canoes.  Four  canoes  for  twenty-three  days,  on  tlie  three- 
fiiiirths  power  basis,  would  take  'MW  skins.  The  same  on 
tl ne-iialf  power  basis  would  take  244  skins;  but  the 

•  Triumph  "  actually  took  in  those  twenty-three  days  426 
—  kins. 

'  The  testimony  on  which  the  voyage  is  extended  is  set 
nut  and  discussed  in  our  argument.  There  can  he  no 
i|Uistion  hut  what  this  little  vessel  has  no  claim.  The 
|ilca(lings,  if  j-our  Honors  please,  {lut  in  in  this  case,  based, 
ot  ciiuise,  on  the  information  of  the  claimants,  set  out 
tho  tact  that  she  abandoned  her  voyagein  to  Bering  Sea, 
ami  never  went  in;  and  it  was  not  until  it  was  dis-ciosed 
111  the  cross  examinaticm  of  other  witnesses  that  we  knew 
till'  little  "Triumjth"  was  in  Beiing  Sea  after  August 

f^^  4lli.  That  statement  is  made  in  our  brief,  at  page  408, 
wuiiont  any  citation.  I  now  give  the  citation: 
Riciird,  page  277,  line  45.  The  owners  attempted 
tn  make  a  claim  that  she  never  entered  Bering 
St  ,1  after  August  4th,  and  if  tlie  crossexaniination  had 
11(1  developed  tlie  contrary,  I  firmly  believe  that  Smith 
wuiihl  have  testified  that  was  the  fact. 


(I  < 


ii 


nmi' 


w 


s-;o 

(Mr.  Warren's  Argun.eiit.) 

Tlie  testimony  of  Smith  concerning  the  operations  .1 
this  hoat  the  day  after  she  commenced  seahn^  is  found  ii 
Record,  page  14(»2,  line  2"): 

"  Q.  How  far  tUd  you  go  north  from  Uuiiunk  Puss  on  Account  of  tl  ;, 
"  Htorm?  A.  W«ll  ill  the  nioruing  after  the  wiuil  calmed  down,  it  li  ,  1 
"  been  thick  with  rain,  I  just  could  make  out  tlie  coast  line. 

"  Q.  The  coast  of  Unimak  Island?  A.  The  Aleutian  Islands,  sir. 
10     "  Q,  You  thought  you  were  to  the  west  of  Unimak  Pass?    A.  Yes 

"  Q.  Then  when  you  got  through  Unimak  you  changed  vour  com  ,. 
"  ami  went  to  the  westward?  A.  Not  that  day,  that  day  it  hapijcii.  1 
"  to  calm  down,  as  I  recollect  now  we  saw  some  seals. 

"  Q.  We  were  talking  about  this  storm.  When  this  storm  w  i, 
"  blowing  you  into  tiehriug  Sea,  after  you  got  through  Unimak  I'^s 
"  did  you  change  your  course  to  go  to  the  westward?  A.  So  far  ii~  | 
•'  can  recollect  our  course  was  always  westerly  after  wo  went  tbroii:  \, 
"  the  Uuiinak  Pass. 

"  y.  At  about  daylight  on  the  morning  of  the  5th  you  think  v,,] 
'•  were  to  the  westward  of  Unimak  Pass?    A.  Yes,  sir. 

"  Q.  You  lowered  your  boats  and  went  sealing?     A.  Yes. 
20      "  Q'  Sealing  all  day  ?    A.   Part  of  the  day. 

"  (J.  Why  didn't  you  seal  all  day?  A.  One  thing,  a  heavy  sea  Hiii 
"  ruDuiug. 

"  Q.  Y'ou  sealed  s^  far  as  you  were  able  that  day?    A.  \'ea. 

••  Q.  After  the  5th  day  of  August  you  were  in  the  Sea  21  days?  \. 
"  Yes,  sir. 

"  Q.  And  out  of  that  21  days  you  lowered  1<)  or  17  days,  did  \nu 
"not?    A.  Somewheres  about  that. 

"  Q.  Just  be  certain?     A.  About  18  days. 

'•Q.  Eighteen  out  of  the  twenty-one  days?     .\.   Y'cs,  sir. " 

Sir  C.  H.  Tupper:  You  have  left  out,  1  suppose,  muni 

30portant  passaj^es  in  that  Record? 

Mr.  Warren:--!  have.  Bearing  on  the  conr.se  of  tlir 
little  "Triumph"  I  cite  Record,  140-',  line  I'o;  Uo:',.  lin,. 
'2;  14o:!,  lines  I'it  and  Htl;  Record,  Uo-J,  line  <)."),  and  top  uf 
page  1403.  The  learned  counsel  cite  the  testimony  of  the 
witness  stating  he  intended  to  go  in  Bering  Sea  hetniv 
he  was  warned,  and  hunt  4ii  or  «!o  miles  to  the  south  nf 
the  Pribyloft"  Islands;  hut,  if  your  Honors  please,  in  tin- 
oral  argument  here  counsel  have  stated  that  the  hest  scal- 
ing giound  is  not  within  4ii  miles  of  Prihyloff  Islands,  Imt 

40  to  the  south.  This  vessel  sealed  one  day  later  than  tlir 
"  Mary  Fallen."  The  "  Mary  Ellen  "  stopped  sealing  August 
L>4th.  The  "Triumph"  sealed  August  2r)th  and  tool;  :;:! 
seal  skins.  The  "  il/0/7/  Ellen  "  ri'iiiaiiicd  in  llw  Sc((  fnnu 
the  24///  In  the  i'!>///  )ritliont  loivcruxj  her  boats.  The  litil  ■ 
"Triumph,"  according  to  the  contention  of  flic  ieaiiiMl 
counsel,  having  secured  a  large  catch,  was  ready  t.)  uo 
home,  bi'cause,  based  on  her  working  power,  she  ii.-n I  a 
larger  catch  than  the  "  Mary  Ellen,"  and  that  is  the  1  x 
cuse  given  for  the  "Mary  Ellen"  leaving   August  :.'ttii. 

50  At  Reconl,  page  1T27,  line  5:!,  is  the  t(.stimony  of  tlir 
captain  of  the  "  Vanderhilt,"  who  was  in  Bering  Sea  at 
exactly  this  time: 


-1887. 


A.  Yt 


"  Q.  Did  vou  enter  Bchring  Sea  that  veav?' 

"  Q.  On  what  date?    A.  July  4th. 

"  Q.    Wh''ii  iliil  i/dii  idiiif  i.iii'/    A.    T/if  lll/i  <i/ S''/i/i'iiihii: 

"  Q.     W/i''ii    "''W    i/imr   /iisl   Idirrrimi   iliiii?     A.    ll   if'is  itliinit  l)i 
Aiii/ii^l,  air." 


■JH/I,  ■,( 


Here  is  a  vessel  that  was  there  from  the  20th  of  Au^n-l 
C^qIo  the  11th  of  September,  and  her  captain  could  not  iin\'  r 
a  boat  to  take  a  seal.  The  tonnage  of  the  "  Van<leihilt  " 
was  !»4,  and  that  of  the  little  "Triumph"  15,  yet  it  :< 
claimed  that  the  little  "  Triumph  "  would  have  remaiu'  'I 
until  the  loth  of  September  and  taken  seals.  She  wa-  a 
little  vessel,  and  had  completed   her  season's  work  ami 


841 


a  lioiivv  spR  «iis 


17  (lavs,  (lid 


Jpposo,  iiiuin- 


(Mr.  Warren'd  Argument.) 

ailed  home.  The  United  States  took  no  property  from 
hor  and  her  owners  are  not  entitled  to  any  damages. 

The  Claim  of  the  Owners  of  the  "Favourite." 

The  ])leadings  in  this  case,  if  your  Htinors  please,  set  up 
that  the  vessel  was  warned  August  2d,  oheyed  the  warn- 
ing and  departed  from  Bering  Sea.  That  information 
"^(  ame  from  one  of  the  claimants,  because  Charles  Spring, 
the  owner,  made  an  aftidavit,  at  page  00  of  the  American 
i;e|)rint  of  the  Proceedings  at  Paris,  Volume  5,  stating: 

•  and  I  also  claim  $8,00(t  damages,  because  the  officer  ni 

•  conmiand  of  the  United  States  steamship  'Corwin,'  as 
"  she  passed  the  '  Favourite,'  ordered  her  to  cease  sealing, 
"  which  she  did,  and  thereby  lost  her  season."  The  owner 
(if  this  vessel  swearing  before  the  Paris  Tribunal  that  the 
"Favourite"  obeyed  the  warning!  Jle  testifies  (Record, 
\Kv^o  IHOlt,  line  22)  to  these  facts: 

•Q.  And  all   you  say   now  is   tliat  you   do  uot   kuow   that   Capt. 

•  McLean  told  you  that  ho  took  seals  on  the  liHh  day  of  AuguKt  or 
•■  any  other  particular  day  ?    A.  Xo. 

•'ij.   Bill  /(('   (//'/  li'll   i/iiii  Hull   hr  liiiik  nrii/s  iifli'i-  //('  HVM  iriirnni?     A. 

•  IVs." 

Tiie  captain  told  him  in  the  fall  of  the  year  iss(i  that  he 

t.Ktk  seals  after  he  was  warned;  and  this  claimant  filed  an 

aflidavit  at  Paris,   stating  that  the  "  Favouiite  "  obeyed 

the  warning  and  left  the  Sea  immediately.     This  claim  is 

^oat  the  inception  of  the  argument  shown  to  l)e  admittedly 

■*  fictitious,  for  the  master  did  not  obey  the  warning. 

Wliat  was  the  actual  experience  of  the  "Favourite"? 
she  took  2,374  skins,  and  the  ''  Mary  Ellen,"  in  the 
largest  catch  ever  made,  took  2,3i»r),  21  skins  more  than 
the  "Favourite."  Within  21  skins  of  the  largest  catch 
(Vrr  made  in  Bering  Sea;  and  one  of  the  owners  asks 
liir  damages!  This  is  a  claim,  if  your  Honors  please, 
where  there  are  two  owners.  One  owner  testifies  at 
U'(  C(ird,  page  13(i2,  line  ;")(»,  that  the  voyage  was  left  eu- 


20 


40 


tiifly  to  Capt.  McLean,  the  other  owner.  Captain  McLean 
was  called  as  a  witness  (Recor.l,  page  133o,  line  60),  and 
1 1  si i lied  as  follows: 

•' y).  You  took  al)out  0-75  skius  after  you   were  warned?     A.  Yea, 

'•  -ir. " 


ilhiml  !/,■■  2:iil,  '.f 


30 


(k> 


And  Record,  page  1331,  line  48: 

■  (,).  And  why  did  you  leave  the  Sea  on  the  19th  August  ?    A.  The 
siasou  was  pretty  well  closed." 

And  Record,  page,  1333,  line  44: 

■  (,).  When  you  left  for  the  Hehriug  Sea  in  1880  as  master  of  the 

■  •  I'livourite,'  when  did  you  intend  to  conio  liai-k  ?    A.  I  intended  to 

■  lir  /"(./,■  hfi-i-  lietweeu  tlie  Ist  and  lOth  of  Septe  uber. 

■  y).  Had  vou  anv  special  reason  to  come  back  at  that  time?    A. 
•  Well,  '  used  to  fit  oiit  for  that  time." 

[{ecord,  page  402,  line  al: 

•  (,).  What  time  did  you  leave  the  15(>hvingSea  in  the  '  Mary  Ellen  '  ? 
'  A.   I  cannot  exactly  sav,  but  probably  about  the  '20tli  or  25th  of 

■  Au^'ust.    I  am  uot  sure. 

•  (,).  From  your  experience  rhat  would  you  call  the  end  of  the  seal- 
'  iuk'  season  \n  Behring  Sea  in  the  years  IHHti  and  1887 '!      A.   Ahcni  ihi> 

"  'jmli  i;t'  Aiii/iisl,  J  miiilil  roiiniilfr  iiliiinl   lln-  rnd  if  th''  sr'Htmi.      J  iisi'd  to 
'■  '../,"('  Ilir  Sni  Ihi'tl," 

This   "Favouiite"  left  on  the  llMh  of  August,  having 
taken  within  21  skins  of  the  largest  catch  ever  made  in 


M- 


Jif 


842 


(Mr.  Waneu's  Argument.) 

Bt'ring  Sea;  and  her  captain  testified  that  lie  left  becan  |. 
the  season  was  very  nearly  closed,  still  one  of  the  liaii;, 
ants  desires  an  award. 

The  captain  testified,  Record,  408,  line  .55: 

"  t^.  How  many  voarH  did  you  loave  tho  UehrinK  Sea  about  tbo  1'.':  li 

"  or  2(>tll  of  Au^UHt  V      A.    //'  1H83  lln'  lnnl  ImrffiiHi  tlmi  iri'  lind  in  II  '■■■■ 

'*  iiiif  i>ni  ifiis  f-H  tin'  Idtll  of  At/i/Hs/.       Ill  IHS-t  nil    t/lfl    --Vf/   nt*    A'tijiisl.     ., 

lO  "  /'''W;  (III  l/ii'  null  iif  Ani'iiist,  i'li  188'  nil  III''  VJlh  iif  .\ii(fiist,  ill  As.s.s    „ 

"  llif  null  iif  Aiii/iLi/',  iiiid ill  188'Juii  Ihr  -J-'tlli  iif  Ain/iisl." 

Has  this  vessel  any  valid  claim  hefore  this  High  Com- 
niission  for  being  warned  out  of  the  Sea  when  slie  ic- 
niained  until  her  captain  thought  tho  season  was  closed' 

The  only  witness  who  knew  anything  about  this  claim 
was  Captain   Alexander  Mcl^ean,  and  he  was  never  ((ii 
suited  in  regard  to  it,  and  does  not  now  claim  one  doll, n' 
foi-  damages.     I  read   from  his   testimony   (Kecord.  |ia-e 
2Q  i:i:<"»,  line  51: 

"  (■).  Dill  i/oii  nr  iliil  iinii  imt  vniDiiilrr  llinl  i/iiii  linil  n  cliii iti  iii/nin.il  iln: 
"  Ui'ili'il  Stiiti-a  (Siirn-iiiiniil  fur  liiirini/  hern  iniriieil  nut  1/ IMiriiii/ ,K  ,i  / 
"  .V.    /  (iiiiiiiil  Sill)  tliiit  I  iliil. 

"  Q.  Dili  i/iiii  riiiiaiiirr  tliiit  1/(111  linil  nil  cliiiiii  fur  till-  '  Ki(riinritc''^  A  / 
"  iliil  net  cinisiiirr  tlint  iii(/  cldiiii  iins  (/iinil. 

"  Q.  And  itnn  illtililicil  no  ililjinrtdiici'  til  tlie  iiiiltlrr  III  III/ :'  A.  JV«,  si,  ,■  / 
**  iirri'l'  llKtitc  11(1  rldinl.'^ 

Sir  C.  H.  Tupper.-— You  omitted  a  good  deal  there,  Mr. 
Warren. 
,Q     Mr.  Warren:  -Omitted  a  good  deal  of  it,  if  your  Honors 
please;  I  omitted  this: 

"  Q.  Can  you  Hay  that  you  did  consider  that  vou  had  no  claim V  A. 
"  There  wma,  claim  entered  in  hero,  and  if  the  United  States  Govciii- 
"  uient  would  pay  it,  1  would  l)o  very  ula't  to  see  my  share  of  it. 

"  y.  1  ask  you  whether  you  consulcr  you  had  a  claim?  A.  I  cuii- 
"  sidcred  that  I  had  for  the  'Onward.'  The  't)nward's'  claim  was 
"  Kood,  hut  the  '  Favourite's  '  I  was  always  in  doubt  of." 

That  is  what  I  omitted.  Tho  witness  McLean  g.ive 
th.e  dates  when  he  left  Bering  Sea  in   later  year.<,  ainl 

40 he  was  not  warned  during  one  of  those  years.  He 
stopped  sealing  three  years  in  succession  onthe  Ifttl:  of 
August,  and  in  confirmation  of  his  testimony  and  llic  ali 
solute  truth  of  it,  I  cite  Bragg  in  su|)portof  the  testinionv 
for  the  year  is,^y,  Tiiomas  H.  Brown  for  the  year  ls>'\ 
and  his  own  affidavit  ])repared  in  the  year  lS!t2  at  San 
Francisco,  in  which  he  said  that  for  three  years  in  succis 
sion  he  left  the  Sea  on  the  25tli  day  of  August;  and  liiint- 
iug  operations  would  terminate  some  days  before  the 
schooner  would  actually  leave  the  Sea.     He  testified  that 

50 he  stopped  sealing  three  years  in  succession  on  the  Itnh 
day  of  August.  Our  learned  friend,  Mr.  Beique,  cdii 
tended  that  the  testimony  showed  that  he  took  575  skins 
after  the  warning.  Undoubtedly  that  argument  wis 
based  on  the  statement  of  the  United  States,  thiniirji 
error  at  the  bottom  of  page  3tl!>  of  our  argument.  That 
statement  of  the  number  of  skins  taken  is  incorrect.  It 
says  2,25!)  skins  and  should  be  2.'M-i,  and  those  figures  aic 
contained  in  the  schedule  in  the  British  argument,  ami 
are  in  the  general  tables  prepared  by  Mr.  Lansing.    The 

60 statement  of  the  catch  made  after  the  warning  shoiiM  he 
changed  to  685.  I  now  read  tlie  testimony  to  show  tinie 
is  no  doubt  about  the  catch  of  the  "  Favourite  "  after  she 
was  warned.  Kecord,  page  1:580,  line  4(i,  shows  that  .Mc- 
Lean mado  a  mistake  of  110  seals  when  he  said  575,  ami 
the  number  should  be  685;  and  Charles  Spring  testified  at 


S43 


(Mr.  Warren's  Argiinient.) 

IvL'Cord,  pago  131it,  line  11,  that  the  I'ntire  catch  hi  Bering 
Sea  was  2,374. 

The  claim  is  now  advanced  tiiat  the  "Favourite"  left 

I  ho  hest  sealing  gronnds,  and  two  charts  are  presented  to 

liow  her  voyage.     We  now  file  a  chart  .jf  the  voyage  of 

I  ho  "Favom'ite"  prepared  on  one  chart,  containing  her 

voyage  hefore  and  after  the  warning,  showing  that  after 

10  the  warning  she  crossed  th<!  path  of  her  voyage  hefore  the 
warning.  In  tlie  Argument  on  hehalf  of  Great  Ihitain, 
jiage  59,  line  17,  the  chart  of  C.  H.  Townsend  is  used  to 
^linw  the  hest  sealing  giounds  in  Bering  Sea.  The  counsel 
[in'sented  that  cliart  of  Mr.  Townsend's  to  show  that  fact 
and  then  claimed  that  the  "Favourite"  left  the  hest 
scaling  grounds.  If  your  Honors  will  turn  to  page  r)3  of 
tlie  volume  in  wliicli  the  original  of  that  cliart  is  found 
\(iu  will  discover  flnit  the  clutit  nuts  based  upon  (he  hnj  of 
llic  '' Fdi'oiirile"  of  this  rery  voijdije.     Did  the  "  Favour- 

20  it  I  "leave  the  hest  sealing  grounds  when  the  chart  that 
the  counsel  put  in  evidence  was  derived  from  the  data  of 
tliis  very  voyage  of  the  "  Favourite?"  The  very  voyage, 
if  youi'  Honors  please! 

If  you  will  inspect  the  chart  which  has  just  heen  pre- 
sented, the  fact  will  he  apparent  tliat  from  the  I'jth  to 
the  19th  of  August,  the  "Favourite"  made  a  trip  round 
her  usual  sealing  giounds,  and  I  will  demonstrate  bi^yond 
any  doubt  why  that  was.  Turn  to  page  52  of  the  volume 
containing   the  original  of   the  chart   produced   by   the 

30 counsel  for  (ireat  Britain,  the  Townsend  chart,  and  it  is 
disclosed  by  the  log  of  the  "Mary  Ellen  "for  the  year 
1S8(!,  there  found,  that  from  August  15th  to  August  19th 
she  never  took  a  seal.  Refer  to  tiie  Record,  page  1098, 
where  the  catch  of  the  "  Say  ward  "  for  this  same  year  is 
ri|iorted,and  your  Honors  will  see  that  after  August  15th, 
iipon  wiiich  day  she  took  one  seal,  there  was  not  a  lower- 
in','  day  to  the  L'HJ.  of  August.  The  crew  of  that  schooner 
iii'ver  took  a  seal  during  tliat  time.  So  there  was  a  period 
IVuni  the  15th  to  the  19th  of  August,  that  the  typical  ves- 

40sel  "Mary  Ellen  "did  not  seal,  nor  the  "Sayward"  nor 
tlie  "Favourite."  The  "Favourite"  left  the  Sea  with 
tliat  storm,  as  her  captain  testified,  but  after  the  warning 
lie  covered  the  best  sealing  grounds,  crossing  his  path 
aj;aiu  and  again,  and  finally  was  within  a  very  few  miles 
of  tlie  place  where  he  was  originally  warned — which  place 
tlic  learned  counsel  are  pleased  to  call  the  "best  sealing 
grounds"  in  the  entire  waters  of  the  Bering  Sea. 

Tlie   Government  of  the  United   States  considers  this 
claim  wholly  simulated  and  fictitious,  and  in  that  opinion 

30af;rces  with  the  owner  of  one-half  the  schooner  who  was 
ciMiinianding  the  operations  of  the  schooner  at  the  time  of 
tliu  warning. 

1  have  in  presenting  the  facts  relating  to  the  fraudulent 
cuiicoalment  of  the  interest  of  citizens  of  the  United 
States  in  certain  of  the  claims  which  were  referred  by  the 
Convention  to  your  Honors  thrown  aside  the  protecting 
iiaiiK!  of  Great  Britain  and  considered  the  testimony  of 
till'  claimants  as  that  of  private  individuals.  These  labori- 
fboiiNly  honest  and  regular  documentary  titles  were  not  dis- 
lioiu'stly  issued  by  officials  of  Great  Britain,  but  were 
obi  allied  by  virtue  of  the  false  oaths  of  private  citizens;  and 
whin,  if  your  Honors  do,  declare  against  these  attempts 
to  |ii  rvert  the  purposes  of  this  High  Commission  you  will 
not  he  compelled  to  declare  that  officers  of  either  great 


V\ 


"TT^ 


H44 


(Mr.  Warren's  Argument.) 

power  have  proven  nnl'aithfnl  to  their  trusts,  but  only  th.ii 
private  citixens  of  both  countries  have  sought  to  perpetnil^' 
frauds  under  the  protection  of  certificates  of  British  rc^; 


Tliese  claims  are  national  claims  only  in  this  sense,  thcv 
are  presented  against  the  United  States  by  Ihe  (Joverii 
ment  of  Her  Majesty  because  there  is  no  other  way  l-i 

lo present  tliem.  The  Oovernmeiit  of  (heat  Britain  owiv 
tin  obligation  to  its  citizens  to  take  up  their  cause,  hut  is 
under  nt)  necessity  and  does  not  nossess  the  right  to 
urge  the  claims  of  citizens  of  tne  United  States  of 
America  against  the  sovereign  power  to  which  they  owe 
allegiance.  It  has  been  the  cherished  belief  of  all  citizens 
of  the  United  States  of  America  that  since  the  cradle  days 
of  that  Republic  the  judiciary  of  their  own  country  lias 
stalwartly  and  steadfastly  stood  between  their  persons, 
their  property,  their  lil)erty  and  any  wrong  doer,  he  it  even 

20  the  executive  branch  of  their  own  Government;  and  this 
High  Commission  will  not,  I  am  sure,  nnnouncetotheciv 
ilized  world  that  a  citizen  of  the  Unitotl  States  of  America 
has  been  compelled  to  seek  the  good  ottices  of  any  other 
power  on  earth  to  obtain  just  recompense  against  tliu 
wiongful  act  of  the  Government  of  his  own  country. 

Let  all  <;itizens  of  the  United  States  and  all  foreigners 
domiciled  within  their  jurisdiction  seek  the  courts  of  that 
country  for  damages  resulting  from  any  wrongful  act  of 
whatsoever  nature  and  by  whomsoever  (\ov.e,  so  long  as 

30  those  courts  provide  a  method  for  obtaining  redress. 

The  fraudulent  demai'ds  of  other  of  these  claimants  1 
have  much  discussed.  We  are  not  wanting  in  precedents 
when  we  characterize  these  claims a^  giot-tiv  cxtortionato. 
Tribunals  of  this  character  have  ai  .  i\\  m  the  past  ob- 
served the  tendency  toward  exaggeration  by  claimants, 
and  have  authoritatively  set  down  in  the  books  that  when 
considering  claims  of  this  character  the  mind  rfhould  W 
charged  with  the  fact  that  the  amounts  demanded  are 
beyond  any  proportion  to  the  damu^cs  sustained. 

40  The  proceedings  and  deliberations  of  this  International 
Commirsion,  convened  for  the  peaceful  determination  of 
questions  at  issue  between  two  great  Powers,  are  beinj; 
concluded.  Significant  is  this  fact.  Its  proceedings  com 
menced  within  sight  of  the  fortifications  protecting' 
Esquimau  harbor,  and  are  concluding  within  the  shadow 
of  the  citadel  and  ramparts  of  Halifax— Britain's  "  Wai 
den  of  the  Honor  of  the  North." 

In  the  presence  of  these  evidences  of  the  settlement  of 
international  disputes   i)v  the  arbitrament   of  war  your 

50  Honors  have,  1)V  the  wisdom  and  justice  with  which  you 
have  perfort.ied  the  dnties  devolving  upon  you,  advanced 
the  cause  ol  the  peacefnl  arbitration  of  questions  in  dis 
jmte  between  civilized  nations;  and  the  determination  of 
the  claims  refeircd  to  this  High  Commission  in  accordance 
with  the  tei  nis  of  the  Convention  and  the  principles  of 
international  law  will  be  a  straight-flung  blow  iiy  tw(j 
great  Power.'',  which  in  the  past  have  been  willing  to 
pe.'icefnlly  ai  liitrate  iiJl  questions  .save  those  involving  tiie 
dignity  of   t  illier  nation,  at  the  prai  tice  of  adjusting  tiis 

6opnted  <iuestions  by  war. 

At  half  past  four  o'clock  the  Commissioners  rose. 


CommiSBioners  under  the  Convention  of  February  8, 

1896,  between  the  United  States  of  America 

and  Great  Britain. 


I^^'^islativl'  Coiiiuil  Chainltcf.  I'rovincial  Miiildiiig, 
At  Halifax.  ScptomlHT  21.  1h«j7. 

1(^1     At  1(».!W)  A.  M.  Ilie  CommissidiuMs  took  their  s(>atM. 

Mi;.    Dickinson's    Ci.osiMi  Aikilmknt  kou  thk    Unitkd 

Statks. 

Mr.  Dickmsoii:  — May  it  |)lfas(>  the  Coiiit.  Tallovrand 
,,ii(  (>  apolo^^i/.od  for  tlio  lt'n>j;tli  of  a  paper  in  tln-sc  words: 
•  Villi  will  excuse  the  length  of  this  coMinninicalion.  as  1 
hi.vc  had  no  time  to  write  a  shorter  one."  In  the  |»repara- 
til  Ml  of  tlit'arj^ntnent  upon  the  most  inipurtant  and  mtorest- 
iii^'  (piestions  of  law  [iresented  in  the  printed  Itriet  of  the 
20  1  iiiti'd  Slatt's.  it  may  he  saiii  of  the  time  and  pains  ex- 
|M  init'd,  that  they  have  heen  laijj;ely  devote<l  to  the  work 
i.r  condensation.  We  have  endeavored  to  present  our 
vji'ws  of  the  law  with  oidy  leadinj;-  citations.  with(»ut  dis- 
( iiisiveness.  and  at  the  thieshold  to  call  marked  attention 
In  the  (piestinns  outside  of  mere  assessment  which  must 
hr  disposed  of  by  the  High  ('ommissio>icrs.  The  present 
>('>>ion  at  Halifax  commenced  on  the^.Mh  day  of  August. 
W  1'  have  now  reached  the  L'ist  day  of  September.  In 
view   of    the    length    of   time  taken,    it    is    indeed    my 

3u|iiiipose,  as  far  as  possible,  to  continue  the  work  of 
(uiiileiisation  in  the  presentation  of  the  dosing  argu- 
iiK  nt  for  the  Tnited  States,  in  so  far  as  that  <;an  be 
(li)iie  with  the  concuirent  preservation  of  a  conscience 
tliat  must  be  clear  on  tlio  score  of  duty  that  wo 
our  to  this  Commission  as  well  as  to  our  (>ovt>rninent. 
( >t  tilt;  lime  taken  from  the  lirdh  day  of  August,  if  the 
Ciiiiit  |»leaso,  we  have  occupied  up  lo  today,  seven  and  a 
half  days.  We  commenced  on  Monday,  the  iJUh  day  of 
St|itember,  tlie'o|)ening  on  the  law  and   the  [»resentation 

40 lit  the  case  upon  the  fact'^.  and  we  have  now  reached  the 
•Jl>t.  For  the  time  taken  in  the  presentation  of  the  facts 
nil  the  part  of  the  rnited  States,  a  period  of  aliout  five 
il  ivs.  and  part  of  another,  wo  have  no  excuse  to  make  in 
the  form  or  nature  of  an  apology.  In  this  connection, 
iiiav  it  jtlease  the  Commissioners,  I  desire  to  refer  to  one 
suiijcct  which  is  touched  upon  in  th<'  brief  of  Her  Majesty's 
(iMiiisel.  commenting  upon  a  statement  in  the  brief  of  the 
liiitcd  States,  which  has  occasioned  me  some  jiain.  and 
fortius   reason,   I  am   suiv   that  all  of  the  counsel  of  the 

^oliiitcd  States,  iind  I  am  ecpialiy  sure  that  everyone  of 
I  he  counsel  for  (iieat  Britain  have,  from  the  beginning  of 
tho  hearing  at  Victoria,  when  we  first  met  together,  been 
a( mated  by  a  common  motive  that  does  credit  to  us  all, 
and  that  was.  and  is.  and  has  been,  to  distinguish  in  some 
il'-ivc  the  proceedings  of  this  among  International  Tribu- 
inN  by  the  avoidance  of  anything  in  the  nature  of  un- 
i<iii(liiess  or  of  accnsiition  or  recrimination  between 
counsel.  This  motive  has  characteiizeil  the  relations  of 
c  iiiiisel  from  the  beginning  until  now.  whether  before  the 

6oTiilmnal,  in  public,  or  in  conference,  and  there  has  not 
liirii  one  unkind  word  from  either  side  to  the  other. 
lint  in  the  printed  argument  of  the  United  States  as  an 
I'v,  iisefor  the  length  of  our  analysis  of  the  facts,  and  our 
i|iiot  itions  from  testimony,  we  referred  to  the  extraordi- 
iiai  V  condensation  of  the  British  Argument  as  to  matters 


-r      :| 


M 


:  Jv^; 


8-ir. 

(Mr.  Dickinson's  Closing  Ar^iuncnt. ) 

of  t'vidtMKC,  and  excused  tlio  time  and  si)a('e  taken  In  i> 
in  tliat  ri>f;ard  by  let'erenco  to  and  conipaiison  with  i.,,. 
staten.ents  made  in  tlic  openinj^  arfj;nnu'nt  of  Hci'  Mujt  ^i  \  s 
Coinist'l.  Wo  refeiTod  rathcrto the  failure  tocito  tlii>  i(  \t 
as  well  as  the  evidence  as  lo  points  made  in  tiieir  favMi, 
and  to  their  failinvto  cite  lliepa};-eof  (piotations  from  the 
Record   in    the   linrry  of  preiiaration.  and    therefore,   \\,> 

lonu'ant  to  say  that  we  l)ad  been  compelled,  as  the  Record  u  ill 
sliow,  togo  into  very  full  ()  not  at  ions  from  tlietestimonv.  ,iim| 
accurate  citations  from  the  i)roots,  in  reply  and  refutali..ii. 
My  fiiends  .seem  to  have  taken  that  statement  as  a  rctliv- 
tion  upon  tlie  fairness  of  tlu'ir  arj^unient,  or  as  irnplvm;; 
tliat  the  United  States  desired  or  intended  to  char^t-  w  lil- 
ful  misstatement  in  some  things  they  had  set  down.  Put 
I  think,  upon  reading  tiu?  statement  of  the  United  S!;ii  -, 
it  will  beai'  no  other  construction  than  the  usual  fonn^ii' 
one  that  we  could  not  admit  the  view   of  the  testinn.iiv 

20 taken  by  Her  Majesty's  (\)unsel,  and  submitted  onis  al 
greater  length  and  with  necessarily  fuller  citation^. 
Whether  they  did  submit  theirs  too  briefly  is  hefeiv  Hic 
Couit.  We  submitted  ours  very  fully  with  abundant  rii.i- 
tions,  and  it  has  seemed  to  us  at  this  session  that,  owinu  to 
the  conditions  adverted  to  as  to  the  printed  argument'-,  it 
is  i)lain  that  it  has  been  necessary  for  them  now,  in  tin  ii 
oral  argument,  to  develo|>  and  entirely  riMuodel  thru 
argument  on  the  facts.  It  seems  to  be  true  by  the  (Mir 
fully  prepared     statement  and  review  of  the  whole  te-li 

3omony   whicli   lias  been   spread    befoiv    the    Conit    finm 
written  notes  that  it  is  clear  that  they  have  been  coin 
polled  to  reform  their  argmnent  upon  the  facts,  and  tiiat 
this  new  presentation  we   have  been   compelled  to  nieit 
here  after  the  oral  argument  Iku.  been   opened.     We  lind 
no  fault  with  that.     We  are  now  excusing,  as  we  did  in 
our  printed  aignment,  the  length,  not  the  snbstanceol  lur 
argument  upon  the  facts,  and  the  length  of  the  oral  ai^ii 
ment  on  the  part  of  the  United  States  compelled  by  the  ic 
presentation  from  carefully  revis(>d  and  printed  notes  o| 

40  new  positionson  behalf  of  Great  Britain.  Whether  we  have 
done  well  or  ill  is  for  the  High  Commissioners  to  judge,  and 
we  trust  that  we  shall  be  judged  leniently  when  our  learned 
friend  comes  to  reply.  The  reflections  upon  the  Govi m 
ment  of  the  United  States  in  the  argument  of  Great  lliit 
ail),  and  oui  rejdy  to  and  comments  upon  them,  stand  u|m]|i 
different  grounds. 

Al.I.ECil.WCK   AND   NaTIONAUTV. 

Coming  to  tho  law  argument,  I  invite  the  attention  ^f 
50  the  Tribmial  to  Article  1.  of  the  Convention  under  wliii  li 
it  sits.     It  provides  only  lor  claims  sustained  by  '•peiMni- 
"  in  whose  behalf  (ireat  Britain  is  entitled  to  claim  com 
"  pensation  from  the    United   States."     This   meets  the 
Tribunal  at  the  outset,  and  I'enders  necessary  a  survey  ot 
the  meaning  of  the  words,  in  International  Law,  and  in  tin 
language  of  Nations,  of  "Allegiance"  and  "  Nationalilv    " 
And  it  is  necessary  to  bear  in  mind  soinc'  distinctions  |iie 
sented  by  the  conditii'iis  in  the  cases  here,  for  witlieiit 
having  constantly  in    mind   the   (piestions   here  cgii-kI- 
<''0('ied,    one    is    liable   to    be    misled    by    the    rulings    and 
decisions  wliieli    have  heretofoi'e   been  made,    whicii  il", 
nevertheless,  shed  a  clear  light  upon  the  points  in  i'-^ne 
in  connection  with  one  or  the  other  nation's  claim  of   il 
legiance,  and  in  coinu'ction   with  the  cases  where  natieiis 
have  claimed  a  corresponding  right  of  i)rotection. 


847 


(Mr.  Di'kinsdirs  Closing  Argument.) 

|,ot  ns  liear  in  niiiid  thul  this  case  duos  not  invdlvo  tlie 
..-scition  by  Great  Britani  of  tlio  ()l)ligations  of  her  na- 
lionals  due  to  her  sovereignty,  and  a  denial  of  tiiose 
,.|)ligations  hy  tlie  Uniti'd  States. 

it  does  involve  the  asseition  hy  tlie  United  States  of 
i.lijigationsdue  to  tiieir  .'■fncreignty  from  nationals  of  the 
inited  States,  which  is  denied  hy  Great  Britain. 

10  This  case  does  not  involve  t'n-  asseition  i)y  the  I'nited 
Mates  of  a  right  to  jirotect  l^ritisii  sidijects  against  tiio 
Mivereignty  of  Great  F5ritain.  It  does  involve  an  assertion 
l.v  Gieat  liiitain  of  a  liglit  to  protect  Atnt-rican  citizens 
.igainst  the  sovereignty  of  the  United  States.  The  right- 
fid  claim  of  the  nation  to  the  obligations  of  a  citizen  or 
hubject.  rests  on  broader  and  (luite  ditferent  grounds  from 
the  rightful  claim  of  the  nation  to  prote  t  tl;e  same  sub- 
ject or  citizen  from  other  nations.  To  illustrate  briefly, 
liiil    more  at   length  as  we  go  on  with   tlie   argument, 

20there  are  many  stronger  case.-;  for  the  Uni.ed  States  upon 
this  point  than  the  Dinnnnond  case,  in -J  Knapp,  P.  C., 
L'ii,">.  Take  thnt,  for  instance.  A  British  subject  domi- 
ciled in  France;  a  convention  between  France  and  Great 
Britain  providing  for  the  payment  of  claims  of  British 
subjects  injured  by  France.  The  attitude  of  Great 
Hiitain  to  ;i  British  subject  domiciled  in  Fratice  was  this: 
This  is  a  British  sid)ject  owing  allegiance  to  tJreat  Britain, 
hut  tliis  man  is  also  donuciled  in  France,  subject  to  the 
l;i\vs  and  sovereignty  of  France,  and  Great  Britain  caimot 

30  in.ike  reclamation  and  protect  this  subject  as  against  the 
nation  of  his  domicile  or  civil  citizenship. 

Hut  now  we  come  to  obligations  on  tiie  otlier  hand,  and 
illustrate  them  by  authority.  A  subject  of  Great  Britain, 
a  natural  born  subject  of  that  Empire,  domiciled  in  Franco 
from  his  childhood,  took  a  conunission  in  the  French 
aimy,  and  although  by  the  laws  of  war  the  property  of  a 
I'ritish  citizen  domiciled  in  France  would  take  its  national 
chiuacter  from  France,  and  in  a  neutral  country  the 
nntionality  of  the  country  of  residence,  yet  Great  Britain, 

4iiof  the  same  kind  of  a  subject,  bear  in  mind,  as  in  the 
Kiiapp  case,  where  such  subject  could  not  make  reclama- 
tion from  France  because  he  lived  there  and  was  a  civil 
citizen  of  France,  I  say  Great  Britain  ptuiished  that  Brit- 
ish subject  so  domiciled  in  Franco  for  treason  against  the 
sovereignty  of  (ireat  Britain  for  adhering  to  Franco 
against  lier.  So  the  same  nation,  as  I  shall  show  to  your 
llniiorsby  citation.s,  held  in  ls4S,  during  the  Irish  Kebel- 
limi  wliicli  was  not  .1  state  of  war,  technicilly  at  least  — 
tiiat    a  native    horn    American    citizen,   not,  of    course, 

30 naturalized  in  Great  Britain,  but  residing  in  Ireland,  if  he 
participated  in  any  degree  in  the  I'evolt  against  British 
sovereignty  in  Ireland,  was  guilty  of  ti'easou  against  (Jreat 
Hiilaiu  and  cotdd  be  punished  as  a  traitor,  and,  furlber- 
nmre,  the  United  States  would  not  be  permitted  to  inter- 
\eiie  for  his  |)rotection.  as  long  as  he  was  treated  precisely 
as  a  British  subject  was.  There  you  have,  in  the  cases  I 
liive  instanced,  the  two  cases  of  (Jreat  Britain  claiming 
thai  her  own  suiiject,  doinicded  in  anotiier  country,  could 
lir    punished    for    violation    of    his    obligations    to    the 

<iosiivereigntv  of  Great  Britain,  and,  on  the  other  hau<l, 
lii'liliiig  that  a  foreign  citizen  domiciled  in  Great  Britain 
nii^;ht  also  i>e  guilty  of  ticasou  against  the  sovereignty  of 
(iivat  Britain.  Both  positions  are  sustained  by  inter- 
national law.  The  United  States  have  consistently  main- 
tained the  same  thing  always. 


u 


M 


irfrwrr- 


a '  'till!  '  ► 


^'iij£ai''' 


S4.S 

(Mr.  Dickinson's  Closing  Arginnent.) 

In  a  case  in  1S12,  Elijali  Clark,  an  Ameiicnn  citizen  v 
original  allegiance,  doniiciled.  however,  in  Her  Majesi.  s 
dominions,  was  execnted  by  the  United  States  for  tron-  n 
against  the  United  States.  On  the  other  hand,  wh,  n 
Great  Biitain  and  the  United  States  weie  at  peace,  m 
the  Williams  case,  to  which  I  shall  give  yonr  Hoiums 
and  my  friends  the  citation,  it  will  appear  that  Willinins 

lowas  a  natnial  horn  American  citizen.  He  had,  Ikw. 
ever,  in  17!t2,  gone  to  Guadalonpe,  a  French  poss.  <. 
sion,  and  took  out  naturalization  papers,  as  he  ((nilii 
in  France,  and  became  a  citizen  of  France.  That  i-  n 
strongei' case  than  that  of  domicile.  He  took  a  comini^. 
sion  in  the  French  navy  and  on  the  highseas  -on  theln^h 
seas,  bear  in  mind,  captured  a  Britisii  mev-Iint  ship  .iml 
took  her  to  Guadalonpe  as  a  prize.  Grea«/  Biitain  ((iin 
plained  to  the  United  States  of  this  citizen  of  the  I'nih.l 
States  on  the  ground  of  this  same  doctrine  of   |  erjiciii;!! 

2oallegiance.  Williams  was  captuied.  tried  in  llie  Fedcial 
court  of  the  United  Stales  for  violation  of  our  !aw>  uf 
neutrality,  tiied  as  a  citizen  of  the  United  States,  ami  he 
fore  Chief  Justice  P^llsworth  of  the  Supreme  Court  of  ilic 
United  States  was  convicted  and  punished  as  a  cili/iu 
of  the  United  States.  It  was  held  that  he  could  not  il(  nv 
his  allegiance  to  the  sovereignty  of  the  United  Statis 
The  obligation  to  sovereignty  is  far  and  above  and  lieyiini] 
the  obligation  to  obey  a  statute  law.  I  have  taken 
the  extreme   cases   of   treason   and   of  violation   by  dur 

30citiz(Mi  of  his  sovereignty's  faith  to  Great  Britain  in  times 
of  peac»i  as  binding  on  all  our  citizens  wlieiever  tlicy 
may  be.  And  they  show  that  allegiance  to  sovereignty 
means  something  else  besides  I  he  duty  not  to  take  uji  arms. 
Allegiance  goes  all  the  way  down  to  this,  that  no  citi/cn 
by  original  allegiance,  or  by  the  teujpornry  allegiance  nf 
domicil  can  deny  the  sovereignty  of  his  citizenship,  oi  the 
temjiorary  citizenshii)  or  the  permanent  citizensliip; 
neither  can  he,  while  allegiance  exist.<.  deny  the asseitidii 
(if  the  sovereignty  of  the  nation,  and  set  nj)  his  judgnirnt 

40against  the  judgnientof  hisown  sovereignty,  and  wlietlu'r 
that  sovereignty  be  right  or  wrong,  claim  reclaniatidn 
against  his  own  sovereignty  under  the  proteitinn  (,t 
another  nation,  if  he  suffers  in  his  act  of  violating  tins 
duty  of  allegiance.  (!reat  Britain,  least  of  all,  wants  any 
sucii  doctrine  as  tiiat.  So  that  we  see  the  United  Stales 
is  in  the  position  of  stating  as  to  one  set  of  these  claimants 
'"Yes,  you  aie  British  subjects  by  original  sovereignty. 
We  are  not  denying  the  claim  of  jurisdiction  lo  |iici- 
tect  you  in  case  you  are  not  treated  precisely  like  ev(  i\ 

soother  citizen  of  the  Unitcnl  Stales  owing  allegiance  In  the 
country  that  protects  you."  (Jreat  Britain,  bear  in  mind, 
is  not  in  the  attitude  that  she  would  l)e  were  the  L  iiittd 
States  seeking  t(i  claim  l'r(nn  her  damages  for  her  sulijrct 
of  original  allegiance  domiciled  in  the  United  States,  dn 
the  other  hand,  if  there  be  anything  in  the  doctiinr  df 
allegiance,  if  it  is  not  a  mere  term  ot  sound  without  miIi 
stantial  meaning,  an  American  citizen  domiciled  abidad, 
entitled  to  and  receiving  protection  to  a  degree  as  sm  h  Id 
the  extent  that  he  shall  be  treated   with  justic(>  by  the 

<JO nation  in  which  he  is  domiciled,  and  further  to  the  <  N'riit 
that  il  surrounds  him  with  the  full  protection  el  liis 
sovereign,  not  only  the  moment  he  gets  hack  to  his  ceiiii- 
try.  but  th(;  moment  he  s(>t  his  face  hom(;\vard,  owi  -  ic- 
ciprocal allegiance,  andsubstantial  allegiance,  to  the  I'mifil 
States. 


84!> 

(Mr.  Dickinson's  Closiiifj;  Aigunient.) 

It  is  not  the  case  of  an  American  citizen  domiciled  in 
(Mcat  Britain  owing  original  allegiance  to  the  United 
Suites,  who  is  denying  the  sovereignty  of  his  country  of 
(luMiicil.  and  asserting  his  right  of  protection  on  questions 
III  Conflict  hetween  IheUnited  States  and  Great  Britain,  and 
(•  illing  ui)on  tiie  United  States  to  protect  him.  Great 
1':  ilain  in  this  case  takes  the  posiiion  that  she  may  inter- 

10  V.  lie  to  protect  an  original  subject  legally  domiciled  in  the 
I  lilted  States  against  the  United  States— I  make  it  broad, 
aiitl  the  case  of  Her  Majesty  is  as  broad— as  fully  as  she 
niay  protect  a  British  subject  domiciled  in  Great  Britain. 
She  stands  upon  the  same  ground  precisely  when  she 
tkiiins  reclamation  for  an  original  subject  of  Great  Brit- 
ain domiciled  in  the  United  States.  Furtliermore,  she 
maintains  the  converse  position  concurrently  with  this. 
Silt'  claims  to  extend  precisely  the  same  degree  of  protec- 
tion to  an  American  citizen  domiciled  in  Great  Britain. 

20  A  house  divided  against  itself  cannot  stand.  And,  in 
lU'ither  position,  as  applied  to  this  case,  can  such  doctrine 
he  maintained  as  a  iiiinciple  of  International  Law,  and  it 
cannot  be  tolerated  and  never  has  been  toleiated  for  one 
niuiiient. 

The  Civil  Law  is  precisely  like  the  Common  Law  in  re- 
s|M ct  of  the  lelation  of  Sovereign  and  citizen  or  subject. 
We  learn  from  Ciceio's  oiation  for  Balbus  that  under  the 
Rniuan  Republic  it  was  one  of  the  privileg.'s  of  a  Roman 
liti/.eii  to  renounce  ills  allegiance  to  Rome,  and  become  a 

30(  it i/.en  of  some  other  country.  It  was  his  privilege,  but 
lie  iiiul  to  renounce  to  escape  obligations  of  citizenship. 
Later,  however,  under  the  Code,  no  miniicipes  could  ab- 
jiiiv  liis  allegiance  to  Rome,  and  while  it  was  true  he 
nii^iit  take  up  his  residence  and  acquire  a  domicil  and  be 
JKiniHl  l)y  local  laws  in  some  other  country,  yet,  he  never 
cdiild  al)]ure  his  original  allegiance.  He  might  be  domi- 
( lied  elsewhere,  but  was  then  under  two  nationalties,  and 
when  these  conflicted  as  to  him,  each  case  had  to  be  de- 
cided on  its  own  merits.     I  refer  my  learned   friends  to 

4ol,ilii'i  4  of  The  Code,  title  38.  I  particularly  refer— and 
wt  l)ow  to  the  learning  in  the  Civil  Law  of  our  distin- 
giii>iu'd  fiiend,  Mr.  Beique— I  refer  him  upon  this  same 
tiiilijict  to  Michelet's  History  of  France,  4!>-r)4,  on  this 
suhjcct.  Two  nationalities  was  the  doctrine.  One  never 
cu[\U\  abjure  the  nation  of  original  allegiance;  he  might 
take  upon  himself  another  civil  citizenship  by  domicil  or 
otliirwise,  but  his  nation  of  original  allegiance  still  held 
liini  1(1  his  obligations  and  to  a  degree  protected  him  in  re- 
turn. 

50  Ti  111',  under  the  Code  Napoleon,  the  rule  was  relaxed  so 
thi'  a  man  was  permitted  under  the  domestic  or  municipal 
iawsof  France,  however,  to  unbind  his  citizenship  so  to 
sjicak,  by  taking  naturalization  by  pei  mission  of  tlie  sov- 
pni^.ty  in  any  other  country — by  taking  a  military  posi- 
tidii  undei'  the  Government  of  another  country,  or  even 
by  Iraving  France  to  take  up  a  residence  in  another 
cminliy  without  the  mind  to  vetuvn  - Saiin  eNjirit  tie  re- 
tnni :  t  hat  also  severed  the  tie. 

Till- law  of  tlie  German  States  did   not  permit  thesev- 

SoeraiKC  of  allegiance  until  the  j)erformance  of  certain  ob- 
liL;aiiniis  of  citizenship.  That  applies  to  the  laws  of  all 
thi  I  ui  man  States  within  the  [)resent  confines  of  the  Ger- 
man Kinpire  and  Austria.  And,  the  controversies  out  of 
the  'hvcrs  claims  to  citizenship  and  piotection  thus  arising 


■¥ 


M 


860 


(Mr.  Dickinson's  Closing  Argument.) 

are  ni.'ulo  the  toxt  of  much  of  tho  learning  in  the  Ih.  ks 
upon  thw  suhject  of  allegiance  and  nationality. 

This  doctrine  of  allegiance  is  not  the  old  doctrhi'  if 
fendal  allegiance;  it  is  the  old  civil  law  doctrine  w  i  h  |i 
antedates  the  fendal  system.  It  may  he  thus  deli;  mI: 
Allegiance  is  the  ohedience  ov\ing  l)y  a  person  to  the  ,>. 
ereignty  of  his  nation  of  citizenship;  it  is  not  then!    ij. 

loeiice  as  to  a  feudal  lord  in  the  sense  of  .serfdom  or  ;iv. 
ery;  hut  it  is  the  older  doctrine  of  allegiance,  iint  In  iho 
lord  hut  to  the  State  and  to  all  its  assertions  of  [x^.i, 
jurisdiclion  and  dignity.  That  is  the  old  IJonian  i|.,c. 
trine;  and  it  is  tiie  same  doctrine  held  harmoniousU  Ijy 
the  United  States  down  to  18(18.  and  hy  (ireat  Mm  liii 
down  to  l87o.  They  held  until  then,  that  allcgiiHK c 
could  not  he  sundered  at  all  without  the  conscin  df 
the  sovereignty.  At  the  same  lime  it  was  held  la^  we 
have  seen  from  the  Drunimond  case  and  that    cijiN-  of 

20 cases)  that  the  suhject  might  take  upon  hiniselt  ciilajii 
ohligations  in  letuin  for  certain  i)rotection  in  the  (  iiiii- 
try  of  his  domicil,  and  tiius  a  qualified  "douhle  iiatinn- 
ality,"  hut  he  could  not,  even  hy  taking  out  naturali/n- 
tion  papeisand  renouncing  his  original  sovereignty,  ilis- 
chaige  his  ohligations  and  duty  to  Ids  original  soverci^ntv 
or  he  released  from  them. 

I  do  not  know  that  I  can  quote  the  old  Latin,  hr.l  [ 
think  I  can.  It  is  in  first  Blackstone  and  repcatril  in 
Hale's   Pleas  of  the  Crown.     It  will   he   found   in   lirst 

30  Blackstone  somewhere  ahout  page  ;570,  and  in  Hah^'s  I'lwis 
of  the  Crown  somewhere  about  page  •i8— and  this  is  tlic 
doctrine  held  hy  i)oth  nations  without  conflict;  in  tlh'  did 
Latin:  *'  Nemo  potest  exiiere  imtiiaui  nee  delntiuii  liiicun- 
ti<('  eju rare '''—no  man  can  throw  off  his  own  couutrv;  no 
man  can  abjure  his  allegiance  to  his  sovereign. 

An  extended  review  of  the  history  of  the  suhjci  1  i:i 
other  countries  is  unnecessary. 

And  now  I  come  to  the  discussion  of  this  (|uisiiiiii, 
briefly,  as  it  has  been  treated  by  the  United  Stato  and 

40tireat  Britain.  So  strongly  did  Great  Britain  assnt  iliis 
common  law  doctrine,  that  after  our  peace  followiii;;  iln' 
Kevolutionary  War,  she  maintained,  during  her  succicillng 
wars  with  France,  that  she  not  only  had  the  hellijiciciit 
right  — which  was  conceded  on  all  sides— to  .seanli  an 
American  vessel  in  time  of  war;  hut  she  also  maintained 
that  she  had  the  right  to  take  from  that  vessel  a  citi/in  of 
(ireat  Britain  who  had,  .so  far  as  he  could,  renonnccij  liis 
allegiance  to  Great  Britain  and  become  a  naturalized  tit 
izen  of  the  United  States.     She  maintained  the  coniinon 

5olaw  doctrine  of  the  United  States  and  of  Great  Hrilani, 
that  a  British  suhject  could  not  become  a 
of  tho  United  States,  so  as  not  to  he  bound  by 
giauce  to  his  original  sovereignty,  but  she  alfo 
the  right  to  take  from  oiw  ships  a  citizen  of  tin 
States,  naturalized  as  such,  hut  who,  at  the  same  tinu>, 
had  not  been  released  from  his  allegiance  to  (In'at 
Britain,  and  impress  him  in  tiie  war  .service  of  that 
nation.  Siie  thus,  let  me  repeat,  claimed  the  rij;lil  to 
take  from  an  American  ship  a  naturalized  citizen  of  Ihe 

60  United  States,  who  had  been  a  natural  born  cilizin  of 
Great  Britain,  and  this  is  what  made  the  dilliinlty. 
"  kight  of  search  "  by  itself  iiad  nothing  todowilhit; 
tiiat  was  conceded  on  all  sides  in  time  of  war.  Hui  the 
right  to  take  our  ufittualized  citizens  was  the  assertion  of 
this  old  doctrine  to  which   I  have  called  atteulioii,    i/ . 


ritl/.m 

lis  alli'- 

clainicd 

Unili'd 


^51 


(Mr.  Dickiufon's  Closing  Argument.) 

iliat  allegiance  to  Great  Britain  could  not  be  dissolved, 
ciiild  not  bo  thrown  off  or  abjured.  The  L'uited  States 
I  ii  respective  of  her  doctrine  on  this  point)  maintained  that 
(i  real  Britain  could  not  take  an  Anjerican  citizen — one 
(  \lled  by  the  United  States  an  American  citizen  or  any  one 
I  Ue— from  an  American  ship,  hut  planted  this  resistance 
upon  the  ground  of  the  inviolability  of  the  sliip  and  crew, 

lo-iveas  to  search  for  contraband  goods.  Sir  John  Nicoll,  a 
liw  officer  of  the  Crown,  was  called  on  for  his  opinion,  and 
he  laid  down  this  doctrine  of  original  allegiance,  but  on  it 
ii-;serted  the  right  of  Her  Majesty's  ships  to  maintain  the 
juri.sdiction  of  Her  Majesty's  Government  over  the  per- 
son of  a  British  born  subject,  whenever  and  wherever 
mid  on  whatever  ship  found  on  the  high  seas.  And  the 
l^iitish  Government  planted  itself  on  that  ground.  The 
dispute  on  the  latter  position  led  to  the  war  of  \s\-2.  It  was 
,1  practical  question  while  Great  Britain's  war  with  France 

20 listed.  The  Treaty  of  Ghent  followed  hetween  Great 
I'litain  and  the  United  States,  and  the  question  was 
iiiif  settled  because  it  became  a  mere  abstract  (juestion 
when  the  war  between  Great  Britain  arid  France  ended. 
Tlie  question  was  opened  again  in  order  to  get  Great 
liiitain  to  disavow— not  the  right  to  the  allegiance  of  her 
subjects— but  to  disavow  her  right  to  take  a  sailor  from 
(111  American  ship  as  an  incident  to  the  right  of  seaich 
in  time  of  war.  A  negotiation  to  have  that  statement 
entered   by   Great   Britain   upon   the  diplomatic   history 

30(it  the  world  was  reopened  by  Mr.  Rush,  then  American 
Minister,  in  1818;  but  Great  Britain  refused  to  open  the 
subject,  because,  as  uiged  at  the  time,  it  would  lead  to 
endless  complications  if  it  were  once  admitted  that  a 
subject  could  of  his  own  will  abjure  his  allegiance  to 
his  sovereign.  Great  Britain  planted  herself  upon  that 
ground,  and  refused  to  open  the  question  at  all.  Mr. 
Webster,  at  the  time  of  the  Ashhurton  Treaty,  in  1842, 
endeavored  to  get  a  like  acknowledgment  in  that  treaty; 
but  for  the  same  reason  that  negotiation  came  to  nought, 

40 although  the  slave  trade  and  the  matter  of  search  on  the 
iiigh  seas  in  that  connection  was  then  coming  up.  Then 
for  the  first  time  there  began  to  he  involved  the  right  of 
search  in  time  of  peace.  But  it  was  not  the  old  question 
(if  the  right  to  take  a  natural  horn  subject  of  Great  Britain 
on  the  high  seas  on  account  of  his  original  allegiance. 
Tiiis  was  a  new  question,  finding  its  origin  vvholh-  in  the 
ttl'orts  of  nations  to  suppress  the  slave  trade. 

Then  we  come  down  to  1848,  the  time  of  the  troubles  in 
Ireland.     Mr.  Bancroft,   our  great   historian,    was   then 

50  Minister  to  the  Court  of  St.  James,  Great  Biitain  insisted 
that  native  born  Irishmen,  although  naturalized  in  the 
liiited  States,  were  still  Her  Majesty's  subjects.  'I'hat 
was  not  so  much  disputed  by  the  United  States  as  were 
(it her  points.  Great  Britain  insisted  not  only  upon  treat- 
ing them  as  subjects  when  passing  thiough  Ireland,  hut 
also  undoubted  native  born  citizens  of  the  United  States. 
Great  Britain  discriminated  in  treatment  between  them 
and  her  subjects  domiciled  in  Ireland.  She  also  in- 
sisted— and  this  point  was  conceded  then  by  the  United 

^•estates,  and  conceded  again  hy  Mr.  Adams  in  18»)()  at  the 
time  of  the  Fenian  troubles —that  an  American  citizen,  a 
native  born  American  citizen  domiciled  in  Great  Britain 
(iiiild  be  guilty  of  treason,  and  might  he  punished  for 
treason  equally  with  a  British  natural  born  subject  horn 
(in  British  soil. 


1 1 


!fFP 


m9 


■■\fi 


852 

(Mr.  Dickinson's  Closing  Argument.) 

Aiul  the  position  taken  by  Mr.  Adams  and  by  Mr.  Bii- 
croft  as  to  that  was  but  this:  that  they  should  n<it  be  d  ;. 
criminated  aj;ainst  because  tliey  were  American  citizfii 

Thedi^greeof  protection  against  such  discrimination  w  k 
all  that  was  asserted  by  the  American  sovereignty  t  r 
the  benefit  of  its  own  native  born  citizens  as  against 
Great  Britain;  conceding  always,  never  for  one  aioiiunt 

igiisserting  tiio  contrary  either  in  1848  or  in  1>m;.;. 
or  evei',  tiiat  an  American  citizen,  natural  Ixim, 
who  had  taken  n|i  his  domicil  in  (ireat  Britain. 
owed  allegiance  to  that  sovereignty  and  to  all  its  powns 
during  such  actual  domicil,  and  that  he  could  be  imn 
ished  for  tieason  or  for  any  less  degree  of  defiance  of  tlii> 
sovereignty  under  which  be  lived.  There  is  no  doubt  tiiat 
tTreat  Britain  and  the  United  States  agreed  upon  this 
(piestion  always.  The  L'nited  States,  both  by  the  (li'cisions 
of  their  courts  and  by  the  authoritative  statements  of  iIh. 

2ot'xecntive  b'ancli  of  tlie  (jovermnent,  always  conceiliil 
and  contended  for  that  proposition.  This  was  double 
nationality,  and  while  such  temporaiy  allegiance  e.xislid 
to  the  nation  of  domicil,  allegiance  to  the  nation  of  original 
citizensbij)  also  remained. 

In  Shanks  vs.  Dupont,  ;{  Peters,  the  doctrine  of  pciiict 
tiial  allegiance  to  the  sovereignty  is  asserted  by  tbeSupninc 
Court  of  the  United  States.   In  the  case  of  Inglis  r.s.  Saiim  s 
Snug  Harbor,  in  the  same  report,  the  doctrine  of  per])(tiiai 
allegiance  to  the  United  States— the  same  old  Englisli  doi;. 

^oti'int-.  is  also  asserted.  In  the  case  I  have  refeired  to,  wlnro 
Chief  Justice  Ellsworth  laid  down  the  rule,  which  will  he 
found  in  Wharton's  State  Tiials  at  page  (i;");?-  tlio  \>vv- 
petual  allegiance  of  Isaac  Williams  to  all  obiigatious 
to  the  sovereignty  of  the  United  States,  notwithstanding 
bis  acquired  relations  with  a  foreign  power,  and  bis  |iif- 
petnal  obligation  to  his  sovereignty,  was  asserted  by  liie 
Chief  Justice  of  the  United  States  in  thepe  words: 

"  Tho  coninion  \n\\  of  this  conntry  (says  the  Chief  Justice  of  tlic 
"  United  Htiites)  remains  the  same  as  it  was  lieforo  the  Kevolutiun. 
'  The  present  (juestion  is  to  l)e  deoiileil  l)y  two  great  priuciiiles;  one 
'  is,  that  all  the  meml)ers  of  a  civil  eonimunity  are  bound  to  each  otliiT 
'  by  oompai't;  the  other  is,  that  one  of  the  i)artiea  to  this  eominu't  (mh- 
'  not  dissolve  it.  The  compact  between  our  community  iiiul  its 
'  members  is  that  the  community  will  protect  its  members,  anil  on 
'  the  part  of  the  memt)ers  that  thev  will  at  all  times  be  obeilicnl  to 

•  the  laws  of  the  commuuity  and  faithfiil  in  its  defence.  This  (•(iiii- 
'  pact  distinguishes  our  (iovernmeut  from  those  which  are  foundcil 
'  in  violence  or  fraud.  It  necessarily  results  that  the  members  ciiiiiuit 
'  dissolve  this  compact  without  the  consent  or  default  of  tlic  cmii- 
'  niuuity.  There  has  1)een  here  no  I'onieut,  ou  default.  Defmilt  is 
'  not    j)ret ended;  express   consent   is   not   claimed,  but   it  has   been 

•  argued  that  the  consent  of  the  community  is  implied  by  its  policy, 

•  its  conditions  and  its  acts." 


40 


50 


And  the  jury  was  charged: 

"  That  he  (Williams)  could  not  dissolve  l)y  domicil  or  by  takiii);  tlir 
"  oath  of  allegiance  to  any  ])ower,  his  compact  with  the  sovcri'innlv 
"  of  the  United  States  which  held  Williams  to  his  allegiance;  and 
"  that  in  as  much  as  on  the  2;ld  Heptember,  1797,  he  attacked  iiiul 
"captured  a  British  shi)>  and  crew  on  the  high  seas,  contrary  to  I  ln' 
"21st  Article  of  the  treaty  between  the  United  Stfites  and  (iiciil 
"  Britain" — he  was  convicted  and  sentenced  by  the  Court  to  a  inv^'- 
go  "  t^DO  and  a  long  imprisonment. 

The  books  are  full  of  diplomatic  decisions,  but  I  sliail 
read  from  a  recognized  English  authority,  which  is  mot 
interesting  for  the  reason  that  it  was  written  on  this  vt  1  y 
subject,  and  vvritteu  at  a  time  when  it  was  called  for  as  i 


sr>:5 


(Mr.  Ditkiiison's  Closinj^  Aiguinent/i 

Mittorof  insttiiction  on  the  whole  subject  of  alleniaiice 
;i  1,1  nationality.  It  is  a  work  carefnily  prepared  by  tlie 
I  tc  Chief  Justice  of  England— Alexander  Coikbuin  on 
Xitionality, 

The  history  of  I  he  I'elations  between  tlu;  I'nited  States 
;iii(l  Great  Britain,  the  assei  tion  of  protection  on  the  one 
li md.  and  of  allegiance  on  the  othei-,  running  tinough  all 
lotiic  period  at  which  1  have  so  hastily  glanced;  the  rela- 
ihiiis  of  Great  Britain  with  otlier  powers,  the  advance  of 
(  ivilization,  the  frequency  of  niigiation,  the  closer  rela- 
iinus  between  civilized  countiies  conmiercially;  led  both 
(niMitiies  at  one  and  the  same  time  to  take  up  this  subject 
iiiidtoseeif  some  conunon  understanding  coidd  not  be 
ii.liipted  by  which  allegiance  might  ht^  sundered  and  a 
iirw  citizenship  and  complete  allegiance  concediMl  by  one 
iMiinfry  to  the  other  without  tiie  conflict  incident  to 
(l,)iible  nationality;  that  of  the  count ly  of  oiigin  with 
2otlh'  country  of  doinicil. 

The  whole  subject  was  referred  to  a  commission  of  lead- 
in-  statesmen  of  Great  Britain.  I  do  not  remember  all  of 
tin  in.  but  they  were  men  most  learned  in  the  law.  I  le- 
uiiubei' that  on  that  I'ommission  were  Veiiuni  Harcourt 
Mild  Lord  Bramwell;  and  the  best  minds  of  Kngland 
were  lirought  to  bear  upon  this  great  (|uestion  of  all(>giance 
and  the  right  of  national  i)rotection,  and  how  nations 
(■(Hild  1)0  reconciled  upon  the  very  (piestion  which  we  are 
called  upon  to  dispose  of  here.  T'lie  conunon  ground  ar- 
',oiiv<(l  at  was  tliis:  to  admit  by  statute,  in  both  countries, 
tin  right  of  expatriation  by  naturalization.  But  let  me 
call  vonr  Honors'  attention  to  this:  tnat  that  conunon 
mound  adopted— by  the  British  Act  of  I'ailiament  of  IS7n, 
and  liy  the  joint  resolution  of  our  Congress  in  IStls, 
(1  111  firmed  by  the  treaty  between  Great  Britain  and 
the  I'nited  States  in  isTu— that  common  ground, 
leaves  the  (piestion,  so  far  as  this  case  is  concerned  (as 
always  maintained  by  both  countries  before),  precisely 
wliere  it  was  before  l^tis  and  IsTo.  Neither  country  has 
4or('r(ignized  that  a  man  can  snriender  his  allegianc*^  of 
oii;j,iii  by  merely  taking  up  a  domiril  elsewhere.  Neither 
(■(Mint I y  admits  nor  will  permit  the  sui'rendei  of  allegi- 
ance by  any  other  act  than  that  by  the  form  of  actual 
iiatiiialization,  and  abjuring  by  oath  in  accoidance  with 
th.  treaty  between  the  United  States  and  (hvat  Britain, 
and  in  accordance  with  the  statutes,  as  to  all  other  coun- 
tries with  whom  treaties  are  not  had. 

Si)  tiiat  we  see  that  these  older  decisions  of  the  courts 
are  aiitlioritativ(>  here  because  they  bear  directly  U|)on  the 
joiiiiestioiis  presented  to  this  tribunal,  because^  as  to  thecases 
li(  l.iie  you  there  is  no  naturalization  intervening. 

The  attitude  of  Great  Britain  or  the  representatives  of 
(ileal  Britain  hero  is:  that  a  British  subject,  unnatural- 
izeii  in  the  United  States,  hut  legally  domiciled  there,  may 
invoke  the  protection  of  Great  Britain  against  the  United 
Stales,  to  reclaim  from  the  United  States  d-unag(>s  suf- 
feied  by  him  while  violating  the  sovereign  antbority  as- 
sei led  by  the  Government  of  tlu'  United  States.  But 
tlie\  again  assert:  that  an  American  citizen,  domiciled  in 
6o1hii  not  naturalized  under  treaty  or  by  statute  in  (ireat 
iliii  liii,  bis  allegiance  being  luulissolved  as  to  the  United 
Stales,  still  owing  duty  and  subject  to  be  pnnisheci  for 
tiviMin  against  the  United  States,  liable  in  all  the  other 
(leuM cs  for  any  default  of  duly"  to  the  sovereignly  of  his 
country,  may  also  invoke  the  protection  of  Cireat  Britain 


iv 


M 


'<:.4 


m 


m 


I  Mr.  Dickinson's  Closing  Argiinu'Mt.) 

unil  uncU'i'  it  reclaim  daniages  from  the  United  States 
damajies  at  their  liands  siitt'ered  in  tiie  doinfi  of 


'iance  to  the   United  States 


(1- 


III 


violation  of  his  alle; 
ment. 

So,  this  law,  the  doctrine  of  tlio  old  civil  law  as  i m. 
hodied  in  the  connnon  law  of  l)otii  conntries,  as  ,. 
liave  seen,  tlie  decisions  upon  it,  the  authoi'itativf  m  ■- 
lolarations  of  hoth  ct)untries  npon  it.  heai'  directly  ii{i.>u 
tins  (|Uestioii.  wliicli  is  a  livinj^  one  liere,  l)ecanse  iiatiii,i|. 
ization,  which  alone  can  change  tlio  rules  as  to  alle^ianc) 
and  correla'ive  i)i'otection.  has  not  occurred,  to  takr  the 
cases  hefore  you  out  of  Ihost?  inh's. 

The  ("ommissioiier  on  the  part  of  the  United  StaU--:  - 
I  do  not  understand  the  proposition  of  the  British  Cnim 
sel  to  he  as  i)road  as  that;  perhai)s  1  misunderstood  tlirm. 

Mr.  Dickinson:- [  am  takin;.^  uii  their  position  in  their 
brief. 
20     The  Commissioner  on  the  |)art  of  the  United  Stales;  - 
I  mean  as  they  argued. 

Mr.  Dickinson:  —But  your  Honor  has  read  the  prmiid 
argument? 

The  Commissioner  on  the  part  of  the  Uniti'd  Slate^:  ^ 
No.  I  liave  not. 

Mr.  Dickinson:— I  am  sorry,  your  Honor.  1  had  as- 
sumeil  that  yon  liad  read  the  oi'iginal  argument. 

The  Commissioner  on  the  part  of  the  United  Stale-:- 
1  never  read  anything  until  1  hear  the  whole  case. 
30  Mr.  J)ickinson:— Tlie  position  of  the  counsel  in  the  on-. 
inal  argument  is  tliis,  outside  of  the  question  of  ia(|. 
They  sav  this,  and  I  am  replying  to  their  argument.  1 
am  coming  to  the  "  lia  Ninfa"  case,  referred  to  in  the 
oral  argument,  and  which.  I  think,  may  he  in  your  Honor's 
mind.     I  am  coming  to  that  later. 

Tlie  Conunissioner  on  the  pait  of  the  United  Stales:  — 
1  do  not  (juite-see  the  i)ertineucy  of  the  (piestion  of  alle- 
giance. 

Mr.  Dickinson:  -May  it  please  your  Honor,  I  have  e.\- 
4oamined  their  brief  with  the  greatest  care,  read  all  tlieir 
authorities,  analyzed  them  all  in  my  brief  befoic  you, 
and  their  position  is  tliis,  from  the  "  Drunnnond"  castj 
down.  They  say,  in  the  first  place,  on  the  facts,  that  no 
American  citizen  domiciled  in  Cireat  Britain  had  any  in- 
terest in  the  vessel. 

'J'he  Conunissioner  on  the  part  of  the  United  States:-- 
1  understood  them  to  argue  that  there  was  nothing  in  llie 
acts  of  those  domiciled  American  citizens  which  was  in 
violation  of  the  laws. 
50  Mr.  Dickinson:--That  is  in  their  reply,  your  lloiKir, 
based  on  the  "La  Ninfa''  case;  that  is  after  they  Iiaii  reail 
our  argument.  To  resume  their  position  is  this,  if  yoii 
will  permit  mo  to  state  it:  Conceding,  for  the  purposo  of 
the  aignment  only,  that,  as  a  matter  of  fact,  there  aiv 
American  citizens  domiciled  in  (Jreat  Britain  who  owned 
or  had  an  interest  in  theships;  which  is  denied,  conceding,' 
that  miller  the  treaty  the  United  States  may  go  into 
the  iiuestion  of  ownership  by  Amei'ican  citizens,  then 
they  say  that  an  Ameiican  citizen  domiciled  in  (iivat 
60 Britain  is  underthe  prittection  of  the  lawsofCreat  iiiiiaiii 
for  all  i)urposes;  nan  cuiiKlaf,  he  violates  a  law  ol  llie 
United  States,  or,  noii  coiiNftit,  he  does  what  was  done 
hei'e,  whether  a  law  of  the  United  States  or  not  in  our 
view  is  immaterial.  Great  "Britiiin  can  still  protect  liiin 
against  the  United  States  and  make  reclamation  for  liiiii 


SDO 


(Mr.  Dickinson's  Closing  Aigiunent. 


iiiidcr  this  convention  on  claims.  Tii.it  is  tiicir  attitude 
iiiidcr  tiic  doctrine  of  doniicil.  Look  at  tiicir  contention 
a-^  to  tlie  effect  of  (lomicil  in  their  printed  argnmeiit. 

The  Coninjissioner  on  the  part  of  the  United  States.-I 
understand  yonr  proposiiiim. 

Mr  Dickinson:- -Yoni'  Honor  will  find  it  treated  under 
t!i(>liead  of  "  Effect  of  doinicil  on   nationality,"  at  page 

10  17  (if  their  hrief,  where  they  treat  it  at  great  length,  and 
;i!  various  other  i)laces  they  also  treat  it  under  the  head  of 
"  I'nited  States  ownersliip." 

The  Conmiissioner  on  the  part  of  the  United  States: — I 
iini  aware  of  tiie  geneial  proposition,  hut  this  particular 
juoposition  thi-y  did  not  advance  in  their  oral  arginnent, 
Ml  far  as  T  lecollect. 

Ml'.  Dickinson:— I  an\  arguing  the  case  as  presented, 
viiur  Honor.  J  am  going  to  have  some  little  to  say  ahout 
the  "  LiiNinfa"  case  in  another  connection;  hut  what  can 

jotliat  have  to  do  with  this  (piestion* 

The  Commissioner  on  the  part  of  the  United  States:— I 
(inly  spoke  of  that  as  illustrating  their  projiosition  as  I 
understand  it.  Of  course  you  will  conu;  to  the  "La 
Ninfa"  case  in  its  natural  order.  I  do  not  want  (o  anli- 
ripate  at  all. 

Mr.  Dickinson: — Tliis  (|uestion  is  far  and  away  ahove 
the  ■•  l^a  Ninfa"  case,  and  lules  the  cases  hcic  even  if  the 
"  La  Ninfa  "  case  was  a  decision  of  the  Supreme  Couit  of 
the  I'nited  States.    The  fpiestion  is  as  to  American  citizen- 

3J>hip  and  the  (piestion  of  allegiance.  Xdji  couskit,  the 
United  States,  as  to  its  own  citizens,  could  not  under 
its  statutes  and  Constitution  lawfully  jjunisli  a  citizen 
el  the  United  Slates  for  doing  an  act  in  Bering  Sea;  and 
vet  did  jtunish  them  hy  its  sovereign  authority,  and  did 
ihi'ni  damage,  the  ruling  (piestion  iiere  is  far  away  from 
tiiat,  for  a  citizen  of  the  United  States,  oi-  a  ])erson  owing 
allegiance  to  the  United  States,  caimot,  hy  international 
law,  invoke  the  protection  of  (heat  Britain  toohtain  jus- 
lire  for  him  from  liis  own  country.     The  position  in  tlieir 

4o;ir^innentat  page  r»o,  paragra[)h  :'.,  is  as  follows: 

•■  Tlic  imjilied  oMifJtation  of  olxnlicncc  to  tlio  liiws  of  thf  I'lmiitrv  of 
•  liis  iloinicilo,  ilovolviiig  npou   nu  alien  liv  roiison  of  liis  rosidt'ucc, 

■  (lists  ui)on  tlmt  iintioii  tlu'  coiTclative  duty  of  protoctiou  iu  every 

■  .iisi'  in  whit'li  till'  rights  of  such  foieiffucr  lue  invudcd  or  liis  jiro])- 
•   1  rtv  (li'stroved  liv  tlio  wrongful  acts  of  any  other  State." 


III. 


^iiu  see  this  right  is  claimed  (!ven  as  against  the  nation 
of  original  allegiance. 

Your  Honor,  what  is  the  ohject  of  reading  the  Alahama 

lOilainis  case?  'J'hey  have  done  that  in  this  oral  argument, 
,111(1  set  it  out  in  their  printed  one.  Kow  there  is  no 
(Iculit,  and  we  concede  it  to  the  full,  the  authorities 
ill  iiiiiiistiate  the  correctness  of  this  position,  that  an 
Aiiieiican  citizen  domiciled  in  (Jreat  Britain  may  have, 
and  I  state  the  doctrine  precisely  as  the  authorities  will 
sustain  me,  and  the  distinction  is  necessary  to  he  home 
in  mind.  Great  Britain's  protection  for  the  prosecution 
lit  his  claims  for  injuries,  on  account  of  any  violation 
III   his  rights  perpetrated  hy    France,    Germany,  Russia, 

6oS\vrdeii,  Norway,  Turkey,  C'hina,  Japan,  Spain,  or  what- 
ever nation,  always  excepting  the  United  States.  There  is 
lie  iloiiht  ahout  tliat,  not  the  slightest;  hut  when  he  has  not 
>\\iirn  allegiance  to  (ireat  Britain,  that  is.  liecome  natural- 
i/iil  there,  that  nation  camiot,  when  he  owes  original 
alligianco  to  the  United  States,  pnitect  him  against  the 


U- 


V.I 


'!'iu 


riJKtiWlM,*' 


(Mr.  Dic'cinson's  Closing  Argument.) 

I'liitt'd  Slates  foi'  daninges  siilTi'icd  l)y  hitn  in  vidlaii  i;; 
liis  iilli'giaiK'f  til  tile  United  Statts.  That  is  the  n  ^ 
tiiietion.  So  tliat,  in  tlie  ian^naj;e  of  this  treaty,  (in  it 
Hiilain  lias  a  riglit,  as  against  the  United  Slates,  lo 
protei  t  any  person  in  (ireat  Britain,  if  P'reneli.  ■  .r 
instance,  — siie  "is  entitled  to  claim  compensation"  ji.i  a 
Fiuncii   snhject.   doniioded   on    Biitish    soil,    aj^ainsl   the 

ioUnite<l  States.  Let  ns  j^oovertlio  matter  of  "snhjeci  " 
a^ain,  so  as  to  get  the  persons  in  a  correlativo  way  lii;,v 
(ireat  Mritain  has  tiie  right  to  protect  an  American  cill/, n 
domiciled  there  against  any  power  except  the  Unit.'d 
States  for  injuries  sntfered  hy  him.  She  has  the  righi  to 
protect  as  against  the  United  States  imder  this  convent  mn 
any  Krenr'hman,  Spaniaid.  linssian,  Fiiu),  (teimnn.  Am- 
tiian,  or  any  snhject  of  another  cotmtry  domiciled  in 
(Jreat  Britain.  There  is  no  tpiestion  ahont  that ;  hut  (Iri  it 
Bi'itain    has    no    right  when   she   comes   up  against   this 

20  pi  inciple  of  allegiance,  as  laid  down  hy  heiself.  ami  Jijd 
down  in  harmony  with  her  hy  the  United  States  as  inlir. 
national  law.  to  protect  a  citizen  of  this  countiy  for  vicila- 
lion  of  duty  to  his  original  allegiance.  'J'he  "  J.a  .Nliita" 
case  in  this  connection,  may  it  please  yom-  HonorsI  hms 
it  hear  on  the  (piestion^ 

The  Commisfioner  on  the  part  of   the  United  State-: 
It  does  not  alter  the  (jueslioii.  hut  it  illustrates  the  iialnir 
of  the  proposition  wliich  they  made.     They  did  not  sniii 
tome   to   state   any    position  which   contravenes  the  une 

30  which  you  made. 

Mr.  Dickiui-on: -1  heg  todilfer  with  your  Honor.  Ymi 
may  read  the  argument  of  (Jreat  Britain,  which  I  in- 
deavore<l  to  answer  as  exhaustively  as  1  could  in  nn 
jirinted  argument  from  pages  1  to  l.">!»,  and  you  will  \\n[ 
find  any  such  doctrine  as  advanced  ahont  the"  l^a  Ninl;i '" 
case  in  the  reply;  so  1  nuist  dis|)ose  of  their  main  conl'ii- 
tion  now. 

The  Commissioner  on  the  part  of  the  United  States:— 
Undouhtedly;    I   merely    wanted   to  tell  you  how    tin  ir 

40 argument  impressed  me. 

Mr.  Dickinson:-!  was  ahout  to  come  to  the  positimis 
of  the  two  countries,  diplomatically  as  well  as  judicialK  ; 
and  1  lead  from  the  discussion  in  l«4s  hetween  \\\r 
countries;  Lord  I'almerston,  first  at  page  s;t  of  Cockimin 
on  Nationality.     Lord  I'almerston  hegins  hy  stating  thai 

'•He  ii|)|)r('li('iiils  tliiit  the  rt'UKPiistniuce  contained  in  Mr.  Haiirri.fl's 
'•  note  lias  orijj;iiinti'(l  iu  ii  iiiiHtiilicii  notion  as  to  the  doctrine  licid  hv 
'•  Her  ^Iaj('^t,\  "s  (iovcrnniciit  npon  this  umttci',  because  Mr.  Huik  intt 
"  states  tliat  one  consei|neiiee  of  the  liritish  doctriui!  of  natural  idl.  - 
giauce  is,  that  (ireat  tJritaiu  denies  to  the  United  (States  thc>  rii;lil  nf 
re^tulatinj,'  tlie  condition  of  eniinrants  from  ( ireat  Britain  in  siuli 
manner  '  as  nwiy  most  conduce  to  the  wellheing  of  the  einit,'rants  ami 
the  safety  of  the  lAniericaii)  coninionwealth.'  Now,  althongh  li\  llu' 
law  of  ]'",n  Inland  natural  alle^'iance  is  a  tic  which  cannot  lie  seven  li  m 
altered  liv  anything  hut  the  '  uuiliul  concurrence  of  tlie  Lcprisliilun  . 
and  although  it  is  true  (as  (diserved  liv  Mr.  Justice  Storv.  an  eiiiiiiriit 
Aniericaii  authorit\  I,  that  '  every  nation  has  hitherto  assiiined  it  ii'^ 
clear  that  its  laws  exteuil  to  and  liind  natural-liorn  snlijects  at  nil 
times  and  in  all  iilaces,'  yet  Her  ^lajesty's  (roverumont  ilid  iiel  di--- 
seut  from  the  ojiiuionof  the  same  learned . I iidge  tliat  'in  sjpealiiiiLi  "I 
tlie  right  of  a  Stati'  to  liind  its  own  native  snlijects  eveiywlierc,  «'■ 
speak  only  of  its  own  claim  and  exercise  of  sovereignty  over  tlniii. 
and  not  of  its  right  to  compel  or  reiiuire  oliedieuce  to  such  law--  cmi 
the  part  of  other  nations;  '  and  Her  Majesty's  Oovernmeiit  cuiiiur 
with  Mr.  .fustice  Htory  in  niaintaming  that  'every  nation  has  an  i\- 
(dusive  right  to  regulate  persons  and  things  within  its  own  territerv 
according  to  its  own  sovereign  will  and  polity.'  " 


SO"' 


60." 


851 


ill     Vi(l|,|l|i|;r 

;  is  the  I,  ^^ 
t'iitv,  (in  it 
1  States,  U) 
KicikIi.  f  If 
at  ion"  tm  a 
against  ih,' 
"sulijcci  ■■ 
■e  way  In  u 
ricaii  citi/.i  I, 
the  I'liit,.,! 
111!,'  iij;lit  to 
■^cniivcnti'.ii 
'I  man,  An- 
loinicijcd   III 

t;  l)Ut  (ill  ;it 

against  this 
'If,  and  liiil 
ti's  as  iiilcr- 
ly  for  vi(i|:|. 
'  La  .Nini.i " 

IIKUSI       hiiis 

ihI  Statfs: 
s  tli(!  natiiii' 
li<l  not  sciia 
.'nes  lilt'  (Pile 

onor.  Villi 
which  I  III. 
Duld  in  my 
k-uii  will  II, It 
'  l^a  Niiila  " 
lain  contiji- 

'd  States:- 

llOW      tlnil' 

Ik'  |)osiliiiiis 

■i  jndirially; 

twcni    the 

CocUliiini 

tatin^  that 

\ly.  Hiiiii'i-iifls 
triiii'  liclil  li\ 
.Mr.  Hiiiicriift 
uiitural  alli'- 
s  tlic  ri(,'lit  I  if 
it.'iin  ill  siiili 
iiiinniMt>  mill 

ll(lll(,'ll    llV  tllr 

lioscvi'iTil  iir 
L('f,'isliitiiri  , 
y.  nil  Miiiijnit 
ssiiiiii'il  it  as 
ul)jiM-ts  at  all 
t  ciul  iiiil  (lis- 
II  sia'akilij,'"!' 
cry wiici'c.  «!■ 
ty  over  tlirm. 

HlU'll   law>  nil 

iniciit  i-iiiiriir 
on  lias  all  cx- 
)\vu  trrrilnrv 


10 


20, 


(Mr.  Dickinson's  Closing  Argnnient.) 

(   now    road    from   Cockhmn   (pagu  I2ti),  (pioting   Mr. 
K,  i-rett,  AmtM'ican  SiHMetary  of  Statf,  as  follows: 

■  TliiMloctiMiu>  of  iimlii'ualilo  iillo^iiuire  iM,  no  (loiil)t,  iittcndi'd  with 

'■  :ii  lit  iiriicti<'ul  (lillit'iiltifs.     It   lias  liccii  afllrmi'il  liy  the  Su|)rem« 

'■  I  lUirt  of  tlio  Ihiiteil  StateM,  ainl  1)\  more  tliaii  one  nf  tiie  State  CimrtH; 

"  jiiit  tlienatnrali/.atioii  InwHortlie  I'nited  States  eertainlyiinHnmetliiit 

■'  ;i  person  eaii  l>y  liis  own  acts  ilivest  liiinself  of  tlie  alleKianee  iiniler 

wliieli  he  waH  liorn,  and  eontraet  a  ik'W  iilleKianee  ton  foreign  (lowi-r. 

Hill,  until  tills  newalh'Kiaiiee  is  eoiitraeted,  lie  must  lie  considered  um 

liiinnd  liy  his  alleji;iance  to  the  (ioverninent  nniler  which  he  was  lairii, 

Hid  subject  to  its  laws;  and  I  Ills  mnloiilited  iirinciiilc  seems  to  have 

Its  direct  a|)|dication  in  the  jireseiit  (•ascH. " 

Aliaiii,  on  the  snhjcct  of  allof^ianct",   Cocklmni   i  |)ago 


liy  the  same  comity  of  imtioii^      ii  alien  is  I'lititled  to  the   jnotec- 

tiiiii  of  the  country  in  which  lit i\  lie;  ami  in  return  for  this  i>rotec- 

limi  owes  tdietlieiiee  to  the  liiw,  ami  teiii|iorary  allc},'iaiice  to  the  Sov- 
I  1 1  lull  or  State,  MO  as  to  lie  liahle,  like  the  natural  liorii  snhjeet,  to  the 
],.  iialtit  s  « liitdi  attach  to  the  violalioii  of  the  law,  and  this  to  the  ex- 
li  lit  of  lieinn  I'unishalile  fortreason  for  any  atteiii|)t  against  the  State, 
iMii  tliongh  ills  own  country  shonhl  lie  at  war  with  It,  if  he  has  liceii 
|iriiiiitted  to  resiile  during'  time  of  war." 


A^aiii,  at  page  W: 


All 


rican  eitizpiis.  therefore,  whether  natural  liorii  or  natnrali/etl, 

«liii  came  ti>  Irelantl  to  levy  war  apiinst  ami  overthrow  the  ex'  '-• 

;;iivi  luiiient,  wercameiiiilile  to  the  penalties  of  our  treason  law,  or,  if 

'"■■■-  iimler  a  reasoiialdesuspicitin  of  iiicilitatinj;  such  com  1  act.  wfre 

much  suhject  to  the  repressive  measures  ]ilacctl  at  tl 


40 


11  |«>I<,    niiitiiti    iiiiiiiiiii    I'tiiii    ifi    Liiii  III  itof.t  II, 

levy  war  apilnst  ami  overthrow  the  existliiK 
I'le  to  the  penalties  of  our  treason  law,  tu',  if 

^ e  suspicion  of  mcilitatinj;  such  com  1  act.  wfre 

J  '•  ii~  much  suhject  to  the  repressive  measures  ]ilacctl  at  the  tlisposal  of 
'•  the  <  ioveriinieiit,  as  tilt!  siihjccts  of  the  <j)uecii.  If,  liideeil,  the  au- 
'•  tliorities  in  Irelaiul  hail  ahusetl  their  iiower,  ainl  for  |iur|)oseH  of 
••  iiiiprcsslon.  liatl  availetl  themselves  of  the  oi)portuiiit,v  to  seize 
'■  Aiiicrlcaii  eiti/.eiis,  without  reasomi'  le  ciiiise  to  suspect  them  of  hos- 
•■  tile  designs,  anil  w'llioiit  an  htuiesl  'clief  in  their  K"i"  " — Cmd  here 
"  is  the  whole  tloetrine  of  |>rotection  apjilyiii^t  to  such  a  case)  — 
'■  ■  America  woiiltl  most  assurctllv  have  hail  tfootl  cause  to  eomplaln. 
'■  Hill  iiothiiij.;  of  the  kilul  can  with  the  smallest  show  of  reason  he  al- 
'■  li-rtl." 

Niiw,  I  come  to  a  most  interesting  aulhoiity,  which 
v.'iii  Honor  has  overlooked,  if  ytai  have  not  remembered 
tli.ii  I  he  sam(>  iiosition  taken  in  their  original  brief  is  taken 
hiiv  by  the  learned  senior  cotinsel  for  (Ireat  Britain.     1 

II  III  to  the  Alabama  Claims  cases,  tried,  in  the  language 

III  iiiv  learned  friends,  "  before  a  distinguished  miinici|ial 
('liiiit  of  the  I'liited  States."  Ho  cites  this  to  the  point, 
that  (Ireiit  Britain  has  a  right  to  protect  an  American 
iili/i'iias  against  the  coiuilry  of  his  original  allegiaiic(>. 
Now  let  ns  see  about  this  decision  I    There  has  been  much 

josi'iM  e  given  to  this  decision  in  the  brief  in  chief  before  this 
tiihiiiial  presented  by  our  learned  friends— the  tI(>cision  of 
Ciiiimiissioner  Uaynei'  on  this  point.  At  page  50  of  the 
amimieiit  on  behalf  of  (Ireat  Britain,  Kayner,  "J.,"  as 
ni\  li  ieiid  calls  him,  is  quoted  as  follows: 

■  tills  iiriuciiile  of  interuatiimal  law  is  recof^nized  ns  a  jinrt  of  tho 
'•  ii.uiilcipal  law  of  Knglautl  nntl  of  the  United  States  The  Kiij^lish 
•■  (  Hints  have  ilecideil,  nKiiin  anil  ftK'H".  that  not  only  is  u  foreigner  res- 
'■  lilt  ill  ill  Kiitilnml  entitled  to  the  itrotection  of  her  laws  to  his  jiersou 
•■Mill   proiierty;  but  even  in  the  ease  of  an  alien  enemy,  if  he  (iuietl,v 

mill  peaceahfy  oliey  her  law  sand  jierfornis  the  tint  ies  reipiired  of  him. 

Ill  is  not  only  eutitletl  to  the  |)roteetiou  of  her  laws  iu  sueing  for  his 
'  n;lits  in  her  courts  hut  he  is  entitled  toproteetion  tohisjiorson,  evtii 
'■  '  >    yiiiifil  lilt'  Itinil  nf  liis  tiKtiril;/.  " 

N"  tioiibt,  if  he  is  within  the  jurisiliction,  no  one  will 
conti  11(1  that  the  person  of  the  man  could  not  be  protected 


6c 


In 


M 


1 


M 


H^l^ 


II-:,  i! 


(Mr.  I)i(kiiis()ii's  CIoNiiig  Aimiiiiont.j 

I'min  any  invasion   l»y  any  othi'r  ^ovi'inincnl.     A:4,iiii.    it 
\nm<'  T)!,  KayiKM',  ./..  is  ({noti'd: 

Ami  it'  till'  ('(iiillict  liiul  liri'ii  ilirrctiv  lii'tuiMii  ( Iri-iit  Itiiljiin  miil  i  lni 


I'liiti'il  Htiiti's,  uiiil  tlicrc  Imil  Iiitii  itii    iiilrii 


'II   til 


I'  |illlt    111'    (r    lit 


''  lli'itiiin  til  liiinii  ov  In  aiiv  wiiv  tn  n  rou^i  tin  iii  wliiii'  iiinlrr  Diir  |>i>'i. 
"tiiiii,  all  till'  iiiitliiii'itii'H  woiilil  ^<i  ti>  |in.vi'  tliiii  inii'  (iuvi nm  .  iit 
"  wuiilil  III' liiiiiiiil  to  ili'I'i'iiil  mill  in'iiti'i't  tlii'iii  ill  tlirir  ri^lit^.  i  in 
"  iiK>iii>''*t  llirir  i>wn  ^iivi'i'iiiiiriit.  Our  i'iiiii|iliiiiit  ii'^'uinMt  ( li-nit  III  ii  .jn 
'^  •■  WHS  mil  timt  sill'  liml  dii'i'rllv  or  iiili'iitioiiiillv  nroii^jcil  our  ( inv.  ;  n. 
"  iiii'iit  or  Its  I'iti/i'iis,  liiit  tliiit  wroii),'  liiul  Ih'cii  done  tlinni^'li  l,rr 
•'  nt'nli'i't  to  oliscrvf  hi'r  ncntnil  olilinutiipiis," 

Yollf     HoiKllS     will     set'     <IM      wIimI     CnMsillcialioIl    Mill, 


Htati'imnf  as  that  is  inaili'.  wiii'ic  lie  makes  tlic  dislii 


iiiiil    il    till'   cnnfliit  liail    limi   dii't'ctlv   Irl 


i.ii  .|, 


ween     (I 


hiilaiii     and     tlic     I'liiltd     Sl.itc: 


( 


;it 


ai'.     'riii'ii  III'  savs  that  we  wmild  lie  limiiid  T 


ollllK  t         lllr;i||s 


i^iiti 


I     ploll  it     ;| 


isli  siiliji'i't    "  I'vi'ii    a^aiii'-t    tlicir  nwii    {idMiiiinrhi 


20 


Will,  I  shniild  say  sn.      Inia^iiii'a  stall' nf 


\v;:i' 


a 


l'.iiii-li 


<iihjtM  t  (III  uiir  sdil.  Ill  undif  laii  |iii>lrrliuii  in  aii\  \\,i\, 
andtii't'at  Kiilain  atti'niptiii<^  to  laki>  liio  hiitish  siiliji  1 1, 
or  aiiyhndy  I'Isi'.  or  anytiiing  risi'.  And  t'aiiiy  a  i  ciirt 
citiiio  ihiit  as  a  incri'diMit.  of  as  a  iTasini  why.  in  a  -l:iti> 
of  iii'arc.  III'  ill  any  othci  riiiidilion,  tin-  (ioviMiimi'iii  ii'iiM 
jiioti'  t  (h<' rilizi'ii  on  a  ciaiin  lor  dainagi's.     That  I'ln 


iiii(.' 


30, 


ilhistiation.     Thi'ii  hi'  };oisoii  to  say 

"  If  ( iri'iit  llritiiin  suiiposcd,  us  scciiis  to  liavi'  lii-i'ii  tlir  case,  llmi  in 
"  jiiiviiiK  this  nioiit'V  it  was  to  iiidcniiiifv  those  who  had  lieen  iiijiiicil 
liy  her  failure  to  exeeilti'  her  own  iiiiiuiei|ial  laws,  would  sh.'  imt 
re^tiird  aiiv  ai'tion  011  our  part  in  iiideniiiifviiiK  her  own  siiliji'i'tH 
for   her  iie^jleet   as  ineoiiKistent   with   the  olijeet.s   and    piirposi,^   lur 


•h   si 


le  af,'n'ei 


I   to  the  arliitratiou  in   the  first    iilaee.  iiiui  1..  the 


40 


50 


"  pavnii'iit  of  the  iiionev  in  the  second  place;  and  while  we  ini^lit  lie 
•  liiiund  to  indeninify  a  British  suliject  entitled  to  <mr  pnitectiini  hImi 
•'had  siiUered  a  direct  positive  wrong  frtiin  his  own  j,'ovi>rniiii  iil .  aii' 
••  we  lioniid  to  indeiniiifv  liini  for  a  loss  ciiiisei|uent  upon  the  fiiijiin. 
'•  of  his  miveniiiu'iit  to  do  her  duty  as  to  the  conduct  of  her  own  miIi- 
•'  jectsV" 

Now,  wi'  statt'd  at  the  timo  tiiat  this  aiitliority  wa-^  ifinl 
in  till'  oral  aif^iimcnt.  and  this  position  was  ai|;iii'd.  ili;it, 
in  payinji  this  inoiu'y  hy  thi'  (Tcnova  award,  it  wn-  imt 
giMiitrd  against  (ireat  Britain  on  tlu'  ground  Ihii  -he 
hiid  iicgli'cteil  to  I'Xi'Ciiti'  her  own  nnmicipal  la\\>  ,ii 
all;  and  when  the  Coininissi'Uier  on  distrihnlioii  n.  ilie 
Alali.'tnia  rlaiins,  states  that  all  the  authorities  u,n  in 
]iriiv('  that  any  governnient  would  he  hound  to  pidini 
a  citizen  owing  allegianeo  to  tJreat  Hiitain,  as  against 
(iieat  Britain,  that  all  the  antlioiities  so  say.  lie  liaij 
not  seen  one  not  a  single,  simple  onol  and  tiierc  ;iii' 
none.  The  only  point  where  he  could  find  anytiiiii;^  to 
hang  such  a  statement  on  is  this,  that  if  there  had  lin  n  ,1 
war  hi'tween  the  United  States  and  Great  Hiitaiii  '  il 
the  conflict."' to  use  his  own  language,  ''  had  heeii  hd  wccii 
the  I'liifed  States  and  (ireat  Britain,  the  United  St.iies 
wiiiild  have  the  right  to  protect  the  British  siihjii  t  as 
against  (ireat  Britain."'  Well,  I  think  they  would'  Imt 
wlu'ii   he  states  that  all  the  authorities   hold,  or  aiiv  .111 

.-Ml-l 


ro 


tliorify  holds,  that  thenation  of  donn'cil  may  protect  aj. 
the  iiiition  of  original  allegiance,  that  statement  I  ihil 
leiige.  It  shows  a  total  lack  of  research:  and  I  will  vimw 
you  liowahsiird  the  position  is  on  every  point  <  >f  cinii-i'. 
the  language  my  friend  i-efer.s  to  was  not  necessary  to 
thedecisioii,  hecause  the  Court  refused  an  allowance  tnlho 
British  suliject;  hut  they  did  it  under  these  circiimstanri  s, 
to  which  I  will  call  your  attention,  and   not  hecause  lla' 


Hr>i» 


t.) 

A,^;iiii,    it 


Di'itikiii  iiihl  'i|,. 
•  |piii't  111'  (i  lit 
iiliT  cmr  |ir..i. ,.. 

Ml'    (idVc  I'lili  .  lit 

cir  ri^^liiN,  (  ,,„ 
hI  ( liciil  III  1'  ill 
;c'il  mil'  ( ii.v  <|. 
Ill'  tlllci||;;li    i  ,  I- 


;itin|l    Mlrh    a 

ic  ilisi  iiii'iiMii 
twccii  (;i.,it 
llict  "   III!  HIS 

III     |IMi|l  (   !     ;| 

(ivcniiiiiiii.'" 
^v■.  i\  l!iiii-li 
in  .'iiiN  u.iy, 
iti^li  siilijiMi, 
fimcy  ;i  loiut 
y,  in  ii  -l:iti> 
iiiini'iii  I'oiijil 
riiat   I'm   <.|ii' 


111'  niM',  I  lull  ill 

ml  lii'i'ii  iiijiiriil 

woiilil    nIii'  hilt 

'I'    own    Mllijrrls 
ll     |illl')lnsi.s     |i,i- 

lai'c.  mill  III  till' 

ill'  wi'  iiiiMlii  |„, 

in'iiti'i'liiin  wliii 

(OVI'l'Illlli  111.  ilH' 

pull  tlir  I'liihiri' 
i>f  liiM'  own  -.nil- 


itv  \V:i-  Mill 
rfiucil.  lliiit, 
it  wii'.  nut 
11(1  llnl  -\\r 
lili  i;i\\>  ;il 
itioii  <>;'  till' 
I'ilies   ^11   111 

(I    to    IHdti'iI 
,    MS     .'l^'ilill-l 

•;;iy,    in'    IkhI 
1(1    tiicrc  ;iii' 

lliytliill;^  In 
(■  IiikI  Iii'i  n  :i 
|-!iit;iiii  ■il 
cell  ht'l  w  nil 
nitcd  St;ii.< 
1  siibjcit    as 

wdiilij'  liiif 
,  111'  any  .in 
iti'ct  a,u;iiii-t 
iiciit  i   clial- 

I  will  slinw 
Of  ciiiir-i'. 
i('c(>ssary  In 
wallet'  111  I  111' 
cimi^taiir'S, 
bt'causc  I  III' 


10 


(Mr.  Oiikiii8(iir«  Cl(Hiiin-  .\i>;iiiin'nl  i 

(  iiiirt  Iff  (li'iifva  liMHid  a  jinluiiKMit  a;;aiiist    (Jnat  Hiitaiii 

I  r  violation  of  or  ni'nicct  to  fxt'cult'  her  own  niiiiii('i|ial 
lavs.  Tlin  decision  of  tinvse  ('oniinissioncis  llicmscivos 
w.is  |iiil,  may  it  pU'.isc  your  Honors,  on  iirccist'ly  tlio 
j;i(iuiid  lliat  we  o('(  npy  licie— on  a  coiisliiiction  of  tlie 
^  lint' identical  laiiK'ia^it' tliat  is  in  your  ConvtMitioii,  put 
llicre   hy    llie   antiioiative    represeiilativc  of    tln'  rnitcil 

lilts  (iiiVfinnient,  tlic  .\ttoiney(  iein'ial  -tliat  om'  conn- 

I I  \ 

1.'.  1 
\i  '• 
lu 


20 


I'liiild  not  make  icclamalioii  a^aiiisl  aiiotlier  (diintiy 
iiijuiit's  siin'ered  at  the  liamls  df  that  other  coimtry 
he  latteis  own  snitjecl.  That  is  where  it  is  put;  and 
will  .see  wluMV  ("ominissioiit'i'  IJayner  linally  ended 
reason  of  this  tlictuni.  He  ^ot  into  tidiihle  latt  r, 
and  on  ids  dicta  hein}{  cited  against  him,  upnii  it  heiiij;; 
.sliiiwn  tliat  in  time  of  svar  some  Mritish  ^mids  were 
ilisiroyt'd  in  an  Aineiican  hottom,  the  oitl  dnctiine  of 
(iiir  Supreme  Conit  and  of  inteinatioiial  law  thai  neiilral 
j;i,iiils  were  pi'otected  even  as  aj^ainst  hi'lli^^ereiits  heiiiy 
iiild,  Commissioner  K'ayner  dissented,  hecanse  one  of  the 
(iiiiimissioners  had  cited  his  own  doctriin'  to  him  in  the 
\\  III  til  case  that  a  Hiitish  siihject  was  entitled  to  recover  , 
.1-  .iiiainst  the  nation  of  his  orijj;inal  allej;iaiice,  and  said  he 
li.iil  not  meant  that.  And  he  went  to  the  length  of  say- 
ing tliat  a  Mritish  snhject  with  ^oods  on  an  Anieiican  ves- 
sel, protected  by  the  Ameiican  Hag,  could  not  rei'ovt>r 
fiiiiii  this  fnnd  in  spite  of  the  muversal  rnlelhe  other  way. 
Tliis  tlecision  of  Ct>mniissioiier  Kayner  is  also  cited,  may  it 

,Q|iliase  yonr  Honors,  as  a  decision  of  a   immicipid  court. 

■*  ^uiii  Honors  will  find  this  in  the  briefs.  We  had  stated 
that  the  decisions  of  its  municipal  courts  were  evi- 
(Itiico  against  it  of  the  holdings  on  international  law 
(if  a  nation.  Of  course  when  we  refer  to  a  hind- 
iii^;  authority,  it  is  to  a  court  of  last  resort 
always.  No  detusion,  even  where  tlie  fpiestioii 
is  (lirtKtly  involved,  of  the  court  of  a  nation  is  evitlence  in 
an  international  court,  or  is  authority  in  an  international 
oHirt.  unless  it  be  the  decision  of  a  court  of  last  resort — 
ue  will  come  to  that  and  discuss  it  fully  later  on  — or  in  a 
sj"  rial  case,  for  the  special  purposes  of  the  tribunal,  if  a 
pally  coming  before  an  international  tribunal  with  a  claim 
caiiiiiit  show  the  decision  of  a  court  of  last  resort  against 
liiiii,  or  cannot  show,  to  excuse  his  failure  to  produce  that 
(111  i-inii,  that  tile  Cloverninent  against  whom  he  claims 
]iivveiited  his  appealing  to  il,  he  cannot  be  heard.  But 
wlirii  we  say  that  dtn-isions  of  its  municipal  coiirls  are 
eviileiice  of  the  holdings  of  the  international  law  of  a 
iialioii  as  again.st  that  nation,  we  mean  courts  of  last  re- 

roHHi.  Hut  1  propo.se  to  show  your  Honors  that  thisdictuin 
was  not  hy  a  nmniciiial  court  of  the  United  States  at  all. 
Tlir  Act  creating  it  did  not  even  provide  that  lawyers 
sliiiiild  compose  it;  its  duties  were  clearly  defined  by  a 
statute  like  a  code  The  court  was  only  to  last  a  year, 
ami  the  law  ofTicers  of  the  United  States  had  to  formulate 
aiiil  regulate  its  proceedings,  which  were  like  those  of  a 
jiiiv  ass(^ssing  damages.  While  the  testimony  fills  about 
>«•-'  volumes,  some  of  the  Connnissioners  wanted  to  get 
(III  1 1  cord,  and  there  is  the  total  of   the  opinions  of  the 

6oC'i>iimiissioners,  including  dissents  (exhibiting  one  small 
volume  to  Commissioners),  from  which  we  are  cited  as  if 
to  I  lie  judgments  of  a  municipal  court  of  higli  authority. 

.\i  iw  this  is  the  court  that  is  to  he  the  authority  against  the 
riiili'd  States,  equal  to  that  of  the  Supreme  Court  of  the 
L'liiied  States,  as  evidence  of  our  national  position  on  inter- 


40 


i  il 


«!♦■ 


.s(;(i 


[Mr.  nickinson's  Closing  Argumont.) 

national  law  (jiuv-^tioiis.  T  ;iiii  it'fori'iiiii  now  to  In  I'nitc.i 
States  Statiitf  at  Largo.  I'ait  :'..  ;s7;!'7r>.  4:!h1  Congress, 
oomiiiouciiig  at  page  lMTi.  In  Scotion  1,  tlio  I'lvsidcnl  ,  r 
tiie  I'liited  Statos  is  aiitlioii/od  "  to  iioiiiinato,  and  l)v  ail 
"with  tiio  advico  and  (onst'iit  nf  tlio  Sonatc,  apitoint  li\,' 
"  suilabU'  |UM'soiis,  wlio  sliall  (•(institutca  (\)urt  ot  t'oimni 
"sioiicis  or  Alabama  Claims.    Kacli  of  t  ho  judges  :md  otii.  i 

lo  "  oflicois  of  said  com  t  shall  take  t  ho  oath  otollico|)ii'sriilii  I 
"  hy  law  to  he  taUoii  iiy  all  ulliccrs  of  Ihc  I'liilcd  Stales  " 
Tho  usual  provision  in  such  cases   is.  tiiat  it  shall  he  cum 
posed  (if  men  learned  in  the  law.  precisely  as  in  this  Cmi 
veiitioii;  hut  '\i  is  emitted  in  the  statute  referred  to.     |  ,|,, 
not   h.ipix'ii  to  know  whether  the  Commissioners  ;ictuali\ 
appointed  were  all  lawyer.•^;  they  may  have  been,  hut   iIh' 
law  does  not  ie(|uire   them  to  he.      I    am  oidy  giting  im  > 
the(piestion    whether  this  was  a  cnurl  of   municipal    law 
Then  it  pioviihd  that  thecmnt  sluudd  e.xist  for  dUe  sen, 

2oandthat  the  rresideiil  might,  bv  prncl.-nnalion.  e.xn n.l 
this  period  for  six  months  mure.  Sect  ion  1 1  says  thai  I  Ik  \ 
sh.dl  "decide  u|ion  amnunt  and  \alidity  of  such  clainw  in 
"  ciinfonnity  with  the  |provisions  hereinafter'  contaim  d 
"  and  accnrding  to  the  principles  (d'  law  and  the  merit-,  nf 
"the  several  cases."  .Amnug  other  provisions  there  is 
this,  that  in  no  case  "shall  any  claim  li((  adnntled  <■[■ 
"  allowed  "  a  perfect  inde  all  tlu'  way  through  "  lor  nr 
"in  respect  to  mieai  ned  freights,  gress  freights,  prospei  iim 
"  jtrotits.  freights."  and  so  on.     Hut  we  now  come  to  il.r 

3olast  clause  in  Section  li'.  to  wliiih  I  call  your  lloiiois" 
.■ittention.  and  on  which  the  decision  was  giviMi,  th  il  a 
Ihilish  subject  could  not  make  reclamation,  and  iIik 
clause  is  as  follows: 

"  .\n<l  iio  I'liiiiii  simll  lie  uiliiiissil)li'  or  iillewi'd  liv  said  ('i)uit  ;insiiii; 
"in  ruvdi-  of  iiiiN' .iM'isdti  not  cntitlcil  iit  tlic  time  of  liiw  los.';  to  ihr 
"  proti'c'lion  of  till'  I'nili'il  Slulcs  in  tlic  in'i'niiscs.  nor  ariMinf;  in  Ihmt 
"  of  any  ]ii-:'Min  wlio  diil  not  at  all  tinu's  during  I  he  late  i-i'lu'llinii  l,i-ar 
"  ti'ui'  allt'fiianco  to  tlir  I'nitcd  Slates." 

Now.  the  law  odiceis  of  the  I'nited  States  cojilrnilMl 
40that  no  Ihitish  subjecj  was  entitled  to  protection  ,e- 
agaiiist  (ireal  l'>ritam  at  the  hands  of  theUniled  stales, 
and  th.'.t  was  held  under  that  Stalnte,  and  that  is  why  iLe 
case  was  so  decided.  Now.  Mr.  Hayner  said  the  r<'ason  il 
was  so  held  was  hecansi'  il  would  have  been  a  violation  1' 
the  dignity  of  (iieat  Britain,  jiossibly,  to  give  ,'i  subj.  i' 
damages  which  had  been  awarded  against  (ireal  UiiiaMi 
for  a  neglect  or  violation  of  her  own  nnnucipal  law;  anl 
he  says,  therefore,  it  would  uol  do  for  a  Ihitish  suhjecl  l^ 
recoNcr  money  for  his  sovereign's  violation  of  its  own  l.iw 
50. Now  we  will  see  how  wrong  lie  wjis  on  that. 

The  position  of  (iieat  Hritaiii  on  this  subjed  w,is  this 
1  lefer  to  \'ohiine  I.,  lirilish  case,  before 'rrilimial  of  ,\ilii 
tration  at  (ieiieva.  page  :is.  'J'his  was  the  position  el 
(ireat  Hrilain  undoubtedly  as  stated  by  Mr.  Ua\ner.  Imi 
mil  suslaiiied  by  t  he  a  1  bit  1  at  ion  as  he  erroiieou.sly  stale- 

"  hi  cvi'i'N  coimti'v  wlii'i'c  the  Kxi-cutivc  is  snliji'ct  to  tin'  liiw-^. 
•'  fori'if^n  stati'H  Inivi' the  I'i^jlit  to  i'X|«'ct    (<i)   that   the  laws  he  sncli  ;is 

"  in  the  I'xci'i'isi'  of  ordinal,"  foresight    niinlit   i'easoiialil,v  be  deei I 

"  adei|iiate  for  the  repression  of  all  aets  which  the  <  iovernnieni  i- 
'  under  an  international  oliliKiit ion  to  repress;  (A)  that  so  far  as  iii;i\ 
t)0  .>  Ill,  I, ,,,.,. „^n|.y  for  this  |inr|)ose  the  laws  lie  enforced  and  the  1ci;mI 
"  |Mi\vers  of  tile  ( ioverniiient  exercised. 

"  lint  foreign  stales  have  not  aright  to  reipiire,  where  sinli  l.u>-* 
"  exist,  that  the  jlxeciitive  slioiild  overstej)  them  in  a  iiarticnlar  1:1  .' 
'•  ill  oi'der  to  prevent  harm  to  foreign  states  and  their  citizens;  iwv 
"  that  in  order  to  |in'vent  harm  to  foreign  states  or  thi'ir  <'itizeiis  tin 
'    t'.xecut  ive  should  act  against  tlie  [lersoiis  or  the  iiroiiert,v  of  indivil 


SC.l 


I)  In  riiit.  1 

'I'Osillcllt    nl 

and  liy  niil 
ippoiut  li\  r 

I'saiid  otiii  I 
(']»H'S(i'ilui| 
tcil  Stall'-  ■■ 
all  lie  ciiiii 
11  this  Cull 
imI  to.  I  do 
IMS  actiiali\ 

("11.    but     tlh' 

j^oiii};'  i 111 II 
lifipal    law 
11'  olio  voar. 
ion,   oxic  ii.| 
ks  that  til.  \ 

ii  flaiiii-  III 
1'  coiilaiih  (I 
lie  nn'rit-  <<( 

IIS    tlu'lr    IS 

uhiuttt'd    111- 

;li~    "  Co!-  or 

pros|M'(t  i\  (■ 

•ollll'    to  Iho 

our  iloiuii--" 
iviMi,  tllll  I 
I,    and    tins 


Ciiurt  iivisiiiu' 

is   loss  til  111.' 

risiiif;  ill  liiMT 

l-i'lli'llinll  I  r:ir 


;    colltrllilnl 

Icrtion    as 

lod  Mall's, 
is  why  ll.r 
I'  ii'asoii  II 
violalioii  I' 
I  siihji  I ' 
oat  Hiii.iiii 
1 1  l;i  w:  ;iii'l 
I  suhjiii  I" 
s  own  law 


tl>  tlic  Im«-. 
\\s  lie  siirli  MS 

_V  1)1'  (ll'I'llll'il 
ciM'llllllrlll  I" 
SI)  fur  as  iiiii\ 
mill   Ihr  li'::al 

I'l'    Slll'll     llIM  ' 

irtiriilar  i':i-.' 
Ili/.i'iis;  iinr 
I'ili/i'iis  III' 

Iv    of   llllllv  I'l 


.\> 


^O 


(Mr.  Dickinson's  Closiiij;  Arguineiit.) 

■  imls  unless  nj)oii  cviiU'iu'e  which  woidil  justify  it  in  ho  iictiuK,  if  tho 
■'  iutori'sts  to  1)(>    jirotcrtotl    wero  its  own  or  tlioso  of  its  own  I'iti/.ous; 

•  nor  are  the  laws  or  the  nu  Ic  of  judicial  or  luhninistiativc  jiroccduro 
■which  exists   in  one  couni  .-v  to  ho  apiilicil  as  constituting  a  rule  or 

■'  stanilaril    of   coniiiarisoii    for  any   other   cnuntrv.     Thus,  the   rules 

•  which   exist  in   (treat    Hritain    as  to   the  ailinission    and  prolmtivo 
■'force  of  various  kinds  of   testimony;   tlie  evideiu'e   U(>i-essary  to  bo 

'  prodiu'ed  in   certain   {■ases,   the  iiuestions  jiroper   to  be   tried   l)y  a 

•  jury,  the  functions  of  the  Executive  in  rcfjaril  to  the  prevention  and 
'   ■  prosecution  of  otl'enses,  may  ditl'cr  as  to  the  orfianization  o'  the  mag- 

■  istrature,  aud  tho  distribution  of  authoiity  anions  central  and  local 

•  otlicers,  also  ditt'er   from   those  whicli  exist    in    France,  (iermany  or 

■  Italy.     Kach  of  tlieso  countries  has  a  ri^ht,  as  well  in  matters  which 
■concern   foreign   states   or  their  citizens,  as  in  other  matters  to  ad- 

■  minister  and  enforce  its  own  laws  in  its  own  forum  and  accordill^?  to 

•  its  own  rules  and  modes  of  procedure:  and  foreifiii  slates  cannot  justly 

■  comiilain  of  this  unless  it  can  be  clearly  shewn  that  these  rules  aud 

•  modes  of  p'  ici.,liii',.  contlict  in   any  particular  with   natural   justice, 

■  or  in  other  .v,.i-.|s,  with  i)rincii)les  comuionly  acUiiowleilf;cd  l)y  civil- 
i/cd  nations  !ii  l)e  of  universal  oblif>iitioii." 

That  was  thf  attitntlo  of  (ifoat  Hrilain.  Kurtlicr  rofVr- 
I'lirc  is  found  in  tho  sanu-  vohniu'.  at  pago  44.  They  lefor 
III  the  law  whicli  is  ombodiod  in  tlio  Acts  of  I'ai'lianit'iit, 
and  tlu'v  j)r()cood  to  maintain  that  tliosc  wciv.  sntHiient 
laws,  '['hat  was  the  attitiido  of  tlrcat  Britain.  On  tiio 
ollior  hand,  at  pa^e  l!>,  (7  .scf/  ,  of  tlio  Ainciican  .-Vi'^ii- 
nii'iit  to,  I'apois  -'I'rcaty  of  Washington),  thescpiaro  issue 
was  taken  up  iu  tliesL'  wordss: 

■■  The  Counsel  of  the  rnited  States  maintain  that  the  neutrality  of 

■■  (lie  Oovernment  as  rcsjiects  two  belligerents  is  a  iiuestion  of  iuter- 

iiatioual,    not    munici)ial    resort.       Its    lefjal  relations  are    involved 

■  III  the  Iiuestion  ot  the  rights  of  peace  and  war.      Ilrmr  lo  i/c/irii</  iijio/i 

■■  ji'iiitliri'  imiiiirijuti  hiirs  tit  //ir  nl'linlfinlmf    i.f   inh't'ii'itimtill    H'ltli'tt! ihl    is 

•  itsilf  iifijlnl  of  neutral  duty,  which  duty  deniamls  preventive  inter- 
■■  position  oil  the  part  of  the  Kxecutive  power  of  the  State." 

•  Oreat  Hritain,  therefore,  on  tli(>  imrrower  aud  iniulmissilile  prem- 

■  isi's  of  her  own  defense  was  lej.;ally  rcspousilile  to  the  l!iiited  States 

•  lor  the  acts  of  the  cruisers  in   qui'stion     whether  as  for  iioii-e\ecu- 
lioii  of  her  then  existiun  Act  of  Parliament,  which  was  want  of  duo 

■  .lilij;i'iice,  or  for  undertakiu);;  to  depend  on   that  ai^t  which    not  only 

■  involved  want  of  due  diltneuce  but   imiilied   refusal  to  perforin  tho 

■  duties  of  a  neutral. " 

■1"        , 

TluM'o  aro  tiio  two  positions  mort>  fully  stated,  perhaps. 

at  nther  places.     Now  comes  the  decision  of  the  'rriliunal. 

I  i|iiote  from  the  opinions  of  ai'bitiators,  pai;i'  ."il,  the  de 

'  i^ioii  and  award  of  the  Tribunal   (,4,    i'apeis.  Tfeaty  of 

\\  ashinj^toni: 

■■And    whereas  the  (iincriimeiit   of   IIci    Itritannic  Majesty   cannot 

■  lustily   itself   for  a  failure  in   due   dilifjeiice,  on  the  plea  of  insulH- 

•  cicncy  of  the  le^al  means  , if  action  which  it  possessed." 

c,,     .\iid  in  the  same  volimie,  pa^e  ."i',i,  tho  opinion  of  Coiiiit 
>ilopis,  as  follows: 

■■  I  w  illiu^ly  admit,  on  the  other  hand.  th:it  t  he  diil  ie*  of  the  iieutial 
'■  |iower  cannot  be  determined  liy  the  laws  which  t!mt  power  may  have 

■  iimde  in  its  own   interest.     T'his  would   be  an  ea.sy  means  of  cinilisi^? 

■  jiiisitive  responsibilities  which  are  ri'co(j;nizeil  byeipiity  and  imposed 

■  liy  the  law  of  nations." 

So  that  the  point  was  squarely  made  l>y  (ii'cal  Bi'il.iin, 
lli.d  upon  the  point  which  Coiiiiuissioiie!'  Kayner  cites  Iho 
iiliiliatoi's  do  not  hold  lief  for  any  ne}j;lect  to  execute  her 
C(.i.iwii  laws  but  held  over  and  above  that  without  rei;ard  to 
liir  own  laws  that  she  was  liable  by  Inleriialiv  iial  law. 
SIk'  was  never  held  for  neolcct  to  e.veiaite  iier  own  laws. 
She  was  held  to  tiie  iliity  imposed  hv  Intel  national  l;i\v 
I  H'speclive  of  her  o>vn  laws,  sotluitMr.  b'ayner  wasmis- 
1  iImii  upon  tlu'  only  };roiuuls  that  he  puts  it. 


II  f 


(Mr.  Dickinson's  Closing  Argnment.i 

But  liitcr  on,  in  tlic  cist!  of  Schreilit^r  against  tiic  I'li 
States,    we   tiiui    him    dissenting  and    (|U()ting   liic   si; 
dottrini' that  my  tVieiid  qnotcs  in  his  i)riet.     lUs  (hss. - 
ing    (i|iiiii(ins   arc    all    prmud.     This    was    a    case   \\1|. 
Krcdcriclv  Scliritdicr  and  .\h'V(r  wcic  copartners  in  hiisih 
at  Singapiiic.  a  British  |i>ssession  in  the  Kast  Indic- 
ia;:!. (ineCoiien,  a  naturalized  British  suhjeet  shi|i|MM| 

lo hoard  tlie  "Texan  Star,"  12.r).">:'.  hags  of  rice.     ColKMidi' 
on   Meyer  i^  Co.,  ami  the  draft  was  i)aid.     'I'he  "Ti  \ 
Star"  was  destroyed  l)y  the  ciui-^er  "  Alahama."     (.1. 
hecame  hiinkrupt  and  the  tiiinof  Meyer iScC'o    was  m  \ 
paid,      llavmg  tailed  in  their  attem|)ts  to  procnic  pay i in  m 
they  cinii'   hefoi'e  the  ('i)minissioiiers  of   Al.iliama  Clainis 
as  complainants,  and  tiiey  ceilainly  were  Britisli  snlijiru 
Now  Mr.  K'a\  ner  isconfionted  with  his  own  decision  il.it 
these  people  were  entitled  to  protection,  and  with  his  ..wn 
dictum,  and  this  is   what  lie  said.     He  held  tiiat    tlu-r 

:!0 people  were  iiof  entitled  to  protection. 

Tile  CouMnissioner  on  the  part  of  the  Uniti'd  State--:- 
Slie  was  ;i  British  vessel,  she  was  undei'  a  Bi'itish  II, i-. 
She  w  as  a  wliitewashed  ship.     1  remendiei  the  i-ase. 


■  1 


.Mr.  Dickinson:  -This  is 
dissent  in  this  case: 


what    Mr.    lia;'ner  said 


ni  In- 


40 


"  'This  ((lu'stioii  liiiM  not  (in  my  view)  Ik'imi  ilctilicriitt'lv  ]iii.ssc',l  u|,oii 
by  tills  (Ninrt.'  Tlic  svlliilnis  in  West's  I'lisc.  No.  1)1  (tlir  ii|iiiiiiMi 
(ini)t('(t  from  l)y  tlic  Hi'iti.sli  itrnuincnt  lu'it"),  ciinuot  tic  coustiu.  .1  t<i 
nicim,  and  tlic  luitlior  never  iiiteiul  I  :■  .  deeision  to  (Miiliiiu  r  all 
persons,  wlietlier  niitiv<'-lporn  or  o'  [.'i-'.-u  liirtli,  wlietlier  ii;(tii- 
rulizeil  or  unniit  nralizeil,'  without  .  ■;■ 'iMon  oi'  iiniilitication.  So 
'  far  Ironi  it.  tlic  collocation  plainly  shows  mat  the  I'ci'i'ludiii)^  clau.M' 
'  is  (lualilicil  and  rcNtiaincd  liy  the  previous  |irovisiou,  '',,/ii/.,/  .,;  ,'„ 

'  /////'■  "/'  his  /nss  fii  tlft'  /n'o/fi/tuit  nf  thr    dnl''tl  S/'l/rs   in   Ihf  jn'rtit isrs  '  ;    and 

'  suhjoi't  to  that  (pialitication,  I  still  contend,  that  \vlictli(>r  imlivc- 
liorii  or  of  forcif^ii  liirth.  wlietlier  naturalized  or  nnnatiiiali/rd, 
makes  no  ditl'erenc<'.  Throutrliout  the  entire  ojiinion,  all  tlic  mmi- 
ment  in  favor  of  aliens  not  naturalized.  sti|)ulates  as  a  condition 
prcccili'iit  tlic  iirolectiiui  of  the  United  States.  After  hniiio  do«ii 
that  indispensalde  condition,  the  not  continuinsj;  to  repeat  it  at  tin' 
end  of  every  paragraph,  cannot.  l>v  any  reasonalilc  system  of  dctiimi!,' 
tlie  meaning  of  huiKuage,  lie  construed  into  yielding  the  condition 


The  learned  gentleman  oiigitt  to  have  put  the  (pialitii  ,1 
tioiis  in  it  every  time,  and  then  my  friend  would  nut  lia\ 
(pioled  him  with  such  empiiasis.  Of  course  in  ttiiic  I'l 
war  it  does  not  make  ;uiy  difference.  It  doi's  not  make 
much  ditference  then  how  much  the  ship  is  "  wliiti' 
washed  "  with  untine  natiniiality.  Site  was  an  .\merirni 
sliip 

The  Commissioner  on   the  pait  of  tlie  United  Slate-: 
She  was   an  .\merican    ship.      Cohen    did    not    ohiecl  to 
Soiicr. 

Mr.  Dickinson:     So  that  we  get  light    hack  to  ijir  posi- 
tion that  she  was  an  .Xmeiicau  ship  with   British  goods. 

The  Commissioner  on  the  (tart  of  tiie  Inited  State-: 
Were  these  British  gooils; 

Mr.  Dickinson:  S'es.  But  it  startled  Conmiis-iniin 
Hayner  so  that  he  had  to  get  hack  and  (|iialil'y  his  dii  liim 
hy  dissenting  as  I  have  said,  although  hoth  majwtit  v  jmli; 
meiits  were  <()rrect.  The  first  judgment  in  the  VVortli  of 
West  case,  that  ii  British  suhject  was  not  under  Aeniii mi 
^10  protection  and  could  not  recover,  was  right,  hut  Mr.  i.':i\ 
iier"s  dictnni  was  wrong,  and  the  second  judgment  thai  .1 
Ihitish  suhject  who  hiid  a  cargo  in  an  Ameiican  siii|i  in 
time  of  waruas  a  neutial  and  couhl  lecovor,  was  ;il- 1 
right.      But   Mr.  h'.iy  tier  wrongly  dissented. 

Voiu-  lloiiots  wili  see  at  |iages  '.',>>  and  :'>',»  of  the  i'.nii-li 


sil;', 


t.) 

it  tiu!  riiiii  ii 

IK  111*'  s:iiiu; 
His  (lissi-nt- 
(■asi>  w  li'  I,. 

s  in  l)iisii;>  -s 

t    llllli(•^.       III 

t  sliiplinl     ,11 

(  'dIh'II  ill  I   w 

tih>  •••r.Nii, 

iia."  (\4i!i) 
II  was  Ml  \ir 
lire  ])ayiiii  nt 
)ama  ('hiiiii> 
:ish  siiliji'i't^. 
(h'cisidii  lliat 
with  his  iiuii 
(I   that    tlhM. 

!r(l  Stales:  - 
Hi'itish  11,1.;. 
DO  case. 
r  said  in  lii> 


I'ly  ])iissi'.l  u|,i.n 
'.H  Itlic  ii|piiii,,ii 
!)('  cnustni,  ,1  tn 
tci  oiiiliiiic'c  ■  ail 
,  wlicthcr  iialu- 
mlilu-iitiiiii.  So 
ivliidiiiH'  cliniM' 

U,   '  I'lllilhll       ii    l!n 

"  /ifriiiin'S  '  :   iillil 

wlii'tlior  iiiilivc- 

uiiimtunih/i  il. 

Ill,  all  tlir  uii;ii- 

us  a  coiiilitii.ii 

I'V  lining;  ddwii 

repent   it   lit  till' 

Htem  (if  ililiiiiiii,' 

tile  eduilitiiiii 

tllc  (Ulaiilir.l 
)lll(l  lldt  ii:r 
10   ill    tlllli'  I'l 
X'S  lUit   IP.akf 
is    •'  whiti' 
ai!  Aiiierii  m 

tcil  Stall-; 
lot    iihjcrl    111 

^  to  (hi'    li'isj. 
tish  j;oii(l-, 
tf(i  Slati'-;    - 

'oIUlllissiiilliT 

V  his  (hcliiiii 
ui  juiit  V  jiiiln 
thi'  Worth  "i- 
Icr  AiMiM  ii  ,111 
lilt  Mr.  i.'.iv 
gniciit,  that  a 
licaii  siii|i  III 
i\(>i',  was  ;il-i 

if  thr  I'.nti-li 


(Mr.  Dickinson's  Closing  Argument.) 

.NigiuiHMit,  that  it  is  contended  that  tiie  oniission  of  the 
v.. mis  "  l^riti'-li  subjects"  in  Article  1  of  the  Convention 
n  defining  those  for  whom  (Jreat  Britain  had  the  right  to 
I  lim  compensation,  was  a  means  of  eiilaigemont  of  jtiris- 
(1  ■tion  latiier  than  a  limitation.  1  am  going  to  discuss 
fi  it  for  a  few  moments.  My  friend  was  not  (jiiite  satis 
I  I  witii  the  amount  of  diplomatic  coM'espoiidence  that, 
lol  got  into  this  Kecord  against  my  vigorous  contention 
a;  Victoria,  so  tliat  when  they  come  to  make  their 
|ii  lilted  argument  here  they  import  a  letter  that  was  not 
introduced  at  Victoria  at  all  for  further  u,-e  in  the  matter 
,,r  construing  (he  Conventioi;.  1  shall  at  a  later  period 
U,  notwithstanding  tiie  'Iccisioii  of  '•  ],;i  Ninfa"  ca.se. 


II. si: 

u|"in 


another  point,  that  l(>tters  and    negotiatii^is  of  the 


(ii.vcriiments,  any  more  than  the  delt.Mes  of  Congress  as 
til  statutes,  wiiich  were  used  in  "  La  Ninfa""  case  to  con- 
strue a  statute,  cannot  lie  used  in  the  ciiistrnction  of  tliis 
3o(  'iiveiition.  Jnasinucli,  however,  as  tliis  letter  is  |)ie- 
Miited  and  is  directly  in  accordance  with  the  contention  of 
till'  United  States  and  is  iiriiited  in  my  fricnd"s  brief,  1  will 
read  it  ill  relation  to  this  mattei'of  Britisii  subjects.  This 
letter  which  we  have  shown  is  produced   lor  the  first 


guiiient  at  jiage  ;{,'s. 


is  ,1 

time  ill  this  case,  in   the  Biitisli  Ai 
iMr.  nickinson  lieie  read  the  letter.) 

Now,  your  Honors  will  find,  taking  the  iiosition  of 
tilings  as  tiiey  were  at  tlie  time  of  the  making  of  this 
Cuiiveiition,  that  under  the  previous  Convention  of  l^^.^;i, 
30 nnuiing  through  from  beginning  to  end.  and  I  refer  to 
tile  Commission  for  the  .settlement  of  the  claims  between 
the  I'.iited  States  and  (Jreat  Britain,  lejiort  of  the  Anier 
ir.iii  agent,  Mr.  Hanneii,  later  Lord  Haniien,  being  the 
agent  for  Creat  Britain,  that  one  of  the  ditiiculties  with 
wliii'li  they  had  to  contend  was  the  use  of  the  words 
•■  I 'litisli  subjects"  in  that  Convention,  and  the  ■.et>ming 
(iiillict  lietween  the  use  of  th(>  words  "Britisii  subjects'" 
iiiil  the  rule   of  International  law    which  would  precluile 


tiie  recovery  of    a  British    subject,    domiciled   out    of  1 


lis 


40r(iU 


iilrv  against  the  Unitt'd  States,  iiot  in  one  case,  but  in 


iiiaiiv, 


in  the  Lanrentz  case,   the 


•laii 


11   was  pK'sented  on  b 


]i,iU  of  a  Britisii  subject  domiciled  in  Mexici  .  Tiie  Con- 
viiitioii  contained  the  woi'ds  "  B)ritish  subject '"  and  pro- 
vided Cor  the  adjustment  of  claims  of  Britisii  subjects 
rigiiinst  the  I'liitt'd  States,  and  for  the  claims  of  American 
citi/t'iis  interchangeably.  But,  inasmuch  as  it  w;is  so 
liv  the  rules  of  International  law  -and  the  case  was  fully 
argued  liy  liOrd  Haiinen  and  Sir  K'obert  Philliinore  for 
5o(;ic.it  Britain,  as  shown  by  tlie  report  of  this  case— it  was 
Ihld  that  iiiendy  becau.se  a  man  was  a  British  subjiTt, 
altliiiiigh  the  treaty  provided  for  reclamation  on  liehalf 
III'  I'.iitisii  subjects,  yet  he  could  not  recover  in  that  case; 
tile  reclamation  I'ould  not  be  made  in  that  case  because 
the  I'liitish  subject  was  domiciled  in  Mexico,  and  hisgoods 
timk  their  character  from  that  country.  There  was  the 
(list    difticuty    they    had;    that    difhculty    is    recognized 


(Ii 


h  th 


I 'SI'    !'( 


'jiorts. 


Ill 


ke   (iiieslion  came  up  as 


(k 


til  litizens     and    doiiiicil,    and    the   construction    to    I 


)e 


I gi I  I'll 
sii'ii. 
sini 

tlie 


th< 


words  in   niaiiv  cases    before  that   Commis- 


1  iioid  ill  my  hand  the  jigeiit's  repoil  of  the  couimis- 
I  of  is.'i:}  "uihraced  in  the  nic^sage  of  the  President  of 
rnited  Stati's,  communicatiiig  tlie  proceeiiings  of  the 
('niiimission  to  Congress.  It  contains  the  iuguments  and 
liii.  I-  ill  the  important  cases  and  th"  decision  of  the  Com 


r  ■! 


864 


lie 
v's 
iml 
:iat 


liar 
111.- 


(Mr.  Dickinson's  Closing  Argument  ) 

missioners  and  of  the  Umpire.  In  tliia  Report  ii 
"  Lanrentz  "  case  it  was  contended  by  Her  Mnjc 
counsel  that  whatever  miglit  be  the  rule  of  Internal i 
law,  yet  the  use  of  the  woids  "  Brilish  subject"  in 
Convention  concluded  the  whole  subject  and  that  tl 
fore  the  British  subjects  were  entitled  to  recover. 
Now  in  the  treaty  of  Washington  under  which  a  sin 

JO  Commission  was  formed  in  1871  the  words  "  Biitisii 
jects  "  were  introduced  again,  and  furthermore  aiin 
clause  was  introduced  which  is  interesting  in  this  ciiiincc- 
tion,  which  is  not  in  this  Convention.  I  am  leading! mi 
the  "  Treaties  and  Conventions  between  the  United  Si  ii.s 
and  other  powers,  177*>  1SS7."  Article  I'i  of  the  tieai  \ of 
Washington,  at  page  4S4  of  the  book  I  liave  cited,  pnniihs 
for  claims  'excepting  claims  growing  out  of  the  AlalMina 
claims)  on  the  part  of  corporations,  or  private  iiidiviiiuals 
'■  bubjects   of   Her   Britannic  Majesty,"  which  may  lave 

2obeen  presented  to  either  govermnent  and  which  liav.- k.. 
mained  unsettled.  It  was  provided  that  they  slioiiM  In; 
referred  to  three  Commissioners  and  the  Commissioihis 
so  named  shonld  meet  at  Washington  at  the  eailiest  inn- 
venient  period  and  shall  before  proceeding  "  make  md 
subscribe  a  solemn  declaration  that  they  will  act  iiii|iai- 
tially  and  to  the  best  of  their  judgment  and  according  to 
justice  and  equity."  According  to  "justice  and  eiiiiiiy." 
I  would  ask  your  Honors  to  bear  in  mind  all  the  contin. 
tions   made   under   that   treaty  as  to  these  phrasts.     ■jju; 

3oCounsel  for  Great  Britain  und«.'r  the  treaty  of  1^71 
contended  that  they  were  not  confined  to  the  riili-  of 
International  law,  not  only  by  reason  of  the  use  (it  llie 
words  "  British  Subjects  "  lint  by  reason  of  the  novilty 
of  the  words  "  justice  and  equity  "  also  in  conveiiiinns 
between  countries;  tliat  it  was  the  intent  of  the  Tnatv 
to  take  the  case  out  of  the  rules  of  International  law,  aiul 
to  rei)Ose  absolute  discretion  in  the  Commissioners  with 
out  regard  to  the  rules  of  law  in  the  country  wlieic  tlu' 
complaint  originated  -  without  regard  to  the  usual  liiniia- 

^ntion  u|)oii  the  right  to  recover  in  case  of  tiie  decision  ul  a 
niiinicipal  court  liefore  apjieal,  before  a  decision  was  inadi' 
by  a  court  of  last  resort  and  in  all  other  respects.  It  was 
like  throwing  the  case  before  a  jury  unlearned  in  law.  ami 
which  should  decide  on  general  humanitarian  piinciplt  s. 
This  contention  was  made  by  Her  Majesty's  Coun-el  m  a 
number  of  cases,  liut  1  call  particular  attention  to  ilie 
"  Hiawatha  ■' case,  page  lU  of  the  Kepor  of  thel>iiii-li 
Agent,  presented  to  the  Houses  of  Far  lament,  by  r..iii- 
mand  of  Her  Majesty,  in   ls74.     Her  Majesty's  Coniisi'l 

50 contended,  at  page  KKl: 

"  'I'lierc  is  a  cloar  ilc|iartnr«i  in  the  Treaty  of  Wasliiu^'ton  fnim  tlio 
"  pret'i'ilciits  i'liruiHlu'd  liy  otlier  Hiiuilar  Ci)uv(>utioiiH  to  wliii  li  the 
"  Uiiiti'd  States  wi'V('iiaiMics,  in  tlic  nniisHioii  from  tlie  Treaty  of  \\;l^ll- 
"  innton  of  tlie  wiudw  wliieli  inalto  the  iml.lie  law  a  rule  of  (leri^ini. 
"  The  oath  to  whieh  the  Cominissiouers  are  re(iuireil  to  Kuliscrilii'  «:i» 
"  qiioteil  as  eHlalilishinn  th(^  ri/^ht  of  the  ('oinmisHioiiers  to  iih|iiiip 
"  into  the  facts  of  the  several  eases,  not  with  a  view  to  deciile  w  Ij.  tlicr 
"a  teehnieal  ri^ht  to  caiitiire  is  disclosed  liy  them,  Imt  vnlliu 
"view  ot  deterininiufi  whether  the  claimants  were  injured,  wiilmiit 
"  their  fault,  liy  the  Cfnited  States,  in  the  prosecution  in  jfood  r;ptli  ef 
60  "  ft  lawful  trade.  au<l  were  therefore  justly  and  eiiuitaldy  eulilud  to 
"relief." 


And  in  the  other  cases,  it  was  contended  by  the  l'"tisli 
Government  that  the  ca.si'  did  not  stand  before  the  '  'in 
mission  as  under  oidinar\  conventions,  but  that  the  rnis 


s(ir< 


(Mr.  Dickinson's  Closing  Argumont.) 

(Ii.lioii  had  a  broader    significance   and    tliat     *      ■■      * 
'•  Justice  and  ecjuity  must  be  determined  in  tl\e  case." 

.And  so  it  was  made  a  point  in  a  number  of  otiu>r  cases, 
iis  s(;eii  by  Vol.  (">  of  the  Papers  HelatiiiK  to  tlie  Treaty  of 
\\  ,isiiinj;ton,  ]»ages  24r),  Ki;!  and  i:i4.  Now  on  the  term 
"  Uritisli  subject,"  used  in  the  Treaty  of  IS'l,  tlie  La\u- 
eiitz  case  was  cited  before  the  Commission  of   1H71,     The 

10'  .^'^e  was  fully  argued  by  a  very  learned  counsel  on  behalf 
(ii  eai.'h  side — the  late  .Vttorney-General  Hoar  argued  the 
ci-r  for  the  United  states— and  it  was  insiste<l  by  Her 
Miijesty's  Government  and  decided  liy  the  Com-nission  in 
f.ivor  of  the  contention  of  Her  Majesty's  counsel  that  the 
u-e  of  tlie  words  "Britisli  subjects  ''  in  connection  with  the 
view  tiiat  the  Commissioners  had  thei'etofore  taken  of 
tliis  peculiar  cjuvention -unlike  any  otiier  convention  in 
iv^ai'd  to  the  method  of  committing  the  (piestions  to  the 
Ti  ibunal— the  use  of  the  woids  "■   British  subjects"  con- 

:otiiilled  the  case,  in  spite  of  the  lules  of  International  law, 
Ih.it  one  country  could  not  make  reclamation  against  an- 
oilier  for  anything  in  favor  (if  the  party  owing  the  latter 
|i(  rinanent  or  local  allegiance.  The  Commissioners  held 
ill  that  case,  and  the  British  counsel  insisted  as  the 
Ir.uling  point  (point  'A  of  their  brief)  that  so  far  as 
the  rule  of  International  law  urged  by  Mr.  Hoar  was  con- 
(I'lned  that  it  was  sufticient  for  them  to  establish,  and 
they  did  establish,  and  the  Commissioners  found  that  re- 
cliination  could  be  permitted  to  those  British  subjects  in- 

joviiking  the  protection  of  Great  Britain  for  injuries  sus- 
tained within  the  United  States,  providing  it  appeared 
that  the  person  so  invoking  the  protection  against  the 
I  lilted  States  should  demonstrate  that  they  had  been 
laitliful  to  their  local  allegiance  to  the  United  States. 
That  distinction  was  made,  however,  in  the  decision. 
Number  S  of  the  brief  of  the  British  counsel  in  this  case, 
tlir  i'.arclay  case,  was  this  jioint,  that  while  Barclay  had 
hecii  domiciled  in  the  United  States  he  had  been  faithful 
to  the  United  States  as  any  loyal  citizen,  and  the  case  was 

40(licided  by  the  Commissioners  on  demurrer.  The  priu- 
(•i|i|e  admitted  by  Her  Majesty's  Government  that  entitled 
him  to  recover  even  in  that  case  under  the  peculiar  words 
dl  the  Convention,  giving  reclamation  to  British  subjects, 
was  the  ()ualitication  that  the  claimant  must  have  been 
loval  to  tlie  sovereignty  of  his  domicil  and  liave  obeyed 
all  its  municipal  laws.  Here  is  the  statement  of  the  Britisli 
cui  nisei. 

First,  as  to  the  demurrer,  admitting  the  following 
facts: 

'  " 'I'liut  tho  claimant  nlistaiiied  from  all  inteniu'diUiug  in  the  Civil 
"  War  and  iu  all  resin'cts  uoiuluctud  hiiUHolf  as  faitlifnlly  to  the  Uuiteil 
"  Sliitt'M  aH  any  loyal  suhjiH't  could  Lavo  done  without  taking  an 
"  lutuftl  part  iu  tho  war." 

His  allegiance  was  maintained  and  his  keeping  of  his 
allegiance  was  an  essential.  That  being  the  demurrer, 
this  was  the  argument  of  Great  Britain: 

"  .\iid  this  briujJCH    us  thorcforo  to  the  iiuostion  wliioli  is  ixM'haps 
"  MHiif  iuijiortaut   tliau   wlu'tlicr  a  subject  of  Her  Majesty   wlin   was 
■  irii  such  subject  and  has  never  been  naturalized  or  taken  steps  to 
•'  It   naturalized    in   any   other  country,     *     *     *     domiciled  in  the 
"  liiited  States." 

riie  Commissioner  on  the  part  of  the  United  States:-- 
Wheii  I  spoke  to  you  before.  .Mr.  |)ickinson,  1  luiderstood 
that   the  British  counsel  disavowed  so  strong  a  |>ro|)osi- 


IK) 


In  I 


8(i(; 


(Mr.  Dickinson's  Ciosinj!;  Arj^ument.) 

tion  as  yon  stated.  I  had  in  mind  what  is  stated  at  im  (> 
111  of  the  oral  aignment.  1  want  to  call  the  attt'iiti  u 
of  the  connsel  for  Her  Majesty  to  it  becanse  I  gatlici  il 
from  that,  although  it  is  not  directly  stated  there  tint 
they  did  not  intend  to  maintain  so  strong  a  piopositidii  is 
stated  hy  yon. 

At  on"  o'clock  the  Commissioners  took  roce.ss. 


10 


At  lialf-past  two  o'clock  the  Commissioners  resnitii 
tlieir  seats. 

Mr.  Dickinson:—!  shall  come  to  this  Barclay  cis,' 
aj;iiin,  may  it  jtlease  your  Honors,  but  enough  has  Ihm  n 
pointed  oiil  t<>  show  the  historic  conditions  in  lh(>  dw 
cuss;on  of  treaty  terms  between   the  govennnents  in  n.. 

20spi-it  of  the  (piestions  of  construction  here  as  to  reclaiii;i- 
tions  and  claims  of  one  govei'ument  against  the  otinT. 
turning  on  the  civil  status  of  claimants  at  the  dalo 
of  the  making  of  this  convention.  And  it  appears  hv 
this  convention  that  the  words  "  British  subjects,"  were 
eliminati'd.  It  also  ai)pears  by  this  convention  that  the 
Words  which  were  used  in  the  convention  of  1S71  that  llie 
decision  should  be  made  "according  to  justice  and  etpiii\," 
whatever  that  may  mean — and  for  this  purpose  it  is  im- 
material what  they  mean  -  those  words  were  not  used  in 

30 this  convention.  It  follows  that  in  all  the  historic  rcla- 
tions  between  the  govennnents  in  respect  of  convent  inns 
of  this  de?cription,  ditticulties  had  come  up  in  tlie  deliliir. 
ations  of  arbitrators  or  commissioners  over  the  use  of  the 
two  terms.  Both  terms  had  l)een  heretofore  a  3nl)je(i  ,,f 
couti'oversy,  it  being  insisted  prior  to  this  tune  by  Ihi- 
Majesty's  Govermnent  that  if  the  words  "British  snh 
jects"  weie  inserted  they  could  recover  irrespective  ot  In- 
ten  ational  law  on  estal)lishing  that  the  claimant  wa-;  a 
Britisli  subject  wheivver  domiciled.     They  had  contend. d 

40for  these  positions  bolli  imder  the  Convention  of  is.".;i.  .iik] 
undertheConviMition  of  1S71.  '1  hey  were consistiMit.  Now. 
it  always  follows,  and  this  case  makes  no  exception  to  the 
1  ulf.  that  you  cannot  u.se  diiilomatic  correspondence  anlr- 
datmg  a  treaty  to  construe  a  treaty  any  more  than  yon 
can  use  debutes  in  congress  or  parliament  to  const  me 
statutes  It  is  the  law,  doubtless,  that  the  historic  comli 
tions  aie  to  be  taken  into  consideration  by  a  conit  in  con- 
strniiig  a  treaty  or  statuti;  to  see  to  what  mischief  tin' 
ert'orl  was  directi'd.     Now  the  parties  having  differed  a- 

50 to  tiie  construction  of  these  two  teinis,  the  oni>  holding 
that  the  ordinary  rules  of  International  law  would  not  aji- 
ply  l)eeause  of  these  e.xceptional  terms,  and  the  other|>aii  v 
holding  that  the  rules  of  International  law  must  apply  ii.i 
withstanding  the  terms,  and  both  terms  being  ehminat'd 
from  the  pit'sent  Cor.vention  of  iS'.Mi,  for  the  i)urp(isi' of 
avoiding  any  contiovei'sy  in  regai'd  to  it,  it  results  that 
the  rules  of  International  law  are  to  govern  here  both  as  li 
the  class  of  persons  and  their  status,  ijiioadihe  Unit  d 
States  and  Grea*,  Britain,  as  to  their  right  to  recover,  and 

6o;ilso  as  to  the  rule  of  decision  of  this  Connnission  cre.il'  d 
by  that   Convention,     Here  was   a   controversy  as  to  ilir 
two  terms,  one  government    constantly  contending  th  it. 
exct'ptions  were  made  to  the   oidinary  rules  of   Interna 
tional  law  by  tlie  use  of  these  terms,  and  the  other  goven 
ment  contending,  successfully  imder  one  convention  ami 


m't 


fi*i|ii 


uevs  ivsiin,  d 


(Mr.  Dickinson's  Closing  Aigiirnent.) 

uiisiiccessiully  nnder  anotluM',  that  the  luiea  of  Interna- 
t,  iiial  law  must  apply  in  Conventions  of  this  kind  notwith- 
Rtincling  the  teiins.  This  Convention  eliminated  hoth 
trims.  I  am  coming  to  the  scope  and  construction  of  the 
(invention  generally  later  on.  I  am  now  only  discussing 
tlic  terms  of  this  Convention  in  resjjectof  this  (juestion  of 
iilltgiance  and  citizenshii). 

10  Now.  in  my  learned  friend's  rejjly,  though  differing  from 
11-,  as  their  right  is,  they  liave  undertaken  to  cite  what  is 
not  in  evidence  at  all,  in  the  matter  of  the  scope  of  the 
t  invention,  certain  tentative  drafts  of  this  Convention, 
which  were  made  hy  the  two  nations,  the  United  States 
and  (ireat  Britain,  before  tliev  came  to  a  conclusion,  and 
sritled  upon  the  final  draft  of  the  Convention  here  under 
whuli  yon  sit.  Unless  there  is  amhi^uity,  of  course  such 
(halts  of  the  Convention  could  not  hi'  used.  Hut  with- 
iiiit    introducing   them,  with   the    other   corresiiondence, 

2oan(l  material  at  Victoiia,  they  now  turn  up  as  new 
matter  in  my  learned  friend's  argument  in  reply 
al  pages  4  and  h,  and  inasnnich  as  they  give 
Hi  authority  f<ir  their  drafts  and  they  are  not  in  the 
];,  I ord,  I  have  asked  my  learned  friend  for  his  authority 
aril!  they  have  been  kind  enough  to  fuinish  luethnir  printed 
tianscrijtt  of  the  drafts  that  weie  proposed  interchange 
aliiy  l)etween  tlie  governments  in  the  course  of  negotia- 
tions, from  which  tliey  quote  in  the  Reply  brief,  and 
]  now  hand  your  Honors  two  copies  of  these  transcripts. 

30  It  seems  there  were  seven  before  they  reached  the  final 
(Iratt.  Inasmuch  as  portions  of  these  drafts  are  cited  by 
my  learned  friends  from  their  standpoint,  I  have  tiie  right 
to  refer  to  the  full  drafts  upon  the  copies  furnished  me. 
It  appears  that  in  the  second  draft,  as  originally  presented, 
th  •  old  words  which  caused  trouble  in  ls71  were  inserted, 
tlius: 

"  1  ho  lii^jli  coutracting  parties  agree  tlmt  all  claims  of  Hritish  sub- 
■  jccts  for  injuries  sustained  by  tLein  in  BeLring  Sen,  &c." 

40  .\rticle  Til.  contained  the  old  words,  as  to  which  con- 
tioveisy  had  arisen: 

"  The  said  (commissioners  shall  (letoriiiine  each  claim  referred  to 
"  tlii'iu  and  fix  the  amount,  if  any,  to  bo  paid  therein,  in  accordance 
•  uitli  justice  and  eipiity." 

The  third  draft  by  nuniber,  provided  in  Article  I.: 

■  That  all  elaimw  of  Britisli  subjects  for  injuries  sustained,  and  for 
"  uliich  compcusati(m  is  claimed  to  be  duo  from  the  United  States 
"  inhhr  the  award  of  the  tribunal  of  arbitration,  shall  bo  referred  to 
iH.p  Comuiissioners,  itc." 


50  ■• 


fo.. 


And  Article  III.  of  the  same  draft  still  retained  the 
wdiils  as  to  the  Commissioners,  that  their  delib"r.\tions 
siioiiid  bo  in  accordaiu;e  with  "justice  and  equity, "  and 
tile  tindings  and  decisions  of  the  tribunal  of  arbitration. 

riie  lourth  draft  in  numbtu',  provided: 

"  Tl.  :i  the  high  contracting  parties  agree  that  all  ISritisli  (dainis  for 
"  injiin'  H  sustaineil,  and  for  which  compensation  is  claimed  to  lie  due 
"  fmiii  ti  '  United  States,  under  tlic  award  of  the  tril)unul  of  aibitra- 

ti'M.  1111,1   inchnl.ug  those  referred  to  in  Appendi.x  'A,'  shall  be  re- 

I'  ircd  to  'WO  Coniinissioners,  etc." 


I  lie  tlii.  1  article  omitted  the  words  "justice  and 
oijiiity  "  --8<!  you  see  'hey  go  out  by  intention.  The  claims 
in  !lie  first  draft  we  find  have  been  changed  from 
"  Ml  itish  subjects"  to  "British  claiuts,"  and   there  is  no 


Im 


SOS 


'.    I 


(Mr.  Dickinson's  UlosiiiK  Aij^nnient.) 

liniitiitidii  as  tn  tlie  clainis  that  art'  ivt't'ircd.  Hccau-  , 
yunr  Honors  will  see  (Voin  Articlt'  f.,  in  tlitMtli  diafl,  tlia'  ii 
provides  tliat  ail  Rritisli  claims  for  injinics  snsfaiiUMl,  nn  1 
foi'  whidi  coniiKMisalion  is  claimed  to  he  due  fVoni  tin' 
United  States  undei'  the  award  of  the  tiihnnal  of  arhiti  i 
tion  at  Paris  included  everything,  whether  Ix'foic  ih,. 
Pi\ris  trihuiial  or  not.  'I'his  is  important.  l)ecanse  the  \i,. 
lopeiidix  "A""(lid  not  constitnte  a  limitation  of  the  jnii- 
diction  of  the  Conimissioneis.  TIk;  lanj:;na}>(' n>e(i  is  "All 
Hrilisli  claims  for  injuries  sustained,  including  tho-e  iv 
ferred  to  in  Appendi.x  "  .\," "'  and  not  exi'hidiiit;  aiiv 
others.  So  that  it  was  open  to  any  Hriti>h  (laimani. 
Hut  in  tliat  (haft  the  words  "  British  subjects"  and  the 
words  '"justice  and  eijuity  "  disappear. 

i\ow  we  hegin  to  ^'et  more  restrictions.     Tiie  ath  di.ilt 
provide.-;: 

•'  'I'lit'  lii>?li  contiiu'liiiK  imitiis  iij^rci'  tli:it  nil  cliiiiiis  mi  iiccdiiiil  ..f 

"'-'"  injuries  sustiiiiKHl  l\v  persons  in   wliosc  liuliall'  (iri'iit    Itriliiin  is  in- 

"titli'il  to  cliiini  comix'nsiitioii  from  tlit-  United  States,  and  arising  liy 

"  virtue  of  tiie  treatv  aforesaid,  tlie  award  and  the  tindiugs  of  tiie^iiill 

"  tribunal  of  arbitration  slniU  iie  referre<l.   &e." 


30 


li- 
i 

he 

V, 


There  the  Hmitiition  is  inserted  confining  the  lefeici 
to  what  was  in  the  awanl  and  before  the  tribunal  of  arl 
tration,  a  limitation  and  oxclusion  of  any   other,  with 
clear  intont  to  exclude  all  claims  that  were  not  before  tl 
tribunal  of   arbitration  or  in  the  findings  of  that   li 
\rticle  III.  says: 

"  I'lie  said  coinniissiouers  sliall  detc>rnuue  the  lial)ilit,v  of  tlie  rnilcil 
"  Ktati  s,  if  any,  in  resiiect  of  eacli  ehiiin,  aud  assess  tlie  aiuouiit  af 
"  eoinpeiisatiou,  if  any,  to  lie  paid  on  aeeount  tliereof  so  far  iis  tiny 
"  sliall  lie  able  to  agree  theroou." 

The  words  "justice  and  equity"  still  out. 
The  next  draft,  the  <!th  in  number,  says: 

"  .Vll  elainis  on  aueount  of  injuries  sustained  l)y  jiersous  in  whoso 

"  lielialf  (treat   Britain   is  entitled   to    elaiiii  eonilieusation  from   the 

"  United   States,  and  arising  by  virtue  of  the  tre.ity  aforesaid,   tlie 

40  "  award  and  tindiugH  of  the  said  trihuual  of  arliitnitiou  sliall  he  re- 

"  ferred  to  two  oomniissiouerH,  iVe." 

They  have  not  yet  reached  anything  in  the  nature  nf 
"  additional  clanus."  The  high  contracting  parties  li.ive 
provided  by  the  other  diaft  that  i\o  claims  should  lie  re- 
ferred to  the  tribunal  except  those  appearing  by  the  tiiid- 
ings  of  the  Paris  tiihunal,  and  by  that  paragraph  your 
Honors  will  readily  see  that  additional  cldims,  or  ,iiiy 
other  claims  would  have  come  in  but  for  the  limitation, 
50 the  award  of  the  Paris  tribunal.  It  did  not  need  any 
clause  for  additional  claims  if  it  stood  as  it  did  before. 
Now  the  nex*^  draft  provides: 

"  The  high  eontraetiiig  parties  agree  that  all  elaims  on  aecouiit  (if 
"  injuries  sustained  by  persons  in  whose  behalf  ( rreat  IJritaiii  is  eu- 
'  titled  to  elaim  e(mipensati<iu  from  the  United  Stales,  and  arising;  liy 
•'  virtue  of  the  treaty  aforesaid,  the  award  and  the  tindiugs  of  \\[c  >;iiil 
"  tribunal  of  arl)itrati<in,  us  nUfi  the  ■n/lition'il  ilniins  speeilied  in  tln' 
"  ti/th  paragra|ih  of  the  preamble  hereto,  shall  be  referred  tn  tw.i 
"  coinniissiouers,  <te." 

60  So  that  your  Honors  will  see.  that  by  intent,  in  llie 
course  of  construction  of  the  tinal  Convention,  the  wonls 
"  British  subjects"  were  omitted;  the  words  "justice  :iiiil 
eipiity "  were  omitted,  and  a  restriction  was  inseiinl 
ivintining  the  claims  that  conld  bi>  considered  to  llin^o 
in  the  award  and   the  findings  of  the  Paris  tribunal,  in- 


Sti!) 


lie  r»tli  iliilt 


(Mr.  Dickinson's  Ciosinp  Argument.) 

iii  .111  of  taking  in  all  tho  claims;  and  ti)  make  this  restric- 
ti  II  absolutely  certain  as  to  iritiMit  that  tlicy  Hhoiild  cx- 
r;  iilo  every  other  claim  than  those  fouml  in  tlie  award  of 

II  tribunal  of  arbitration  at  Paris,  when  it  was  con- 
cl  nlt'd  to  add  some  claims  not  bef'nre  the  trii)unal  of 
ai  iiitiation.  tliev  had  to  insert  them  by  a  distiiuit  and 
s<  parate  clause   providing  for  specific   additional  claims 

lOaiil  naming  them.  And  that  aiticle  was  the  one 
a'l'i|)ted. 

Now  my  learned  friend  argues  in  his  brief,  that  the 
w  .i(ls  "  British  subjects"  were  eliminated  to  give  en 
lilted  powers.  We  have  none  of  the  correspondence 
tl  it  went  with  the  drafts,  e.xcfpt  the  single  let- 
tn  of  Secretary  fireslian).  which  is  piinted  in  my 
|(. lined  friend's  brief.  That  letter  says  that  he 
(|i  is  not  care  whethei'  the  "  British  sid)jects"  am  in  or 
ii.|;  lint  note  this  in  the  letter  of  Secretary  (iresham,  a 

20^1,1(1  lawyer,  who  had  undoubtedly  examined  tli»M-lauses 
uii'ler  tlu)  prior  conventions  and  found  dilTiculties  from 
th'iiseof  the  teiin  '"  British  subjects "', 'is  to  whether  or 

III  I  it  took  tlie  case  out  of  International  law,  we  find  him 
willing  that  he  does  not  care  whelh»'r  the  li'rm  is  used  or 
iiiii  in  this  Convention,  provided  that  there  shall  b(>  no 
iiii-imdorstanding  that  the  proceedings  under  this  Con- 
vention shall  be  governed  by  the  rules  of  International 
l,i\\  on  this  subject. 

Ill  view  of  this   historv,  1  submit,  with  absolute  confi- 

30(liiice.  that  "  British  subjects,"  as  an  arliitrary  designa- 
titiii  of  proper  claimants  is  eliminated,  so  as  to  leave  no 
luiilniversy  as  to  the  persons  for  whom  (Jreat  Britain 
iiiiulit  make  reclamation,  as  to  their  .shiliis  qnodd  the 
I'liilod  States  and  the  Uoveinment  of  Great  Biitain; 
peiMins  for  whom  by  international  law  Great  Britain 
can  make  reclamation,  cannot  therefore  be  i)eisons  who 
iiweil  allegiance  to  the  United  States  by  reason  of  domicil. 
nr  by  reason  of  original  nationality. 
While  I  am  on  this  matter,  as  1   mean  to  refer  to  these 

40(lialis  again,  I  call  your  Honor.s"  attention  to  the  |)osition 
(if  I  lie  learned  counsel  who  read  what  was  known  as  the 
|iii  liininaiy  correspondence  between  Sir  Julian  I'aunce- 
t'nte  and  Secretary  Gresham,  wherein  be  stated  that  there 
wiie  seme  claimsomitted  from  the  tiiidingsof  the  tribunal 
(i|  arbitration  at  Paris  which  were  not  jiresented  there, 
and  so  constituted  additional  claims,  and  among  them  he 
nainiN  all  that  were  subse(|uently  added  as  additional 
claims,  and  he  also  names  the  claim  of  the  "  Black  Dia- 
iiiiuiil  "  of  IHSCi,  and  the  claim  of  James  Gaudiii  for  dam- 

jOaps  lor  ;iriest.  Bear  in  mind  that  in  the  Convention,  as 
it  was  already  agreed  upon  tlu!  claims  snbmitteil  to  the 
tiilHinal  at  Paris,  the  claim  for  every  ship  and  of  every 
kiml  for  which  any  owner  or  person  might  make  reclama- 
timi  was  set  ilown  and  defined.  Then  Sir  Julian  Pauiice- 
fnlc  IK  it  ihes  Secretary  Gresham  that  there  are  claims,  to 
wit,  tlie  "Henrietta,"  the  "Wanderer."  the  "  Winiii- 
iir,l,"tlie  "Oscar  and  llattie,"  the  "Black  Diamond" 
and  I  he  claim  of  James  (iaudin,  be  would  like  to  have  iu- 
sfihd  in  the  present  Convention  in  addition. 

^"  That  was  when  they  were  negotiating  this  Convention, 
or  piior  to  the  submission  of  the  matter  to  the  Senate. 
'ihe  name  of  every  one  of  these  ships  does  appear  in  the 
('(invention  which  »'(».s  submitted  to  the  Senate,  and  rati- 
fied hy  the  Senate,  except  the  "  Black  Diamond,"  which 
was  (iinitted;  and  the  James  Gaudin  claim  disappears,  al- 


m 

li   ; 

870 

(Mr.  Dickinson's  CiiKsing  Argtitnoiit.  i 

thon^li  Sii'  Julian  raiinct-folt'  IpkI  iisked  to  liiivi*  Imlli 
Hcrtcd    IIS    "  ;i(l(liti(iniil   claims."     Nav,   nion',   wlim  || 


c'.'iniM    to    tilt'   aildilinii: 


aims  that   liati  to 


spcci 


UMiIi'i'  tJK'  clause  uf  tlic  C'oiivontidii  pmvidiiif;  f'ui 
tional  claims,  aililcd  to  tllll^(>  siiiimittcd  to  the  tiilimi.i  ■{' 
ai'liitialioii  at  Paris,  and  found  in  the  tiiidin^^sof  laii  in 
tentative  diaft  "A"  and  diaCi  "  I)."  tliey  inserted  i  ,. 
lo"  Black  Diamond"  as  an  addilioiial  I'laini  to  ^o  a!  i; 
with  the  "  Hem  ietta  "  and  flie"()scar  and  llattie"  ,:] 
the  "WinniCreir'  and  the  "  \Van<lerer."  Indiatt'i  ." 
and  the  linal  draft,  vonr  Flmiois  will  find  tiie  naim  -  uf 
fhi!  '•  Wanderer"  and"  the  "  VViniiificd  "  and  the  "  lleini. 
etta  "and  the  '"  ( )scar  and  Hat  tie,"  hut  you  will  lind  tli.it 
the  "  HIack  Diamond,"  which  had  aiipeared  in  the  di.ilis, 
and  which  Sir.luliaii  I'anncefote  hail  asked  to  he  inseili  i|, 
is  omitted.  Therefore  the  claim  of  the  "  lilack  DianmiKl," 
which    is    now    uii;ed    as   an    additional    claii 


n    was 


20oniitted    h.v    intent,    and    the   .James    (iaiidin    clain 


I     Is 


oniittei!  and  therefore  omitted  hy  intent,  as  it  ;i|i|ieaiv  in 
the  nej;otiatioiis  hni  dis-uiipears  in  the  Convention.  Ills 
not  so  vtMy  iin|K)itant  in  the  matter  of  amount,  Imi  it 
sustains  the  contention  of  the  United  States,  and  llir 
counsel  of  the  I'nited  States  are  as  an.xions  as  my  leai  ind 
friends  can  he  that  when  your  Honoi's  make  tin;  awanl 


this  case,  it  shall   not 


111 


found   that  the  cotninissiniii'ir 


have  in  any  matter  e.\ceed(>d  their  powers.     'J'liese  chiims 

are  not  in  the  Convention  hetweeii  Her  Majesty,  the  (,iiii en 

30i)f  (treat  liritain  and  the  President  of  the  United  St.iii 


and 


coverinir 


ditional  claims 


The  Convention  iiiidi 


which  your  Hoiioi's  sit,  is  the  Convention  which  was  pit- 
sented  and  understood,  witii  all  th(>  coiresjMindence  and 
the  drafts  of  the  Convention  hefore  its  trainers.  Tlu'  Cmi- 
vention  must  be  the  one  that  was  latificnl  hy  the  Seii.itcdf 
the  United  States,  as  shown  liy  the  last  clause  of  the  Cdii 
vention,  and  as  always  insisted  ui)on  as  essential.  It  will 
not  do,  it  seems  to  me,  to  add  anything  on,  or  to  in  any  way 
change  the  Convention,  in  view  of  the  experience  staring; 
40  us  in  the  face,  that  in  icpeated  instances  where  there  li.is 
been  any  departure  from  the  careful  deliniitation  ,iiul 
definitive  statements  of  these  things  that  are  to  go  heluie 
a  tribunal  of  arbitration,  the  awards  liave  been  set  ■.\>uU'. 
should  the  tribunal  exceed  its  jurisdiction.  Katliei  tiiaii 
such  a  result,  as  Mr.  Webster  once  said  of  the  iiat 


lolUll 


fX 


debt.  1  would  rather  pay  this  claim  myself. 

Mr.  Lansing: — It  would  not  be  ver\'  expensive. 

Mr.  Dickinson: — I  do  not  think  it  would  be  ver 
pensive.  Now,  coming  back  to  the  questions.  The  rule 
50  of  International  law.  which  1  have  taken  a  very  brief  sur- 
vey of,  is:  First,  that  no  government  can  make  recliuiia- 
tion  in  behalf  of  a  foreign  citizen  domiciled  within  its 
borders,  and  unnaturalized,  against  the  nation  of  his 
original  allegiance,  especially  for  acts  in  contravention  or 
in  denial  of  the  asseition  of  the  sovereignty  of  bis  own 
country.  Whether  that  assertion  of  sovereignty  was  iii;lit 
and  eiticient  is  immaterial:  the  citizen  is  noi  to  he  iln- 
judge.     Secondly,  the  subject  of  a   foreign  power  ilomi- 


•iled  in  the  United  States-  having  his  settled  civil 


ir^ai 


II' 


^jodomicil  there,  and  bound  by  an  allegiance  to  il 
sovereignty  under  which  he  lives,  until  he  moves  uiii  or 
turns  liis  face  t(t  his  country  of  original  allegiami'— 
cannot  invoke  tlie  protection  of  the  country  of  his  oiiLiiiial 
allegiance  against  the  countiy  of  bis  domicil,  unle-s  uul 
except  he  can  show  that  the  country  of  domicil  ii.i>  in 


H71 


(Mr.  Dickiiisoii's  Closing  Aigumeiit.) 

:  line  inanntd'  (liHcriininjitod  against  liiin  bocaiise  of  his 
lienaKO  - '"i  c«>n(liti((M  not  in  this  «;aso.  He,  doniicilod 
i'l  this  (uiuntry,  owos  an  allc^ianct'  to  tho  country  of 
iii.s  doinicil  in  ail  matters  involved  in  the  assertion  of 
llie  sovoreigiity  of  the  coiintiy  of  liis  doinicil;  he  owes 
I  liedieiice  to  that  assertion,  and  he  cannot  uet  up  ids 
j  idgenent,— even   agreeing   as    ids    jiidgnieiit    may    with 

iqIIio  claim  advanced  hy  the  couidry  of  his  origiiiid  alltv 
;.iance-and  then  inakt*  reclamation  against  thcs  country 
|fi  which  he  owes  aiiegianct^  so  long  as  lie  remains  witiiin 
Its  holders,  for  damages  sufTeied  in  denying  the  sovor- 
(  ignty  of  his  doinicil.  Those  matters  are  vtMy  exha'ist- 
ively  discussed  under  previous  conventions  liy  ahlo  comi- 
^- ■!,  and  the  rule  of  International  law  is  undoubted  and 
i~  in  fact  conceded  hy  British  and  American  authorities 
alike,  ns  I  liavt^  stated  it,  and  distinctions  were  never 
iiiuie,  except  as  they   turned  on   terms  used   which  are 

,,,( liiiiiiiated  from  this  Convention. 

I  was  taken  somewhat  bysnrpri.se  by  your  Honor's  sug- 
urstion,  that  possibly  counsel  on  the  other  side  had  aban- 
il.iiied  their  position,  which  they  argued  at  such  length  in 
their  original  argument  and  in  their  oral  argument  at 
liiiiifax,  and  that  they  now  rest  on  the  doctrine  of  the 
"  I  -a  Ninfa  "  case.  I  wish  they  would.  Hut  I  find,  by  refer- 
ence to  my  notes  of  tlifdr  oral  argnnient  here,  that  they  not 
only  maintain  the  doctrine  stated  at  length  in  their  orig- 
inal brief,  but  they  jircj.sented  for  tbe  consideration  of  the 

"^"  High  Commission  and  for  our  reply,  numerous  supple- 
iiiriitary  alleged  authorities  to  the  effect  that  (ireat 
Hritain  can  maintain  this  position  which  we  are  contend- 
ing against.  And  inasmuch  as  they,  in  their  written  ar- 
gument and  in  their  oral  argument  at  Halifax,  have  occa- 
siniied  me  much  labor  in  following  them,  and  much  con- 
scientious lesearcb,  which  I  would  have  preferred  not  to 
have  undertaken,  I  have  gone  into  thisqnestion  very  fidly 
in  order  that  the  positions  of  the  United  States  upon  the 
legal  aspects  of  allegiance  and  nationality  in  reply,  may 

40be  fully  understood  by  the  Commissioners,  and  by  any 
(Hie  who  reads  the  British  argument,  botb  printed  and 
eial,  when  these  and  our  reply,  both  written  and  oral, 
shall  have  passed  into  the  history  of  International  juridical 
(■iiiitrover.sy. 

The  learned  (;ounsel  for  Great  Britain,  in  their  oral 
argument,  fully  maintain  all  the  positions  taken  by  them 
ill  their  written  brief.  "  But,"  th.ey  say.  "  here  is  the  do- 
(isiuu  of  a  United  States  Court   in  the  "La  Ninfa'  case, 

;owiiich  renders  it  still  more  certain  that  Great  Britain  is 
entitled  to  make  reclamation,  because  it  is  now  settled," 
tiicy  say,  "  by  the  decision  of  the  C*)mt  of  Ai)peals  for 
the  Xintli  Federal  Circuit,  that  tbe  United  States  had  no 
jurisdiction  even  over  theirown  citizens  on  the  high  seas," 
ami  they  apfdy  that  to  the  Bering  Sea.  (I  will  come  to 
a  full  discussion  of  the  "La  Ninfa"  case  by  and  by.) 
Tiiat,  your  Honors,  is  the  attitude  counsel  for  (ireat  Britain 
(i((ii|)y.  Of  course  if  I  should  ask  them  now  whether  tliey 
aliaiidon  tbe  position  they    have  elaborately   set  out,  in 

6otlieir  brief,  and  stand  only  on  the  ground  they  have  taken 
on  the  "La  Ninfa"  case  they  would  make  an  answer 
\viii(  li  \Yould  at  once  justify  me  in  the  line  of  argument 
at  length  that  I  am  pursuing.  But  I  shall  make  but  a 
liiief  reference  now  to  the  "  IjH  Ninfa  "  case  in  passing. 
Tliis  question   of  allegiance  and   nationality  is  so  far 


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» 


S72 


(Mr.  Dickinson "8  Closing  Argument.^ 

away,  and  beyond,  and  above  the  question  of  lliw  \,i  ,\ 
jurisdiction  of  the  Amorictin  Courts,  that  I  have  \\..\ 
thought  it  of  8o  much  importance  to  spend  time  ii|ioii  tl" 
latter.  If  it  should  be  held  (and  we  will  tnke  it  iis  \f 
the  Supreme  Court  of  the  Unittd  States,  as  a  l)iii(lii'n 
authority,  had  so  decided  instead  of  an  internudinir- 
Court)  (hat  the  United  States  Courts  had  no  jurisdictinn 

loovcr  llieir  own  citizens  in  Bering  Sea  outside  of  the  tlu"  i 
mile  limit,  then,  is  it  a  legitimate  and  logical  aigntmiii 
that  (ireat  Britain  can  make  reclamation  for  a  citi/i  n 
of  the  United  States?  Suppose  it  had  turned  (nit.  |..i 
instance,  in  the  hearing  in  Victoria,  in  the  light  of  the  "  I  ,i 
Ninfa"  ca.'e,  that  the  claimant  Charles  Spring  as  a  niatlcr 
of  fact— and  your  Honors  were  out  there  to  invt^sti^Mic 
matters  of  fact— suppose  it  turned  out  that  Charles  Sin  in;; 
was  a  citizen  (if  the  United  States  born  here  and  doiin- 
ciled  here.     We  refer  to  the  schedule  submitted  at   I'.iiis 

2oand  the  findings  of  facts,  and  find  that  he  was  one  of  tlif 
persons  making  a  claim,  for  whom  Great  Britain  makes 
reclamation.  Would  it  then  bo  any  answer  to  this  i\t'- 
fens<;  of  ttie  United  States  to  say:  The  Supreme  Court  of 
the  United  States  has  held  that  their  couits  have  no  jiiiis 
diction  to  take  Charles  Spring's  property  in  Berinji  Sc  a 
outsiiie  uf  the  three-mile  limit?  Yonr  Honors  would  iii>t 
consider  for  one  moment  that  Charles  Spring  could  rccnvii 
against  the  United  States  Government  in  this  Intiiiia 
tional   Court,  invoking  the  protection  of  Great  Britain. 

30  Take  the  "  Washington"  case  under  the  Claims  Coiivtn 
tion  of  ls.^8.  (treat  Britain  had  a  law  forbidding  ccriain 
things  in  fishing  in  British  waters;  (ireat  Britain  linn 
claimed  exclusive  jurisdiction  over  the  Bay  of  Kundy, 
which  is  4.")  miles  by  7.5  miles  of  sea.  The  "  V*'a8hingtnn.'' 
under  a  certain  claim  of  privileges  as  an  American  vessil, 
entered  the  Bay  of  i'undy  and  proceeded  to  fish  in  contra 
vention  of  this  sovereignty  claim  of  Great  Brit.nin.  slu' 
was  seized  by  a  Brilish  cruiser,  condennied  by  a  Biili>li 
Court,  and  jurisdiction  asserted  on  the  ground  of  the  ex 

40 elusive  jurisdiction  of  Great  Britain  in  the  Bay  of  Fiimly 
throughout  the  length  and  l)readth  of  those  waters. 

The  Tribunal  held,  and  decided,  that  the  Bay  of  Kumly 
was  not  a  closed  sea— it  is  immaterial  on  wiiat  gronnd 
they  put  it.  They  held  that  (ireat  Britain  did  not  liavi- 
exclusive  jurisdiction  in  the  Bay  of  Fundy,  and  that  tiic 
Bay  of  Fundy  was  the  high  seas,  and  they  h)  awardrd 
They  did  not,  as  my  learned  fiiends  contend  heie,  cdii 
sider  the  intention  in  seizing  and  destroying  this  vcssi  I 
and  her  fishing  trip,  but  they  awarded  tiie  claimant    tln' 

50 value  of  ins  ship  which  liad  been  taken  from  liiin; 
awarded  him  the  damages  which  were  the  legitimate  and 
natural  consequences  of  the  act  of  seizure.  In  passiiifi. 
we  may  say  that  it  was  the  intention  of  Great  Britain  at 
that  time,  while  asserting  her  sovereignty  in  the  Hay  nl 
Fundy,  to  prevent  the  sch<»oner  Washington  from  lisliinj; 
in  the  Bay  (»f  Fundy.  That  was  what  (ireat  Britain 
seized  the  schooner  for,  and  iiiat  was  her  intention  in 
seizing  her.  But  no  one  ever  dreamed  that  because  that 
was  her  intention,  when  she  made  the  seizure  under  a 

6oclaim    of  jurisdiction  in  good   faith,  although  dis|)iited. 
that  it  would  affect  the  question  of  damages.     Howevei . 
passing  that  (|uestion,  taking  that  for  an  illustratioii 
suppose,  instead  of  ."n    American  citizen,  it  had  been  a 
British  civil  or  political  subject,  owing  temporary  or  |»ei 
manent  allegiance  to  Great   Britain,  who  had  Wn  tin 


«7H 

(Mr.  Dickiiisun's  Clusing  Aiguinoiit.) 

owner  of  the  "  Washington  "  in  the  Ba^'  of  Fundy  (the 
rlaini  of  Great  Britain  Iteing  to  exclusive  jurisdiction), 
md  this  suhject,  in  contravention  of  her  Majesty's  claim 
uf  soven-ignly  over  these  water  ,,  i»ad  done  t'nis  tiling  for 
which  he  and  the  ship  owned  hy  him  were  seized.  It 
liaving  been  decided  by  an  international  arhitiation— to 
wit.  the  Commission  of  1H.53,  which  had  abundant  power 

K  to  do  so— that  Great  Britain  had  not,  as  she  claimed, 
ixclusive  jurisdiction  of  the  Bay  of  Fundy,  now  sup- 
pose this  subject  wlio  owned  the  ''Washington" 
and  lost  her,  yes,  and  under  the  American  flag, 
had,  under  the  auspices  and  protection  of  the  Ameri- 
(.111  Government,  gone  before  Commissioners  on 
claims;  how  much  of  a  standing  would  he  have  had  in 
the  court?  ''  What,"  they  would  say,  "since  the  seizure 
tlie  British  rarlianient  itself,  or  the  British  Privy  Council 
M'lf,  in  accordance  with  a  decision  of  a  Tieaiy  Court. 

30 lias  decided  that  Grent  Britain  was  wrong,  and  that  it 
dill  not  lipve  jurisdiction  to  seize  even  a  Brilishowned 
ship  upon  tne  high  seas  in  the  Bay  of  Fundy."  Would 
tliat  make  the  case  of  the  American  Government  any 
stronger  to  recover  for  a  British  subject  damages  sufTered 
while  doing  an  act  in  derogation  of  (Jreat  Britain's  as- 
sertion of  sovereignty?  Is  the  citizen  to  decide?  Take  the 
ca.se  of  any  territory  in  dispute.  The  question  may  come 
lip  at  any  time  in  reff  ence  to  the  Alaskan  border,  as  it 
did  come  up  .11  the  case  of  the  Island  of  Sau  Juan.     Great 

3'.)  Britain  may  claim  jurisdiction  over  land.  We  will  say 
that  the  question  is  one  of  jurisdiction  over  land  instead 
of  over  sea.  Bear  in  mind  the  distinction,  however.  In 
this  case  it  was  the  sea,  which  I  will  come  to  discuss  when 
I  take  up  the  "La  Niufa"  case  in  another  connection. 
<  »ur  Government  claimed  exclusive  jurisdiction  over  the 
Mt'Hng  Sea,  and  Great  Britain  did  not  claim  exclusive 
jurisdiction  as  against  us,  but  she  claimed  only  common 
1  iglit.  But  take  the  case  of  land  in  dispute.  In  the  ex- 
••' utive  authority  of  the  Government  is  the  power  reposed 

4  tn  assert  the  sovereignty  of  the  United  States  in  interna- 
tional matters,  and  with  that  assertion  the  judiciary  has 
nothing  to  do.  Suppose  that  we  maintain  our  title  and 
jurisdiction  to  that  land.  Great  Britain,  (m  the  other 
liaud,  maintains  that  Her  Majesty  the  lj|ueen,  in  her 
lapacity  and  character  of  sovereign,  owns  it.  An  Ameri- 
can citizen  goes  upon  the  land  and  gets  some  rights  from 
(ii-cat  Britain.  He  takes  the  position  that  his  own  country 
i>  wrong,  and  he  maintains  the  British  side  of  the  case, 
and  in  so  maintaining  he  gets  damaged  in  some  way  at 

5" the  hands  of  our  Government.  Well,  the  (Mse  goes  to 
arbitration  as  to  who  does  own  the  land;  and  sunpose  it  is 
dicided  by  arbitratitm  that  the  land  was  actually  owned 
l>  (Jreat  Britain  in  accordance  with  the  ctmtention  of  the 
.\iuerican  citizen,  and  that  boundary  disjMite  is  thus  set- 
lliil.  Is  the  American  who  stood  up  against  the  a.ssertion 
lit  the  sovereignty  of  the  United  States  and  suffered  from 
it.  t(»  get  damages  against  the  United  States  under  (Jreat 
liiitain's  protection?  If  he  is  a  British  subject,  living 
there,  possibly;  if  an  American  citizen  living  anywhere, 

'x)||,.v,.|.;  if  a  British  subject  remaining  aud  continuing  d-.u'- 
in;;  his  arts,  and  subsequently,  legally  domiciletl  in  con- 
"  dcd  American  territory,  never. 


III 


S74 


.ff: 


.t; 


(Mr.  Dii-kinson's  Closing  Argumi'iit. ) 

The  Commissioner  on  the  p.-iit  of  the  United  States: - 
Mr.  Dickinson,  in  a  c.ise  of  that  Koit  i  suppose  yon  will 
admit  that  Great  Britain  might  protect  tiiat  Aint'iicui 
citizen  on  this  soil  which  proved  to  he  hers,  even  to  ilm 
extent  of  war,  could  she  not?  Now.  this  aihitratimi  Is 
supposed  to  take  the  place  of  war,  and  why  do  they  imt 
go  on  parallel  lines? 

lo  Mr.  Dickinson:—  It  does  not  go  on  paiallel  lines,  hecuis,. 
war  involves  (piestions  of  national  dignity,  and  a  cl.iiins 
convention  never  doi's;  hut  we  will  jufpose  that  instead  uf 
referring  to  arhitration  and  1 1  will  take  your  Ihinoi's 
analogy)  we  had  snhmitted  to  the  arhitramentof  war;  and 
suppose  the  .American  citizen  upon  that  territory  takes  up 
arms  under  this  arbitrament  of  war  against  his  I'diiii- 
try,  he  would  he  shot  or  hanged  as  a  traitor,  would  ho 
not? 
The  Connnissioner  on   the  part  of  the  United  States: - 

20 This  case  does  not  involve  his  taking  up  arms. 

Mr.  Dickinson:— But  I   carry    it  to   its   logical  coik  hi 
sion,  and  I  submit  that,  instead  of  going  to  war  we  j^o  in 
friendly  arbitration  on  private  claims,  can  (ireat  Hrit  lin 
protect  the  An)ericau  citizen  until  he  become  her  ciii/cii 
as  against  the  United  States? 

The  Connnissioner  on  the  part  of  the  United  States:  ! 
do  not  think  you  (piite  iniderstand  me. 

Mr.  Dickinson:-  I  n)ean  for  acts  committed  pendin;;  a 
settlement  of  the  (piestion.     If  (ireat  Britain  has  uiilini- 

3oited  and  undoubted  and  exclusive  jurisdiction  where  tins 
American  citizen  becomes  domiciled,  she  can  piotect  that 
citizen,  protect  his  jHirson  absolutely  and  entirely  williin 
her  own  jurisdiction,  and  protect  him  by  making  reciani- 
ation  for  his  injuries  before  a  claims  convention  aj;;\ Inst 
every  other  nation  in  the  world  except  the  nation  of  ids 
original  allegiance  in  the  case  of  his  defying  the  sovi  r- 
eigntyof  the  nation  of  liis  original  allegiance;  that  is  tin- 
exception. 

The  Commissioner  on  the  part  of  the  United  States:    1 

4odo  not  think  you  quite  understand  my  proposition;  siip 
pose  a  lot  of  American  citizens  settled  in  New  Hnms 
wiek,  and  the  United  States  of  America  insisted  on  gi'ln^ 
over  there,  arresting  them,  and  taking  them  into  Maine. 
and  upon  a  remonstrance  by  (ireat  Britain,  still  insisti d 
on  doing  it,  that  w»»uld,  1  suppose,  be  what  the  inter- 
national writers  would  say  would  lay  a  just  cause  lor 
war. 

Mr.  Dickinson: — That  is  an  act  of  war,  your  Honor,  nr 
an  act  involving  national  honor  and  dignity. 

50  The  Commissioner  on  the  part  of  the  United  States.  - 
Not  necessarily  an  act  of  war. 

Mr.  Dickinson :— To  invade  the  territory  of  anollur 
sovereignty? 

The  Commissioner  on  the  part  of  the  United  States:  - 
Not  necessarily,  but  no  matter  about  that;  only  Ameiicm 
citizens  are  concerned.  The  international  writers  wonid 
undoubtedly  say  that  that  would  afford  Great  Britain  a  ju-t 
cause  of  war,  because  her  teriitory  had  been  invadi  d. 
Now,  instead  of  submitting  the  question  to  the  arliitra- 

6oment  of  war,  she  submits  it  to  the  arbitrament  ol  a 
commission.  Why  is  not  the  question  exactly  the  same 
before  the  comnjission?  When  you  put  in  the  element  of 
American  citizens  taking  up  arms,  you  put  iuan  elein>  iit 
which  I  had  not  supposed. 


,.i  •■,■,         I 


t.) 

ted  Stato><  - 
ose  you  will 
at  Ain»'ii(Mii 
i,  even  tn  liio 
aibitratimi  is 
<lo  tliev  ii.it 

ines.  bec.iiHt! 
and  a  rliuins 
lat  ii)ste;iil  iif 
•our  IluiKu's 
tof  war;  .iiiil 
lory  takes  ii|i 
xat  Ills  ('(iiiii 
tor,  woulii  liu 

ted  States:  - 

s. 

gical  colli  III 

war  we  ^o  Id 

treat  Hril  lin 

le  her  ciii/cii 


ted  Stat. 


1 


ed  j>en<liii;;  a 
n  has  iiiiliin- 
M\  where  this 
1  piotect  tliat 
itirely  williii) 
»kilig  reilain- 
■iition  against 
nation  of  liis 
ng  tlie  sovi  I- 
:>;  that  is  the 

ed  States:  1 
josition;  sup 

New  Hriiiis 
sted  on  p'in^' 
into  Maine, 

still  insisted 
at  the  iiitir- 
list  cause  ler 

)ur  Honor,  i>v 

ted  States, 

r  of    anothii 

ted  States:- 
nly  American 
tvriters  woiiiil 

Britain  a  ju-l 
leen  invadiil. 
0  the  arliiln 
;ranient  ol   a 

ctly  the  same 

le  elenieiil  ef 
ill  an  element 


S7/5 

(Mr.  Dickinson's  Closing  Argument.) 

Mr.  Dickinson:— That  is  your  Honor's  own  illustration; 
Mislead  of  the  arhitrameiit  of  war  we  go  to  the  abitra- 
iiient  of  peace,  a  commission  on  private  claims,  and  your 
Honor's  illustration  misses  the  chief  point  here  when  it 
,  iiiits  to  premise  that  the  invasion  «)f  New  Brunswick  is 
not  made  under  the  assertion  of  a  claim  to  the  territory 
-iipported  hy  all  the  sovereign  authority  of  the  govern- 

10  nient. 

The  Commissioner  on  the  part  of  the  United  States:— 
Now  why  is  not  the  <piestion  to  be  solved  in  one  case  ex- 
actly the  same  as  in  the  other? 

Mr.  Dickinson:— Because,  in  the  first  place,  that  is  an 
Mivasion  of  the  soverei>:nty  of  tSreat  Britain,  in  one  case, 
;ind  that  is  a  national  question.  Would  it  not  he  a  wanton 
aet  on  the  part<>f  the  United  States  to  invade  New  Bruns- 
wick without  any  national  a-iu-rtiou  of  jurisdiction — with- 
out any  dispute  as  to  territory^     It  makes  all  the  differ- 

2oeiice  in  the  world.  Take,  for  instance,  the  McLeod  case 
ill  1!H87.  (iieat  Britain  came  over  into  the  United  States 
and  took  the  Caroline,  or  McLeod  came  ovor  into  the 
United  States  by  Her  Majesty's  authority  and  took  the 
Caroline— took  a  ship  flying  the  American  flag-Great 
Britain  asserting  the  right  to  enter  the  United  States  for 
self- protect  ion  against  an  armed  insuirection  and  its 
aiders  and  abettors  t»n  the  American  side.  Now  it  at 
unco  became  a  question  between  the  nations  -this  in- 
vasion  of   the   territory— and   it   turned   out   that  when 

3o(ireat  Britain  asserted— bear  in  mind  the  analogy  is  por- 
t'ect  to  the  case  your  honor  puts,  — and  when  Mcl^ieod  came 
and  took  the  Caroline  by  the  authority  of  Great  Britain, 
liis  act  became  the  act  of  the  ,sovereignty  of  (Jreat  Britain, 
and  McLeod,  the  individual,  could  not  be  touched  because 
it  was  the  act  of  the  sovereign,  and  it  immediately  led  to 
the  adjiistnie'it  of  the  matter  between  the  sovereignties 
in  an  international  way.  But  McLeod  wj^"^.  im|)risone<l  in 
the  United  States  for  that  act,  and  in  his  case  put  before 
the  Commission  of    18.~)8,   on    reclamation  against  the 

4oriiited  States  by  Great  Britain  for  McLeo«l,  for  damages 
for  bis  arrest  an«l  imprisonment,  the  answer  was  that,  be- 
cause it  was  a  <'onflict  between  the  sovereignties,  that  in- 
vasion of  the  territory  of  one  nation,  it  was  not  a  case 
where  a  reclamation  could  l)e  made  of  one  government 
against  the  otiier  for  private  claims.  That  is  one  complete 
answer  to  your  Honor's  proposition. 

There  was  a  treaty  providing  for  the  reclamation  of 
[leisons  under  Great  Britain's  protection  in  IH.MJ  like  this 
one.     Suppose  as  in  the  case  put  by  your  Honor  there  was 

josiiih  an  invasion  of  Great  Britain  l»y  the  United  States. 
K  it  a  (ippo-able  case  that  a  convention  for  reclamation 
liv  persons  would  be  entered  into?  The  invasion  of  the 
dij^iiity  of  the  nation  would  be  asserted  by  Great  Britain 

at  once  in  that  case 

The  Commissioner  on  the  part  of  the  United  States:  — 
Mr.  Beicjue  puts  it  that  this  was  an  invasion  of  the  terri- 
toi  V  of  Great  Britain. 

Mr.  Dickinson:  — Not  at  all;  he  could  not  rightly  put  it 
in  that  way  because  she  did  not  claim  exclusive  jurisdic- 

^10 1  ion  here. 

The  Commissioner  on  the  part  of  tlie  United  States:— 1 
mean  that  seizing  the  vessel  was  the  same  in  Knglish  law 
as  invading  the  soil. 

Mr.  Dickinson:— If  it  is  a  British  vessel,  yes;  but  this  is 
I"  i^ging  the  question. 


M 


U 


'*»! 


s-t\ 


<v 
tun 
■al 


(Mr.  Dickinson's  Closing  Argimieiit.t 

The  C'omniissioiior  on  the  part  of  tlie  United  Statt- 
Ho  argues  tiiat  it  is;  hut  whether  it  is  or  not  is  an<it> 
matter. 

Mr.  I)iekinson:-Can  we  take  an  American  owmd  \ 
sel  on  the  liigh  seas,  is  the  <|nestion. 

The  Commissioner  on  the  part  of  the  United  Stafc- 
d'd  not  intend  to  involve  yon  in  that  question. 

lo  Mr.  Dickinson:— Very  well; to  that  (|uestion  your  Mi ii 
will  come.  The  invasion  of  undispnted  British  soil  ni< 
taking  from  British  .soil  and  the  reparat  ion  heconies  ii.it  i( 
at  once.  There  are  plenty  of  cases  in  the  hooks  huppm  t  inf; 
this  contention.  The  matter  as  stated  in  the  Imoks  ut  i||c 
rights  of  Ihe  citizen,  he  lie  British  oj  American,  Itecomc  it 
once  snbordinatH  to  the  great  national  question  of  aUii mi.  ij 
dignity  and  invasion  of  territory.  The  nations  settjf  ii; 
they  do  Udt  refer  it  to  conventions  to  deci«le  what  pei~..;,s 
may  get  in  money.     Theie  was   never  a  case  known  ..f 

20 the  reference  of  suili  a  matter  as  that  to  a  commissinn  i>ii 
claims  between  any  nations.  It  is  settled  at  once— repai;i. 
tion.  apology,  payment— anything  in  vi(dati<in  of  iln- 
rights  of  nations,  like  an  invasion  of  territory,  is  setll.il 
at  once  between  them  and  the  rights  of  individuals  ari  ,it 
once  subordinated.  When  it  comes  to  that  question,  wl' 
shall  show  that  even  if  the  decision  of  a  tribunal  of  inii|. 
national  arbitrators  could  have  a  retroactive  effect  .uid 
make  it  lawful  for  a  United  8tates  citizen  to  have  donr  a 
thing  which  was  unlawful  when  done,  that  the  nation.ilitv 

30 of  a  vessel  on  the  high  seas  follows  ownership. 

The  Commissioner  on  the  part  of  the  United  States:  I 
understand  your  proposition  there.  I  merely  intendfij  t.i 
state  it  hypothetically  from  Mr.  Beiqiie's  position,  tli.it 
was  all. 

Mr.  Dickinson:— We  are  coming  to  this  again  -ihr 
right  of  protecting  an  American  citizen  for  violatin;;- 
denying-  the  jurisdiction  of  his  sovereignty,  asserted  liy 
its  "constitutional  authority  as  the  sovereign  powci  t.i 
assert    sovereignty.      It   is   no    wanton    act    here  as   in 

40  the  case  of  an  invasion,  because  in  the  treaty  of  I'aiis 
your  Honors  will  find  recognized  a  dispute  in  good  fnitli 
on  both  sides,  and  it  was  made  interchangeably;  that  if 
it  should  turn  out  on  the  investigation  to  bo  held  that  tin.' 
United  States  was  right  — and  Great  Britain  always  ((iii- 
ceded  the  color  of  right  thioughout— always  concediij 
the  good  faith  of  the  United  Slates— if  the  arbitiatois 
should  decide  the  other  way.  Great  Britain  should  jtay. 
They  t^tood  on  equal  footing  as  to  their  respective  claims 
of  jurisdiction  and  the  results  of  the  arbitration;   liotli 

50 admitted  that  the  decision  might  be  the  other  way.  ami 
that  Great  Britain  might  bo  held  responsible  in  dama;;is 
for  the  invasion  of  American  rights;  neither  was  inoiu 
mder  color  of  right  than  the  other;  both  conceded  tliit 
"  You  may  Iw  right.  Great  Britain," said  the  United  Stati> 
und  (Jreat  Britain  throughout  .said,  "  Vou  may  be  right, 
and  if  you  are  right  we  will  pay."  It  was  not  a  casi'  of 
wanton  invasion  at  all;  they  were  contending  as  to  wliii  li 
was  right,  just  as  two  parties  in  an  ejectment  suit  may 
contend.     Let  me  illustrate,  your  Honor;  I  am  getting  a 

6olittl !  in  advance  from  your  Honor's  suggestion,  but  I  un 
glad  to  do  it. 

The  Commissioner  on  the  part  of  the  United  States;    it 
was  only  a  question  brought  out  by  your  illustration,  Mr 
Dickinson. 
Mr.  Dickinson:- I  quite  imderstand.     I  prefer  to  sp'' ik 


877 

(Mr   DickiiisoirK  C'lusiiig  Ai^unient.) 

io  what  may  be  in  your  Honni's  mind  as  we  ^o  along.  I 
-hall  give  your  Honors  an  illustration  in  the  course  of  the 
.irf;nment  of  the  precise  point  you  make  in  replying  to  Mr. 
Ilcique's  position.  I  read  on  llie  question  of  douht,  and  as 
litaring  somewhat  uj^n  our  friend's  position  as  to  the  ef- 
fect of  the  British  H.ig,  the  following  from  the  Maiquis  of 
S;di>l)ury  to  Sir  Julian  I'auncefote.  iu  the  Appendix  to 
10 •  use  of  Great  Britain,  American   Hepnnt,  volume  *>,  page 

"  1  have  received  your  diHpatch  of  the  24th  ultimo." 

This  is  dated  August  1'2.  ls!»|,  and  they  are  still  negoti- 
.iiing  the  .Arbitration  Treaty  signed  in  February.  isi>2: 

•  The  modifli-ation  of  the  7th  Article  of  the  Arbitration  AKrecment 
■'  iiropoHeil  by  the  President  of  the  United  HtateH,  and  ooninninieated 
■  111  Mr.  Wharton's  note  to  yoii  of  the  2'M  ultimo.  eouiaiuH  the  follow- 
•'  in(t  words; 
20  "  The  (Jovernmeut  of  the  United  States  having  presented  on  its  own 
"  liehnlf,  as  well  as  of  the  lessees  of  the  privilege  of  takiuK  seals  on  the 
"  Priliyloft'  Islands,  claims  for  ooniiiensation  by  the  reason  of  the  kill- 
"  inn  of  seals  in  Uehring's  Sea  l>y  i>ersons  aetitg  under  the  protection 
■■  iif  the  British  flag,  the  Arbitrators  shall  consider  and  decide  u|ion 
'•  MU'h  claims." 


s    again  -tlic 


These  words  are  quoted  from  the  then  proposed  draft, 
as  your  Honors  will  see,  of  the  treaty  providing  for  the 
Viiv  Seal  Arbitration  at  I'aris;  and  it  is  proposed  to  fix  the 
li.iliilily  of  Great  Britain  to  the  United  States  in  case  the 
joarliitration  should  decide  the  other  way,  that  is,  in  favor 
(if  the  American  contention.     I  proceed: 

"  These  words  involve  the  doctrine  that  Her  Majesty's  Government 
••  arc  liable  to  make  g<pod  losses  resulting  from  the  wrongful  action  of 
"  piTNous  sailing  outside  their  jurisdiction  under  the  British  flag. 

•  It  would  Vie  impoNKible  for  Her  Mojesty's  Oovernmeut  to  accept 
'•  •<iicli  a  doctrine  even  at  the  bands  of  an  Arbitrator.  Nor  can  they 
"  admit  that,  bv  hav ing  asserted  di]ilomaticallv  the  right  of  any  |)(>rson8 
"tojii  that  which  an  Arbitrator  sub»e(|uently  decides  sucli  persona 
■  ciuiiiot  do,  they  are  made  liable  in  damages.' 
•  This  7th  Article,  which  deals  with  the  question  of  compensation, 
i-  tlierefore  likely  to  give  occasion  for  lengthy  negotiations,  and  the 
i(iiestion  arises  whether  it  would  not  be  b»>tter,  if  the  Oovernmeut  of 
tlic  I'nited  States  will  agree  to  such  a  course,  to  sign  the  other  sis 
articles  as  to  which  an  agreement  has  been  arrived  at. 'iliI  to  pro- 
cc'i'd  with  the  arbitration,  leaving  the  7th  Article  to  be  tri  i.  d  -epa- 
latelv." 


40, 


50, 


Sir  Julian  Pauncefote  to  Mr.  Wharton,  page  S4!»,  same 
Vdliime,  discussing  this  same  matter: 

•  Mv  Government  are  unable  to  accept  the  form  of  clause  proposed 
"  I'v  t lie  President,  because  it  appears  to  them,  taken  in  connection 
with  your  note  of  the  23rd  ultimo,  to  imply  an  adniissiou  on  their 
part  of  a  doctrine  respecting  the  liability  of  Oovernmeuts  for  the  acts 
nf  their  nationals  or  other  persons  sailing  under  their  flagon  the  high 
^I'as,  which  is  not  warranted  by  international  law,  and  to  which  tiiey 
cannot  subscrilje." 


6o 


Page  880,  Sir  Julian  Pauncefote  to  Mr.  Wharton: 

"  It  implies  an  admission  of  a  doctrine  respecting  the  liability  of 
'  (i'lvernments  for  the  acts  of  their  nationals,  or  other  iiersous  sailing 
'  under  their  flag,  on  the  high  seas,  for  which  there  is  no  warrant  in 
'  I  lie  law  of  nations.     Thus  it  contains  the  following  words: 

'  •  '  The  Oovernment  of  the  United  States  having  presented  on  its  own 
'  Ix'linlf,  as  well  as  of  the  lessees  of  the  privilege  of  taking  seal'  on 
'  I  lie  Pribylofflslands,  claims  for  compensation  by  reason  of  the  lill- 
'  inj;  of  seals  in  Behring's  Sea  l)y  persons  acting  under  the  protection 
'  "i  the  British  flag,  the  Arbitrators  shall  consider  and  decide  upon 
'  sn.  h  claims,'  &c.— quoting  from  the  clause. 

" '['heso  words  involve  the  proposition  that  Her  Majesty's  Oovern- 
'  iiii'iit  are  liable  to  make  good  losses  resulting  from  the  wrongful 


1  ' 


I 


1 


srs 


:i 


!i! 


(Mr.  Dickinson's  Closing;  ArKiiiii*  lit.  i 

'*  aotion  of  ixTHonn  nailiug  nutHidr  thoir  jurimlirlinn  uii<li>r  tin-  Itnii  ii 
"  flax. 

"  Hor  MojpHly'M  Oororniiioiit   coulil   not  Bcocpt   hiicIi   h   ilnctrjij... 
.•  «     •     »     'f|„,  a|i|i|i)<ati<)n  <if  iiitornatioiiul  luw  to  tlio><<-  fiu'tH  wnn'.l 
"  be  left  n«  a  nmltcr  for  fiirtlior  uPKotintioii  iiftt-r  tln\v  hIiuM  linvi'  1,.    ,, 
"  UHfortiiiucil,  and  mixlit  l><>  Hul)H<>i|n<>ntlv  rcffrri'il  to  the  Arliitrui,  , 
"  in  wliole  or  in  part,  if  the  two  KovvrumvutH  hIic  iilil  axrvc-  to  iln  s,, 


■?y,:,''  ■ 


^^w 


to     On  Miiv  7.   \x\^-2,  du'  n«>^iiti!itions  ( iiliiiinati'*]  in  mii 
Hcatioii  oC  tlic  trciity,  and  I   lend  this  not   fur  the  i  in 
poHe    of  construing,    hut   as    an  aiitlioiitativc  Ktalmn  ni 
of    n    iiid|iosition   of   iiitfiiiational    law.       Voiii-    ]|nn<  is 
will    licai'   ill    mind  tli'it  tliis   coii-tHpondriK-c    was   titiir 
the  t-ei/.nios.   and  hear   in    mind,  too,  that  on  the  i|ii>  ■ 
tioii  of  tia^,  if  it   whcit'held  iiiuhT  the  arhitration  tliii 
tilt'  United  Slatis  had  e.xcliisive  jiiiisdiclion  on   the  ph  |i 
erty  lijjht,  or  otherwise  in  l^eriiin  Sea,  any  vessel  IImh^ 
the  Htitish  tla^<(iiild  liave  heeii  taken,  and  if  it  lesi^lMl, 

20('oiild  he  (oikU'Iiiih  (I  foi  resisting;  and  the<|neslion  Iln  ic 
fore  ,iro>-e,  to  coiiclnde  where  (treat  Hiitaiii  was  coihiiin 
out  in  case  the  decision  oi  tlu^  arhitiators  was  the  dtlir 
way,  if  tlie  doctrine  was  maintained  that  the  (lag  over 
the  ship  was  a  conclusive  guarantee  of  its  nationality  I  r 
which  the  nation  would  he  respoiisihle. 

The  Commissioner  on  the  part  of  tlie  Tnited  States;  I 
did  not  intend  to  hasten  you  into  adiscn.ssion  of  tli.it  ijiir^ 
tioii,  Mr.  Dickinson.  I  was  simply  following  out  ymn  il 
lustration  of  a  controversy  on  laiui;  hut  1   would   he  viiy 

30Klad  to  hear  you  through  on  tliis,  of  course. 

Mr  Dickinson:-  Of  course  it  is  uow  contended,  n<.|  -i, 
vigorously  in  the  oral  nrgiiinent  as  in  the  origin.d  |iriiili  il 
argument,  hut  still  contended  with  gic-at  vigor  on  tjic 
question  of  damages,  that  the  act  of  Uie  United  St.ilcs 
was  wanton,  willful  and  without  color  of  right,  and  ll  at 
the  delay  from  lss«»  until  the  present  time,  for  ••elcv.n 
long  years  "  has  heen  owing  to  the  position  of  the  liiiltd 
States  in  not  i-esponding  in  damages  earher;  and,  rurtlii  r. 
that  the  United  States  intended  to  prevent  the  sc-diiij;  <>( 

4oBiitisii  fielders,  as  well  as  its  own,  in  Bering  Sea;  and 
you  see  that  here  too  we  come  upon  the  ({uestion  of  intiii 
lion  as  urged  hy  Her  Majesty's  counsel  as  entitling  tiicm 
to  the  lule  of  aggravattnl,  vindictive  cr  punitory  (Iain- 
ages,  turning  on  the  c|Uestioii  of  good  c  r  evil  inteiilion. 
Here  is  their  own  statement  in  1S!»2  after  all  the  seiznns 
involved  in  this  case  had  heen  made.  T.'iey  negoti.ittil 
and  came  to  this  c;onolusion,  and  I  am  roac'ing  frcnii  tiit> 
treaty  ratificnl  May  7,  iMi'i,  generally  called  the  Treaty  of 
Washington,  of  FVhruary  tii»,  lK<.»ii.  resulting  in  the  award 

50 and  tindings  of  fact  which  are  developed  in  this  case: 

"  Her  MajcHty,  tlio  (jneen  of  tlio  United  Kinf(dom  of  (Irwit  Hiiiiiiii 
"and  Irt'laud,  and  tlie  United  Htates  of  America,  l>eiuK  dcHiroii^  tu 
"  provide  for  au  aniienlile  Hettlenient  of  tlie  queHtiouH  wliicii  liuvo 
•'arisen  l>etween  tlieir  reHpeetive  KovernnieutH  vonrerniiiM:  tlir  juii''- 
"  dictlonal  ritilitH  of  tlie  United  States  in  tlie  waters  of  Heln-iii«  Siu, 
"  and  ooneeruin^  also  tlieprc>servationof  the  fur  seal  in,  or  lialiitiinllv 
•'  resortiun  to  tlie  said  sea,  and  tlio  ri^litH  of  the  eitizeus  and  sulijr.ls 
•'  of  either  country  as  re^fards  the  taking  of  fur  seal  in,  or  liiiliiliiall.v 
"  resorting  to  the  said  waters,  have  resolved  to  Hithniit  to  arliiliiiti'iii 

the  i|ue8tion8  involved." 


60 


The  Commissioner  on  the  |)art  of  the  United  Static:  - 
Had  this  reference  which  you  have  there  given  the  original 
draft,  the  Article  1'. 

Mr.  Dickinson:  — Y'ea,  I  read  it.  Now,  this  claii-i'. 
Article  8,  was  suhstituted  for  it: 


879 


i^  t 


(U>r  tlif  Krii;  'i 


10 


(Mr.  Dickinson's  CloHJii);  Ai>;iinit>iit.) 

■  The  IiIrIi  rout  rafting  iiitrtirH  ImviiiK  fouiitl  IIh'iiiik'Ivoh  tinnMc  to 
'•  iigrw)  upon  B  rcftirciH'o  wliicli  nlmll  iii<-liiilftli)-  i|iit<Hti<iii  «////-•  Imliiliiii 

'•  ,'f  II  I'll  for  //('•  iiiJiifiiH  iillriiiil  III  linri'  hfin  HUslnimil  Ai/  Ihr  nllnf.  III'  III/  ilD 
"iliiiiii;  ill  I'ouiirrtioii  with  tli**  cliiiiiiH  proHoiitpil  iiinl  iiritfti  )i,v  it  ; 
"  Mini  lH>iii)(H<)licit<>uH  tliitt  iliin  niilmri/iiiiiii'  i/iiin>iiiii  hIiiiiiIiI  not  iiiti'rrupt 
■•  .ir  longer  ilvlsy  th*'  HuliniiHHion  iiml  iti'tcrininntinn  of  tlx'  niiiimiupH- 
"  liouM,  do  iiffn'o  that  t-ithiT  iiiiiv  Hiihniit  to  tho  urliitnitorH  nnv  (iiien- 
"  iiiin  of  fai-t  involvt'il  in  Niiiil  chtiniH,  ami  iiHk  for  ii  tIntlinK  liicrcon, 

"     hi    f/lft'Ktillll    I*/"  f/tl'  liilfiifltl/  Itf  rithll'  iJliri-I'llHlriif     lljHill     t/li      flllU  f'llHIIlt  hi  hti 
Hlthjlt'l  lif/iirthri'  tti'i/filiiltiliii,** 


That  Wii8  tlu'  position  of  llio  two  novcriinK'nts  wiicn 
lli.'V  fntt'ii'd  npon  tin*  iirltitnition,  tliiit  it  was  as  likely, 
ill  th»'«'(juai  position  in  whicli  they  stood,  that  an  aihitra- 
li'iii  as  a  coiii't  lietween  disputtnits  would  lind  one  way  as 
till'  other,  and  one  nii^lit  have  to  pay  dania^^es,  as  now 

II ther  has  to  pay.  in  aaordan'e  with  the  jnd);inent. 

And  tht>  delay  in  assessing  any  anioinit  nn  which  payment 
(i.iild  he  niadeoccuned  thi-ou(;h  the  faiinre  of  the  nation-, 
,iiid  especially  (iieat  Hritain.  to  agree  njion  the  clauses  to 

-"Miiiniit  us  totiie  matter  in  the  treaty  involving  immediate 
ilii'ision  as  to  the  amount  of  damages  (ireat  Mritain  might 
li.ive  to  pay.  So  thev  waived  the  (piestion  then.  My  e.\- 
]ni -w  terms  th«'y  saiJ,  we  will  not  take  this  up.  It  is  a 
iiii'i-e  subordinate  ipiestion.  And  in  accordance  with 
tlif  invitation  of  (Ireat  Britain,  as  shown  hy  the  cor- 
II  •'piindence.  the  matter  of  liahility  and  payment  earlier 
to  follow  the  finding  of  tin*  arhitration  was  left  nut.  And 
tli.it  is  the  reason  of  the  delay  con)plaincd  of  hy  counsel. 
Vour  Honors  will  see  that  it  was  not  considered  an  in- 

^^viision— noi  a  question  of  wantonness  and  intent  to  do  in- 
jiiiy.  F>en  the  (juoslion  of  liahility  at  all,  was  put  aside 
until  the  jjreat  disnnt  >  as  to  whether  the  I'nited  States 
h.id  exclusive  jiiristliction,  or  jurisdiction  in  common  with 
(iirat  Britain  and  other  nations,  should  first  he  decided. 
It  is  like  ^he  illustration  that  I  have  not  carried  out  hut 
li.ive  refe>  id  to  once  or  twice.  Suppose  an  ordinary  ac- 
•  jiiii  of  ejectment;  around  this  might  he  hung  all  the 
nilis  of  damage  incident  to  this  hearing.  ( )ne  man  claims 
)'\<lusive title  and  another  man  claims  a  right  in  common 

"^^  with  him  to  a  piece  of  land.  Ejectment  is  brought  against 
the  party  in  possession,  who  has  excluded  his  tenant  in 
(iiiiiinon.  He  has  excluded  his  tenant  in  common  who, 
wliiii  he  comes  upon  the  pro|»erty  in  defiance  of  the  claim 
(if  title  of  thoi)arty  in  possession,  is  thrown  off,  and  he  is 
pu'vented  from  obtaining  profits,  when  he  is  thrown  off; 
till'  "  intention,"  of  course,  is  to  keep  him  from  that  prop- 
erly and  to  prevent  his  gaining  from  it,  and  he  goes  on 
ami  prosecutes  his  jiction  of  ejectment,  and  when  it  turns 
(Mil,  on  a  fair  controversy--on  examination  of  the  muni- 

"'^iiii'iits  of  title— that  the  parly  in  possession  ought  to  have 
iidiiiilted  this  man  t«»  a  connnon  right  with  him  in  the 
jiin|ierty,  the  man  in  possession  who  has  intentionally 
Ki  pt  his  tenant  in  connnon  out,  is  not  held  as  a  wanton 
tiopasser,  but  he  is  held  to  respond  for  the  proportion  of 
till'  lair  rental  value  of  the  property  of  which  he  has  de- 
prived his  tenant  in  common,  who  finally  prevails.  But 
il  ilieyenter  into  arbitration,  and  say,  Well,  we  do  not 
kiiowhow  this  is,  we  will   have  the  (piestion  of  title  de- 

^(•i<l((l,  there  can  be  still  less  question  (jf  evil  intent  or 
\\  iiitunness. 

My  friends  need  not  have  struggled  to  show  evidence  of 
th  •  intent  of  the  United  States;  every  one  is  held  to  in- 
ti ml  the  ordinary  and  necessary  consequences  of  his  own 
acts.    Great  Britain  intended  to  prevent  the  "Washington" 


I  ;• 


IM 


II' 


T 


KM» 


I    ). 


w. 


(Mr.  DickiiiHon's  ClosiiiK  AiKiinuMit.) 

from  opfratioiiH  in  tlio  May  of  Finidy,  iiiul  tlic  Tin  ,,\ 
Stuti's  iiit(>ii)l(><l  to  imu-i'iit  tlif'ir  ritiz«'ns,  and  ev<'iv  niif 
else,  without  diHciiniination.  rroni  stvilin^  in  tli<>  lii'i:ii^ 
Hea.  when  she  niado  the  sL'i/,ur«'K  in  Reiin^  Sea.  ^  ,iii 
n»'rd  not  an  into  tho  coin'spondonce  to  show  tli»>  int.  nt. 
But  what  kind  of  intLMit^  Has  it  any  of  th«>  (>vil  flcmt ntn 
in  it  which  shonhi  h«*conHidi'i(>d  in  the  matter  of  (lain;i;/i's> 

lo  And  \H  it  |)ossilil(>  tliat  I'liiler  Huch  (.ircnmHtanc.'H  it  (mu  lie 
put  on  a  hnel  with  an  invasion  of  territory,  like  that  ^u^r. 
gestedil  An  invasion  of  New  Hrnnswick?  In  the  iiuuirr 
of  dispute  <ana  citizen  of  the  United  Stales  lake  ilic 
^roinid  that  I)i8  government  is  wrong  -  against  the  cuiiii 
tut(>d  authorities— and  can  he  chiim  (himages  het'dh  a 
trihunal  of  international  arhitraiion,  pa.ssing  U|miii  iId' 
title -can  he  claim  damages  against  tiie  United  SlaWs 
thiough  a  foieign  potentate  or  State,  if  the  trihunal  df 
arhitration  on  the  great  ditliculty  hetween  nations  >|ial| 

30  finally  hold  that  the  other  .ountry  is  riglit  on  such  a  ijih  s 
tion?     Impossible. 

Hesuming  now  the  subject  of  allegiance,  Mr.  Hei(|ii... 
in  his  learned  argunuMit,  asked  me  to  reconcile  the>i'  i  wu 
.statements,  one  at  i)age  TiIJ  and  the  other  at  page  Itinruiir 
argument.  At  page  l(>  I  stated  the  following,  and  I  lie- 
lieve  counsel  for  Her  Majesty  find  no  ilifticulty  in  timlin;; 


30, 


40.. 


"  Thf  right  of  tbe  nation  to  protoc-t  a  douiiciloil  porHou,  even  in  liini' 
of  war,  nmcli  It'HM  in  tinio  of  iiciicc,  Iioh  novor  bi'cn  UHHcrtt'il  in  I'avcir 
of  HUfli  )i<>rHou  AH  aKHiUHt  IiIh  nation  of  citiMMiHlii])  for  tlic  cdnNr- 
(|uen('<'H  of  liiH  violation  of  tlio  law  of  liiH  rouutry  in  tinut  of  iiincr. 
or  liix  ]ioHitivi>  violation  of  Iuh  alh'Kianct'  in  time  of  war. 
"  Tlic  maintonanco  of  tlie  riglitH  of  domicilo  in  t)i<<  liiHtory  of  Intir- 
uational  Law,  aw  will  lit!  m'on,  kIiowh; 

"(1.)  Frerjucnt  asHj'rtions  of  prottu'tion  in  tinio  of  poaci-  ii^tainst 
all  other  uationH  excopt  the  nation  of  oriKiual  alleKianco;  and  in  the 
applifahle  prinei))leH  laid  down  Ity  the  authoritioH  thin  exi'i'|iti(in 
will  alwavH  lie  found  in  ternix. 

"(2.)  In  war  a  perNon  domiciled  in  a  neutral  country  will  lie  |iici- 
tected  in  hin  property  and  hin  perHon,  even  ikH  iiKaiuHt  liiH  own  Ixili).'- 
erent  country,  always  jirovided  tliat  ho  ImH  not  violated  the  law  df  liis 
oriKiual  alluKiouce  and  has  not  cnKaged  in  any  hostile  act  iipi<iist 
his  country.  In  other  words,  to  be  ]irote<-ted  liy  the  (ioverniiicnt  df 
the  neutral  in  such  conditions,  it  must  appear  that  he  liiis  main- 
tained the  status  of  the  government  of  his  domicile  as  to  Ilcntl'lll' 
itv.•• 


If  mv  friend  wanted  any  more  emphatic  distinction  lie 
tween  the  statements  at  these  two   pages,    he   had  hut  lo 
turn  the  leaf  to  page  15  and  note  the  premise,  from  wiiji  h 
,Q the  conclusion  read  at   page    1<»   was  drawn.     This  is  tlic 
premise: 

"  A  citizen  of  the  United  .States,  wherever  resident  or  doiiiiciled, 
"  until  he  lieeomes  naturalized  in  Great  Britain,  is  still  boun<l  to  liis 
"  original  allegiance  to  the  United  Ktates  in  ros|>ect  of — 

"  {(I.)  Their  assertion  of  jurisdiction  and  sovereignty  over  torritcuy 
"  or  property. 

"  (/(.)  All  municipal  laws  having  an  exterritorial  effect. " 

Theie  is  the  distinction  hetween  the  two  propositions 

made  in  as  good  English  as  I  knew  how  to  put  it.     And 

^upon  these  propositions  we  are  prepared  to  stand  hecan.-i' 

they   are  propositions  of  the  statesmen,   publicists  and 

jurists  of  Great  Britain  and  the  United  States. 

My  friend,  Mr.  Bodwell,  who  has  not  abandoned 
the  adverse  position  by  any  means,  has  citnl 
some    cases  as  to    the  nationality  of    property  as   <li- 


f^^i 


Ml'.  Bt'ii|iii'. 

l!lj;<'   l<i  nC  I  Mil 

Ity  ill  fimliiiK 


Hoii,  ovt'ii  in  tiiiii' 

iMHcrti'd  in  I'iimh- 

)i  for  the  cDn-.!- 

II  tiini>  of  iiiarc. 

war. 

lii»torv  of  Inlii- 

f  j)i>iK't'    ii^'iiinst 
unco;  iind  in  ilir 

flllH     CXri'litKHI 

try  will  1)1'  jini- 

I  IllHOWIl  liiih);- 

»mI  tlio  lii«  (if  Ills 
stile  net  iipi'ii^t 
(Jovcriiliicnt  I  if 
at  lu>  has  mil  Mi- 
le as  to  ni'utnil- 


it  or  (loiiiicileil, 
11  bouiul  to  liis 


;  ahandoiHil 
lias  cilnl 
arty  as   di-- 


!<■»■•'•         "■••I" »        IlnHFlt.^,  Illltl.        *«WI1|  III  t%  II1I\>1|^I\I«II| 

-iiisf,  of  my  li'iiiiM"!  I'lit'iiil  in  iisiii^;  tlit'sc  iiutlKtrilicH  in 
.iiis\v«'r  is  scrii  from  the  (listiiiction  lictwi-fii  what  is 
known  as  vnniiinrtiiil  domii  il.  a|»|ilyiiin  solely  to  time 
if  war,  ami  riril  domicil,  a|i|ilyin^  .suh'ly  to  linit*  of 
|itiact>.  Till'  law  toiicliiii^  tli*>  iwo  kiiiil>  of  domicil  is 
well  uiidristood  and  liif  distinction  is  as  Itroad  as  tli)> 
liailiorof  Uaiifa.x  hiit-y  cites  llicm  in  Note  4  of  ids  A|i- 
IMiidix,  pa^o  l'\'t,  iiiid  I  (|nott'  him: 

•  NOTE  4. 

'•  CoMMKI  riAIi  ll(  Mini,  IS  TlMK  OF  Wab. 
"  1.  PorHon'H  i-liurarter  ili'ti-riiiiiinl  liv  iloinicil. 
"  lu  time  of  war  the  iiiiMwer  to  the  i|ueHtioii  wlieth<'r  n  ponton  in  or 
'  \H   not    to  \h'   riiiiMidereil  nil  alien    eiieiiiv  is,   in   inoHt   eaxeH  at  aiiv 
■    rate,  to  1h' ileterinineil  liy  rt'fereiiee,  not   to  IiIh  nationality  or  ulleKl- 

■  iiiire,  liut  to  liiH  trailing  rehitleiiee  or  roniinereial  iloinie'il.  Every 
person  doniieileil  in  u  Htute  eiiKaKeil  in  lioHlilitieH  v itii  onr  own, 
uhellier  he  in  a  lioru  Hnlijeet  of  that  Htute  or  not,  in  to  he  reitartleij 
il.'.  an  alien  enemy." 

Again,  iimlcr  the  heading  ''  Nature  of  the  Commercial 
homicil."  at  page  7:!7: 

"  (//. )  DitTereneeHlietwoen  civil  ami  eoniniereial  ilomieil.  Tliefnnilu- 
'  iiieiitul  (liHtiuetion  lietweeii  a  ei\il  ilomieil  and  a  eiiminereial  doniieil 
"  i^.  thiit  A  civil  domicil  in  hiicIi  a  |ierniuuent  residence  in  a  country 
as  makcH  that  country  a  jierson's  lionie,  and  rendorH  it  therefore 
'  nasonahle  that  his  civil  ri^htH  Hhoiild  in  many  instaiiccH  he  dc- 
'  tiTiiiincd  liy  the  hiWH  thereof.     A  commi'rcial  domicil,  on  the  other 

■  liaiid,  iH  Huch  a  residence  in  a  country  for  the  |iur|iose  of  trad  ng 
tlii'ieaH  makcH  a  person's  trade  or  Imsiiiess  contrihute  to  or  form 

•  |piirt  of  thu  resources  of  hucIi  country,  and  renders  it  therefore 
iriisonnlde  that  his  hostile,  friendly  or  neutral  character  should  ho 
ilctcrniiiiCd  l>y  reference  to  the  character  of  such  count ly.     When  a 

■■  imtsoii'm  civil  diunicil  Ih  in  <iuestioii,  the  matter  to  he  deteriiiinod  in 

■  HJicther  ho  liiiB  or  has  not  HO  settled  in  a  ^ivcii  eountrv  us  to  have 
'  iiiiiile  it  his  home.  When  a  |>erHon'H  commercial  domicil  is  in  ipicH- 
'  tiiiii,  the  matter  to  lie  determined  is  whether  he  is  or  is  not  residiug 

■  111  a  ({iveu  country  with  the  intention  of  coutinniu^  to  trade  there. 
I'i'iini  this  fundamental  distinction  arise  the  following  dilTereucPH: 

"  (1.)  Ah  to  residence.      Hesidence  in  a  eountrv  is   in  general  /iri/nn 
"  /'"M>evidcnceof  a  iiersou  havingthere  liin  civil  domicil,  hut  it  is  only 

•  I'l-iiiiii  J'liiir  evidence,  the  efl'i'i't  of  which  may  lie  (|uite  got  rid  of  liy 
|iroof  that  a  peiwin  has  never  lived  in  the  country  with  the  inteutiou 
uf  niakiug  it  liin  permanent  home.      Hut  resilience  is  far  more  than 

■  in-iiii'i  fiiiir  evidence  of  a  person's  commercial  domicil.     In  time  of 

•  «iir  a  man  is  taken  to  he  domiciled  for  commercial  purposes  in  the 
'  ■  roiintry  where  he  in  fact  resides,  and  if  ho  is  to  escape  the  etVect  of 

"  ."iicli  presumption,  he  muHt  (irove  afltrmatively  that  ho  liiis  the  in- 

■  liiiti<iu  of  not  continuing  to  reside  in  such  country.  A  long  jieriod 
■   fuither  of  residence,  which  as  regards  civil  rights  is  merely   evi- 

'  ili'iice  of  domicil,  might,  it  would  seeui,  1h>  alisolutely  conclusive  in 
'   ilctcrmiuing  national  character  in  time  of  war. 
•'(■J.)  As  to  intention.     The  intention,  or  '(niimi.t,    which,  in  eoni- 

■  liiiiation  with  residence,  constitutes  a  civil  domicil,  is  ditl'erent  from 

■  the  intention  or  iiniiii"s   which,  together  with  residence,  mukes  up 

•  :i  commercial  domicil  " 

"  The  intention  which  goosto  make  uptheoxistonce  of  acivil  domicil 
"  i<  the  present  intention  of  residing  iiermanently,  or  for  an  indefinite 
I'  period,  in  a  given  country.  The  intention  which  goes  to  make  up 
"  the  existence  of  a  coniinereial  domicil  is  the  intention  to  continue 
"  residing  and  trading  in  o  given  country  for  the  present.  The  former 
'■  IS  an  intention  to  ho  settled  in  a  country  and  make  it  one's  home, 
"the  latter  is  an  intention  to  continue  residing  and  trading  there. 
"  lleueo,  on  the  one  band,  a  person  does  not  acipiire  a  civil  domicil, 

■  liy  residence  in  a  country  for  a  definite  purpose  or  period,  and  can- 


■>i 


\ 

^1 

1 

.it 

1 

m 

TT 


fl^^M 

'-'^^^^^1 

^^^^^^1 

fw^'ti'! 

■St  (i    jJm  .' 

BBt 

■'■Tl 

!      .)'•'• 

=s|l 


•  ■ ' ! 


«v;^ 


lo.. 


(Mr.  I)i<  kiiison'.H  ClosiiiK  Argiitnont.) 

not  liy  roMJili'ntM*  in  (inc  nuinlry,  ,■.  y. ,  I'Vutx-o,  ^pt  ri<l  of  n  ilm 
ill  anotlior,  •.  </.,  KiikIhikI.  if  li<>  rt-luitiH  tlir  |iiir|iiiN<>  of  iilllihMt 
rctiiniiiiK  to  KiikIiiiiiI,  uh  liiH  lioiii<>;  \vliil<>,  on  tlii'  otlit'r  liiuiil,  tl>. 
teiitioii  '  uliii'li  lilt'  liiw  iilti'ilnili'H  to  II  iMTHoii   rcHiiliii);  in  \\  In,  i 
roiiiiti'v,  IN  not  iliH|irov)'il  \\s  rviili'iu'i- tliiit  lir  roiiti'iii|i|iili'il  u  nti 
tn  liin  own  coiinti-v  \\\  kiuik'  fiiliiri'  ihtioiI.     If  tlic   |ii>riiiil  of  lij'- 
turn  i>t  wliollv  iiiii-i'i'tiiiii     if  it  ri'iiiiiiiiH  in  iloiilit  iit   wimt  liini'.  u 

all,  liouill  III- iklili>  to  It ■iii|ili'«li  till-  ilrNi^n — till'  ili'Ni^ii,  lic.w, 

Moi'ioiiHlv  t'liti'i'tiiini'il.  will  not  iiviiil  to  rcfntt'  tlir  Ii-kuI  iiiTNiiiiipi  m 
A  .■Hiilcni'i'  for  iin  iiiililtniti'  |ii'i'ioil  in,  in  tlir  jmlKnii'iit  of  Iii»  i 
t>^  tiiMitorv.  lull  |M'niiiini'nt.  Kvrii  ulii'ii  tli<<  |iiirty  Iiiih  ii  IImmI  im 
tion  to  ri'tiirn  to  liin  nun  I'niinln'  iit  ii  rcrtiiin  piTioil,  vet  if  n  |. 
inlt-i'viil  of  tiinr  iiti  intra  ml  not  of  inontliHliiit  of  vi'iii'h  iHtml.ii 
lii'foi'i'  liin  |i|iin  of  rciiiovul  I'lin  Ix'  I'tlrctcil,  no  i'<>kiii'<I  will  Im<  IhkI 
un  intfiitioii  of  which  the  (•M'ciition  im  ho  Innx  il<'fi-rri>il.'  " 


"il 

ly 
111- 

Hi. 
I'll 
'  (*• 
III 

■  r 
'h. 

Hit 

II- 


'.^•' 


ll«>  cites  aiitlioi'itifs  ill  Ills  notes.     I  now  coin*' to 
rait: 

••  (.').)  Am  to  K|ii'riitl  ItiiloH.  —  yV/'iv  m-i  u,ic  i,r  liro  riilfs  nsliin.iiiiif  ,  ml 
'•  ilnmiiil  irhi'/i  iiii  liiiri  un  n/i/ilirfi'iiiii  In  mi  nyiliinirii  i  iril  iltiiiiiiil.  'I'lnn 
20..  aciMinliiix  to  Aiiicrii-ikii  cIitihIoiih  ut  IimihI,  iiii  An'criciin  riti/ni  ^muj 
••  tin-  siiini'  |irini'i|ili'  woiiM  |ii'i'liu|is  |i)>  .ipplii'il  liy  KiiKliHJi  cniiii-  („ 
■*  HritiHh  Hiilijri'tMi  I'liiiiiot,  liv  I'liiiKi'-'itioii  frinii  liiH  own  riiiiiili'\  .lur. 
"  '\u\t  tliK  I'MNti'iirt'  III  liostiIitii>H,  iii'i|iiiri'  nui'Ii  ii  forriffii  iliiniiiir  a^  lo 
"  iir.ili'ct  hiH  Iriiilf  iliiiiii);  till'  wur  ik^'uiiiHt  thi>  lii'iiiK<'i'<'ntrliiiiiiHi  itlicr 
"  of  liiN  own  roiiiitn'  nr  nf  u  Imstili'  |iowi'r.  So,  iif^uin,  a  ni'iiti'ul  imr 
"  rimnt,  iniiy,  nt  iiny  tiinc,  witlnli'iiw  \\'\a  |iro|ii'i-t_v  iiiiil  fninlH  fn.iii  „ 
'■  boHiili' i-oiintry,  iinil  iich  11  witli<li'ii\viil  iiiiiy  ii'stnii' liinilnliiH  m  nimi 
"  (louiii'il.  I'lit  wlirllicr  the  »iiliji'rt  of  11  lirlliifciTiit  nIuIu  ciin.  ullor 
"the  (iiithronk  of  lioHtilitii'H,  witlnlntw'  from  a  liimtili'  hIiiIi'  ko  iis  tn 
"  em'ii|i«'  the  iinputittioii  of  triulo  witli  Ihc  cut'iny,  iH  iloiibtJul." 

30     And  .it  pajii'  740: 

"  From  tho  ilistinctionM  ln'twri'ii  11  civil  iiiiil  11  commcrciiil  (lomifil, 
••  the  concluHion  followK  tlmt  11  |icrsiin  iimy  liiivc  n  civil  iloiiiicil  in  nuo 
"  country,  luiil.  nt  the  Hnmc  time,  11  coninicrcial  iloniicil  or  rcHiilinci' 
"  in  iinothcr.  TIiuh,  «h|i]iohc  that  D's  iloniicil  of  oii(,'in  is  l'".ni.'lihb, 
"  ntiil  tlmt  lie  noes  to  France  ami  hcIs  up  in  traile  there  without  aiiv 
'•  puriiiiHc  of  \inkiuf;  France  his  |iei'niiinent  home,  hut  with  the  iIIb- 
"  tiuct  inteii.  11  of  returning  to  Kui;laiii1  within  ten  years,  lie  clearlv 
"  retains  his  ^Injflish  ilomicil  nf  orijjin  ;  ninl  the  onthreak  of  a  war  ho- 
"  tweeii  France  itliil  Fnpflaml  iloes  not  of  itself  atlect  D's  civil  ih^inicil. 
"  If  |)  continues  to  reside  ainl  traile  in  France  after  the  onHiiruk  of 
'  hostilities,  though  without  any  chun^'e  in  intention  as  to  tlie  tinii' 
'  of  his  stay  in  France,  he  will  acipiiro  11  French  commercial  ilomi.'il. 
"  In  other  wonls  he  will  have  a  civil  ilninieil  in  Eiinlaud  ami  a  cmu' 
'•  mercial  ilomicil  in  France." 

TliiH  (listiiiilinii  mil.'.;!  lie  ki'pt  in  view  ami  our  rontiiitioii 
is  Ir'I'i'  ill  till-:  iiiiitlt'i'  iif  (loiiiii  ii  tliat  tli*>  (loiiiiciliatiil  jut- 
sons  (111  liiitlisiilrs  of  till'  iiin',  llio   Miitisli   siihjiM!!  ilmni 
cilfil  ill  llic  I'liiti^i!  Statrsaiui  tiu'  .Nnn'iiciii  citizi'ii  iloiii 
( iUnl  ill  till'  Diiiiiiiiioii.  an'  (ivilly  ilomiiilcil  lint  not  ('inii 
inciTially  (ioniiiil'd.     Tlic  Miles  ;iii|(lyiiij;  in  limes  of  war 
,i  li.ive  IK)  ii|i|ili("ition   line   ;iltlioii{j;li  some  of  tlieiii  woukl 
'    ho  for  Hie    III  iH'til   of  tiie    I'liiteii   Sl;ites;  some  of    llu'in 
would  not  lie  for  the  heiietit  of  oiir  coidenlion.     I  de.-<iie  to 
keep  the  distinetion  ehar  that  coninieicial  and  civil  dniiii 
lil  may  exist  at  one  time,  and  (hat  one  person  may  have 
one  ill  oni'  country   and  another  in   (he  other  coimliy. 
rpon  (he  lepil  distinction  .is  to  civil  doniicil  and  roiii 
mercial  doniicil  wehaiiK  tliedeiiioiistralioii  and  conckitiion 
of  our  arjjiimeiit  in  reply  to  my  learned  friend's  cases  ami 
all  of  them.     A  man  can  have  as  many  commercial  doiiii 
ells  as  tlieie  are  countries.     Ho  can  have  but  ono  civil 
domicil.     What  we  have  to  deal  with  liere  is  civil  doniiL'il 
ill  time  of  peace. 


40 


60 


Commiuioneri  under  the  Oonvention  of  February  8, 

1896.  between  the  United  States  of  America 

and  Great  Britain. 


10 


LogiHlntivo  Council  ('haiiilicr,  I'mviiirial  liiiilding, 
At  Halifax,  St'pt.  5*2,  1HH7. 

At  \0:'M\  A.  M.  tlio  CoinniissioiitTH  took  thoir  Henta 


Mr.  l)i('l<in«f»n:— Your  Honors,  when  closiiip;  my  oh- 
siivations  last  ((vciiiug.  I  prtsfutt'd  t lie  broail  (list iuction 
li'twet'U  I'OMiiiiorcial  doniicil  in  tinit!  of  war  and  civil 
il'  inicil. 

The  aif^unu'iit  prcsfntrd  liy  (treat  Britain  benrs  more 
{liicctly  u|ioii  the  status  of  Aini'iioan  citizen-  '!•  Miicilfd  in 
^^,(  .inada,  and  that  argument,  aside  from  tlic  *j>ii  tion  of 
tli<'  scope  of  tli»'  convention  and  the  constiuclion  of  the 
convention,  on  our  contention,  that  it  applies  to  perHons 
iii^teail  of  to  ships,  may  he  stateil  hroad'--,  that,  as  to 
Americans  domiciled  in  (ireat  Hritain  or  '  .ida,  the  ship 
wliich  was  his  property  hecomes  nationalized  as  I":  itisii. 

I  ,iis  is  8o  p'uerally  of  a  time  of  wai-  in  respct  of  prop- 
iiiy  as  relat<  d  to  commercial  domicil,  hut  that  '.,is  nothing 
t(i  (III  witli  »iK  here.  There  is  no  (piestion  of  l).|Iinerent 
riulits  here. 
,f,  r.ut  as  I  liave  already  said,  when  I  come  to  the  construc- 
tiiih  of  the  convention.  I  e.xpect  to  demonstrate  that  this 
iio-ition  of  the  British  counsel  can  cut  no  ti>;ure  in  the  case, 
hiraiise.  hy  express  intent,  shown  hy  the  drafts  of  the 
coiiv(>ntion  already  suhmitted,  as  also  hy  the  proposed 
cmi'-l  ruction  (irrespective  of  any  drafts  or  ne;;otiation 
|)H'(eiling  it)  (ireat  Britain  must  stand  or  tall  on  the  status 
of  persons  and  not  upon  the  character  of  prt)|)erty  ua 
rt'--|ie(ts  nationality. 

liiit  I  shall  treat  the  arj^ument  of  my  learned  friends 
,,,\vitli  the  respect  that  I  have  for  it,  hy  hriefly  disposing  of 
tliiir  contention,  as  far  as  I  can.  on  principle,  and  then, 
l)v  iiiialyziufi;  the  cases  they  cite,  and  all  of  them,  and 
slinwiiig  you  that  they  do  not  estahlish  or  sustain  their 
(iiiitentiou. 

1  trust  your  Tlouors  will  kindly  hear  in  mind  what  I  sub- 
niitt.'d  in  closing  last  night,  in  pointing  out  thedistinc- 
tinii  lietween  commer(;iiil  (lomicii  m  time  of  war  and  civil 
iloiiijiil  in  time  of  peace-  although  civil  dumicil  may 
li;i\.'  all  the  results,  in  time  of  war.  so  far  as  the  liahility 


jo 


of  il  ilomiciliated  person  is  concerned. 


All  the  cases  cited  hy  my  learned  friends  upon  this  con- 
toiition  of  nationalizaliou  of  propertv  due  to  domicil  are 
as  follows;  They  first  cite  the  case  of  the  "  Francis."  I. 
(iailisiin,  page  614,  and  that  decision— as  ;ire  all  decisions 
till  v  cite  intSallison— was  hy  Ju.  MceStdiy.  Your  Honors 
will  at.  once  see  that  Justice  ^loiy  rests  the  decisions 
up  .11  commercial  donucil  in  time  of  war;  and  hefore  I 
fiiu-li  with  the  authorities  cited  hy  my  learcjd  friends,  I 
sliall  point  out  that  Justice  Story  makes  precisely  the  dis- 
fti^tiiirtiou  made  in  my  closing  remarks  last  evening.  The 
ca<t  of  the  "Francis"  was  in  tiie  year  IH13.  It  hore  on 
till'  -.t.itus  of  u  naturalized  citizen  of  the  L'nited  States 
(liMiiiciled  in  th«'  enemy's  country  in  time  of  war.  The 
cili/i  n's  name  wastJillespie,  and  (Jhiuf  Justice  Story,  after 
Id  itiiig  the  facts,  said: 


lii. 


m 


I 


884 


y.!..- 


hl 


(Mr.  Dickinson's  Closinjj  Argument.) 

"  And  I  take  it  to  l>e  clear  tbnt  the  facts  of  this  case  estatilisli  i||,> 
"  position  that  Mr.  OUlespie,  at  the  time  of  this  shipment  and  cui>i  nr, 
"  was  a  merchant — " 

There  is  the  trade  domicil,  your  Honors— 

"  was  a  merchant  doiuicilod  in  Great  Britain,  and,  of  courRo,  uffr.  uj 
"  witli  its  uiitionol  character.  Ho  was  settled  therewith  a  hmi-r  „f 
"trade,   and  for  jiurposes   of  indottnite  extent   and  duration.     I  lad 

10  "  the  facts  \>eeu  e(juivocal,  the  circumstance  that  it  was  his  nuiivo 
"  country  would  undoubtedly  have  been  entitled  to  great  weij;lii  in 
"  deciding  the  (|uestiou  of  domicil;  for,  as  Sir  William  Hcott  jii-lly 
"  observes,  the  native  character  easily  reverts,  and  it  reciuires  fewer 
"  circumstances  to  constitute  domicil,  in  case  of  a  native  subject,  lliiiu 
"  to  impress  the  national  character  on  one  who  is  originally  of  iinciinT 
■' couutrv.  Such,  then,  being  the  domicil  and  national  churiicli  r  uf 
"  Mr.  tJillcspic,  he  must,  according  to  the  settled  rules  of  jJuVilir  lnw, 
"  be  deemed  to  partoke  of  the  advantages  and  the  hazards  of  a  Hrilisli 
•'  merchant  in  peace  and  in  war.  For  all  commercial  purposes,  It  is 
"  quite  immaterial  what  is  the  native  or  adopted  country  of  a  parly. 
"  Ho   is  deemed  a   merchant  of  that  country  where  he  resides  aiiil 

20  "  carries  on  trode. " 

This  is  a  war  case,  of  course,  and  clearly  of  coninuivinl 
domicil. 

In  the  case  next  cited  hy  counsel  for  Gieat  Britain,  voiir 
Honors  will  see  that  Chief  Justice  Story  uses  the  distinct  ion 
which  I  have  jwinted  out.  I  refer  to  the  case  of  "  'I'iic  Ann 
trreen  "  and  cargo,  from  pages  274  and  'J75  of  1st  (iailisdii. 
cited  hy  my  learned  friends  in  their  oral  argument.  This 
was  also  a  prize  case  in  time  of  war.  'I'luning  tn  lln' 
,    opinion  of  Mr.  Justice  Stoiy,  I  find  this  discussion: 

"  If  Mr.  Culleu  were  domiciled  at  Jamaica,  at  the  time  of  the  .■^lii|i. 
•'  ment.  he  would  be  liable  to  all  the  consequences  of  a  Urifi.sli  cciiu- 
"  mcrcial  cluiriicter,  for  no  principle  is  better  settled,  than  timt  tin 
"  property  of  a  person  settled  in  the  enemy's  country,  althou).'li  In'  lie 
•'  a  neutral  subject,  is  atfected  with  the  hostile  character.  It  is  cuiiti' 
"  immaterial  in  this  view ." 

Your  Honors  will  see  the  distmction: 

"  It  is  quite  immaterial  in  this  view,  what  was  the  original  nr  w- 
•'  quired  allegiance  of  Mr.  Cullen.     \  native  American  citizen  is  just 
40  "  as  much  within  the  scope  of  the  principle  as  a  foreigner." 

Again,  at  page  286,  Mi-.  Justice  Story  says: 

"  I  admit  that  his  connection  in  a  house  of  trade  in  New  York  would 
"  not  alone  protect  him;/«/'  hf  nim/  id  llie  snini'  liinr  jiosscm  tlii'  (i.iiiniu-- 
"  riiil  c/iurmifr  iif  germil  nulinns." 

No  man  can  possess  the  civil  character  of  several  nations, 
oi'  rather  have  more  than  one  civil  domicil.  I  quote  Ironi 
page  28t): 

50  "It  is  also  said,  that  this  shipment  was  made  by  Cullen  in  the  cliiii- 
"  acter  of  a  Hritish  subject,  oud  that  this  furnishes  distinct  prouf  of 
"  his  having  returned  to  his  native  allegiance." 

That  is  also  the  argument  diawn  fi-om  the  cases.  ;is 
sh'.wn  hy  thehrief  of  the  learned  counsel  for  Her  Majisly. 
as  to  the  allegiance  of  a  civil  domiciled  person,  or  of  mio 
owing  an  original  allegiance  to  the  country  of  his  liirlli, 
unnaturalized  in  the  country  of  his  domicil.  Tho.se  casts 
liad  been  cited  in  the  briefs  of  counsel  in  the  "  Ann  Gncii " 
^^case,  in  endeavouring  to  have  applied  the  law  of  civil  do 
micil,  and  I  call  your  Honors'  attention  to  the  clear  distiiic 
tion  which  Mr.  Justice  Story  makes.     He  says: 

"  I  agree  that  such  would  ordinarily  be  the  case;  but  a  .listiint  iou 
"  has  been  taken  in  the  authorities  between  a  time  of  peace  and  of  »iir. 
"  Much  greater  lasity  is  allowed  to  mercantile  transactions  in  I'luoc 


^I't 


lit.) 

laac  CHtablisli 
aent  aud  oupi 


I  course,  iiffr>  i.il 
1  with  a  hiMi-  uf 
il  (luratiou.  Il.nl 
it  waR  hi8  iiai  .vi> 
o  great  weijjlt  m 
liam  Scott  jn-ily 
it  re<iuirt'8  t.  Kci- 
itivcHiibjcct,  liiMll 
igiually  of  luii'ihcr 
ional  churiul'  r  of 

nlos  of  l)ublii'  law, 

azaritH  of  a  Hiiiisli 
ial  purposi's,  ii  is 
juntry  of  a  imiiv. 
re  he  resides  aiul 


'  of  comnit'ii  inl 

[it  Britain,  yim 
8  thedistiiiclinii 
seof  "Til.'  Anil 
of  1st  (Jallisdii, 
rgument.  Tills 
'I'liiniiif;  to  llif 
isciission : 

e  time  of  the  sliip- 
s  of  a  Uritish  cuiii- 
th'il,  thau  tlmt  the 
^ry,  although  lie  lie 
raeter.     It  is  quite 


the  original  m'  in'- 
rican  citizen  is  just 
eiguer." 

lys: 

in  New  York  woulil 

jiossins  thi'  uiiiinii  !■■ 

several  nations. 
I  quoto  licMii 


■     ;o    N 

Cnllen  inthnlmi- 

■     ' 

■H  distinct  proof  of 

■ 

■ 

m  the  case?!,  us 

■ 

■or  Her  Majtsty. 

■ 

lerson,  or  of  "iie 

B 

trv  of  his  biilli. 

B 

iil.     Those  i;isis 

■ 

16  "Ann  Given" 

1 

law  of  civil  ilo 

■     OohiM 

the  clear  disliiic- 

■        will 

>  says: 

.  but  a  .listinil Kill 
of  peace  and  ol'  »'"■• 
'ansactioDS  iu  1'<ik'i' 


S,S5 

(Mr,  Dickinson's  Closing  Arf;^ument.) 

"than  in  war.  DiBguiHi's  and  covt  rs  are  allowable  iu  the  former, 
••  which  would  not  lie  tolerated  in  the  latter.  I  do  not  know  that  a 
"  -^itigle  ea»e  has  lM>en  decided,  in  irhiih  the  iigmnniiii/  n  iiiilioiinl  rlmnic- 
•'  ■•  r  ill  hnt>'  n/  jiftu-f\  lotirnii{  mui*if  t/m/  t/i'tit's  t.r  retfuliitiiitiA^  nr  to  artiiti 
'■  il,.-  •■flWls  r/ impending  war,  has  been  held  to  bind  the  party,  where 
••  il  liiiH  not  l)een  in  fraud  of  the  belligerent  who  makos  thocapture." 

That  was  in  time  of  war. 
iQ     111  1st  Gallison.  |»ano  hA:t,  there  is  another  case  cited  hy 
111 V  learned  frien«ls.     This  was  the  case  of  the   hrig  "  Jo- 
st'iili."  and  it  is  alsoa  decision  hy  Mr.  Justice  Story.     It  re- 
tris  to  lime  of  war  again,  and  this  is  the  head  lutte: 

•  If  an  American  veNsel,  after  a  knowledge  of  the  war,  proceed 
"  from  a  neutral  to  an  enemy  port  on  freight,  it  is  a  trading  with 
■•  I  he  enemy,  which  subjects  the  vessel  to  forfeiture,  and  she  is  liable 
••  tlicrefor  on  her  return  voyage  to  the  United  States. 

•■  The  birth  of  a  party  is  not  that  which  decides  his  national  ehar- 
"  alter,   but  his  douiicil."     »     •     * 

:o    Time  of  war  again.     The  Court  says  at  page  .')4S: 

•  Tiie  trading  with  the  public  enemy,  for  which  cimdeninatiou  is 
"  !<onght,  is  the  taking  in  and  carrying  a  cargo  on  freight  to  Knglanu, 
"  after  a  full  knowledge  of  the  war.  This  is  attempted  to  be  justi- 
"lieil.  partly  upon  the  opinion  of  the  American  Minister,  and 
"  |iiiitly  on  the  ground  of  inability  otherwise  to  meet  the  expenses 
••  of  the  voyage." 

Mr.  .Justice  Story,  of  course,  holds  that  the  placeof  trade 
ami  dt  partuie  of  tlie  sliip.  and  the  trading  with  the  coun- 
tiv  with  whom  we  are  at  war,  must  determine   the  char- 

.iO;i(trr  of  the  act. 

The  other  ca.se  cited  hy  my  learned  friends  is  in  1 
Hcis.iiuiuet  &  Puller,  page  4;?o.  This  is  the  ;-oniewiiat 
famous  case  of  Marryat  rs.  Wil.son,  and  it  is  famous  he- 
caiisc  it  has  heen  commented  on  in  various  ways  hy  all  the 
anllioiities  on  the  (|uestions  involved,  the  <piestions  of 
cili/ciisliip  and  allegiance.  Now,  may  it  please  your 
llniiors.  it  lias  not  heen  commented  on  in  such  a  special  c«mi- 
iit(  tion  as  this  hefore,  hut  your  Honors  will  tind  that  this 
was  the  situatitm  in  that  case.     The  .authoritative  head 

40n(ii,.— and  they  had  authoritative  lieail  notes  in  tlio-e 
(lavs,  somewhat  more  authoritative  than  now,  fortius  was 
in  IT'.i'.i-  the  autlioiitative  head  note  in  stating  the  gist 
111  I  111'  decision  of  Chief  Justice  Eyre,  says: 

■A  natural  born  subject  of  this  country  admitted  a  citizen  of  the 
"  I  nileil  States  of  America  either  before  or  after  the  declaration 
"  of  Aiiieriean  independence,  may  be  considered  as  a  subject  of  the 
"  I  iiited  States  so  as  to  entitle  him  to  trade  to  the  Eas'  Indies  nnder 
•'  tin  iiliine  treaty." 

o\v,  the  Treaty  of  17!>r>  between  Great  Britain  and  the 
ted  States,  e.xpressly  provided,  that  citizens  of  the 
It'll  States  shoulil  have  the  privilege  of  such  trailing, 
iiiiise,  (Jrej't  Britain,  for  the  piirpo.ses  of  the  tre.ity, 
(om polled  to  accept  for  trading  purposes  the  persons 

I  weie  citizens  of  the  rnited  States  under  the  ITnited 
rs  laws.  That  is  perfectly  apparent,  hecause  it  was  a 
tv.  aud  the  ilec  siop.  is  solely  upon  the  treaty  anil   not 

II  ujion  doiiiicil.     When  we  niid  the  court  coming  to 

i|iiestion  of  .illegiance,  w  find   this   formal   doctrine 

down  hy  the   Lord  Chief  Justice,  and  your  Honors 

leiiiemlier  one  sentence  in  it  which  I  am  glad  to  find 

He  was  considering  the  case  of  Scott  rs.  Schwartz, 
I  lie  Lord  Chief  Justice  said: 

■  r.>  the  wav.  I  do  not  understand  upon  what  ground  the  case  of 
"  llmlir  was  tlistinguished  from  Collett's  case,  unless  llutlcr  has  been 


ijtili 


il 


'•  I  ) 


m 


8S»'> 


(Mr.  Dickinson's  Closing  Argument. ' 

"  t'xproHHlv  tlisdmrKi'd  fnnn  liii*  nlleKiauce  liy  Act  of  Purliiunii. 
"  oonBt'unoni'e  of  our  ackuowli'dnniont  of  tin'   InilppfinloiuM'  ni 
"  Uiiitoil  StatPH.     Tliey   wt^re  both  uiitiiral  liorii  subjects,  tlicx 
"  both  n(lo|)to<l  HiibjertH  nf  the  Uuitoil  Htatos,  suul  it  ih  to  bp  nui 

"  botll,    yflllt  l>'l'riillll   in  aim  imlllS  !•!</  e.CI«(r,   tiVi     /rjriiiilinr    ilrliiln,,. 

"  fiirr  /insnil," 


Sv. 


TliH  it\irnof!  Cliief  Justici'  tliore  does  not  lay  down  ,,  v 
iotl>ing  lint  tlie  uninndifit'cl  and  pun*  (Joctnnt'  of  Imtli  d,  ,;i. 
trii's.  as  announced  by  the  judicijiiy  and  liy  tlicir  di|,:,i. 
niatic  ie|»re8entatives  on  every  occasion,  when  tiie  sultj'  t 
came  u|)  f()r  discussion  from  the  time  ot  llie  Inde|ictii|,  i  , ,. 
of  tlie  United  States  down  to  the  Treaty  of  isyo.  |i,.  |  ,vs 
that  down  as  a  postidate.  and  that  is  tlie  |)iinci|tie  app  \ . 
in;^  here  .is  we  liave  se«'n. 

"  It  WHS  ol)s<>rvi'il  b_v  Lord  Halt',  that  a  natural  born  subject  oi  ijus 
"  country  niiiy  by  foreiKn  naturalisation  entauf^le  himself  hi  ilitli,  il- 
"  ties  anil  a  contlict  of  duties.    So  may  the  naturalized  or  deni/.n  >  ii,. 
20  '•  ject  of  the  Kinj;  of  (Ireat  Itritain." 

The  learned  Ciiief, Justice  then  proceeds  tt»  fnrthei di,. 
cuss  this  original  diHiriue  as  ailmitted  in  the  rnii,,! 
States,  and  (Jreat  Britain  attirnis  it.  htit  holds  tliat  nihlri 
that  treaty,  and  for  the  purpose  of  trade  only,  (iivat 
Britain  must  accept  a  naturalized  citizen  as  htinu  a 
citizen  of  the  United  States,  entitled  to  trade  witli  tlie 
Indies,  hecanse  he  is  a  citizen  of  the  United  States,  n.  n-. 
nized  as  such,  and  adopted  as  such  -  a  naturaliz'd  citi/in 
30 of  the  United  States— and  upon  that  ground  only.  Ollu-i 
wise  it  wotild  lead  to  a  conflict  U|)on  tlie  treaty  Itself.  No 
other  doctrine  of  nationalization  is  laid  down;  on  the  < on. 
tiary.  the  assertion  of  the  original  allegiance  is  laid  iltiwn 
with  more  strength  than  it  is  stated  in  Blackstone;  a-  i< 
also  the  question  of  the  duty  of  a  domi(  iled  citizen  in  the 
nature  of  allegiance  to  the  (Jovernment  of  his  domic  il 

Tlie  olhe'.case  cited  hy  (he  learned  connpel  for  (iiv.it 
Britain   was  the  case  of  the  "Nancy"  in    Nova   Smtii 
It  is  at   page  4!t  of  Stewart's  Admiralty   Heports,  .111. 1  is 
4oknown   as   the  •' Tnrj»entin«>"  ca.se.     It  was  providid  in 
the  time  of  (teorge  III..  :!;?  George   III  .  Chapter  ."lO,  s.  ( 
tion  14: 

"  That  it  sh'ill  and  may  be  lawful  *  •  *  to  im|iort  pitch,  im  and 
•'  turpeutine,  Iteinfj  the  growth  or  production  of  any  of  tlic  terntnrii.> 
"  belonf^iuK  to  the  United  States,  from  any  of  the  territories  of  ili,. 
"  said  United  States  into  the  Provinces  of  Nova  Scotia  anil  Niw 
"  Hninswick:  jtrovidfid  that  snch  pitch,  tar  and  turpentine  sh.ill  not 
"  be  imported,  excejit  by  Itritish  subjects,  and  in  British  built  ^\,\\i--. 
"  owned  by  His  Majesty's  subjects  and  navigated  aocordiut;  to  l:i«  ' 

'  One  of  the  members  of  a  firm  which  imported  tlir  lur 
pentine  was  originally  a  native  born  British  snhjci  i  Imt 
domiciled  in  New  York,  and  (he  Court  in  this  judginrnt 
reviews  tlie  cases  that  have  been  here  cited  by  my  li  uiied 
friends,  and  all  the  cases  bearing  upon  the  (piestinn  of 
commerciiii  domicil  in  time  of  war.  The  Court  .>-avs 
this: 

••III  /irizr,  a  British  subject  forfeits  every  ri^ht  which  he  woiiM  Ik' 
"entitled  to  in  that  capacity  by  residence  in  a  foreign  count  i\  Il 
(\q  •'  (ireat  Britain  was  in  a  state  of  peai'c  durini^  a  war  befwceii  I'lanci' 
"  and  Spain,  an  Englishman  who  inhabited  either  of  those  ciiiintiiis, 
"  would  be  liable  to  have  his  property  seized  by  the  respective  eniinics 
'•  as  much  as  the  natural  born  subjects  of  the  <'ountry.  Hi>  linli^ii 
"  allegiance  would  afford  him  no  i>rotection.  This  ])riiiciple  dui  -  not 
"  rest  only  upon  the  Prize  Courts  and  the  law  of  nations,  but  it  i» 
'•  recoKuized  by  the  common  law." 


10 


20. 


(Mr.  Dickinson's  Closing  Argument. » 

That  reasoning  is  from  a  state  of  war  clearly. 
TIh'v  cite  the  casn  of  Tahles  vs.   Hendelack,   with  re- 
icct  to  the  decision  of  l^onl   Kenyon.  wiiere  it  was  lieltl 
II  time  of  war  tliat  — 

wliothor  the  Hliip  ho  ontitlod  to  Ain<>ri<-an  |)rivil<'n<'M  doos  not  de- 

•  iK'nd  inorc'ly  upon  the  owuor  l>t<iiitt  au  .\iiii'rii'au  Imru.  Persons  ro- 
^idiiin  in  tliiM  conntry,  r(>ii|iiiif;  tlio  udritiitiigi's  of  tlic  triidi'  of  tliis 
cDiiiitrv,  ami  ooutrilmtinn  to  Hi<>  wcll-ltcinn  of  tliis  conntry,  must 

^iii-  tf/t'  fmr/ittst'  iff  fl'tli/r  hi'  fniinif/fffif   'is  /ttlnn'/iii'/  fit  tliis  r'Hiiifrij, 

"  Tliis,  indi'od,  was  a  ciiso  iis  between  iientrnl  eounfries,  and  the 
powers  at  war,  and  dei>ende;l  eliietly  npou  tiie  law  of  nations,  l)nt 
there  is  another  ease,  in  wliieli  the  same  prineijile  was  a))plied  be- 
t  ween  Oreat  Britain  and  her  own  snlijects,  and  with  reference  to 
Itritish  laws  only.  I  mean  that  of  MaeConnel  n<;ainst  Hector  (in 
Hosanpiot  and  Puller's  Ueports,  Vol.  III.,  ll:j(.  The  (,iiestion  re- 
lated to  the  validity  of  a  eonnnission  of  bankruptcy,  and  this 
dcpendod  upon  the  point,  wiu'therthe  di'bt  ui>on  whidi  the  iietitiou 
issued,  was  sneh  as  could  be  sued  for  at  law.  the  petitioning^  cred- 
itors beinj?  three  partners,  of  whom  one  was  resident  in  Kn<;hind, 
iiid  the  other  two  beintJ  subjects  of  (Jreat  Itritain,  were  resident 
and  concerned  in  trade,  at  Flushing,  a  port  belonniuff  to  the  enemy. 

•  It  was  held  that  they  were  not  entitled  to  sue  as  Knjtlish  subjects 
'  ill  an  Knulish  court  of  Jtistiee,  and  Ijord  .Vlvanly  saiil,  -every  natu- 
"  ral  born  subject  has  a  ri((ht  to  the  King's  protection  so  lonji  as  he 
"  •  entitles  himself  to  it  by  his  conduct;  but  if  he  lives  in  an  enemy's 
•■  ■  country,  he  forfeits  that  rifjht.'  " 

1  brought  in  this  case  to  siiow  also  that  the  Nova  Scotia 
(uurt,  resting  its  judi^ment  on  the  :!d  Bosanquet  it  riiller, 
was  on  the  principle  of  commercial  domicil  in  time  of  war. 
Km  tliermore,  this  judgment  cites  the  case  of  Marryat  vs. 

3o\\  iNon  in  1st  Bosanquet  &  Puller,  to  which  I  have  called 
\.iur  Honor's  attention,  which  was  of  a  Britisli  horn  snii- 
ji'd,  hut  a  naturalized  American  citizen  domiciled  in 
.\iiierica,  and  his  status  was  under  a  treaty;  hut  this  Court 
( ii>  s  it  as  if  it  were  the  case  of  a  British  subject  domiciled 
ill  tiie  United  States.  But  the  Cotirt  entirely  omits  the 
consideration  in  reviewing  this  case,  that  the  decision  was 
S(|ii;irely  upon  the  fact  that  there  was  a  treaty  permitting 
American  citizens  to  trade  with  the  Indies,  and  omitting 
tlif  distinction  made  in  the  case  itself,  that  a  domiciled 

4ofciMign  born  British  sid»ject  had  been  naturalized  and 
till  refore  within  the  ti-eaty  to  be  treated  as  a  citizen  of 
111.'  I'nited  States,  because  there  at.  the  time  of  the  recog- 
liiiion  of  their  independence  by  Great  Britain. 

( »f  course,  in  theory,  all  the  people  of  the  United  States 
at  tii.it  time  were  native  born  British  subjects. 

I  iic  vesult  on  this  Nova  Scotia  case  niay  thus  be  smiimed 
II |i  l!);•^^much  as  the  trading  by  British  subjects  only  in 
turp',  iitine  was  permitted,  it  was  held  that  because  a  mem- 
liei  of  the  firm,  an  original  British  subject  was  domiciled 

Hoiii  the  United  States,  be  was  forbidden  on  account  of  his 
tmding  domicil,  to  import  turpentine  inider  the  clause 
continingthe  importation  of  turpentine  to  British  subjects 
-  it  confined  it  also  to  British  owned  ships,  as  well  as  to 
Mulish  subjects,  and  it  was  a  case  under  the  niunicii)al 
liiu  and  not  under  the  law  of  nations.  The  learned  Chief 
.lii-tice,  in  conclusion,  says: 

"  I  am  of  opinion,  theroforo,  that  the  turpentine,  the  tar,  and  oon- 
"  M'i|uentlv  the  vessel,  are  all  subjects  to  eonti'-cation.  In  pronounc- 
"  inn  whic'li  latter  part  of  its  sentence,  the  Court  feels  the  less  re- 
(^iq"  luctance,  as  the  master  has  not  only  shown  that  hi'  was  conscious 
"  "t  doing  au  illegal  act,  bv  attempting  to  conceal  the  nature  of  part 
"  I'f  his  cargo,  but  in  so  doing  was  likewise  guilty  of  a  fraudulent  at- 
"  ti'inpt  to  import  it  clandestinely  into  the  province." 

Tliat  case,  ubiy  it  please  your  Honors,  is  reasoned  as 
niv  learned  friends  the  British  counsel   rea.soii     upon  the 


■i  4 


tl 


T 


888 


lii 


.v 


I  1,''  f  i 


^ 


J 


|i 


(Mr.  Dickinson's  Closing  Argument.') 

law  of  coniineiTial  doniicil,  witliout  distinguishing  tin* 
law  as  to  civil  doniicil.  It  is  under  British  municipal  law; 
it  was  a  case  not  involving  the  obligation  of  the  sul)je(t !  > 
his  sovereignty  at  all;  hut  construes  a  statute  that  taki  , 
from  him  a  privilege  or  imposes  a  disability  on  him.  L. . 
cause  of  his  non  residence. 

It  is  quite  a  different  thing,  from  the  relations  of  a 
lonatural  born  subject  of  (Jreat  Britain  to  his  soveieigni\. 
claiming  its  protection  for  the  consequences  of  his  vinli 
tion  of  the  laws  of  the  country  of  hia  domicil.  These  iih' 
all  the  cases  cited  upon  th.'it  point  by  my  learned  friem!?; 
the  count^el  for  (Jreat  Britain  ni  their  oral  argument. 

I  now  come  to  I  he  consideration  specifically  of  the  riglils 
and  relations  of  a  British  subject  domiciled  in  the  Uiiitdl 
States,  to  wit,  Ciutpcr,  in  respect  of  this  Convention  iin 
der  which  we  are  pioceeding. 

Jn  limine,  replying  to  the  statement  of  Sir  Chas.  II 
2oTupper.  that  the  United  States  had  changed  its  position 
since  the  Paris  Arbitration,  let  me  say,  that  under  I  he 
Treaty  of  lS)t2.  under  which  that  tril)unal  sat,  all  questidiis 
of  fact,  except  those  found  by  the  award  and  findings  of  t  he 
tribunal  were  reserved  for  future  negotiation,  and  that 
negotiation  folk)wed  and  resulted  in  this  Convention  aiui 
the  appointment  of  this  Commission;  so  that  all  questimis 
as  stated  in  the  Treaty  of  lS!t2  were  deferred  for  fiitiiro 
negotiation;  in  the  language  of  section  "A";  except  this, 
that  eithei  party  might  ask  for  a  finding  of  fact  before  1 1 lo 
30 Tribunal  of  Arbitration  which  should  be  taken  as  conchi- 
sive  between  the  countries  in  respect  of  ttie  future  ncj^o- 
tiations  which  did  result  in  the  Convention.  Of  course, 
befoie  the  Tiibunal  of  Arbitration,  there  was  noexaniiiia- 
tion  of  witnesses,  and  no  attempt  to  pass  upon  dispiitd] 
fact«,  except  the  grand  one  disposed  of  in  chief  by  tiie 
Tribunal  of  Arbitration;  but  no  disputed  facts  hearhiij 
upon  the  relation  of  persons  to  their  respective  govciii 
nients  or  upon  the  obligations  of  one  government  to  iv 
spond  in  damages  totheother  in  respect  of  their  respocfivi' 
40 citizens.  Cooper,  the  American  counsel  maintained  ho- 
fore  tlie  Paris  Tribunal,  on  affidavits  and  e.r  /intir  tesli- 
niony.  was  not  the  owner  of  the  ships.  The  Tnited  St.iles 
insisted  tliat  there  was  evidence  <if  American  ownerslii|iuf 
the  ships  claimed  by  Great  Britain  to  be  owned  by  Coopir. 
That  position  was  contested  by  (Jreat  Britain  befoie  tht? 
Paris  Tribunal,  and  that  tribunal  made  no  award  bearing' 
on  the  (juestion. 

Xoii  coiistdf,  the  American  (jovernment  was  then  con- 
tending that  the  flag  of  Great  Britain  had  been  used  iiy 
5oAmeri<an  citizens  to  violate  the  sovereignty  of  the 
I7nited  States,  to  violate  its  nnniicipal  laws;  yet  Ihero 
was  no  decision  upon  that  (piestion.  no  decision  U|i(in 
the  right  of  persons  to  recover  at  all;  that  is  .>xpressly 
re.«erv«'d  in  the  findings  of  fact.  It  is  expressly  ih- 
avowed  that  findings  should  b.?  made— as  I  shall  sliou 
your  Honors  when  1  come  to  the  consideration  of  the 
Convention  on  which  any  liability  could  bo  attached  of 
either  country.  Taking  the  findings  of  fact,  then,  ik 
(piestion  of  liability  having  i)een  decided,  it  is  provideil  in 
<J<Jthe  C«)nvention  itself  of  Isim;,  that  (Jreat  Britain  can  only 
recover  under  the  findings  of  fact  of  the  Paris  Tiibiin.ii. 
for  such  persons  as  are  within  her  protection.  What  ol 
the  position  of  the  United  States,  then?  As  to  Cooper,  the 
facts  of  his  domicil  wer.-  not  before  that  tribunal  TIh' 
United  States  did  not  understand  that  the  legal  domicil  ol 


SSO 

(Mr.  Dickinson's  Closinfj;  Argument.) 

(  ooper  was  in  the  United  States.     It  was  reserved  for  this 
(  (invention  to  investigate  that  t|uestion  with  the  otiiers, 
hiidecided,  found  at  Paris,  and  to  attach  to  its  decision 
tiiereon  whatever  conchision  as  to  liahiUty  might  follow. 
I  here  is  no  change  of  frortt  as  to  Coo|»er,  and  there  never 
Ills  heen      It  appeared  hefore  the  Paris  Trilninal,  it  is 
tine,  on  an  f.i'/Mtr/f  statement,  that  Cooper's  residence  was 
10 ill  San  Francisco;  but  residence  and  legal  civil doniicil  are 
(jiiile  difT»'rent  things.     Xon  constat,  lie   might  have  re- 
filled in  San  Francisco,  yet  when  we  come  to  the  investi- 
j;  ition  of  the  facts  as  to  the  right  of  (Jreat  Britain  to  re- 
( !aim  for  hin),   he  could  have  shown  at  Victoria,  before 
this  Conuiiission,  that  notwithstiinding  his  residence  in 
Sill  Francisco,  .is  shown  by  the  e.r  parte  statements  to 
the  triliunal  at  Paris;  yet.  tliat  his  legal  domicil  was  still 
in  (ireat  Britain.     That  could  have  been  shown  as  a  niat- 
{,•]■  of  fact  at  Victoria,  because  it  could  have  been  there 
2oslii>wn  that  l.is  lesid'c-nce  there,  while  pn'md   facie  evi 
ilmce  of  bis  domicil,  did  not  in  fact  constitute  civil  domi- 
(il.  because,  however  long  that  residence,  yet  his  inten- 
tion was  to  return  to  his  country  of  origin.     I  rep«>at  and 
I'lnpliasize,  that  civil  domicile  as  distinguished  from  com- 
iiiiicial  domicil':',  does  not  turn  on  residenct',  liut  on  lesi- 
tlciice  with  intent  to  make  a  home— the  aiiiiinis  maneudi 
is  essential,    and    the    proof    of  the  animus   vcvcrtvudi 
(listioys  civil  domicile. 
('(»o[)er  might,  in  the  contest  of  proofs,  have  given  evi- 
30iiiiHe   that  at  the  time  he  sent  out  the  vessels  he  had 
111  ide  up  his  mind,  notwithstanding  his  residence  was  in 
Sail    Francisco,    and,    therefore,    prima  facie,  iiis    legal 
(Idiiiicile,  that   he  intended  to  return,  or,  as  conclusive, 
that  be  had  actually  set   his   face   toward   his  country  of 
(iii^iii.     It  was  not  necessary  for  him   to  have   actually 
;;(iiu'   back   to   his  country;   bis  original  domicile  and  his 
status  would   have  reverted  if  he  bad  set  bis  face  in  that 
iliicction.     So  that  your  Honors  will  see  that  no  jiosition 
\\,is  changed  at  Victoria  from  that  at  Paris  on  the  part  of 
40tlir   United   States  for  the  simiile  reason  that,  until  we 
tiHik   the  testimony,  neither  the  domicile  of  Cooper,  nor 
liis  status,  were  fixed  before  this  Convention.    The  length 
ot  residence  is  immaterial,  save  that  it  is  nwixAy  jtrima 
j'ncii-  evidence  of  intent,  as  shown  by  all  the  authorities. 
lint  what  of  the  attitude  of  Great  Britain  throughout  as 
ti)  the    Cooper    ships?      Great    Britain    has  consistently 
maintained  not  only   before  the   Paris   Tribunal   but   in 
tlic  Courts  of  the  United  States,  of  Alaska  and  in  the 
Su|ireme   Court  of  the   United   States— the  lower  courts 
joaiiii  the  Appellate  Court— that  Cooper  was  the  owner  of 
tlusc  ships,   and  that  Warren   and   Boscowitz    had   no 
iiiii  rest  in  them.     Now,  it  is  a  matter  of  law,  perfectly 
Will    settled,    that   however   much   another   party    may 
iiii|iiire  into  the  registry  of  a  ship,  and  however  little 
elTt'i  t  the  registry  may  have,  or  the  record  title,  in  a  con- 
tuivcisy  involving  it  with  third  parties,  the  registry  and 
n'MU'd   title  in  every  international  court  in  tiie  world,  in- 
clinliiig  the  prize  court— and  the  rule  of  war  is  the  same— is 
ci'iii  Insive  against  the  party  who  registers  it,  on  the  qiies- 
fc til  11  of  ownership.     We  have  come  to  the  position,  and 
Ikiv.i  now  settled  by  the  examination  of  Cooper  himself  at 
\  II  iiiria,  and  by  all  the  investigation  as  to  bis  civil  status 
tliii   liie  real  owner.  Cooper,  was  civilly  domiciled  in  the 
1  lilted  States.   Warren,  above  all.  is  estoppi'<l  in  this  great 
iiiiii  national  contest  as  to  the  ownership  of  Cooper,  because 


800 


''I 


,     'r  }  ;■     i' 


(Mr.  Dickinson's  Closing  Argument ) 

he  lias  Miiulo  the  affidavits  in  his  hehalf  as  ownti,  umI 
has  always  made  the  appeals,  taken  the  proceeding-,  m,! 
pnl  in  Cooper's  answers.  Waiien,  in  the  schedule  at  I'imn. 
pajje-i  1  to  (to,  inciusiv»«,.  has  sworn,  and  met  the  ioii|...| 
of  the  L'nited  States  on  tiie  l)oiiit  of  owneiship,  il  it 
Cooper  was  the  ownei.  We  dealt  witii  the  contest  i  it 
came  up  at  Victoriii,  liy  the  testimony,  with  alertnts- ,,  ,1 

locarc,  so  far  as  going  into  Mr.  Cooper's  intention  in  «-i  i\. 
ing  in  San  Fiancisco  was  concerned,  letting  it  stand  ii|..,ii 
the  evidtiice  m.aking  a  jiriiiia  J'aiiv  case  of  domii  il  imj 
(Jreat  Britain's  contention  that  Cooper  was  ok\  ner.  \\\. 
did  think  that  i>ossiltiy  it  woidd  he  contended  afterwiuls 
tii.it  lloKcowitz  had  some  interest  in  these  cliiiins.  and  we 
endeavored  to  sliow,  that  for  the  reason  that  he  was  n<,\ 
a  Ihitish  sid)ject.  and.  as  he  admits,  helieved  hiniM-ll  in 
American  citizen— and  lliat  is  shown  conchisivcly  \w 
desiieil   and    had   his   interots,    if  any,  pnt    in   C(po|h|'s 

2oname.  If  this  does  not  amount  to  estoppel  on  own(i~lii|i, 
I  do  not  know  what  does;  and  this  was  one  oiij^ct  ol  oiii 
testimony  in  Montreal,  although  there  were;  others  TIhh' 
is  another  reason,  if  it  shall  hecoine  material,  elsewlitie. 
This  is  the  first  time,  I  think,  your  Honors  have  (^mi 
heard,  or  that  it  has  ever  hef^n  urged,  that  one  wlic  n- 
gards  himself  as  the  equitahle  owner  of  a  piece  of  |iici|i. 
erty,  and  is  suing  for  its  value  in  the  name  of  anoilu  i  in 
whom  he  has  jiroved  the  title,  can  himself  set  up  iliat 
fact,  against  a  defense  to  the  claim  of  such  second  owner. 

30  Admitting  that  he  is  not  the  legal  owner,  they  have  to 
assume  that  their  act  was  against  puhlic  policy,  liecaii-i  it 
was  in  fraud  of  the  registry  laws  of  Great  Britain. 

But  over  and  ahove  all  other  questicms,  as  shown  liv 
the  instruction  of  tlie  Treaty,  this  is  a  Coiiveii- 
tion  to  (lass  upon  the  claims  only  of  persnns 
presented  as  claimants  against  the  United  States  lieture 
the  Trihuiial  of  Paris,  helween  pages  1  and  <'.o  nf  the 
British  schedule,  and  such  a  person  is  Cooper. 
Now,    it  appeals,  and    1   cite  without  reading.   l)i(ey, 

40 page  i;W,  that,  in  the  ahseiice  of  proofs  snowing  tliiit 
Cooper  meant  to  return,  and  in  the  presence  of  the  sIkiw 
ing  that  he  had  lived  for  4o  years  in  San  Francisi  o,  it 
must  he  taken  as  conclusively  settled  as  a  matter  of  law 
that  his  civil  domii.il  was  in  the  United  States.  The 
same  do(!trine  is  laid  down  in  full  in  Baker's  Halhck. 
Volume  1.,  page  421,  and  notes;  but  I  do  not  know  that  I 
have  any  more  distinguished  an  hority  on  the  whole  siih 
ject  of  civil  citizenship  than  Dr.  Phillimore.  who  lias 
written  a   work  on  domicil.      He  quotes  with  appinval, 

50 at  page  14t)  of  his  work,  the  conclusions  of  Justice  Stury 
and  the  American  Judges,  which  he  cites  iu  his  note-  as 
the  law.     He  says  as  follows: 

"  Iu  iineHtiouH  on  tliiH  Kul)ject,  tlie  chief  poiut  to  1)0  couttidiTi'il  is 
"  tlie  iiiiniiiis  iii'iiiriii/i,  au(l  oDurtH  are  to  devise  siu-h  reaMimaMe  nilis 
'•  of  eviilence  as  may  ostalilisli  tlio  fuct  of  intention.  If  it  sutliciiiitlv 
"  appear  that  the  iuteutiou  of  removing  was  to  matte  a  peniiaiiciit 
"  settlemtjut  or  for  an  iuilelinite  time, the  right  of  domieile  is  iici|iiii.(l 
"  l,_v  a  resilience  even  of  a  few  days.  Again  every  man  is  viewc.l  In 
"  the  law  of  nations  as  a  member  of  the  society  in  wliich  he  is  iniii].l. 
"  '^HKi'leiiir  is  iiriiiin  fiiiir  rriih'iiii'iif  iiiiliiiifil  i/i'irmt'T;  snsce|iiil>lr,  Imw- 
60  "  ever,  at  all  times  of  explanation.  If  it  l>e  for  a  special  purjMiM'. 
•'  mid  transient  iu  its  nature,  it  f.liall  not  destroy  the  original  or  )niiir 
"  national  character;  hut  if  it  lie  taken  up  iniiiiins  m'iii<;i'li.  tin  1:  it 
"  lieoomes  a  domicile,  superadding  to  the  original  or  jirior  eliiiiaitcr 
"  the  rights  and  privileges  as  well  as  the  disabilities  and  )ieii:iltii'» 
"  of  a  citizen,  a  subject  of  the  country  in  which  the  resideuci'  is 
"  established." 


H!tl 

(Mr.  Dickinson's  Closing  Arguniont.) 

1  will  not  continue  at  length  the  reading  of  Dr.  Philli- 
iiiore.  It  results  in  a  very  hill  examination  of  what  i.s  a 
( ivil  domicile  in  time  of  peace,  that  il  makes  him  a  civil 
I  itizen.  to  use  the  language  to  which  my  learned  friend 
tikes  so  ni'.ich  exception,  of  the  country  of  his  domicile, 
(w  ing  it  allegiance  like  all  other  citizens,  and,  as  I  shall 
>ii()W,  discharged  in   the  countiy  of  his  domicile   from  all 

ioii^litc)f  protection  hy  the  country  of  his  original  allegi- 
jiiue.  t  xcept  in  the  single  instance  that  he  shall  not  hedis- 
(liminated  against  in  the  country  of  his  domicile  hecause 
(it  hi'  alienage.  We  have  it  from  Kent,  i»age  7<i,  that  do- 
iniiile  is  the  lest  of  national  character,  and  1  liave  dis- 
cussed this  suhject  and  cited  our  antliorities  at  page  m 
ami  foUowmg  of  my  hrief. 

Kven  in  tiiue  of  war,  as  in  peace,  the  exception  for 
w  liiih  we  also  contend  as  strongly  as  for  the  rule,  is  made; 
it  the  domiciled  citizen  seeks  to  surround  hin)self,  without 

20  wM  uralization,  with  the  protection  of  the  government  of  the 
( (iiintry  of  hisliome  as  against  his  original  allegiance  for  the 
Msiilts  of  violating  I  ho  lattei'.  "The  only  li  nutation."  says 
Kent,  page  7r»,  "upon  the  principle  of  determining  the 
"  iharactei'  from  residence,  is.  that  the  party  must  not  he 
"  found  in  hostility  to  his  native  country  "  ;  the  allegiance 
!>;  still  preserved.  "  He  must  do  nothing  inconsistent  with 
"  ills  native  allegiance;  and  this  qualification  is  annexed 
"  to  the  rule  hy  Sir  William  Scott  in  the  case  of  the 
'•  '  Kmanuel,'  and   the  same  qualification   exists   in    the 

30"  French  law,  as  well  since  as  hefore  their  revolution." 
1  inject  this  in  passing  so  that  the  distinction  may  not 
be  lost  sight  of  until  I  reach  it. 

1  have  cited  in  my  hrief,  at  page  4fi,  a  quotation  from  -2 
Wharton's  Digest: 

"  Protection  caunot  he  iuvokoil  hy  ilomicilcil  foreignerH,  €»X(!ei)t  for 
"  (lisorimiuation  and  nrltitrarv  acts  '  as  distiumuHlied  from  penalties 
"  iiiul  iiiinishraents  incurred  by  the  infraction  of  the  laws  of  the  eonn- 
"  tr.v  within  whose  jiirisdictiou  the  sufferers  have  placed  them- 
"  selves."' 

"^"  My  friends  take  exception  to  that  quotation  and  say,  at 
]i;ige  7  of  their  argument  in  reply,  as  follows: 

"  The  quotation  (p.  40)  from  Wharton  will  be  found  to  be  iucom- 
"  plete  ;  it  should  have  been  as  follows  : 

"  The  country  whose  'protection'  is  invoked  cannot,  it  is  conceived, 
"  properly  interpose  in  such  a  case  unless  the  municipal  law,  the 
"  viiili.tion  of  which  is  charged,  contravenes  some  right  of  such 
"  icuuitry  acquired  by  treaty  stipulations  or  otherwise.  The  principle 
"  ilocK  not  at  all  interfere  with  the  right  of  anv  State  to  protect  its  citi- 
"  zciiM  or  those  entitled  to  its  protection  wtieu  abroad  from  wrongs 
;q  •'  mill  injuries,  from  arbitrary  acts  of  oppression  or  dejjrivation  of 
■  "  pioperty,  as  controdistinguished  from  penalties  and  punishments, 
"  iiuMirred  by  the  infraction  of  the  laws  of  the  country  within  whose 
"  jurisdiction  the  sufferers  have  placed  themselves." 

Now,  may  it  please  your  Honors,  criticism  has  been 
iii.iile  that  my  quotations  are  incomplete  at  several  difi'er- 
eiit  pliices  in  my  learned  friend's  argument.  1  ([uote  the 
gif-t  iind  conclusion,  and  I  submit  to  the  Court  whether, 
t\ir  the  purposes  of  the  point  made  1  had  not  quoted  sufii- 
(iiiitly  from  the  )>age  of  Wharton  »nery thing  bearing 
6ou|icin  it.  Great  Britain  contests  my  position,  bear  in  mind, 
tluil  the  civil  domiciled  citizen,  not  naturalized,  although 
a  natmal  l)orn  British  .subject,  cannot  invoke  the  protec- 
tion iif  Great  Britain,  as  a  person  entitled  to  its  protection 
against  the  United  States,  for  an  act  committed  eithei'  in 
inli action  of  the  laws  of  the  United  States  or  in  defiance 


(ifi-rf 


T 


S02 


iMii  4^ 


1^" 


i^i^ 


(Mr.  Dickinson's  Closing  Argument.) 

of  the  sovereignty  of  the  United  States.  They  take  s(|ii  i  ;o 
issue  with  me  there.  1  state  that  the  rule  is  tliis:  tliit 
Buch  naturnl  born  subject  of  Great  Britain,  still  uinirr 
original  alle}>iance  to  Great  Biitain,  which  has  imt 
beeu  broken,  if  (iomiciled  in  the  United  States,  (.m. 
not  be  protected  by  Great  Britain  as  against  iho 
United    States,     except    in    the    single    case    that    lie 

lois  discriminated  against  because  of  his  aUeim^i-; 
because,  for  instance,  he  is  not  given  equal  protect  iin 
of  the  laws;  and  only  in  that  case  can  Great  Britain  inli  i  - 
vene.  If  he  is  treated  precisely  like  a  citizen  of  liie 
United  States,  then,  and  in  that  case.  Great  Britain  can- 
not intervene  f«)r  his  protection  That  is  the  contenlii  ii; 
that  is  exactly  where  we  stand;  and  that  is  just  where  we 
differ  as  to  Cooper.  In  the  first  place,  let  us  see  what  I  ho 
situation  is  in  the  United  States  as  to  what  law  is  biiulin^'. 
I  will  cite  the  authorities  to  this  point  of  the  jurisdictidii 

20of  the  United  States,  not  only  over  the  residents  witliin 
its  border.-^,  but  over  all  persons,  having  vessels  on  the  liij;li 
seas,  living  within  its  borders  of  course.  The  same  doc- 
trine was  asseiled,  pro  and  con,  at  the  beginiiinf;  of 
our  late  war.  The  United  States  asserted  that  all  persons 
within  our  borders,  domiciled  or  not,  owed  allegiance  to  I  lie 
United  States,  and  maintained  that,  so  long  as  they  re- 
mained here,  they  could  be  punished  like  any  other  citizens 
of  the  United  States  for  treason,  sedition,  or  anything  else. 
and  that  they  might  be  employed  in  the  land  and  navnl 

30 forces  of  the  United  States  so  long  as  they  remained  hero. 
No  one  disputed  that  they  had  the  right  to  turn  tlnir 
faces  away  to  their  own  country:  no  attempt  was  ever 
made  to  detain  them.  Great  Britain  acknowledged  that 
proposition,  and  it  was  through  the  sug^iestion  oftireat 
Britain,  admitting  that  citizens  of  Great  Britain,  donii(  iled 
in  the  United  States,  were  amenable  to  all  our  laws 
and  all  our  claims  of  sovereignty,  so  long  as  they  con- 
tinued to  remain  here,  that  they  were  given  time  and 
opportunity  to  turn  their  faces  homeward,  or  to  anot'in 

40country,  and  thus  change  their  domicil.  So  longa.stiie 
civil  donjicil  existed,  it  was  admitted  by  both  sides  that 
they  were  bound  by  all  the  laws  and  by  the  sovereignty  of 
the  United  States.  This  is  the  undoubted  law,  ami  I 
read  it  merely  to  give  your  Hcmors  the  citations  readily; 
and  First  let  me  premise  from  Section  21  of  1  Wharton: 

"  In  a  ooutroversy  l)pt\v»'eu  the  United  States  nnd  a  foreign  natinu 

"  as  to  boundary  the  conrtH  will  follow  the  decinion  of  those  di'imil- 

"  ineut8   of  the   fSovernnieiit   to  which  the  aHscrtion  of  its  iiitcn^is 

"  agniitHt  foreign  ])owers  is  confined,  /.  <•.,  the  legislative  and  the  cx- 

CQ  "  ecutive," 

citing  Foster  r.  Neilson,  2  Peters,  2.53;  Garcia  v.  Lee.  1:' 
Peters,  'A\\  Williams  v.  Suffolk  Insurance  Coinpanv,  \:\ 
Peters.  41.");  U.  S.  v.  Reynes,  S»  Howard,  127. 

In  the  matter  of  this  same  Coopei-,  although  it  was  not 
necessary  to  the  decision  of  that  case,  in  143  U.  S  ,  paj;e 
472,  on  this  very  subject  of  the  controversy  in  Bering  Sea, 
the  Court  heicl  that,  the  sovereign  authorities  of  the 
United  States  had  asserted  an  exclusive  jurisdiction  111 
Bering  Sea. 
^  The  Conmiissioner  on  the  part  of  the  United  States:  — 
Did  the  Supreme  Court  say  that  Congress  had  a.s.seitd 
jurisdiction,  or  the  executive  branch? 

Mr.  Dickinson:— Both  legislative  and  executive,  and  I 
cite  to  your  Honors  the  authority  cited  in  that  opinion  on 
this  very   point,  namely,  Williams  v.  Sutfolk  lusuraii.o 


^If'HJ 


Sl»3 

(Mr.  Dickiiisnirs  CloKiii^  Argument.) 

(  Drnpany,  3  Sumner,  270,  and,  on  certificate  of  division, 
111  that  case  in  the  Supremo  Court  of  the  United  States, 
11!  Peters,  4lf>;  Luther  v.  Borden,  7  Howard.  I;  (Jeorgia 
r.  Stanton,  «  WaUace,  50;  Jones  r.  U.  S.,  187  U.  S.,  202; 
Nabob  of  Carnatic  v.  East  India  Company,  I  Ves.  Jr.,  371; 
■J.  Ves.  Jr.,  Mi;  a  Ves.  Jr.,  424;  I'enn.  v.  l^altimore,  1  Ves 
Si..  444. 
10  Now  what  is  tlio  law  as  to  Cooper  for  our  purposes  at 
the  time  of  Jiis  acts;  It  is  tliu  assertion  of  tiie  sovereign 
iiiithorily  binding  bini  and  all  cili/ens  of  the  United 
States. 

The  Commissioner  on  tlio  part  of  the  United  States:— 
Tiie  Court  hehl,  did  it  not,  tiiat  it  was  a  diplomatic  exec- 
utive cmestioni! 

Mr.  Dickinson:— On  tiie  contrary,  the  decision  was  not 
upon  a  diplomatic  (piestion.  The  Court  held  and  found 
that  this  claimant  hud  been  condemned  in  the  United 
:o Slates  Court,  and  that  he  had  appealed  to  the  Supreme 
Court  of  the  United  States,  as  he  ought  to  have  done, 
jiid  then  had  abandoned  his  appeal;  that  is  the  point  of 
I  lie  decision. 

The  Commissioner  on  the  part  of  the  United  States:— 
It  was  a  petition  for  prohibition  that  the  case  was  settled 
upon. 

Mr.  Dickinson:— Certainly;  he  asked  for  a  writ  of  pro- 
hibition. 

The  Commissioner  on  the  part  of  the  United  States: — 
;o[  hud  in   mind  another  case,  that  of  the  Little  Guano 
islands. 

Mr.  Dickinson:  -It  is  not  my  purpose  to  cite  every  case, 
your  ilcmor,  but  only  those  directly  in  point. 

Having  premised  thus  nuich,  I  return  and  refer  to  the 
liclmte  in  18(52  in  the  House  of  Lords  upon  the  question  of 
tiif  rights  of  British  subjects  domiciled  in  the  United 
States.  A  condensation  of  it  will  be  found  in  2  VVharton, 
S(  ction  2H0.  The  Earl  of  Derby  stated  the  position  of 
(ireat  Britain  upon  this  subject: 

"  The  noble  earl  opposito  Las  apparently  u^rived  Bomo  advantage 
"  and  instniftion  from  the  eorreHiioudeufo  in  wliioli  be  was  euKaged 
■'  with  Mr.  Seward,  because  in  an  early  stage  of  those  proeeediugs  he 
"  very  properly  invoked  against  those  i)roeoedings  the  protection  of 
"  the  American  law." 

I  read  from  the  Earl  Derby's  side  of  it  because  he  was 
( liticising  there  the  ministry  which  had  asserted  that 
doctrine: 

"  He  said  thot  that  which  the  law  sanctions  with  regard  to  American 
;o  '■  subjects  we  could  not  complain  of  when  applied  to  British  subjects, 
■  Imt  the  question  is  this,  does  the  law  sanction  it?" 

Tiien  he  goes  into  the  question  whether  there  has  been 
iliscriminatiou  against  British  subjects  and  whetlier  thoy 
liave  the  piotection  that  surrounds  American  citizens. 
l-!ail  Russei  says  in  reply  as  to  the  subject  then  under  dis- 

ciission: 

"  That  the  matter  was  further  inquired  into  and  it  was  found  th-vt 
"  Mr.  Seward  was  wrong  in  his  fact  that  this  gentleman  had  given 
••  notice  that  ho  intended  to  become  a  citizen  of  the  United  States  r.nu 
"^  ■'  to  forswear  all  allegiance  to  Her  Majesty," 

ami  it  turned  out  that  he  had  not. 

Let  us  not  forget  that  my  friends  have  taken  direct 
issue  with  me,  and  have  even  gone  to  the  length  of  read- 
ing; another  portion  of  Wharton -and  have  completed  the 


IH 


|(t 


TT 


8M 


*• 


(Mr.  DickiiiHitn's  Cloning  Argument.) 

sentence  which  I  have  citt'd,  as  teiuling  to  sustain  tl.  ii' 
contention— ilnis  intimating  that  I  am  incorrect  in  i  iv 
contention  that  tlie  only  consideration  foi'  a  vnt-r  Li>|. 
Cooper's  is  as  to  disciimination  against  him  and  the  i... 
priving  him  of  rights  which  are  granted  our  own  citizi  m. 
1  continue  from  the  same  section: 

"  tUtizciiH  of  tlio  Unitt'il  Htfttt'H,  wlii-n   nbrond,  will  tw   |ii(iti,iiil 
"^  "  (roiii  iliHcriiiiiniition  uimcd  nt  tliciii  on  iict'oiint  of  tliHr  iiiitioiuiMy. 

"  A  citizen  of  tlio  Ihiitwl  HtiitoH  wlio  abiindonH  Iuh  nationality  ■  uii. 
"  not  tako  the  K>°<>iin<l  tl>nt  Huek  nationality  waH  diHcriniinated  aKiiiii.st 
'•  hy  a  forcinn  Htatt'. 

"If,  inih'fd,  Mr.  TliraHlirr  in  liiH  arront  and  trial  did  not  cnjciy  iljc 
•'  bvnetitH  which  native  liorn  HpaniHh  Hubjccts  enjoy  in  like  c»mcs',  1iu{ 
•'  waH  more  liarHhlr  treated  or  more  Mcverely  |)nuiHhed  for  the  n  n-nn 
"  that  lie  waH  a  native  born  citizen  of  the  United  HtatcR,  it  wiml.l  ],c 
"a  clear  caHO  of  the  violation  of  treaty  obli^atiouH,  and  would  i|i'. 
"  niand  the  interixmitiou  of  the  Oovernuient.  There  exiKts  in  iImh 
"  department  no  proof  of  any  hucIi  extraordiD;.ry  treatment  of  ^I|■, 
•'  ThraHher. 
20  "  The  iiaruKraph  n]>on  which  thiH  deciHion  rPHtH  in  that  prole,  imn 
"  and  allegiance  are  reci})rocal  ;  that  the  citizen  of  the  United  StntcH 
"  who  becomcH  domiciliated  in  another  country,  contributing'  liis 
"  labor.  talentH  or  wealth  to  the  HUjniort  of  Hociety  there,  bii-,,iiics 
"  practically  a  member  of  the  political  Htiito  exiHtiiiK  there,  and  I'nr 
"  the  time  withdrawR  hiniRelf  from  the  dnticH  of  citizenHhi))  here  and 
"  cooReuts  to  waive  the  reci]irocal  right  of  jirotection  from  its  own 
"  Government"  (2  Wharton,  Hee.  244). 

Mr.  Fish,  in  1870,  in  i elation  to  the  matter,  section  JH, 
says; 

30  "We  are  not  entitled  to  claim  for  our  ritizenR  on  trial  in  timt 
"  Kingdom  (Great  liritain)  privileges  which  are,  1st,  not  grautcil  by 
"  British  law  to  British  subjects." 

Again,  Mr.  Davis,  in  1873,  to  Mr.  Austin: 

"British  subjects  when  within  the  tiBrritorial  jurisdiction  of  thp 
"  United  States,  are  required  to  resi)ect  and  obej-  the  laws  of  tlic 
"  United  States,  and  when  held  to  answer  for  any  offense  agniunt  tlicsc 
•'  laws  in  the  courts  of  the  country,  have  the  same  rights  and  privilcjrts 
"  extended  to  them  that  are  enjoyed  by  citizens  held  to  answer  for 
"  similar  offences.  Citizens  of  the  United  States  when  held  to  answor 
in  the  courts  of  Great  Britain  or  her  colonies  have  a  right  to  deinaiKl 
the  same  privileges  extended  to  British  subjects  under  like  circum- 
stances." 


40.. 


The  statement  of  the  law  is  made  by  Mr.  Bayard  to  Mr. 
McLane,  June  23,  18S6  as  follows: 

"  That  the  State  to  which  a  foreigner  belongs  may  intervene  for  his  jiro- 
"  tection  when  he  has  lieen  denied  ordinary  justice  in  the  foreign  couu- 
"  try,  and  also  in  case  of  plain  violation  of  the  substance  of  niitunil 
"  justice,  is  a  projiosition  universally  recognized.  One  of  the  liif;lipst 
"  authorities  on  international  law,  Valin,  says:  'To  render  legitiniatc 
"  'the  use  of  reprisals,  it  is  not  at  all  necessary  that  the  ruler  a^'ainst 
50  n  <  whom  this  remedy  is  to  be  employed,  nor  his  subjects,  should  liavp 
"  'used  violence,  nor  made  a  seizure  uor  used  any  other  irregular  at- 
"  '  tempt  ujjon  the  i)roperty  of  the  other  nation  or  its  subject;  it  is 
"  'enough  that  he  has  denied  justice.' 

"  If  the  government  of  a  foreign  country  refuses  to  execute  its 
"  own  laws  as  interjireted  by  its  own  courts  and  to  give  eflect  to  llic 
"  decisions  of  its  own  courts,  in  respect  of  a  foreigner,  it  dciiios 
"  justice. 

"  If  the  tribunals  of  a  foreign  State  are  unable  or  unwillint;  to 
"  entertain  and  adjudicate  upon  the  grievances  of  a  foreigner,  tlio 
"  ground  for  interference  is  fairly  laid. 

"In  his  recent  work  on  the  'Laws  of  Nations,'  Sir  Travers  Twiss, 
60  "  who  holds  a  distinguished  position  as  a  writer  on  public  law,  says: 

"  '  International  justice  mav  be  denied  in  several  ways. 

"  '  First,  bv  the  refusal  of  a  nation  either  to  entertain  the  coni- 
"  '  plaint  at  all  or  to  allow  the  right  to  be  established  before  its  trib- 
"  'unals. 

"  '  Second,  or  by  studied  delays  and  impediments  for  which  no  good 
"  'reason  can  be  given,  and  which  are  in  effect  equivalent  to  refusal. 


H\K) 


section  -.'U, 


10 


(Mr.  DickinHon'H  Closing  Argumentr) 

"  'Third,  or  by  au  pviilontlv  unjiiNt  ami  partial  dcriHion.' 
•  'Law  of  NatiouN,'  Sir  TruvprH  TwiMH,  port  1,  pan*'  iWl.'  " 

''  Now,  niori>  nati(iii<^lit,T  pecnliaritioH  in  adininiNtt'rinK  juntiro  will 
not  permit  intcrfcri'inMv  Tli«<  in«>ri>  met  that  a  citi/.cu  of  flu'  UnitMl 
Htatt'H,  when  ou  trial  for  an  off<'iiMf  iu  AiiHtria,  whioU  li«  voliiutarilv 
viHitPtl,  Ih  forliidili'ii  when  niiilor  nrrcwt  to  liavo  iiitnrooiirNt'  with  his 
fricnilH,  Ih  not  Krouuil  forthf  diplomutiv  inturponitiuu  of  tho  Uuitod 

StUtl'H. 

••  IrrPKiilofiticH  in  tht'  iiroHwntion  of  a  citizen  of  th«>  United  HtutttH 
'  IU  ('hili  not  atnonntinK  t<i  a  denial  of  jiiHtiee  or  an  undue  diHcrimina- 
"  lion  u^ainHt  him  an  an  alien,  will  not  lie  ^rouud  for  the  iuterfcrcucu 
•■  (if  the  Oovcrument  of  the  United  HtoteH  "  (Miirev,  2  Wharton,  Hec. 

•2:10) 

In  the  F«Miinn  trouhlfR  tlie  samo  thing  was  stated,  see 
the  tlisnatch  of  Evarts  to  VVi'lsh  in  .July,  18»iM;  a  very 
raref'ully  prepared  instruction  to  onr  Minister  by  Secretary 
(il  State  William  M.  Evarts.  It  was  in  the  matter  of  the 
r.lcase  of  a  prisoner  who  claimed  the  protection  of  the 
^*^1  nited  Htates  as  an  American  citizen  domiciled  in  Great 
i'.ritain: 

■'  The  President  hoH  every  desire  that  the  invostigation  shall  result 
•'  to  the  eDlargenicnt  of  the  prisoner  and  in  ouy  event  slmU  satisfy  him 
"  ntid  his  friends  that  every  proper  step  has  I'leen  taken  in  his  liehalf 
-'  til  aocompliah  the  purposes  of  the  joint  resolution  of  Congress." 

Says  Mr.  Evarts: 

"  It  is  ]>arti(>ularly  desirable  that  nothing  be  done  whieh  might  give 
••  the  Oovorument  of  Her  Majesty  even  colorable  grounds  for  regard- 
3°  "  iiit»  the  action  now  taken  as  in  any  sense  an  interference  in  the 
■■  ilomestic  judicial  administration  of  another  Htatn,  the  sole  object 
••  lii'iug  to  discover,  if  possible,  whether  any  presumption  of  innocence 
"  exists  iu  favor  of  the  prisoner,  which,  if'lir  irc/v  u  Itviiish  sidiject,  and 
"  tiic  evidence  iu  lis  behalf  came  through  the  usual  channels  of  British 
"  hiw,  might  reasonably  operate  to  secure  him  the  relief  contemplated." 

.Again,  in  the  correspondence  with  Great  Britain,  Mr. 
Jilfeison  says: 

'  Aliens  in  general  being  within  our  limits  and  jurisdiction   are 
"  liiiund  to  respect  our  laws,  and  cannot  exact  ony  other  mode  of  pro- 
^'-'  ■'  iiinl(.'ntion  than  that  vhich  is  marked  out  for  the  information  of  our 
■•  (iwu  citizens." 


IM 


Now  upon  the  point  of  Cooper's  right  to  return.  Let  me 
state  this  proposition,  so  that  it  may  impress  the  Commis- 
sionors  and  our  learned  friends  as  the  position  taken  after 
most  careful  deliberation  and  thought.  If  Cooper  desired 
to  engage  in  any  commerce  or  trade  permitted  by  the  laws 
of  Ills  original  sovereignty  but  forbidden  by  the  sover- 

joeignty  of  his  own  country,  he  could  do  it  by  setting  his 
faif  toward  the  border,  but  he  could  not,  wherever 
onr  sovereignty  reached,  still  remain  in  the  United 
States  under  the  protection  of  our  laws  for  all  purposes, 
exit'i)t  for  acts  in  violation  of  his  duty  to  his  original 
alli'giance— for  at:tive  violation  of  his  obligations  to 
tliat  country— he  could  not  remain  surrounded  by 
eviiy  guarantee  of  our  fundamental  laws — to  personal 
lilitity,  life  and  property— protected  by  every  muniment 
tliat  surrounds  the  life  and  property  of  every  citizen  of 

6otli<'  United  States— receiving" the  protection  of  the  Gov- 
voinment  of  the  United  States  which  Great  Britain  could 
not  extend  to  him  within  our  jurisdiction— he  could  not 
remain  within  our  jurisdiction  and  violate  the  assertion 
of  (lur  sovereignty.  If  be  did,  and  suffers  equally  with 
American  citizens,  Great  Britain  cannot  intervene  to  pro- 


»i 


w 

1    !^' 

it 


(Mr.  DickiiiHoii'H  CIohImk  ArKiiint'iil.) 

tt'ct  him.     If.  wJHliiiif;  touiiKu^o  in  this  t>iit»r|)iis(>,  hi>l<  i<| 
t'veii  tiiiiietl  his  I'lict*  hoiiunvuni,  for  hn  would  not  I1.1  ,. 
iieudutl    to  pu8H  tho   hoi'tiur  under   tiio    ducisiou   of    \,u,.\ 
Stowi'U  in  tini«3  of  iwuce  or  war.  I»«  would  liuv»>  at  oh  i- 
uscapt'd   to  the    |irot»'ction   of   his  own  sovoiciKUty   .iiiij 
f>sca|)od  linliility  to  ours  to  thn  ttxttMit  of  any  oth*>r  suli|<  1 1 
of  (>r«>at  Hritain  actuall^r  living   th(>ri>.     Itut   h<>  c-iiiii.,! 
lort'inain  witliin  our  sovfrfi^nty  during;  this  loii^  pt'iinil 
civilly  doiniciUul  tliore  -and  set  himsvlf  up  — liiinself  |>i 
tiMttMJ  f(p)iilly    with   our  own  (;iti/,«'ns  under  our    l;n\~, 
and  <lefy  the   sovereignty  that    protects  him.     Said    Mi 
Madison: 

"  The  moHt  iuvi<ilal)I(>  1111(1  till*  inoHt  nlivioiiH  ri^lit  of  nii  iiUni  rrK|. 
"  (li'iit  iH  tliiit  of  witli<lr»wiiif{  liiiiim'lf  from  it  liiiiitiMl  nml  t*<iii]ic>riirr 
"  nllc-Kiuuc*'  liiiviDK  no  otlicr  fouudutioii  tliau  Iiim  voliititurv  ri-Hidi  n,.',. 
"  itHolf.  The  itifrnctioii  uf  tliiH  ri^lit  ih  ciniHt'iiiiontly  aiiioii^  the 
"  ^rciitoHt  of  iiijurioH  that  onn  Ixt  donn  to  iuiliviilualH,  uiiil  anion^'  i|ii> 
2o"jiiHt<>Ht  of  caiiHUH  fur  ihu  iuturiJOHiug  iiruteotiuu  of  other  goMiii- 
"  luentH." 

Section  203,  Vol.  2  of  Whartdi.  There  has  been  aiiollu  r 
controversy  with  Oreat  Britain  to  which  I  call  vmir 
Honors'  attention.  Tho  result  of  it  wen;  these  instiiic. 
tions  to  Mr.  James  Russell  Lowell  from  our  (ioverniMcni. 
A  person  made  considerable  invostments  in  the  Fiji  Fsl.iiids 
and  wan  there  domicile<i.  In  tH75  tl  I* iji  Islands  \vi'rt> 
annexed  to  (Sieat  Rritaiii,  and  it  se(  ^  that  this  iinson 
complained  to  our  (iovernmont.  11  was  an  Anieriiaii 
^"citizen. 

He  had  received  various  injuries  from  the  British  (iov 
eminent  entitling  liim  lo  redre.ss.  Now.  there  is  no(loiil,t 
that  the  injuries  had  iiecMi  sustained.  Mow  sliuiild  Iii> 
apply  for  rediers  a  citizen  of  ours  domiciled  in  (Jrvat 
Biitainf  Assuming  that  he  had  been  injmed  by  the 
British  (Jovernment.  how  should  he  apply  for  redress^ 
This  was  the  letter  of  our  Ciovernment  on  the  subject. 

"  If  you  were  a  citizuu  of  thoUuited  HtateH,  domiciled  iu  the  I'mtnl 
"  Btatt'H,  you  might,  iu  »ome  coutingeucieH  BUHtain  an  appeal  fi>i'tlio 
"  di|)lomatie  intervention  of  this  Department.  Whether  von  slill  ro- 
"  main  a  eiti/uu  of  the  United  States  Ihu  (pieHtion  whieh  it  ih  not  iicccfl- 
"  sarv  here  to  diseUHs.  It  Ih  Huflleieut  to  say  that  your  adoptimi  of 
'•Fiji  as  a  permanent  home  leads  the  Department  to  infer  tlnit  yo'.i 
"  iieceptud  a  Fiji  doniieil.  If  so  your  contiuuanee  in  Fiji  aflcr 
••  Uritish  annexation  niukes  your  domieile  British,  and  under  tlicsccir- 
"  cumstanees  it  is  not  thought  that  yon  eau  lay  elaim  to  the  di|iio- 
"  matic  intervention  of  the  Department.  It  was  held  in  a  reeent  ciikc 
"  that  if  a  domieil  in  Mexico  was  proved  to  have  attached  tn  a 
"  British  suliject  there  resident,  this  excluded  hucIi  jjarty  from  tlie 
'•  right  to  appeol  to  British  inter\ention  for  redrt'ss  for  wron^R  iulUctccI 
"on  the  i)arty  in  Mexico.  Tho  same  principle  rules  the  i.nsont 
•'case.  No  doulit  the  grievauces  of  which  you  complr.in  entitle  v. ui 
•  to  much  sympathy,  hut  if  domiciled  in  Fiji  your  rc'lress  muHt  now 
"  he  sought  from  the  British  government, either  heca'jse  it  sanctioncJ 
"  such  injuries  or  because  it  stands  in  the  place  of  the  Fiji  authoriticH, 
"  by  whom  they  were  peri)etrated." 

Porter  to  Burt,  July  11,  1885. 

"  The  American  citizen  who  goes  into  a  foreign  country,  altliounh 
"  he  owes  local  and  temporary  allegiance  to  thot  country,  is  yet,  if  lio 
"  performs  no  other  act  changing  his  condition,  entitled  to  the  pro- 
"  tection  of  his  own  Government,  and  if  without  tho  violation  of  uny 
f  "  municipal  low  ho  should  be  oppressed  unjustly  ho  would  linvc  a 
"  right  to  claim  that  protection,  and  tho  interposition  of  the  Aniericiin 
"  (Government  in  his  favor  would  be  cousidered  as  a  justifiable  iiit(>r- 
■ '  position.  But  his  situation  is  completely  changed  where  by  hi»  own 
"  act  he  has  made  himself  the  subject  of  a  foreign  power.  Altlioiiftb 
"  this  Oct  may  not  be  sufficient  to  rescue  him  from  punishment  for  .iiiy 
•'  crime  committed  against  the  United  States — a  point  not  intended  to 
"  be  decided— yet  it  certoinly  places  him  out  of  the  protection  of  the 


40 


;o 


1.) 

piisc.  lifli  1. 1 
ikl  Mot  lin  I' 
ion  of  |,ui,| 
liiivi>  at  iiii  !• 
'M'iKnty  .11,, I 
)tlu'r  Hiilij. .  1 
t   li«'  cinih  I 

>I)K     pt'lilHl 

liinist'lt'  |>i 
r   oiir    law-. 
1.     Siiid    Ml 


of  HI)  itlu'ii  n  '.I. 
ikliil  tt<iu)iiii'iirr 
ntnry  rfHiilii,,,. 

itly  Hliioiif;  llio 
UUll    ailll>ll(<  the 

(  ultiur  KiiNcrii. 


been  iiiKitliir 
T  call  vi.iir 
hcsH  iiistiiic. 
(lovorniucnt 
i(!  Fiji  IsliuidH 
Islands  w.'ic 
t  this  |i('i>iiii 
an  Anieiican 

Britisli  (Jov 
ic  is  no  doiilit 
i\v  should  111' 
led  in  (liv;it 
juicd  hy  Ihr 
for  r('di'cs-i( 
0  subject. 

eil  in  the  I'nitid 

>n  a|)|)cul  for  tlii> 

Ihur  voii  Htill  re- 

h  itiH  not  ni'c(  s- 

our  ni1(>|itiiiM  <if 

;o  iiifor  tlmt  \v:i 

•a  in   Fiji  al'ici- 

under  tlicHc  i  ir- 

m  tn  the  ili|>li>- 

in  a  roc'iMit  ciisf 

attached    t(i    a 

party  from  the 

wror.fjh  iullictcil 

Ubh   the  iircM'iit 

plf.iu  entitle  y'U 

e'tresH  niust  now 

jse  it  BanctiiineJ 

Fiji  autlioritics, 


)untry,  aUboiinh 
ntry,  Ib  yet,  if  ho 
tied  to  the  iiro- 
violation  of  luiv 
ic  woxild  have  ft 
of  the  Aniericnn 
justifiable  intcr- 
irhere  by  his  own 
iwer.  Althonnh 
□ishment  for  .itiy 
t  not  intende<l  to 
protection  of  the 


:o 


(Mr.  Dickinson's  C'lo-iinj;  Ar^utut-nt.') 

United  StateH  while  within  the  territory  of  the  HiivoreiKn  to  whom 
he  haH  Hworn  ulleKiauee,  and,  eouHeiiueiitly,  tukcN  hiiu  out  uf  tlio  de- 
oeription  of  the  uet." 

'I'hiH  citation  iH  from  paKi)  454,  s)>cti(>n  l!tn.  I  did  Hup- 
|.  iHc.  and  tbcrcfitrc  did  not  treat  it  liltcrnliv  in  n\y  brief  — 
that  it  was  admitted  anion;;  civili/ed  coinitries  tliui  a  per- 
iii  liavihK  u  civil  domi<'ile  was  aiiienablu  to  the  laws  of 
<\\\v  country  in  wbicli  he  was  domiciled  -even  where  ho 
was  not  natnralixed,  and  that  Uie  only  exception  permit- 
\\\\^i  inttM-vention  by  the  comWrv  of  ori^rina!  allegiance 
was  in  the  (;as(;  of  injustice  and  discrimination  against 
him.  That  is,  discrimination  between  iiim  and  the  citi- 
/.  IIS  of  the  plai-e  of  his  domicile.  That  rule  of  non  inter- 
Miition  admits  of  no  exception  except  this:  Section  242: 

"  ThiM  rule  does  not  apply  wliere  there  in  no  h)eal  judiciary  or 
wliere  tlie  juiliciul  action  in  in  violation  of  international  law*,  or 
where  the  te»t  in  waived,  or  where  tliere  ih  undue  diHcriniiuation." 

And  it  cites  tlte  cases  in  f'liina  and  Japan  in  tliose  days, 
lliat  !i  coimtry  may  intervei;.'  to  pii»tect  a  citizen,  because 
it  is  not  admitted  that  the  countii<>s  where  the  citizen  is 
(jimiciled  have  judiciary  or  ni«>ans  of  applying  innnaii 
iii-.tiLe,  and  tliat  make  t)ie  exception. 

To  permit  the  intervention  of  (Jieat  Britain  for  the 
protection  of  a  citizen  of  (heat  Britain  domiciled  in 
this  cointt"^  is  to  admit  one  of  two  things,  and  there 
is  no  escape  from  it;  it  is  a  matter  of  national  dignity  — 

Vjtirst,  that  our  Courts  and  our  country  has  discriminated 
.i;,'.ainst  a  man  because  ho  is  a  British  snbject—treat- 
iiig  him  tmjnstly  because  of  iiis  alienage;  treating  him  dif- 
fi  iciitly  from  what  they  would  treat  an  American  citizen, 
III  second,  that  we  have  not  civilization.  Tliose  are  the 
iimIv  two  exceptions.  The  countries  are  becoming  so 
civilized  now  tliat  it  is  almost  invidious  to  cite  the  old 
authorities  as  to  the  now  energetic,  progr(>ssiv(»  and 
iiuickly  civilized  Empire  of  Japan.  The  abrogation  of 
the  consular  courts  for  the  protection  of  citizens  of  other 

40 ii.it ioiialities  in  Japan  is  provided  by  a  treaty  already 
tniinulated  to  take  effect  at  sonu*  future  time  in  Japan  — 
we  now  have  maybe  the  States  of  Morocco  or  the  States 
ill  .U'rica  south  of  the  Mediterianean,  where  it  can  be 
siitl  the  protection  of  the  Government  may  be  invoked 
(HI  the  grounds  that  they  have  not  a  regularly  organized 
jiiiliciary  or  the  ways  of  civilization  in  the  enforcement 
III  human  justice  and  the  protection  of  civilized  people, 
lint  to  grant  the  protection  in  this  case  is  to  class  us  with 
tlie  almost  nameless  countries  of  the  deserts  and  wilder- 

jOiiiss,  or  to  do  what  is  but  a  little  less,  and  assert  that 
the  subjeci  of  any  nation  in  tlie  world  cannot  get  justice 
at  tlie  hands  of  the  United  States  authorities,  or  at  the 
liaiids  of  her  courts.  This  Convent;  au  provides  for  no 
sii.  h  case,  of  course. 

I  have  treated  the  matter  seriously  and  fully  because 
till'  position  is  contested  by  my  learned  friends  who  have 
(it "d.  auKmg  other  things,  the  Koatza  case.  In  that  case 
-  Idiig  ceased  to  be  cited  under  the  peculiar  circumstance 
as  any  authority  for  anything,  as  I  shall  show  by  direct 

riO'inthority— Kostza  had  taken  the  first  oath  contemplating 
natnralization  in  the  United  States.  He  was  an  Austrian 
subject.  He  had  declared  his  intention  to  l)econie  an 
.American  citizen.  This  is  fully  discussed  at  great  length 
ill  my  friend's  brief  and  referred  to  in  the  oral  argument. 
11'    iiad  a  domicil  merely  in  the  United  States,  had  not 


I'V 


III 


M 


,1 


SOS 


(Ml'.  Dickins^on's  Closing  AiKiiiiunt.) 

become  a  citizen  of  tlie  Uniteil  States.  In;  owed  mi;;,. 
militaiv  duty  to  Aiistrin,  nnd  there  was  no  treat v  \\i:li 
Auntiia  jM'iiililtiiig  her  citizens  to  heconie  expatriatcil  ,| 
citizi'us  of  tile  United  States. 

He  went  to  Turkey,  and   Austria  witii  lier  cruiser     i 
tempted  to  take  him  from  Tmkish  territory.     Not  In m 
Austrian  territory — and  Kostzajiut  liimself  under  the  II  ,^ 

loof  the  CVmsui  of  tiie  United  States  in  Turkey  The  Horn  ,,1 
tlie  cousuhite  was  American  territory.  Tiiey  did  take  hiiu. 
Austria  took  him  from  Turkish  territory;  she  took  ihis 
man  from  Turkish  territory  witliout  tlie  protection  of  tlm 
American  Consul.  An  Ameiican  man-of-war,  notwiih- 
standing  tiiat  lie  was  only  a  domiciled  resident  of  ilir 
United  States— he  was  not  a  fully  naturalized  citizen  ili . 
manded  him  from  Austrian  cruiseis  and  finally  demandid 
him  at  the  mouth  of  shotted  guns,  and  he  was  mm 
rendered. 

20  This  is  cited  as  an  authority  hy  my  learned  fiiends  tlmt 
the  United  States  asserts  a  juri-sdiction  to  protect  a  ddinj- 
ciled  foreigner  against  the  country  of  his  orifiinal  allc^i 
ance.  Yon  will  find  it  in  their  hrief  quite  fully  tieahd. 
Iiet  us  see  how  far  this  case  will  go  when  fully  e.xumini  d, 
Mr.  Bei()ut'  goes  ()uite  fully  into  the  Kostza  case  for  a  mlu 
of  International  law.  We  find  at  Wharton,  page  ."in.,, 
Vol.  II.,  the  position  of  the  United  States  (ioverniucui 
stated  as  follows,  and  hy  the  same  Mr.  Marcy,  wlio 
conducted  the   Kostza  case   for  the  United  States,  ami 

30  who  was  cited  by  my  learned  friends  in  support  of  then 
contention: 

"  If  a  niitive  born  oitizi'D  of  the  United  States  goes  into  a  foreign 
"  oountry  anil  sulijects  liiiuHelf  to  a  ])rosecwtion  for  an  offence  anaiiist 
"  tlio  liiws  of  that  eouutry.  this  Ciovernnient  eanuot  interfere  with  llu' 
"  proeeeilings,  nor  ean  it  chiim  auv  right  to  revise  or  eorreet  tlie  1  1  ror 
"  of  Hueh  proeeoiling,  unless  there  has  been  a  wilful  denial  of  jiistire. 
"  or  the  tribunals  have  been  corruptly  used  as  instruments  for  |mi'- 
"  petrating  wrong  or  outrage.  This  Government  is  in  the  ilnilv 
"  practice  of  trying  and  punishing  the  subjects  of  other  States  foi-  df. 
"  lenses  committed  here.  Those  States  have  no  right  nor  would  tiirv 
be  allowed  to  interfere  with  our  proceedings  against  their  subjcils 
upon  any  other  ground  than  a  wilful  denial  of  justice  or  a  re  ir- 
rupt perversion  of  judicial  proceedings  for  the  purpose  of  wrong  nr 
oppression. 


40.. 


I  ask  to  have  the  distinction  made  by  him.self  noted. 

"Kostzo  did  not  return  to  Austria  or  any  of  its  domiuious,  but  it> 
"  officerB  attempted  to  seize  him  in  a  foreign  country  withmit  auv 
"  right  to  do  so.  Ihul  Ko.i/;ti  hufii  iritliin  iJio  Jiiri.filictiuii  uf  Aiiairi.i 
"  irlii'ii  hi'  irnn  sri^i'i/,  IliP  ir/mlf  flmrnrlrr  of  tin-  ci/.s'c  irimlil  Imrr  In;  n 
"  changed,  and  the  forcible  taking  of  him  from  the  legal  custody  of 
50  "  Austrian  officers  could  not  have  been  defended  on  any  principle  uf 
"  municipal  or  Internatioual  law." 


He  nas  a  Hungarian,  an  Austrian  subject  originally, 
and  went  to  the  Ihiited  States  and  made  the  usual  dec 
laration  of  intention  to  become  naturalized.  In  1s."p:!  Im- 
went  to  Smyrna  on  business,  and  theie  obtained  from  tlic 
I'nited  States  consul  a  traveling  pass  staling  that  he  \v;i^ 
entitled  to  .\mericaii  protection.  In  isr);{,  while  on  llir 
Turkish  soil,  he  was  seized  by  some  person  in  the  pay  o| 
6othe  Austiiau  Consulate,  taken  out  into  the  harbor  in  .1 
boat,  thrown  into  the  sea.  and  picked  u|)  l)y  a  boat  from 
the  Austrian  man  of  war  "  Hussar.'" 

I  am  dealing  with  this  more  si'riously  and  at  length.  I"' 
cause  like  the  citation  in  the  "Alabama"  case,  it  is  iisul 
by  my  learned  friends  as  the  chief  authority  for  their  po-i 


M. 


S!  !• 


ICM.| 


(Mr.  Dickinson 'b  Closing  Argnment.) 

Ill,  lliat  a  foreijiner  doniiciletl  in  t'n'  (rountiy  may  invoke 
le  protection  of  Iiis  doniicik'  aj;ainst  iiis  conntiy  Of  oi  i^- 
lal  allfgiancc  for  tlu'  daniajic  ((nsecuKMit  npon  his  viola- 
II.  of  iiis  duties  to  llial  allegiance.  The  I  nited  States 
nsnl  went  on  hoard  and  renionstiated,  Init  llie  captain 
the  "Hussar"  persisted  in  letaining  Kozt;i.  Theie- 
Miii  the  United  States  CliaigV-  d'Atfaiits  at  Coiistaiitin- 
ile  requested   the  captain  ot   the  I'nited  States  ship  of 

u.ir  "St.  Ijouis"  to  demand  Koz*a's  release,  and,  if  iiece:;- 

-  ,iy,  to  have  recourse  lo  force. 

•  As  11  couflict  l)etwei'U  the  two  ships  of  wnr  would  have  ln'ou  at- 
'■  Ii'iuIihI  wiili  ^;reut  aiiu);<'i°  to  thi>Khi]i|iiiig  iii  the  ;>ort  ami  to  the  town, 
"  the  French  Coiisnl  ott'eri'd  liis  nietliation,  aud  Kozta  was  tlieu  «iveu 
"  liver  to  his  careto  he  kept  until  tlie  ilecisiou  of  the  respective  ttoveru- 
"  meiits  was  ascertniueil. 

"On  the  2ilth  of  Aufjust,  IH.W,  tlie  Austrian  Charge  d'Affaires  at 
■  \i\'asliiuf;ton  jiresimted  a  formal  reiiionstranee  to  tlie  United  States 
•■  (iovernnient,  (irotestinj?  aj^ainst  the  claim  of  the  United  States  to 
;c  iilViird  protection  to  Kozta,  aud  calliug  on  them  to  disavow  tlie  con- 
••  iliH't  of  their  atjents  aud  to  grant  rejiaration  for  the  insult  ottered  to 
'■  I  lie  Austrian  Hag. 

•■  Mr.  Marey  replied  on  the  'itith  of  Septemlier,  IHiiK.  contending, 
••  lirst,  for  the  general  right  of  every  citizen  or  subject,  'having  faith- 
"  Inlly  performed  the  past  and  present  duties  resulting  from  his  rela- 
'■  lion  to  the  Sovereign  Power,  to  release  himself  at  any  time  from  the 
•'  (ililigatiou  of  allegiance,  freely  ([uit  the  laud  of  his  liirth  and  adoii- 
"  lion,  seek  through  all  countries  a  home,  or  select  anywhere  that 
'■  which  ofl'ers  him  the  fairest  prospect  of  happiness  for  himself  aud 
■■  his  posterity.' " 

30  L'ltoii  that  proposition  of  Maicy's  hangs  the  argument 
of(ireat  Britain.  Your  Honors  will  ohservt*  that  on  the 
tarts  it  is  [lurelv  a  dictum,  and  of  no  weight  as  an  author- 
it)  in  inteinati'>iial  law,  and  was  afterwards  renounced  hy 
.Marey  himself. 

Ciiief  Justice  C'ockburn,  in  his  Nationality,  page  J21,  et 
stij.,  comments  on  Marey "s  position,  quoting  it  as  follows: 

•'  .\s  the  national  character,  according  to  the  law  of  nations,  depends 
'■  n|iiin  the  rlomicil,  it  remains  as  long  as  the  domicil  is  retained,  and  is 
"  clianged  with  it.     Kozta  was  vested  with  the  nationality  of  an  Amer- 

■  i'lin  citizen  at  Smyrna,  if  he,  iu  the  coutempiutiou  of  law,  Lad  a 

•  .idinicil  iu  tlie  United  Stotes." 


Ik 


40 


imself  noted. 


And  comments  thus: 

•The  matter  was  eventually  com|iromised  by  an  arrangement  bo- 

■  t  ween  the  .Vustriau  Internuncio  and  the  United  Slates  Minister  at 
•■  I'oiistantiuople,  that  Kozta  should  be  shijiped  ofl'  to  the  United 
"  Stiites,  the  Austriaiis  formally  reserving  the  enqity  right  of  proceed- 

■  liig  against  hin.  if  I..'  should  return  to  Turkey. 

••  Till'  reasoning  of  Mr.  Marey,  which  is  remarkable  for  its  boldness 

"  in  riirrying  the  doctrine  of  acipiired  nationality  further  than  it  has 

?'-'■•  i\ II' lieeu  carried,  and  iu  whii'h  the  eft'ect  of  domicile  iu  respect  of 

••  civil  I'onsequeui'es  is  confounded  with  its  efl'eot  as  to  political  conse- 

•'  i|iu'ii('es,  is  altogether  inadmissible.     Uomicile,  aud  even  resideuc, 

"  in  II  piirlicular  country  eutitb  s  the  )iarty  to  the  protection  of  that 

"  ciiiiiitry  only  so  long  as  he  is  within  it;  and  the  eflect  of  such  a  rule 

"  as  tlmt  contended  for  by  Mr.  Marey  would  be  to  introduce  the  most 

"  liimi'iitalile  confusion  into  this  branch  of  the  public  law.     Naturali- 

"  zatiiin  is  generallv,  and  should  be  always,  accompanied  by  some  iiu- 

"tlii'iitic  lU't,  whicfi  cau  be  referred  to,  and  which  speaks  authorita- 

"  tivc'jy.     Hut  if  mere  domicile  were  to  give  the  rights  of  citizeusliiii 

"  I'Vi'iy  case  would  necessitate  a  judicial  imiuiry  upon  a  matter  which 

,    "  I  vi'iy  lawyer  knows  to  be,  dependiug,   as  it  does,   on  intention,  a 

■''^  "  lui'stion  often  most  difficult  of  solution. 

"  It  is  theri'fore  satisfactory  to  find  that  in  the  subsei|Heui  case  of 
••  Siiiiiin  Tousig.  Mr.  Marey  no  longer  held  the  same  language.  Tou- 
" '•if.',  a  native  of  Austria,  had  acijuired  a  domicile  in  the  United 
■•  Stiiti's,  but  had  not  become  naturalized.  He  returned  to  Austria, 
■'  Willi  an  Aniericau  State  passport,  and  \va'.  arrested  on  the  charge  of 
"  "iViiises  committed  b«'f  ore  leaving  Austria.   He  appealed  to  the  United 


i<  '' 


!»00 


{■ 


I'  wm 


lO.. 


20 ' 


30' 


(Mr.  Dickinson's  Closing  Argument.) 

States  Mininter  for  ]>roteetion,  and  the  latter  having  I>rou);li 
case  before  the  State  Department,  Mr.  Marcy,  on  the  lOtli  of  .1 
ary,  1854,  writes  ns  follows:  'I  liave  carefully  examined  yon 
spatt'hes  relating  to  the  case  of  Simon  Tousig,  and  regret  tu 
that  it  in  one  which  will  not  authorize  a  more  efl'ective  interl'c! 
than  that  v  hich  you  have  already  made  in  his  behalf.  It  is  ti  h 
left  the  country  with  a  passport  issued  from  this  department : 
as  he  was  neither  a  native  born  nor  naturalized  citizen,  he  wa 
entitled  to  it.  It  is  only  to  citizens  that  passports  are  issued 
is  true  that  there  was,  as  is  afterwards  pointed  out  by  Mr.  ."\l,, 
the  distinguishing  feature  in  this  case,  that  '  Tousig  had  volunt 
returned  to  his  original  country,  and  had  placed  himself  ii 
power  of  the  Austrian  authorities;'  but  the  language  cited  simu 
show  that  Mr.  Marcy  had  abandoned  the  theory  that  ddin 
affords  a  right  to  protection  beyond  the  territory  in  which  thr  , 
icile  is  situate.  Mr.  Marcy  fully  assents  to  the  position  that  l 
ralization  can  give  no  immunity  in  respect  of  oifenses  comiinii.' 
before  leaving  the  country  of  origin.  He  goes  on  to  say : 
"  Assuming  all  that  could  possibly  belong  to  Tousig's  case— tliat  lie 
had  a  domicile  here,  and  was  actually  clothed  with  the  uotiniuilitv 
of  the  United  States — there  is  a  feature  in  it  which  distiuguisli,  ,  ft 
from  that  of  Kozta.  Toiisig  voluntarily  returned  to  AuHtiin.  nuil 
placed  himself  within  the  reach  of  her  municipal  laws.  Ho  wiui  liv 
his  free  act,  under  their  jurisdiction,  and  thereby  subjected  liih.soif 
to  them.  If  he  had  incurred  penalties  or  assumed  duties  \\  hilo 
under  these  laws,  he  might  have  expected  they  would  have  Ihm  i;  ,11. 
forced  agaiust  him,  and  should  have  known  that  the  new  puliiical 
relation  he  had  acquired,  if  indeed  he  had  acquired  any,  couM  not 
oi)erate  as  a  release  from  these  penalties.  Having  been  onci-  sub- 
ject to  the  municipal  laws  of  Austria,  and  while  under  her  jui  isdu-- 
tion  violated  those  laws,  his  withdrawal  from  that  jurisdictinn.  iuul 
acquiring  a  different  national  character,  would  not  exempt  bini  rr.>m 
their  operation  whenever  he  again  chose  to  place  himself  nmler 
them." 


I  he 
111- 

.1,.. 
nd 
,re 
lie 

'■ut 

-Kit 

It 

t*V, 

ilv 
ili'e 
-to 
■ilo 
'111- 
in- 


lu  anothei-  despatch  Mr.  Marcy  used  the  lan,mi;ii,'e 
which  I  have  read  to  youi-  Honors  on  this  suhject,  wlmli 
is  squarely  in  line  with  Chief  Justice  C'ockhurn,  on  the 
true  rule  of  International  Law,  and  with  all  tlie  anthmi- 
lies  of  the  world.  He  discovered  subsecinently,  wlim  lie 
came  to  a  case  that  involved  the  question  of  the  (i|iiiii(iM 
e.xpre.ssed  in  his  dictum  which  my  learned  friends  havo 
Ui^ed,  that  he  was  wrong. 
40  A  little  further  on,  at  page  124,  we  have  this  from  1. ml 
Cock burn: 

"  In  the  case  of  De  Sandt,  a  Prussian  by  birth,  who  had  gone  ti'  the 
"  United  States,  and  had  tliere  declared  his  intention  of  bt'coiiiiiin  i> 
"  United  States  citizen,  but  had  returned  to  Prussia  prior  to  nalnr.ili- 
"  zation,  and  liad  thereupon  been  ordered  by  the  authorities  to  liuvo 
"  the  country,  Mr.  Uaruard,  the  United  S'lites  Minister  at  tlic  Ciiiirt 
"  of  Berlin,  on  being  ai)pcaled  to  by  De  Sandt,  at  (mce  admitted  timt 
"  under  such  circumstances  the  claim  could  uot  be  insisted  on  ;  :iiid 
"  that  'as  Sandt  iid  quitted  his  residence  in  the  United  States  In  foro 
"  perfecting  his  ui  turulizatiou,  and  had  again  fallen  up  his  uImmIi'  in 
Prussia,  it  was  ii,ipossibIe  to  claim  him  as  an  American  citi/.rn.' 
"  Mr.  AVheatou,  one  of  the  most  distiuguished  of  American  jniisls, 
had,  on  a  former  occasion,  when  Unit(!d  States  Minister  at  li.  rliu, 
held  similar  language,  on  lieiug  applied  to  tor  his  ofHciiil  int.  rlir- 
ence  on  b(  half  of  one  Johann  Knocke,  a  Prussian  by  birth,  wlu,.  iit 
the  age  of  '21,  had  emigrated  to  America,  and  become  iiatuiMliz.il 
there,  but,  having  returned  to  Prussia,  had  been  required  t.i  do 
military  dutv, 

"  'It  is  not  in  my  |)o\ver,'  said  Mr.  Wheoton  in  rejdy,  'to  int.  ifeiv 
in  the  manner  you  desire.  Had  you  remained  in  the  United  Stiit.'s, 
or  visited  any  other  foreign  country  (except  Prussia),  '<uyour  l:i'\ful 
business,  you  would  liave  been  protected  by  the  American  iinth.iri- 
ties,  at  home  and  abroad,  in  the  enjoyment  of  all  your  rights  and 
privileges  as  a  naturalized  citizen  of  the  United  States,  lint, 
having  returned  to  the  country  of  your  birth,  your  native  domicile 
and  natural  character  revert  (so  limg  as  you  remain  in  the  rni-^smu 
dominions),  and  you  are  bound  in  all  respects  to  obey  the  Iuhs  ex- 
actly as  if  you  had  never  emigrated, ' " 


50 


60., 


iM)l 


'    « 


ge  citi'il  st'iii  ,  to 


10 


(Mr.  Dickinson's  Ciosinjij  Argument.) 

Then  he  proceeds  to  cite,  as  American  doctrine,  a  letter 
from  Mr.  Everett  to  Mr.  Barnard,  of  January  13,  18.5:5,  to 
which  I  have  before  adverted.  These  are  the  conclusions 
of  this  learned  author,  Lord  Cockburn,  page  185: 

"  The  following  propoHitions   aH   to   the    offect    of   naturalization 

•  in  the  view  of  other  uiitiouH  than  our  own,  may  be  stated  as  evolved 
•'  from  the  laws  which  have  been  set  forth  aud  th'e  discussions  which 

have  been  detailed — 

"  1.  That  naturalization,  as  occurring  in  other  countries,  and  as  dis- 
tinguished from  the  incomi)letc  aud  iuctliciicions  form  of  it  known  in 
this,  has  the  effect— at  all  events  where  the  iirelimiuiiry  comlitiois, 
'  if  any,  by  which  the   party  to   be  naturalized   could   denationalize 

■  himself  and  divest  himself  of  his  former   iiUegiance,  have  been  ful- 

•  tilled— of  conferring  to  all  intents  auil   purposes  a  new  nationality, 

•  and  at  the  same  time  of  destroying  the  old— of  placing  the  party 
'  naturalized  in  the  pt)sition  of  a   natural   born  subject  or  citizen  in 

■  relation  to  the  Htate  which  adopts  him,  and  at  the  time  of  dissolv- 
'  ing  the  ties  which  bound  him  to  the  parent  State  and  freeing  him 
'  from  all  obligations  of  allegiance  or  duty  to  its  Sovereign  or  Govern- 

•  uieut. 

"  2.  That  nothing  short  of  actual  naturalization,  carried  out  by  such 

•  solemn  and  formal  act  as  the  law  of  the   particular  country  may  re- 

■  ipiire,    will   have   this  ott'ect.     Domicile,    residence  preliminary  to 

■  naturalization,  declaration  of  intention,  with  renunciation  of  former 

■  allegiance  or  rights,  will  not  suffice  to  give  the  character  of  citizen 

•  or  stibject  of  the  country  of  adoption,  which  can  be  ac(piired  only 
'  by  the  act  of  uaturalizutiou  itself. 

"  3.  That  the  ellect  of  naturalization  is  prospective  only,  and  has  no 

•  rotroaclivo  operation." 


iif 


w 


Then,  on  page  139,  the  author  says: 

"  Hi/  llie  xiDiw  CDinili/  (i^  "'iliiii'",  'III  iilien  in  entiUnl  In  llie  /iriitiKlinii  'if 
"  III''  iiiinilrii  ill  ir/iiili  Jn'  iiini/  In';  unit  in  ninrii  fur  lliis  iirolixiiim  owes 
"  ofieilli'iici'  III  IIikIiiii;  mill  liin/nii-'iri/  (il/i>i/liiiirf  Id  the  Surfrrii/n  or  Stale,  so 
"  iia  III  l>e  tiiil>lt;  ///''  //c  nn'iirnl  hum  snh/rrl,  In  iln'  jirunllifs  irliirli  ulliicli  to 
"  III''  violiilion  iif  llir  l'iii\  Hint  l/iix  III  ill''  I'.etenl  of  hi'inij  pnniflnilili'/iir  li'i'iison 
'■far  mill  tillrmiil  (Hi'iinst  lln'  Sl'ih-,  rrm  llniii'ili  liis  uini  luimlrii  uliindd  In'  at 
"  /(■(((■  "•////  /7,  if  III'  Ihis  Iiii'h  /ii'i'iiiilli'il  III  resiili'  iturini/  tini''  nf  irar." 

I  road  now  from  Twiss'  jjaw  of  Nations.  Your  Honors 
will  find  this  work  fiecjuently  cited  by  my  learned  friends 
ill  tiieir  brief,  and,  indeed,  we  find  quite  a  chapter  from 
40 Twiss  in  their  argimient  in  reply,  in  the  precise  words  as 
it  is  (juoted  in  the  Costa  Kica  case  to  which  I  am  coming 
a  little  later  on.  And  although  it  comes  under  a  dilTer- 
ent  ii"ad  in  the  brief,  it  may  bear  upon  the  question  of 
jurisdiction,  to  which  your  Honois  adverted  a  few  niom- 
fiits  ago. 
I  read  from  Section  1(10.  pnge  231: 

"  Considered  from  au  international  point  of  view,  the  jurisdiction 
'■  (if  a  nation  must  bo  founded  either  upon  the  /).•/•«)»  nr  the  projjerty 
'  ■  ing  irilliin  il.f  Inrrilnrii.  Considered  from  a  civil  point  of  view, 
jurisdictionmay  bo  founded  upon  natural  as  well  us  local  allegiance; 
in  other  words,  every  independent  State  claims  to  make  laws  per- 
petually binding  upon  its  natural  born  subjects,  wherever  they  may 
tie.  But  natural  allegiance,  or  the  obligation  of  perpetual  obedience 
to  the  Government  of  the  country,  wherein  a  man  may  happen  to 
have  been  born,  which  he  cannot  forfeit,  or  cancel,  or  vary  by  auv 
ihange  of  time,  or  i)lace,  or  circumstance,  is  the  creature  of  civil 
law,  and  finds  no  countonanco  in  the  law  of  nations,  as  it  is  in  direct 
conflict  with  the  incontestable  rule  of  that  law,  'E-i'tra  lerritariiimjiis 
'lici'iili  inijiiiw  nnn  jniirli'i:' 

■'  Vattel,  accordingly,  holds  that  a  citizen  has  an  absolute  right 
to  renounce  his  country  and  abandon  it  entirelv — a  right  founded 
oil  reaRous  derived  from  the  very  nature  of  political  society.  For 
instance,  if  the  citizen  cannot  ^irocure  sustenance  in  his  own  country, 
it  is  undoubtedly  lawful  for  hini  to  seek  it  elsewhere.  If  the  society 
of  which  be  is  a  member  fails  to  discharge  its  obligations  towards  a, 
litizen,  he  may  withdraw  himself."' 


;o,. 


60. 


t  ■■ 


!»(»•_> 


,    1  '  '       .. 


10 


20 


30 


40 


50.. 


(Mr.  Dickinson's  Closing  Argument  ) 

We  find  statenjents  here  at  variance  with  Inteinatin!  ,1 
aw  as  iield  hy  Great  Britain  and  tliis  country  elsewln  i^ 
liscussed  hy  me,  hut  that  is  not  maverial  to  tliis  i)oiMt; 

■•Twins,  Hoc.  1(11. — Ai'fordin^to  tliplaw  of  iiiitious,  wlien  llie  niiti  ■!  al 

'  I'liiinictcr  of  II  pcr-sou  is  to  bo  iisoortaiticd,  tlio  first  question  i~   m 

'  what  torritorv  (loos  ho  rosiilc,  and   is   ho  rosidout   iu  that  toviiliiv 

'  for  toniiiorarv  purposos,  or  i)oriiiaueutlv.     If  ho  rosi'los  in  a  ^'i.ou 

'  torritory  i)ormanciitly,  ho  is  rogardod  as  adhoriuj;  to  the  nation  to 

•  wliioh  tlio  torritory  belongs,  and  to  bo  a  mouibov  of  tho  political 

"  body  sottlod  thoroiu.      If  ho  is  only  rosidout  iu  a  given  terrilirv 

"  for  temporary  jiurposos.  he  is  regarded  as  a  stranger  thereto,  anil 

"  a  farther    question    must    then    lie    uskod,  in  what  eouutry  is  his 

"  prineipal  establishment,  and  where,  when  ho  has    returned,  dues 

*'  ho  oousidor  himself  to  be  at  home?     Tho  eoiintry  whieh  satisfies 

"  tho  oonditions  implied  iu  this  further  (piestion  is  designated  in  the 

"  language  of  publio  law  the  domieil  of  tho  individual,  which  Vuttcl 

"  dotinos  as  u  fixed  residouee  in  auy  place  with  the  intention  of  alwu'-s 

"  remaining  there. " 

Then  there  is  a  discussion  of  domieil  which  I  will  not 
detain  the  Court  hy  reading.  At  h'ection  1(>8  the  wiil.  r 
says: 

"  Till'  ri(//if/iil  iwrrcist'  of  Jiirisdiiiidii  im  tin'  /jiiii  i>f  a  milidii  dopcuilH 
"  upon  one  or  other  of  those  eonditioua,  that  /lie  jiiison  nr  the  pro]"  rtv 
"  (s-  in'lliiii  (lie  tirrilorii  of  Ihe  wilimi.  In  either  of  those  eases  a  nuticiu 
"  is  on])ablo  of  enforcing  the  judgment  of  its  tribunals  in  inritns.  If 
"  the  persons  are  withiu  its  territory,  the  sovereign  power  of  tlio 
"  nation  can  compel  them  to  appear  before  its  tribunals,  and  can  c  n- 
'•  force  its  decisions  in  pi-rndiniiii.  If  the  property  is  within  its  t(  iii- 
"  tory,  tho  sovereign  j)ower  of  the  nation  Las  control  over  it,  and  can 

enforce  its  judgment  in  rtiii." 

Also  from  Section  1<>4: 

"  No  person  according  to  the  law  of  nations  is  without  a  domioil. 
"  In  tho  absence  of  all  evidence  of  any  other  other  domieil  dr  /,{,/,,, 
"  the  domieil  of  origin  is  the  domieil  ilejiire,  but  a  person  may  havo 
"  more  than  one  domieil  for  commercial  purposes." 

I  now  quote  from  Dr.  I'liillimore,  wiiich  will  he  found 
on  our  hrief  at  the  hottom  of  page  47.  The  citation  tliere 
is  incorrect.     It  should  be  "  VVliarton's  Digest": 

"  But  I  must  agree  with  HefTter  in  holding  that  a  mere  resideuoo  iu 
"  a  State  owes  for  the  time  being  allegiance  to  such  State,  and  nnvy  be 
"  guilty  of  treason  to  such  State  if  as  a  private  person  he  wages  war 
"  against  it  or  rendors  comfort  to  its  enemies. 

"  CJobbett,  for  instance,  when  in  the  United  States  was  never  natnial- 
"  izod,  nor  did  he  over  restrain  himself  from  declaring  that  he  was 
"  and  continued  to  be  a  IJritish  subject,  yet  no  one  would  have  jiro- 
"  tended  that  C'obbett,  while  residing  in  the  United  States,  was  not 
' '  liable  to  bo  indicted  for  all  ofl'cusos,  |)olitical  or  otherwise,  made  iu- 
"  dictable  in   tho  place  of  his  residence,  aud  the  same  j>ositi()ii  luis 

"  been,  as  wo  have  seen,  taken  by  the  British  (rovernment  iu  rcH| t 

■    to  citizens  of  the  United  States  who,  when  residing  in  Ireland,  have 


been  engaged  in  conspiracies  against  the  British  Government." 


I  desire  to  sui)ijlement  that  (luotation  with  a  statemtnt 
of  the  law  from  Baker's  Halleck,  page  2U!>,  comnieucingat 
Section  17: 

"  In  regard  to  the  citizens  (native  or  naturalized)  of  a  State,  while 
"  within  its  territory  tho  jurisdiction  of  tho  sovereignty  over  them  is 
"  complete  and  irresistible.  It  cannot  bo  controlled,  and  ought  ovcry- 
"  where  to  be  rospoeted.  In  regard  to  citizens  domiciled  abroad, 
"  nations  generally  assert  a  claim  to  regulate  the  rights,  duties,  acts 
60  "  and  obligations  of  their  own  citizens  wherever  they  may  be  donii- 
"  oiled.  '  And  so  far,'  says  Story,  'as  those  rights,  dtities,  obligations 
"  '  and  acts  afterward  come  under  the  coguizanee  of  the  tribunals  nl' 
"  '  the  sovereign  power  of  their  own  country,  either  for  onforcenuMit 
"  'or  for  ))rotoction  or  for  remedy,  there  may  be  no  just  ground  to  ox- 
"  '  elude  this  claim.  But  whore*  such  rights,  duties,  obligations  ami 
"  'acts  come  under  the  consideration  of  other  couutries,  and  espaciiilly 


•) 

nti'i'iiatii"  il 

•y  »'ls(nvli'  10 
his  point; 

ion  tlio  nati'i  111 
:  queHtion  i>.  m 
1  tha*  tcviil.  ly 
si'.'iCH  ill  11  (.'iviii 
o  tbe  imtii'ii  to 
iif  tho  iiolit:.  al 
given  tcnil'  vy 
or  tlioioti).  a  ail 

oouutvy  is  his 
voturnod,  (lis 

wliii'h  satisl'ios 
>sit;iiat('<l  ill  till' 
il,  wliioh  Vattj 
>utii)U  of  alwa-8 


:;h  I  will  imt 
VA  tlie  vviilcr 


!  ntitidii  ilciitiiil» 
iir  the  iiroj"  rty 
3  casoH  a  nut  inn 
Is  //(  iiirihis.  If 
n  power  of  tlic 
nls,  and  eaii  iii- 
witliin  its  ti  rii- 
over  it,  and  laii 


bent  a  doniicil. 
ilomicil  (/•■  /'•"'", 
lorson  may  have 


will  be  folliul 
itation  tlii'io 
St": 

■re  residouco  in 
ate,  and  may  be 
he  wages  war 

IS  nover  natiiiul- 
in(?  that  he  was 
ould  have  inc- 
State»,  was  \\<A 
rwise,  made  in- 
to positioti  1ms 
niont  in  resiieit 
in  Ireland,  luive 
ernmout." 

1  il  statement 
jiiiDUMicin^al 

if  a  (State,  wliile 
uty  over  them  is 
inil  onght  every- 
inieiled  alnoail, 
;hts,  dnties.  aets 
•y  may  he  doini- 
itios,  obligationa 
the  trihuuals  of 

for  ouforceiiient 
ist  ground  to  ex- 

oVdigtttions  lunl 
ami  espsoially 


10 


!t(»H 


(Ml.  Dickinson's  Closing  Argument.) 

•  of  tho  country  whoro  such  eitizeuH  are  domieilod,  the  duty  of  reeog- 

•  nizing  and  enforeing  sueh  claim  of  sovereignty  is  neither  clear  nor 
'  generally  admitted.  The  most  that  can  be  said  is  that  it  may  he 
'  admitted  I'.c  roy/nV'fA' 7' /'//"/»,•  but  it  may  also  be  denied  r.f  Junlilin 
■  i/i-iitiiim,  wherever  it  is  deemed  to  be  injurious  to  tlie  interests  of 
•foreign  nations  or  stibversivo  of  their  policy  or  institutions.  No 
•one,  for  instance,  could  imagine  that  a  judgment  of  the  parent 
•country  confiscating   the   property  or  extinguishing   the  personal 

•  rights  or  capacities   of  a  native   on  account  of  siicli    foreign   resi- 

•  donee  would  be  recognized  in  any  other  country.' " 

»  *  x-  »  »  »  » 

••  The  same  distinguisliod  writer  says  that  it  is  clear,  niton  general 

•  principlos  of  interuatiimal  law,  that  a  nation  has  a  right  of  jurisdic- 
'  tton  over  foreigners  resident  in  the  country,  and  tho  extent  to  which 

•  such  jurisdiction  shall  be  exorcised  is  a  matter  purely  of  municipal 

■  arrangement  and  policy.     All   persons  found  within  "the  limits  of  a 

■  ^.'overnment   (unless   specially   excepted   by   tho    law    of    uations), 

•  whether  their  residence  is  permanent  or  temporary,  are   subject  to 
'  its  jurisdiction,  but  it  may  or  may  not.  as  it  chooses,    exorcise  it  in 

cases  of  dispute  between  foreigners. " 


20 


I  now  desire  to  again  call  your  Honor's  attention 
t(i  the  Barclay  case  under  the  mixed  Commission  of 
IsTl,  which  will  be  foinid  in  the  report  of  tiie  British 
;ijient  in  the  British  and  American  Claims  Commission, 
ul  page  280.  Upon  this  point  my  learned  friend,  Mr. 
Ui  id  well,  challenged  my  statement  of  the  position  of 
.judge  Hoar,  then  Attorney-General  of  the  United 
States.  Barclay  was  a  British  subject  of  original 
allegiance,  domiciled  in  the  State  of  (leorgia,  in  a  bellig- 

3oeieut  country,  the  belligerency  of  which  had  been  recog- 
nized by  Great  Britain.  Of  courre  Ju<lge  Hoar's  position 
necessarily  demanded  that  he  should  take  the  extreme 
contention  for  the  local  sovereignty  of  tlie  United  States, 
and  maintain  the  jurisdiction  of  local  sovereignty  to  the 
utmost  limit  that  International  Law  would  permit.  We 
have  briefly  adverted  to  the  fact  upon  the  suggestion  of 
your  Honor  the  other  day  before  we  reached  this  branch 
o1  the  argument,  that  the  ultimate  judgment  of  the  Com- 
mission turned  upon  other  questions,  questions  relating  to 

40L'fitain  verbiage  of  the  Convention.  But  in  the  argument 
made  by  Judge  Hoar,  aftei  a  most  exhaustive  examina- 
tion of  International  authority,  he  says  that  a  domiciled 
British  subject  owes  such  allegiance  to  the  United  States 
that  he  cannot  lecover  against  the  United  States.  Great 
Britain  had  lecognized  the  belligerency  of  the  Southern 
State's;  tho  British  subject  was  not  domiciliated  in  the 
Northern  States,  but  was  in  that  portion  of  the  United 
States  in  rebellion  against  the  Governuient.  Now,  I  cite 
tiiis  CUSP,  because  it  is  tho  t)iost  extreme  position   that  a 

5odi>tinguished  and  conscientious  lawyer  like  Judge  Hoar 
Could  take  against  the  contention  of  Her  Majesty's  Govern- 
ment, that  a  domiciliated  citizen  of  Great  Britain  could 
recover  against  the  United  States.  Of  coiuse  it  is  impor- 
tant, in  its  bearing  upon  this  case,  bow  far  that  conten- 
tion would  atimit  of  exception  t<»  the  obligations  of  a 
citizen  of  Great  Britain  domiciliated  in  the  United 
States  to  the  sovereignty  of  his  domicil.  If  he 
notes  any  exception  to  that  rule  as  to  the  dissolution  of 
tile   relations  of   allegiance  between   the  country  of  his 

6oori^inal  allegiance  and  a  domiciled  subject  it  will  bear 
vei y  strongly  on  tho  question  here  in  view  of  what  the 
Conimissionei-s  ultimately  decided.  After  showing  that 
this  man  had  been  twenty-tive  years  absent  from  Great 
Britain,  that  he  had  acquired  a  permanent  domicile  in 
Georgia,  and  continued  there  until  April  Dth,  1865;  that 


'    in 


4 


m 


<?ih,,h 


v. 


(Mr.  Dickinson's  Closing  Argument.) 

he  became  an  owner  of  real  estate  in  hia  own  name  \ 
absolute  title,  and  had  a  permanent  residence  with  :  k 
family,  h*  states  this  postulate: 

"Under  such  circuinstaucpH  nu  iuliabitant  i»  a  swbjei-t  of  '1,^ 
"  Soveroiguty  unilor  wliioh  ho  lives.  He  nml  his  property  are  iiLim- 
"  Kubjeet  to  all  taxes  aud  imposts  which  that  Sovereign  may  or  uii.  it 
"  choose  to  impose  for  purposes  of  peace  or  of  war." 

10 

Then  he  cites  a  large  number  of  cases  upon  tliat  pun  t, 
all  of  which  1  have  examined,  and  they  are  in  point. 
But  further  says,  and  this  is  the  point: 

"  An  inhabitant  so  domieilod  owes  civil  and  political  alleRiMn  ■.> 
to  the  local  Sovereignty,  lui/enK  -is  mininsl  llie  Socrrrii/ii/i/  nf  hin  liirlL  ' 

My  friends  statein  their  brief  that  Judge  Hoar  took  id 
such  position  and  made  no  such  exception.  Now  he  L  is 
taken  the  position  as  strongly  as  it  could  be  put,  citing  iii,-. 

2oauthorities  to  show  the  relation  and  separation  betwn n 
the  domiciliated  subject  and  the  country  of  his  original  ,illf 
giance.  It  was  his  point  and  aim,  of  course,  to  make  ilic 
separation  as  wide  as  possible,  but  he  is  a  man  who  wcmiM 
not  omit  a  modification  and  dear  exception  found  in  (mi 
trolling  authorities,  and  therefore  he  stated  this  broad  t  x- 
ception  frankly,  as  he  found  it  ii'  the  books.  A  foreignci  l.c- 
comes  a  civil  citizen  of  the  Umied  States  if  domiciled  liiiv, 
but  the  exception  is  squarely  stated  that  at  the  same  tunc 
he  owes  civil  and  political  allegiance  to  the  country  ol  Ins 

3odon)icil.  Tiie  exception  is  as  broad  as  the  rule  as  tu  the 
sovereignty  of  his  origin.  And  that  is  the  exceptinn  td 
the  lule  of  local  allegiance  on  which  1  plant  the  posit  iuii 
of  the  United  States  as  to  the  citizens  of  the  Uniteii  St  itcs 
domiciliated  in  Great  Britain.  Allegiance  means  sonii'- 
thing,  and  has  results  entailed,  if  it  exists,  and  as  i(i,i 
citizen  of  the  United  States  domicihated  in  Great  Britain, 
not  yet  naturalized,  then  it  entitles  hini  to  the  protection 
of  the  United  States  to  see  to  it  that  he  is  treated  e(|ually 
as  well  as  British  subjects  under  the  law  I  have  aire  i.iy 

40 cited,  and  furthermore  reserves  to  him,  whenever  ho  >»  ts 
face  homeward  or  passes  across  tlie  border,  all  a  citi/iiis 
rights,  ami  all  the  privileges  of  American  citizenship  iv- 
served  foi'  those  always  within  our  borders.  At  Inure 
such  rights  and  privileges  immediately  attach  on  ivtniu 
as  if  never  suspended.  What  do  they  owe  in  e.xcliaiiuff 
What  is  the  reciprocal  duty?  What  does  the  term  "  .Al- 
legiance" import  as  due  from  such  citizens  in  return  Im- 
this  reciprocal  protection?  They  have  not  surrendercil  it 
by  naturalization  and  adjuration,  and  they  retain  it  lor 

50  their  benefit.  The  bond  remains,  the  ligament  that  himls 
the  citizen  to  the  country  as  well  as  the  country  to  the 
citizen  who  lives  across  the  border  never  having  Imiii 
broken  or  dissolved,  but  retained  for  all  the  benefits  df 
American  citizenship,  can  that  bond  continue  to  c.\ist. 
aud  yet  the  citizen  commit  acts  in  derogation  of  the 
sovereignty  of  his  country,  and  then  call  upon  Givat 
Britain  to  make  reclamation  for  damages  for  all  he  lias 
suffered  from  his  acts  in  violation  of  his  Sovereij;ii's 
claims?    Judge  Hoar  could  not  find  in  the  books  any  siuli 

f)Oruie,  without  the  exception;  there  still  existed  this  r.x- 
ception,  that  while  such  citizen  might  be  protected,  and 
make  reclamation  through  the  country  of  domicil  against 
every  other  country  of  the  world,  he  could  not  be  protct  tid 
against  Ins  nation  of  original  allegiance  for  a  violation  of 
her  sovereignty.    It  is  stated  in  broad  terms,  aud  I  do  not 


'   ll'l 

II 

t.) 

\vn  name     v 
nee  with  i  i-; 


sulljoot    l)f        lU 

iporty  arc  ai.,^^• 
;n  mav  or  mi,  at 


m  that  poll  I. 
in  point. 

litioal   alloRiiiii..' 

<!;/  iifliis  hl.-th    ■ 

Hoar  took  no 
Now  ho  Ills 
put,  citing  tlif" 
ation  betwi  111 
is  original  ill  It' 
e,  to  nialvt.'  ilio 
lan  who  wcnlil 
1  found  in  ( mi 
this  broad  >  x- 
Aforeignci  lie- 
domiciled  liiif, 
,  the  same  tiiiic 
country  ol  Ins 
i«  rule  as  tn  tlic 
he  exception  tn 
uit  the  posili.iu 
|e  United  St  lUs 
re  means  sonu'- 
s,  and  as  tn  m 
Great  Britain, 
;he  protection 
treated  etiii:ill,v 
.  have  aliTMiiy 
henever  he  sets 
,  all  a  citi/.iiis 
citizenship  ic- 
rs.     At  lioi!:e 
ttach  on  letiiin 
e  in  exclian.ur; 
the  term  "  Al- 
ns  in  return  tor 
surrendered  it 
ey  retain  il  fur 
nent  that  hinds 
country  to  tlie 
r  having  Imiii 
the  beneiits  of 
inue  to  exist. 
ogation  of  the 
1  upon    Gnat 
for  all  he  lias 
lis  Sovereign's 
books  any  smh 
xisled  this  ex- 
protected,  and 
domicil  against 
aotbeprotertcd 
jr  a  violation  of 
na,  and  I  do  not 


(Mr.  Dickinson's  Closing  Argument.) 

understand  why  my  statement  that  in  the  Bai-clay  case 
liidge  Hoar  strongly  conceded  this  position  is  challenged 
|iy  my  learned  friend.s.  In  the  British  Keport  on  the 
jiarclay  case  hero  I  find  this  statement: 

"  This  alloKianco  and  oliligfttiou   Invvc  no  limits  or  i|ua1iflcation8, 

■  anil  tho  mere  fai-t  tliat  lio  may  not  have  uouo  tlirouf;1i  the  forms  of 
•   naturalization  would  he,  uudor  thi'  (.'ivrnnistanpcM  of  his  case,  imnia- 

li^)  ■  terial.  It  would  furnish  no  answer  to  that  iSoverei^uty  if  it  should 
•■  see  tit  to  make  the  same  demand  upon  him  as  upon  its  natives  or 

•  naturalized  eitizens  for  eivil  or  military  service  in  person,  or  con- 

■  trihution  from  his  jjroperty,  movaVile  or  inimovahle,  for  exigencies 
■   (if  peace  or  war.     No  power  could  call  in  ([uestion  these  absolute 

•  rights  of  the  local  Sovereign,  inilrxa  il  In-  the  sovereignty  of  this  in- 
'■  habitant's  birth." 

.Judge  Hoar  never  stated  this  broad  proposition  of  the 
separation  of  the  tie  of  allegiance  without  naturalization, 
unless  with  it  his  fair  mind  stated  the  exceiitioii,  howevt  r 
strongly  th(!  imm<idified  ruleniad*'  for  his  contention. 
''^  It  was  not  for  the  interest  of  his  case  to  make  the  ex- 
(1  ption,  but  his  examination  of  the  authorities  compelled 
liini  to  make  it  as  an  exception,  and  the  sole  exception. 
He  goes  on; 

•'  Such  a  question  could  not  be  settled  by  the  municipal  law  of  tho 

•  Sovereignty  of  his  birth,  but  by  the  Law  of  Nations.  In  the  i)reBent 
••  state  of  the  Law  of  Nations  it  is  extremely  doubtful  if  there  are  any 
"  circumstances  which  would  justify  the  Sovereignty  of  his  birth  in 
••  interfering  for  his  protection.  If  there  be  any,  it  would  be  such  as 
••  furnish  proof  of  the  local  Sovereign  in  some  way  attacked  through 

-o  "  this  person  the  sovereignty  of  his  birth.  Such  would  be,  for  iu- 
"  stance,  a  law  or  act  discriminating  against  the  claimant  on  account 
"  (if  his  nationality  or  connection  with  the  country  of  his  l)irth,  or  in 
••  derogation  of  the  rights  of  that  country  as  recognized  by  Inter- 
'•  national  Law." 

"  It  is  not  necessary  to  citizenship  that  the  domiciled  inhabitant 
"  should  have  the  right  to  vote  or  hold  jiolitical  office." 

.\nd  then  he  goes  on  to  discuss  that  question. 
.•\t  one  o'clock  the  Commissioners  took  recess. 

40  

At  half-past  two  the  Commissioners  resumed  their  seats. 

Mr.  Dickinson: — Your  Honors  will  find  the  arguments 
and  all  the  briefs  for  and  against  Barclay  most  interesting 
on  tiie  questions  presented  here,  and  yoiu-  Honors  will  find 
tile  full  briefs  stating  the  position  of  the  United  Stales  and 
of  ( i  reat  Britain  in  that  case,  commencing  at  page  2tl7  of  the 
liiitish  report,  reviewing  all  the  international  authorities. 
.Judge  Hoar's  brief  is  included  in  the  pages  of  the  citation 
-\jiisi  given.  It  is  on  page  280.  The  diplomatic  histories 
of  the  countries,  the  judicial  judgment  of  both  countries, 
and  the  writings  of  publicists  are  reviewed.  It  was  of 
roLirso  one  of  the  most  important  of  the  cases  that  were 
latdie  that  Commission  of  1871.  In  the  conclusions  upon 
till'  wlude  subject  by  Judge  Hoar,  is  involved  the  whole 
I'xiiiit  of  the  right  of  i)rotection  of  a  government  over  its 
citizens,  and  tho  whole  extent  of  the  obligations  of  the 
citi/.cn  to  his  native  allegiance  and  to  tho  allegiance  of  his 
iloinicil.  There  is  a  difference,  as  I  stated  in  my  opening 
'  Jpio|iosition,  between  the  obligations  of  a  citizen,  and  the 
right  of  protection  of  the  country  of  original  sovereignty 
over  a  citizen  domiciled  in  another  country.  They  are 
not  concurrent.  And  both  propositions  are  here  so  clearly 
stated  in  the  arguments,  adverse  to  the  position  of  Great 
Britain,  and  so  clearly  stated   in  the  exceptions  that  I 


i'll 


te» 


906 


m 

1 

'V'i 

'  SPp 

In 

lr> 

1 

i 

r^:- 

(Mr.  Diikiiison's  Closing  Argument.) 

liiive  callfd  marked  attention  to  the  case,  as  they  sniu  up 
all  the  (liscnssion  on  the  subject.  A  domiciled  Hriti,|| 
subject,  nnder  the  |Misiti(in  taken  by  Judge  Hoar,  dwts 
special  and  piditical  allegiance  to  the  Tniteil  Stales  jnd 
may  he  protected  by  the  I'nited  States  except  against  ihc 
sovereignty  of  iiis  birth  lor  acts  in  derogation  of  tije  hiiii  r 
sovereigidy.     Then  as  to  his  lights  of  protection. 

lo  The  extent  of  th»'  right  of  protection  of  the  soverei-^iiiy 
of  his  birth,  iis  to  tiie  samiM'itizen,  is  also  staled  in  \\\q 
ne.xt  jtroposition;  it  goes  to  tile  length  which  1  have,  |ii,.. 
sented  toyoin-  Honors,-  the  case  of  <liscrimination  onlv. 

Judge  Hoar  .idniits  to  the  fullest  extent,  aftci  ,i 
thorough  review  of  all  the  authorities,  tlia*^  the  natioii  nf 
domicil  cannot  protect  a  domiciled  citizen  as  against  tin. 
country  of  his  original  allegiance  if  he  bo  not  natinali/..(|, 
for  acts  in  violation  cf  his  allegiance;  to  his  original  -miv- 
ereignty.     You  have,  therefore,  the  matter   presontnl  iu 

20the  full  extent  of  the  doctrine  in  each  case;  the  riglii  uf 
protection  and  the  obligation  of  the  citizen.  To  illiist  imIu 
the  position  of  Judge  Hoar  and  the  undoubted  conclu-ioii 
of  all  the  authorities,  let  me  state  this  proposition  beai  iiifr 
also  upon  the  subject  of  jurisdiction,  as  to  which  I  sli;ill 
deal  in  detail  later  on. 

The  i)roposition  we  expect  to  establish  beyond  all  i|ii('s- 
tion  as  to  the  high  .seas  is  that  the  sovereign  autliuiity 
extends  on  the  high  seas  over  all  subjects  and  citizens  of 
the  country  of  the  sovereign  and  over  all  domiciliated  jicr- 

30 sons  and  their  ships;  that  on  the  high  .seas  there  is  the 
conniion  right  of  jurisdiction,  the  best  analogy  to  wliicli 
pos.sibly,  from  private  rights,  is  a  tenancy  in  cominmi. 
Every  nation  has  a  connnon  right  in  the  high  seas.  Im! 
every  nation  has  jurisdiction  over  the  high  seas  and  over 
its  own  subjects  on  the  high  seas,  binding  them  and  their 
ships.  And  the  limitations  which  my  learned  friends 
have  iu  their  brief  pointed  out,  upon  the  jurisdiction  nf  a 
nation,  are  limitations  only  upon  the  juiisdiction  nf  a 
nation  as  to  the  territory  of  another  sovereign  having 

40exclusive  jurisdiction  over  his  own  territories.  Tlu' 
doctrine  is  laid  down  by  Twiss  and  all  the  autlmri- 
ties,  that  the  sovereign  authority  of  one  nation  cannot 
take  even  its  own  subjects  out  of  the  country  of  aiuitlu  r 
nation.  It  cannot  exercise  any  jurisdiction  over  tiie 
dominion  of  another  sovereignty.  It  cannot  punish 
its  own  subjects  in  the  dominion  of  another  sov- 
ereignty: itcannot  molest  them  in  the  dominion  of  anntjui' 
sovereignty.  The  moment  it  does  that,  the  question  lie- 
comes  a  national  one,  and  it  is  an  invasion  of  the  territory 

50 of  the  equal  sovereignly.  But,  on  the  other  hand,  on  tiio 
high  seas,  the  rule  of  International  law  is  equally  well 
settled  that  every  nation  has  juri.sdiction  over  the  high 
seas,  but  not  an  exclusive  jurisdiction;  and  that  the  laws 
and  sovereignty  of  a  nation  may  he  extended  over  its 
own  subjects -or  what  is  called  in  'he  books  its  "  na- 
tionals"— on  the  High  Seas,  and  of  course  over  ships 
owned  hji  llieiii  on  the  high  seas. 

Now,    we   will  suppose,  as  Great  Britain  has  in  several 
instances  in  history  done — that  she  claims  exclusive  jnris- 

<JOiliction  over  a  certain  sea,  and  we  will  take  for  illustration 
Beiing  Sea.  Suppose  Great  Britain  asserted  by  sovereign 
authority— without  regard  to  her  municipal  laws— such 
jurisdiction  over  Bering  Sea;  and  by  a  proclamation  she 
prohibited  any  one  from  taking  seals  for  a  year,  or  tiiiee 
years  or  four  years— the  length  of  time  is  immaterial  -in 


!t(t7 

(Mr.  Dickinson's  Closing  Argnnient.) 

till'  waters  of  Ik'iiii};  Sea  -no  one  wonld  deny  in  tliat 
;ise-(>lhur  niitit)n.s  niakiiig  a  liuiin  only  tliat  tlioy  had  a 
iDnnnon  riglit  in  Bt'iinji  Sea— no  one  wonld  (K'liy  Iut 
juiisdittion  in  llie  sea  any  more  Mian  tiiiil  tlicy  wonld 
ilcny  lu'i-  jniisdiction  in  llio  Atlimtii-  or  I'acifii-  ncoan  ovrr 
licrown  nationals,  and  tlic  only  i-ontidvcrsy  whitli  wonld 
arise  in  c-ase  of  lu'r  claiming  cxcUisivc    jnrisdictiun   over 

u.  Ht  ring  Sea  wonld  be  on  the  part  of  a  nation,  who  wonld 
>ay:  that  is  not  a  closed  sea  and  yonr  jnrisdiction  is 
not  exclusive.  Hnt,  she  does  assei't  that  jnrisdiction  as 
.xclnsive  and  lorhids  the  taking  of  st'ids  in  these 
u liters.  The  citizens  of  the  United  States  takt;  the 
position  that  (Jreat  Mritain  has  no  exclnsivc  jinisdiction 
ill  Heriiig  Sea.  and  they  insist  upon  taking  seals 
ill  these  wateis.  At  the  same  time  the  liege  snh- 
jtcts  of  Great  Britain— and  1  nse  the  word  "•liege" 
ill  its  national  ami  hroad  intendment  of  obedience  to  the 

;:os()veieign  anthoiity— the  liego  snb.jects  of  (Jreat  Britain 
(ioiniciled  in  the  United  States,  also  take  the  position  that 
tlieir  conntry,  and  the  only  conntiy  to  whom  thev  owe 
original  allegiance  which  tiiey  have  not  foresworn  by 
naturalization — their  own  sovereignty  having  jniisdiction 
over  the  high  seas,  and  over  them  everywhere  on  the  earth 
except  in  the  exclnsive  jnrisdiction  of  another  conntry- - 
these  subjects  say  also,  that  this  is  a  right  in  common  not 
only  to  British  subjects,  but  to  all  the  world,  and  they  go 
ill  with  American  citizens  and  take  seals  notwitlistanding 

30 the  claim  of  the  sovereignty  of  Great  Britain.  I  will 
not  take  a  case  of  municipal  law;  that  is  immaterial; 
tiie  assertion  of  the  soveieign  is  all  that  is  required. 
Great  Britain  makes  the  seizures  under  hei'  assertion  of 
exclusive  sovereignty.  She  takes  the  ships  and  proi)erty 
of  American  citizens  in  this  sea,  a  thing  she  would  have  a 
right  to  do  if  there  were  exclusive  jurisdiction.  She  takes 
also  the  ships  of  her  own  subjects  in  the  sea:  not  iii 
American  territory,  bea''  in  mind,  but  in  the  sea.  The 
Iimjierty  of  the  American  citizens  having  been  taken  who 

40 were  there  in  the  asserticm  of  the  right  to  tish  and  take 
seals  in  Bering  Sea  as  common  ground,  they  appeal  to 
tlieir  National  Government,  and  that  Government  after 
(hie  consideration  is  disposed  to  back  up  their  own 
citizens  in  their  conclusions  that  (ireat  Britain  has  not 
exclnsive  jurisdiction  in  the  sea,  and  it  becomes  at  once  a 
national  (lUestion.  It  is,  therefore,  necessary  to  settle  the 
question  of  exclusive  jnrisdiction-  not  common  jurisdic- 
tion -either  by  the  avbitrament  of  war  or  by  friendly 
negotiation     and     arbitration.      Now,     it     having    been 

SOgcttled  by  friendly  arbitration  that  Great  Britain  is 
wrong,  and  that,  notwithstanding  her  vigorous 
contest  to  the  contrary,  she  has  only  common 
jinisdiction  in  Bering  Sea,  she  consents  to  a  conven- 
tion to  pass  upon  the  claims  of  persons  whom  the  United 
States  have  the  right  to  protect  against  Great  Britain,  hut 
is  careful  to  limit  the  claims  that  shall  be  considered  by 
the  Commission  under  the  Convention  by  words  carefully 
inserted  after  several  drafts,  limiting  the  United  States 
to  recover  for  those  only  whom  the  United  States  have 

fca  right  to  protect.  The  American  citizens  pre.sent  their 
claims.  British  subjects  who  at  any  time  had  the  priv- 
ilege of  taking  out  naturalization  papers  in  the  United 
States  but  who  never  did  so,  reserving  and  retaining 
tJHMr  right  to  demand  British  protection  to  a  degree 
always,    and  British    citizenship   any  time    when  they 


U\ 


^i 


I  r  ;i! it-it 


908 


(Mr.  Dickinson's  Closing  Argiitncnt.) 

Bhonld  re  t'nter  her  dominions— British  suhjects  livjiij.-  ,, 
the  United  States,  I  say,  also  enter  the  Internatii!  i| 
Court  and  they  say:  We  are  still  Hiitisli  siihjects  so  f;ii  ,s 
that  is  concerned;  we  still  claim  the  protection  of  (ii.  ,t 
Britain;  \\v  have  not  changed  to  citizens  of  the  I'nii  .| 
States  hy  the  only  method  known  to  International  lnv 
hetween    tlies^e    two   countries,   namely,    hy    taking   uui 

lonatnrali/ation  papers;  we  still  claim  the  protection  uf 
Great  Britain  always  as  against  the  United  States  so  In 
as  protection  from  injustice  is  concerned  -but  nevtiili,. 
less  wo  also  claim  the  same  rigiit  identically  as  tlin-c 
American  citizens  in  this  International  court,  our  slii|is 
were  seized  in  a  .sea  where  Great  Britain  nndouhfcdly  hy 
the  law  of  nations  iiad  juiisdiction  over  her  own  snl)j(ris, 
hut  we  claim  (himages— and  we  demand  the  value  (if  mn 
pioperty  seized  at  the  time  we  weie  British  subjects,  ;iiii| 
w  hjle  defying  the  proclamation  of  Her  Majesty  the  (^in  rn. 

2orind  we  propose  to  enforce  our  demand  through  the  Injird 
States  Government.  That,  your  Honors,  is  where  il  is 
proposed,  by  the  contention  of  the  l^ritish  counsel  in  I  his 
case,  to  biiiig  this  niaMer  as  a  question  of  Internaticn  il 
law. 

Now,  of  such  a  i)eison  claiming  the  protection  of  tin 
United  States  against  their  country,  precisely  as  I  Ii;i\(. 
put  it.  Judge  Hoar  concludes  that  such  a  British  citizen, 
merely  domiciled  in  the  United  States,  could  be  protniMJ 
if  it  weie  France  or  Germany  or  any  other  nation  agjiinst 

30  whom  this  juiisdiction  were  asserted;  hut.  inasniucli  ;is 
be  still  retain(d  his  allegiance  and  all  his  riglits  ih  a 
British  subject  and  cotild  assume  them  at  any  time  lie 
chose,  it  results  in  this  that  that  British  subject  could  imi 
invoke  the  aid  of  the  United  States  for  protection  agaiiisi 
bis  country  of  original  allegiance.  Kight  on  the  other  li.inii, 
on  the  question  of  protection,  that  in  the  same  conditiun 
I  have  nn-ntioned,  a  citizen  of  the  United  States,  still  iv 
taining  his  allegiance  to  the  United  States,  but  being  in 
the  dominions  of   (ireat  Britain,   could   not   invoke   the 

40 authority  of  his  home  government,  namely,  the  Unitnl 
States,  lor  reclamation  undei  that  convention,  for  vessels 
that  he  had  lost  while  he  stdl  resided  as  a  civil  domiciled 
citizen  of  Great  Britaui  and  in  which  he  continued  at  all 
limes  d(»miciled.  The  United  States  could  not  relieve  in 
tliat  case  a  domiciled  subject  of  Great  Biitain,  because  lie 
had  not  foresworn  his  allegiance  to  that  nation  or  given 
lip  his  reciiirocal  right  to  its  protection  and  citizenship 
which  he  could  have  done  at  any  time.  And  on  the  other 
hand,  the  United  States,  as  against  Great  Britain,  in  that 

50  very  case,  could  not  relieve  an  American  citizen  domici led 
in  Great  Britain,  subject  to  its  sovereign  laws  temporarily, 
by  inotecting  him  against  Great  Britain  for  her  seizure 
of  his  ships,  when  he  was  treated  precisely  like  British 
subjects,  his  neighboi"8.  These  are  the  two  decisions 
finally  conie  to  and  which  must  be  come  to,  concludiiij; 
both  questions  to  the  extent  of  the  right  of  protection  on 
tiie  oue  baud,  and  the  obligations  of  the  citizen  on  the 
oi  her. 

^o  That  is  the  conclusion.  And  if  j-our  Honors  are  to  lay 
down  any  other  rule  of  international  law,  under  a  con- 
vention which  is  a  sequel  to  the  proceedings  at  Paris— aud 
you  must  lay  down  one  ortheother— then  if  Great  Britain 
(an  make  reclamation  in  this  case,  the  United  States  can 
do  it  in  the  next  case,  and  you  have  laid  down  a  rule  of 


ItoH 


10 


(Mr.  Dickinson's  Olojin^  Argument.) 

international  law,  absolving  nllegiance  by  mere  domicil 
without  naturalization;  and  in  the  other  case,  you  assert  a 
light  of  protection  far  beyond  the  rules  of  International 
i;i\v,  as  underptood  to  be  settled  by  civilized  nations  up  to 
I  lie  time  you  so  decide. 

The  quotation  which  I  alluded  to  this  morning  will  be 
tiund  m  Wharton's  Digest,  page  .')(»!»,  Section  aon.  with 
this  additional  from  Philliniore: 

"  Thst  the  home  Hoveroign  haH  nlh>Kiauc(>  due  him  from  Huch  por- 
"  HouH  U  mnintainod  by  all  rivilizod  StuteH,  there  lieiug  no  HUch  Htate 
'  which  does  not  mniutain  its  right  to  levy  taxes  on  mich  perHons,  and 
"  to  hold  them  reHponsible  for  all  offenseti  committed  by  them  against 
■•  its  sovereignty." 

Now,  in  this  connection  I  desire  to  call  your  attention 
lure,  more  fully  to  the  Barclay  case,  showing  the  decision 
(if  the  Commission.  The  decision  recognizes  fully  the 
|ii  inciple  stated  by  Judge  Hoar.  At  page  208  is  this  alle- 
-'^'^;ation  of  the  claimant  in  his  petition  to  which  demurrer 
was  taken  as  follows: 

"That  he  abstained  from  nil  intermeddling  in  the  insurrection  and 
•'  civil  war,  conformed  to  the  (jiieen's  proclamittiou  of  neutrality,  and 
"  lu  all  respects  conducted  himself  as  faithfully  towards  the  United 
"  States  as  any  loyal  citizen." 

There  we  have  in  Barclay's  statement  of  his  claim,  pre- 
tVired  in  his  behalf  by  Great  Britain,  the  proposition  for 
which  we  contend,  namely,  that  a  domiciled  citizen  must 

30  obey  and  conform  to  the  sovereign  authority  of  the 
(iiuntryof  his  dohiicil.  That  he  averred  in  his  claim. 
Tlien  be  proceeded  to  allege  that  he  had  been  discrinii- 
ii.ited  against,  and  this  dearly  tenable  position  was  set 
up  in  addition  to  the  position  set  up  by  the  British  coun- 
sel, that  the  words  "British  subject"  and  the  words 
"justice  and  equity"  in  the  treaty  compelled  an  award 
anyway.  This  is  important  in  getting  a  clear  opinion  of 
this  case.  The  following  was  the  attitude  of  Her  Ma- 
jesty's Government  in  the  argument  against  the  demurrer 

4ot()that  claim,  the  United  States  having  demurred  upon 
the  ground  merely  that  the  man  was  domiciled: 

"And  this  brings  us  therefore  to  the  question  which  is  more  im- 
"  portant  than  any  other  which  can  come  before  this  Commission. 
"  Whether  a  subject  of  Her  Britannic  Majesty,  who  is  t>orn  such  a 
'  Hubject,  and  has  never  been  naturalized,  or  taken  anv  steps  to  be- 
"  come  uaturalized  in  any  other  country  than  that  of  iiis  birth,  and 
"  <.vbo  during  the  insurrection  atistained  from  all  intermeddling 
"  therein,  and  conducted  himself  strictly  in  accordance  with  the 
"  Queen's  proclamation  of  neutrality,  and  in  all  respects  conducted 
"  himself  as  faithful  to  the  United  states  as  any  loyal  citizen  could 
;o  "  liiive  done  without  taking  an  actual  part  in  the  war,  does,  neverthe- 
"  leas,  cease  to  be  a  British  subject  within  the  meaning  of  the  treaty, 
"  bv  reason  of  his  domioil  in  the  United  States." 

Section  3  of  the  brief  of  Her  Majesty's  counsel  then 
proceeds  to  make  a  distinctio"'  "pon  this  treaty,  from  the  ' 
language  of  it,  in  that  it  provides  that  the  subjects  of  Her 
Britannic  Majesty  are  entitled  to  recover  in  any  event 
without  regard  to  the  question  of  domicil.  But  further- 
more, in  their  point  8  that  Barclay  claims  the  protection; 
first,  because  of  his  loyalty  to  the  United  States,  he  not 
Co  having  in  any  degree  violated  the  claim  of  their  sovereign 
rights  over  him  or  denied  the  sovereignty  of  the  United 
States  in  any  manner,— that  is  argued  out  by  the  British 
couufel.  Then  next  they  argue  that  the  term  "  British 
subject'  entitled  him  to  recover  his  estate  under  the  pecu- 
liar words  of  the  treaty.    But  finally,  they  argue  that  the 


a 


-'J  ti'  ;     £1 


,'M. 


II     ^•li  ! 


'lii-i 


r)«+     \  , 


010 


(Mr.  DickiiiNoii's  CIohjii^;  Arp;iiniont.1 

claim  of  protection  of  (iroat  Hrituin  i-cHtsiipon  thiM^iv  !|,| 
of  loyalty  to  the  HovorciKnl y  of  (ioiiiicil,  uiid  allege*!  <mr. 
elimination  only,  and  thoy  cit(>  aiithoiiticu  copioiislv  with 
rcfeiuni'i'  upon  that.  Tlmro  was  no  doubt  about  the  i.e. 
titudu  of  that  Ifgal  position.     Tlu\v  quote  from  Pbillirihir 


10 


an  followH: 

*'TlioHt»tu  to  wliicli  tlio  for<<i)(U)>r  IioIoiikh  iiibv  intorforo  for  hi* 
"  iirott'ftiiiii  wliiMi  lit'  liuM  rtH'tiivi'il  lumitivi'  mult  rent  iiitnit,  or  wliiii  In- 
'•  liuH  Ik'oii  tl(>ui(-il  iiriliniiry  jiiHticc  in  the  foreign  country.     'I'lir  .sinte 


of  tlio  fort'iKiicr  may   iiiHiNt  upon    rciukrution    immciliuti'ly 


iliu 


rciiikruti 
former  fiiN»'.  In  tlie  liittcr,  tim  inti'rfi'ri'iice  in  of  ii  more  iii|i,,it 
"  ohnrncter  (I'lirt  5,  I'll.  I.).  And  ho  (IimIucph  from  the  t'nuiilit'  df 
"  Htott'H  'tlio  rinlit  of  II  State  to  iitl'ord  proteetion  to  her  huIiJicIh 
"  wherever  eommuraut.'  " 

Thus,  it  is  contondcd.  tliat  it  is  a  li^bt  undiT  liitti  na 
tional  law,  irri'spcctiveof  tlio  words  "  British  sid)j('('t,  '  \n 
make  rei-laination  for  a  Hriti.sli  subjt'ct  domi<iU'(l  in  llic 
20 1  lilted  States,  whenever,  first,  he  shows  his  loyalty  In  (h,. 
country  of  his  domicil,  that  he  did  his  duty,  and  |>i  r 
formed  it  as  if  he  were  a  citizen  of  the  United  States,  (i„il, 
that  the  (jiovernnient  of  the  United  States,  throu^'li  its 
military  authorities,  has  positively  nialtreated  him,  or  Ims 
denied  him  juslic*'. 

That  is  the  doctrine  1  have  been  trying  to  maiiit 
here,  and  that  is  the  position  of  Her  Maje.sty's  (iovi 
ment  in  the  Barclay  case,  under  which  Baiclay  clain)i( 
award.     Now,  we  will  see  the  decision  in  that  case.     ' 


30 decision  upon  the  demurrer,  page  IH  of  the  Agents'  We| 
(American)  foiuid  in  Vol.  tl,  "  rai»ers  re" 


of  Washington." 


am 
■111- 
liiii 
I'iie 

lating  tothe  Treaty 


"  The  ttrHt  thiuK  to  be  dceided  in  thiH  civhp  \h  whether  the  ('onuuis. 
"  HionurH  have  jurisdiction,  wliiih  dependw  u|)on  whether  the  cliiiiimut 
"  is,  within  the  meaning  of  the  treaty,  a  British  suhjrct. 

"That  he  is  in  fiict  a  Uritish  subject  there  is  no  doubt;  but  it  is  cnn- 
"  tended  that,  boin^  domiciled  in  tho  United  States,  he  is  not  diic  (if 
"  those  intended  by  the  frnmerH  of  the  treaty  to  be  included  in  tliiit 
"  term.  It  is  undoubtedly  true,  as  appears  from  various  cases  citt'il 
"  in  the  argument,  that  the  subject  or  citizen  of  one  State  doiiiiciled 
40  "  in  another  ac(]uires,  in  some  respects,  privileges  and  incurs  lialiilitifn 
"  distinct  from  those  jxissessed  in  right  of  his  original  birth  or  citizen- 
"  ship.  But  he  still  remains  the  subject  or  citizen  of  the  Stale  to 
"  which  he  originally  Indouged,  and  we  see  no  reason  to  sujiposc  tliat 
"  it  was  the  intention  of  either  government  to  jiut  tho  limited  iiifuii- 
"  ing  on  the  words  'British  subject,'  contended  for  in  the  argiinnnta 
"  in  suppo''  •■'f  the  demurrer,  so  as  to  exclude  from  our  jurisdiction  a 
"  British  subje.'f  »!,,.  has  never  renounced  bis  original  allegiance  or 
"  bec-me  niiViir.ilized  in  any  other  country. 

"The  fact  oi  the  <-laimant  having  his  domicile  in  one  of  the  Cou- 
"  federat!  *-t  .tes  will,  of  course,  have  a  material  bearing  on  the  |Hiint. 
"  also  iitisci.  in  the  demurrer,  as  to  the  liability  of  the  claiinaMl'.t 
50  "  i>ropertv  to  seizure  or  destruction  by  the  Federal  army.  It  is  ililli- 
"  ciilt  to  fay  down  a  general  rule  applicable  in  all  cases  to  the  rights 
"of  an  invading  army,  nor  in  this  i)articular  case  is  thot  necescury. 

"  T/i>'  sidlimi'iils  roiiliihifd  in  llir  tiii'iiii.yiiil  iivr,  /or  l/n'  i>iir}ii-fis  'j/  Ihif 
"  iin/iiiiii-nl,  to  III'  (lasiiiiifil  lo  In'  Inn'.  One  of  the  statements  in  thi' 
"  memorial  is,  that  part  of  the  claimant's  property  was  taken  jids- 
'•  session  of  by  the  Federal  army  withtmt  any  military  necesKity,  con- 
"  venience,  provocation  or  inducement,  and  plundered,  and  that  part 
"  was  wantonly  destroyed. 

"  .Supposing  this  to  be  true,  wo  are  not  prepared  to  say  that  some 
"  liability  might  not  be  established  against  the  United  States  Oovern- 
"  meut. 
60  "The  demurrer  is,  therefore,  disallowed;  but  the  United  States 
"  Government  will  be  at  liberty,  if  they  think  fit,  to  take  issue  upon 
"  the  facts  alleged  in  the  memorial." 

Bear  in  mind  your  Honors  tliis  decision  was  on  a  de- 
murrer, and  they  had  to  consider  the  words  "British  sub- 
ject "  in  respect  of  the  claim  of  Great  Britain,  and  also  the 


on 


um 


(Mr.  DickiiiHon'H  Closing  Aigiitnoiit.) 

.intPiitidii  uiuUt  iiitcniatioiial  law  ina(lt>  in  the  rncniorial 
I  hat  Hairlay  had  preserved  his  l(»yal  uliiniame  to  the 
loiiiitry  of  domiril  Ciorn  start  U>  Miiisii,  and  had  heen 
il.'iiitHi  tho  ('i|uai  protection  of  the  laws,  and  had  heen 
maltreated. 

I  have  read  the  deci.-ion.  and  it  is  the  old  (N)ctrine 
which  we  have  insisted  npon  from  hej;inninj,'  to  end;  that 
,y  .  domiciled  citizen  of  a  for»'i>;n  conntry  performing  his 
duty  to  the  government  of  his  sovereignty,  not  violating 
KV  denying  the  assertions  of  sovi  reigntv,"  has  a  riuht  to 
llie  protection  of  his  government  of  origin  for  disci unina 
lion.  And  we  maintain,  tlierefore,  that  without  oxceptiou 
the  rule,  as  stated  in  our  hrief  to  this  effect,  is  the  law. 
We  say  at  page  4K  of  our  printed  argument: 

•The  lociil  HovcroiKuty  cou  protect  him  and  jiroiet-t  hm  jiroperty 

iiiid   iiiiilit'  rofhiiiiafion  for  him  ii>?aiuHt  t>v»>ry  otlicr  iint ion,  except 

••lhc<mtM)f  his  oriKinal  ullf«iuiii'i',  in  any  caHc;  and  in  cbhc  of  war, 

2()  "  ivcn   if  tlu>  country  of  \dn  oriKinal  aHcKiancc  ih  Im-I  liferent,  tho 

■  (Miuntr^v  of  liiH  local  allcKianco  being  neutral,  nniy  intcrveni>  to  i)ro- 

•  tcct  linn  aw  a  neutral  aH  aKaiuHt  tho  country  of  "liiH  orixiual  allcgi- 

•■  iince;  but  never,  even  in  that  eiiKe,  if  he  haH  been  n"ilty  of  au  act 

'■  lioHtilo  to  the  country  of  liiH  original  allegiance." 

These  would  he  the  logical  positions  of  (Jreat  Britain 
llicnas  to  Tooper  on  this  question;  their  argument  that 
till'  register  and  the  flag  are  conclusive: 


30 


40 


50 


60 


"  ((/. )  That  his  ownership  of  the  vchscIh  seized  must  be  taken  as  con- 
'  ciuHive  (in  this  wo  fully  agree,  but  on  other  and  distinct  grounds 
'  from  thoHo  taken  by  (Jreat  hhtaiu). 

••  {!).)  That  although  domiciled  in  the  United  Htatcs  from  boyhood, 
'  and  for  nearly  half  a  centurv,  because  he  was  not  naturalized,  and 

•  liecanse   ho  was  an  original   Uritish  subject,  he  could,  under  the 

•  iiuiuicipal  laws  of  (Ireat  Britain,  take  out  a  British  registry  for  hia 

•  ships  and  put  them  under  the  Uritish  flag. 

"  (c.)  That  so  domiciled  by  virtue  of  such  registi-y,  and  flag  alone, 
'  iu  direct  violation  of  the  munici])al  laws  of  the  United  States  of  ex- 
'  territorial  force,  and  in  direct  violation  of  their  criminal  statutes, 
'  also  of  ex  territorial  force,  iimi  in  ttirnt  (hjiitim-  ifi/ir  na'U mil  lUiint 
'  ■1,11/  iissfiiion  iif  jiirisilicliiin  nrrr  llir  si'iilhif/  iralirs  nf  liirimj  Si'a  {a 
'  ^ni-rri'liin  ddiiii  mmliiinlhorildlitilii  hii  ntll/n' /minclirstif  l/ir  (junritmeitt), 
'  lie  could  send  his  vessels  to  take  seals  in  those  waters. 

'•  ((A)  That  concurrently  with  his,  the  vessels  of  Cooper's  neighbors 
'  ill  San  Francisco,  who  wero  native  born  citizens  of  the  United  States, 
'  protected  no  more  than  himself  by  the  laws  of  the  United  States, 
'  luiving  been  sent  by  them  to  take  seals  in  the  same  waters,  may  be 
'  seized  and  condemned,  under  those  laws,  while,  at  the  same  time, 
'  tlieir  owners,  his  neighbors  and  fellow  citizens  of  thirty-five  years, 
'  witness  his  fleets  go  and  come,  and  take  seals  with  impunity. 

"  ('■.)  That  if  in  tliese  circumstances  the  United  States  enforced  the 
'  law  alike  and  with  equal  hand  upon  tho  i)roperty  of  all  their  citizens 
'  ef  San  Francisco,  be  he  a  citizen  by  domicile  or  like  his  neighbors 
'  liy  iiativitv  or  naturalization,  that  Cooper,  by  reason  of  his  original 
'  imliti<'al  allegiance  and  liy  having  put  his  vessels  in  a  British  registry 
'  iiijil  under  a  Jlritish  Hag,  is  a  person  on  account  of  whom  for  these 
'  I'limlties  that  he  has  suffered,  and  while  still  retaining  his  American 
'  (Idiiiicile,  Great  Britain  can  claim  compensation  from  the  United 
'  States. 

•'  We  attirm  that  no  such  monstrous  doctrine  can  be  tolerated  for  a 
'  iiiiiiiietit. 

•■  hi  such  circumstances,  the  citizen  by  domicile  ^for  that  is  what 
'  lie  is)  cannot  lay  aside  his  character  as  a  '  national '  of  the  United 
'  States  whenever  he  sees  ttt  to  defy  the  same  sovereignty  and  the 

•  siuiie  laws  that  protect  him,  by  asserting  his  original  political 
'  iillt'giance  and  the  fact  that  he  has  not  gone  through  tho  form  of 
'  naturalization. 

■  Much  less  can  he  call  upon  the  country  of  his  original  allegiance 
'to  make  reclamation  for  him  again  :  the  nation  of  his  actual 
'iillegiance  for  what  he  has  suffered  for  violation  of  the  latter's 
'  laws." 


ffefe 


i 

1  ■■ 

ixs  :m 


!M2 

(Mr.  Dickinson's  Closing  Argunjeiit.) 

As  Secretary  Fish  c'^i'j,  in  a  comnmnication  qnotcil  n 
page  46 : 

"  It  would  be  a  inonHtronH  doctrino,  which  thin  Oovorninont  wm  !,l 
"  not  tilernte  for  a  momout,  that  a  citizen  of  the  United  Stat  oh  " 

reversing  the  order — taking  the  otlier  position, 

'■  who  might  deem  hiniHolf  injured  by  the  authorities  of  the  Unit.,! 
lO"  States,  could,  liy  tl•anHferrin^J  his  allcKiauce  to  another  pnw.r, 
"  confur  upon  that  i>ower  the  ri^ht  to  enquire  into  the  legality  nf 
"the  proceedings  by  which  ho  may  have  been  injured  while  a 
"  citizen." 

Let  US  see  what  Chief  Justice  Cockhurn  says  on  tins 
doctrine  in  "  Cockhurn  on  International  Law,"  page  jii 
The  subject  coniniciices  at  page  110.    After  discussing  tin. 
position  as  taken  by  tiie  Earl  of  Malnieshury  in  18.')8: 

"  If  a  person  had  been  born  in  France,  of  British  parents,  and  liad 
"  voluntarily  returned  to  France,  he  would  have  been  a  Hritish  mi!i- 
"  ject  in  England,  but  he  would  not  have  been  entitled  to  lb-it isli 
"  privileges  or  protection  in  France,  as  against  the  country  of  his  ii,'. 
"  tual  l)irth  anil  domicile.  And  this,  as  it  appears  to  Her  Majcstv's 
"  Government,  is  j)reciaely  the  case  of  the  children  of  British  subjdis 
"  who  are  l)orn  and  resident  in  Buenos  Ay  res. " 

He  states  that  "the  doctrine  thus  laid  down  may  be  perfectly  just 
"and  founded  on  a  proper  consideration  of  what  is  due  to OiIkt 
■  States." 

He  says  at  page  111: 

"  It  is  conceded  that  as  against  any  other  power  except  one  to  wlii.li 
•^O  "  allegiance  is  due  bv  reason  of  the  second  nationality  they  wouKl  lie 
"  entitled  to  i)rotectiou;  so  that  it  cannot  be  said  that  their  charailii- 
"  of  British  subjects  is  confined  to  British  territory." 

There  is  our  conclusion  and  our  position  in  six  lir.iv, 
after  a  careful  leview  of  the  very  point  und«>r  di.soi.'-Hitiii 

1  have  before  read  in  connection  with  another  ]H)iiil 
Ihat,  in  return  for  the  protection,  the  domiciled  citizen 
owes  obedience  to  the  law,  and  temporary  allegiance  to 
the  sovereign  or  State  in  which  he  is  domiciled.  This  is 
the  subject  with  whic:h  that  country  was  then  dealing; 
'♦°  when  the  late  J^ord  Chief  Justice  wrote,  reviewing  the 
laws  of  nationality  and  the  right  or  subjects  of  (iie;il 
Britain  to  protection  abroad-  written  for  tlie  purposes  i>\' 
the  discussion  which  resulted  in  the  Act  of  1870  in  tliat 
country  and  of  isdH  in  the  United  States,  and  also  in  the 
naturalization  treaty  of  the  two  nations. 

At  page  183  he  says: 

"  We  have  seen  the  inconvenience  and  embarrassment  which  nmv 
"  arise,  more  especially  in  case  of  war,  from  a  twofold  nationality,  in 
"  giving  rise  to  conflicting  claims  to  the  allegiance  of  the  same  iiuli- 
50  n  vidual,  or  to  inconvenient  claims  of  protection.  And  we  have  socii 
"  that  such  twofold  nationalitv  arises  cither  from  a  ccmflict  of  laws  rc- 
"  lating  to  nationality  of  origin,  wher(>by  an  individual  becomes  I  lie 
"  subject  of  two  Strttc^s  at  once,  or  from  an  ac(|uired  nationality  lioint; 
"  added  to  without  doing  awav  with  that  of  origin. 

"  Ought,  then,  thit  Svofolil  source  of  nationality  to  be  left?  "lie 
"  question  ap])ears  to  answer  Itself.  No  man  can  satisfy  a  doiililc 
"  claim  on  his  allegiance  made  by  two  nations  which  are  in  coutlul. 
"  So  long  as  the  two  nations  are  at  peace  the  man  of  two  nations,  liv 
"obeying  the  laws  of  the  countrv  in  which  he  happens  to  be,  nmv 
"  find  him.scif  involved  in  no  difnculty.  Yet  the  contrary  may  hup- 
"  pen.  Take,  flrst,  the  nationality  of  origin.  An  individual  beiii^,'  in 
60  "  fact  a  subject  of  State  A,  and  conceiving  himself  to  be  no,  but  rcsid- 
'  iug,  for  purposes  of  business,  in  State  B,  finds  himself  called  ui»>n 
"  to  discharge  duties  or  bear  burdens  incidental  to  the  character  ef  11 
"  subject  of  the  latter.  He  claims  exemption  as  a  subject  of  Statt!  .\, 
"and  calls  on  the  government  of  A  to  protect  him.  He  is  toM  in 
"answer  that  ho  is  a  sul)ject  of  both  States,  and  that  though,  if  in  1)10 
"  territory  of  A  he  would  be  treated  as  a  subject  of  A,  yet  having' 


10 


40 


U\.\ 


(Mr.  Dickinson's  Closing  Argument.) 

pliioi'il  hiiiiHclf  within  tlio  jurisdictiou  and  powor  of  H,  liowover  he 
limy  havo  delmleil  himself  with  tho  notion  of  heint,' ''  fuhjcct  of  A, 
iind  unili'r  tho  n'f,'is  of  its  i)rotoi'tn)n.  he  ih  ciuito  hh  much  a  sul)jt'ct  of 
U,  anil  must  tit?ht  tlio  hatth'H  ami  oontrilmto  to  tho  l)urdeuH  of  the 
luttor. 

"  Hut  what  if,  as  in  the  ciihc  already  juit,  wai-Hhonhl  take  i)hico  be- 
tween the  two  nationsV  To  whieli  IS  he  to  adliereV  Which  aUegi- 
auoo  is  to  prevail  ?  Is  this,  aKaiu,  to  depend  on  wliethoi-  Stuto  A 
iir  State  It  hap|ienH  to  have  him  within  the  nriis]i  of  its  authority  ? 
It  shouhl  he  rememliered  that  alle^^ianee  is  a  matter  of  solemn  ol'ili- 
i,'ation  ;  and  that  so  loii^  as  a  man  is  clothed  witli  a  kivimi  nation- 
ality, allegiance  to  the  State,  in  the  person  of  its  ruler  or  govern- 
ment, ismatter  not  of  option  l)utofdnty  ;  and,  what  is  of  by  no  means 
indifl'erent,  that  the  breach  of  such  duty  may  involve  a  iiian  in  no 
small  danger."  «  *  * 
•'  The  same  observations  apply  to  a  double  nationality  arising  from 

•  iiaturali/ation  in  a  second  country,  when  that  of  the  country  of 
origin  continues,  though  here,  no  doubt,  it  may  be  said  that  it  is 
the  fault  of  tlie  person  himsidf  who  has  voluntarily  placed  himself 

■  in  this  position  of  ditliculty." 

I'age  IHt!  :     •'  It  must  be  remeiubereil  that  tlie  obligations  of  sover- 

•  ligu  and   subjects,  of  State  and  citzens,  are  recii)rocal,  and   that 

•  wlicre  the  one  owes  allegiance  tlie  other  owes  protection.  And 
tliough  it  may  be  true  that   practically  an   individual  subject  may 

■  Imve  no  means  of  enforcing  this  right  against  the  State,  yet  no  gov- 

■  criiment  can  be  wanting  in  the  discharge  of  this  obligation  and  fail 
'  to  iirt'ord  protection,  according  to  its  ability  and  means,  to  a  subject 

■  -lulTering  a  wrong  at  the  hands  of  a  foreign   power,  and  thus  disap- 
'  point  just   and    legitimate  e.vpectatious   without  seriously  compro- 

■  iiiising  its  own  character  and  dignity.     It  is  therefore  imiiiifestly  the 

■  interest  of  every  government  not  to  l)e  exposed  to  having  its  protoc- 

•  tion  claimed,  and    to   becoming   involved    in   disputes    with    other 

■  powers,  on  behalf  of  persons  who,  though  nominally  and  in  eou- 
'  teniplation    of    law   its  subjects,   are    but    unprotitable    subjects, 

■  being,    in   fact,   settled   elsewhere  and   contributing  nothing   to   its 

■  wealth    or   strength.     It  is  equally  to  its  interest   not  to  be   com- 

■  pelled  to  refuse  protection  to  undoubted  subjects,  lest  by  interfer- 
ing in  their  behalf  it  should    do   violence   to   the    rights   of   other 

'  |Hiwers.     That  governments  may  bo  ex|)osed  to  claims  of  this  sort, 
'  and  that  embarrassment  may  issue  therefrom,  expi-rienee  has  abun- 

ilimtly  shown."     *     »     « 
•  It  is  obvious  that  the  evil  would  be  remedied  if,  by  a  law  common 

ici  all   nations,  thu  rule  as  to  nationalty  of  origin  were  everywhere 

'he  same,  and  naturalization  by  a  second  country  had  thu  eifect  of 

--iipersediug  the  allegiauco  due  to  that  of  birth."  ' 


I  »r  course  that  lecommt'iidation  was  canied  out,  l)y  tlie 
si.iluli's  of  both  countries  later,  a'ld  it  is  now  the  f.iult  of 
(ilizens  on  both  sides  if  euiharrassuicnts  have  lesullod. 
This  liad  heju  a  ni  .'t^'V  of  controversy  and  (hscussiou  he- 
twci'ii  tin'se  two  grear  governments  from  ITS.'idown — how 
tii-ct  on  common  g  ■  nr.id  so  a^.  to  settle  heyond  question  the 
nlilii;ation  of  n'logiance  on  one  hand,  and  of  protection 
(111  tli(^  other;  and  it  was  agreed  tinally  to  settle  \\,:  ;,o  put 
ill  Ihe  power  of  any  subject,  who  was  likely  to  invoke 

30|M  itcctiun,  by  his  own  act.  through  the  olticials  of  either 
Kiivi'iiui.Lnt,  to  forswear  liis  allegiance  to  one  country  or 

tl tber;  and  it  is  only  in  that  way  that  embarrassments 

cm  he  prevented.  Until  that  is  done,  and  that  is  in  the 
power  of  the  citizen  himself — the  allegiance  that  ho  has 
iinl  I'orsworn  is  a  Kolemn  duty,  binding  upon  him,  because 
lir  may  return  to  his  country,  invoke  its  piotectiou,  and 
hiki'  ail  his  rights  as  a  citizen. 

I  Ml  the  other  hand,  it  should  bind  him,  because,  until 
iialiiiidized  in  the  country  in  which  he  is  domiciled,  lie  may 

(x)lie  hound  by  all  the  laws  and  ali  the  assertions  of  sover- 
oiiiiily  in  the  country  in  which  he  lives.  If  he  does  not 
Wilt  to  take  the  obligations  of  citizenship  in  the  place  of 
hi  dumicil,  wiu'ii  the  conflict  tomes  on  between  what  he 
wi  hes  (odo  adverse  to  the  assertion  of  sovereignty  of  the 


i    .41 


111. 

i  f 


(■•ilIM 


liy  in  whic!   lie  is  lomiciled,  he  siiuidd  depart  to  the 


-I'i    ! 


m- 


Ill 


le 


!tl4 

(Mr.  Dickinson's  Closing  Argument.) 

country  lie  prefers  anrl  to  its  protection.  That  is  wii 
his  power,  and  that  is  pointed  out  by  Chief  Justice  ('( 
burn  as  a  way  out  of  his  difficulty.  The  citizen,  liini 
is  given  the  power,  as  he  never  had  iieen  before,  t<. 
nounce  one  allegiance  and  take  another,  but  up  to 
time  of  the  culmination  in  the  legislation  of  Great  Hiii  lin 
and  of  the  United  States  of  1SC8  and  1870  and  the  tn  i; y 

loof  187(t  between  those  nations,  embarrassment  arose  linii) 
the  fact  that  the  citizen  was  not  empowered  to  give  ii|,  hig 
allegiance,  but  was  held  to  it.  The  way  out  was  to  | m 
the  fault  upon  the  citizen,  if  he  did  not  take  advanta<^.  cf 
the  plan  that  had  been  devised  between  the  two  gov.  n- 
ments  that  y)ut  in  his  bands  the  power  to  voluntarily  i  il<e 
one  or  the  other  of  the  nations  as  bis.  Then,  if  lu^  liU 
into  embarrassment,  if  he  fell  between  two  stools  ou  ihis 
embarrassing  question  of  allegiance  on  the  ono  hand  ,111(1 
protection  on  the  other,  the   countries  could  say  to  him 

20 that  it  was  his  own  fault.  Cooper  lived  from  boybuoil  In 
the  United  States  without  any  intention  of  retiniiiii<r. 
These  American  citizens  o!i  tlie  other  side  who 
domicil  in  Great  Britain,  who  have  lived  upon  or.e  , 
the  other,  are  now  claiming  the  j)rotection  of 
Britain,  since  the  naturalization  laws,  since  i''  " 
able  to  relieve  themselves  of  their  embarrassn.  i, 
the  time  when,  if  they  wished  to  defy  tlie  l;i" 
sovereignty  of  the  United  States,  they  could 
renounced  their  allegiance  to  the  United  States.     (;)ii  tlie 

soother  iiand,  the  citizen  of  Great  Britain,  domiciled  in  the 
United  States,  has  remained  here  upon  the  soil  ol  dio 
United  States  when,  at  any  time,  if  he  wished  to  go  mid 
any  business  in  conflict  with  the  authority  of  the  UiiiUil 
States,  but  permitted  by  Great  Britain,  he  could  (l('|i,in 
from  our  midst.  He  was  to  be  either  a  citizen,  buniiil 
by  the  laws  that  protected  him,  by  the  sovereignty  I  hat 
protected  him,  01  he  could  go  on  and  enter  into  conllict 
with  the  United  States  under  the  a'gi.s  of  his  own  govt  in- 
ment,  but  he  could  not  do  so  and   reniiiin   here.     Let   us 

40 bear  in  mind  that  he  remained  here  not  only  protectcil  hv 
our  laws,  upon  our  soil,  throughout  his  acts  in  detiain c  ilf 
our  sovereignty,  but  afterwards  and  always,  during  the 
negotiation  of  this  Convention,  and  until  he  appears  as  a 
claimant  here  before  the  Court,  and  he  is  here  still  a 
domiciled  citizen  or  national  of  the  United  States. 

1  will  read  another  English  authority,  the  work  on  !ii 
ternational  Law  of  Hall  --who,  I  understand,  is  lecei^  id  a^ 
very  high  authority  on  international  law  in  (ireat  Miit- 
aiu— the  Oxford  edition  of  his  work  in  18si).     At  jjagc  J  It! 

50  there  is  a  discussion  of  the  condition  in  the  Unit<'(l  Slates 
of  English  subjects  at  the  opening  of  our  war,  and  a  re- 
view of  the  correspondence  to  which  1  have  beret o| die 
called  attention.  It  was  conceded  by  (Jreat  Britain  that 
domiciled  British  subjects  were  amenable  to  our 
sovereignty,  and  it  was  stated  by  Mr.  Hall  that, 
althougli 


Claim 


,111(1 

have 


60  .< 


otjjpc'tion  wiiH  nftcrwnnls  talcon  to  EngllHh  suhjci'tH  lioiiifi;  r(iiii|Hlli- 1 
'  to  Herve  iu  the  annicH  in  a  civil  vvar,  wliori'  lii'sidcw  tlii'  oiilinaiv  in 
'  ciiloutH  of  liattlo  they  iiUKlit  lu'  oxposoil  to  he  trcatocl  as  nilii'N  auil 
'traitors  iu  a  (luurrol  in  whioli,  as  alions.  lb'  .•  woiild  liavc  no  coi!- 
'  ('I'm,'  it  was  at  tlic  same  tinit'  said  that  tlic  novoriuiiont  '  lni^;llt  well 
'  Ih'  content  to  h'ave  iiritish  sul''  ts  voinntaiiiv  doniicilcd  in  a 
'foreign  countrv,  liaMo  to  ail  tii  ',l>l>^fiititii,;<  nrdiiiarilv  iiiiiiliut 
'to  Hiich  foreign  doniicih',  indui'-pf^.  wlwii  iiiij)o^;>d  tiv  the  inuiu- 
'  cipal  law  of  such  country,  sorvic*  in  I'lc  Milil  ,.  ■.■  National  (liiant, 
'  or  Local  Police  for  tlic   uiiiiut""  incc  of  ii;*- luu^   peace  aud  nrih'r. 


**:, 


t.) 


lat  is  wii 

Ill 

usticf  C'l 

\i- 

wu,  liiin 

'f, 

)efor(',  t'l 

it  up  to 

'11' 

iroat  I>ni 

ill 

d  tlic  In 

■  y 

t  ai  opo  1 1 

111 

logiv('ii|i 

liis 

was  tci 

•lit 

advaiit;!^. 

uf 

two  }i()v. 

■  11- 

Inutaril}'  i  ike 
It'll,  if  lie  1(11 
stools  on  I  his 
mo  liaiid  .'iihI 

I  say  to  liiin 

II  lioyhooil  ill 
of  roturiiiii;^. 
e  who  claitii 
on  Olio  >• .(]'  '' 
ion  of  <  "' 
ce  li'  v  \  . 
issn,"nr,  t-i:i',d 
the  111"  ""^  ,!iul 

could     have 
ates.     On  tlip 
tniiciled  in  llip 
le  soil  oC   1 1 10 
hed  to  {^o  into 
of  the  Uiiiiuil 
:>  could  (l('|i;ut 
citi/eu,  linnnd 
vereignty  that 
r  into  coiiliict 
s  own  govt'iii- 
lere.     Let   iis 
protectcil  hy 
in  di^tiaiii f  of 
s,  dm'in;;-  the 
a|>pt'ais  as  a 
s   heio  still  .1 
States. 
work  on  In 
is  received  as 
n   (iicat    I'.iit- 
At  page  I'ltl 
United  States 
ivar,  and  a   re- 
ive  heietoluio 
t  Britain  that 
liable    to    our 
Hall     that, 


liciiiR  cdmiuH'  I 
■s  the  onliiiiirv  ii. 
ftteil  a**  ivliil^  ami 
)ul(l  liavc  iu>  iiiu- 
inient  '  miKlit  well 
y  ilimiicilcil  in  « 
rdiniii'ily  iiuidcut 
t-M  liy'tlie  iMiiii- 

Niiti()niil  (iiiaiil. 

peacH'  auil   mili'V, 


915 
(Mr.  Dickinson's  Cloiinj^  Argument,  i 

•  '  or  cvpii  to  a  limited  extent  for  the  defense  of  the  territory   from 

■  'foreign  invasion.' 

•'  Tlie  case  of  personH  domieilecl  or  at   least  temporarily  Hottled  in 

•  the  country  seems  to  have  boon  the  only  one  ooutemp'lated  in  the 
•■  iuHtrnctions  referred  to,  and  it  isnotprob'alile  that  the  EupiUhIi  Oov- 

•  ■  orument  would  have  regarded  persons,  who  could  not  he  called 
•residents  in  any  sense  of  the   word,   as   being  affected  by  such  ex- 

■  tended  liabilities.  But  whether  the  latter  was  the  case  or  not,  and 
■•  whether  if  it  were  so   there  is  any  sufficient  reaion  for  making  a  dis- 

10  ..  tinction  between  residents  and   sojourners,  the  conc(>s8i()n  made  to 

•  local  authority  seems  nnuecessarily  large.     If  it  be  once  admitted 

■  the*  aliens  may  bo  enrolled  in  a  militia  independently  of  their  own 
'  consent,  or  that  they  may  be  used  for  the  defense  of  the  territory 
•■  from  invasion  by  a  civilized  power,  it  becomes  impossible  to  iiave 
•■  any  security  that  their  lives  will  not  be  sacrificed  in  internal  dis- 
"  turlmnces   producing   the   effects   pointed   out   by  Lord  Russell  as 

•  objectionable,  or  in  quarrels  with  other  States  for'the  sake  of  inter- 
"  ests  which  may  even  bo  at  voriance  with  thoKO  of  their  own  country. 
'■  It  is  more  reasonable,  and  more  in  accordance  with  general  princple, 
•'  to  sav,  as  in  effect  said  by  M.  Bluutschli,  that— 

'•  1.  It  is  not  i)ermi8sible  to   enrol   aliens,    except   with   their  own 
:!0  •  •  consent,  in   a  force  intended  to    be   used   for  ordinary  national  or 

•  political  o1)j<'cts. 

' '  '2.  Aliens  may  be  compelled  to  help  to  maintain  social  order  provided 
"  that  the  action  reiniired  of  them  does  not  overstep  the  limits  of 
"  police,  as  distinguished  from  political  action. 

"  3.  They  may  be  compelled  to  defend  the  country  against  an  ex- 
"  tcrual  enemy  when  the  existence  of  social  order  or"  of  the  ])opula- 
"  tion  itself  is  threatened,  when,  in  other  words,  a  state  or  part 
"  of  it  is  threatened  by  an  invasion  of  savages  or  uncivilized 
"  nations." 

That  goes  into  that  extreme  question  of  enlisting  in  war. 
30Still.  referring  to  laws  of  a  military  character  requirii-g 
service,  he  says: 

"Whether  laws  of  this  nature  are  good  internationally;  whether 
"  in  other  words  they  can  be  enforced  adversely  to  a  state  which  may 
"  choose  to  object  to  their  exercise,  ap]>ears,  to  say  the  Icnst,  to  be 
"  eminently  doubtful.  It  is  indeed  ditlicult  to  see  upon  what  they 
"  I'rtu  be  supported.  Putting  aside  the  theory  of  the  non-territoriality 
"  of  crime  as  one  which  unquestionably  is  not  at  present  accepted 
"  fithcr  universallv  or  so  generally  as  to  be  in  a  souse  authoritative, 
"  it  would  seem  tfiot  their  theoretical  justification  as  against  an  ob- 
"  jcctiug  country,  if  any  is  alleged  at  all,  must  bo  that  the  exclusive 
40  "  territorial  jurisdiction  of  a  State  gives  complete  control  over  all 
"  foreigners,  not  protected  hy  special  immunities,  while  they  remain 
"  ou  its  soil." 

The  condition  of  the  law  before  naturalization,  at  page 

240: 

"  Tiiat    of    England    was    based   until    1870   upon   the   princii)les 

•  "f  the  indelibility  of  natural  allegiance  and  of  liberty  of  emigra- 
■  turn.    Every  one   was    free  to   leave    his    country  ;    but    whatever 

"  term  he  went  through  elsewhere,  and  whatever  his  intention  to 
"  dirtuge  his  nationality,  ho   still    remained    an    Englishman  in  the 

50"i'yi'  of  the  law;  wherever,  therefore,  English  laws  could  run 
"  liV  liad  the  privileges  and  was  liable  to  the  oldigatious  imposed  by 
•■  tlii'm;  if  ho  returned  to  British  territory  he  was  not  under  the  dis- 
"  abilities  of  an  alien,  and  he  was  not  eutitled  to  the  jjrotectiou  of  his 
"  adoj)ted  country  "-—this  bears  ui)on  our  citizens  over  in  Canada — 
"  if  he  was  met  with  on  the  high  seas  in  u  foreign  merchantmau  he 
"  could  be  taken  out  of  it,  the  territoriality  of  such  ships  not  being 
"  recognized  by  English  law.  On  the  other  hand,  so  long  as  he  stayed 
"  witlrlii  foreign  jurisdiction  ho  was  bound  by  liis  own  i)rotessious;  he 
"  ha'i  chosen  to  renounce  his  English  character,  and  he  could  not  de- 
"  r.iaud  the  protection  of  the  State  towards  which  ho  acknowledged 
"  111)  duties.     In  the  begii'.eing  of  the  jircsout  century  this  doctrine 

*<)"  wat  rigidly  enforced.  E  iglishinen  naturalized  in  the  United  States 
"  wore  impressed  from  ou  I  oord  American  vessels." 

Then  there  is  a  discussion  of  the  right  of  search.  As 
to  the  taking  on  of  allegiance,  Hall  goes  into  the  broad 
question,  that 


^>^J^ 

l'^'-\: 


lo, 


910 

(Mr.  Dickinson's  Closing  Argument.) 

"  until  after  Daturnlizatiou  under  tlio  treaty  of  1870,  until  this 
"  allegiance  is  eontraetetl,  lie  must  be  eonsidored  aH  bound  li 
"  allegiance  to  the  government  under  wliieli  he  waH  born  ainl 
"  jeot  to  its  lawH,  and  this  undoubted  principle  seeniH  to  !m\, 
"  direct  application  in  the  prcHcut  cases  -  the  caseH  of  rrussiun 
"  jects. 

Section  87,  p.  291:  "  Htates  possess  a  right  of  protecting  their 
"  jects  abroad  which  is  cor-rolative  to  their  responsibility  in  res 

of  injuries  inflicted  upon  foreigners  within  their  dominions; 

have  the  right,  that  is  to  say,  to  exact  reparation  for  maltreat  i 
"  of  their  subjects  by  the  administrative  agents  of  a  foreign  g(j\ 
"  ment  il  no  means  of  obtaining  legal  redress  through  the  tribuim 
"  the  country  exist,  or  if  such  means  as  exist  have  been  exhaust i 
"  vain;  and  tliey  have  the  right  to  require  that,  as  between  their  suli 
"  and  other  private  individuals,  the  i)rotectiou  of  the  State  uiul 
"  justice  of  the  courts  shall  be  aflforded  eipially,  and  tliatcomj)onsii 
"  shall  be  made  if  the  courts  from  corrui>ti()n  or  prejudice  or  other  ;,Kc 
"  causes  are  guilty  of  serious  acts  of  injustice.  Broadly,  all  pei>  i.s 
"  entering  a  foreign  country  must  submit  to  the  laws  of  that  count  ;v; 
"  provided  that  the  laws  are  fairlv  administered,  they  cannot,  as  a  r  ;li', 
"  complain  of  the  ciTects  upon  tliemselves,  however  great  may  Ir.  tho 
20  "  practical  injustice  which  may  result  to  them." 

Qualification,  page:i!tr>: 

"When  the  subject  of  a  State  is  not  merely  passing  througli.  m- 
"  temporarily  resident  in,  a  foreign  country,  but  has  Ix'come  iliuii- 
"  ciled  there,  the  right  of  his  State  to  protect  him  is  8()iii(<»li;il 
"  affected.  He  has  deliberately  made  the  foreign  country  the  i  Imf 
"  seat  of  his  residence;  for  many  jjurposes,  as  will  bo  seen  latci .  Ii(> 
"  has  become  identified  with  it;  he  must  be  supposed  to  obtain  some 
"  advantages  from  this  intimacy  of  association,  since  its  existciiii-  is 
"  dependent  on  his  own  act;  it  would  be  unreasonable  that  he  slicmlil 
-^  "  be  allowed  to  reaj)  these  advantages  on  the  one  hand,  and  timt  mi 
•^  "the  other  he  should  retain  the  special  advantages  of  ii  complililv 
"foreign  character.  To  what  degree  the  right  of  a  goveriiiiicnt  U) 
"  protect  a  subject  is  thus  modified,  it  is  at  present  impossible  to  suv 
"  with  any  precision  in  the  abstract;  but  the  rule  is  one  whi<'li  can  iii 
"  general  l)e  probably  applied  without  much  difficulty  to  indiviiluul 
"  cases." 

Lord  Westbury,  in  Udny  v.  Udny,  L.  R.,  1  House  i.f 
Lords,  Sc.  441,  said,  in  delivering  his  judgment: 

"  The  lawof  England  and  of  almost  all  civilized  countries  ascriliotn 
"  each  individual  at  his  birth  two  distinct  legal  states  or  conditions; 

^  "  one  by  virtue  of  which  he  becomes  tho  subject  of  some  partii'iilur 
"  country,  binding  him  by  the  tie  of  natural  allegiance,  and  which  nmy 
"  be  called  his  political  status;  another,  bv  virtue  of  which  lie  Ims 
"  ascribed  to  him  the  character  of  a  riiiim  of  some  particular  count rv, 
"  and  as  such  is  possessed  of  certain  municipal  rights  and  subject  to 
"  certain  obligations,  which  latter  character  is  the  civil  status  or  cdn- 
"  dition  of  the  individual,  and  may  be  (piite  different  from  his  polit- 
'•  ical  status.  The  political  status  may  depend  on  different  laws  in 
"  different  countries,  whereas  the  civil  status  is  governed  almost  iini- 
"  versally  bv  one  single  jiriuciple,  namely,  that  of  domicile,  which  is 
"  the  criterion  established  by  law  for  the  purpose  of  deterniiniiif,' 
"  civil  status." 

50 

By  tlie  decision  of  the  Hoiiso  of  Lords  then  in  that  cnse 
— and  I  did  not  bring  tliv>  word  "  citizen  "  in  that  part  of  my 
brief,  in  referring  to  Cooper,  so  much  decried  by  my 
learned  friends,  out  of  the  depths  of  my  own  intelli- 
gence, but  I  used  tlie  decision  of  tiie  House  of  Lords 
in  tho  case  I  have  cited,  and  1  use  the  language  (it 
Lord  Cliief  Justice  Cockburn— that  a  permanently  domi 
ciled  person,  although  a  subject  of  another  country  \>y 
birth,  and  not  naturalized  in  the  country  of  domicile,  is  a 
6o civil  citizen  of  the  country  of  domicile. 

I  take  up,  may  it  please  your  Hono's,  at  page  50  of  my 
brief,  the  positions  of  our  learned  friends  upon  the  sub- 
ject of  the  effect  of  domicile;  but,  before  coming  to  timt, 
I  desire  to  call  attention  to  two  important  questions  under 
the  head  of  "  British,  Domiciled  in  the  United  States,"  in 


'•17 


111 
ill 

<ll 
III 

n| 
20.1 1 


(Mr.  Dickinson's  Closing-  Argnment.) 

my  brief.  Two  inij»oifant  i-ises  I  wisli  to  citu,  to  wliidi  I 
lave  bel'oi'e  I'oferred;  as  to  the  attitude  of  (i  rent  Britain 
liefore  naturalization  has  occurred  cunceininf^  jiersons 
domiciled  in  another  country  in  respect  of  original  alle- 
i^iance,  Cockbnrn,  on  pag(^  (lii,  ^-ays: 

"No  British  Hul)j('t't  can  put  oflf  liis  country  or  the  iiatunil  allegi- 

■iini'O   that  ho  owes  to  tho  SSovcreiKU— even    with  tlic  iiKscnt  of  the 

]0'  Sovereign;  in  short,  that  natural  allcKianci'  cannot  lie  got  rid  of  l>y 

•  anything  less  than  au  act  of  the  Legislature,  of  which  it  is  liolieved 

"  no  iustauee  baa  occurred.  ' 

Tiiat  is  up  to  the  time  of  his  wiitiug  in  lst)S.  And  he  rites 
t>  case  of  Aeneas  McDonald,  who  went  to  France  in  his 
fancy,  was  a  natural  horn  subject  (if  (ireat  liritaiii,  wlio 
■came  domiciled  in  France.  It  is  a  strong  case  for 
)niicil  and  tlie  rights  of  domicil.  In  the  course  of  time 
'  took  a  connnission  in  th(^  French  ai'iny,  and  war  came 
1.  He  was  arr(>ste(l  and  tried  for  trea.son.  liOrd  Chief 
istice  Lee,  in  charging  the  jiuy,  said: 

•  That  the  overt  acts  laid  in  the  indietineut  having  been  proved 
••  II  'T>st  the  prisoiu'r  and  admitted  liy  him,  the  only  fact  to  he  tried 
•'    iv  them  was  whether  he  was  a  subject  of  Great  I5ritain." 

I'nder  this  charge  of  the  Court  McDonald  was  found 
guilty  of  treason.  He  was  a  domiciled  citizen  of  France 
hcyond  question — a  civil  citizen  — hut  the  doctrine  of  in- 
nlienahle  allegiance  iield  him.  That  illustrates  the  posi- 
tiiiu  of  (ireat  Britain  up  to  the  date  of  the  adjustment  in 

30  1>'''-'  iind  IS7u.  On  the  other  hand,  your  Honors  will  tind 
in  our  country  the  case  of  Flijali  Clarke  referred  to  and 
set  out  in  Sir  Siierston  Baker's  Xotes  to  Halleck,  at  page 
413  of  Halleck's  International  liaw.  Flijah  Clarke,  a 
civil  citizen  of  Great  Britain,  domiciled  in  Canada,  but 
owing  original  allegiance  to  the  United  States,  was  ar- 
rested for  aiding  (freat  Britain  in  the  war  of  isi-J,  and 
was  convicted  and  hanged  by  the  American  anthoiities, 
the  United  States  maintaining  also  the  doctrine  of  iuaiien- 
ahle  allegiance,  and  this  rule  and  law  was  maintained, 

4oaiul  admitted  by  both  countries,  without  exception,  up  to 
the  date  of  the  provisions  for  natinalization,  in  ISds  and 

l^TH. 

It  is  still  the  law  as  to  all  who  do  not  take  the  benefit 
of  the  natinalizalion  laws  of  those  years 

Allegiance  being  inalienable  save  i)y  such  naturalization, 
all  its  conse(|uences  are  unvaried  now  from  that  doctrine 
of  (ireat  Britain,  when  under  a  Convention  with  France 
to  pay  the  claim  of  British  subjects  who  !iad  suffered 
at  the  hands  of  France,  they  decided  in  tlu;  Drunmiond 
jocase,  .so  often  referred  to,   "That  a  citizen  domiciled   in 

•  another  country,  while  still  retaining  bis  allegiance 
••  ti)  (Jreat  Britain  "  (and  on  account  of  whii'b  he  might 
lie  punished  undoubtedly  as  in  the  .Eneas  McDoiiiiM 
case  for  treason  or  any  less  degrees  of  violation  of  it), 
yet  his  status  before  a  Claims  Convention  was  Ibis  that  if 
|i(iniiciliated  in  that  country  and  so  anienable  to  the  juris- 
diction and  sovereignty  of  that  country.  Great  Britain 
(ould  not  make  reclamation  for  liim  for  damages  against 
that  country.     There  were  two  positions  standing  side  by 

reside;  inalienable  allegiance  in  so  far  as  ol)edience  is  con- 
itined— the  obedience  of  the  subject  for  the  ignoring  of 
which  be  could  not  make  reclamation  against  his  own 
country— and  on  the  other  band,  no  right  to  reclamation 
undi  r  Gieat  Britain's   protection  against  the  country  of 


'I 


i  I  ! 


I        i 
t 


■'1  ''X^ 

4 

i  i' 

■J  '■■'■'  i 
i,     ■ 

l<i 


;   ! 


'  ! 


ii 


liiiil 


II  ti 

'u 
rtl., 


it  IS 

(Mr.  Dickinson's  Closing  Aigumcrit.  i 

(loniicil.  The  Treaty  of  ism  hetw^'cn  our  nations  is 
in  e.xistt'iicc  and  applies  to  Cooper.  The  'J'reaty  of 
your  Honors  will  find  referred  to  authoritatively  ;is  I 
nig  on  both  conntiies  under  the  ConvtMition  of  Is;,:; 
port,  at  pages  H8.".  and  XM,  and  in  Hanlay's  case  in  ]s71 
(juote  the  Treaty: 

"  That  the  oitiziMiH  of  our  rcHjjC'otivo  coiintrioH  .slioiihl  niimiii  i 
'-'"territories   rcs])e<'tively,  niul    nenenilly  tlie  iiiori'liants  of    tli. 
"  conutrics  respeetivi'ly  shoiilil  enjoy  the  most  eoinpletc  orotinii,], 
"  luid  seeuiity  for  their  eoinmerec,  l)Vlt  ahvnys  sul)ject  to  tlie  hiw-*  i,f 
"  the  two  countries  respectively." 

Analysis  of  Authohitiks  CrrKU  A(i.\nist  Us. 

1    am    s.itisfied    that  under    the   later    registry    law^ 
Merrhants'    Shijiping    Act— which    have    been   presmti'd 
here,  and  to  which    I   shall    Liter   call    attention  in  inn 

2o'i''ction  with  ships— that  the  broad  stiitcnient  in  (uii- 
brief,  at  page  52,  which  has  been  criticised,  but  wlii(  h 
as  tlu'ie  stated  was  uiniecessary  to  our  argument,  tli.u 
Cooper  was  not  entitled  to  British  IvN'gistry  w,is  ,ui 
error-  an  error  solely  because  the  later  act  of  rarli;i. 
nieiit  had  not  been  called  to  my  attenti<in.  I'nder  iho 
law  as  it  I'xisted  before  as  held  by  tfer  .M.  'sty's  Cnim-,. 
Cooper  w;is  not  entitled  to  registration  ii  there  w,i-  a 
mortgage  interest  in  any  person  not  a  citizen  of  (licit 
Britain.     That  law  is  changed  by  this  new  act.     So  ciie- 

3oful  was  (iieat  Biitain  in  providing  that  no  one  who 
was  not  a  citi/en  of  (ireat  Biitain  a  subject  of  lin 
Majesty  or  of  the  Kmpire  should    have  any  iiiterc'-t      j 


made  that  stalement  on  a  (liorough  examination 


til 


cases,  and  tberii  being  no  decisions  under  the  lati'r  \u-\ 
because  that  was  expressly  made  to  meet  that  holding 
of  the  British  courts.  Over  and  over  again  there  w.iv 
deci°'ons  that  a  mortgage  interest  in  some  man  who  w,is 
not  a  British  subject  conveyed  a  legal  title  and  thei-elnic 
defeated  legal  registry.  That  is  how  1  made  the  mistake, 
4oand  it  is  one  that  any  lawyer  not  familiar  with  regisiiy 
statutes  would  have  niad(\  As  was  said  in  another  con 
nection.  (iod  forbid  tiiat  1  should  not  know  something  of 
International  law,  but  1  am  not  at  all  shocked  to  discovei 
that  1  knew  nothing  of  some  municipal  .statute  of  (Ircal 
Britain. 


Now.  as  to  the  citizens  of  the  United  States  claiimd 
to  be  domiciled  in  Gi'eat  Britain — of  course  the  evidence 
on  the  question   of  domicikf  is  a  very  important  one.     I 

50am  discussing  the    position    now  admitting    tentatively 
that  these  citizens  of  the  Uu'ted  States  were  legally  doiui 
cileil  in  (ireat  Bi'itain. 

It  would  lie  a  very  remarkable  condition  of  things,  if, 
after  we  have  gone  through  all  these  Treaty  negoti;ilions 
—after  tiie  decision  of  tlie  J'aris  aibitration  that  the 
United  States  did  not  have  exclusive  jurisdiction 
in  i\w  Bering  Sea— and  after  all  these  negotia- 
tions lasting  years  and  costing  both  (iovernnieiils 
large     sums    of    money,    if     it     should     now     be    held 

C'Othat  an  An;erican  citizen  owing  allegiance  to  the 
United  States  is  entitled  to  recover  under  the  piotdlmn 
of  Ureat  Britain.  That  dilliculty  is  the  chief  rea'-on  that 
your  Honors  are  here.  The  tiovermnents  coidd  have 
agreed  u|»oti  an  as.sessnient  of  damages.  Thei'e  was  no 
dilficulty  in  agn.'eiug  at  Paris  about  that,   except   for  tin' 


i    n 


"•\.'  i-ri 


!tr> 


^^^^iW 


\[\\    tlU'lf    \Vrii' 

lUMU  wild  was 
'  and  thiTi'loic 
tU>  the  inislakc, 
r  with  rciii-iiy 
in  anotlifi-  ion 
sv  soinolliiuK  <>!' 
fUoil  to  (hsiMivcv 
ttituto  of  (iivat 


lie  ("vulcuce 


In  of  things,   if, 

|itv  nt'iiot  lilt  ions 

■ation    tliat    Hn' 


theso    ne^iitia- 


M'  tiie  pllttliliiiU 

liicf  roa-ou  tliat 

ts  fOllliI   li:'^'*^' 

Tiieiv  \va>  u.i 


(Mr.  Dickinson's  Closinjj;  Aij^umcnt.i 

reason  that  the  United  States  insisted  tliat  it  wonld  not 
admit  that  anyone  siiould  violate  the  snvei'eij;nty  of  the 
I'nited  States,  ulioowed  it  allegiance,  nndertlie  jiioteition 
of  Her  Majesty. 

It  was   asserted  on  tht?  other  hand   that  all  the   shi|)S 
were  Hi'itisli  ships;  that  they  were  wholly  British  owned; 
that    American    citizens    had    no   interest.     The    I'nited 
1,1-^lates  assertetl  tliat  American  citizens  had  a  concealed  in- 
irrest;  thattiiey  had  put  on  British  rcgisteriesand  |)iitn|»the 
British  tlaji  to  violate  the   sovereignty  of  this  country  and 
iiptjii  that  issne,  hecaiise  they  conld  come  to  no  agreement 
iijion  theqiiestion  of  ownership  as  a  matterof  fact.  ;md  as 
(ireat    Ihitain  conld   not  protect  citizens  of   the  I'nited 
Slates  and  for   them  rt'cover  damages   from    the  United 
Slated,  as  a  matter  of  law,  that  this  Convention  was  iiego- 
liated.    And  so  yon  are  here,    (iivat  Ihitain  m'ver  claimed 
such  jirotection  as  a  matter  of  law  at  I'aiis. 
iQ     When  Miey  came  to  that  matter-  to  make  up  thetind- 
iiigs  of  facts,  they  conld  not  .agree  njion  these  facts;  and  it 
wonld  he  a  most  singular  thing,  aftei'  a  most  careful    pro- 
vision was  inserted  in  tiie  treaty,  after  Sir  Charles  Knssel 
had  stated  to  that  arhitration.  that  if  it  shonld  turn  out 
that  American  citizens  h.-id   an  int(>rest  in  a  vess(>l  there 
certainly   conld    he  no    reclamation    hy  Creat  Britain —it 
would  he  a  most  reinarkahlc^  thing,  I  say,  that  here,  where 
under  the  jirovisions  of  that  treaty  expressly  and  in  terms 
made,  American   citizens   might   he  jjioven    to   have  an 
-0 interest  in  th(!   vessels  and   yet  take  damages  from  the 
I'nited  States  in  this  international  conrt.    Tht^  (jnestion  of 
law  was  not  made  at  Uaris.     Onr  position  here  was  con- 
ceded there.     It  is  raised  hy  the  other  side  here  for  the 
first  time.     Upon  that  (piestion   my   friends  have  cited, 
among  other  things,  as  their  leading  aiitliority  the  decis- 
ion of  the  Connnissioiiers  in  the  Alahama  claims,  which  I 
liavt!  discussed  at  some  length  and  shall  not  refer  to  again. 
Among  the  authorities  cited  hy  my  leaiiied  friends  is  the 
case  of  the  "  Indian  Chief  "  to  which  I  referred  the  other 
^Qil.iy,  and  wiiich  is  cited  as  an  authority  that  an  American 
citizen  domiciled  in  (ireat  Britain,  stilJ  under  allegiance  to 
the  United  States,  for  injuries  suffered   hy  him  while  vio- 
lating the  claim   of  jurisdiction  of  the  United  States  in 
Bering  Sea,   can  recover  under  the  protection  of  tJreat 
liritain.     We  say  of  that,  that  it  was  not  a  case  in  point, 
liecadse  it  was  not  a  case  where  the  original  citizen  of  one 
country  domiciled  in  another,  was  making  a  claim  tiirough 
till'  country  of  his  domiciliation  against  the  country  of  his 
original  allegiance.     It  hrings  up  the  distinction  that  I 
;yliave  discu.ssed  in  Judge  Hoar's  argument  in  the   Harclay 
case  and  the  whole  question  agaiii. 

The  case  is  valuahle  only  on  the  Cooper  claim,  and  on 
that  is  strongly  against  (>reat  Britain. 

They  cited  the  case  of  the  "  Matchless"  in  their  original 
hrief.  A  British  suhject  was  domiciled  in  Boston  -and  it  is 
as  strong  a  case  as  you  can  find  for  the  United  States  hefore 
this  Commission,  in  the  case  of  the  claimant  Cooper.  But 
it  turned  upon  the  law  applicalde  to  domicile  for  mercan- 
tile or  trading  purposes—commercial  domicilp,  and  was 
/jglor  an  alleged  violation  of  the  second  section  of  the  navi- 
gation laws  of  Great  Britain,  to  wit: 

"  No  alion  shall  exeiviso  the  traJu  or  occupatiou  of  a  factor  in  the 
pliiiitatious." 


I't 


I 


'.•20 


":m\ 

•    i' ',■'■'. 


(Mr.  Dickinson's  Closing  Argument.) 

The  rase  is  clearl}'  not  to  tlie  jjuint  cited.  It  is  nm  a 
claim  for  indenniity  for  injuries  suffered  /lom  violin n.;^ 
tlie  laws  of  England  applying  to  Hritisli  subjects,  and  is 
very  far  fr*)ni  an  antliority  to  the  effect  that  the  coniuiy 
of  doniicil,  the  United  States,  could  make  reclaninlinn 
against  (ireat  Britain  for  the  injuries  so  snffeied. 

The  Diuminond  case  is  also  cited  against  ns,  hut  I  h.ivo 

lodiscus-ed  that  and  1  shall  not  analyze  it  again,  hut  I  ni.iki; 
tills  illustration  from  the  Drnmmoiid  case.  Sup|)osi'  in- 
stead of  a  treaty  providing  for  reclamation  by  Hrilish  siili- 
jects  against  France  it  had  heen  a  treaty  providing  for  iv- 
claniation  for  injuries  suffered  hy  civil  subjects  of  Franc,. 
in  f^eneral  against  tireat  Britain,  in  certain  watersclainuil 
by  the  Bi  itish  sovt-reign  as  jiiiisdictional  at  the  time  of 
the  injuries;  assume  the  ass^ertion  of  jurisdiction  by  the 
Queen's  proclamation  and  that  in  puisuance  of  tli.it 
tSovoreigii  assertion  and  in   jiursuance  of  its  prohibilidns 

20 and  penalties  that  (ireat  Britain  had  conunitted  the  in- 
juries complained  of;  and,  linally.  assume  that  the  case 
before  the  Court  had  been  whether  Drummond,  thou.L;li  a 
British  subject,  because  of  his  domicile  in  France,  conkl 
through  France  make  reclamation  against  (ireat  B)rii,uii 
for  the  loss  of  his  vessels  while  violating  that  claini  of 
jurisdiction  and  that  proclamation. 

But  (treat  Britain  would  be  the  last  coiuitry  in  tlie 
world — Great  Britain  extending  her  jirotection  over  her 
citizens  around  the  woild— oneof  whose  gloiies  is  thai  .a 

30 subject  of  her's.  like  the  Roman  citizen,  caiiies  citizensjiip 
as  protection  in  itself  wherever  the  sun  shines -(inat 
Britain,  I  say,  would  be  the  last  to  concede  that  anyone 
ovei'  whom  she  places  and  owes  her  protection  as  an  Eii^lisii 
subject— could  violate  the  proclamation  of  the  soverei^ntv 
any  wiiere  on  the  face  of  the  earth,  and  then  under  the  i)ro- 
tection  of  a  foreign  flag  make  reclamation  in  dania^os 
from  her  for  injuries  suffered  while  acting  in  derogation 
of  that  sovereignty  that  so  protects  bin).  Tliiidc  ol  it; 
Wearing  the  proud  title  of  British  subject— one  that  llie 

40subjects  of  Great  Britain  do  not  readily  or  willingly  re- 
nounce because  of  the  protection  given,  as  well  as  of  tlieir 
pride  in  walking  the  earth  as  British  snbject.s  -not  merely 
for  the  senlimeul  but  the  actual  living  protection  and  dis- 
tinction the  world  over — can  these  seek  a  foreimi  Hag 
and  sue  their  country  for  injuries  .suft'ered  at  its  hands, 
while  defying  it? 

This  bond  is  one  that  the  subject  cannot  easily  sunder. 
It  is  one  of  his  rights  to  which  no  jot  or  tittle  does  he  sin- 
render  until  he  becomes  domicilecl   in   a  foreign  country 

50 and  then  he  does  not  surrender  his  right  to  resume  it,  or 
his  light  to  protection  to  a  degree  while  there,  and  he 
does  not  s.ave  by  voluntary  naturalization.  Great  Britain 
cannot,  except  for  felony,  forfeit  his  light  to  wear  the 
proud  title  of  British  subject  around  the  world.  The 
majesty  of  the  great  Empire  cannot  take  it  from  him— 
and  if,  in  return,  he  may,  without  pursuing  the  course 
marked  out  by  the  law  of  1870,  enter  another  country, 
and  in  \iolation  of  the  proclamation  of  the  sovereignty  of 
his  nation,  enter  into  conttict  individually  with  that  nation 

60  in  a  place  where  .she  claims  jurisdiction  on  the  high  seas— 
thereby  suffer  from  his  defiance  of  the  authority— and  then 
invokethe]trotectioiiof  a  foreign  flag  and  a  foreign  power 
to  get  damages  out  of  Her  Majesty's  (lovernment-  1  will 
not  pursue  the  analogy— it  is  beyond  belief  that  any  such 
proposition  will  not  fail  in  the  very  making  of  it! 


!t21 


nn 


) 

It  is  Uni  a 
iin  violiilin;^ 
jocts,  iiiul  is 

roclaiiinlii.ii 
•ed. 

i,  l)Ut  I  li:ivo 
I,  but  I  m:ikii 
Supitdsc  in- 
Uritisli  siili- 
■idiiifi  I'oi'  re- 

'ts  of   FlMllll' 

iters  cliiiiiinl 
tlie  time  of 
ction  l)y  tlie 
nee    of    Ihat 
proliibitiiiiis 
itted  till'  ill- 
hat  til'.'  rase 
(lul,  tlio(i,L;li  a 
^'I'anci',  could 
iwixi  Brilaiii 
that  claim  n|' 

iiintry  in  tiic 
tion  uviT  luT 
iiios  is  tiial  a 
ies  citizt'iisiiip 
shines  -(^rcat 
}  that  aiiyoui' 
lasan  English 
le  sovfioijiiity 
niuler  the  pro- 
11  ill  (laniMi^cs 
in  (le rogation 
Think  ot  it; 
-one  tiiat  the 
willingly  le- 
ell  as  of  their 
s— not  merely 
ction  anil  ilis- 
foieiuii  Hag 
at  its  hands, 

easily  sunder, 
e  does  he  siir- 
)reign  country 
o  resume  it.  or 
there,  and  lie 
Ureat  Britain 
t  to  wear  the 
i  world.     The 
it  from  hilli- 
ng the  course 
other  country, 
sovereignty  of 
ith  that  nation 
the  high  seas— 
rity— and  tlieii 
foreign  iiower 
innient-  1  will 
'  that  any  such 
of  it! 


(Mr.  Dickinson's  Closing  Argument.) 

If  a  man  desires  to  make  reclamation  against  the  United 
^lates  for  entering  upon  any  business  in  detiance  of  the 

I  nited  States,  let  liiin,  under  the  law  as  it  now  stands,  by 
his  own  vohnitary  act,  before  be  enters  upon  that  business 
fi. reswear  allegiance  to  the  country  whose  sovereignty  he 
|u(iposes  to  violate,  and  accept  the  allegiance  and  i)rotec- 
tioii  which  he  seeks,  under  some  other  llag.    Until  be  does 

;otiiat,  a  citizen  of  the  United  States,  wherever  resident  or 
(■(inmorant,  cannot  make  reclamation  under  the  jn-otection 
III  a  foreign  Hag  from  theCiovernmontof  the  United  States. 

II  the  Government  of  the  United  States  has  injured  him. 
tlh' courts  are  open  to  bim,  where  be  may  comeat  any  time, 
and  the  United  States  reserves  his  right  to  come,  with 
all  his  rights  of  citizenship  |»reserved.  Hut  be  camiot  do 
hoili.  An  American  citizen  cannot  remain  such  in  Her 
Majesty's  dominions,  preserving  bis  citizenship  and  a  con- 
.-^ninent  right  to  protection  against  Her  Majesty's  Govern- 

:oiuiiitand  violate  the  sovereignty  of  the  United  States  at 
til.'  same  time.  He  cannot  be  a  <itizen  of  two  countries, 
wiih  equal  rights  under  the  laws  of  each  and  under  ohliga- 
tiniis  to  ueilber. 

The  Countess  of  Conway's  case  is  the  next  case  cited. 
The  case  is  not  in  point.  Tlie  Countess  was  not  a  British 
Buhjecf,  nor  domiciled  there,  and  if  she  bad  been,  it  did 
nil  appear  that  the  claim  was  for  injuries  sustained  by 
iu'i  while  engaged  in  iiostile  acts  against  France  (the 
country  of  her  original  allegiance),  or  in  violating  the  laws 

30of  Kiaiice  applying  to  her.  In  Livingstone  rs.  Maryland 
Co..  7  Crancb,  the  decision  by  Story,  Justice,  is  a  very 
strong  case  against  the  position  of  Great  Britain  in  cases 
like  tliat  of  Cooper.  It  is  not,  however,  a  decision  bearing 
at  all  upon  the  question  here.  It  was  not  a  claim  made 
against  Spain  the  country  of  original  allegiance,  and  was 
not  a  claim  made  for  injuries  resulting  from  the  conse- 
quences of  acts  hostile  to  that  country,  or  for  violation  of 
her  laws. 
The  "  Venus"  was  another  case  cited  by  Great  Britain, 

40 and  it  is  the  last  of  the  cases  cited  in  the  original  brief  of 
(ireat  Britain,  which  commenced  by  making  somewhat 
disi  inguished  and  famous  the  decision  of  the  Commissioner 
of  Alabama  claims  The  "Venus  "  is  a  case  which  I  cited 
en  our  side  in  another  connection,  and  it  has  no  bearing 
whatever  upon  the  right  of  a  domiciled  citizen  to  recover 
against  his  own  country. 

Aside  from  the  great  question  of  sovereign  assertion  of 
jurisdiction,  superior  to  any  mere  legislation,  I  come  to 
foanother  of  merely  municipal  legislation.  I  will  call  atten- 
tion, first,  to  the  position  taken  up  by  the  senior  counsel 
for  (ireat  Britain,  before  the  Paris  tribunal,  then  Sir 
Charles  Kussel,  now  the  Lord  Chief  Ju&tice  of  England, 
Vol.  in.  United  States  Reprint,  page  M\.    I  quote  him: 

" 'I'lu'only  right  of  protection  of  fishiug  and  other  free  swimming 
"  iiiiiniiils  in  the  high  seas  which  can  be  exercised  by  any  State  (apart 
•'  fium  I'onvcntion)  in  as  aijainsl  Us  own  tiotionals." 

The  Commissioner  on  the  part  of  the  United  States: — The 


(0 


word  "  protection  "  seem  to  be  used  thei'e  as  equivalent  to 
"re.milation." 

Mr.  Dickinson:  -Well,  regulation,  in  the  nature  of  a 
game  law,  I  suppose,  which  is  protective. 

"  It  may  be  in  the  interests  of  commerce  and  the  fishing  industry 
"  (if  I  In'  u'lition  that  all  its  fishermen  alike  should  be  made  to  respect 
"  A  iliisi"  time,  even  for  migratory  fishes  and  even  in  the  deep  sea. 


ii 


1  ■: 


922 


|i! 


n^ii 


(Mr.  Dickingoii's  Cloaiiig  Aiyiiinciit.) 
"  A  Stiito  luis  u  ri|j[lit  to  li'giKlato  for  its  own  sulijccts  on  tl 


"  Hucli  loKiMlation  (iiviit  liritaiu  is  williuK  to  ))iimh  in  rfsiicc,  i|  1 1,,. 
"  HcalH  in  Bclirint?  Hen;  but  out'  CHHontinl  condition  on  wliidi  llrr 
"  Miijcsty'H  (lovernnicnt  insiHt  is,  that  the  other  uittionH  inti'ii^t,,! 
"  Hhould  pftHH  Himiliir  liiws." 

lo  i^iipposi'  sh<'  dill  pa'-H  llie  Imw,  mikI  other  ii.itions  did  n  ,t^ 
woidd  it  not  liiml  Hrilisli  iiiitioiials  aiiyvvlicro  on  iIicIiil;|i 
Beixsi  Of  coui'se  it  would.  Tlio  fisst'rtioii  of  lur  |,.-;s 
lativt"  authority  foihiihliiijj;  lit'i-  siihjt'cts  or  hor  iiation.ds 
to  t:ii<('  tlu>  North  Athiiitic;  roiito,  would  hind  tlifiu;  if  they 
wcr(>  fouiidoM  till!  North  Atlantic  routo,  they  would  he  \i.\\<\t> 
to  seizure  at  the  hands  of  any  ship  of  Her  Majesty's  (iovnu- 
nuMit.  And  the  sovereij^nty  extemls  every  wIipk^  over  iln, 
nationals  on  the  iii^h  si'as  without  ()nalifi<'ation,  and  liiinls 
siihjects.  even   if  the  suhjuct   is  within  the   t(!rritoi\   i,f 

2oSonie  other  nation.  TIk!  oidy  thing  that  (pialilifs  ihc 
right  to  enforce  the  law  in  the  latter  case  is  the  e.vclii-ivc 
jurisdiction  of  the  other  sovereignty  over  nndoul.liil 
dominions,  so  that  in  the  case  put  hy  his  Honor  liio 
American  Conuiiissionor  yesterday,  it  would  not  do,  al 
though  the  law  wijuld  hind  a  man  across  tlie  hordi  i  in 
Now  Brunswick,  to  go  and  take  him;  he  is  practically  pio. 
tected  from  the  penalty  of  the  law  which  hinds  him  in  llic 
United  i^tates,  if  he  is  across  the  hordcr,  hecause  anv  in- 
vasion of  Ihitish  territory  would  he  an  invasion  of  the  -(]\. 

joereignty.  That  is  all  there  is  o(  that  question  of  cxcliisivo 
jurisdiction. 

In  the  British  counter  case  (Vol.  s,  Am.  Ut'i)iint.  juif^i' 
85)  it  is  said: 

"  In  connection  with  this  branch  of  the  Kutjjoct,  viz.,  the  scope  nuil 
"effect  of  tlie  legislation  of  other  nations,  it  is  essential  to  kcip  iu 
"  minil  the  well  known  rule  of  International  Law,  that  the  laws  uf  u 
"nation  affect  none  but  its  own  subjects,  anil  the  eubjects  of  dtlicr 
"  nations  whoso  persons  or  property  may  be  within  its  tcrritdiiul 
"  jurisdiction." 

'^°  "  Whose  persons  or  property," — that  covers  Mr.  Cohihi'. 
We  can  either  have  his  person  or  property,  and  hind  liini 
until  he  betaking  himself  to  his  country  of  origin  he  asMit< 
his  British  allegiance  and  protection — we  can  hind  liini 
while  ho  violates  our  law,  and  while  he  lives  in  the  L'nited 
States  we  can  take  his  ships  on  the  high  seas  but  nol  liis 
property  on  British  soil,  or  his  ships  within  three  mihs  of 
British  (;oasts. 

No  nations  have  more  consistently  affirmed  the  rul<'  1 
have  quoted,  say  the  British  counsel  at   Paris,  than   tho 

'°  United  States  and  Great  Biitain,  and  a  large  nnnilni  uf 
citations  are  given  establishing  the  proposition.  And  linn 
ho  proceeds  to  cite  the  authorities,  the  most  of  wliiili  I 
have  inserted  in  my  brief;  but  I  desire  to  call  your  HoiKirs' 
attention  to  the  decision  of  Judge  Story  in  this  coiiinc- 
tion,  at  l>age  370  of  9  Wheaton — The  "Apollon"  Case: 
"The  laws  of  no  nation  can  justly  extend  beyond  its  own 
territory,  except  so  far  as  regards  its  own  citizens."'  Nnw 
in  this  case  we  go  a  step  further.     I  do  not  care  anylliuif,' 

^  about  the  municipal  laws  of  tho  United  States  in  this  (tui 
°nection.  If  the  Uniteil  States  seize  a  shij)  on  the  liii;li 
seas,  tho  remedy  must  be  in  the  Court  of  the  riiiiid 
States,  if  the  person  is  a  national  of  the  United  St  alts 
A  "national"  is  a  person  civilly  domiciled,  as  well  as  a 
political  citizen  wherever  domiciled. 


(•23 


ts  (111    till-     li'     il 


(,Mr.  Dickinson's  Clo^inj^  Arminiunt.) 

Several  planes  helo'v  tlio  nie.tt  ((iiestion  which  rules 
this  case,  the  assertion  of  sovereignty  by  the  exeentive 
authority,  and  still  cm  the  snhject  of  nnniicipal  jurisdic- 
tion of  conits  under  nnniicipal  lej^isiation,  I  will  see  how 
the  "  La  Ninfa"  case  hears.  I  contiruie  to  (piote  from  the 
British  argument  at  I'aris. 

"Tbo  arrcNt  of  tlio  olTi'iiiliuK  vesHcl  muHt  tlioroforo  lio  rest  ruined  to 
K'  ..  placeH  wlietd  our  jiiriHilictioii  in  coiiinlt'te,  to  our  owu  wntcrH,  or  to 
'  the  ocean,  the  coniniou  liighway  of  nil  uutionH. " 

Sir  V.  B.  Maxwell,  a  standard  authority,  is  cited  hy 
Groat  Britain  in  the  l^iris  case,  and  after  stating  that 
|iritnarily  the  legislation  of  the  country  is  territorial,  and 
iliat  the  laws  of  a  nation  apply  to  all  its  suhjects,  and  all 
tilings  within  its  territory,  the  citation  proceeds: 

"  It  IH  true  thiH  (looH  not  <'oiniiriH(<  tlu'  wliolo  of  tho  IcKitimato  juris- 
•  (liotiou  of  a  Stftto,  for  it  liaH  a  ri^lit  to  impose  its  U'KiHlation  upon 
2i>"  its  HuliJLM'ts,  natural  or  nntunili/.tMl,  in  every  part  of  the  world,  and, 
"  indeed,  on  sueli  matters  as  ]>erHoual  status,  or  eapiu'ity,  it  is  uuder- 
•'  stood  always  to  do  so;  but  with  that  exception,  in  the  abseuee  of 
"  an  intention  clearly  expressed  or  to  bo  inferred  either  from  its  own 
"  lanKuago  or  from  tlu^  object,  or  subject-matter,  or  history  of  the 
"  enactment,  the  presumption  is  that  I'arlianieut  does  not  design  its 
"  statutes  to  operate  on  them  beyond  the  territorial  limits  of  the 
"  United  Kingdom." 

In  the  United  States  the  rule  of  international  law  al- 
ways held  is  that  the  municipal  laws  of   a  nation   extend 

,„ over  all  citizens  and  suhjects  everywhere  on  the  earth. 
Tiie  laws  are  so  extended  tmly  to  the  extent  that  the  sover- 
eignty has  jurisdiction.  But  the  (juestion  here  is  whether 
the  executive  authority  of  the  United  States  in  its  acts 
and  by  its  proclamations,  iriespective  of  any  municipal 
law,  could  prevent  a  citizen  of  the  United  Slates,  so 
tar  as  all  other  nations  are  concerned,  from  even  having 
liis  ship  enter  Bering  Sea,  hy  seizure.  If  the  citizen  enter 
Holing  Sea  in  violation  of  the  proclamation,  and  it  was 
done  many  times  in  this  case,  the  question   remains  not 

^o<if  jurisdiction  dependent  niion  any  municipal  decision 
of  a  court,  like  that  of  the  "La  Ninfa"  case,  whether 
the  citizen  of  the  United  States  may  seek  relief  through 
Great  Britain  for  acts  done  in  the  territory  in  which  his 
own  government  had  at  least  common  jurisdiction,  or  must 
stek  it  in  the  Courts  of  his  own  country.  His  remedy,  if 
any,  must  depend  on  whether  the  executive  authority, 
liis  representative  sovereignty,  under  our  jiecnliar  system, 
e.xceeded  its  constitutional  powers.  And  who  can  pass 
on  thatJ     Not  your  Honors,  not  an  International  court  on 

50 the  invitation  or  demand  of  a  foreign  power,  but  the  Su- 
prcnio  Court  of  the  United  States  only.  That  is  the  ou;^ 
tribunal  that  can  pass  finally  on  the  right  of  the  executive 
to  forbid  a  citizen  or  national  of  the  United  States  to  enter 
Bering  Sea.  The  question  of  any  municipal  law  and  its 
extent  is  of  very  subordinate  and  minor  consideration. 
The  question  is  as  to  the  national  jurisdiction,  if  the 
United  States  chose  to  exercise  it,  either  by  judicial 
authority  or  by  executive  authority,  or  hy  legislative  and 
executive  authority,  or  by  legislative,  executive  and  judi- 

601^ id  authority  combined,  as  they  did  choose  to  exercise  it 
ill  this  case.  It  is  not  for  any  other  government  to  pass 
iijioii  the  statutes  of  this  country,  and  it  is  not  for  any 
(it lier  government  to  pass  upon  the  fundamental  law  or 
till'  municipal  statutes  of  the  United  States  as  they  affect 
our  own  citizens. 


It24 


*i:M 


(Mr.  Dickinson's  C'losini^  Ai^ument  ) 

It  is  certainly  not  within  tin*  antlioiity  of  any  otli 
powj'r  or  any  otlu-r  triltinial  to  nsurp  tln'  fnn(  tion  ot'  tl, 
Sn|>ii'nu' Conrt  of  tlm  rnit«'(l  States,  ami  (imstnicnmcdi, 
Htilutiiinal  assignint'nl  of  the  powers  of  oiir  Kovcri'i^'iiilv 
and  hold  that  wIkmi  tlu>  i'rt'sidcnt  of  tlit)  United  States  h 
proeliiniation  forhade  nil  I'liited  States  citizens  from  enti  i 
nig    I'erinj;  Sea  it  was  not  a  valid  exercise  of  Cdnstiti, 

lotionai  power.     It  is  for  onrown  courts  to  test  the  e.xeicis  ■ 
of  sovereignty  and  the  limitations  upon  it  by  the  written 
C'oiistilnlion.     Iriespectivo   of  tin?  liniilalioiis  of  tin    ci.ii 
stitntion,  if  it  he  conceded  that  we  have  National  jinisdi' 
tion,  whether  in  common  with  other  nationsor  e.xeliisive,  is 
immaterial,  .uid  may  legiMJate  as  to  the  high  seas,  e.xcici^,. 
jmindiction  hy  legislative,  judicial  or  executive  autiioiilv, 
it  will  follow  that  it  is  not  the  atfair  of  a  ciii/.en  of  miv 
other  count) y,  or  of  any  other  country  on  the  faco  of  tin 
earth,  how  we  exercise  tliat  Jurisdiction  s-o  long  as  weilu 

20  not  molest  a  cili/eu  of  that  other  country. 

It   is   very    material,  however,    that  citizens  owing  a! 
legiance  to  our  sovereignty,  which  altogether,  I'.xecntivf. 
legislative   and  judicial,  certainly  have  a  light  to  as.Mi t 
jurisdiction  over   leering  Sea  as  against    American    suii- 
jects,  it   is   material  for  the   purposes  of  citizenship  iiiul 
sovereign   authority    whenever   reposed,  under  our  cdii 
stitntion,  that  wh«'n  forhidden  to  enter  Bering  Seatlmi 
the   citizen   shoidd  ohey  the  mandate.     How  is  an  liilci 
national   Court   to   pass  upon   the  question^     Putting  it 

3oahove  municipal  legislation,  this  is  a  proclamaf"  >n  of  the 
President  forltidding  any  American  citizen  t''        er  Hi  1 
ing  Sea,  and  eveiy  man  hound  by  allegiance  to  ')vern- 

nient  of  the  United  States  who  suttered  at  .  ..uidsnf 
the  (iovernment  for  infraction  of  that  i)roclamation  must 
enter  the  United  States  Courts  if  ho  wishes  to  test  the 
validity  of  that  pioclamation,  or  the  authority  for  a 
seizure-  he  cannot  appeal  to  a  foreign  nation.  It  is  a 
matter  of  allegiance,  not  of  municipal  law.  I  now  wisli  td 
re^id  from  the  case  of  Hudson  vs.  Guestier,  reported  in  4 

4oCranch,  page  2!»3: 

"  Wlien  a  «i'i/,uro  is  thus  inado  for  tlie  violation  of  a  municipal  liiw, 
"  tbe  moilo  of  j)r'ipt't'(ling  niunt  be  excluHivelv  regulated  l>v  tlio  sov- 
"  ereigu  power  of  the  eouutry,  and  no  foreign  court  is  at  lilx-i'ty  to 
"  (|Uestiou  the  eirreotness  of  what  is  done,  unless  the  court  passing 
"  the  sentence  lose.*  its  jiirisdiction  hy  some  circumstance  which  tin' 
"  law  of  nations  cau  notice.  Recapture,  escajie,  or  a  voluntary  dis- 
"  charge  of  the  cap 'ured  vessel  would  bo  such  a  circumstance,  hi- 
"  cause  the  sovereign  would  be  thereby  dejirived  of  the  possessinii  of 
"  the  thing  and  of  hi&  ])ower  over  it.  \Vhile  this  possession  remains, 
"  the  ri's  may  be  either  restored  or  sold,  the  sentence  of  the  court  can 
,_.  "  be  executed,  and  therefore  this  possession  seems  to  be  the  essential 
'     "  fact  on  which  the  juriiidiction  of  the  court  depends. 

"  The  laws  of  the  United  States  re(niiro  that  a  vessel  which  has  bic  n 
"  seized  for  violating  them  should  be  tried  in  the  district  wlicrc  the 
"  offense  is  committed,  md  certainly  it  would  be  irregular  and  illcgiil 
"  for  the  tribunal  of  a  different  district  to  act  ui)on  the  case.  But  <>f 
"  this  irregularity,  it  is  believed,  no  foreign  court  could  take  notici'. 
"  The  United  State.n  might  enable  the  admiralty  courts  of  one  district 
"  to  decide  on  cajjturcs  made  for  offenses  committed  in  another  ilis- 
"  trict.  It  is  an  internal  regulation,  to  be  expounded  by  our  own 
"  courts,  and  of  which  the  law  of  nations  can  take  no  notice,  'riie 
"  possession  of  the  thipg  would  be  in  the  sovereign  power  of  the  Htatr, 
-.  "  and  it  is  competent  to  that  ])ower  to  give  jurisdiction  over  it  to  any 
*^  "  of  its  tribunals.  There  exists  a  full  power  over  the  subject  and  an 
"  ability  to  execute  the  sentence  of  the  court.  The  sovereign  jidwi  r 
"  pos.sessing  jurisdiction  over  the  thing  must  be  presumed  by  foreign 
"  tribunals  to  have  exercised  that  jurisdiction  properly.  But  if  tlm 
"  r«.i  be  out  of  the  jwwcr  of  the  sovereign,  he  cannot  act  upon  it  nor 
"  delegate  authority  to  act  upon  it  to  his  courts." 


926 


m 


) 

f  liny  oil  I 
■tiiih  or'  111. 
-nu'  uiii'coi, 
i»V('ivi^;iiit\ . 
•  ■(ISliitrs  li  • 
\  from  i'iit<  I 

of    CdllSlit,, 

lilt'  cxcivis.' 

tin'    Wlittlll 
■i  of  tll(     coll 

mill  jiiiis(li< 
oxcliisivc,  I-, 

(^■IS,  I'Xcrci-r 

,»•  jiulliorit\ , 
ili/i-ii  of  iiiiv 

('  I'lH'V.  of   I  III' 

iiiij;  as  \vi'  ilii 

US  owiii^  ;il 
r,  I'xcciitivi', 
;ht  to  ivss-cit 
iiericaii  suli 
izciishin  aiiii 
h'V  our  coll- 
rin^  Sea  tli;it 
A"  is  an  Inter 
i     Putting  it 

Uat'  '11   of  lllr 

t'"         ev  Hri- 
0  i>v('rn- 

;  ..  ..lods  iif 
miation  nui'-t 
es  to  tt'st  till' 
hoiity  foi'  a 
tioii.  It  is  a 
now  wish  to 
reported  in  4 


t 


til 


mnniciiml  liiw, 
iitetl  l)v  tlio  siiv- 
ia  at  lilicrty  to 
ooiirt  imssiiig 
liiico  wliii'li  till' 
voluutai'v  ilis- 
ircuiuHtnucc,  lir- 
he  i>osHossi(iii  of 
iHertHiou  roiuiiiii^, 
of  tlio  court  I'liii 
1)0  the  osHiiutiiil 

^1  which  liaK liciu 
istric't  wlit'rr  tlii> 
gularaml  ill'.'^nl 
lie  case.     But  nf 

Id  talco  iidtii'i'. 
'ts  of  one  distrii't 
d  in  another  ilis- 
ded  l>y  onr  own 
no  notice.  The 
iwerof  the  Stiiti', 
on  over  it  to  any 
0  sul)ject  aud  im 

sovereign  jutwcr 
lumed  ')y  fori'i(,'n 

rly.     But  if  tlm 

act  tipon  it  uor 


30,. 


(Mr.  DickinHoii's  Closing  Argument.) 
Now  tlien,  as  to  juris(lit;tion: 

"  Tht<  vosnel  and  cargo  wliich  conntitnte  the  Hultjoct  of  controverijr 
'  wer<^  Heizt^d  within  the  ttirritoriul  juriHdietion  of  the  Ooverunient  of 
■'  St.  Domingo,  aud  earried  into  a  HpaniHh  port.  AVhile  lying  in  that 
"  nort,  iirtieeeditigK  were  regularly  iuHtituted  in  the  court  for  the 
"  iHlnnd  of  Ouaditlou^ie;  the  cargo  wuh  noM  hy  a  proviHional  ordur  of 
''  that  -.'ourt,  after  whieii  the  vuHsel  and  cargo  were  condemned." 

III  "  The  Hovereigu  wIiohc  ollleer  liiiH  iu  liiH  name  captured  a  vcHMel  as 
•' j)rize  of  war  remaiiiH  in  posHeHHion  of  that  vchhcI  and  liaH  full  power 
"  over  her  so  long  aw  hIic  in  in  a  situation  in  wliich  that  jiimHession 
"  cannot  lie  rightfully  divcHted.  'I'lie  fact  whether  she  Ih  an  enemy 
"  vcHHcl  or  not  ought,  however,  to  he  judicially  iiwiuircd  into  and  do- 
"  cided,  and  thereforethe  property  in  a  neutral,  captured  as  an  enemy, 
"  iH  never  changed  until  Nentenee  of  condemnation  liaH  jiaHHod;  and 
"  the  practice  of  natiouH  requircH  that  the  vckhcI  hIuiII  he  in  a  place  of 
"  Bafety  hefore  Huch  Hcntence  can  lie  rendered.  In  the  port  of  a  nen- 
"  tral  Hho  ix  in  a  place  of  Hafety,  and  the  poHHCHHion  of  the  captor  con- 
"  not  bo  lawfully  ilivested,  liecaUHc  the  neutral  Hovereign,  hv  hiniHelt 
"  or  by  luH  coertH,  can  take  no  cognizance  of  the  i|ue»tion  of  |)rize  or 

20  "uo  prize. 

"  ThiH  position  in  not  intended  to  apply  to  the  caw  of  a  Movereign 
•'  hound  by  particular  treatien  to  one  of  the  lielligerentH;  it  ih  intended 
"  to  apply  only  to  tlioHc  neutraU  who  are  free  to  act  iK'cordiiig  tt>  the 
"general  law  of  natioUH.  In  Huch  caHe,  the  neutral  Hovereign  cannot 
"  wrent  from  the  pobuchhIou  of  the  cajitor  a  prize  of  war  brought  into 
"  his  portH." 

"  PoRHcaHion  of  the  /•<•.•<  by  the  Hovereign  Iuim  been  couHidered  as  giv- 
"  ing  the  juriHiliction  to  Iiih  court;  the  particuliir  mode  of  introducing 
"  the  Hubject  into  the  court,  or,  in  other  woni  ,  of  instituting  the 
parti(!ular  proi'css  which  is  preliminary  to  tlir  sentence,  is  properly 
of  municipal  reguhition.  uncontrolled  by  the  law  of  nations,  aucl, 
tlierefin'e,  is  not  examinable  bv  a  foreign  tribunal.  Jt  would  seem, 
t'leu,  that  till'  iirinciplcH  wliicli  have  been  stilted  as  applicable  in 
"  this  respect  to  a  prize  of  war,  may  be  ap|died  to  a  vessel  rightfully 
"  seized  for  violating  the  municipal  laws  of  a  nation,  if  the  sovereign 
"  of  the  captor  |)osse.^ses  the  same  right  to  maintain  his  jiossession 
"  against  the  claim  of  the  original  owner  in  the  latter  as  in  the  former 
"  cii.se.  If,  on  a  libel  tiletl  by  the  original  owner  in  the  courts  of  the 
"  cuuntrv  into  which  the  vessel  might  be  brought,  the  jiossession 
"  couhl  i)e  defended  by  alleging  that  she  was  seized  for  the  violation 
"  of  a  municipal  law,  and  the  right  of  the  court  to  decide  the  cause 
"  would  be  thereby  defeated,  then  that  possession  would  seem  to  be 
"  sutlicieutly  lirni  to  maintain  the  jurisdiction  of  the  courts  of  the 
4*-' "  captor. 

"  Up(m  this  point  much  doubt  has  been  entertained.  It  is,  however, 
"  the  opinion  of  a  majority  of  the  judges,  tliut  a  jiossession  thus  law- 
"  fullv  aciiuired,  under  the  authority  of  a  sovereign  Htate,  could  not 
"  lie  Invested  by  the  tribunals  of  that  country  into  whose  jiorts  the 
•'  captured  vessel  was  brought:  at  least  that  it  could  not  be  divested 
"  unless  there  should  be  such  obvious  delay  iu  iiroceeding  to  a  jou- 
"  ilemnation  as  would  justify  the  opinion  that  no  such  measure  woa 
"  intended,  and  thus  convert  the  seizure  into  a  trespass." 

I  no%v  refer  to  Dana's  ''  Wheaton's  International  Law," 
(111  the  subject  of  niunicipal  legislation. 

"  Sec.  113.  The  judicial  jiowerof  every  independent  State,  then,  es- 
"  ti  ads,  with  the  iiualitieations  mentioned: 

"  1.  To  the  punishment  of  all  ott'ences  against  the  munici|>al  laws 
"  of  the  Htate,  by  whomsoever  committed,  within  the  territory. 

"  2.  To  the  punishment  of  all  such  ott'ences,  by  whomsoever  com- 
"  niitted,  on  board  its  ]iublic  and  private  vessels  on  the  high  seas,  and 
"  on  board  its  public  vessels  iu  foreign  ]iorta. 

"  it.  To  the  jiunishment  of  all  such  offences  by  its  subjects,  whereso- 
"  ever  committed. 

"  4.  To  the  punishment  of  piracy,  and  other  ofTences  against  the  law 
"  (if  nations,  by  whomsoever  and  wheresoever  committed. 
(3o  "  It  is  evident  that  a  State  cannot  punish  an  offence  against  its  muni- 
"  cipal  laws,  committed  within  the  territory  of  another  State,  unless 
"  liy  its  own  citizens;  nor  can  it  arrest  the  persons  or  property  of  the 
"  supposed  offender  within  that  territory;  but  it  may  arrest  its  own 
"  citizens  in  a  place  which  is  not  within  the  jurisdiction  of  any  other 
"  uiition,  (i.s-  the  liiijli  seas,  mid  jninis/i  l/ifiii.  for  offences  commilleU  if it/iit:. 
"  ,s'«c/(  a  place,  or  wil/iin  the  territory  of  a  foreign  State." 


\\U 


!•» 


m'- 


m  I 


^•i' '  1 


lO 


f»?6 

(Ml'.  Dickinson's  Closing  Argument.) 

Of  cours»%  that  does  not  moan  that  we  go  to  tlie  lonj^th 
claimed  by  Great  Britain  for  us  that  it  can  take  one  of 
its  citizens  on  the  liigh  seas  from  a  ship  rightfully  hen 
ing  the  British  Hag.  The  United  States  maintains  (lie 
contrary  doctrine— but  that  it  can  take  its  citizen  any- 
where on  the  high  seas  that  it  finds  him,  on  nis  own  shiji, 
or  take  any  ships  owned  by  him  whatever  flag  he  flies. 

"  Seo.  114.  LawH  of  trade  and  uavif^at ion  cannot  ntfoiit  foroifjncis 
"  beyond  the  territorial  limitHof  the  State,  but  they  iire  binding;  u|iiiii 
"  ita  citizens,  wherever  thoy  niuy  be.  Thus,  offeuHCH  a^ainHt  tlie  lnus 
"of  a  State  prohibiting  or  rcKuhitiuf?  any  i)articuhir  traflic,  niuy  lir 
"  jJuuiHhed  by  it«  tribnnalH,  when  committed  by  its  citizens,  in  whut- 
"  ever  place;  but  if  coiniuitted  by  foreifjners,  such  offences  can  cmlv 
"  be  thus  punished  when  coinniitted  within  the  territory  of  the  Stat.', 
"  or  on  board  of  its  vessels,  in  some  place  not  within  the  jurisdiction 
"  of  any  other  State." 

Wo  shall  come  to  this  question  more  extensively,  wlion 
20 1  come  to  the  question  of  jurisdiction  on  the  higli  seas; 
when  we  come  to  the  discussion  of  the  principles  laid 
down  by  my  learned  friends  in  their  argument,  as  to  tho 
nationality  of  tho  ships,  and  the  sacredness  of  the  regis 
ter,  by  International  law. 

At  five  o'clock  the  Commissioners  rose. 


Commissioners  under  the  Convention  of  February  8* 

1896.    between    the    United    States    of 

America  and  Oreat  Britain. 


Legislative  Council  Chamber,  Provincial  Building, 
10  At  Halifa.-:,  September  23,  1897. 

At  10.30  A.  M.  tlio  Commissioners  took  their  seats. 

Mr.  Dickinson;— Discussing  the  relations  of  the  Ameri- 
can citizen  domiciled  in  Great  Britain  in  respect  of  liis 
allegiance  to  Cireat  Britain  and  his  allegiance  to  the  United 
States  and  his  status  under  this  Convention,  I  call  your 
Honor's  attention  to  the  position  wiiich  we  have  taken  and 
ilaborated  tliat  the  original  allegiance  can  never  l)e  sur- 
ic'idered  except  by  the  act  of  na^turalization  mider  the 

"  Treaty  of  1H70,  or  under  tiie  respective  statutes  of  the 
nations. 

Hail,  in  the  4tb  and  last  edition  of  his  work  on  Interna- 
tional Law,  states  at  page  240,  the  British  doctrine— and  it  is 
also  the  American  doctrine— that  "  The  renunciation  of 
"  former  allegiance  will  not  suffice  to  give  the  character  of 
"  (-itizen  or  subject  of  the  country  of  adoption,  andean  bo 
"  .icciuired  only  by  the  act  of  naturalization  itself."  Both 
Cdinitries  are  agreed  that  only  naturalization  can  change 
tlieir  conmion  acceptation  of  international  law  on  the  ques- 

'  tion  of  i)erpetual  alle{.,uince,  as  it  li;is  stood  from  the 
foimdation  of  the  United  States  Government  until  now. 
This  was  the  doctrine  of  the  civil  law  as  [  read  from 
Twiss  yesterday  morning,  and  is  the  law  of  nations,  so 
far  as  the  Umted  Stiites  and  (ireat  Britain  are  con- 
cerned, as  it  is  the  common  law;  and  is  the  accepted 
law  on  this  question  l)y  treaty,  and  by  acceptation  of  the 
courts  of  both  countries,  and  the  first  and  most  binding 
of  canons  of  the  international  code  is  that  an  international 
iirinciple  bv  consent  is  the  law  as  between  nations.    Again, 

•^  Kays  Hall,  at  page  2i>ry. 

"  Until  ii'tliirii/uiilifmliiirn  nre  satiiitird,  tin'  Slatr  into  ir/iich  a  person  has 
"  iiitmigratni  fiiii  l/irr  no  rii/lil  of  jirnli'rliu;/  him." 

That  is  the  broad  rule  without  the  exception,  because  it 
has  a  right  to  protect  him  to  a  certain  extent  aa  against 
all  V  tions  but  one.  If,  in  addititm,  there  had  been  suf- 
fi.xod  the  single  exception  which  we  have  stiiti  '  "against 
tlio  nation  of  original  allegiance" — it  would  iiave  stated 

;otlii'  unmoditied  doctrine.  But  let  us  refer  t  little  more 
to  Hall,  and  we  will  find  our  position  stai«  .1  After  re- 
ferring to  British  subjects  at  the  time  of  the  American 
(  ivil  War,  I  call  your  Honors'  marked  attention  to  his 
ri't'erence  to  //(/)•(/  States  (,/.(^,  other  nations  than  the  two  of 
(iiiginal  allegianje  ;ind  of  domicil)  where,  after  having  re- 
ferred to  the  British  Government  declining  to  interfere  in 
iii'liair  of  British  subjects  who  had  placed  themselves  in  a 
rortain  situation  at  the  time  of  our  war,  he  says  that  it 
lines  not  follow  that  such  persons  are  in  a  better  position 

fol'ian  ordinary  foreigneis,  as  between  third  States  and  the 
Slate  within  which  they  have  arrogated  to  tluMuselves  the 
li^lit  of  subjects,  and  the  burdens  of  which  they  must 
(iinsequontly  bear.  Having  stated  that  the  natural  alle- 
gi  uice  could  not  be  sunendered  under  the  jire.sent  laws 
lictween  the  countries,  except  by  the  act  of  uaturaliza- 


928 


.<  ' 


(Mr.  Dickinson's  Closing  Argument.) 

tion,  he   now  states  our  doctrine  as  to  third  States  a.s 
follows: 

"  Third  Stales,  and  the  State  of  origin  when  it  acknowledges  Ufttiini!- 
"  ization  as  changing  uationaiitv,  cmi  onli/  lonk  to  l/ie  fuel  ihut  il,e 
"  iiatiir(tliziiliim  Ittim  of  the  Slute  iitiliiriiliii)i(/  Inire  nr  /iiiri'  not  bfi-n  r'uLi/ 
"  complieil  villi.  Viilil  tlifHf  /iiirs  nrf  snlislh'ii  the  State  into  whicli  tlu> 
"  person  has  immigrated  can  have  no  right  of  protecting  him." 

Can  there  be  any  dispute  about  that  being  tlie  dortiinc 
of  British  law  after  that  statement  by  Hall?  No  Ahum  i(  an 
citizen  claiming  under  the  protection  of  the  Britisli  fla^ 
here  has  done  what  was  put  within  his  own  will,  laki>n 
up  naturalization  in  Great  Britain.  The  only  embai  lass- 
nient  ever  before  between  the  countries  in  this  re- 
spect was  the  embarrassment  to  the  individual  owing  to 
the  fact  that  both  countries  were  holding  him  to  lijs 
original  allegiance,  and  he  had  no  cower  of  renunciation 

2Qin  either  country.  But,  owing  to  the  growth  of  coiii- 
nieroe,  and  inunigration  and  emigration,  owing  to  con. 
stantly  increasing  intimate  relations  between  the  jn'oplcs, 
the  conclusion  of  the  investigation  made  by  the  great  Hril  isli 
Commission  in  IStW,  and  of  the  concurrent  investigation 
made  by  a  Conmiittee  of  Congress,  appointed  especially 
for  that  purpose  in  lstl8.  was  to  place  it  within  bis  own 
power  to  relieve  the  citizen  of  that  difficulty  l)y  permitting 
him  to  take  naturalization  voluntarily,  and  thus  nmlo 
his   allegiance    and    dissolve    all    the.se  embarrassni'iits. 

-.Q  Having  done  so,  tht;  State  of  liis  domicile  can  protect  him 

^  against  iiis  original  allegiance.  Hall  saysso;  every  Amer- 
ican authority  says  so.  Until  that  is  done,  the  State  of 
domicile  cannot  protect  him  against  the  nation  of  his 
original  allegiance.  Hall  does  not  mean  that  the  State 
cannot  protect  him  to  a  certain  extent,  because  we 
find  him  stating  that,  as  to  third  nations,  it  may  pro- 
tect him,  but  not  as  against  the  country  of  his  original 
allegianie  until  naturalization. 

The  doctrine  is  stated  by  Sir  Sherston  Baker's  Halleck 

.qOU  Jurisdiction,  at  page  205  of  volume  1,  as  follows: 

"  OffonscH  against  the  law  of  a  Htiitc,  regulating  or  proliibitiiig 
"any  particular  trade,  if  committed  l>y  foreigners  within  tiic  tcr- 
"  ritorial  jurisdiction  of  another  State,  are  not  i)unis]ialilc  liy  the 
"  triliuuals  of  the  State  whose  laws  thev  have  violated  ;  Imt  if  cniu- 
"  mittedhy  its  citizens,  thev  are  so  piuushable,  no  matter  where  coni- 
"  mitted,  whether  within  its  own  limits,  on  the  higii  seas,  or  in  a 
"  foreign  country." 

These  are  our  citizens  who  have  not  become  naturalized 
over  in  Great  Britain,  we  are  now  discussing: 

"A  distinction,  however,  must  lie  made  Ir  tween  mere  com- 
"  inercial  regulations  permitting  or  iirohihi'ing  a  certain  trinle, 
"  and  statutes  creating  a  criminal  otl'ense,  W'tli  perstuial  pc>naltics  cx- 
"  jiressly  applicahle  to  all  the  citizens  of  the  State.  The  coniiiicrcinl 
"  domicile  of  a  party  may  sometimes  exempt  liim  from  the  oiieralioim 
"  of  the  laws  of  trade  of  liis  own  country,  but  while  his  funiier  allc- 
"  gianci^  continues,  he  is  lialile  to  iiu'iir  the  penalties  of  a  criminal  of- 
"  fense  against  his  own  country,  which  penalties  may  lie  euforcod 
"  whenever  he  comes  within  reach  of  its  municipal  laws." 

Now,  an  interesting  (piestion  came  up — a  conliiit  of 
6o,iui'sdiction  between  the  country  of  original  allegiance  and 
the  country  of  adojited  allegiance— adopted  without  natiu- 
alization— and  the  history  of  it  is  given  in  "Wharton's 
(-onllict  of  Laws,"  and  in  a  niuuber  of  other  authorities. 
It  is  a  novel  question,  and  is  stated  also  in  2  Wharton's 
Digest,  page  60!>,  Section  203.     1  quote  it  as  an  interesting 


929 


d  States  as 


f  his  orij^m.il 
Ikt'i-'s  Halloik 


xvitlmi  the  tcr- 

iiHlmlil(>  liv  lilt' 

'il  ;  Imt  if  I'oiii- 

Ivtti'i'  wlicvc  I'om- 

li   st'UH,   or  ill  tt 


10  naturalizt'd 


■  ■en  iiii'ir  imhu- 
III  I'oitaiii  ti'iiilc, 
1  ))i'imltifs  i\- 
iit'  coniiui'i'cial 
Ln  tin'  (iiii'ratiourt 
I  Ills  fdiiiic'i'  iille- 
I  of  11 1'liiiiiuiil  ot- 
iiiv  1)1"  fufoieoil 


i-a   conllii't   of 

.llogiaiu'eaiul 

ithout  iiatiu- 

"  VVliarloii's 

•  aiillioritios. 

I)  2  Wharton's 

Ian  interesting 


10 


(Mr.  Dickinson's  Closing  Argnnient.) 

|iart  of  the  history  <jr  this  l(>ng  controversy  and  oinhar- 
raj^sment,  which  has  now  been  settled  liy  putting  it 
within  the  vohintai y  will  of  tlu>  [icrson  to  savt>  himself 
from  the  eniharrassnicnt: 

"  An  iutorcslinn-  (lucstidii  arises  when  a  fori'l^ncr  is  iiidii'tcil  for  a 

•  political  oH'cnso,  wliicli  he  is  r('(|iiir('(l  to  coiiiiiiit  l>y  liis  own  sovor- 
••  (iffn      In  sncli  a  case  the  coniniaiul  of  tlic   for<'i(;ii  sovereign  is   uo 

defense.     If  tlie  ilefeiidant  in  such  a  jirosecntion  is  convicted  in  vio- 
lation of  the  law  of  nations,  it  is  tlu^  duty  of  the  executive  to  inter- 

•  fen.'   with   a  pardon.     If  this  is  inipraeticalile,  the  iiiiestion  is  one 
■  for  international  adjustiiieut.     A  foreigner  caiiuot  sa\-  that  he  is  not 

"  bound  to  obey  the  laws  of  the  State  whi're  he  is  sojonruing.     Hut  if 

•  tlie  act  for  which  he  is  convii'ted  is  one  enjoined  liy  his  own  sover- 

•  eifin.  tlieii  that  sovereign  iinist  he  held  res|)ousil)le." 

This  is  till'  extrt'iiic  cas(>  of  a  foreigner  -we  will  sny  of 
a  citizen  of  the  United  States,  doiiiiciled  in  (Jieat  Britain, 
cnniniandi'd  theie  to  do  a  thing  w  liicli  is  eiijoinod  by  the 
I'nited  States.  TIh'ic  the  old  iirolilciii  came  up  for  sohi- 
2otioii  of  an  irie>istilil('  body  meeting  an  immovable  body. 
'Hie  two  alltgianci's  coim  togetiier  in  conflict,  and  the 
only  way  ont  was  by  negotiation  and  iiy  tiie  arbitrary  ex- 
ercise of  the  premgative  of  pardon;  bnt  tlii'  distinction, 
as  1  stated  at  tile  outset,  must  be  constantly  borne  in 
mind  that  the  right  to  protect  rests  on  dilt't'reiit  grounds, 
to  which  there  are  exceptions,  than  the  obligation  to 
obey.  Tlie  obligation  to  obey  tlu;  sovereign,  if  enjoined, 
|)uts  the  citizen  so  (diligcd  to  obey  in  a  position  where  he 
cannot  reclaim  for  wjiat  he  sutf'eis  for  the  act  of  disobedi- 
30(iic(':  but  the  protection  of  the  country  of  bis  origin  caii- 
iint  surround  liini.  provided  be  is  treated  exai'tly  like  the 
citizens  (  f  the  place  of  his  domicili',  and  the  country  of 
(leiiiicil  cannot  make  rccianiation  in  any  ca.se  againsfthe 
country  of  origin. 

In  Lawrence's  Wheaton  the  matter  is  somewhat  fully 
discussed  in  lht>  notes  (p.  IT.'),  lith  eilitiont.  In  Bar's 
I'rivate  International  Law  we  come  to  le  statement  of 
tlie  doctrine  which  ajipears  in  (piotation  mark-;  in  my 
brief,  as  to  which  1  desire  a  correction.     Jn  dictating  the 

40 proposition  it  came  out  (pioted.  and  in  some  way  or  other 
if  passed  me  in  proof  reading,  llioiigli  I  thought  1  reail  my 
own  proof  carefully.  (Quotation  marks  were  improperly 
added  to  my  statement  of  the  |)ropositioii;  but  as  soon  aa 
1  discovered  this,  as  your  llonois  will  remember,  I  called 
attention  to  it  and  asked  to  eliminate  the  (piotatiou 
marks.  1  meant  to  state  my  conclusions  on  the  whole 
subject,  and  that,  in  Bar's  Private  International  Law  the 
tiue  iloctrine  was  laid  down  precisely  as  I  have  stated  it 
inyseif.  and  as  I  have  read   it  from    Hall  this  moriiiiig. 

Soliiad  stated  that  it  was  in  the  (iillespie  Translation 
of  Bar's  -The  Edinburgh  edition  and  notes.  I  iiave  it 
here  now,  and  this  is  the  statemeiit  from  tlie  notes. 
1)1  course  yon  will  not  always  find,  in  text 
writers  especially,  to  say  nolhing  of  t'ourts,  where 
lliesuhji'ct  is  not  being  particularly  discussed,  the  excep- 
ts iiis  laid  down  when  a  broad  geni'ial  proposition  is 
stated.  We  did  not  find  it  in  Hall  until  he  came  to  dis- 
iii-s  the  special  subject  of  the  lights  of  protection  against 
third  nations;  but  we  do  iind   it  admitted  in  the  notes  of 

''0|>;ir,  where  the  te.'ct  slates:  "  On  the  other  hand,  it  is  no 
"  sign  of  nationality  to  be  subject  to  the  system  of  private 
'■  law  in  any  particular  State,  and  in  the  same  way  it  is  pos- 
"  sible  for  a  State  to  go  so  far  as  to  extend  diplomatic  pro- 
"  tcction  to  peirons  who  are  not  in  trutb  its  permanent 
"  subjects."     There  is  no  doiibt  of  that  as  a  general  pro[)osi- 


S.l 


ri;  s 


i  1    : 


Ui 


U   I  ! 


930 

(Mr.  Dickinson's  Closinp;  Argnmont ) 

tion  against  all  third  nations,  and  that  I  have  also  itil 
from  Hail.  But  I  tind  in  the  notes  to  Bar  this  stateiiu m : 
"The  United  States  extend  diplomatic  protection  to  jx  i 
"  .sons  who  have  not  as  yet  hecome  citizens,  if  tiiev  .u" 
'■  domiciled  in  the  United  States,  and  have  made  a  de(  l.ii  i- 
"  tion  of  their  intention  of  hecoming  citizens;  ('.rccpl  /,; 
"  niiestioiis  irtfh  the  count  rafrohi  tchich  thuii  caiiie.  if  hi/  /is 

lo  "  laws  the  existing  bond  ofalleifiance  is  not  dissolieil,  .mil 
"  if  the  persons  in  question  have  voluntarily  hetaken  tluni 
"  selves  to  her  territory.  See  on  that  snhject  Wh  -rtoii  ami 
"  VVoolsey  on  International  Law."  Of  course  that  caiih- 
from  Ihe  Koszta  case,  and  the  (jualification  in  the  Tonsig 
case  on  the  points  where  a  citizen  has  voluntarily  betakiMi 
himself  to  the  territory.  But  your  Honors  will  see  that 
on  these  notes  and  on  tins  statement  of  the  law,  and  from 
the  quotation  from  Woolsey  in  Bars'  Notes,  in  connection 
with  the  statements  of  the  other  authoiities  and  text  wiii. 

2oeis  I  have  cited,  that  my  statement  of  the  proposition 
agreeing  with  the  other  authorities  at  page(i;^>()f  my  luicf. 
is  entirely  fair,  except  in  the  use  of  the  quotation  marks 
as  if  using  exact  language  of  the  annotator  instead  of 
my  own.  Great  Britain  has  stated  this  doctrine  in  ihc 
dispatch  from  Earl  Russell  to  Sir  J.  Crampton  of  .July  li, 
l.S()2,  and  cited  in  Cockburn's  Nationality  at  i)age  11-.',  of  a 
domiciled  person,  a  British  subject  domiciled  in  thedoinin 
ions  of  the  Spanish  crowMi:  that  while  he  is  not  entitled  to 
claim  British  protection  against  any  obligations  resulting 

3ofi'om  his  Spanish  allegiance,  he  maybe  also  entitled  to 
the  privileges  of  a  natural  born  British  subject  in  (Jrcal 
Britain;  and  the  discussion  is  at  page  llo  of  Cockburn. 
Of  course  (Jreat  Britain  contended  that  neither  a  natural 
born  British  subject  nor  his  children  could  absolve  them- 
selves or  abjure  their  allegiance  to  Great  Britain,  so  that 
the  same  principle  applies.  I  quote  from  Chief  Justice 
Cockburn: 


"A  person  born  in  this  couutrv  of  French  parents  wlio  are  'omi- 
"  oiled  liere,  at  the  afj^e  of  manhood,  Roes  to  reside  in  France,  Imt 

40  "  without  the  intention  of  l)e('oiuin«  a  Frenchman,  and  with  the  piir- 
"  pone  of  eventually  returning  to  £ufi;land.  By  the  law  of  this  eoiin- 
"  try  he  in  undoubtedly  a  British  subject.  As  such,  by  the  comity  of 
"  nations,  he  is  entitled  to  reside  in  a  foreipfu  country  without  liciug 
"  liable  to  military  service,  but,  being  born  of  French  partiits,  he  is  also 
"  a  French  subject,  and  is  therefore  reipiired  to  serve  under  tlie  coii- 
"  Bcriptiou,  and,  refusing  to  do  so,  is  prosecuted  and  i)unislieil.  He 
"  claims  the  i)rotection  of  the  British  government.  It  is  refuseil  to 
"  him  on  the  ground  that,  having  placed  himself  locally  witliiii  the 
"  power  of  the  French  law,  this  country  cannot  deny  the  right  nf  tlio 
"  French  government  to  claim  him  as  a  subject,  and  must  sink,  till  he 
"  gets  back  to  this  side  of  the  Channel,  the  right  to  claim  him  as  licr 

50  "  own.  Has  not  a  sjibject  so  circumstanced  just  cause  to  coniplaiu 
"  that,  having  been  taught  to  consider  himself  an  pjUglisliman,  pm- 
"  tecticm  is  not  afforded  him?  On  the  other  hand,  the  French  govcm- 
"  nient  cannot  be  expected  to  make  its  own  law  of  nationality  siilioi- 
"  dinate  to  ours  in  respect  of  a  subject  whom  it  finds  within  its  own 
"  territory.  Possibly,  in  time  of  peace,  the  delicate  handling  of  (li|i- 
"  lomatic  interventi(m  can  find  a  way  out  of  the  difficulty.  But  what 
"  if,  unfortunately,  war  should  take  place  between  the  two  couiitrii  s.' 
"  What  will  then  be  the  position  of  our  supjjosed  individual  with  thr 
"  double  nationality?  Is  he  to  be  Fn'uch  or  English?  '  Under  whiih 
"  King  '  is  our  '  Bczouian  '  to  fight?  " 

^o  Then  he  discusses  that  out  to  its  logical  conclusion,  and 
comes  to  the  conflict  of  allegiance  again,  as  in  the  disdis- 
sion  to  which  I  have  just  adverted,  cited  from  Wharton, 
and  Ihe  conclusion  io  which  Chief  Justice  Cocklunn 
comes,  and  to  which  that  great  British  Connnission  canio, 
was,  that  if,  put  in  his  own  power  to  be  naturalized,  ihe 


031 

(Mr.  Dickinson's  Closing  Argument.) 

subject  himself  takes  the  embarrassment  upon  him,  it 
should  be  his  own  fault  if  he  suffered.  If  permitted  to 
absolve  himself,  if  the  subject  failed  to  relieve  his  situa- 
tion by  foreswearing  his  allegiance  by  consent  of  the 
country  of  his  original  allegiance,  he  could  not  com- 
plain. 

Many  of  the  authorities  which  bear  on  this  ques- 
lotion,  of  course,  were  before  the  laws  for  naturalization 
were  passed  in  either  country,  and  some  of  them  tuined 
on  the  question  of  domicil  without  naturalization  in  the 
country  of  domicil,  and  others  were  cases  where  the 
party  had  attempted  to  tiike  naturalization  without  the 
consent  of  the  country  of  his  original  allegiance;  but  all 
were  put  on  the  same  ground,  of  course,  that  he  could  not 
surrender  his  original  allegiance,  and  the  principle  applied 
was  that  he  was  still  an  original  subject,  and  siill  owing 
original  allegiance  which  could  never  be  surrendered. 
20  That  was  the  main  difficulty,  which  led  to  the  adoption  of 
the  treaty. 

I  have  discussed  the  Barclay  case  at  length  and  shall 
leave   it.     In  the   Koszta  case   I    have    stated   the  true 
doctrine  before,  and   have  called  attention  to  my  learned 
friends'    criticism    upon     my    statetnent  of    it,    which 
they     made    at    page    S    of    their    reply,     and     wliich 
Mr.  Beique    has    made    at    length     here.      They    have 
taken  Mr.  Marcy's  original  letter,  which  I  quote  at  page 
47  of  my  brief,  his  original  position,  and  then  they  con- 
3otinue  the  quotation  from  that  original  letter  as  if  it  were 
a  quotation  from  the  later  position  of  Marcy  in  the  same 
case,  which  [  treat  and  cite  at  the  same  page,  and  which 
they  criticize  as  if  at  page  50.5  of  the  same  Wharton's 
Digest,  whereas  the  original  quotation  from  Marcy  is  at 
page  48.5,  Section  li>8.    They  have  entirely  omitted  to  ob- 
serve or  to  comment  upon  the  fact  that  I  gave  them  the 
citation  from  which  I  quote,  and  proceed  to  add  to  what 
I  have  quoted  at  page  505  something  from  page  485  of 
Wharton.     This  makes  quite  a  difference.     It  will  not  do 
40  in  that  instance,  of  course,  or  in  any  instance,  to  add  on 
to  a  quotation  something,   even  from  the  same  author, 
several  pages    over,    as  though  it    were  from  the  text 
quoted.     In  the  British  reply  at  page  15,  Marshall  is  quoted 
on  the  question   of  jurisdiction   in  connection  with  the 
"  La  Ninfa  "  case,  and  I  have  simply  run  a  pencil  through 
a  marked  quotation  in  their  own  brief  from  the  4th  of 
Cranch.     Says  Chief  Justice  Marshall:  "It  is  conceded 
that  the  legislation  of  every  country  is  territorial,"  to  that 
point  they  read  it  to  your  Honors.     But  Marshall  con- 
Sotinues:  "  That  beyond  its  own  territory  it  can  only  affect 
its  own  subjects    or  citizens,"  and   there  is  the  whole 
doctrine  in  the  very  same  sentence  after  the  comma.     "  It 
"  is  conceded  that  the  legislation  of  every  countrj'is  terri- 
'•  torial,  that  beyond  its  own  territory  it  can  only  affect  its 
'•  own  subjects  and  citizens."     Of  course   the  citation 
is  as  strongly    that  ic    can   affect   its  own  subjects  or 
citizens    anywhere,   as  that    it  cannot  legislate  beyond 
its  own  territory  affecting  foreigneis.    So,  in  the  same 
quotation,  the  exception  is  made  that  those  who  do  not 
60  reside  within  it.  whether  they   be  native  born  subjects 
or  not,  may  not  be  affected  directly.    Again,  at  Part  II., 
(pialifying  it,  "both   the  public  and  private  vessels  of 
■'  every  nation  on  the  high  seas  and  out  of  the  territorial 
"  limit  of  any  other  State  are  subject  to  the  jurisdiction  of 
'•  the  State  to  which  they  belong."    Tlien  my  friend  has 


ii 

i 

1 

'  11 

fflj 

1 

! 

Pi    IW 

■1 

ii  1 1 

h 


!>:?2 


(Mr.  Dickinson's  Closing  Argument.) 

read  the  doctrine  from  Sir  Travers  Twiss  at  page  17  cf 
their  hrief.  whicli  is  taken  hodily  or  quoted  e.xarlly  in  tin^ 
"Costa  Kica  "  case;  and  1  state  of  the  Twiss  position  h.  i,. 
that  ail  the  language  applies  to  the  doctrine  that  iii» 
sovereign  State  can  exercise  its  jurisdiction  within  tlif 
exclusive  teiritory  of  another  State,  as  we  will  see  fioin 
the  (pialification  at  page  '2^\'2  of  Twiss,  where  the  ddctiiiir 
10 is  stated  as  to  the  suhject  to  which  I  have  called  attenli(,ii 
hefoie.  They  have  read  from  Chajiter  lu.  Section  ITiT  s. 
which  does  not  at  that  place  refer  to  the  (jualiticatioii  as 
to  jurisdiction  at  all: 

"  When  tlio  imtioual  clianicttT  of  ii  persdii  is  to  lie  ascprtninod  tlio 
"  tirst  fiuostion  is:  In  what  tfiritovv  docs  ho  reside.  *  *  *  If  he 
"  resides  iu  a  f{iven  territory  iierinaneutlv,  he  is  regarded  as  adhi  rin;; 
"  t<i  the  nation  to  whieli  the  territory  lielongs,  and  to  tie  a  nieniliei-  (,f 
"  the  politieal  body  settled  therein." 

and  then  he  proceeds  to  show,  as  I  read  to  your  Ilonms 
2oyest(>rilay.  that  any  peison  who  has  his  I'esidcnce  in  the 
territory  is  sidjject  to  its  jurisdiction  on  the  high  seas  or 
within  his  own  jurisdiction.  The  statement  is  strong  fur 
the  doctrine  (.f  jurisdiction  on  the  high  .seas,  as  it  is  Inr 
the  position  which  Sir  Travers  Twiss  has  treated  at  jiagv  IT 
of  oui'  fiiend's  hrief— that  you  cannot  exercise  jurisdiclimi 
within  the  territorial  jurisdiction  of  another  nation.  Let 
us  see.     Section  lUtl,  page  *_'42  of  Twiss: 

"Tlieopen  sea  is,  strictly  siieakiufj,  mil/ns  Ifyi-itnyiinii.  No  naticm 
"  can  claim  to  exercise  jurisdiction  over  its  waters  on  any  n''*^'"'<l  of 
30  "  exclusive  possession.  On  the  other  hand,  it  is  the  puldic  hif^hway 
"  of  nations  upon  which  the  vessels  of  all  nations  meet  on  terms  of 
"  eipiality,  each  vessel  carryinf;  with  it  the  laws  of  its  own  nation  'ir 
"  the  tiovernmcut  of  those  on  lioard  of  it  in  their  mutual  rcliitions 
•'  with  one  another,  hut  all  sul)iect  to  the  common  law  of  nations  iu 
"  matters  of  mutual  relation  between  tlic  vessels  themselves  and  tin  ir 
"  crews." 

They  have  correctly  quoted  Hall  also,  at  page  is  of  tiicir 
hrief,  anil  1  call  niaiked  attention  to  the  last  sentence  (if 
that  piopositiou  from  Hall,  as  follows: 

,_  "  The  ri(?hts  of  sovereignty  give  jurisdiction  iu  respect  of  all  acts 
'^  "  done  liy  subjects  or  foreigners  within  the  limits  of  the  State,  of  all 
"  property  situated  there  to  whomsoever  it  may  belong,  and  of  tliose 
"  acts  done  by  mendiers  of  the  community  outsnle  tlie  iState  territory 
"  of  which  the  State  may  choose  to  take  coguizauce.  In  practici'. 
"  however,  jurisdiction  is  not  exercised  in  all  these  directions  to  iiii 
"  e(iual  extent." 

In  the  case  of  Cooper,  111!  United  States,  at  ])age  4Tl', 
it  was  iield,  and  this  is  iu  harmony  with  the  finding  df 
the  Palis  Trihuual,  for  the  purposes  of  this  Conventioii. 
that   the   L  nited  States   District  Court  of  Alaska  was  a 

SOcourtof  superior  jurisdiction,  and  that  every  inteiidnu'iit 
therefore  is  made  in  favor  of  its  decrees.  VVhatevci' 
those  courts  did  was,  therefore,  in  the  exercise  of  the  judi- 
dicial  hranch  of  the  sovereignty  of  the  United  States. 
As  to  the  exercise  of  the  juiisdictioir  iu  this  case  hy  the 
sovereignty  of  the  Unitecl  States,  your  Honors  will  tiiul 
throughout  our  printed  argument— as  well  as  since  listen- 
ing to  the  distinction  made  hy  our  friends  in  oral  argu- 
ment-thai we  have  put  over  and  ahove  the  existence  of 
the  actual  statute  iu  the  siatute  hook  the  assertion  of  the 

6ojurisdictiou  of  the  sovereignty  of  this  country  hy  tiio 
executive  authority,  (iiveu  that  it  has  jurisdiction  011 
the  high  seas,  then  if  the  authority  was  exercised  owr 
our  own  nationals  or  citizens  no  foreign  nation  can  say  us 
nay  or  call  us  in  question.  The  position  taken  squarely 
l)y  our  learned  friends,  the  counsel  for  Great  Britain,  in 


933 


(Mr.  Dickinson's  Closing  Argument.) 

1lie  Cooper  case,  143 U.  S..  was  ''That  no  action  hereto- 
"  fore  taken  by  thu  United  States  Government  amounts  to 
"  an  assertion  of  any  sovereignty  in  the  United  States 
•'  wliicii  would  give  jijrisdictioii  to  its  courts  over  any  por- 

•  tion  of  the  Behiing  Sea  or  the  wild  animals  theiein  be- 
"  yond  a  marine  league  from  any  shores  of  the  United 
"  States."    The  opinion  of  the  Court  is  given  at  page  498: 

10"  If  vve  assume  that  the  Record  shows  the  locality  of  the 
'•  alleged  offense  and  seizure  as  stated,  it  also  shows  that 
"  officers  of  the  United  States  acting  under  the  orders  of 

•  their  Government,  seized  this  vessel  engaged  in  catch- 
"  ing  seals  and  took  her  into  the  nearest  port,  and  that 
'•  the  law  officers  of  the  Government  libeled  her  and  pro- 
'•  ceeded  against  her  for  the  violation  of  the  laws  of 
'•  the  United  States,  resulting  in  condemnation.  How 
■•  did  it  happen  that  the  officers  received  sucli  orders?" 

Now,  since  that  decision,  the   Paris  tribunal  have  de- 

20 tided  that  the  officers  acted  under  tiie  direct  authority  of 

the  sovereignty,  and  this  is  one  of  the  questions  of  fact 

found,  and  binds  your  Honors.     The  Paris  tribunal  have 

sent  down  to  your  Honors  this  finding: 

"  That  the  saiil  several  searcheH  and  soizures  of  vessels  were  made 
"  by  public  armed  vessels  of  the  United  States,  the  commanders  of 
"  which  had,  at  the  several  times  when  they  were  made,  from  the  ex- 
"  ocutive  department  of  the  Government  of  the  United  States,  instruc- 
"  tions,  a  copy  of  one  of  which  is  annexed  hereto  "  (Vol.  I.,  p.  43;. 

30     Again,  in  the  same  finding: 

"  That  the  seizure  was  adopted  by  the  Government  of 
"  the  United  States,"  and  that  as  to  the  warnings,  "  such 
"  action  was  adopted  l)y  the  Government  of  the  United 
"States.  '  First,  that  seizures  were  made  by  the  direct 
autliority  of  the  Executive  Department  of  the  United 
States;  and  second,  that  the  warnings  were  adopted  by 
the  Governnjent  of  the  United  States,  and,  therefore,  were 
authoritative  — fully  covering  the  question  of  the  authority 
of  the  Government  in  the  prennses.  But,  before  that. 
4°"  How  did  it  happen  that  the  otticers  received  such 
"orders?"  say  the  Supreme  Court  of  the  United  States 
in  the  Cooper  case: 

"  It  must  be  admitted  that  they  were  given  in  the  assertion  on  the 
"  part  of  this  Government  of  territorial  jurisdiction  over  Behring  Sea 
"  to  an  extent  exceeding  59  miles  from  the  shores  of  Alaska;  that  this 
"  territorial  jurisdiction,  in  the  enforcement  of  the  laws  protecting 
"  spill  fisheries,  was  asserted  by  actual  seizures  during  the  seasons  of 
"  1886,  1887  and  1889,  of  a  number  of  British  vessels;  that  the  Govern- 
"  meut  persistently  maintains  that  such  jurisdiction  belongs  to  it.  based 
uot  only  on  the  peculiar  nature  of  the  .seal  fisheries  and  the  prop- 
erty of  the  Government  in  them,  but  also  upon  the  position  that 
"  this  jurisdiction  was  asserted  by  Bussia  for  more  than  ninety  years 
"  and  l)y  that  Government  transferred  to  the  United  States;  and  that 
"  iK'gotiations  are  pending  upon  the  subject." 


50, 


The  Commissioner  ou  the  part  of  the  United  States: — 
What  page  is  that? 
Mr.  IMckinson:— Page  4D!>;  and  the  Court  goes  on: 

"  While  it  is  conceded  that  in  matters  committed  by  the  Constitii- 
"  tion  and  laws  of  the  United  States  either  to  C^ongress  or  to  the 
60  "  Executive,  or  to  both,  courts  are  clearly  bound  by  the  action  of 
"  I'ougress  or  the  Executive,  or  both,  within  the  limits  of  the 
"  authority  conferred  by  the  Constitution  and  laws,  yet  it  is  insisted 
"  that  Congress  and  the' Executive,  constituting  the  political  depart- 
"  incuts  of  the  Government,  having  before  them  the  question  '  of  the 
"  extent  of  the  dominion  of  the  United  States  in  the  Behring  Sea,' 
"  which  they  could   doubtless  by  conjoint  action  determine  so  as  to 


■■■^1 


V.:''  i 


(Mr.  Dickinson's  Closinj;  Argument.) 

"  bind  the  oourts,  Lavo  chosen  neither  to  iletcrmiue  that  extent  iioi  in 
"  make  any  provision  of  law  by  wbieh  it  is  devolved  u]>on  the  ExecMtuc' 
"  to  determine  it, and  that,  therefore,  it  is  the  duty  of  this  eiiuit  in  tliu 
"  case  at  bar,  iuvolvinj?  the  legolity  of  the  seizure  and  condcniiinlinii 
"  of  a  foreign  vessel  alleged  to  be  in  violation  of  the  law  of  niitii.ns, 
"  and  without  warrant  of  any  law  of  the  United  States,  to  deti'i miin^ 
"  the  question. 

"  ARsuniing  that  the  Executive  alone  can  H))eak  so  as  to  liiinl  mn' 
"  courts  in  resjiect  to  the  sovereignty  of  foreign  territoi-y.  the  clnin.^iH 
lO  "  in  foreign  governments,  the  existence  of  civil  war  in  foreign  cnuiii  ncs 
"  and  the  character  of  o  foreign  minister,  counsel,  uovertlieless.  ion 
"  tidently  assert  'that  without  the  dear  authority  of  the  law  ot  (  nii- 
"  '  gress.the  Executive  can  never,  by  determiuiug'a  so-called  poliliial 
"  '  nuestion  or  by  construing  an  act  of  t'ongress  or  a  treaty,  coiu'liiilc 
"  '  the  rights  of  persons  or  proj)erty  under  the  proturtion  of  tlieCdiisti- 
"  'tution  and  laws  of  the  United  States  or  coudnde  the  courts  ol'  tlir 
"  '  United  States  in  a  determination  of  these  rights.'  " 

Tiio  Court  goes  on  to  consider  all   tlie  auth()ritic>  ciiiil 
by  Mr.  Clioate,  Ht-r  MajestyV  coini.sel,  and  iiiocctds  id 
2ot-"<>iisiiler  the  Acts  ot  Congrtss  as  construed  by  the  K.xivn- 
tive,  and  concludes  at  paj^e  i',i))i: 

"  If  reference  could  be  properly  made,  to  such  matters  [dcliiitcs], 
"  (for  the  act.  as  finally  approved,  must  Hjjcak  for  itself,)  still  we  ilo 
"  not  concur  in  the  view  that  it  follows  that  Congress  thereby  expn  s>ly 
"  invited  the  judicial  branch  of  the  Government  to  determine  '  wliu't 
"  are  the  limits  of  Alaska  territory  and  the  waters  thereof,'  and  wliat 
"  is  '  the  dominion  of  the  United  States  in  the  waters  of  Hehriug  .Sen,' 
"  and  think,  on  the  contrary,  that  there  is  much  force  in  the  jxi^iliou 
"  that,  whatever  the  reason  for  the  conservative  course  pursutil  liy 
"  the  Senate,  the  enactment  of  this  section,  with  full  knowledge  of  tlio 
"  executive  action  already  had  and  of  the  diplomatic  situation,  j\isti- 
J  "  tied  the  President  in  the  conclusion  that  it  was  his  duty,  under  sec- 
"  tion  three,  to  adhere  to  the  construction  already  insisted  upon  us  to 
"  the  extent  of  the  dominion  of  the  United  States,  and  continue  to  act 
"  accordingly. 

"  If  this  be  so,  the  a])plication  calls  upon  the  court,  while  negdtia- 
"  tions  are  pending,  to  decide  whether  the  Government  is  riglit  or 
"  wrong,  and  to  review  the  action  of  the  i)olitical  dei)artments  upon 
"  the  question,  contrary  to  the  settled  law  in  that  regard." 

It  then  proceeds  to  cite  the  autiiorities.     Of  course  that 

discussion  was  not  necessary  to  the  decision  of  the  (msp, 

40  but  it  is  fully  presented,  as  it  would  have  been  decisive,  if 

necessary,  to  the  decision  of  the  case,  doubtless   for  the 

reason  stated  in  this  language: 

"In  this  case  Her  Britannic  Majesty's  Attorney-General  of  Cauaila 
"  has  presented,  with  the  knowledge  and  approval  of  the  luipi'rial 
"  Government  of  Great  Britain,  a  suggestion  on  behalf  of  the  clainiaut. 
"  He  represents  no  property  interest  in  the  vessel,  as  is  sometimes  dnue 
"  bv  consuls,  but  only  a  public  political  interest.  We  are  not  iuKcusi- 
"  ble  to  the  courtesy  implied  in  the  willingness  thus  manifested  that 
"  this  court  should  proceed  to  a  decision  on  the  main  question  lU'fjued 
"  for  the  petitioner;  nor  do  we  permit  ourselves  to  doubt  that  niidot 
Buch  circumstances  the  decision  would  receive  all  the  cousidoiation 
that  the  utmost  good  foith  wouM  require;  but  it  is  verv  clear  that, 
presented  as  a  political  question  merely,  it  would  not  fall  within  our 
province  to  determine  it." 


50" 


It  discusses  that  view  of  the  case,  but  the  judgment  finally 
turned,  not  upon  that  point  but  upon  this,  that  Cooler 
hiuLself  had  appealed  from  the  condemnation  of  ilie 
Alaska  Court  to  the  Supreme  Court  of  the  United  Slates, 
as  he  had  a  perfect  right  iodo,  and  had  afterwards  volim- 
tarily,  without  any  consent  or  suggestion  on  the  |i:iit 
^of  the  United  States,  abandoned  his  appeal.  And  mi 
consideration  of  the  whole  case,  the  Court  was  necess 
arily  obliged  to  find  that  inasmuch  as  he  had  not  taken 
care  to  have  included  in  the  findings  the  position  of  the 
ship  in  the  Bering  Sea.  the  United  States  was  hound  In 
the  finding  of  fact  of  the  District  Court  of  Alaska,  wliidi 


Di;:. 


.) 


lorities  ciinl 
I  piocct'ds  1(1 
y  the  Kxfi  u- 


)f  cnursi-  thai 

of    till'  (MSI-, 

3en  dwisivc,  if 
tless   for  ll't' 


(Mr.  DickiDson's  Closing  Argument.) 

found  that  tlie  seizure  was  made  within  the  dominions  of 
the  United  States  in  the  Bering  Sea. 

Before  the  Geneva  Tribunal,  one  Joseph  Burns,  a  British 
sul),iect,  wlio  had  never  forsworn  his  allegiance,  and  a 
yMloi  on  an  American  ship,  presented  his  claim  for 
damages.  He  was,  so  far  as  his  person  was  concerned, 
,0  while  on  an  American  ship,  though  a  British  snhJHct, 
entitled  to  the  protection  of  the  United  States.  Any 
invasion  of  an  American  ship  by  Great  Britain  to  take 
lliis  British  subject  would  have  been  an  invasion  of 
American  territory;  and  I  do  not  know  that  I  can  give 
any  better  illustration  of  a  proper  answer  to  your  Honor's 
suggestion  of  an  invasion  of  JCew  Brunswick.  So  long 
as  Joseph  Burns  was  on  an  American  ship,  and  under  the 
American  Hag,  conceded  to  be  an  American  ship,  owned 
111  the  United  States  of  America — that  being  the  lest  of 
20 nationality— Great  Britain  could  not  touch  him  of  course. 
But  the  ship  was  destroyed,  as  claimed  before  the  Geneva 
arbitration,  by  the  fault  of  Great  Britain. 

I  turn  for  a  moment  to  this  case  as  a  side  light  on  our 
friends'  doctrine  of  intention  and  damages.  It  is  innna- 
terial  whether  toit  was  committed  by  culpable  negligence 
ur  by  an  active  tort.  The  law  has  one  word  for  such  a 
wrong  and  that  is  tort,  and  whoever  commits  it  is 
responsible  for  resulting  damages,  as  laid  down  in  all 
the  authorities,  and  I  cite  good  British  authority  upon 
30 that  point;  the  only  definition  of  what  damage  follows 
by  tort— say  by  a  negligent  collision  at  sea  or  by  a  tort 
fioin  willful  capture— is  that  a  party  shall  be  responsible 
for  all  the  natural  and  legal  consequences  of  his  act. 
The  man  guilty  of  negligence  is  just  as  guilty  in  the 
aspect  of  damages  as  a  man  who  willfully  does  the  act; 
otherwise  it  would  not  bo  called  a  wrong.  There  may 
be  such  degrees  of  negligence  that  a  party  gui!ty  of 
gross  negligence  might  be  mulcted  as  a  man  guilty  of  the 
most  malicious  and  willful  tort.  Gross  negligence  is  the 
^oftliiivalent  of  willfulness  and  maliciousness.  A  tort  com- 
mitted actively  under  the  belief  of  color  of  right  is  '.lot  as 
evil  an  act  as  an  act  of  neglect  of  duty.  And  when  I 
come  to  the  question  of  damages  I  shall  m;)ke  ihe  argu- 
ment ad  hominem  to  the  counsel  for  Great  Britain. 

The  absurdity  of  the  talk  of  willful  damage  can  be  de- 
monstrated by'this  proposition:  Great  Britain  was  very 
careful  in  the  negotiations  for  the  treaty,  and,  as  appears 
l)y  the  correspondence,  carefully  guarded  any  damage 
against  herself  in  case  the  decision  had  turned  out  the 
joothei  way— and  very  properly  so. 

The  delay  with  which  the  United  States  was  charged 
was  delay  in  connection  with  the  Treaty  of  1892.  The 
United  States  would  not  admit  and  Great  Britain  would 
Dot  admit;  the  negotiations  were  largely  delayed  because 
Ureat  Britain  did  not  want  to  be  responsible  for  any  ship 
that  carried  the  British  flag  and  for  what  she  did  in  the 
Bering  Sea,  and  Great  Britain  did  not  want  to  pay  dam- 
ages for  what  was  done  by  any  ship  carrying  i;he  British 
flag  in  Beri;ig  Sea.  Well,  suppose  the  Arbitrators 
60  at  Paris,  to  whose  main  decision  we  bow  with  some 
reluctance,  had  decided  the  other  way,  and  as  we 
thought  was  right— else  we  would  not  have  been  there — 
Uieat  Britain  would  have  been  held  under  that  treaty  for 
damages.  Would  it  not  be  absurd  if  we  not  only 
went  in  and  asked  for  payment  for  the  actual  damages 


fi|- 


'ivW" 


■I 


'.r'.u 


(Mr.  Dickinson's  Closing  Argument.) 

that  Great  Britain  had  done  to  our  seal  fisheries,  and  also 
charged  her,  in  view  of  her  contention  that  this  wiis  ,i 
common  sea,  and  that  what  she  did  was  undt-r  color  ol 
her  contention  that  it  was  a  part  of  the  high  seaH,  as  slm 
beheved,  in  good  faith,  but  that  we  should  also  charge  lur 
with  taking  our  seals  willfully  and  wanlonly,  and  iIickj 
fore  should  claim  aggravated  damages  because  she  iii- 
lo  tended  to  take  the  seals?  Of  course  she  did,  as  we  inteiniiMl 
to  take  the  vessels.  Because  she  intended  tt)  tiike  tin' 
seals,  how  ridiculous  it  would  have  been  to  contend  that 
we  were  to  have  anything  other  than  the  value  of  tlio 
things  taken. 

But  we  are  coming  to  the  case  of  Burns,  from  which  I 
was  diverted.  Bums  presented  his  claim  at  (Uneva,  ami 
because  he  was  a  British  subject  it  was  not  coiisiileiiMl 
worth  discussing— not  because  Great  Britain  was  charged, 

20 as  stated  by  Commissioner  Rayner,  with  violation  ot  or 
neglect  to  execute  her  own  nmnicipal  laws, — because  he 
was  a  British  subject  it  was  held  that  ho  could  not  have 
any  reclamation  although  on  an  American  ship,  and 
although  injured  by  the  .same  acts  for  which  Aniericim 
citizens  might  recover,  he  could  not  have  reclaiiiatioii 
against  Great  Britain  simply  and  solely  because  he  was  a 
British  sul)ject.  And  that  was  the  only  ground  upon 
which  it  was  put,  and  he  occupied  the  same  position,  so 
far  as  respects  the  law  and  right,  on  an  American  ship  as 

30 if  then  domiciled  on  American  territory.  It  is  quite  a  (lit- 
ferent  question,  whether  Burns  could  be  taken  from  an 
American  shi|)  by  a  British  vessel,  and  whether  he  can 
make  reclatnation  for  an  alleged  tort  conunitted  by  his  own 
sovereignty.  It  would  be  a  state  of  things  which  would 
be  inconceivable  that  any  citizen  could  go  to  another 
nation  alleging  that  his  >7ountry  has  done  wrong  and  re- 
ceive foreign  protection  on  a  claim  for  damages.  That 
is  tlie  position  of  Her  Majesty's  Government  before  this 
Convention,  because  not  one  of  tiie  American  clain\ant3 

40  was  naturalized  prior  to  the  alleged  injury  or  prior  to  the 
Convention  under  which  this  High  Commission  sits. 

"La  Ninfa"  Case. 

We  had  the  "  La  Ninfa  "  case  out  at  Victoria.  There  is 
nothing  new  about  the  "  La  Ninfa"  case,  and  we  cannot 
conceive  how  even  if  it  were  a  decision— as  we  said  the 
other  day— of  the  Supreme  Court  of  the  United  States, 
it    can    cut  any   figure    here.     Just   reflect    a  moment 

50  upon  this.  The  award  of  the  Paris  Tribunal— this  is  a 
matter  which  should  be  well  fastened  in  your  Honors 
minds  if  there  is  any  mistake  about  it,— the  award  of  the 
Paris  Tribunal  which  found  that  the  United  States  did 
not  have  exclusive  jurisdiction  in  the  Bering  Sea,  was 
made  on  the  l.'ithday  of  August,  18!)H,  and  there  and  then 
was  settled,  according  to  the  "La  Ninfa"  case,  may  it 
please  your  Honors,  the  right  of  jurisdiction  in  the 
Bering  Sea.  I  am  not  going  to  discuss  this  at  any  great 
length,  but  I  would    like  to  have  these  dates  in  your 

60  Honors'  mind. 

The  "La  Ninfa"  case  rests  upon  the  decision  of  the 
Paris  Tribunal.  We  will  not  speak  of  its  binding  eflVct 
upon  any  one  as  yet.  The  decision  of  the  Paris  'J'ribnnal, 
upon  which  the  "  La  Ninfa"  case  rests,  finds  that  jnris- 
diction  did  not  exist  over  American  citizens  in  the  Bering 


087 


(Mr.  Dickinson's  Closing  Argument.) 

Sea,  and  was  madt*  tho  intli  day  of  August,  IS'JH.  It  had 
tliun  been  fully  decided  that  the  United  Slates  lia<l  not 
oxclusivo  jurisdiction  in  Bering  Sea,  wlien  this  Coin- 
niission  now  sitting  was  organized  under  tlus  Convention 
between  (ireat  Britain  and  the  United  States  in  18!Mi.  I 
repeat,  wlien  this  Convention  was  entered  into  in  Fehru- 
;iry,  isjMi,  it  had  been  decided  hy  the  Paris  Tribunal  that 

lotiie  United  States  iiad  not  exciusivt-  jurisdiction  in  tlie 
Bering  Sea  as  fully  as  wIumi  the  learned  Judge  decided 
tlie  *■  La  Ninfa  "  case.  Nevertheless,  after  that  award  these 
two  motions  made  this  treaty  of  lMi»t>,  which  provides 
who  shall  have  reclamation  before  this  Convention,  not- 
withstanding this  fact.  It  provides  that  only  such  per- 
sons shall  have  reclan)ation,  as  (heat  Britain  is  entitled  to 
make  reclamation  for,  and  points  out  that  the  right  of 
the  United  States  to  siiow  ownersiiip  in  our  citizens 
shall  be  preserved  before  you. 

20  Do  our  friends  seriously  contend  that  if  the  Supreme 
Con  it  «»f  the  United  States  even  had  held  yesterday  or  the 
day  before,  that  the  United  States  could  not  punish  citi- 
zens under  the  Section  Il».")(>  as  amended,  for  acts  done 
l)eyond  the  three  mile  limit  in  Bering  Sea — do  they  seri- 
ously contend  that  an  American  citizen  who  has  been  in- 
jured by  this  infraction  of  his  rigiits  in  Bering  Sea  by  his 
sovereignty,  can  take  the  flag  of  Great  Britain  as  a  protec- 
tion, and  enter  an  international  court  and  assert  the  right 
of  an  American  citizen  for  damages^ 

30  Take  the  most  extreme  case  you  please,  under  this  Con- 
vention or  by  the  rules  of  International  law.  Suppose  that 
on  tlie  North  Atlantic,  l,'>(»)  miles  out  at  sea,  an  American 
cruiser,  without  any  authority,  takes  a  ship  to  day,  an 
American  owned  ship,  which  had  run  up  the  British  flag, 
itut  turned  out  to  be  an  American  owned  ship--novv  she 
is  on  the  high  seas  1,500  miles  out— her  capture,  we  will 
say,  was  an  outrage — beyond  conception,  an  outrage — 
without  color  of  authority,  and  the  United  States  ratifled 
tlie  act.     Has  Great  Britain  anything  to  do  with  it? 

40  She  has  to  do  with  it  until  the  pretense  of  British  owner- 
siiip is  torn  aside,  but  if  the  ship  turns  out  to  be  actually 
.■\iiierican  owned,  she  has  no  more  to  do  with  it  than  we 
iiave  witli  the  "  Renown  "  and  her  conduct  out  here  in 
Halifax  Harbor.  Could  you  give  Grctat  Britain  the  right 
to  do  anything  about  it  by  any  Convention,  71011  constat  our 
courts  had  no  jurisdiction  in  Bering  Sea,  non  constat  our 
municipal  statute  does  not  cover  it^  A  Convention  has 
been  made  between  the  countries  providing  that  no  one 
sliail  come  before  it  except  those  persons  for  whom  Great 

50  Britain  can  make  reclamation,  and  it  is  further  provided 
upon  this  point  that  the  question  of  citizenship  of  claim- 
ants shall  be  inquired  into  by  your  Honors. 

1  am  going  to  finish  once  for  all  with  this  "La 
Ninfa "  case,  which  has  been  given  and  received 
a  most  remarkably  improper  significance,  in  my 
opinion.  Of  couree  this  decisicm  of  the  Federal 
Courts  of  Appeals  of  the  Ninth  Circuit  is  not  an  au- 
thoritative exposition  of  the  law  of  the  United  States, 
or  of   International   Law  for   any   court  outside  of   the 

6c' Ninth  Circuit,  because,  by  the  Court  of  Appeals  Act,  this 
case  is  appealable,  and  the  decision  of  no  court  but  the 
court  of  last  resort  is  evidence  in  any  international  court 
of  the  position  of  the  Government,  nor  is  it  binding  on  the 
Uovernment  of  the  United  States,  'i'he  decision  to  be 
liiiuling  must  be  a  decision  of  a  court  of  last  resort.     The 


n 


i 


I  ;5 


i»;is 


(Mr.  I^ickinson's  Closing  Argutiu-iit  ) 

"La  Ninfa"  ciisd  properly  ( ited  is  "il  Circuit  Cnurt  ni 
Appeals,  pag«' 4:t").  In  t lit' forepart  of  everv  voliinit' w  ill 
hetoiind  the  Court  ot  Appeals  Act.  wiiitli  will  show  lli.n 
the  case  was  clearly  appi'alaltle  to  the  Snpieine  Cuiirl  ij 
the  United  States.  Hefore  the  Convention  of  |s71,  as  li.. 
fore  the  Convention  of  1S.">;<.  the  right  logo  lielorcan  hi 
teinatioiial  CoMunission  on  Claims  on  a  loss  occuniiig  liv 
lo  tile  action  of  judicial  anihoi  ily  of  the  United  Stales,  w.is 
n-peatedly  discussed  and  decided.  And  the  doctriiii  lo 
which  there  are  no  exceptions,  on  a  full  review  of  all  I  In' 
authorities  in  which  iheio  is  no  exception,  is: 

"  TImt  no  I'oclainittion  ciiii  lie  iimdc  UKaiiint  tliii  (lovcriiiiit'iit  dii  iic- 
"  c'omit  <if  imv  loNM  lu'crniii)^  liy  nctiim  of  judii-iiil  iintlioritv  of  ilic 
"  coiiiitrv  uiilcHH  tlicro  liuw  liccn  iin  aiipciil  iiiiulu  for  relief  to  tin' 
"  court,  mill  II  (loeiHioii  reuelied  liv  a  court  of  luxt  rcMort,  itdverNe  in 
"  the  pOHiti^n  ol'tho  eluiiiiiiut." 

^        ill  the  Papers  relating  to  Xlie  Treaty  of  Wasliiiiglciii, 
Vol.  VI.,  page  ^s  (Conunissioii  of  1^71)  it  is  said: 

"  Tlio  question  an  to  tlu)  juriHdietion  of  the  C'ommiHsioii  in  eases 
"  whei-(>  tlie  party  eoniplainiun  liad  faih'd  to  proseeute  hi.s  ap)i.'ii| 
"from  the  i)ri/.e  eourt  of  ori);inal  jurisdietiou  to  tlie  eourt  ofnlli- 
"  mate  iippelhite  jurisdietion,  wrh  raiHed  l>y  demurrer.'  ote. 

"  Her  Kritanuie  MajcHty's  eonusel,  on  behalf  of  the  eiaiiimiits  in 
"  tliiw  and  other  eiiHeH,  maintained  tluit  the  doetriuew  of  tlie  pulilieists 
'•  in  renard  to  the  ueeesHity  of  u  party  aggrieved  followiuj^  out  his 
"  eoin))lete  remedy  in  the  a)ipellate  prize  courtH  of  tlu^  nation  ol  wIkwc 
30  "  acts  lie  eoni|ilaiued,  ni)i)lied  only  to  the  ipieHtiou  us  to  ({''onnds  of 
"  war  and  reprisalH,  and  did  not  apply  to  the  (pieHtiou  of  juiiHdietleii 
"  liy  an  interuutioual  tribunal,  (^staldished  by  treaty,  witli  the  liiv|.' v 
"  powers  and  jurisdietion  eouferred  by  the  treutv  upon  this  (loiiiiiii: 
"  sion.  That  under  the  terms  of  the  treaty  the  Commission  Imil 
"jurisdietion  of  all  wrounful  aets  eommitted  by  the  authorities  nf 
"  the  United  States  upon  the  persons  or  property  of  British  sul)jeits  " 
******* 

"The  Commission  held,  in  eflfpct,  that  under  the  treaty,  they  Im.l 
"  jurisdietion,  uotwithstaudiuf;  the  failure  of  the  elaimaut  to  ])ursiic 
"  his  remedy  V)y  appeal  to  the  court  of  last  resort,  but  that  siiiU 
'  failure  on  his  part  would  be  considered  conclusive  against  liiiii.  iiii- 
40  "  less  satisfactory  reasons  were  ^iveu  for  the  omission  to  api)eal.  (t 
"  was  thereupon  unanimously  ordered  by  the  Commission  that  llio 
"  demurrers  lie  overruled,  but  that  the  claimants,  in  all  the  piize 
"  cases  in  which  a])pcals  had  not  Vteeu  taken  and  pursued  to  the  eoiiit 
"  of  last  resort  should  tile  with  the  Commission  their  reasons  for  such 
"  omissions  or  failures  to  take  and  jiroseeute  such  appeals. 

"Subsequently  the  claimants  in  this  cose  filed  an  afUdavit,  assifju- 
"  iu«  as  their  reasons  for  not  appealing  from  the  decree  of  the  District 
"  Court  the  following: 

'•  1st.  Hecause  it  wos  universallv  known  in  Philadelphia  at  the  time 
"  said  decree  passed  that  appeals  from  the  prize  courts  there  by 
"  claimants  were  almost  uniformly  couf  •  -led  with  costs.  2il.  TImt 
50  "  j)ublic  opinion  there  was  in  sympathy  with  such  confirmations, 
"  under  the  suspicion  that  commercial  men  in  this  province  (Nnvii 
"  Scotia)  were  in  sympathy  with  the  Confederates.  3d.  That  tlie 
"  other  owners  of  the  -Napier'  were  not  of  pecuniary  ability  to  pro- 
"  cure  the  necessary  sureties  without  much  inconvenience,  nor  to 
"  sustain  further  heavy  costs,  and  the  burden  of  loss  added  to  iu- 
"  jury,  especially  as  we  had  already  expended  nearly  lS,500  in  counsel 
"  fees,  a^encv  and  travelling  expenses  connected  with  this  seizure. 

"  On  the  filing  of  these  'reasons'  the  Commission,  without  fiutlioi 
"  argument,  held  them  insutiicient  to  excuse  the  want  of  appeal,  mid 
"  unanimously  disallowed  the  claim." 

60  There  is  an  opinion  by  the  United  States  Commissioner 
in  the  Appendix  of  this  Report,  and  then  follows  the  (lis 
missal  by  the  Commission  of  all  cases  which  had  not  bcci> 
appealed  as  not  binding  on  the  Court,  and  as  not  showini:; 
the  action  of  the  sovereignty  of  the  United  States  at  all, 
where  not  appealed,  and  they  are  dismissed  incontinently 


IP1»»'W*< 


)♦:;(• 


NfF^ll 


ill: 


:;( 


(Mr.  nickinson's  Closing  Aigumont.) 

ill  tivory  castt  wlion*  n-asoiis  were  not  filod.     TIhto  wpro  a 
largf  lunnlKsr  of  cases,  and  at  pago  !t2  llicy  t'mtlici'  say; 

"  It  mny  Im  Htntod  Koucrally,  t'liit  ulthotiKli  >>>  two  nr  tlirnn  crhoh,  an 
••  iiliovf  iiott'd,  tilt!  (!oiiiiiiiH«ioii  "xpri'NHly  htihl  the  t'xciiHc  for  non- 
"  u|i|M'itl  to  lio  Hiitllciout  to  I'liti  1  uiiii  jiiriHilii'tioii  of  thi>  cluiiii  u|ion 
"  till'  iiiitritH,  ikuil  iilthouKli  in  otlior  cuHtm  the  ('(iiuiniHHion  diil  not  i>x- 
•'  prt'HHiy  (UhiiIIow  tho  cliiim  ou  tlit>  Kro'U'd  "f  ♦'><'  iii»ulll('it>iii\v  of  tlio 
"  I't'itHouH  for  iiou-u|>|>t'ul,  no  itwiinl  wuh  inuilti  iiKititiHt  tint  Uuitcd 
"  HtittOH  iu  iiuv  ciiHc  in  which  tlii!  rhiii  i:iiiU  Imd  not  |iiirHiicd  tlioir 
"  rcnit'dy  in  the  ))ri/,)'  coiirtH  of  thn  l.uitod  HtiitcM  by  ii|i|)i'!il  to  tho 
•' court  of  hint  ri'Hort.  I  um  iidviscd  that  Mr.  ComiiiiMHioiicr  Frazor 
"  waH  of  opinion  that  nothing  Hliort  of  iiiiHfcaHaiu'c  or  default  of  the 
"  ('a|>turiup;  (lovcrunicnt,  liy  iiicaiiH  of  which  an  appeal  was  prevented, 
"  waw  Hutllcient  to  excUHcthe  failure  to  appeal,  and  that  iu  accordance 
"  with  thiH  view  he  held  the  reiiHoiiH  iiHHiuned  in  every  caRO  before  the 
•'  I'uniuiiHHion  to  be  inHiitllcicnt." 

Now,  I  havo  (lisciiHsi'd  tlic^  iiia|)|ili(;altility  of  the  "La 
Ninfa"  case,  even  if  it  were  iiimlin;;;  autlioifty,  anda^ain 
shown  that  an  it  was  not  a  judgment  of  a  '■ourt  of  last 
resort  it  hinds  no  one,  (except  the  Ninth  Circuit.  But  it 
strikes  nie  that  in  view  of  the  decision  of  the  Cooper 
case  hy  our  Hupieine  Court  that  no  other  court  would 
have  held  that  the  decision  of  an  international  tiihunal 
that  the  L'nited  States diti  not  liave  such  exclusive  jurisdic- 
tion in  liering  Mea  as  to  entitle  tliat  nation  to  take  pro- 
perty from  British  suhjects,  v^'ould  have  the  etfect  to  erase 
iroin  our  statute  hook  a  prov.-ion  of  the  Federal  (Jovern- 
lueiit  that  no  person  shall  kill  any  otter,  mink,  maitin,  or 
fur  seal  within  the  jurisdiction  of  the   United   States,    as 

^°applied  to  our  own  citizens.  Think  of  it! 

The  Commissioner  on  the  part  of  the  United  States: — 
We  want  to  get  upon  common  ground  all 
round  as  far  as  we  can.  I  do  not  know  that 
the  decision  goes  to  (^uite  the  extent  you  claim 
it  does.  Mr.  Beicjue  claims  that  this  decision  had  a 
retroactive  effect,  and  that  is  a  serious  question.  The  de- 
cision itself,  as  I  understand  it,  merely  holds  that  Section 
ll»,")t)isoperativoby  its  terms  only  within  the  jurisdiction  of 
tiio  United  States,  and   that  the  Paris  Award  has  deter- 

'^^  mined  that  the  United  States  had  no  jurisdiction  over  the 
waters  of  Bering  Sea,  and  thus  by  the  terms  of  Section 
1  !•.')»)  it  was  limited  to  the  littoral  waters  of  the  Sea.  It 
Keeins  to  me  that  Mr.  Beique  gave  substantially  the  pur- 
port of  the  decision.  The  effect  of  the  decision  is  another 
thing. 

Mr.  Dickinson:— The  Supreme  Court  of  the  United 
States,  which  seems  to  me  to  be  binding  authority,  seems 
to  have  held  that  the  United  States  Court  of  Alaska  did 
have  jurisdiction. 

''^'  The  Commissioner  on  the  part  of  the  United  States: — 
Whether  the  decision  is  right  or  wrong,  is  a  matter  to  be 
held  in  reserve.  I  am  only  giving  you  my  impression  of 
what  the  Court  assumed  to  decide.  Will  you  kindly  read 
the  head  notes  of  the  decision} 
Mr.  Dickinson:— I  will. 

"  By  the  award  of  the  arbitrators  under  the  treaty  of  arbitration  be- 
"  t ween  the  United  HtateB  and  Great  Britain  (27Btat.,  948),  it  was 
"  settled  that  the  United  States  have  no  exclusive  jurisdiction  in  the 
"  waters  of  Behring  Sea  outside  the  ordinary  three-mile  limit,  and  no 
6o"  ri(;ht  of  property  in  or  protection  over  the  fur  seals  frequenting 
"  till!  islands  of  the  United  States  when  found  outside  of  such  three- 
"  mile  limit.  Therefore,  the  Act  of  March  2,  1889,  declaring  that 
"  Kev.  St.,  J  1956,  which  forbids  the  killing  of  fur-bearing  animals  in 
"  Alaska  and  the  waters  thereof,  shall  apply  to  '  all  the  dominion  of 
"the  United  States  in  the  waters  of  Behring  Sea,'  must  be  construed 
"  to  mean  the  waters  within  three  miles  of  the  shores  of  Alaska." 


,    'II    ■'.'Jll 


m^ 


!»4(> 


(Mr.  Dickinson's  Closing  Argument.) 

The  Commissioner  on  the  part  of  the  United  States: 
That  is  sufficient  for  my  purpose. 

Mr.  Dickinson:— But  the  award  that  is  referred  to  in 
the  decision,  and  as  the  hasis  of  the  decision,  was  niailr 
three  years  before  this  Convention,  hased  u|)on  it,  was 
signed,  and  this  Convention  provides  that  no  one  sliall 
recover  Ijefore   this   Commission    who  is  not  entitled  to 

10  British  protection,  so  your  Honors  can  see  vcryclcailv 
tiiat  the  "LaNiufa"  case  couhl  not  cut  as  much  ol  •! 
figure  as  the  Paris  Award,  because  the  Paris  Award 
decided  that  we  had  no  exchisive  jurisdiction  in  Heiiii;; 
Sea  befort!  this  Convention  under  which  you  sit  was 
negotiated,  and  that  was  negotiated  with  tlie  Paris  Awaid 
as  an  express  premise. 

Now  1  insist  that  the  Supreme  Court  of  tiie  I'liited 
States  would  never  have  contirmed  such  a  decision,  and  it 
is  l)inding  on  no  other  Court  outside  of  tiie  Ninth  Oiicnit. 

2oand  tliatyour  Honor  sitting  in  your  own  circuit  on  revimv 
of  that  case  would  not  hold  any  such  doctrine,  'i'jio 
Supreme  Court  in  the  Cooper  case  went  carefully  into  the 
question  of  construction,  and  did  hold,  by  construction, 
that  the  act — this  very  act  g  litad — was  meant  to  cover  all 
the  waters  of  Bering  Sea.  and  at  least  hound  our  own 
citizens.  The  Paris  Award,  which  is  said  to  be  l)in(iing 
by  the  "  La  Ninfa"  case,  is  said,  in  effect  by  the  learned 
Judge  in  that  case,  to  have  all  the  force  of  a  tinding  that 
our  statute  was   unconstitutional  and  void,  when  it  at- 

30  tempted  to  punish  our  own  citizens  in  a  place  where  we 
had,  bear  in  mind,  at  least  concurrent  jurisdiction 
with  other  nations. 

The  Connnissioiier  on  the  part  of  Her  Majesty:  —Has  the 
act  been  altered  since  the  Paris  Award? 
Mr.  Dickinson:— >io,  your  Honor. 

The  Commissioner  on  the  part  of  Her  Majesty:— There- 
fore the  waters  of  Alaska  means  all  the  waters  of  Alaska. 
Mr.    Dickinson:— Certainly,    the  intent  of  the  statute 
was  to  protect  the  property  of  the  United  States  (Joveiu- 

40meut  in  seals,  and  certainly  the  United  States  can  assert 
that,  I  hope,  against  its  own  citizens  in  regulating  that 
fishery.  The  statute.  Section  !!».")(),  and  amendment  of 
18H!>,  "did  not  ai)ply  in  terms  to  British  subjects,  but  on  its 
face  it  applies  t<>  American  citizens.  In  terms  it  only 
bound  such  jiersons,  but  said  all  persons,  just  as  any 
other  statute  of  the  United  States  would  read.  The  (pies- 
tion  was  above  that,  the  (piestion  that  went  to  the  J'aris 
Tribunal.  Now  1  have  the  utmost  respect  for  the  learned 
Judges  of  the  Court  of  the  Ninth  Circuit,  and  particularly 

50  the  mend)er  of  the  Court  who  dissented,  the  present 
Attorney  General  of  the  United  States,  but  how  they 
could  hold  that  the  question  that  went  before  the  I'aris 
Tribunal,  which  was  simply  and  solely  whether  thel'iiited 
States  had  exclusive  jurisdiction  in  Bering  Sea,  could  take 
off  fiom  our  statute  l)ook  a  penal  statute  which  protected 
the  property  of  the  United  States  in  Bering  Sea  from 
United  States  citizens,  is  more  than  I  can  conceive,  dt 
course  the  Paris  Award  is  the  highest  law  of  the  iaiui, 
so  far  as  it  decided  anything.     There  can  be  110  more  ar- 

fe  resting  of  British  subjects,  or  Italian  subjects,  or  Japanese 
subjects,  in  these  waters,  and  it  has  decided  incidentally 
the  specific  case,  that  the  waters  were  free  to  British  sub- 
jects, but  the  law  of  the  land  which  the  "  La  Ninfa"  case 
seems  t  hold  is  this:  That  the  decision  at  Paris  binds  all 
of  our  o .'  n  courts  as  to  our  own  people  as  well. 


(t4l 


sty:— Has  I  he 


'aris  binds  ;ill 


(Mr.  Dickinson's  Closing  Argu.iient.) 

The  Commissioner  on  the  part  of  the  United  States:— It 
wouM  still  be  a  matter  of  the  construction  of  the  statnte 
whether  waters  of  Alaska  meant  the  vvateis  of  Bering 
Sea  or  territorial  waters.  The  executive  autliority  having 
withchasvn  its  declaiation,  and  having  agreed  to  leave  it  to 
the  Paris  Tribunal,  the  Ciicuit  Court  might  say,  we  do 
not  think  there  is  anything  in  the  stand  taken  by  executive 

loauthority  to  prevent  us,  tlie  Cinuit  Court,  from  hoiding 
that  the  waters  of  Alaska  mean  the  territorial  waters. 

Mr.  Dickinson:— All  that  would  he  very  well  if  tiio  ex- 
ecutive authority  had  witiuhawu  anything  except  as  to 
foreigneis.  The  statute,  as  I  iiave  endeavored  to  show 
this  morning,  does  not  provide  that  it  shall  he  executed  at 
any  place  against  a  foreign  subject.  It  is  a  statue  which 
forbit's  the  killing  of  fur  seals,  and  is  for  the  protection  of 
the  GoverriUient's  property  rights,  and  does  not  refer 
to   British   subjects  or  foieigners  at  all.     The  statute  is 

20  within  the  jurisdiction  of  the  United  States  in  so  far  as 
the  subjects  of   the   nation  are  concerned.     On  the  high 

seas  we  may  forbid  an  Anierican 

The  Commissioner  on  the  {tart  of  Her  Majesty: — Except 
that  you  may  limit  the  prohibited  act  to  acts  done  at  cer- 
tain places.  Suppose  you  said  no  seals  should  be  killed 
within  three  miles  of  the  Pribyloff  Islands;  that  would 
hv  confined  tothataiea,  and  [suppose  the  Court  U!tbe"La 
Ninfa"  case  held  that  they  were  called  to  construe  the 
words,   "  waters  of  Alaska."' 

30  Mr.  Dickinson:— That  may  have  been  the  intention. 
Thoy  <lid  not  do  that;  if  they  did  I  should  not  at  all  criti- 
cize tho  decision;  hut  they  say  the  Paris  award  is  bind- 
ing upon  the  courts  and  nation  in  respect  of  our  own 
citizens.  The  Paris  award  did  not  and  could  not  find  that 
the  United  States  could  not  forbid  its  people  from  killing 
seals  in  these  waters  or  anywhere  else,  and  the  object  of 
forbidding  the  killing  of  seals,  as  found  by  the  Supreme 
Court  of  the  United  States  in  the  Cooper  case,  was  for 
the  protection  of  the  property  of  the  United  States,  as  well 

40 as  the  assertion  of  exclusive  jurisdiction  in  Bering  Sea. 
If  the  Court  of  Appeals  of  the  Ninth  Circuit,  or  anywhere 
else,  wanted  to  construe  the  statute  so  that  it  would  apply 
only  to  territorial  waters,  very  well;  hut  I  do  protest  that 
the  Paris  Tribunal  could  not  take  off  from  our  statute 
hook  a  statute  prohibiting  our  own  citizens  from  killing 
seals  in  the  waters  of  Bering  Sea.  If  it  coiild  not  the  "  La 
.Mnfa"  case  is  waste  when  cited  here. 

The  Commissionei-  on  the  part  of  the  United  States: — I 
think  Judge  King  and  myself  look  at  the  decision  alike. 

50 1  do  not  think  the  decision  has  the  effect  you  give  to  it.  It 
(lid  not  assume  to  take  the  statute  off  from  the  statute 
hook;  it  only  assumed  to  construe  the  statute.  Whether 
it  construed  it  correctly  or  not,  may  be  another  (piestion. 
Will  you,  before  you  get  through,  kindly  refer  us  to  the 
language  of  the  Supreme  Court  in  re  Cooper,  where  they 
state  that  the  statnte  applied  to  all  parts  of  Beiing  Sea. 

Mr.  Dickinson:  -Certainly,  your  Honor.  I  \^  ill  now 
read,  if  your  Honors  please,  from  the  decision,  what  I 
criticize  t'rom  the  "La  Ninfa"  judgment.     It  is  this,  and 

f'Ol  submit  that  the  result  is  exactly  what  I  iK)int  out: 

"  In  Hul)mittmg  the  (iHCBtions  to  the  HIrIi  Court  of  Arbitrntiou,  the 
"  (idveruiiicnt  iiKrecil  to  Vie  bouud  l)y  the  decision  of  tlic  urlutnitorH, 
"  1111(1  luis  sinee  pusseij  uu  net  to  f?ive  effect  to  tlie  awiinl  lemlereil  hy 
"  tlio  tril)UUHl  of  iirt)itriitioii  (28  Htnt.,  .')2).  Tlie  award  shonUl,  thore- 
••  fore,  be  eoiisidered  iih  liiiviux  Huivlly  settled  tlio  rinhtHof  the  United 


!:^ 


tni 


t)48 

(Mr.  Dickinson's  Closing  Argument.) 

"  States  in  the  waters  of  Alaska  and  of  Bebrtng  Sea,  and  nil  i/uesin  ,,< 
"  cniiceruhig  lite  righh  of  iin  oirn  cilueiifi  miil  milijecls  th(Teiii,  an  vcW  ii:i 
"  of  the  citizens  and  subjects  of  other  countries. " 

Possibly,  your  Honors,  lam  not  familiar  enongli  with 

the  ordinary  meaning  of  English  words.     If  I  am,  fliin 

my  statement  of  this  decision  as  I  have  before  given  it  ir, 

not  open   to  the  criticism   your   Honor  has  just  niiKk- 

10  upon  it. 

The  Commissioner  on  the  part  of  Her  ^iajesty:— Dm  s 
that  mean  any  n)ore  than  this:  "We  think,  by  11, c 
words,  waters  of  Alaska,  (,'ongress  meant  the  territciiiiil 
waters.  If  it  is  claimed  that  the  executive  autboiitv 
went  further  we  would  not  give  effect  to  it  because  wc 
could  not  oppose  the  judicial  or  executive  authority.  Hut, 
they  say,  we  are  not  hampered  bj'  that  at  all  now.  lie 
cause  the  executive  authority  has  finally  withdrawn  its 
contention  by  submitting  to  the  Arbitrators  at  Paris,  aiul, 
20  therefore,  it  leaves  us  free  to  determine  what  the  watt  is 
of  Alaska  meant." 

Mr.  Dickinson:  -That  is  not  what  they  said. 

The  Commissioner  on  the  part  of  Her  Majesty  :~-N"o,  it 
is,  I  suppose,  what  they  meant. 

Mr.  Dickinson;— My  learned  friends,  in  their  positidu, 
stand  on  what  they  said  and  must  do  so.  otherwise  the 
case  has  no  bearing  here.  lam  answering  an  argiinniit 
which  seems  to  have  made  an  impression.  The  Paris 
award  decides  that  the  United  States  did  not  have  e.x- 
30clusive  jurisdiction  in  Bering  Sea  as  against  other  natiniis. 
It  did  imt  decide  that  (Jreat  Britain  had  exclusive  jm  is- 
diction  in  Bering  Sea.  nor  that  the  United  States  did  not 
have  common  jurisdiction  in  Bering  Sea,  did  not  liave 
jurisdiction  in  conmion  with  other  nations,  did  not  have 
juri>^diction  in  all  of  Bering  Sea  as  to  its  own  citizens. 
Our  learned  friends  say  that  whatever  the  United  St.Ues 
have  done  to  American  citizens  by  wiiich  they  have 
suflered,  they  may  come  before  this  Connnission,  even  if 
American  citizens, — that  is  their  contention.  -  and  ask 
40 reclamation  under  Article  I.,  as  persons  for  whom  (lival 
Britain  is  entitled  to  make  reclamation.  All  tiiat  1 
criticize  in  the  decision  of  learned  Court  of  the  Nintli 
Circuit,  is  that  they  should  hold  for  one  moment  that  the 
Paris  Tribunal  could  repeal  a  statute  law  of  the  United 
States  in  effect. 

The  Commissioner  on  the  part  of  Her  Majesty:-Tliey 
could  not  do  that. 

Mr.  Dickin.son:— Very  well,  your  Honor;  that  is  where 
my   learned    friends  stand.     It   may    be   that   the  (  ouit 
50  means  something  else  as  your  Honor  suggests. 

The  Commissioner  on  the  part  of  the  L  nited  States:  it 
seems  to  me  that  the  real  difticuity  is  one  that  Mr.  Hi'i(|iie 
suggested— that  it  had  a  retroactive  effect.  Your  position 
is  this;  that  the  treaty  under  which  we  are  acting  has  in 
terms  declared  that  what  was  done  in  BeiuingSea  wa^  liy 
authority  of  the  (lovernment  of  the  United  States.  The 
Supreme  Court  in  the  Coopt'r  case  has  said  that  wii.it  was 
done  l)y  executive  authority  on  a  question  of  that  .-01 1, 
binds  the  entire  people  of  the  United  States.  Now  you 
''Osav  at  the  time  when  these  things  took  place,  these  so 
called  American  citizens  were  acting  against  the  Linteii 
States,  and  could  not  after  that  make  reclamation.  Now 
whether  the  case  «)f  the  "La  Ninfa,"  assumiujp;  it  to  l)e 
correctly  decided,  can  have  any  letroactive  erfect,  seems 
to  me  to  be  an  impoi'tant  (piestion. 


(1  nil  (jiiesli'  lis 
"ill,  as  well  ii:i 

loufih  with 

I  am,  tluMi 

3  Ki^'eii  it  ir, 

jiist  made 

esty:— Dues 
nk,  by  11.,. 
B  territmiMl 
',  autlioiity 
because  \vi. 
lority.  lint, 
ill  now.  lie- 
lidravvu  its 
Paris,  and. 
t  the  waters 


'Sty:— No,  it 

eir  position, 

hervvise  tlu' 

11  arguiiii-nt 

Tlie   Palis 

)t   have  ox- 

hor  nations. 

lusive  jniis- 

ates  (li(l  not 

1(1    not  liavt> 

lid  not  liave 

wn  citizens. 

lilted  States 

they    havo 

ion,  even  if 

-  and   ask 

hoiii  (ireal 

All    that  1 

the  iNintli 

lit  that  the 

the  United 

esty:--'riiey 

at  is  where 
tiie  Court 

States:     It 

Mr.  iiei(|ue 
our  position 
•tiii^  lias  in 

Sea  \\a^  liy 
;tates.  Tho 
it  what  was 
f  tliat  sort, 
Xow  yon 
tiiese  so- 

the  United 
.tion.  Now 
iig  it  to  lie 

ffect.  seems 


043 

(Mr.  Dickinson's  Closing  Argnment.) 

Mr.  Dickinson: — The  award  upon  which  they  rest  their 
opinion  was  made  three  years  before  this  Convention  was 
formed,  in  which  Convention  it  is  provided  that  the  ques- 
tion of  citizenship  is  to  be  raised,  and  under  which  Con- 
vention it  is  expressly  provided  that  no  reclamation  can 
be  had  except  for  persons  in  whose  behalf  Great  Britain 
is  entitled  to  claim  compensation,  and  I  have  endeavored 
10  to  show  as  well  as  I  could  by  the  rules  of  International 
Law,  that  no  nation  can  make  reclamation  for  persons 
under  allegiance  to  another  power  for  injuries  suffered  in 
violation  of  that  allegiance. 

Claims  fok  Great  Britain  as  a  Nation. 

I  have  not  been  al)le  to  learn  just  what  position  my 
learned  friends  now  take  as  to  there  being  any  claims  here 
for  the  nation  of  Great  Britain.  In  their  brief,  at  page 
20  i;!,  they  claim  to  recover  full  and  complete  compensation 
for  losses  and  injuries  sustained  by  Her  Majesty;  and  by 
all  i)erson3  in  whose  behalf  Great  Britain  is  entitled  to 
claim.     At  page  18  they  make  a  claim  as  follows: 

"  It  is  therefore  siilDinitted  that  the  claims  referred  to  are  all  the 
"  claims  which  hail  been  preaeutett  and  uryed  l>v  (Jroat  Urituiu  prior 
"  to  the  date  of  the  Convention;  and  further,  that  (treat  Britain  is  en- 
"  titled  to  conil)enaation  from  the  United  States  on  ln-r  own  bi-half, 
"  and  on  behalf  of  every  person  vho  was  interested  in  any  of  the  ves- 
"  sets  in  question,  their  cargoes  and  voyage,  either  as  owner,  master, 
"  mate,  member  of  the  crew,  or  otherwise." 

Now,  my  learned  friend,  Mr.  Beique,  says  they  make 
no  claim  for  Great  Britain  as  a  nation.  They  cannot  oc- 
cupy two  positions;  it  is  impossible  to  do  that.  They 
cannot  claim  quoad  individuals  and  (juoad  i\\G  nation,  too. 
If  they  claim  for  persons  for  whom  they  are  entitled  to 
make  reclamation,  as  will  be  seen  under  all  conventions — 
the  Convention  of  is.'siiand  the  Convention  of  1871,  and 
all  other  conventions  that  Great  Britain  has  ever  made — 
where  claims  are  made,  the  right  to  recover  invariably 

40 depends  on  the  political  and  civil  status  of  the  claimant 
for  whom  the  nation  seeks  compensation. 

From  a  cursory  examination  of  the  various  claims  as 
indexed  in  the  two  sets  of  leports  under  the  treaty  of  185;>, 
and  under  the  treaty  of  1871,  and  under  the  French  Con- 
ventions with  Great  Britain,  it  will  bo  seen  that  the  per- 
sonal status  of  the  claimant  is  decisive;  and  there  is  no 
claim  urged  by  the  nation  under  such  conventions  except 
in  behalf  of  a  person;  the  claims  so  urged  by  the  nation, 
in  no  ca.se  under  claim  conventions,  jiartake  of  the  char- 

5oacter  of  national  claims.  They  are  national  claims  only 
ill  the  sense  that  as  they  are  claims  against  the  sover- 
eit^nty  of  another  nation,  they  can  only  be  presented  by 
the  sovereign  of  the  nation.  Of  course  a  private  indi- 
vidual cannot  come  hei'e  and  sue  the  United  States,  nor 
can  a  citizen  of  the  United  States  sue  Her  Majesty  in 
(ireat  Britain.  Thei  e  is  no  court  provided  for  such  claims, 
so  that  it  becomes  a  (juestion  between  the  sovereigns  on  the 
mitterof  the  protection  of  the  citizen.  But  the  nations  go 
to  the  international  court  in  every  case,  precisely  as  if  the 

6oclaiinant  was  the  plaintiff,  and  he  recovers  on  his  personal 
status  (jnoad  the  nations.  The  figure  that  the  nation  cuts 
is,  the  sovereignty  protecting  the  claimant,  but  the  claim- 
ant stands  and  the  nation  for  him  stands,  in  inesenting 
his  claim,  precisely  in  the  position  where  the  claimant  has 
put  or  left  himself.     Of  course  a  claim  like  that  recovered 


'1.  ! 


51   !■: 


944 

(Mr.  Dickinson's  Closing  Argument.) 

from  China  of  $;?,()00,0o(»,  although  for  damages  m 
British  subjects,  was  not  under  any  claims  conventiiiii, 
but  Great  Britain  in  behalf  of  her  sul)jects  who  h,,,! 
suffered,  demanded  repa'ation  for  them,  and  she  ^ot 
it  through  diplomatic  not  judicial  methods,  in  a  luriip 
sum  without  going  to  assessment  befoie  commis- 
sioners; and  the  decision  of  the  municipal  court  on  the 

lodistribution  after  payment  was,  that  this  money  was 
in  the  hands  of  the  sovereign,  and  that  tlicii'. 
fore  no  private  person  couM  bring  suit  aj;aiiist 
it.  But  for  an  illustration  of  the  class  of  cases 
showing  that  a  claim  must  depend  upon  the  personal 
status  of  the  claimant,  I  do  not  know  of  any  more  apt 
illustration  than  in  the  case  of  the  "  Drummond  "  under 
the  Frencli  convention.  Of  course,  the  cases  cited  sIkiw 
that  these  are  national  claims,  in  the  sense  that  the  nation 
can  present  them,  and  not  claims  of  the  nation  against 

20  the  other  country.  I  cite  the  doctrine  in  my  brief  fioin 
2  Wharton's  Digest,  Section  214,  et  seq.,  and  it2  United 
States  Report.s,  |)age  520. 

I  have  now  discus.sed  the  (piestion  of  United  States 
citizenship  and  nationality  as  fully  as  I  care  to. 

Nationamty  of  Ships  tested  by  Owxehship. 

I  proceed,  in  ordei-  to  call  your  Honors'  attention,  to  the 
American  printed  argument,  commencing  at  pages  t!>s  and 

3071,  on  our  position  as  to  ships,  that  "nationality  follows 
owner.ship." 

Notwithstanding  the  provision  of  the  treaty  that  cit- 
izenship may  be  inquired  into,  and  that  the  right  to  re- 
cover depends  upon  the  status  of  the  claimant,  our 
learned  friends  contend  that  the  question  is  concluded, 
and  that  these  are  British  claims.  In  other  words,  they 
plant  themselves  under  the  third  and  rejected  draft  of  the 
convention  now  on  your  desks,  where  it  was  jjroposed  to 
put  in  the  first  article,  that  Great  Britain  might  recover 

40 all  British  claims  and  all  claims. 

By  Article  s  of  the  Treaty  of  1892.  it  is  provided  that 
the  chief  dispute,  so  far  as  the  nations  were  concemtil. 
should  he  settled  in  oneway,  by  the  tribunal  of  arhitia- 
tion,  and  that  the  n)atter  of  claims  of  the  citizens  of 
either  nation  should  be  left  to  futnre  negotiation. 

The  only  way  that  the  woids  "  national  claims '"got  into 
the  treaty,  was  because  it  was  necessary  to  name  them  as 
the  crossclaims  of  the  United  States,  the  United  States  as 
a  nation  making  the  claim  back  on  (Jreat  Britain,  as  a 

50  nation,  for  maintaining  the  right  of  her  subjects  to  fish 
or  to  kill  seals  in  Bering  Sea.  But,  on  the  (piestioii  of 
citizensliip,  Article  S  of  the  Treatj^  of  lH!t2  provided 
that  matters  relating  to  the  injuries  snffered  by  tlie 
citizens  of  either  nation  in  connection  with  the  claims 
presented  and  urged  by  it.  should  not  longer  dtlay 
the  decision  and  determination  of  the  main  questions,  and 
that  certain  questions  of  fact  with  reference  to  daniago 
claims  should  bo  presented  as  to  the  claims  of  the  citizens 
of  either  nation.     Then,  this  Convention  of  IHIMI  in  itstirst 

^•o  preamble  refers  to  the  rights  of  the  citizens  and  sul)jeits 
of  either  country  as  regards  the  taking  ot  seals;  ami  tiie 
second  preamble  refers  to  the  injuries  alleged  to  have  been 
sustained  by  the  other  nation — referring  of  conrse  to  the 
national  claims  ol'  the  United  States  against  Great  Britain, 
"or  by  its  citizens  ■'  in  connection  with   the  claims  jiie 


it45 


(Mr.  Dickinson's  Closing  Argument.) 

sented  and  urged  by  it.  But  by  Article  S  of  tbe  Treaty  of 
IS'.ti',  eitber  party  might  submit  to  tbe  Paris  Tribunal  cer- 
tain questions  of  fact  for  the  purpose  of  the  claims  of 
citizens.  Of  course,  tiiese  are  claims  of  persons  and  turn 
(in  their  status  as  shown  by  every  section  of  tbe  act.  For 
mstance,  Article  «  of  tiiis  Convention,  as  to  what  shall  be 
done  at  the  end  of  your  Honors'  judgment,  says: 

'*-'  "  The  amount  awarded  to  (Ireat  Britain  under  tliis  Convention  on 
•account  of  <iiii/ vlnimim/  Hball  1h«  paid  l\v  the  Oovornnient  of  the 
■'  United  States  to  tlie  CSovernnient  of  Her'lJritaunic  Majesty  within 
"  six  months  after  the  amount  thereof  shall  have  been  tinallv  asoer- 
"tained." 

I  rail  your  Honors'  attention  to  the  words  "any  claim- 
ant." And  then  the  Convention  provides  for  a  separate 
tiiiding  in  "each  case."  Of  course,  as  your  Honors 
have  seen,  by  the  provisions  of  the  various  drafts  of  tbe 
Treaty,  the  claims  must  depend  upon  injuiies  sus- 
^°tained  by  persons  who  are  tlie  claimants,  and  must  be 
so  under  Aitiile  I.,  of  the  Convention  by  express  intent. 

The  question  of  citizenship,  my  learned  friends  say, 
is  concluded  against  us  anyway,  notwithstanding  that 
we  find  a  provision  in  tiie  Treaty  that  it  shall  be  ex- 
amined into.  But  we  find  that  this  clause  was  inserted 
in  tbe  course  of  a  discussion  in  whicli  the  present  Lord 
Cliiif  Justice  of  England  said  that  l.e  prepared  the  find- 
ings of  fact,  including  everything  of  tbe  findings  of  facts 
as  now  found  in  the  award  of  the  Paris  Tribunal.  He 
3*^ St)  states  to  the  President  of  the  arbitration  as  shown  in 
i;<  American  Beprint,  page  ft.").  At  page  48  of  the  same 
collo(iuy  Sir  Charles  Hussell  says: 

"  The  finding  that  the  vessels,  the  names  of  which  appear  in  the 
•'  case,  hove  been  seized  and  seized  while  exercising  a  le(?al  right 
"  would  not  conclude  the  liability  of  the  United  Htiites  to  pay  if, 
"  for  instance,  it  turned  out  that  some  of  those  vessels  wer(!  owned  l)y 
'■  citizens  of  the  United  States  and  sul)iect  to  the  laws  of  the  United 
•■States." 

And  again,  at  page  54,  this  appears  in  tbe  colloquy  be- 
'*'^tween  the  learned  arbitrator,  Mr.  Justice  Harlan,  and  Sir 
Charles  Kussell: 

"  Mr.  Justice  Harlan  (one  of  the  arbitrators)  :  What,  then,  is  left 
"  for  future  negotiation  ? 

"  Sir  Charles  Uussell  :  The  question  of  amount. 

"  Mr.  .Justice  Harlan  :  Only  of  amouut '? 

"  Sir  Charles  Kussell  :  The  nuestion  of  amount,  and  a  little  more 
••  thau  amouut  ;  a  question  of  amo\int,  speaking  of  the  matter  in 
••  ;rross  ;  a  (luestiou  of  lial)ility  as  regards  items  of  that  amouut  ,  as, 
••  fur  instance,  the  ([uestiou  of  whether  the  claimants  j)ut  forward  are 
■  (>utitlcd  to  claim — whether  they  are  United  States  citizens." 
5° 

Mv  learned   friends  in  their  print»'d  reply  and  orally, 

have  taken  exception  to  the  statement  I  made  in  constru- 
JMj^  this  award,  when  I  cited  the  undoubted  rule:  that 
will  n  a  treaty  or  international  document  came  up  for  con- 
siileiation,  tlie  construction  should  he  taken  mostsliongly 
aj^amst  the  nation  drafting  it.  And  both  in  their  oral 
argument  and  in  their  printed  reply  my  learned  friends 
make  this  conunent  upon  the  statement  I  hail  made  to  the 
etVoit  that  the  findings  which  I  have  sought  to  construe 
fcwere  drawn  by  Her  Majesty's  Counsel. 

At  page  4  of  their  reply,  my  loaiiied  friends  say: 

•  It  is  attempted  (p.  'ity)  to  make  a  point  touching  the  construction 
•■  of  the  Claims  Commission  by  insisting  that  Her  Majesty's  govern- 
"  Mirnt  prepared  eveiy  word  and  line  of  the  tindings  of  fact  of  the 
■•  I'liris  Tribunal,  and'  in  that  cimnection  reference  is  made  to  Proto- 


>  > 


U4(( 


't 


P 


'rUi' 


10 


(Mr.  Dickinson's  Closing  Aigunient.) 

"  col  XLL,  Paris  CoinmiaHion,  Vol.  I.,  U.  8.,  paj^e  43.  Tn  '//.</„,„  ,  /■ 
"  t/ii.i  it  is  only  necessary  to  look  at  Protocols  on  pajijes  33  aiiii  :',H, 
"  Vol.  I.,  U.  a.,  Paris  Commission,  from  which  it  will  i)e  seen  that  the 
"  proposed  finding  at  poRe  43  was  simjily  a  consolidation  of  tlio  pro. 
"  posals  made  on  behalf  of  the  United  States  and  Her  Miijistv 
"  respectively." 

Note  the  words,  your  Honors,  '"To  dispose  of  till^." 
Our  learned  friends  continue: 

"  It  is  only  necessary  to  look  at  Protocols  on  pages  33  and  38.  Vnl. 
"  I.,  U.  S.,  Paris  Commission,  from  which  it  will  bo  seen  that  the  jivn- 
"  posed  finding  at  page  43  was  simply  a  consolidation  of  the  luo- 
"  i)osals  made  on  behalf  of  the  United  States  and  Her  Mojesfv  v,: 
"  spectively." 

Now,  it  is  not  so  simple  to  look  at  that  and  to  tiiul  tlmt 
that  .'Statement  is  so.  Bear  in  mind  that  the  point  I  was 
makin'T  is:  that  Her  Majesty's  counsel  prepared  evciv 
word  and  every  line  of  tlie  findings,  and  therefore  that  iln' 
2o ordinary  canon  of  construction  must  apply:  tiiat  on  .niv 
question  of  douht  as  to  the  construction,  the  constrm  tiuii 
is  to  he  taken  most  strongly  against  the  govermnent  pic- 
paring  it.  I  have  cited  a  numlter  of  authorities  under  that 
head  in  our  printed  brief.  This  statement  of  fact  of  nms 
is  challenged  hy  our  learned  friends  the  counsel  for  Her 
Majesty.  Now,  the  protocol  shows  precisely  what  1  have 
stated  in  my  hrief,  on  the  question  whether  Her  Majesty's 
Government  prepared  those  findings  of  facts. 

Such  startlmg  contradictions  of  my  statements  as  tlKsc, 
30  and  there  are  many,  deserve  grave  consideration. 

1  call  your  Honors'  attention  to  the  convention  itself. 

Article  8  of  the  old  treaty  provided  that  either  govmi- 
nient  might  submit  findings  of  fact,  and  the  ;kl  preaiuliit: 
of  this  convention  of  1896  states: 

"  And,  whereas,  tin'  ttgent  of  Oreat  Brildiu  iHd,  in  nccnrdmico  iriili  il,g 
"  prorisiiiiis  of  siiiil  Article  VIII.,  mi/imil  la  llif  Irilniiinl  of  iirliiir^ili.-m 
"  cfi-l'iiii  n'liiliiiijs  (if  ficl  which  were  agreed  to.  as  i)roved  by  the  ivscnt 
"  of  the  United  States,  and  the  arbitrators  did  unanimously  tiuil  tiie 
"  facts  so  set  forth  to  be  true,  as  appears  by  the  award  of  "the  tiilm- 


40 


"nal." 


They  were  therefi)re  prepared  by  the  agent  of  (iiuat 
Britain.  The  question  is  not  whether  the  United  States 
agreed  to  them,  hut  the  question  is  who  pre])ared  tliem. 
They  were  prepared  by  the  agent  of  (rreat  Britain  mnier 
his  own  hand,  and  there  was  no  merger  of  two  drafts. 
Again,  the  statement  being  challenged  that  they  were  so 
piepared,  or,  that  the  canon  of  construction  refeiied  to 
would  apply,  I  call  >our  Honors'  attention  to  the  Finding 
itself.  Under  the  convention  of  18!»2,  let  us  see  who  pre- 
^° pared  the  findings  and  whose  language  is  used.  Article  8 
providing  that  either  party  might  submit  to  the  arbitra- 
tion questions  of  fact,  we  now  come  to  the  award  of  tlio 
tribunal,  and  we  find  embodied  in  the  award  the  follow- 
ing: 

■'  Whereas  the  Oovorument  of  Her  Britannic  Majesty  did  suliiiiit  to 
"  the  tribunal  of  arbitration  by  Article  VIII.  of  the  said  treaty  cortaiu 
"  questions  of  fact  involved  in  the  claims  referred  to  in  the  said 
"  Article  VIII.,  and  did  also  submit  to  us,  the  said  trll)unai,  a  statc- 
"  ment  of  the  said  facts  as  follows,  that  is  to  say:  Jiiutingn  of  fud  /./■«- 
do  "  jiosr'l  hy  l/ic  itrji'iil  of  Grcul  Urilidii." 

Mr.  Petei's: — And  agreed  to. 

Mr.  Dickinson:— Agreed  to  as  prepared.  Of  roiii.sc 
every  treaty  is  agreed  to  by  the  parties  to  it,  else  no  (jiies- 
tion  of  juridical  constructiou  could  over  arise,     it  ikmi 


947 

(Mr.  Dickinson's  Closing  Argument.) 

comes  up  for  construction  until  it  is  a  treaty.  Tlie  ques- 
tion here  is,  who  prepared  the  language  which  is  referred 
to?    And  the  last  clause  says: 

"  And  the  fjoverninent  of  Her  Britannic  Majesty  did  ask  the  said 
"  arbitrators  to  And  the  said  facts  as  set  forth  in  the  said  statement." 

That,  your  Honors,  is  in  the  finding  itself.  Therefore, 
III  your  Honors,  I  think  it  may  be  taken  as  concluded,  even 
without  going  into  the  protocol  or  reading  tlie  btatoment 
of  Sir  Charles  Russell,  who  said  that  he  did  prepare  the 
findings— it  may  betaken  as  concluded,  I  say,  that  l)y  the 
treaty  and  Convention  themselves  it  appears  that  Great 
Britain  prepared  the  findings  of  fact-'. 

Now,  after  this  diversion,  we  take  up  the  question  of 
the  nationality  of  tiie  ships. 
My  learned  friends  say  in  their  argimient,   and  they 
20  vigorously  contend  at  page  39,  and  line  30  of  their  brief : 

"  Under  no  principle  known  to  the  law  of  nations  can  it  be  open  to 
"  the  United  States  in  time  of  peace  to  go  behind  the  flag  or  register." 

I  have  fully  discussed  the  position  taken  by  the  learned 
counsel  upon  the  "right  of  search"  matter  and  the  case 
of  the  "Virginius."  We  have  maintained  at  all  times 
that  this  question  between  the  nations,  the  matter  of  tlie 
invasion  of  the  dignity  of  the  nation,  or  the  infraction  of 
tlie  sovereignty  by  invading  territory  or  the  deck  under 

30  the  flag,  had  nothing  to  do  with  the  question  wliere  it 
comes  before  a  tribunal  to  pass  upon  claims  dependent 
upon  the  status  of  the  claimant;  wliere  the  convention 
provides  that  the  persons  must  be  persons  under  the  pro- 
tection of  one  Government  or  the  other.  But,  as  an 
academic  question,  I  have  discussed  that  matter  quite 
fully,  and  it  appears  that  even  as  between  nations  where 
tiie  great  question  of  sovereign  dignity  is  involved,  even 
as  between  nations,  the  flag  is  not  conclusive  evidence, 
but  ot\ly  prima  facie  evidence  of  a  nationality. 

40  We  have  passed  that  (juestion,  however,  when  we  enter 
an  international  court,  which  is  to  inquire  whether  the 
persons  who  claim  to  own,  and  who  ask  damages  from 
the  United  States,  are  pei-sons  for  whom  Great  Britain  is 
entitled  to  make  reclamation.  Uf  course,  the  question  of 
tiie  right  to  invade  ships  in  time  of  peace  had  been  dis- 
cussed largely  under  the  controversy  growing  out  of  the 
abolition  of  the  slave  trade.  And  I  have  but  one  other 
authority  to  add  to  what  I  said  in  the  '*  Virginius  "  case  in 
tiie  discussion  the  other  day.     It  may  be  interesting  to 

50  show  the  conclusions  and  tiie  effect  upon  International 
law  of  that  "Virginius"  case  in  general,  by  referring  to 
Hall's  International  Law.  I,  therefoie.  call  your  Honors' 
iitlention  to  the  case  of  the  "  Virginius,"  as  treated  by 
Hall  in  the  relation  of  this  case  to  International  law. 
And  I  point  out  to  your  Honors  that  it  has  no 
ri'levancy  to  the  question  here,  as  it  was  a  question 
solely  between  the  nations,  and  was  not  at  all  involving 
nglits  of  individuals.  From  Hall  on  International  Law, 
commencing  at  page  287,  it  appears,  as  your  Honors  will 

60 see,  that  the  reclamation  enforced  by  the  United  States 
tor  individuals,  as  clearly  deliminated  by  Hall,  was  for 
tlic  treatment  of  citizens  of  the  United  States,  or  persons 
within  our  protection,  in  violation  of  the  rules  of  war, 
(ifh'r  Ihei)  hunkd  011  Cuban  soil,  and  it  was  not  at  all  for 
the  seizure  of  the  vessel. 


I'^l 


Mm 


,.!1    !   ! 


!»4R 

(Mr.  Dickinson's  Closing  Argument.) 

Now,  is  it  trne  that  registry  is  conclusive  evidence  nf 
ovvneiship  by  the  rules  of  International  Lavv?  Are  regi«. 
try  and  the  flag  conclusive  evidence?  In  other  words, 
can  a  man  procure  a  British  subject  to  make  oath  that  h. 
owns  a  ship  and  every  interest  in  it  when  he  does  not,  ainl 
so  conclude  the  world?  Can  he,  under  such  ciiw  urn 
stances,  get  a  registry,  raise  the  flag,  and,  as  against  nil 

lothe  world,  have  the  fact  of  that  registry  and  that  Hag  niadr 
a  conclui^ive  evidence  of  ownership?  We  maintain  tlir 
contrary.  And  we  maintain,  fuither.  that  it  is  not  evm 
evidence  in  the  courts  of  (ireat  Britain  under  tlu'irown 
laws,  to  say  nothing  about  an  internationjil  court.  Tlic 
question  of  the  municipal  law  of  (iroat  Bi  itaiii  has  nothing;- 
to  do  with  the  question  here.  But,  your  Honors,  even  in 
the  couits  of  (ireat  Britain  it  is  not  uven  prima  facie  evi 
dence  of  ownership  under  the  statute  itself —  that  i'^,  it  is 
not  prima  facie  evidence  in  fa vor  of  the  party  himself.     As 

20 1  shall  show,  however,  and  it  bears  on  Cooper's  case,  tlu> 
registry  taken  out  by  a  person— not  if  it  is  a  false  registry 
without  his  notice  and  in  fraud  of  him,  but  by  himself 
taken  out  or  with  his  i)rivity — is  conclusive  of  everytliiiii; 
found  in  it  as  against  him  who  takes  it  out  or  by  whose 
piivity  it  is  taken  out.  It  is  not  even  prima  facie  evi- 
dence in  his  fuvor  by  International  Law;  and,  as  1  shall 
show,  it  is  not  even  prima  facie  evidence  under  British 
municipal  law.  I  shall  show  further  that  by  even  British 
nninidpal  law,  and   by    the  regulations  and  instruct  ions 

30  which  registrars  of  shipping  are  compelled  to  giv(!  the 
masteis  of  ships  or  their  owners,  having  all  the  force  of 
statute,  the  British  flag  over  a  ship  is  not  a  protection  to 
a  ship  which  is  not  actually  owned,  and  every  interest  in  it 
owned,  Ity  British  subjects,  whatever  the  registry.  First, 
I  will  take  as  my  postulate  the  statement  of  the  undouliteil 
law  made  by  Her  Majesty's  distinguished  counsel  hefoie 
the  Geneva  Arbitration  as  to  the  effect  of  registry  in  l<'li 
time  of  war  and  in  time  of  peace.  I  refer  your  Hoiiois 
to  the  British  case,  as   piepared  by  the  counsel   of  Her 

40  Majesty  before  the  (xeneva  Arbitration,  at  page  "!•  of 
the  "British  Case  and  Evidence"  of  that  printed 
liecord.  I  have  quoted  it  in  full  in  my  brief,  at  page  7;i, 
and  I  have  quoted  it  accurately  (reads  from  the  original 
as  cited). 

Furthermore,  as  is  usual  with  anything  stated  by  Her 
Majesty's  eminent  coun.sel  before  that  tjibuual  in  respect 
of  the  "Alabama'"  claims— except  questions  involving  the 
liability  of  tireat  Britain,  or  as  to  a  point  never  before  de- 
cided by  an  international  court  — it  is  a  conclusive  and  a 

50  fair  exposition  of  the  lavv  as  to  which  research  was  re- 

3uired  by  the  arbitrators.  On  the  subject  of  interest  and 
amages,  on  the  subject  of  prospective  catch,  on  the  sub- 
ject of  gross  fieigbts  and  on  the  subject  of  the  ett'ect  of 
the  registry  or  the  status  of  British  shipping  on  the  high 
seas,  it  has  been  found  impossible,  and  it  is  impo.ssible  to 
find  any  flaw  in  the  statement  of  the  position  of  the  Brit- 
ish counsel  before  the  Geneva  Arbitration.  This  is  tiie 
statement: 

60  "  Tlie  effect  of  registtrv  is  to  entitle  the  ship  to  use  tlie  nritisli  tliig 
"  and  asHuiue  tlic  Britiwli  national  character.  The  couilitious  iiecps- 
"  Harv  for  ot)taining  registry,  in  the  case  of  a  ship  not  alreaily  refris- 
"  tered,  are  the  prodiictiou  ♦o  the  registrar  of  a  certificate  In-  the 
"  huilder,  in  a  form  prescriVwHl  by  law,  and  of  a  declaration  (uIhd  iu 
"  a  prescribed  form)  OkiI  lla-  ship  is  British  ownrd." 


""P 


10 


J»4(» 

(Mr.  DiL-kiiison's  Closing  Argument.") 

Your  Honors  must  bear  tliat  declaration  in  mind,  And 
now  as  to  the  effect  of  the  declaiation  and  registry: 

"  It  18  not  the  duty  of  the  registrar  to  question  or  ascertain  the  ao- 
"  curacy  of  either  the  buihler's  certificate  or  the  declaration  of  owner- 
"  ship.  As  a  ministerial  officer,  he  is  bound  to  accept  them  if  tendered 
"  to  him. 

"  For  false  statements  in  the  certificate  the  builder  is  liable  to  a 
"  penalty,  and  for  makiuK  a  willfully  false  declaration  the  owner  is 
"  liable  to  be  indicted  for  a  uiisdcmcauor,  and  to  forfeit  his  interest  in 
"  the  ship." 

Tliere  is  no  such  thing  known  under  English  law  as  the 
forfeiture  of  a  ship  for  false  registry  ipso  facto  of  which 
we  have  lieard  so  much  ;  it  takes  a  libel,  hearing,  and 
condemnation  in  regular  course  in  a  plenary  suit: 

"  In    Great    Britain,  as    in    the    United   States,  the  law  does  not 

'•  positively  retjuire  the  registration  of  any  vessel.     15ut  the   disad- 

"  vantagesand  disabilities  incurred  by  omitting  to  procure  it  are  prac- 

2o"tieally  sufficient  to  make  the  registration  of  British-owned  ships 

"  uuive'rsal." 

Yoxi  see,  your  Honors,  she  may  he  a  British  owned 
shi|)  or  an  American  owned  ship  without  registration. 
Now,  here  comes  the  great  question  which  is  before  the 
Commissioners— that  is  the  British  statement  of  it  at 
Geneva,  from  a  British  standpoint— because  the  rule  here 
is  the  rule  of  International  law,  outside  of  the  British 
municipal  law. 

■10  "  The  register,  though  in  ordinary  questions  arising  under  muni- 
'  "  cipal  law  evidence  of  the  title  of  the  person  registered  as  owner,  is 
"  not  conclusive  in  a  question  arising  between  other  parties,  nor  is  it 
"  necessarily  sufficient  proof  of  the  national  character  of  the  ship.  A 
"  transfer  to  a  foreigner,  at  sea,  or  beyond  seas,  of  a  registered  British 
"  ship,  is  sufficient  to  change  its  ownership  and  the  nationality  of  the 
"  vessel,  though  not  followed  by  any  registry.  The  law  of  registry  is 
"  11  part  of  the  law  by  which  British  trade  and  navigation  are  regulated 
"  for  fiscal  and  other  purposes;  and  a  ship  is  registered  as  British  on 
"  the  voluntary  declaration  </  llie  persmi  duiminy  to  be  oteiwr  without 

•'  FUnTHER  PROOF." 

^0    There  is  our  position. 

At  one  o'clock  the  Commissioners  took  recess. 


At   lialf-past  two  o'clock  the  Commissioners  resumed 

tlieir  seats. 


50  Mr.  Dickinson: — Before  proceeding  I  call  your  Honors 
attention  to  that  part  of  the  decision  in  141^  United  States, 
which  your  Honors  called  for. 

The  Commissioner  on  the  part  of  Her  Majesty:— Do  you 
iiieaii  the  Cooper  case? 

Mr.  Dickinson:  -Yes,  sir;  in  connection  with  the  "La 
Niiifa  "  case;  and  in  that  connection  1  desire  to  call  atten- 
tion to  the  error  of  the  judgment  in  the  "  La  Ninfa"case  in 
two  respects.  Y^our  Honors  will  see  that  in  the  "La  Ninfa  " 
(Msc,  after  citing  the  statemt nts  of  Senator  Sherman,  at 

60j);ir;t>  4157,  iu  debate,  in  tine  print,  in  the  second  paragraph 
liclow,  the  District  Judge  goes  on  to  say  that  the  Supreme 
t'dint  there  held  that  the  question  was  a  political  one,  in 
wliich  the  L'nited  States  had  asserted  a  doctrine  in  oppo- 
sition to  the  views  contended  for  by  the  petitionor,  and 
thai  the  negotiations  were  then  pending  in  relation  to  the 


'I     "   w 


960 


&''■»  ■ 


11 


!' 


(Mr.  Dickinson's  Closing  Argument.) 

paitirnliir  .subject.  Now  tlie  Supienu;  Court  diil  not  il. 
cido  tli»'  case  on  that  ground  at  all,  as  a  lefcionct;  to  tin. 
CoopiT  cas*'  will  show.  Fuitlifirjiore,  I  call  youi-  Hoikh' ' 
attention  to  the  means  used  tor  the  construction  of  Si  r. 
tion  i!>r>t>  in  the  "  La  Is'infa"  case,  lefening  to  the  (IcIkiIi  s 
and  proceedings  in  Congress  to  get  at  the  coMstruction  ,n 
to  whether  it  was  intencled  to  extend  it  over  the  wateis  (.f 

10  Bering  Sea  heyond  tl)e  three  mile  limit.  As  a  matter  nf 
fact,  the  Court  in  the  Coo|u'r  case  expressly  sjiys  of  ih,. 
quef«tioii  on  which  the  learned  Judge  intlu!"  l<a  Ninra"'(;isi. 
says  it,  was  decided,  tiiat  "  we  need  not  go  I'aither  in  this 
"direction,  as  our  decision  rests  upon  narrower  grouml^, 
"and  we  have  been  led  into  these  observations  hecaiise, 
"  where  iui  application  is  made  to  stay  the  enforcement 
"  of  a  decree  three  years  nftev  its  rendition,  and  aflcr 
"  tiie  pendency  of  an  n|»peal  therefrom  for  the  same  lenylh 
"of  time,  wo  do  not  regard  the  Court  as  constrained  in 

20"'  intervene  in  this  way,  unless,  perhaps,  upon  an  irre^i^t 
"  able  case  and  ade(iuate  reason  shown  for  the  delay  ";  ami 
finally  rested  the  judgment  as  delivered  upon  the  niher 
groiuid  that  Coopei'  was  l)ound  to  jiresent  bis  appeal. 
But  as  to  what  they  say,  so  far  as  they  do  refer  to  tli(> 
question,  without  going  into  the  debates  in  Congress,  which 
they  expressly  refuse  to  do,  they  review  the  various  .\(  Is 
of  Congress  in  older  to  arrive  at  the  intent  of  the  le;;is- 
lature,  and  cite  the  legislation,  including  Sections  llL^d 
and  the  Act  of  March  2,  IHS'.t,  as  evidencing  the  intenfion 

3oof  Congress  in  passing  Section  lit")!!;  and  they  fuithcr 
cite,  and  we  submit  it  is  conclusive  upon  tlie  question  of 
jui  isdiclion,  irrespective  of  nuuiici|)al  law,  after  citing  tlie 
Act  which  confers  jurisdiction  upon  the  Alaska  Coiut  in 
oi'gauizing  the  Alaska  territory.  Section  I'M  of  the  Re 
vised  Statutes,  as  follows:  "  I'loceedings  of  seizuics.  for 
"  forfeiture  under  any  law  of  the  United  States,  m.ule  on 
"  the  high  seas,  may  ho  prosecuted  in  any  district  into 
"  which  the  property  so  seized  is  brought  and  proceed- 
"  ings  instituted  "--that  is  a  seizure  on  the  high  seas  ami 

40outside  of  the*  exclusive  jurisdiction  of  the  Court  "ami 
"  jiroceedings  on  such  seizures  made  within  anydistiid 
"  shall  be  prosecuted  in  the  district  where  the  seizure  is 
"  made,  except  in  cases  which  it  is  otherwise  provided." 

Thus  the  jurisdiction  of  the  Alaska  Kedei'al  Conit,  hy 
the  express  finding  of  the  Paris  award,  by  the  decision  of 
the  Supreme  Court  in  the  Cooper  case,  was  held  to  lie 
clear  in  this,  that  it  was  a  court  of  general  jurisdiction  in 
respect  of  seizures  under  Federal  Statutes  and  prosemi- 
tions,  generally;  that  it   had   juri.sdictiou  to   prosecute  a 

5oseizure  for  violation  of  the  laws  of  the  United  States,  ami 
where  the  seizure  was  claimed  to  bavo  have  been  niadu 
on  the  high  .seas,  that  its  jurisdiction,  unassailable  col- 
laterally, turned  upon  whether  the  res  was  brought  into 
that  jurisdiction  for  adjudication. 

Then  in  the  Cooper  case  the  Court  proceeds  to  consider 
R.  S.,  See.  5tiH,  as  regards  the  Court  of  Alaska  in  that 
connection,  and  ])roceeds  to  levievv  the  authorities  cited 
on  the  other  side,  citing  Chief  Justice  Marshall  to  this 
point  in  the  case  of  lattle  r.  Barreme   that   "it  is  liy  no 

6o  "  means  clear  that  the  President  of  the  United  States, 
"  whose  high  duty  it  is  to  '  take  care  that  the  laws  hu 
"  '  faithfully  executed,'  might  not,  without  any  special 
"  authority  for  that  purpose,  in  the  then  existing  stati; 
"  of  things,  have  empowered  the  officers  commanding 
"  the  armed  vessels  of  the  United  States  to  seize  and 


Ml 


(lid  not  il<  ' 

t;ll('(!    t(l    tllr 

(ilir  Mdiihi' ' 
;tioii  of  Si  I  . 
1  tilt'  (lt'li:itis 
struct  ion  !H 
he  wiitt'is  (if 
i  a  iniittcr  df 
siiys  of  till' 
I  Niiifa"<"i-<(' 
iitliei-  ill  tliis 
Avv  groiiiiils, 
ioiiH  l)tn;aiisf, 
(,'iif'orct'mrnt 
111,  ami  aflir 
>  same  icii.^tli 
nistraiiu'ij  in 
111  an  irn.'si^I 
'  (It'lay  ";  ami 
on  the  otlitT 
it  iiis  aiiiical 
)  refer  to  I  he 
ngiess,  whicii 
various  Aits 
of  the   h-is- 
Sections    luriH 
:  the  iiiteiitiiiii 
tliey    fiiitluT 
lU  quest  ion  nf 
ifter  eitiiij;  till' 
iiska  Conrt  in 
\U  of   the  l;.'- 
seizures,  fm' 
ites.  inaiif  mi 
district  inlii 
and  |ir<Hci'il 
igh   seas  ami 
Court   -"aiKl 
any  distiict 
the  sei/uir  i-; 
;o  provided. " 
ral  Court,  liy 
k;  (leeisioii  nf 
held    to   111' 
nrisdictioii  in 
iiid    prosHcu- 
o    prosecute  a 
-ed  States,  ami 
fet  been   iiiadu 
.assailaliK'  col- 
hrouglit  into 

ds  to  consiilcv 
laska  in  tliat 
thorities  citi'd 
rirshall  to  this 
"  it  is  hy  no 
United  Stat.'s, 
It  the  laws  lie 
it  any  special 
existing  slate 
coinmaiiiliiig 
to   seize  and 


(Mr.  Dickinson's  Closing  Argument.) 

"  send  into  port  for  adjudication  American  vessels  wiiich 
"  were  forfeited  whilu  being  engaged  in  this  illicit  com- 
"  inerce."     It  als«)  reviews  the  case  of  the  United  States 
against  Hanscher,  reconciles  it  to  the  conteiilion  liere  as 
against  the  position  to  which   it  is  cited  by  Mr.  Clioate, 
and  concludes  against  the  adverse  contention  which  was 
that  the  act  dul  not  extend  the  jurisdiction  beyond  the 
lothne-milo   limit,  as  follows;     "To   this  amendment  the 
"  Senate  disagreed,  and  the  section,  as  it  now  stands,  was 
"  the  result  of  a  coiiferenc**  between  the  two  houses.     If 
"  reference  could  be  nroperly  made  to  such  matters,"  that 
is,  to  the  reports  of  tlie  committees  and  the  debates  of  the 
two  houses—"  still  we  do  not  concur  in  the  vi   w  that  it 
"  follows  that  Congress  thereby  expressly  invited  theJudi- 
"  cial  branch  of  the  (iovernmeiit  to  determint!  what  are 
"  •  the  limits  of  Alaska  territory  and  tht>  waters  thereof,' 
"  and  what  is  '  the  dominion  of  the  United  States  in  the 
20"  waters  of  Hehring  Sea,' and  think,  on  tiie  contrary,  that 
"  there  is  much  forcf  in  the  position  that,  whatever  the 
"'  reason    for    the   conservative    course   i)uisued    by    the 
"  Senate,  the  enactment  of  this  section,  with  full  knowl- 
'■  edge  of   the  executive  action  already  had  and  of   the 
"  diplomatic  situation,  justified  the  President  in  the  con- 
"  elusion  that  it  was  his  duty,  under  Section  III.,  to  .adhere 
"  to  the  construction  already  insisted  upon,  as  to  the  ex- 
"  tent  of  the  dominion  of  the  United  States,  and  to  con- 
"  tinue  to  act  accordingly." 
30     In  order  to  get  at  the  construction,  in  further  review  of 
the  "La  Ninfa  case,"  where  the  Courtarrivesat  a  c   nstruc- 
tiou  by  the  aid  of  tlie  debates  in  Congress,  which  the  Su- 
preme Court  refused  to  do  in  the  Coojier  case,  let  me  show 
how  out  of  line  the  learned  Judge   is  with  the  rulings  of 
the  Supreme  Court  of  the  United  States  in  repeated  adju- 
dications.    I  refer  to  the  decision   of  the  United  States 
Supreme  Court  in  the  Freight  Association  case,  It'.O  U.  S., 
31S,  for  the  renewed  statement  of  its  repeated  judgment, 
that   under   no  circumstances,  and  not  for  any  purposes 
40 could  debates  in  Congress  be   referred  to  for  the  purpose 
of  arriving  at  a  construction  of  an  Act  of  Congress:   "  De- 
•'  bates  in  Congress   are  not   appropriate    sources  of  in- 
"  formation  from  which  to  discover  the  meaning  of  the 
"  language  of  a  stacuto  ])assed  hv  that  hodv,   citing  91 
"  U.  S..  72,  TO;  Aldiidge  i'.  Williams,  3  How.,  it",  l'4,  Taney, 
"  Chief    Justice;    Mitchell    r.    Great    Works    Milling  & 
"  Manufacturing  Company,   2  Storv.  ()4S,  CaiJ;  Queen   v. 
•'  Hertford  College,  3  g.  B.  D.,  f)!»3,"7or." 
This  doctrine  was  again  stated  in  a  case  which  I  argued 
■ioiii  the  Supreme  Court  of  the  United  States,  involving  the 
construction  of  the  homestead  laws  of  the  United  States 
and  of  the  forfeiture  of  a  grant  by  Congress,  where  it  was 
attempted   to   be   shown  by  Judge  Dillon,  the  author  of 
"  Dillon  on  Municipal  Corporations,"  and  one  of  the  most 
distinguished  jurists  of  the  country,  that  Congress  did  not 
intend   to  forfeit  the  land  grant  of  certain  corporations, 
by  the  debates  that   that  was   the   reason   why  certain 
clauses  were  put  in.     I  contended  that,  by  the  uniform 
decisions  of  the  Supreme  Court  of  the  United  States,  from 
60 the  earliest  judgments  on  construction,  the  debates  in 
Congress  could  not  be  referred  to,  and  I  cited  not  only 
these  authorities,  but  some  others  bearing  upon  it  from 
circuit  by  members  of  the  Supreme  Court  of  the  United 
Slates,  and  yet  the  learned  Judge  of  the  Ninth  Circuit 
rests  his  construction  upon  certain  debates  in  Congress, 


in 


*.' 


Hi  W 


^h 


968 

(Mr.  DickiiiHon'H  Closing  Argument.) 

and  n'ports  of  nminiitti'cs.  [.astly,  I  call  vdiir  Hdtim-" 
altt-ntiDii  to  tlif  fact  lliat  Judge  llawlcy,  wlm  dclivci.  ,| 
till'  "  I-a  Ninfa"  ju<lgni«'nt,  was  the  JliHtiict  .Indue,  ami 
that  the  liarntd  t'iicnit  Judge  for  the  Ninth  Circuit  is  tl  !■ 
meseut  Attoiuey  (»eneial  of  the  Cnited  States,  Mi-,  Mi 
Kenua.  Ho  was  Circuit  Jiidge  and  sat  in  the  "  La  Niiil;i ' 
case,  and  dissented  from  the  judgment:  Itut  as   1  said  In 

lofore,  the  "  La  Ninfa"  case,  even  if  good  law,  has  nothiiij^ 
to  do  Willi  this  case  Tlu!  right  of  (ireat  Hiitain  to  asscit. 
a  claim  for  damages  incurred  hy  an  American  (iti/eii  lie 
fore  the  Convention  had  heeii  made,  after  the  award  u|i(>n 
which  that  "La  Ninfa"  decision  rests,  and  when  theCdii 
veiition  provides  for  raising  the  (|uestioii  of  citi/.enslii|, 
cannot  ho  maintaineil.  Municipal  law  has  nolhiiig  to  ijn 
with  it.  As  I  contt'uded  yesterday,  and  have  shown  i»y  tlio 
authorities,  the  proclamatiou  of  the  Oueeii,  as  well  as  the 
pioclamatioii  of  the  President  of  the  United  States,  hinds 

20;ill  citizens  wliost)  only  appeal  must  he  to  their  domestic 
courts  or  their  respective  sovereignties. 

The  importance  or  heiiiing  ot  tlie  "La  Ninfa"  case.  \ 
have  not  conceived,  hut  I  have  treated  it  fully,  owing  li. 
an  imprej-sioii  made  hy  it,  an  impression  which  must  I';' 
evanescent. 

1  desire  also,  so  that  it  shall  not  he  said  that  I  jiassed  it 
by,  before  leaving  the  (luestion  of  doiiiicilo  and  jinisdic- 
tioii.  to  recall  to  your  Honors'  minds  the  statement  of  mv 
learned  friend  Sir  C.  H.  Tupper.  that  we  had  no  citi/.rn's 

30 of  the  United  States,  that  they  were  citizens  of  States 
merely;  and,  as  your  Hoiku's  will  reniembei',  he  called  at- 
tention to  the  message  of  President  Cleveland,  saying  that 
our  laws  of  citizenship  were  in  an  unsettled  condition,  and 
therefore  the  ('eduction  to  bo  drawn  was  that,  on  the  (|ii(s- 
tion  of  doiiiicil,  the  domicil  being  always  in  a  State,  us 
citizenship  was  in  a  State,  that  hence  the  authorities  011 
the  question  of  domicil  were  not  pertinent.  Now,  so  lar 
as  the  main  question  is  concerned,  the  history  of  tliediplci 
matic  relations  of  the  two  governments  discloses  that  that 

40 question  has  never  been  raised  at  all;  that  a  doniicilerl  or 
civil  citizen  of  the  United  States  is  sunounded  by  the  pm 
tection  of  the  United  States,  the  same  as  a  [lolitical  citi/en, 
and  that  in  all  the  conventions  the  (jUtjstion  of  doinicij 
has  been  raised  as  of  a  person  domiciled  in  the  I'nilid 
States  without  regard  to  a  State,  which  under  our  svs 
tein  can  have  no  relations  of  comity  or  controversy  with  a 
foreign  nation.  In  the  next  jilace,  owing  to  his  lack  of 
familiarity  with  our  own  laws  and  system,  my  friend  is 
mistaken  when   he  says  of  a  State  that  a  citizen  is  net  a 

SOfitizen  of  the  United  States.  The  Fourteenth  Aiiieiid- 
nient  to  the  Federal  Constitutioi  expressly  i)rovides  lliat 
any  naturalized  person  or  native  born  pei-son  is  a  citi/m 
of  the  United  States,  and  the  ameudment  also  providi's 
that  "  No  State  shall  deprive  (dii/  /lersoii  of  life,  liberty  or 
"  property  without  due  process  of  law,  nor  deny  to  any 
"  person  within  its  jurisdiction  the  equal  prot»'ctioii  of  the 
"  laws,"  thus  asserting  the  power  of  the  Federal  Govern- 
ment to  intervene  in  any  case  for  the  protection  of  a 
citizen  or  a  domiciled   foreigner.     President   Clevelaial's 

6ostate  pajier  referred  wholly  to  a  matter  of  domestic  ditti- 
culty  as  to  the  differentiated  privileges  in  the  States  of  a 
man  who  was  declared  a  citizen,  and  particularly  of  pcr- 
soiis  who  had  merely  declared  their  intentions  to  becoinc 
citizens  and  had  not  taken  out  full  naturalization  pajxrs. 
lu  some  States  tliese  could  vote  and  in  others  could  imt. 


9SH 


(Mr.  Dickinson's  C'loHJiig  Arguiin'iit. ) 

and  it  was  thought  lu'tter  to  have  unifoini  nik'H  in  llic 
Stutes  08  tn  that. 


20 


1  now  icsuino  tlu?  consideration  of  tlif  snlijcct  of  na- 
tionality, and  our  positions  tliat  n.ilionality  follows 
(iwnt'rslii|i,  and  that  the  ifgistry  and  the  tiaji  aii)  not  con- 
elusive.  1  have  cited  authorities,  which  I  shall  not  reail, 
U|)on  my  hrief,  assuiniii!;-  that  the  (,'ouit  will  e.\ainin(> 
them,  referring  only  to  s>uh  as  have  heen  chaileuKcd 
hy  my  learned  frieuils  in  theh'  reply  or  in  their  oral 
argninent.  To  Parsons'  Maritime  Law  I  shall  ^r\\■^^  a  little 
more  exteniled  attention,  jtaiticularly  to  the  Notes  of 
Kuglish  and  American  cases,  The  |)osition  of  the  next 
writer  is  tnat  •"The  law  is  uiuvilling  to  recognize  in  the 
"  fact  of  registration  any  other  etlicieucy  than  that  of 
•'  imparting  certain  privdeges,  or  to  peruiio  th(i  ahstMiiie 
"  of  that  registration  to  have  any  other  etlect  than  merely 
"  to  prevent  those  privileges  from  attaching  to  the  ship." 

I  also  refer  to  Kent,  N'olume  III.,  page  Ut'.,  that  "the 
••  registry  is  not  a  document  required  hy  the  law  of 
"  nations.  The  registry  acts  art*  to  he  considered  as 
"  forms  of  local  or  municipal  institutions  for  purposes  of 
"  public  policy." 

I  do  not  care  what  work  you  take,  Sedgwick  or  any 
other  elementary  work  on  evidence  treating  of  the 
sub.ji'ct  of  ships'  registry,  and  I  understand  that 
30(rreenleaf  on  Kvidence  is  considered  a  standard  work 
ill  (ireat  Britain  as  well  as  in  the  I'liited  States,  though 
(111  some  other  subjects  he  does  philosophize.  I  call  your 
attention  to  Section  4!t4  of  (ireeiileaf,  which  is  not  cited 
ill  my  brief,  as  to  the  etlect  of  registry  -whether  in  time 
of  peace  or  war  is  immaterial,  as  we  will  siiow  that  the 
same  rule  would  apjily,  except  that  conclusiveness  of 
registry  against  the  owner  ill  time  of  war  is  not  held.  I 
((iiote: 

'•  'I'lic  reKwtry  of  a  ship  Ih  not  of  the  nature  of  the  puhlic  or  official 
•  registers  now  under  consideration,  the  entry  not  Ix'inj;  of  any  traus- 
'■  iietion  of  which  tlie  i)ulilie  olHeer  who  makes  tlie  entry  list  is  cnniisaiit, 
"  ,Vf^/'  is  tl  ti  '/oi'ntHi'u/  ri''ftiiri'tt  luf  the  I'ltr  nf  nutH'iia^  its  »'r/*/'''Sv/r»'  r)/*  ///« 
"  sliip'x  iinliiiii'il  chiinu'lfr.  Tlie  rej^istry  acts  are  considered  as  institu- 
"  tions  purely  local  and  inuniei]ial.  for  purposes  of  public  policy.  The 
"  n'ljister,  therefore,  is  not  of  itself  evidence  of  property,  e;cept  so 
"  fur  as  it  is  eontirnied  liy  some  auxiliary  circumstance,  sliowiiif;  that 
"  it  was  made  by  the  authority  or  assent  of  the  person  named  in  it, 
"  and  who  is  sought  to  be  charfi;ed  as  owner.  Without  such  conuect- 
"  ing  proof,  the  register  has  been  held  not  to  lie  even  jiriiii'i  furif  evi- 
"  deuce,  to  charge  a  jierson  as  owner;  and  even  with  such  jiroof,  it  ia 
"  not  conclusive  evidence  of  ownership;  for  an  eipiitable  title  in  one 
j'^  "  person  may  well  consist  with  the  documentary  title  at  the  ('ustom 
"  House  in  another.  Where  the  (piestion  of  ownership  is  merely  in- 
"  cidontal.  the  register  alone  has  been  deemed  sutHcicut  /iriiim  fucif 
"  evidence,  lint  in  farnr  nftlii'  y/cy.sc/;  vldiiniiit/  <ii  iiivwr,  it  in  no  erii/fncf 
'■  'it  all,  In'ing  iiulliini)  ni/i'i'  tlmii  /lis  oirn  ilcvlwdtion." 

I  also  (juote  from  I'arsons'  Maritime  Law,  Vol.  1: 

"And,  in  general,  as  the  law  sini])ly  offers  to  registered  ships  cer- 
"  tain  jirivileges,  which  are  exactly  detined,  it  is  not  willing  to 
"  recognize  in  the  fact  of  registration,  any  other  efficacy  than  that  of 
"  imparting  these  privileges,  or  to  permit  the  absence  of  registration 
6o"ti>  have  any  other  etlect  than  merely  to  prevent  these  privileges 
"  from  attaching  to  the  ship. 

"On  the  other  hand,  registration  is  founded  on  the  oath  of  the 
"  party,  and  is  a  solemn  act  of  the  law,  and  it  is  not  reasonable  to 
"  make  it  wholly  insignificant.  And  an  eminent  judge  in  Knglaud, 
"  lljord  Eldou),  has  intimated  that  the  registry  laws  of  that  country 
''  have,  as  one  of  their  j)urposes,  the  ideutitication  of  property." 


4" 


S:i 


If  I      ■ 


11:4 

(Mr.  Dickinson's  Closing  Arguiiioiit.) 
Also  the  notes  citing  the  English  cases: 

"It  apix'Ui'H  to  be  well  settled  iu  the  English  eouris,  thut  tli.' 
"  rej^ister  is  not  to  1)0  cousiilered'iis  a  public  documeut,  or  reeoid,  hut 
"  a  private  iustnimeut,  and  the  mere  declaration  of  the  party  maL- 
••uigit." 

Then  leaving  the  American  authorities,  at  the  top  ui 
,Q  page  41: 

"It  follows  friiin  this  '•«  /I'li'/r  character  of  the  registry,  that  it  i> 
"  uot  even  /iriiifi  /<ii  ir  evidence  to  charge  those  who  arc  not  slinwn 
"  to  be  parties  to  it.  by  their  own  act  or  asseut,  althongh  their  uiimhh 
"  apjii.'"  upon  its  face." 

That  is  a  nioditication  ot  tiie  British  doctrine,  which  hoMs 
that  tile  alleged  owner  cannot  go  behind  the  legister.  I 
will  read  the  (|Ualitication  below  the  authorities: 

"  Lord  Elleuborough  seemed  to  think  that,  where  no   notice  of  an 

^     "  intent   to  deny  thi>  ownershij)  was  i)rcviously    given,   the    rcgislif 

~     "  might  be /;/•///«'//■"■ /i- evidence  to  cliargi!  several  part  owners,  whin 

"  obtainc<l  on  the  oath  ne  of  them  only,  although  admitting  tliiil. 

"  had  tlie  facts  of  the  ease  been  dittereut.  he  should  have  requncil 

"  stricter  proof.     *     *     * 

"  .Vgainst  the  i)ersou  on  whose  affidavit  it  is  obtained,  the  legist  iv 
"  may  be  evidence  of  the  facts  recited,  l)eiug  his  own  declaration  made 
"  under  the  saueticm  of  an  oath." 

Again,  on  the  same  i>age: 

"  .\s  to  some  of  the  facts  sworn  to.  such  as  the  national  cliaiiutii-  .if 
"  the  ship  at  the  time  of  registry,  we  apprehend  that  tlic  registry  and 
30  "  affidavit  art!  conclusive  against  the  party   nuiking  them,   he  lulnn 
"  estojjped  to  deny  what  he  has  affirmed  under  oath." 

Finally,  at  page  4;>: 

"  But,  by  the  i;rovisions  of  the  British  acts,  as  we  shall  see  hereal'trr. 
"  such  a  I'hauge  of  ownership,  unless  inserted  iu  tln>  registry,  was 
"  null  and  void;  hence,  the  registry  became,  as  against  all  the  wurlil, 
"  emiclusive  evidence  of  the  state  of  the  title  at  any  moment  sulisc- 
"  ipient  ti>  its  execution,  and,  therefurc,  conclusive  against  tlir 
"  existence  of  any  legal  ownership  in  other  persons  at  any  such 
"  time.     *     *     * 

"Lastly,  is  the  rc^gister /)/■////'//</(/.■  evidi'nce  of  cwiierKhip  iu  favnr 
of  iiarties  to  it?  In  Hnglanil  a  i>raetice  of  admitting  it  as  smli 
'  seems,  from  the  language  of  Lord  Ellenliorough.  at  one  time  to  havr 
'  prevailed,  and  at  Nisi  I'rius.  Bayley,  ./. ,  remarked,  in  the  case  nf 
'  Tinkler '•.  Walpole,  x/y./w.-  •This  is  very  dillerent  from  the  case  of 
'  'a  person  pul)liidy  asserting  that  he  is  owner  by  the  act  of  registii- 
'  •  ing  a  vessel  iu  his  ov.ii  name;  that  may  be  /iriiihi /'ncii-  (ividi'iKT  fm- 
'  '  liini  that  he  is  owner,  becausi^  he  thereby  publicly  challenges  all 
'  'persons  that  he  is  so.'  But  Lord  Elleuborough,  in  I'lower  r. 
Young.  deni<'il  that  such  could  be  the  case;  the  registry  aniouiitin« 
'  t()  nothing  more  than  the  declaration  of  the  party,  he  remarked, 
was  clearly  not  admissible  in  his  favor.  .\nd  the  court  were  of  tlir 
Baine  opinion  in  I'irie  r  Anders(Ui.  sn/ir'i.  (iibbs,  ./.,  saying: 
"  '  It  was  stronglv  urgi'd  for  the  defendant,  that,  because  the  title 
"  '  cannot  be  complete  without  the  register,  therefore  the  register  sliall 
"  •  b(>  /iritit'i  fiv  !•■  evidence  (d'  \\w  title;  that  <loeH  not  at  all  follow.  If 
"  '  the  legislature  makes  an  act  necessary  to  complete  a  tith',  it  dm'-i 
"  '  not  thereby  make  that  act  alone  to  be  iiro<d'  (d'  tin'  title;  if  siii  li 
"  •  were  the  law,  a  man  might  make  for  himself  a  title  to  anything  in 
"  '  the  wcirld. 

And  then  it  discusses  the  dictum  <d'  Ravh-y.  .Judge,  :ii 
Nisi  I'rius.  supra,  and  that  wholi!  note  and  tin-  review  el 
the  authorilies  is  of  much  inteiest  on  this  suliject. 
•60  In  (1th  AttoriieytienerarsOpinionsof  the  United  States, 
which  I  have  on  nty  table,  the  jiosiliou  of  the  I'liitel 
States  is  stated  that  the  statutes  do  not  re(|uir(!  a  vessel  In 
be  registered  and   enrolled,  and  if  owned    Ity  a  citizen  id 

the  I'nited  States,  she  i:^  .Vniericin  property  and  [lo.sses I 

of  all  the  general  rights  of  the  properl}  of  an  Aineric.iii 


40 


50 


T" 


iuris,  tliiit  til.' 
,  or  rt'coid,  Imi 
In;  ))arty  iimk- 

t  the  toil  111' 


Htvy,  tlint  it  i> 
lire  not  shinvu 
j^li  their  uiiiii>  . 


,  wliich  lii)lil> 
•  register.  1 
i;s: 

10  notice  of  an 
"11,  the  register 
•t  owners,  wliiii 
lulmittiiitj;  thiil. 

11  have  reiiuiir,! 

ed,  the  iCKi^try 
eehiratiou  m;iil<' 


mal  ehariirter  nf 
tlie  ref^i^try  uii.l 
theiu,   he   IhIhk 


all  see  hereiillir. 

he  veRistrv,  was 
t  all  the  xvorlil, 
iiioiiient  siilise- 
0    at;ainst    0\r 

us    at    auv   sucli 


uerKhip  iu  favcu- 
tiun  it  as  sui'li 
lie  time  to  Imve 

ill  the  ease  "t 
1(1111  the  ease  of 
net  of  ri't;ist<-i- 

-.'  eviili'uei'  I'm- 
y  clialh'iisies  all 
1,    ill    FUiwrr  )■. 

try  aiiiouMliun 
V,  lit!  reiiiarki'il, 
iiirt  weri'  of  Uie 

sayiiif^; 
leeanse   tln'  tilli' 
he  register  shall 
it  all  I'ollow.     If 
(■  II  title,  it  ili"'^ 

hi'  title;  if  siuli 
(•  to  aiivthiiin'  ill 


•.  .Illil^r,  at 
tin'  l-('vii'\V  III 
llijc  I'l. 

.'iiiti'd  Stall'-. 

r     Ihl.'    I'lUlril 

ifi;  a  vessfl  III 
y  :i  citizen  lit 
.111(1  [losses-oii 
11  American 


I.Mr.  Diekiiison'.s  Closing  Aij;iui)('iit.) 

ISow,  the  British  acts  do  not  rciiuiie  a  Britisl)  ship  to  he 
enrolled  or  registtn'ed.  There  is  not  the  slightest  doiiht 
that  a  British  suhject  may  sail  a  ship  upon  the  high  seas, 
as  an  American  citizen  may  an  Americ'in  ship,  without 
ever  registering  it  at  all,  so  far  as  the  (piestion  can 
arise  hetween  nations.  'J'lie  Registry  gives  the  ship 
only  certain  municipal    privileges   under  nmiiicipai   l.iw, 

loanii  wlii'ii  the  question  of  nationality  arises  it  does  not 
turn  on  the  ([tiestion  of  registry,  hut  on  the  iiuestioii  of 
actual  ownership,  necessarily-,  iu  any  International 
Court.  At  page  (),a2  of  (itii  Attorni^y-Creiierars 
Opinion'^,  he  sjieaks  of  the  right  (jf  an  AiiK.'rican  citi/en 
to  purciiase  and  own  a  foreigu  ship  and  says:  "  Tiie  ship 
•'  so  purchased  becomes  entitled  to  Near  tlie  Hag  and  receive 
•'  the  protection  of  the  Cnited  S',;fes.  There  is  not  a 
•'  practical  doubt  that  a  British  siijii  not  rt>gistered  is  (>ii- 
"  titled  to  British  protection  if  Britisli  owned;  then*  is  not 

jo"  a  imictical  donlit  that  a  citi/en  of  (rreat  Britain  on  the 
"  high  seas  in  a  'British  unregistered  ship,  if  his  right  of 
"  property  is  invaded,  has  a  ight  to  appeal,  and  may  ap- 
•'  peal  successfully,  to  the  sovereignty  of  (ireat  Britain  to 
■'  protect  him  iu  his  property  rights  on  tiie  higli  seas." 
Wharton's  Digest,  Section  410,  page  W^,  reviews  tiiis  siih- 
ject,  and  fully  sustains  the  po.tition  we  here  take  Henry, 
the  author  of  "Admiralty  Jui'isdiction  and  I'rocedure," 
will  be  found  cpioted  in  Wharton's  Digest.  Section  410, 
and  sums  up  the  inix-rnational  'piestions  in  the.se  words  as 

',oto  the  vessel's  character.  [  liave  only  extracted  those 
parts  bearing  upon  this  qncstieii,  but  it  is  printed  in  full 
here: 

"  The  (piestionas  to  the  disabilities  xvhich  themuniciiial  rules  of  the 
"  (loveriiiuent  of  the  owners  might  imiiose  on  siieh  vessels  did  not 
"  eoneeru  other  ufttions  nor  atfi>et  their  nationality."     *     *     ♦ 

"  So  far  as  the  international  side  of  the  ([uestiou  is  coneerned,  the 
"  position  of  sueh  vessels  is  ti.xed.  .Vllliougli  the  right  of  sueh  ves- 
"  sels  to  earry  tli(>  flag  of  the  United  Sti.tes  has  been  discussed  iu  two 
"  late  papers,  there  could  hardly  be  oceasioii  for  such  a  (juestion. 
"  .\  vessel's  flag  is  only  its  signal  to  other  vessels  at  sea. 
40  "  The  natio  .  I  luiutiiig  displayed  is  a  coinmunicatiou  to  other 
•'vessels  of  '\.  nationality  of  her  owi  er,  as  her  other  signals  are 
■'  used  to  convey  die  name  of  tlie  jirivate  owner,  or  of  tlie  line  to 
•' which  the  visseN  belongs."     *     »     * 

••  '''lie  word  '  flag.'  when  used  either  in  i>ublic  or  private  inter- 
"  iiaii.  Qal  law,  in  maritime  subjects,  designates  the  uationality  of  the 
"  vessel,  arising  from  ownersliij)."     »     «     ♦ 

"  k  vessel  as  a  subject  of  nationality  is  ni't  considereil  a  personality 
"  any  n^ore  than  any  other  chattel,  ami  cuuaot  liav.'  any  otlier  iiatiou- 
'  ality  impressed  on  it  except  that  arising  from  ownership.' 

1  then  cited  Kent.     .My  friends  criticize  my  citations; 

30 hilt  I  invite  a  review  of  the  decisions,  and  say  that  I  have 
stated  the  substance  and  the  very  gist  to  the  position,  tliat 
nationality  follows  ownersinp.  I  do  not  print  a  whole 
ilecisiou  iu  m.iUing  a  brief,  hut  what  I  consider  to  he  tlie 
gist  of  tlie  case,  iu  view  of  the  entire  conte.xt. 

From  the  b'>ok  cited  from  ,it  such  length  by  my  friend. 
Sir  Charles,  1  have  extracted  the  langiiagi'  of  that 
great  Minister  of  Kngland,  so  well  known  ti.  lioth  sides, 
Lord  l\ilmer.ston,  as  to  the  effect  of  this  flag,  and  I  read 
from  jiage  til?  of  liawience  on  "Visitation  and  Search"  as 

6, 1  to  what  liOrd  Palmerston  said  of  the  flag  in  speaking  to 
tlic  .American  (iovernmeiit.  He  .says:  "The  l']nglish  (iov- 
cniment,  is  not  hound  to  take  notice  of  e\ery  hit  of  hunt- 
ing sewed  up  in  the  form  of  an  .Americsn  ilag."  It  wa,s 
(iiiwmight.  .and  in  language  li;irdly  diplomatic,  but  it  was 
plain  Kiiglish,  and  we  tind  Lord  Salisliury  in  negotiating 


in 


(Mr.  Dickinson's  Closing  Argument.) 

tho  treaty  of  1892  protesting  that  the  British  (lOvtMiuhfiii 
could  not  he  held  responsihle  for  every  one  who  h.iistt'il 
the  British  flag  on  a  ship.  1  have  already  read  thai 
correspondence.  Of  coui'se  if  not  responsil)l('  foi'  what  a 
ship  carrying  tho  flag  migi)t  do,  then  certainly  (ircat. 
Britain  would  not  he  entitled  to  protect  such  a  ship  fur 
damages  suffered  hy  it  in  doing  the  act  nierclv  liecausc  Ji 

lot-airied  the  Hag,  hecause  it  he  was  not  v>illing  to  let 
the  registry  and  the  flag  stand  as  conclusive  evidciici' 
of  nationality  to  hind  Great  Britain,  it,  must  he  at  once 
conceded  that  the  L'nitrd  'lates  had  the  right  to  seize  ;i 
ship  douig  damage  unless  it  turned  out  to  i)e  ahsohitdv 
British  owned.  If  they  were  not  willing  to  he  respoiisiJih^ 
for  a  ship  wliich  tlew  the  flag,  the  flag  merely  eould  he 
no  evidence  for  oi' against —at  least  of  a  conclusive  iiatuiiv 
W'e  will  sn|i|)ose  a  British  owner  makes  an  athdavit, 
fakes  out  a  British  registry  anil  flies  tlie  flag.     That   Brit- 

2oish  suhject  is  immediately  entitled  to  a  right  and  iiiotec- 
tion.  He  stands  upon  solid  giound.  If  any  one  inter- 
feres with  his  property  his  goveriunent  will  com|i(>i 
reclamation  if  the  invasion  of  the  deck  is  hy  a  foreign 
nation.  If  it  is  not  hy  a  nation  and  is  hy  a  jjiivale 
citi/en  he  can  seek  redress  against  the  latter  in  any 
court  in  the  civilized  woi'ld  within  v.liose  jurisdictioii 
lie  can  catch  the  }>arty  who  has  committed  the  ties|iass. 
But  suppose  an  American  i-itizen  huys  a  ship  and  swea  - 
out  a   British    registry,   and   flies  the   Biitish  flagon  tl  ■ 

30  higii  ^eas;  and  under  process  of  a  lu'deral  Court  against  him 
for  the  violation  of  the  revenue  laws  of  the  United  Stati's. 
that  ship  is  seized.  Does  the  i^ritisli  flag  and  the  false 
British  registry  give  this  American  reclamation  on  he 
half  of  (ireat  Britain;  The  British  Kegisfry  Act  say-,  no, 
and  while  the  Biitish  Registry  Act,  as  I  have  agam  and 
again  denionstiated,  in  the  coni'se  of  tlie  [jruited  argmnent. 
is  puiely  nuinici|>al  and  cannot  he  cited  in  a  com  t  of  ii;i 
tions,  1  propose  to  show  that  even  that  does  not  give  him 
protection,  even  in  a  nnniicipal  couit.      Neithei' is  a  shi|) 

40  protected  that  flies  the  British  flag  with  a  British  registiy. 
if  any  interest  in  that  shiji  is  owned  hy  a  foreign  jierson  - 
foreign  to  th<'  emjiire  of  (iii'at  Britain.  Niw,  my  liiemls. 
read  the  following  from  the  Ihilisli  .Merchants"  Shipiiiim 
Act  of  18 -4,  Sec.  IH: 

"  No  ship  liereby  ri'ciuircil  to  lie  rpRistprcil  shall,  unless  refjisti  riil. 
"  be  rtH'O^uiZi'il  as  a  Hritisli  sliiji;  and  no  officovof  en  stems  shall  fiiaiit 
"  a  clcarani'e  or  transire  to  any  shi|i  liereliv  ic(iuiro(l  to  lie  ri'^istiTiil 
"  f<ii' the  iinr|iosc  of  cualilinif  her  to  iireci'ed  te  sea  as  a  Hiitisli  >lri|i 
unless  till'  master  of  such  sliip.  ui)on  heint;  i'ei|uire(l  so  to  ilo.  |iio- 
(lui'cs  to  him  such  I'l'rtiticate  of  !■(^ist^y  as  is  hereiuaftei' nicMtioncd; 
and  if  suidi  shi])  attemjits  to  jproceed  to  sea  without  ii  idiiiiaiK'c  iir 
tiiinsire,  su(di  odicer  nniy  detain  such  sliij)  \iiitil  such  certilicato  is 
l>voilii('od  to  him." 


50, 


60 


Now  this  clause,  "  No  ship  required  to  he  registered 
shall,  unless  registered,  he  recognized  as  a  British  ship," 
telN  us  nothing  hy  itself,  and  standing  alone  without  the 
other  pio\  isioiis  of  the  act,  and  liack  of  that  and  hefore  it, 
anil  aside  from,  and  inde|)endent  of  I'egistry,  is  Sectimi  Is, 
as  follows: 

"  iVo  !<liil>  dIiiiII  III'  ill  I  nil  il  III  hi-  II  Ilrilisll  ahip  iihIish  xlir  /ii'lriii/>.  irhiJIi/  Id 
"  iiifiiprs  nf'thi'foltiin'iiiff  iff'scrifi/io'i'^' 

It  will  he  seen  hy  the  section  which  niv  learned  fiieii'l'^ 
rely  upon,  tliat  the  registry,  hy  the  act  itself,  does  not 
conijiel  uHOgnition  of  the  shi|)  as  a  British  ship,  liiit   that 


957 


'TV    ■:'■'■    ll*WWf| 


Dveiiiiiii'iii 

li(»  li.iisti'il 

read   tlmt 

for  wlial  a 

inly  (Ji'iaf, 

a  ship  I'lM- 

■  liiH'aiisc  It 

liiiji   til    1(1 

e  evidence 

lie   at   iiiire 

to   soize  ,1 

absolutely 

rt'Sp()ll>-ilile 

ly  fould  lie 
sive  iiatuic 
II  aftidavit, 
Tliat   liiit 
and  ])i'()tec- 
y  one  inter- 
ivill   ciiiii|iel 
ly  a  foreign 
,■    a   |)rivato 
ttei'    in  any 
jiuisdictidn 
,lie  ticspass. 
and  s\vea■^ 
flajj,  on  tl  • 
against  liim 
lited  States, 
nd  the  false 
,tion  on    lie- 
ict  says,  no, 
igani  anil 
(I  argmnent. 
conrt  III'  nil 
lot  give  him 
her  is  a  ship 
ish  registry, 
ign  jierson  - 
,  my  tl  lends, 
Is"  Shipi»ing 


loHH  renistfrt-M. 

inisshiill  uniiit 

11  lie  rciiiMtcP'il 
a  Hrilisli  slii|' 
se   to   lid,  pl'd- 

t'tir  iiii'iitioiiril; 
clcunim'r  IT 

ll     CCltllU'lltl'    IS 


le  registered 
iritisli  ship," 
withont  the 
nil  before  it, 
s  Section  b*^, 

lirtdii'/s  irhiJIfi  to 

irneil  IlieMils 
elf,  doe>  nut 
lip,  bnl    thit 


(Mr.  Dickinson's  Closing  Argument,) 

no  ship  unless  registered  shiill  be  recognized  as  a  British 
ship.  By  Section  is.  it  will  be  seen  that  by  this  act  own- 
ership is  made  the  solt>  test  of  nationality  after  registry. 

Mr.  Peters:-  Read  the  top  of  Section  "l!). 

Mr.  Dickinson:  "  Kvery  British  ship" — to  be  sure, 
"every  Hi'itisb  .ship"  must  be  registered  as  follows,  (Sec, 
F?ut  Section  li(  still  leaves  ojien  the  ([uestion  "  Wh.at  is  a 
u  British  ship"?  and  Section  1«  answei's  "ownership." 
Thus:  "  No  ship  shall  be  deemed  to  be  a  British  ship  un- 
less she  belongs  wholly  to  owners  of  the  following  de- 
scription." but  by  Section  li»  no  British  ship  shall  be  en- 
titled to  the  municipal  privileges  of  a  British  sbii)  unless 
she  be  also  registereil. 

Section  lis,  at  page  l-J'.t.  deals  with  the  question  as  totlie 
conclusiveness  of  the  registry: 

"  No  porwon  Khali  lie  entitled  to  lie  regiKtereil  aK  owner  of  a  ship  or 

•'  any  share  therein  until  he  lias  iniule  ami  sulmevilied  a  declaration  in 

2'  >   ■  the  form  marked  ]{  m  the  sclieilule  hereto.  lefeniiin  to  the  ship  as 

■'  deseiil)e(l   in  the  eertiticate  of  the  Hnrveyor,  and  eoutaiuiug  the  fol- 

■'  lowing  jiai'tieuhirs,  f'lit  is  to  say — 

'■  (1)  A  statement  ef  his  ijualilieation  to  be  an  owner  of  a  share  in  a 
•'  JJritish  ship. 

"  (2)  \  statement  of  the  tiuie  when  and  the  [ilace  where  such  ship 
•  was  Vnhlt     »     *     * 

'•  (8)  A   statement  of  tlie  name  of  the  nu;stev, 

"  (4)   .\   statement  of  the  numlii  r  of  shares  in  sueh  ship  of  which  ho 

■  is  entitled  to  lie  registered  as  owner. 

"  (,"))   A  diMiial  that,    to  the  lii'st  of  his   knowledge  and  lielief,  any 
"  nni|ualified  person  or  Imdy  of  persons   is   entitled   as   owner  to  any 
:;o  "  legal  or  lienerteial  interest  in  sneh  shi[i  or  any  share  therein." 

Now,  we  have  a  ship  that  is  registered,  divided  into 
sixty-four  shai'es.  eveiy  one  of  which  is  required  by  the 
law,  Section  IS,  to  l)e  owned  by  a  I'ritisb  subject  with  no 
outstanding  interests  to  entitle  a  ship  to  tHili<l  British 
registry,  or  if  registered  to  tin;  British  character. 

The  title  of  the  subject  L  now  ipiote  is  "  yidinmil  Cliar- 
((cicr."'     Section  lo:i  of  this  same  act: 

"  If  any  person  nses  tlie  P>ritisli  Itagaiul  assumes  the  liritish  national 
.JO"  eharaeter  on  Imard  any  ship  owned  in  whole  or  in  part  liy  any  per- 
"  son  not  entitled  Ky  law  to  own  British  ships,  for  the  purpose  of 
"  mii.Wiuj7  sneh  ship  appear  to  lie  a  IJi-itish  sliip.  sneh  ship  shall  lie 
■'  forfeiti,d  to  lifer  Majesty,  unless  srndi  assumption  has  lieen  madi'  for 
"  the  purpoHe  of  esea|iing  capture  liy  an  enemy  or  by  a  foreign  ship 

■  of  war  iu  the  exercise  of  some  belligerent  right." 

Tiie  word  register  does  not  appear  in  the  seition. 

"  .Vnd  in  any  proeeeding  for  euforeing  any  sueh  forfeiture  tlie  bnr- 
"  den  of  proving  a  title:  to  use  the  British  flag  and  assume  the  British 
'  national  character  shall  lie  upon  the  jierson  using  and  assuming  the 

'■  same." 

■And  yet  he  has  the  Hag  up  and  the  registry  in  his  cabin. 

■' :!.  If  H.ny  nnipialitied  jierson,  except  in  the  case  of  sueh  trans- 
"  mitted  interests  as  ar<'  hereinbefore  mentioned,  iu'i|uires  as  owner 
"  aiiv  interest,  either  legal  or  beneticial.  in  a  ship  using  a  British 
"  llag  and  assinning  the  British  (diaracler,  sneh  interest  shall  be  for- 
'■  feited  to  Her  Majesty." 

Xotwithstanding  the  rc'gistry  in  the  cabin  and  the  flag 
over  tlie  deck!  The  cpiestiou  of  registry  on  this  point 
(Im's  not  ajijiear  at  all,  the  (jiiestioii  relates  back  to  Section 
6ols,  ;md  turns  on  actual  ownership  and  the  registi'y  in  the 
cabin  and  the  Hag  over  the  deck  are  not  oven  prima  facie 
evidence  of  owntMship.  It  turns  upon  the  ([iiestion  of 
who  may  own  British  ships,  and  Section  is  says: 

••  No  ship  shall  be  deemed  to  be  a  liritish  ship  unless  she  belongs 
"  wlioUy  to  owners  of  the  following  description;  that  is  to  say: 


11  M 


''nr 


il  V 


958 

(Mr.  Dickinson's  Closing  Argument.) 

"  (1)  Niitnriil   born  BritiHh  Hubjei'ta.     *     *     * 

"('2)  Poi'Hdus   luiulo  (Iciii/.iMis  liy  lottor.s  of  Donizatioii,  or  nulm  il 
■"  izp(l  l)y  or  piirsimut  to  any  act  of  tlio  Iiujiorial  Legislature  or  1 
"  pursuant  to  any  .Act  or  Ordiuauce  of  tlio  proper  legislative  autln 
"  in  any  British  possession. 

•'(ii)  JioiUes  corporate  estaliliHlied  under,  Hnl)je<-t  to  the  laws  ,  i, 
"  and  Iniving  their  principal  jilace  of  husiness  in  tho United  Kiugd  .m 
"  or  HOMie  British  possession." 

lo  Even  sucii  (IciiiztMis  must  bo  witliiii  Her  Majesty's  dd 
niiiiidiis  (ir  a  nieinher  of  a  l^i'itisli  factory.  So  \\[>  li;i.,. 
tlu!  ship  on  tile  liigli  soas  witli  the  Uritisli  registi-y  aini 
flag  and  tlien  if  anyone  molests  her-ina  Hiilish  in/i. 
Conrt  whore  international  l^aw  is  administered  or  in  .mv 
British  nnnii(i|>al  conrt — if  it  apjjear  that  she  is  \i,',[ 
British  owned  in  res])cct  of  every  one  of  her  inter(  n|^, 
thei'e  is  no  right  to  the  flag,  and  slie  is  not  British.  .And 
in  a  direct  pMu'eeding  against  liiin  tin;  registry  and  l!,!;; 
are  not  priiint  fdcic  evidence  and  he  must  |)roceed  and 

20pi'ove  the  ownershij)  in  a  British  subject,  as  I  have  read. 
Now,  (Section  lo:!.  No.  (4i.  pi'ovides: 

"  If  auy  person,  on  behalf  of  hiinsolf,  or  any  other  ijcrson  or  hodv  cif 
"  persons,  wilfully  niak(>s  a  false  declaration  toucliing  the  i|uiihliiii- 
"  tions  of  liiniself  or  siicli  otlier  person  ol'  boily  of  persons  lo  i]«n 
"  British  shi|>s  or  any  sliares  therein,  the  declarant  shall  be  ^^niltv  of 
"  a  misdcuicanor;  and  the  shi|>  or  share,  in  respect  of  which  sm  h  ilrc- 
"  laratiou  is  made,  if  the  sanii"  has  not  been  forfeited  under  the  I'oii!- 
"  goiufi;  provision,  shall  to  the  extiMit  of  the  interest  theieiu  of  the 
"  person  makiu}?  the  declaration,  and  unless  it  is  shown  that  he  had 
"  no  authority  to  make  the  same,  of  the  parties  on  behalf  of  whuiu 
-^O  "  the  declaration  is  made,  be  forfeited  to  Her  MajoHty.'* 

"  And  in  onler  that  the  above  provisions  as  to  forfeitures  niav  he 
"  carried  into  efl'ect,  it  shall  be  lawful  for  any  commissioned  olliier  mi 
"  full  ])ay  in  the  nnlitary  or  naval  service  of  Hvv  I^fajesty,  or  any 
"  British  officer  of  custcuns,  or  any  l<ritisli  consular  officer,  to  seize 
"  and  detain  any  ship  which  has  either  wholly  or  as  to  any  sliaro 
"  therein  become  forfeiture  as  aforesaid,  ami  to  brin<<  her  for  adjiidica- 
"  tion  before  the  High  Court  of  .Vdmiralty  in  10nglau<l  or  Ireland,  or  any 
"  court  having  Ailmiralty  juiisilictiou  in  Her  Majesty's  ilominions;  mill 
"  such  court  may  thereupon  make  such  order  in  the  case  as  it  mav  think 
'•  fit,  and  may  award  to  the  officer  bringing  in  the  same  for  adjudiia- 
"  tion  such  portion  of  the  proceeds  of  the  sale  of  auy  forfeited  ship  or 
"  sliare  as  it  may  think  ri/ht. 

"  CIV.  No  such  officer  as  aforesaid  shall  be  responsible  either  civilly 
"  or  criminally,  to  any  person  w  Iiomsoever.  in  respect  of  the  seizure 
"  or  detention  of  auy  sliiji  that  Ims  been  seized  or  di^tained  by  him  iu 
"  i)urHUance  of  the  jjrovisions  herein  contained  notwithstanding  tliiit 
"  such  ship  is  not  brought  in  for  adjinliiation,  or  if  so  brought  in,  is 
"  declared  not  to  be  liable  to  forfeiture,  if  it  is  shown  to  the  satisfnc- 
"  tion  of  the  ,ludge  or  Court  before  whom  any  trial  relating  to  such 
"  ship  or  such  seizure  or  detention  is  held,  that  there  were  leasonalilo 
"  grounds  for  such  seizure  oi- detention;  but  if  no  such  grounds  are 
"  shown.  s\icli  .fudge  or  Court  may  award  payment  of  costs  and  dam- 
"  ages  to  any  jiarty  aggrieveil,  and  nuike  such  ordt'r  in  tlu?  premises  us 
"  it  thinks  just." 

Ipso  fai'fo  forfeiture!  Is  that  the  .-idjudication  of  tlio 
Court  tiiat  my  learned  friendscall  an  //<.so /Wc/o  forfeitiiici 

Mr.  I'eters:— I  would  like  to  state  on  that  point,  that 
both  in  England  and  the  Tnited  State  the  authorities  mv 
clear  that  the  foifeiture  is  ipso  fticfo;  if  my  learned  fiieiul 
wants  them  1  have  tliein  under  my  li.iiid. 

Mr.  Dickinson:  \'es,  shosv  one;  lam  reading  diieiily 
from  your  act  which  recpiires  proceedings  in  the  .Vij. 
niirally. 
6o  Mr.  I'eters:-  Take  the  ca.se  of  Annand.ile,  which  is  re 
ported  iu  "2  J'rohate  and  Divorce,  jiage  21S.  That  was  a 
case  of  foifeiture  mider  the  section  of  the  Mi'r(  jianis' 
Shipping  Act  referred  to.  It  was  mstituted  on  lieh.iHiif 
a  British  Ollicer  ol  Customs  against  a  vtNsel  for  .dlc^vd 
infringement  of  the  provisions  of   the   .section.     I'luiiilitf 


40 


^o 


itno 


ijesty's  il.i^ 

;'^isti\v  :nii| 
lilisli  Ti  i/i' 
(1  or  ill  any 
slit^    is   imt 

■V  illtflt  ^l-. 

itisli.  A  11.1 
ry  and  t'.a;; 
iioi'ccd  ami 
havt;  If  ail. 


•atinii  (pf  tliu 
7(1  t'di  IVitiiicJ 
it  piiiiit,  that 
itliorilics  ai't' 
■ariii'd  frii'iid 


,   whicii  is  re 

'riiat  was  a 

(«    MiTiliaiits' 

on    lu'lialliif 

■  1   for  allr.uv,! 

on.       I'luliltill' 


(Mr,  Dickinson's  Closing  Argument.) 

all<'giMl  tliat  on  the  1st  of  July,  IST-I,  one  of  her  owners 
heing  a  British  suhject  had  f.slsely  icprcsented  that  she  had 
lieen  sold  to  foreigners.  The  statement  of  the  defense 
and  founterelaim  was  delivt>red,  whicli  in  tlie  Tth  |)ara- 
graph  set  up  a  dt^fense  that  on  the  ftth  of  July  defendant 
hecame    boiiii    Jii/c    pnrciiaser   of    the   vessel    |)r()ceeded 


against  for  a  valuable  consideration  without   Unowl 


Ige 


I,  (if  any  of  tin  niatteis  alleged  in  tln!  statenu.'nt  of  claim 
.And  plaintiff  denuu'red  to  the  Tth  paragrap'.i  of  the  de- 
fense. Held,  atlirming  the  decision  of  tJK!  Judge  of  the 
Coiutof  Admiralty  that  the  dennu'rer  inui-t  Ite  allowed 


for  that   the     property  in    the   vessel 


was    (Uves 


ted 


am 


20  ( 


'sted  in  the  Crown  iimnediately  on  tiie  (!()nHnission  of 
any  of  the  offenses,  in  rci-pect  to  wliich  under  the  pro- 
visions of  tile  section  the  penalty  of  forfeit ur(>  was  im- 
posed.    The  Judges  were  James,  Bagg  illey  anc!  Cotton. 

Mr.  Dickin.son:— I  should  say  tiiat  tiere  would    ho    no 

h>uht  ahout  tlial. 

Mr.  Peters:— That   was  inunediate  forfeiture,  .so  much 

(  that   it   took    th(>   property  out  of  an   innocent  person 

,lio  had  bought,  the  propei'ty.     And  to  the  same  etTect  is 


he  ( 


lecisiou   of  the  United  States.     This  i^- 


a  cas(> 


not 


under  the  Shipping  Act  but  involving  the  same  piinciple, 
fnited  States  rs.  l.'.Miu  bags  of  Coffee.  8  Crauch,  ;!!t8. 
This  was  a  case  of  forfeiture  of  goods  for  the  violation  of 
the  non-intercourse  act,  March,  isS!»:  the  defendant  avows 
a  siib.sequent  sale  to  an  innocent  purchaser,  although  she 
1  had  a  regular  permit  for  landing  goods  and  although  the 
duties  might  h;ive  been  paid.  And  that  case  is  remark- 
able in  one  res|)ect,  because  it,  overrules  Judg(>  Story. 

The  ConumssiouiM- on  the  part  of  iler  Majesty : —Might 
not  tliat  mean  that  it  would  have  (street  from  tiiat  date, 
but  that  it  would  iiave  to  bo  proceeded  for? 

Mr.  Peters;- -The    point  we  made  on  that  and    which 


IV  friend  is   controverting  is   i-liat  the  effect   of   an 


im- 


proper decl.iration  of  owneiship  with  legai'd  to  a   British 

ship,  involves,   from   the  very  moment  you    commit  that 

40nlVetice,  that  tiie  shij)  tiieii  and   tiieie  becomes  th<>  prop- 

erlv  of  the  British  Crown,  and  that  even  the  transfer  to 


m    innocent  person   passes  no 


titlt 


And  it  is  the 


pel  icy  in  all  these  case 


W 


•it<^  these  cases  in  our  brief. 


Mr.    Dickinson:  — I  do  not  think  we  disagree  as  to  the 
judgment  of  the  courts  just  cited.     1  do  not  miderstaud 


tei 


m  ipso  ftirhi 


as   u 


sed  by  my  learned  fiieiid.      \Vi 


su 


ppose  that  if  a  title  passes  ipso  fdcio,  or  if  a  |irovision  is 
made  that  a  certain  transfer  shall  be  alisolutely  voiil  as 
against  all  the  world  it  does  not  reijuire  any  direct  proceed- 
joiiig  of  forfeiture,  but  the  facts  may  l)e  shown  collaterally  in 
aiiv  proceedings  by  any  one  in  future  proceedings.  Where 
foifeiture  is  provided  for  by  competent  jurisdiction  we  lio 
t  undtM'staiid  the  term  ipso  facto  to  mean  that  you  have 


no 

111  wait  a  decree  ii 


1  order  to  avoid   the  title.     We  do  not 


iim 


lerstand  that  that   is  tlie  meaning 


forfeiture    ipso 


I'liclo.  Tiiat  is  the  difference  between  us.  Voui'  Honors 
will  see  that  under  this  Act  providing  for  for- 
feiture that  only  the  interest  of  the  otfending 
paitv  can  be  forfeited  imder  the  said  provision  en- 
<iotitle(l  "  National  Character."  and  that  ii\  such  cases  it  is 
jirovided  bow  discharge  may  b(>  made,  and  wint  court 
to  take  him  before,  and  such  court  may  thereu|H)n  make 
-•iich  order  as  it  may  Ihiidv  tit.  There  does  not  seem  to  be 
iimch  ipso  /(trio  there,  because  the  court  has  compe- 
(i  lit  jurisdiction  to  consider  the  question   imder  tho  Act 


^mmF 


960 


(Mr.  Dickinson's  Closing  Argument.) 

after  the  thing  has  been  committed  on  which  condeinna- 
tion  might  follow,  and  may  forfeit  such  interest  as  it  sn  » 
fit.  or  no  interest  as  it  sees  fit.  It  is  the  language  ol  iho 
Act.  If  that  is  ijisofacio,  my  friends  and  I  do  not  iimlir. 
stand  the  term  alike.  If  ip.su Jurto  forfeited,  any  |iiiv,itp 
person  in  any  court  could  set  it  u]>. 

Mr.  I'eters:—  We  understand  'i.ir  i)ositions  now. 

lo  Mr.  Dickinson: — 1  do  not  know  to  wiiat  end  the  (uii. 
tention  is  made  anyway,  because  if  it  is  claimed  ili;it 
the  title  is  in  Her  Majestv,  as  in  case  of  decree  made  li.r- 
feitiiig  to  Her  Majesty,  then  Ih'r  Majesty's  (•oveiniiiin! 
is  tilt!  cl.'iiniant  here  in  its  own  hehalf.  The  cdunsil  i,( 
Her  Majesty's  ( iovernment  are  here  representing  tlu 
of  these  claunants  as  owners,  and  not  the  rigid  of  llcr 
Majesty  as  owner  and  Her  Maj<  sty  could  not  liecdiiic 
the  owner  unless  under  this  law  there  should  he  a  d((  ivc 
by  a  competent  court  of  general  jurisdiction   in  a  (IIkm  I 

20])roi'eeding  that  an  act  of  ftjrfcitnre  had  been  conuiiilicil, 
You  cannot  urge  forfeiture  in  this  pioceeding  collatci.dly. 
Bu\  let  ns  see  how  it  would  he  as  to  public  acts.  Iirit> 
are  the  "  Instructions  issued  to  h'egisti'ars"authoi  itativtiy 
possessing  all  tlie  effect  of  an  Act  of  Parliament.  I  rail 
your  Honors'  attention  to  the  etfect  of  registry  in  tins 
same  volume. 

Section  \'2  of  Instructions,  page  12: 


it 


30 


f/illis  iirr  ilijiii'  il  ill 
ItcfiiHtnir  is  iiiirfic- 
liis  iiuist  iiuiMutniit 


40 


"  Till'  persiitiK   eiititlcil  lo   be  ninimt   of  Brilhh 

•  lllf.    ISlli  S'liiou  (if  lllr   .1(7.       Till'  iittciitioii  of    till- 

'  tjlavly  ilii'cctt'il  to  tlii'.'fc   jirovisiiiiis,  us  one  of   

"  duties  is  tlic  iuvfstigatioii  of  the  iintional  cliiinicti'r  of  the  iiiisons 
"  rcqniiing  to  lie  lonistt'ivd  us  owners,  ami  ii  carcfnl  examination  of 
"  tbe  eviilince  adduied  in  siii)i)oit  of  tlieir  claim,  the  nature  of  wliicli 
"  will  lie  detailed  in  the  eourse  of  these  instnu'tious." 

"  Hi.  Vit;ilaneo  in  this  reK|)eet  is  necessar,v,  from  the  oireiiiu- 
"  «tanee  " — 

This  is  the  most  important  thing  of  the  whole  matter, 
because  these  regulations  have  ail  the  force  of  law — 

"  Vifiilanee  in  this  respeet  is  necessary  from  the  cireumstan<'e  tlmt 
Parliament  has  of  late  years  cousideralily  relaxinl  the  conilitjiins 
wliieh  entitle' a  shiji  to  carry  till'  Uritisli  fta^  and  to  claim  Uritisli 
"  jirivilem's  and  jirotectioii.  \  shi])  may  now  1m  a  Hiitish  ship  and 
"  vet  have  heen  huilt  at  a  t'oreif^n  )iort.  and  1m  manned  and  I'omnianded 
"  \)y  foreipners;  the  sole  reijuisite  which  remainsis.  that  slie  should  he 
"  owned  l>y  persons  who  one  allei;iance  to  the  liritish  Crown,  aiul  are 
"subject  to  Uritish  law,  .Any  netllect.  therefore,  of  the  jirecaiit  ions 
"  onioincd  hy  the  Act,  with  a  view  to  estalilishini;'  nationality,  will  de- 
"  jirivt!  Hhi|i  >'.gistry  of  its  im|Mirtauee  in  a  imlilic  jioint  of  \iew. " 

Thus,  tli'Mi,  a  ship  carrying  tin   British  Hag  still  has  lu>r 

natic'.ialit'  tinii  on  the(|uesti(in  of  ownersliip.  and  it  that 

5° shall  nut  oe  in  accoidance  with  llii'   iirovisious  of  the  law. 

the  iieg'strar  is  instructed  that  lilt'    Hiitish    tlag  will    not 

protect  her,  in  a  public  point  oi  view. 

IStiw,  then,  note  tu  the  above: 

"  Persons  lioldin({  letters  of  denization  or  letters  of  naturalization 
"  are  reiiuired  toi>riMluce  them  to  the  Ke^jistrar  when  makinj,' dechira- 
"  tions  of  owni'rsliii)." 

And  this  I  call  marketl  attention  to: 

(jO  "  In  cbhcs  iu  wliicb  there  may  be  any  doubt  about  the  nationality 
"  of  a  declarant,  the  Itenistrar  should  distinctly  point  out  to  him  that 
"  tlie  law  throw'.- the  onus  of  ri's]ionsibility  in  this  ri's|)ect  uiion  tho 
"  person  makiu(,{  the  declaration,  and  not  njion  the  Kej^istrar." 

So  that  a  register  may  be  maile  by  a  jierson  under  a 
fal.se  oath  and  tiie  Kegistrar  is  btumd  to  receive  that  oath 


961 


mm 


(Mr.  Dickinsoii's  Closing  Argument.) 

from  the  person  falsely  niakinp  it.  The  Kegistrar  is  hound 
to  tell  him  that  the  registry  will  he  no  protection  to  him 
and  that  the  flag  will  not  cover  him  when  he  is  registered 
unless  the  British  ship  is  actually  British  owned  in  every 
interest.  And  that  is  the  puhlic  point  of  view.  The  reg- 
istry is  not  conclusive  evidence  then  in  a  pnhlic  point  of 
view,  and   the  oidy  thing   that   is  ohtained  is  this,  that 

10  from  the  British  act  and  those  Instructions  to  Registrars, 
the  ship  unless  British  owned  is  not  a  British  ship, 
and  unless  British  owned  in  every  one  of  her  sixty-four 
parts— and  the  man  seeking  registry  is  told  that  his  reg- 
ister will  no  t  piotect  him  unless  she  is  British  owned  in 
every  one  of  her  sixty -four  interests.  The  registry  does 
not  vouch  nationality  any  more  than  so  much  waste  paper 
and  he  is  so  told.  We  get  hack  to  the  fundamental,  the 
hasic  princi|)le  that  nationality  follows  ownershiji,  and 
when  you  get  down  to  the  question  of  ownership,  whether 

20  it  he  investigated  in  the  British  Court  or  in  any  other 
court  in  the  civilized  world,  you  come  back  to  this  British 
ownership,  i»id  British  ownership  only  makes  the  nation- 
ality of  the  ohip.  Mr.  Bayard  correctly  stated  the  law  as 
[  quote  him  at  page  7h  of  the  United  States  brief. 

"  By  the  law  of  nations  *  «  »  tlio  oitizeuH  or  8iiV)ject8  of  a  par- 
'*  tietilar  eountry,  wlio  arc  tlie  owuern  of  a  sliip,  are  entitled  to  carry 
"  on  such  ship  when  at  Kea  tlio  Haji  of  Biieh  country,  and  such  flag  is 
"  to  be  regarded  by  all  foreign  sovereigns  as  the  badge  of  nationality. " 

p  This  is  by  International  law,  of  course,  irrespective  of 
British  regulations;  Lord  Stowell  said  as  I  have  cited  him 
in  my  brief: 

"A  bill  of  sale  is  the  proper  title  to  which  the  maritime  courts  of 
all  countries  would  look  " — 

that  is  International  law — 

"  It  is  the  universal  instrument  of  the  transfer  of  ships  in  the  usage 
of  all  maritime  countries." 

40       11,  Atty.-General,  Opinions,  page  72,  186(): 

"  The  flag,  then,  the  outward  symbol  of  ownership,  sho\ild  properly 
"  correspond  with  the  bill  of  sale." 

In  the  case  in  15  Peters,  decided  hy  Story,  United  States 
vs.  Ai misted,  our  learned  friend  makes  some  criticism 
ui>on  our  construction  of  the  case.  It  was  in  a  time 
of  peace,  although  so  far  as  that  is  concerned,  the  cir- 
ciUDstances  in  time  of  war  are  only  varied  on  this 
(juestion  by  the  admission  of   the   condition   of  privilege 

fo  recognized  by  the  law  of  nations  that  for  the  |)ni'i)oses  of 
disguise  and  to  avoid  ca|)ture,  a  man  may  put  on  a  dif- 
ferent nationality  or  identity  to  escape,  iuul  that  makes 
an  e.\cej)tion  to  the  universal  rnle  as  to  tiie  biiuling  char- 
acter of  the  a])parent  insignia  of  ownership  as  against  the 
owners.  In  time  of  war  ilso,  however,  when  yon  want 
to  get  back  to  the  right  of  >rotection  of  the  ship,  as  to 
what  her  nation  is,  neutiai  or  belligtrent,  yon  have  to 
trace  back  the  actual  title,  ti.  determine  the  nationality, 
in  any  court.     In  time  of  peas;)   you   have   to  determine 

'••jlier  nationality  by  her  ownersh,').  The  case  of  the  United 
States  r,s.  Armisted  was  the  cas(  ^f  a  Spanish  registered 
and  documented  ship.  Not  onl^  was  slie  documented  as 
a  Spanish  ship  and  as  Spanish  owned,  I'lit,  by  treaty  be- 
tween the  nations,  certain  privileges  were  gnaranteed 
ships  of  either  nation  so  documented. 


I    i 


y62 

(Mr.  Dickinson's  Closing  Argument.) 

It  turned  out  that  sho  had  a  disguise  in  time  of  poarH, 
and  that  she  was  actually  owned  by  citizens  of  anotln  i 
country,  and  this  heing  suspected,  she  was  seized,  and,  ol 
course,  her  flag  and  her  registry  did  not  protect  Uw 
Judge  Story  considers  this  as  of  a  time  of  peace,  and  com 
ments  on  tile  fact  that  it  is  in  time  of  peace,  and  .s.ivs 
that  this  is  the  rule  in  time  of  peace— that  privati' 
loownership  determines  nationality.  As  Lord  Sto\V(  II 
said,  that,  a  hill  of  sale — of  couise  a  bona  luh' 
hill  of  sale — a  solemn  instrument  of  title,  dc 
termines  that  question.  Our  friends  cite,  at  paf,'(.s 
44  and  45  of  their  brief.  16  Peters,  21.5.  iNt,u, 
this  was  a  domestic  litigation  between  a  judgment  cred- 
itor and  another,  and  involved  the  (juestion  of  whctlicr 
the  registry  of  a  transfer  of  a  ship  under  a  Federal  statiitf 
Avas  a  prerequisite  to  a  change  of  ownership  as  against 
creditors.  The  decision  was  that  it  was  not,  and  tlic 
aoCourt  proceeded  to  say  tliat  the  registry  as  contem|)lat('(l 
by  the  Federal  law  was  only  for  the  purpose  of  conferring 
certain  privileges  on  a  ship  as  a  national  ship  They  alsu 
quote  Hi  Wallace,  610: 

This  was  also  a  domestic  suit,  involving  a  conflict  be 
tween  a  bankiuptcv  assignee  and  an  attaching  creditm. 
The  ))aukruptcy  assignee  was  appointed  in  Massachusetts, 
and  the  creditor  attached  the  shi|}  in  New  York.  It  was 
iield  "  for  the  purposes  of  the  suit "  that  the  ship  was  a 
portion  of  the  territory  of  Massachusetts,  and  the  bank- 
3oruptcy  assignment  passed  the  title  as  against  the  attacli- 
ment. 

In  the  case  of  Catlett  against  the  Pacific  Co.,  1  Paine, 
Circuit  Court  Reports,  the  question  was  whether  tiie 
implied  warranty  m  a  policy  of  insurance,  that  the  sliip 
was  an  American  vessel,  had  been  complied  with.  It  :ip- 
])eared  that  she  was  owned  by  American  citizens,  aiui  it 
was  conceded  that  if  she  also  had  an  American  register  on 
hoard  it  would  have  been  a  compliance  with  the  warranty. 
The  essential  thing  disputed  eventually  was  the  (jueslion 
40 of  American  ownership,  and  the  effect  of  registry  was  not 
in  issue. 

That  case,  if  it  is  of  any  account  at  all  on  their  conten 
tion  that  the  American  registry  is  conclusive  of  owner- 
ship, it  may  be  said,  was  cited,  as  my  friend  cited  it  Iumo. 
as  shedding  some  light  on  the  subject  (and  to  that  e.xtcnt 
probably  it  is  here)  in  the  United  States  Supreme  Court  on 
the  argument  in  the  Armisted  case  in  15  Peters,  where 
the  contention  there  and  here  was  distinctly  overruled  by 
Judge  Story. 
50  Now,  the  next  position,  and  it  is  re  'erted  to  again  by 
Sir  Charles  Hibbert  Tupper,  is  this,  that  the  registry  is 
put  upon  the  same  ground  as  naturalization  paper.s. 
Well,  that  is  so  well  settled  in  this  country  since  tiie 
decision  of  Spratt  v.  Spratt,  in  4  Peters,  that  it  will  not  be 
necessary  to  say  much  upcm  that  point  1  have  in  my 
brief  considered  the  case,  so  well  known  and  so  often  citi'd 
in  our  courts,  that  I  simply  alluded  to  it  in  our  briuf  as 
"  Spratt'scase.'"  but  the  proper  citation  is  4  Peters.  Tli.it 
decision  was  put  scjuaiely  on  the  ground  that  natnrali/.M- 
<3otioii  is  a  court  proceeding  and  judgment.  That  it  involves 
a  hearing  ni  testimony  by  the  court  and  adjudication,  and 
it  could  not  be  collaterally  attacked.  It  is  quite  aditt'ereiit 
principle  tiian  that  which  applied  to  registry  of  shiiipinK. 
with  whicli  no  judicial  or  quasi-judicial  authority  has  any- 


963 


(Mr.  Dickinson's  Closing  Argument.) 

thing  to  do.     Natunili/ation  is  a  decision  or  judgment  of 
,1  court,  and  it  is  so  held  in  Spiatt's  case. 

The  position  of  the  United  States  as  to  naturalization 
is  quoted  in  our  brief  at  the  top  of  page  81. 

"  It  is  not  within  tlie  power  of  tho  Socretar.v  of  State  to  vacate  a 
"  ilooree  of  naturalization  issuod  by  a  eoniiieteut  court  of  tlie  Uuitcd 
"Spates.  »  *  *  The  judfjmont  of  a  court  (j;r»ntinB  toaniudividiial 
10  "  the  rightB  of  citizonshiii  iH  entitled  to  receive  tho  respect  given  to 
"  all  other  judgmentH  rendered  by  courtH  of  competent  jurisdiction, 
"  and  if  not  iuipeaohablo  for  fraud,  in  conclusive  as  to  all  the  facts 
"  necessarily  passed  upon." 

A  Registrar  has  no  judicial  discretion,  but  is  obliged  to 
accept  the  oath  in  both  countries. 

The  Executive  and  Judiciary  of  the  United  States  are  in 
iiccord  that  the  test  of  nationality  is  ownership,  not  the 
icgistry  or  flag. 

In  a  time  or  war,  if  anything  is  necessary  to  give  added 
20  conclusiveness  to  the  flag,  there  is  a  form  used  of  an 
official  certificate  from  the  Executive  Branch  of  the  CJov- 
ernment,  commonly  called  a  8hii)'s  pass  or  a  ship's  certi- 
ficate, which  you  cannot  go  behind,  very  likely.  If  the 
matter  is  investigated,  and  the  government  certifies  to  the 
world  that  this  is  a  British  owned  ship  or  an  American 
owned  ship,  that  is  the  ship's  pass;  and  that  is  what  the 
"  V'irginius  "  carried  as  shown  by  the  history  of  tliat  case. 
1  have  shown,  heretofore,  in  my  argument  that  she  was 
certificated  bj'  the  United  States,  and  therefore  the  ques- 
30ti()n  of  nationality  became  of  no  importance,  although  in 
that  case  the  United  States  permitted  an  investigation  to  see 
if  a  fraud  had  been  committed  on  the  sovereignty.  But  that 
involves  the  national  dignity  and  not  damages  to  private 
rights. 

I  now  call  your  Honors' attention  to  authority  bearing 
upon  the  consideration  of  allegiance  in  this  connection 
wiiich  was  before  the  British  Commissioners  ou  nation- 
ality and  naturalization  before  referred  to.  Lord  Cock- 
4fMiurn,  in  his  work  on  Nationality,  at  pages  180  and  181, 
says: 

"  The  report  of  the  Commissioners  appears  to  assume  that  the  re- 
"  nioval  of  the  incapacity  to  hold  laud  is  tho  sole  motive  with  aliens 
"  for  seeking  to  become  naturalized.  It  does  not  notice  another,  and 
"  perhaps  still  more  important,  head  of  the  incapacity  of  aliens, 
"  namely,  that  of  being  unable  to  own  llritish  ships.  Should  the  law 
"  iu  this  respect  be  relaxed?  Tho  answer  will  bo  readily  in  the 
"  negative,  so  far  as  aliens  iu  general  are  concerned.  ^1//  ulifn.  who 
"  iiin-s  nil  idlrijiiiiice  Id  Ih):  i-iliili',  mill  lelio,  ir/im  an  llie  senx,  i,'<  im /oiii/i;r 
"  iimi'iiiilile  III  iiKi'  litii'K,  can  /iiivi' iKi  cliiiiii  In  llii'  iiriilnHini  of  the  lirilhh 
W  fi'i'i,  ill  ri'sjirii  iif  ii  tipecien  of  jinijinrti/,  irliich,  iinliki'  ival  csIhIh,  mmi,  at 
"  mil/  miiinfiil,  lie  williilniii'ii fram  lirilixli  iliiiiiinioii  tilliii/i'ther.  But  whether 
"  a  foreigner  settled  and  domiciled  iu  this  conuti-y  under  eircum- 
"  stances  which  would  entitle  him,  according  to  tlie  usual  course,  to  a 
"  ccrtiticate  of  naturalization,  might  not  be  jierniitted  to  be  an  owner 
"  of  British  shipping,  so  as  to  supersede  the  necessity  of  a  uaturaliza- 
•'  tion  which,  in  reality,  gives  no  British  nationality,  is  another,  and  a 
"  very  ditl'erent  ipiestiou." 

Suppose  a  citizen  of  t!ie  United  States  was  on  his  own 
sliip,  suppose  Alexander  McLean  was  on  his  own  ship  in 
li(;riMg  Sea,  actually  owns  it,  as  we  contend  we  have 
*^h1i(iwii  and  jiroved  that  hedid;  he  is  out  of  the  jurisdiction 
of  (ireat  Britain,  and  he  is  on  a  ship  not  protected  by  the 
Hiilish  flag  if  he  owns  an  interest  in  it,  because  iie  is 
imt  i)ermitted  by  Great  Britain  to  own  an  interest  in  it, 
iuid  if  he  does  have  an  interest  in  it  what- 
I'vur    the    registry,     the     British     Act    expressly     pro- 


]1t 


"'•«,. 


( i',,1 


i»fi4 

(Mr.  Dickinson'^  Closing  Argument.) 

vides  that  she  is  not  j)iotecte(l  as  a  British  ship  So 
suppose  lie  is  taken;  he  is  an  alien  on  the  high  seas,  aticl 
beyond  Ihitish  jurisdiction,  and,  of  course,  could  ciaiiu  ih> 
protection  at  the  bauds  of  Great  Britain,  being  in  a  sliip 
that  was  not  a  British  ship. 

I  do  not  kuovv,  may  it  please  your  Honors,  as  1  cimiM 
better  illustrate  the  distiiK^tiou  Ix^tween  the  injury  |.,r 
lo  which  redamatiou  can  be  had  for  a  private  citizen,  as  liiil 
down  in  the  books,  and  that  for  which  vindic.ilion  of  tin. 
sovereignty  of  tlie  nation  may  be  due,  than  by  casus  wliji  h 
have  occurred  in  the  relations  between  the  two  govern 
ments.  The  distinction  is  broadly  made,  and  it  bears  u|i(iii 
something  that  was  iu  your  Honor's  mind  the  day  iMtdio 
yesterday  when  your  Honor  asked  me  the  effect  of  t.iking  .m 
American  citizen  from  British  soil.    That  very  position  was 

E resented  in  the  case  before  one  of  the  mixed  commissidiis 
etween  the  countries.     In  the  case  of  the  Britisli  shiji 

20  "  Trent  "  we  liad  a  perfect  right  to  go  upon  that  ship  .ukI 
search  her  in  time  of  war.  No  doul)t  about  that.  Knj,'- 
land  having  recognized  the  belligerency  of  the  Confedeiato 
States,  that  a  state  of  war  existed,  we  had  a  right  to  stop 
the  ship  on  the  high  seas  to  .see  if  she  had  anything  coii- 
tiaband  ujion  her;  but  we  had  no  right  to  enter  upon  the 
ship  and  take  off  Mason  and  Slidell.  That  was  an  invasion 
of  the  dignity  of  the  British  ship,  and  was  an  actual  in- 
vasion of  the  sovereignty  of  British  teriitory,  as  wo 
had  contended  constantly  on  our  side  since  178S.     We  did, 

Sohowevr,  take  off  these  men.  It  was  considered  a  Wan- 
ton act,  a  j)iratical  act,  and  was  so  characterized  by  fireat 
Britain  at  the  time,  and  an  a|)ology  was  demanded.  We 
promptly  responded,  gave  up  graciously  as  we  should  have 
done  after  the  violation  of  International  Law  and  an  inva- 
sion of  national  dignity.  But  what  would  the  coiuitiy 
have  said  if  Mason  and  Slidell,  who  had  suffered  somewhat 
had  insisted  upon  reclamation  against  the  United  States. 
They  were  citizens  of  the  United  States  and  were  engafjed 
in  a  violation  of  the  sovereign  authority  of  the  Unitwl 

40 States.     Suppose  in  addition  to  what  Great  Britain  asked 

of  us  for  invasion  of  the  national  dignity 

Mr.  Peters:— Suppose  you  had  tak(;n  their  goods? 
Mr.  Dickinson: — We  did  take  their  goods  and  on  the 
same  demand  restored  them.  We  shut  the  prisoners 
in  Lafayette  i)rison,  but  would  any  one  ever  dream,  may 
it  please  your  Honors,  of  invoking  the  protection  of  Gnat 
Britain,  and  making  reclamation  on  the  United  States  for 
damages  before  a  Claim  Commission  for  Mason  and  Slidell? 
No,  the  national  question  absorbed  everything  else.     Tiie 

50  subordinate  question  of  private  lights  was  sunk  out  nf 
sight,  and  it  became  a  (piestion  of  national  dignity  alone.  So 
far  as  the  personal  injury  to  Mason  and  Slidell  they  could 
not  recover  from  the  United  States,  except  so  far  as  they 
wei-e  under  the  jurisdiction  of  (Jieat  Britain.  They  were 
American  citizens  engaged  in  violating  the  sovertMgnty  of 
the  country  of  their  nativity,  and  no  one  ever  dreamed  of 
proposing  that  a  cent  should  be  paid  on  their  acconiit. 
Your  Honors  will  see  to  what  absurdity  it  would  have  li'd 
if  suggested  by  anybody.     1  do  not  know   if  it   was  ever 

60 asked  for  by  Mason  and  Slidell,  but  if  it  was  it  never  re- 
ceived any  consider.ition  from  any  one.  Again,  in  the  casi" 
of  the  "Caroline"  .n  lh37  a  full  statement  will  be  found 
in  Baker's  Halleck,  page  477,  and  Wharton's  DiKost, 
Sections  21  and  3.50.  Here  was  an  invasion  of  American 
territory,  and  an  American  ship  under  the  American  tlag, 


Dflfl 


(Mr.  Dickinson's  Closing  Argument.) 

and  in  American  waters.  Tliorc  was  no  doubt  al)out  this, 
tliat  tlio  sovcnignty  ot  Great  Britain  s«Mt  McLiMid  with  a 
force  (if  men  on  to  American  territory,  and  took  a  sliip 
miller  the  American  (la^-  and  destroyed  her;  took  her 
ri^ht  otT  Ameiican  territory,  and  (ireat  liritain  witli  Hrit- 
isii  I'rankness  acknowledged  iier  rcS|ionsil)ility  I'or  what 
slie  did.     She  did   not  charp;  it  up  to   Mci.eod,  hut  said 

K  that  lie  acted  under  liis  nation's  instructions;  or,  it  lie  did 
not,  we  ratify  what  he  has  doii".  'i'lie  L'liited  States  de- 
nianded  satisfai;tioii  foi'  that,  (lieat  ih'itaiii  assiMtod  the 
li^lit  to  enter  the  territory  on  the  ground  of  self-preserva- 
tion, ad(hi(ing  evidence  of  an  insurroction,  and  claimed 
that  the  ••  ("aroliiu'"  was  aiding  it. 

The  matter  was  .satisfactorily  adjusted  hetween  the 
^ioveiiiments,  hut  Mcl^Mid  in  the  meantime  got  lietween 
lii'eat  Britain  .ind  tlie  I'liiled  Slates,  while  the  confe.st 
w.is  going  on,  and  was  arrested  and  jailed  for  a  long  time 

Join  the  L'nited  States.  He  ought  not  to  have  been  put 
there,  hecause,  as  was  held  hy  Mr.  Webster,  Se(;retary  of 
State,  and  hy  everyone  else  e.xcept  Judge  Cowan,  that  as 
this  matter  was  a  matter  between  the  sov<;reignties,  in- 
dividuals harl  nothing  whatevi'r  to  df)  with  it.  It  was  an 
act  of  the  sovereign  against  tlu;  sovereign,  and  that  mat- 
ter was  to  be  settled  between  them,  an<l  the  rights  and 
liabilities  of  individuals  were  not  pertinent,  and  were  out 
of  sight.  The  great  question  between  tlie  sovereigns 
was  settled,  and  that  should   have  ended   the  whole  con- 

30tioversy.  But  McLeod,  tlirough (ireat  Britain,  attempted 
to  raise  the  question  of  private  rights,  and  make  reclama- 
tion from  the  United  States,  and  you  will  find  the 
case  reported  under  the  American  Commission  of 
is.'iS,  to  wliich  his  claim  for  damages  was  presented. 
The  umpire  decided  that  it  could  not  he  brouglit  before 
the  Commissioners  as  a  private  claim,  because  it  grew  out 
of  a  purely  national  (juestiou,  which  liad  been  adjusted 
hetueeii  the  two  countiies  as  such,  and  there  could  be  no 
reclamation  for  McLeod.     It  is  an   interesting  history  as 

40-.lifilding  light  upon  this  question  here. 

Hut  suppose  it  bad  not  been  McLeod  who  was  making 
rei'lamation?  Suppose  a  British  subject  domiciled  in  the 
United  States,  and  not  naturalized  there,  while  in  the  act 
of  -liding  that  insurrection  against  Great  Britain,  had  been 
(latr.aged  in  his  person  or  property  rights  by  McLeod's  in- 
viision;  Great  Britain  sent  forces  in  here  and  damaged  a 
good  deal  of  jirivate  property?  Could  it  be  seriously  con- 
tended that  he  could  have  successfully  made  reclamation 
tliroiigii  the  Unit(Hl  States  against  Great  Britain,  his   na- 

5011. in  of  original  allegiance,  for  liis  injuries  sutit'ered  while 
acting  in  violation  of  that  original  allegiance? 

On  the  other  band,  suppose  an  American  citizen,  domi- 
ciled in  Canada,  had  aided  the  insurrection,  and  had  his 
liiiuse  burned  over  his  head,  and  he  had  bidught  his  claim 
lielore  the  Convention  of  lsr>;i?  Would  it  not  have  been 
said  to  him:  "Mr.  American  Citizen,  domiciled  in  Great 
Hiilain.  this  participation  of  yours  in  defying  the 
bovereiguty  of  your  domicile,  for  which  you  have 
sntfere<i,     takes    you     out    of     the    category    of    per- 

Ccsdiis  who  can  present  a  claim  under  the  aus- 
picis  of  the  United  States  against  (Jreat  Britain, 
because  you  owed  allegiance  to  the  soveieignty  in  which 
you  were  civilly  domiciled." 

'  »n  the  distinction  between  questions  of  the  kind  arising 
lietween  nations  in  respect  of  the  inviolability  of  national 


ll 


Ml 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1.25 


■tt  Ui   12.2 


111 


140 


^^ 


^ 


■^>' 


Hiotographic 

Sciences 

Corporation 


¥!^ 


v 


r<\- 


<^ 


^1\ 


23  WIST  MAIN  STIiiT 

WnSTM.N.Y.  USSO 

( 71* )  •72-4903 


^%''^' 

X^' 

^ 


o^ 


!^ 


-  I    :■ 

■  ■  (      :        1, 


.■:k 


(Mr.  Dickinson's  L'lo.smj;  Aij^nniiMit.) 

territory  and  the  t'lnltlem  of  tin;  national  dignity,  .md 
tlios«'  in  ifspcct  of  til*'  claims  of  individnal  citizens  im- 
sentt'd  l»y  one  nation  for  personal  or  property  injiirits 
against  anotliei'.  it  is  liroa<lly  and  well  dinwn  by  cdiiiimI 
in  the  case  of  McHn^h  and  otiiers  against  the  I  niicd 
States,  hefoie  the  Mi.xed  C'oinniissioii  nnder  the  Treat \  of 
Washiii^ten  ( ik'eport  t)f  British  Aj^ent.  p.  i>tu,  Appeinh.x 
loNo.  7.  Tiiiias  follows.  (I  said  when  yonr  Honor  asUeiJ  me 
the  (lay  liefore  yesterday  what  would  hetheeired  n(  ilin 
invasion  of  Hritisli  territory  hy  the  sovereij;iity  of  ihr 
I'nited  States  that  later  on  I  was  was  connnj;  to  thai  c|i> 
tini'tion.i  1  now  read  from  the  leporl  of  the  Hrili-li 
Anient: 

"Till'  i|iii'sti(iii  lii'forc  tliis  ('(iiiiiiiiMHii)ii  is  not  wlictlici- Orint  Itnliim 
"  lius  Niillci'cil  Ki°>*'vuni'<M)i-  iiiHiilt  lit  tilt'  IiiiiicIh  of  ilii-  I'liitril  Stiil<  s  jn 
"  till'  I'lisi'  ill  wliifli  ri'i'liiiimtioii  in  hdukIiI.  If  if  were  so,  it  uiniKl  lir 
"  ciif iri'lv  iiiiiiiiitiTiiil  wlictln'r  flic  iiiti'stitti>,  Slifnimii.  were  a  jlriii^li 
-,[-.  "  Hul>ji'i't  or  no.  he  liiiviiiK  lii'i-ii  itrroHlcil  on  Kritisli  soil.  'I'Ik!  mjurv 
~  "  to  (Iri'iit  Hntiiiii  was  liy  tli*' iiiiliiwfiil  iiivuHJon  of  licr  tcn-itorv  mill 
"  the  tiil(iiiK  tlii'iicc  Itv  force  of  ii  person   under  tlic  proteetioii  of  lifi- 

"  lllWH. 

"  Wlietlii'r  tliiif  perHon  was  uii  Aiiierienn  citizen  or  Hritisli  sulpji.t  is 
"  of  no  iiiiportimce.  She  liiis  tlie  Niiine  ri){lit  of  conipluiiit  ii^iiiii-t  tlio 
"  United  Htiites  for  the  uiihivvfiil  or  wrongful  arrest  of  un  .Viinricaii 
"  I'itizen  upon  her  Hoil.  and  his  reniovul  liy  force  from  the  proli'iiidn 
"  of  her  laws,  as  she  would  have  for  the  sai.ie  treatment  of  a  Itiitisli 
"  Huliject. 

"  lint  it  Hiindy  cannot  lie  contouded  flint,  liv  reason  of  such  iujiuv 
"  to  the  sovereignty  of  (li'eat  Hritain,  Hheriiian.  if  in  fact  an  Anicriiau 
"  oiti/.eii,  would  have  a  staudiliK  liel'ore  this  triluinal  to  maki' reclii- 
30  "  niatton  under  the  treaty. 

"  ilt- woiihl  have  to  stand  upon  his  chnracter  iih  a  Hritisli  siilijicl. 
"  and  upon  that  only:  and  it  wiuild  lie  only  liy  virtue  of  hucIi  national 
"  character  that  he  could  make  reclamation  here. 

"The  particular  claim,  as  appears  liy  the  report,  i.  •.,  that  of  Mi'~ 
'  Hhcrniun,  waH  unanimously  ilisalloued  liy  the  ('oiiiniissiuiiers. " 

The  very  point  was  eiahorately  stated  and  decide.)  hy 
Haron  hiaiic,  the  nnipiie,  in  claims  !)4  and  '.•.'i.  Cainpliil 
and  others  c.  Spain,  under  the  Spanish  and  .\fneiii  iii 
Commis-ion  of  Kehriiary  !•_',  isTl. 

40  My  friend.  Sir  Charles  Ilihhert  Tupper,  says,  "th.it  is  a 
difTereiit  convention  in  principh*  from  this."  Not  at  ;ill  I 
have  it  here.  This  wdl  he  found  in  Treaties  a  ii<l  Coiiveiiiions 
hetween  the  I'liited  Slates  ;iud  other  I'oweis,  I77t'>  l^">7, 
at  paj;e  loi'."(.  This  was  an  arhitration  for  the  settienirin 
of  cert.iin  claims  of  citiz(>ns  of  the  United  St.ites  on  ac- 
coiiid  of  wron.us  and  injuries  connnitted  hy  the  aulliori 
ties  of  Spain  in  the  island  of  Ciiha,  or  within  the  ni.iii- 
time  jurisdiction  theieof,  since  the  insuirectioii.  Il 
w.'is  agreed  that  all  such  chiins  should   he  snhmith-d  to 

joailiitration,  one  to  he  appointed  hy  the  Secretary  ot  Sl.ilc 
of  the  United  States,  another  hy  the  Knvoy  Kxtiaordniaiy 
and  Minister  I'lenipotentiaiy  of  Spain  at  \Vasliinj;loii, 
with  an  umpire,  wlm  was  to  decide  all  <|nestions  on  ulijc  li 
they  should  he  iniahle  to  a^reu.  'I'hu  arhitrators  and  nin 
pile  weie  to  impartially  hear  and  determine  to  the  hct  ol 
their  judg)  'cut.  and  according  to  pid)lic  law,  ;ind  tlie 
treaties  in  force  hetween  the  two  countries,  all  siirji 
claims  as  shwuld  in  conformity  to  the  fioit.cuient  he  laiil 
hefore  them  on  the  part  of  the  (lovernment  of  the  rnil'  d 

OuStatt's.  It  provided  that  each  (iovernmeiit  might  name 
an  advocate  to  appear  hefore  the  arhitratoi-s  or  the  mnime 
to  represent  the  interest  of  the  parties.  Section  5  of  that 
Coiiveiiiion,  among  other  things,  provided: 

"  No  jiidKinent  of  a  Hpanish  triliunal.  disallowiux  the  nffirinatinii  nf 
"  a  party  that  liu  in  a  eilixen  uf  the  Uuitvd  HtateH,  Hhall  prevent  Ibo 


'■   i 


10 


987 

(Mr.  Dickinson's  Closing  Argument.) 

'  urbitratorH  from  hi-uriii);  n  rt'flitiuutioii  ]iri>st'iit)Hl  in  1>cliiilf  of  said 

IMirtv  liy  till'  Uiiitt'il  StatoH  (iovt^rnintMit.  NcvcrtlicloHH,  in  nnv  rase 
leanl  liy  tho  ai'l)itr»t<ii-H,  tli<>  SpaniHh  Oovcrnmout  inny  truviTHc  the 
'  allo^atiou  of  AiiK-riciiii  citi/ci'Hliiit  auil  tlicruiipuu  coniiift.'iit  autl 
'  Ktiflicit'tit  prool  tlu-rcof  will  lie  rt'ciuiivil.  The  I'oiniiiisHiou  liaviiij^ 
'  rcooKiiizeil  the  (]iiality  of  American  citi/.ouH  iu  th<!  claiiiiantH,  tlii'v 
•  will  ac(|uiro  tlui  riKhts  act'onled  to  tlifiu  liy  the  present  HtipnlatiouH 
'  an  Hueh  eitizenH.  And  it  i«  further  agreed' that  the  arliitratovN  shall 
'  not  have  jnrisdietion  of  any  reclamation  nnide  in  liehalf  of  a  native- 
'  horn  Hpanish  snhject  iiaturali/.ed  in  tin;  United  (States  if  it  shall  ap- 
•'  pear  that  the  same  sulijeet  matter  having  been  adjudieated  liy  u 
"competent  tribunal  in  Cuba,  and  the  ehiimaut  haviut;  appeared 
"  therein,  either  in  person  or  bv  his  duly  appointed  attoruev,  and  be- 
•'  ing  recpiired  by  the  laws  of  Hpain  to  make  a  declaration  of  his 
"  nationality,  fuiliMl  to  declare  that  he  was  a  citizen  of  the  United 
"  Htates." 

Tlic  t'.\|i('iis('s  (if  iirliitriition  avcic  to  lu'  paid  Itv  liotli 
(Jovermncnts.  It  was  a  Claims  Conventimi  on  all  fours 
with  this  as  far  as  the  princijilo  is  concerned.     It.  was  llie 

,y|)rivate  (;laiins  of  citi/eiis.  .Now.  in  tlb'it  case  cited,  the 
•'  Mary  Lowell"  was  nnder  the  Anieiicaii  tia};,  and  on  the 
hif;h  seas,  dnly  docinnented  as  an  American  ship  'J'he 
umpire  tinds  distinctly  that  tho  violation  of  the  Ha^  was 
an  otfens(>  against  the  sovereifrnty  of  tho  United  Slates. 
The  claim  was  presented  l)y  Ihe  rnited  States,  as  claims 
are  presented  here,  as  one  on  account  of  the*  owner.  It 
was  one  of  the  most  important  cases,  and  was  hefore  the 
unit  ■  -e  twice.  It  was  aigned  fully  hy  Spain  and  the 
I'hiu'd  States,  and  was  passed  upon  hy  the  umpire  finally, 

,^,and  then  a  reiiearing  was  granted,  and  the  final  decision 
of  themnpire,  Haron  HIaiic,  a  distinguished  pnlilicist,  since, 
if  not  heloie,  conside>s  the  (|uestioii  of  aHronl  to  national 
dignity  hy  the  invasion  of  the  "  .Mary  Lowell,"  and  sets 
over  against  it  the  status  of  claims  under  conventions  like 
this.     This  is  what  he  says  on  the  rehearing: 


"  Ah  a  matter  of  law.  the  unipireis  of  opinion  that  jirior  to  the  cap- 
"  ture  of  the  '  Mary  Lowell,'  and  independently  of  the  circuinstances 
"  of  the  capture  itself,  the  vessel  and  caixo  were  beinn  wsimI,  by 
"  the  act  or  tliroUf?li  the  nenlinenee  of  their  respective  owners,  iu  nu 
"  unlawful  enterprise,  and  pla<'ed  outside  the  contlitions  of  lawful  in- 

"  •'  tercourse  in  time  of  peace  ;  that  this  ille);ality  was  of  such  a  chanic- 
"  ter  as  to  carry  with  it  forfeituri'  of  tht>  protection  of  the  United 
"  States  tlaj^,  ami  as  to  subject  the  property  to  such  eventual  actiuu 
"  as  miKht  be  I'.eeined  proper  by  the  United  States  and  by  Spain  ac- 
"  cording  to  the  mutual  rights  and  duties  of  the  two  i^overi  nients  ; 
"  that  such  abnormal  situation  of  the  owners  of  the  ship  and  carj^o 
"  towards  Spain,  and,  indeed,  towards  tin'  Uuiteil  States  tliemselve.s, 
"  could  not  be  covered  by  the  alle)r)>d  iufra<'tioii  of  international  law 
'■  involved  in  tin'  subscipient  capture  of  the  '  Mary  liowell '  and  car^o 
"by  the  Spanish  forces;  and  that  on  those  ]>rinciples  of  ecpiify 
"  w'liicn  the  umpire  doi's  not  feel  at  liberty  to  disref^ard  hi'  is  bound 
"  to  decitle  that  the  owuors  of  the  ship  and  car^o  are  as  such  es- 

1-'"  topped  in  their  present  claim  to  iudeiauity  for  tlie  consocpu'uees  of 
"  their  unlawful  vi'uture. 

"  //  is  tlii'ii  irri'/T'iiit  Hiii/iT  till'  rirriiiiisl'lin^en  n/'  lliis  o</w  In  stuli'  limr  fur, 
"  i/  III  nil.  till'  mla  i/llf  Siiiiiiiah/iii-iii,  ilniii-  in  srlf'-i/rfninp.  irfn'  nii'inllin- 
"  i-i:i-il  III/  iiili'rii'ilinii'il  hiir  nml  sn'li  nu  In  I'rvilr  n  clniin  mi  llii'  /inrl  nf  Ihe 
■'  i'liili-il  Sinli'S  iii/niiisl  S/niiii  in  bi'linfn/  lln'  nfi-mli'il  snriireii/iili/  nf  lln'ir 
••  llni/.  ll  is  na'nriliii'jl/l  niiinvrssnri/ /nr  lln'  ihlmiiiiinlinn  nf  llii-  jntsniinl 
"  ri./lilii  nf  till'  c/niiiiniils  hi'/nii'  Iliis  cniiiiinssinii  In  nsri'riniii  ll,e  fm  Is  on 
"  irliirli  till'  rfifiilniili/  n/'  llnnnjilny.  ns  In  lln' lii/lils  nf  ihe  Viiili'il  S'lli'S  ite- 
"  limi/s.  iinmi-hl.  Uns  lint  '  Mnru  Lmri'll '  srl  liorsi'lf  rii/lil  ns  In  llif  nllnjil- 
"  linn  n/  S/iniii  llinl  slio  irns.  nl  llir  iiiniiii'iil  nf  tin'  cniitnrf.  inllmnl  n  iniitiiiii 
■'  nii'l  irilliuiit  till'  iii'i'i'ssnrii  jinjieis  tnjnsti/il  In  I'llni),  tlinl  sIih  »•.(.«  imrsiiiiiff 

K)  ' '  lln  lliijlistilleit  rniirsn,  Ac. 

"  The  um|iire  must  be  understood  as  a|iplyini,r  the  rule  of  estoppel 
"  only  aKainst  the  private  I'hiims  of  ().  H.  Campbell  and  A.  A.  AraiiKo, 
'  as  claimants  of  an  indemnity  for  their  own  individual  aeconnt,  in 
•  which  private  claims  the  ipiestiou,  Was  the  cajiture  of  the  'Mary 
■  liOwell '  and  cargo  unlawful  V  is  subonliiiate  to  the  other  iiuestio  , 
viz.:  WcN' the  '  Mary  Lowell' and  carj,'o  engaged  iu  an   unlawful 


M 


«fl8 

(Mr.  Dickinson's  Closing  Arnunient. 
"  entiTjirim' ?    Tin 


lO 


Tiifiv  it  is  in  a  niitslu'ii.  Tiio  invasion  in  spiir  df  ili,. 
(lii^  find  till'  it'^istiy,  jind  tin?  affronts  to  the  (li;;iiit\ df 
tlif  rnilcd  Slates  was  all  alunuiantiy  siiown,  Imt  in  tin 
claims  I'onvi-iition  to  wliich  all  cases  of  this  gt'iinal  niitiin 
of  piivato  clainiantH  was  |»iest'iit« d  and  nrned  li\  Uu' 
I'liitfd  Slates,  llie  iinipiie  held  that,  in  so  far  iis  tiie  in- 
vasion of  the  ship  on  the  \uy;\\  seas  is  conrenieil,  ,111 
American  registered  docnmeiiled  ship,  cairyiii}:  the  flaunt' 
the  I'niletl  Slates,  it  conid  not  lj(>  considei'ed  in  <'oniii'( 
tiiii  will)  the  qnestion  of  damages  in  an  attempt  at  ie(  la 

20niaiion  hy  the  owners  of  that  vessel,  under  the  claims 
convention,  of  conrse.  that  is  a  decision  (»n  all  fours  wiili 
the  '■  \'iininius"  case,  in  so  far  as  any  piivate  rights  were 
involved.  Our  learned  friend.  Sir  Charles  Hihheit  Tuppcr, 
has  shown  that  the  United  States  did  demand  icpaialion 
for  Its  otfeuded  dignity,  in  the  invasion  of  a  (ciiijiciilnl 
ship  of  the  I'nited  States  carrying  the  flag,  hut  when  it 
appeared  that  its  flag  had  heen  carried  frnndulently,  oiii 
(government  never  even  daimi-d  reparation  on  hehalf  ot" 
the  owners  of  the  "  Virginins,"  hecause  of  that  invasion 

3° of  even  a  certificated  ship  under  the  Mag  at  sea. 

St.vtlh  ok  thksk  Cl.mmants. 

We  suhu'it  with  confidence  on  the  claims  presented  to 
this  Commission,  for  Cooper,  who  owed  temporary  allegi- 
ance to  the  I'nited  States,  whose  name  was  presented  jit 
Talis,  iind  as  to  whom  only  we  have  findings  of  fact  hy 
that  Trihunal.  cannot  he  jidinitted  under  this  Conven 
tioii-  we    suhmit.    with    e(pial     confident'e,    that    none 

40ot  the  persons  owing  original  allegianco  to  the  Initcd 
States  and  resident  in  (Jieat  Britain,  can,  under  the 
protej'tion  of  (iieat  hritain,  make  reclamation  against 
the  L'nited  States  (iovernnient  for  injuries  to  their 
properly  on  the  high  seas.  In  other  words,  that  holh  sets 
of  persons  who  owe<l  allegiance  to  the  I'nited  States  teiii 
porary  or  permaiieiit  -  one  set  domiiiled  civil  suhjecis  not 
natuiali/ed.  and  the  other  native  liorrr  citi/eiis  not  natiiial- 
ized  in  (iieat  Hiitain  — are  not  persons  who  can  recover  as 
limited  in  Art.  I.  of  this  Convention.     'I'his  covers,  as  we 

5oinsi>-t,  all  of  the  Cooper'  claims  for  the  "  Crace,"  the 
"Dolphin,"  the  "Anna  Heck."  and  the  "  Sayw.ird."  It 
covers  Iho  Alexander  Frank  claims  for  the  "  Alfred 
Adams,"  the  "  HIack  Diamond"  and  the  "liily."  It 
reaches  Andrew  J  Hechtersc!aimsin  the  "  Carolena,"aiiil 
the  "  ratlitin<ler."  It  reaches  the  Darriei  Mcl,eari  claim 
for  the  larger'  "Triumph";  and  tlu' Alt-xander  McLean 
claims  irr  the  "Onwar'd"  and  the  "Favourite."  These 
slrips  wer'e  all  seized  oi'  warned  in  the  years  isst!.  \ss~  and 
1Hs<,i,  and  appear'  in  the  schedirle  of  British  claims  filed  at 

6oi'aiis(pp.  1  to  lio  inchrsivei,  as  those  referi'cd  to  this  Com 
mission  under  the  convention,  as  owned  and  djiimed  fur 
hy  the  followirrg  persons  ( I  now  take  the  claims  directlv 
from  the    British   schedule).     The  "(trace,"  "Dolphin,' 
"  Aiirra  Beck  "  and  "Say  ward  "  are  sworn  to  in  Ihesched 
ule  of  Ihu  British  case,  irnder  the  findings  of  fact  sent  In 


9«i» 


(Mr.  Dickinson's  Closing  Ai-giiment.) 

tins  Commission  as  ontirely  ownod  by,  inifl  tlio  t-ntire 
claim  for  coniiMMisal ion  for  tiio  scizinvs  is  in  Thomas  H. 
C'oopnr.  As  to  tiie  "Alfred  Adams,"  Gutnian  is  .s«>t  out 
as  ownur,  and  his  partni-r.  the  said  Frank,  as  wjually  in- 
terested with  (iiitman  in  the  results  of  the  sealing  voyage. 
The  "  Black  Diamond  "  was  not  claimed  in  the  sciiedule 
(1  to  (io)  as  owned  hy  Mori  is  Moss,  hut  it  was  set  out  that 

iishe  was  registered  in  the  name  of  Morris  Moss.  As  to 
the  "  Lily,"  it  was  set  out  that  she  was  registered  hy 
Morris  Moss.  As  to  the  "Carolena,  the  entin*  ship, 
as  appears  hy  the  schedule  (1  tot')(»)  was  in  Munsie.  As  to 
that  we  are  permitted  to  contradict  under  the  convention. 
As  to  the  "  I'athtinder,"  it  is  alleged  in  the  schedule  (1  to 
♦»())  that  half  is  in  the  |)artnership  and  one-quaiter  each  in 
the  individi'al  mend)crs  of  the  firm  of  Carne  ct  Munsie. 
As  to  the  Daniel  McLean  claim  in  the  larger  "Triumph," 
the  schedule  of  the  British  cases  alleges  that  twenty-one 

20 shares  are  in  Edgar  Crowe  Baker,  twenty-two  shares  in 
Daniel  McLean  and  twenty-one  sliares  iii  one  (Jihson  & 
Blackett  as  the  claimants.  As  to  the  "Onward,"  in 
which  we  say  that  Alexander  McLean  has  an  interest, 
the  schedule  of  British  claims  shows— it  is  verified  hy 
affidavit— Charles  Spring  as  the  sole  owner  and  claimant. 
As  to  the  "  Favourite,"  Charles  Spring  is  shown  as  sole 
owner  and  claimant.  Now,  this  appearing  hy  the 
schedule,  1  to  <iO  inclusive — we  as  permitted  hv  the  Con- 
vention as  well  as    hy  the  law,  have  made  a  showing  as 

3otothe  citizenship  of  Alexander  Frank,  an  American  citi- 
zen, and  as  to  his  ownership  of  the  "  Alfred  .Aflams,"  the 
"Lily"  and  the  "Black  Diamond."  As  to  the  "Caro- 
lena  "  and  "  Pathfinder,"  we  have  shown  on  the  facts 
part  ownership  at  least  in  A.  J.  Bechtel.  Ah  to  the 
"Triumph,"  we  have  shown  that  twenty-two  shares  out 
of  sixty-four  in  all  are  in  Daniel  McLean,  wliom  we  claim 
to  he  a  political  and  civ.;  citizen  of  the  United  States, 
and  in  any  case  a  civil  citi/en  domiciled  in  the  United 
States,  and  a  civil  citi/eu  at  the   time   of  the  seizure  as 

40  well  as  at  the  time  of  the  convention.  There  is  no  ques- 
tion about  that,  on  the  testimony.  Then  as  to  the 
"Onward  "  and  "  Favourite,"  one-half  interest  is  in  .Alex- 
nnil»;r  McLean,  an  undoubted  American  citizen  and  dom- 
iciled in  the  United  States. 

Now,  upon  this  (piestion  of  the  rights  of  the  claimants, 
we  insist  that  to  entitle  (iieat  Britain  to  make  reclamation 
for  any  one  "as  a  person  in  whose  behalf  she  is  entitled 
to  claim  compensation  from  the  United  Stall's"  (I  (|uoto 
the  language  of  the  Convention),  tlu(  burden  is  upon  that 

5oiiation  to  establish  at  the  very  outset  two  things: 

First,  and  before  all  else,  th.it  at  the  time  of  the  conven- 
tion and  of  the  presentation  of  the  claim,  the  claimant 
was  under  the  protection  of  (ireat  Biitain  as  a  citizen, 
with  a  legal  doinicil  in  the  dominions  of  that  nation, 
or  not  in  the  Ihiitetl  States. 

Second,  it  must  also  be  established — and  tlie.se  two 
tilings  must  concur  that  at  the  lime  of  the  injury  of 
whieli  complaint  is  made,  the  person  was  under  the  pro- 
tection of  CJreat  Britain  as  a  citizen,  and  domicih'd  within 

60 her  dominions,  or  not  in  the  United  States,  or,  as  the 
ti|uivalent  of  domiciled  citizenship  was  on  hoard  a  ship,  as 
one  of  the  officers  or  crew,  ttvvned  hy  a  British  subject  in 
fSrilish  territory,  or  on  th»'  high  seas.  Both  these  must 
concur.  It  must  be  shown  by  (ireat  Britain  that  at  the 
time  of  the  conveutiou  and  presentation  of  the  claim,  the 


!J 


!»7(> 


(Mr.  Difkinson's  ClosiiiK  Arpiuniont  ) 

clniinaiit  was  uiulcr  tlio  protection  of  (Ireat  Hiitaiii  as  a 
citi/AMi,  and  witli  a  le^al  iloiiiicil  in  lier  (loiiiinions,  .hkI 
also  at  tlio  tiiu)'  of  tlu*  iiijiiiy.     Hotli  aro  ahaoliitcly  i>ss*  u 
tial  coiulitioiis. 

T  (i«'sirt>  to  call  your  Honors'  attention  to  tlie  rcadinr-s 

witli  whiclicitizonship may  revert.  (.See  Halleck,  pa;;c  (iM. 

and  cases).      After  reciting,  as  a  principle  of  univ(i,,ii 

lolaw,  that  "Native  allegiance  is  a  legal  incident  of  Imtli, 

and  is  tlie  implied  fidelity  and  obedience  dn«)  from  tvi  rv 

E arson  to  the  political  sovereignty  under  which  lir  \< 
orn."  the  autlior  continues  to  consider  how  far  and  m 
wliat  manner  thii.  primitive  allegiance  may  he  dissulvi,! 
or  transferred.     The  learned  autlior  says  at  page  4<il»: 

"ItniBV  Improper  to  rumnrk  in  thiH  place!  that,  iuitHmiicli  us  il,,. 
"  national  clmrai-t(>r,  wliiob  rosultH  from  origin,  coutinufH  till  Icj^allv 
"  cliangud,  tli<>  ouuh  of  itroviug  hucIi  oliango  usually  reHts  upon  tlic 
"  party  alleging  it." 

20 

Citing  also   I'liillimore  on  International  Law,  Vol.    i^ 

81.5.  et  set/.,  and  Westlake's  Private  International  l,a\v. 

Section  7,  et  sci/.;  also  Blackstonu,  at  page  457. 

"Local  allegiaucc  Ih  8uch  ax  is  <lne  from  an  alien  or  stranger  liorn, 
"  for  so  long  a  time  as  he  continues  within  the  King's  douiiiiiou  iinij 
"protection;  and  it  ceases  the  instant  such  stranger  trunsferH  liini- 
"  self  from  tliis  kingdom  to  another.  Natural  allegiance  is  ])crpi'tiial, 
"local  allegiance  is  only  temporary;  and  for  this  reason,  cviilintlv 
"  founded  upon  the  nature  of  government,  that  allegiance  is  a  iliOit 
"  due  from  tlie  xubject.  upon  an  implied  contract  with  the  prince,  tlmt 
-10  "  so  long  as  the  one  affords  protection,  so  long  will  the  other  denieuu 
"himself  faithfully." 

At  page  42i»,  the  same  author,  treating  on  the  termina- 
tion of  national  character,  says: 

"  The  native  national  character,  lost  or  suspended  liv  a  foreicn 
"  domicil,  easily  reverts.  The  adventitious  character  impoHeil  liv 
"  domicil  ceases  with  the  residence  from  which  it  arose.  An  iielmil 
"  return  to  his  native  country  is  not  always  necessarv,  nor  even  an  ac- 
"  tual  departure  fron>  the  country  of  his  domicil,  if  he  has  iictuiilly 
"  put  himself  in  motion  b<iiiiijiilr  to  quit  the  country  x/z/f  uuimn  n  nr- 

Several  of  the  American  citizens— alleged  to  have  heen 
domiciled  on  the  otiu'r  side  during  this  period,  had  flicir 
faces  in  motion  towards,  and  actually  returned  to  Sati 
Francisco  and  lived  there;  and  Andrew  J.  Bechtel  retnrni'd 
to  the  United  States  and  lived  there,  and  resumed  tiie  na- 
tional character  of  the  nation  of  his  original  allegiance. 
My  learned  friend  Mr.  Bodwell  looks  incredulous  and 
smiles,  hut  I.<3chtel  swore  to  it,  and  so  did  Munsie. 
50  The  Commissioner  on  the  part  of  the  United  Slatos:— 
From  your  standpoint,  that  does  not  help  you. 

Mr.  Dickinson:  — I  suppose  your  Honor  means  from  onr 
Btandpuint  as  to  his  credibility.  But  he  never  denied  it  in 
the  witness  l»o.\,  your  Honor. 

When  we  stand  upon  the  oath  of  some  of  these  genlk'- 
men  out  in  Victoria,  our  friends  smile,  and  when  we  assail 
their  credibility  they  jue  indignant. 

Y'our  Honors,  I  have  found  more  satisfaction,  on  tiio 
question  of  nationality  and  protection  in  this  little  vnlmne 
^of  Lord  Chief  Justice  Cockburn  than  in  anything  e!s<-  1 
n*fer  your  Honors  to  pages  12;{  and  124  of  CtK'kburn.  I 
will,  however,  simply  cite  the  cases  as  1  find  I  have  read 
them  on  another  point.  I  will  mei-ely  cite,  as  to  a  party 
setting  himuelf  in  motion  towards  his  own  country,  that 
his  imtionality  of  original  allegiance  reverts.      I  refer  to 


971 


I  I 


tlio  temiiim- 


sun'  iiiiimii  rt  ri  r- 


(Mr.  Dickinson's  Closinn  Ar^^iinient.) 

Wharton's  Int  Ijjiw,  as  to  tloniicil  and  national  cliaractcr 
revtMtin)j;(S»'c.  ;VJ+,  cl  wr/. ),  where  Sir  \V.  Sirott  anil  other 
authorities  are  citetl. 

C'ockbiirn  on  Nationality,  at  page  11«.  of  a  time  heforo 
the  act  of  IsTo  says: 

"  TliilH  r(>Htri<-tiHl.  it  is  plain  thnt  tlicofTcftof  iiuturalizntiiiu  inOroat 
"  lirituiii  iH  onlv  to  ri'iiiovt' tliH  Ic^nl  iliMabilitit'H  of  tlii>  ulii-n,  ami  to 
10  "  jilaco  liiiii,  aH  to  (••>rtaiii  minor  political  ri({htM  ami  an  to  civil  ri);litH, 
"  on  tlio  Hamo  footiufj;  »•;  the  uutural  nnlijcct;  ami  further,  that  the  oath 
"  of  allegiance  takun  l>,v  him  auiountH  to  mi  more  than  a  promiHu  of 
'•  that  uTieKiauce  which  evorv  alien,  while  reHitlinK  in  the  realm,  iit 
"  lioiiml  to  romler,  ami  muHt  he  taken  to  carry  with  it  the  impliud 
"  roHervation.  that  it  iw  to  operate  no  longer  than  while  the  party  ro- 
"  luainH  within  the  (jnoeu'H  doniiniouH." 

That  was  the  condition  precisely.  His  doinicil  stands 
now  as  that  of  a  naturalized  alien  ii.  England,  and  under 
tile  law,  naturalisation  as  then  provided  entitled  him  to 
20 take  out  denization  papei's  which  bound  him  only  so  lonR 
as  he  remained  in  the  country.  It  applied  tohini  the  law 
of  doinicil  and  local  allegiance  and  gave  hi(n  some  other 
privileges: 

"  When  abroad  he  is  no  longer  n  Huhject.  On  his  return  to  his  own 
"  country,  his  nationality  of  origin,  ho  far  an  thin  country  is  con- 
"  cerned,  would  revive,  and,  in  cbhc  of  war  lietween  the  two  countries, 
"  he  might  boar  aruiH  against  Her  Majesty  without  incurring,  legally 
"  or  morally,  the  guilt  of  ti-eason." 

JO  It  need  not  be  argued  that  a  person  who  may  have  beea 
injured  by  a  nation  cannot  afterwards  l)ecomo  naturalized 
or  domiciled  in  that  nation,  and  thus  become  a  political 
or  civil  citizen,  or  both,  and  thereafter  invoke  the  aid  of 
the  country  of  his  original  citizenship  against  the  nation 
of  bis  existing  citizenship.  And  so  the  Convention  pro- 
vides. Article  1,  that  the  persons  for  whom  reclamation 
may  be  made  by  (Jreat  Britain  must  be  persor.s  who  then, 
at  the  time  of  the  Convention  (and  as  held  in  other  com- 
missions, at  the  time  of  the  presentation  of  the  claim)  were 

40 under  the  protection  of  (treat  Hritain  in  virtue  of  citizen- 
siiip,  as  above  defined.  Here  again  the  incongruity,  not 
t(t  say  absurdity,  of  Great  Britain's  position  as  to  Cooper 
is  manifest.  I  have  shown  to  your  Htmors  that  at  .uiy 
time  bo  could  set  his  face  honje wards  if  he  wanted  to  en- 
gage in  this  business.  Cooper,  a  resident  and  a  civil 
citizen  of  the  I'n'ted  States  since  IS.H,  with  the  courts 
open  to  him  as  to  an  American  native  born  citizen,  enjoy- 
ing the  protection  of  our  laws;  without  returning  to  his 
cDuntry  of  original  citizenship  to  present  this  claim,  he 

;oi«'inains  a  citizen  of  the  United  States,  and  instead  of 
appealing  for  relief  for  his  alleged  wrongs  to  that  Ciovern- 
iiieiit,  or  its  courts,  he  invoked  a  foreign  nation  to  aid 
iiiin  in  recovering  from  the  United  States,  without  re- 
turning to  his  country  of  original  citizensliip  even  to  pre- 
sent this  claim.  The  rule  is  undoubted  universally 
acknowledged  that  the  recourse  of  a  domiciled  person 
for  injuries  against  the  (tovernment  of  his  domicile 
is  in  the  courts  of  that  country,  exceitt  in  case  t)f  discriii)- 
iiiatioii.     The  principle  is  stated  in  Wharton  as  applied  in 

r«()urrelati<ms  with  (ii-eat  Britain:  "  A  citizen  of  the  United 
"  States  residing  in  Canada,  whose  property  there  situate 
"  has  been  destroyed  auti  pillaged  by  British  troops,  must 
"  .seek  first  redress  from  the  tribu.ialsof  the  country  under 
"  wliose  laws  be  has  settled  (2  Wbart.  Dig.,  Sec.  241,  and 
"  see  Sec.  22*5;   Keuworthy'a  Case,  Mixed  Commission, 


d 


<•! 


r   rM 


■•  I, 


Fii- 


r       I' 


U72 

(Mr.  Dickinson's  Closing  Argument.) 

"  185«;  Hally  </ »/.  Coniuiission,  1x71;  s«'»'  6  Papers,  iV. 
"  WjisiiinRton,  pp.  lit  i'<i;  Andoison's  Ciise,  /(/. ;  Movd - 
"Cast',  Miitisli  Agent's  Hcioit,  p.  12).  Aslii'ivtotoic  hi  n 
"  in  such  caaes.  tlicre  can  no  no  ground  for  intervcntii.n 
"  by  tlH>  country  of  original  allegiance  unless  there  be  dj.. 
"crimination  as  against  the  person  hecuuse  of  his  imln 
"  ical  nationality  as  between  hnn  and  citizens  of  the  (omi 

io"tryof  his  domicile."  At  page  Hit  of  our  printed  liriil. 
"  Ander.son's  Case,"  as  it  appears  there  should  he  "  .Mcx 
ander's  Case."  It  appears  hy  the  autliorities  liereinhit(iii> 
cited  on  the  subject  of  domicile  that  the  presumplioii  i-; 
that  a  citi/e]i  of  a  comitry  has  liis  residence  and  Ic-.il 
domicile  in  the  country  of  his  political  citizenship,  iinil 
that  the  burden  to  establish  domicile  in  any  other  count  iv 
is  upon  the  iHjrson  alleging  it.  The  burden  may  be  at  oik  !■ 
shifted  by  showing  actual  residence,  as  has  been  seen,  Imt 
if  there  he  anything  in  the  point  made  in  the  oppiwin;;; 

2oargument  as  to  Frank,  the  AbJiCans  and  Bechtel  on  thin 
alleged  don)icile  in  (ireat  Britain  against  the  conteiilinn 
of  the  United  Stales  to  the  contrary  as  heretofore  pri'. 
senti'd.  then  the  burden  woidd  certainly  he  upon  (Jrcal 
Britain  to  establish  the  fact  of  domicil  conclusively. 

On  the  record  there  is  noitretenseof  the  proof  of  Frank  «; 
domicil  in  Victoria.  There  is  no  such  thing  as  a  ( ivil 
domicil  for  purposes  of  trade  iritlnnit  residence.  That  is 
civil  domicil.  I  am  not  talking  about  the  distinction  in 
time  of  war,  as  to  which  distinction  I  have  read  from 

3oDicey.  "Jiesidence  and  home  is  the  supreme  lest  of 
domicil."  I  am  speaking  of  civil  domicil  but  not  doinidl 
in  time  of  war.  It  appears  that  he  was  a  partner  of  (Jnt- 
man,  but  there  is  no  proof  whatever  that  he  was  a  resi- 
dent of  Victoria,  as  he  was  not.  He  had  a  trading  dom- 
icil and  that  would  have  hound  him  in  time  of  war,  l)nt 
he  bad  no  civil  domicil.  This  is  all  there  is  in  the  record 
bearing  on  lesidence: 

"Q.  In  Niivoiiibrr,  IHHH,  were  you  a  rositli-nt  of  Victoria?     A.  I  lip- 
"  licvc  I  wnH;  niii  not  iiuite  iiositivc  nliont  the  time     I  wont  fo  Siiu 
40  "  l'"rancin('o  citbtT  tho  latter  part  of  18HH  or  parly  part  of  IHH',1,  anil  I 
"  stayed  tberi'  Huvcrul  niuutliN." 

We  have  submitted  in  "  .Appendi.x  2  "  of  our  brief  all 
the  testimony  in  the  r(L;<rd,  and  every  item  (tf  it  bcaiing 
ui>on  the  citi/enship  01  residence  of  Alexander  Frank, 
Andrew  J.  Bechtel,  Dai  iel  MclA»an,  Alexander  Md-ean 
and  Thomas  II.  Cooper. 

As  to  Bechtel,  there   is  .10  conclusion   upon   his  tcsti 
monj',  because  he  contradics  himself  directly  by  his  sev- 
eral  oaths,    and    is    shown    hereafter    under    the    hcnl 

50"Carolena"  to  be  unworthj  of  credit.  Fnlsus  in  mu). 
Jd/.sn.s  i)i  oiiniihn.s.  His  hotel  business  is  no  evideme  of 
civil  domicil.  The  authorities  are  cited  in  my  brief  at  foot 
of  iiage  M*.  Tn  an  affidavit  he  has  sworn  that  lu'  was  iit 
onetime  a  resident  of  California,  and  afterwards,  in  .111 
alTidavit,  as  in  his  testimony  here,  coveting  the  period  of 
his  attidavit  in  (-'alifornia,  he  swears  that  he  was  a  nsi 
dent  of  Victoria.  His  mere  affidavit  to  the  contiaiy 
is  not  evidence  for  him,  and  his  admission  of  residence 
in  California  is  evidence  here.     From  the  witness  box  at 

<JO  Victoria,  throughout  bis  examination,  he  was  duiiil)  on 
the  (|U('8tion  of  his  residence  in  California;  while  Mniisio 
testifies  to  the  time  wlien  Bechtel  was  living  in  California, 
in  corroboration  of  the  admission  by  affidavit.  His 
ownership  of  real  estate  is  no  evidence  of  domicil,  <'x- 
cept  iu  time  of  war,  and  even  then,  says  Sir  W.  8cott,  4 


ii7:i 


(Mr.  DirkiiiHon's  Clo'^iti^j  ArRunionf.) 

lioliiiison,  |la^M■  •_'.'»">.  Tlu'ic  is  no  fvidencc  that  fitlxM' 
Kiiiiik  iir  Mfclitfl  wtTU  (luiniiileil  in  (irt-at  Hiitaiii  at  \\w 
liiiH'of  til)' C'iiiiv<>nii()ii.  Daniel  McLean,  as  appears  l»y 
llie  lecind.  Iiecanie  a  natniali/ed  citizen  of  the  I'liitell 
States  on  I  tctohei' ;(,  1nm-_',  ,iimI  lie  hecaint?  such  nnder 
the  Naturalization  'I'leaty  helween  (iieat  Hiit.iiu 
and  tlie    L'niteti    States    oflsTn       There    is  not  a  woid 

i(,Ms  to  his  residence  ni  Victoria  in  the  Kecord, 
liut  ther«'  is  a  statement  of  his  residence  in  San  Kran- 
cisi  o  in  is'ti'.  and,  also  the  testin  ony  of  Lnhhe  thai  haniel 
MclA'an  appeared  at  Victoria  in  |ss:!  as  one  of  the  crow 
of  the  American  vessel  tlie  '"("ilyof  San  l)ie)j;o."  And 
furthermoie  as  shown  in  Ml-.  Warren's  arKmtient,  wliat 
had  escaped  nie  m  the  testimony  of  Alexander  Mcl,ean  — 
he  swears  to  th.  residence  of  Daniel  McLean  in  San  Fran- 
cisco at  the  time  of  the  seizures  in  lHM»-that  should  he 
addeil  t<i  tlie  statement   in    my    hrief. 

JO      Mr.    Peters:   - 1  do   not   see  how  he    could   he  in  the  Her- 
ii]^  Sea  and  at  San  Francisco  at  the  same  limef 
Mr.  Dickinson:-  lie  was  livinj^m  San  Francisco. 
.Mr.  I'eters:  — At  the  tune  he  was  at  sia< 
Mr.  Dickinson: -Certainly,  he  had  a  home  there. 
As  to  Alexander  McLean's  American  citizenship  there  is 
nocpiestion:  and    while  the   testimony  as  to  him    is  the 
strouj^est  in  the  KeconI  as  to  any  residence  in  Victoria  at  the 
time  of  the  seizure  of  the  ships  he  was  interested  in,  there 
is  n(M|uestion  whatever  that  for  a  lonj?  time  prior  to   the 

^nConvention.  atitsdate,  and  ever  since  he  has  had  his  dom- 
icile in  the  City  of  San  Francisco.  On  the  (piestion  of  hur- 
den  of  proof  to  estahlish  the  relation  to  a  per.son  which 
would  enahle  (Jreat  Britain  to  make  n-damation,  it  is  set- 
tled hy  the  decisions  under  all  the  Couunissions  hereto- 
fore referred  to.  So  fai'  as  these  (juestions  (d"  donucil  in 
respect  of  Americans  ahroad  are  concerned,  we  have  es- 
t.ddislied  their 'itizenship  heyond  (|uestion  ami  their  own- 
ership. It  follows,  that  if  (Jreat  Britain  shall  shift  from 
the  };idi;iid  heretofore  taken,  that  ownership   in   that  na- 

41. lion's  political  suhjects  is  concluded  hy  showiii};  a  shi|)'s 
register,  and  now  claim  the  light  to  protect  Anu'iican 
citizens  as  aj^ainst  their  own  country  hecause  of  their 
ilomic  il  la  proposition  never  heard  of  i>efore  except  in  the 
argument  herei,  the  change  should  at  least  start  from  the 
pustulate  as  to  them,  that  their  domicil  hy  residence  has 
lieen  conclusively  shown,  hoth  at  the  time  of  the  seizure, 
and  at  the  time  of  the  treaty  and  presentation  of  the 
claims.  Thecpiestion  remains  as  to  the  effect  of  partowii- 
ciship  hy  ail  .\mericau  citizen  with  a  British    suhject.     If 

■;o Joint  owners  or  partners,  the  whoU'  claim  must  fad  heyond 
ijiieslioi).  A  recovery  cannot  m  such  case  lie  had  for  a 
moiety  hy  the  rules  of  internation.d  or  ((unmon  law. 

liut  we  suhmit,  upon  the  argument  heretofore  pre- 
sented, that  no  claim  can  he  made  for  these  American  cit- 
izens alU'ged  to  he  domi<iled  in  (rreat  Britain,  even  if  the 
fact  of  the  domicile  were  shown.  We  suhmit  that  the 
ilomicile  in  (Ireat  Britain  has  not  heeii  shown  as  a  second 
mound:  and  third,  we  suhmit  that  no  Biitish  suhject 
ildiniciled    oil    .American   soil    and   slill    remaining   there 

6(.)tlnoughout  the  time  of  his  violation  of  the  assertion  of 
•overeignty  hy  thel'iiited  States  in  Bering  Sea,  remaining 
ilii'ie  since,  remaining  as  a  domiciled  civil  citizen  then  and 
remaining  there  now,  with  ourcouitsdiuingthe  whole  time 
opi'ii  to  him.  can  m.ike  reclamation  in  an  International 
Court  like  this,  under  the  protection  of  the  sovereignty  of 
(ireat  Britain,  hecause  hois  a  national  of  the  United  States 
mill  a  civil  citizen  owing  allegiance  to  that  nation. 
At  five  o'clock  the  Conunissioners  rose. 


hi 


■- 1    .J    , 

.r''l^'vJ 


'■    i' 


CommiBsioners  uuder  the  Convention  of  February  8, 

1886,   between   the   United   States  of 

America  and  Great  Britain. 


lO 


lirnislativo  Comiril  ClianilM-r,  I'loviiici.tl   HuiMihl;, 
At  IliiliCax,  ScpifiiilMT  2J,  l^'.t; 

At  10  :i(»  A    M.  the  ('((inmissiiiiit'is  took  their  scal'- 

TIh- ("uiiiinissioiifi' on  the  part  of  tin-  I'liitcil  Slal.s, 
Bi'Coif  yini  prorccd,  Mr.  Dickinson,  1  wish  to  niiiilMii 
tliat  thtTc  is  a  late  ilct'isiiiii  nf  tli<<  Su|Mcni(' Cuui  I  \\hi<li 
tonchrs  Ihf  (jucstinn  of  tin-  re^jislry  of  vessels  inii|<  r 
statute.  I  havf  not  seen  it  cited  on  either  side  here,  h 
is  a  case  wliich  I  am  <|iiite  sure  will  he  hroii;,;lit  In  ms 
consideration  l)ef'ore  I  am  ahle  to  careliilly  examine  tin 
issue  picsented  lu'lore  Us  here,  and  therefore  |  tlmnjilil  n 
2a  .just  to  mention  it.  If  they  sent  it  tome  correcily  rh,|ii 
I'ortland  it  is  the  ca.se  of  Hrnne  rs.  I'nitt'd  Slates. 

Mr    Dickinson:-  Has  yom-  Honor  seen  itf 

Tile  Conunissioner  on  the  part  of  the  I'niled  Slate-  j 
have  not  seen  it  lor  som<'  time;  I  simply  know  thai  it  i- 
our  ^uide  in  criminal  cases  to  a  certain  extent,  and  it  k 
lialde  to  he  hrought  to  my  attention  in  a  latlier  m.nkrd 
way  hefore  tinse  matters  are  carefully  t'xamined  here 

Mr.  Dickinson:  I  have  endeavored  in  the  discus^idn  ni 
tliis  matter  to  cite  cases-  with  a  single  ex<eption  wlii(  h 
3ol>ear  diieclly  upon  tht>  <|ueslion  <d'  international  law.  1 1| 
coinse  as  to  municipal  law  and  statutes,  these  should  liiivc 
no  heaiinj;  upon  the  i|Uestion  of  tlieelTectof  the  re^i-li\ 
in  a  mailer  of  internalioiial  relations.  1  cited  the  !in;.;ei- 
caK(>  from.  I  think,  the  same  volume  which  contains  ihr 
case  your  Honor  refers  to.  That  was  a  (|Uestion  of  jmi- 
diction  over  the  seas  in  respect  to  ovvneiship  of  vessels 

The  Conmiissioner  on  thejiaitof  the  Inited  Stale- 
You  also  cited  a  case  in  which  it  is  held  that  a  vessel  is  uni 
.in  .\meiican  vessel  under  certain  criminal  law. 
4c,     Mr    Diikiiison:     You  refer  to  the  United  States  a-aiusl 
Armisted. 

The  Commissioner  on  tile  )iart    of    the  I'liiled  States; 
No.  it  was  a  criminal  case,  the  opinion  of  .ludp'  Story. 

Ml-.  I'eleis:-   I  think  it  was  cited  in  our  Itrief. 

Mr    Ditkinsoii:     It  was  referred  to  in  our lirief as shiiu 
iiij;  that  Hie  ownership  of  a  vessel  determines  its  n.iliixiil 
character       I   also  cited  the  I'niled  Slates  a>i;aiiisl  Ifuj^vi- 

'I'lieCommi.ssionei' on  the  part  of  Her  Majesty:     'I'li.il  i- 
reported   in  volume   l.Vi,    United  States   Ifeports;  in  veiii 
5ooial  argument  vou  seem  to  have  dropped  out  the  refeieiic.' 
totliat. 

Mr.  Dickinson:— Certainly  I  am  doing  so  asto  otlier  i  iii 
tions  in  our  hrief  in  onler  to  sliorten  tlie  discussion.  We 
iiave  condensed  our  vitnvs  on  international  (|uestinns  to 
l.^u  odd  |»ages.  I  assume  tliat  your  IIoikms  will  read  lli.il 
printed  argument,  and  tlierefore  I  have  saitl.  in  disciissin;: 
tile  law,  that  I  am  niferring  only  to  tlie  positions  l.ikeii 
where  criticisms  have  Iteeii  made  upon  our  citations.  1 
had  taken  special  pains  in  the  |>rinted  argument  not  lo  lir 
6o'liscursive,  hut  to  cite  cases  liuariiig  u|)on  inlernaliniial 
cases  only,  and  to  cite  only  loading  cases  and  cases  ul 
courts  of  last  resort  and  of  hin<ling  antliority.  I  su|i|p  i-r 
they  will  all  lie  considered,  even  if  not  referred  to  oialiv 
Tiiere  is  a  single  exception,  however 

Tlie  Conunissioner  on  the  part  of  the  United  Stales: 


1*7 


itfS  il'MMWl 


(Mr.  Dickiiisoirn  Closiut;  Arguiiiuiit.) 

It  is  pdssilile  tliiit  tin-  liisi'  I  liavu  in  iiiiixl  is  riiiti.'il  States 
iigaiiist  Hi'iiii<>. 

Mr.  i>ickiiisi)n:  That  is  r('|»(irted  in  '.'d.  Wallace, 
lunior,  a  .V/.s/  I'n'ns  case,  lliat  I  nscil  for  illiistratimi. 

Mr.  I'«'l<'rs:  We  niinim  iiIlmI  mi  tlic  ca^c  iil  llii"  I  iiitfd 
Stairs  aKaiii.><t  Hrinit' at  pap-  l>  otdnr-  n-ply. 

'I'lif  C'(ininiissii>ni'r  on  the  pait  nf  tlic  rnitui  Slates:— 
h  Till'   I'nited  Statt's  against    Hriinc  is  the  casi-    1   h.id  in 
mind. 

Mr.  Dickinson:  -'i'licrc  is  iiocasc  csialiiisliinj;  that  rcj;i8- 
try  is  even  jniiiiii Jhiii'  t-vidrncc  ^<\'  title 

Thf  C'oinniissionfr  on  the  part  of  the  I'nitcd  States:  — 
'I'lieic  is  no  tlonhl  that  registry  is  not  /iniiHi  furii:  evideiice 
<>r  title;  that  has  hecn  sclllcd.' 

Mr.  Dickinson:     Hy  intciiiational  law  it  is  not  even  ovi 
ilence  of  nationality. 

The  C'oinnii.ssioner  on  the  parted'  the   I'nited  States:  — 
20  Tile   United  States  against  lirinie  on  the  lace  of  it  is  op- 
poseil  to  Sinclair  c.s.  The  I'liited  States. 

Mr.  Dickinson:-  I  will  get  the  Sinclair  case  and  distin- 
gnish  it. 

The  Conuni.Hsioner  on  the  part  of  the  I'nited  States:— 
My  advices  from  Hoston  lead  me  to  iid'er  that  I  shall 
have  the  (piestion  hefore  me  shortly  to  rnle  upon.  I'er- 
li.ips  lean  get  the  lienefit  of  some  light  here.  At  any 
lale,  I  thought,  as  1  was  liahle  to  he  called  upon  to  rule 
(111  that  case,  1  ought  to  advise  each  side  in  reference  toil. 

Damacjks. 

Mr.  Dickinson:-  I  now  coine  to  the  (piestion  of  Damages 
and  I  have  cited  in  my  hrief  all  the  cases  from  interna- 
tional trihunals  and  ail  the  cases  of  courts  of  last  resort 
luaring  i>n  the  ipiestion  (tt  |»rospective  piotitsor  prosp(>ct- 
ivf  c.itch  as  a  measure  of  (laniages,  to  which  access  could 
ill'  had  in  the  lihiaries.  together  witii  the  leading  opinions 
(if   |iui»licists.     Those  that  I  have  not  set  out  in  my  hrief 

4ulieaiing  hoth  ways  will  he  found  cited  and  discussed  in  the 
authorities  that  I  do  cite  in  my  hrief.  I  except  the  "City 
(if  K'ome  "  case,  the  original  report  of  which  1  could  not 
tiiid  and  therefore  did  not  cite  in  my  hrief,  hut  after  its 
preparation,  which  was  finished  under  the  rule  hefore  the 
l>l  April,  I  endeavored  to  oiitain,  and  did  ohtain  an  au- 
timritative  memorandum  of  tlie  "City  of  Rome  "  case  re- 
feired  to  in  the  te.xt  of  Marsden  on  Collisions,  and  that  is 
now  here.  The  other  case  which  is  not  in  my  hrief  is  the 
(a^eofthe  "  L'mhiia  "  in  the  Supreme  Court  of  the  I'nited 

5i  states,  which  had  not  heen  decided  when  I  made  the 
l)rief. 

I  had  directed  that  this  citation  should  he  sent  to  the 
liritish  counsel  and  to  hoth  Conimissioiiers,  hut  hy  some 
mi-take  it  was  only  sent  to  one  of  the  Commissioners.  1 
(lirected  to  have  a  corresponding  letter  at  once  .«ent  to  the 
I'll  it  ish  counsel,  hut  that  was  omitted.  That  case  should  l>e 
aiiiied  to  the  brief. 

Tin;  Commissioner  on  the  part  of  the  I'nited  States:-- 
I  would  like  to  put  in  the  coimecting   link  hetween  oral 

'oaiiil  the  printed  argument,  and  I  suppose  this  case  can  be 
added  at  the  bead  of  i)age  )»8 

Mr.  Dickinson:  -Yes.  If  her  Majesty's  counsel  would 
;i(id  at  |»age  109  the  case  of  the  "  Umhria,"  l*'.*;  I'nited 
States,  page  4(»4,  it  will,  with  the  "City  of  Home"  case, 
mmplete  our  citations. 


w 


M 


Hit! 


«j  [^l. 


I;-; 


(Mr.  |)ic'kiiis()i)'s  ClnMiiiK  Ai-Kiiini>i)t  i 

I  hli.ill  liist  .nlilifss  mvscit'  p'lii'ially  Id  llie  ilasn  uf  jm 
tlioiiti»"<  <iU'(l  liv  my  fiU'iiilK  on  tln'ndirr  snlf.  oiit'.iili.  ,,i 
fiiHt's  (Hcuiiiiij;  on  tli»'  liiuli  seas.  'Vit  lliis  i  lass  mav  l.i' 
nssij;iu'(l  tin-  rases  wliicli  liavc  Umi  cited  liv  niv  le;iiiM.| 
fiieiiil  Ml'.  Kniiwell.  arising  iiiiiler  iIk*  assertion  nt  eiiiiiien! 
domain  liv  Stales;  and  the  ease,  al-o,  ( ited  Iroin  ||  Mirlu 
^an  K'e|inrts,  \vlii<  h  was  an  invasion  liv  a  laiidloid  nf  n,,. 
I<~|  jiremises  of  his  tenant :  and  all  t lie  other  riass  of  i  ase-^  |., 
theetl'ect.  as  eiled  liy  Mr.  I'eleis,  that  tiitilie  |irotits  m,, « 
coii^ideied  ill  damages  to  realty.     The  other  clnss  lii 


rases  to  wliieli    I  call  alteiilioii  are   th<'  cases  of   |iei-iiii;i| 
injury  ii|Min   lailioads.  whereby  the  earning  ca|ia<'ity  i,|    , 
|ieison  IS  impaired  and  evidence   has  heeii  iiitrodn>'ed   in 
order  to  tix   the  damages  to  he  awaided  to  tln'  persun  ~i, 
injiiied  III  respect  of  Ins  earning;  capa;ily. 
'I'hi>  cla'-s  of  cast  s  is  not  in  point   at   all.  and  cannot  lie 
in  all  injiiiies  to  realty,  of  coiirse,  there  isnodestnu- 
lotion  of  the  /('.s.  no  total   loss  (d'  the  Miiiij;  injured.      If  jt 
could    lie   conceived   that  a  ship  at  sea  could    he   pemii 
iieiilly  injiiied  so  as  to  he  heyoiid  the  poHsihillty  of  lepiji. 
then  the  rule  iniKliI  allacli,  hnt  that  is  an  impossiMe  sii|i 
lositioii;  she   nii^lit    then   recover  np    lo  her  total   value 
lecaiise   ol    permanent    injury    to    her  earning'    cap.Kiiy. 
H.it.  let  us  hear  in  mind  that  cases  referring;  to  realtv  .iie 
upon  the  siihstaiitial  principle  that  realty  can  only  hi   im 
paired   in  value,   not  destroyed,  and  such  cases  are  wiili 


the  principle  (d   the  rule  that  you  cannot  ^ivi 


-pertivc 


3opi(itits  as  to  personal  property  (h'slroyed.  hnt  inav  ;;ivt 
soniethin;;  in  the  naluieof  a  denniriap'  or  damage-,  jm 
temporary  or  repaiiahle  injuries  to  personally. 

As  to  the  ship  that  is  temporarily  ilisahled.  yon  may 
^ive  something  in  the  nature  of  deinnrrap-,  and  ns  to 
realty  that  is  iinpaire(i  in  value  you  never  can  destiov 
it— you  may  };ive  something  in  the  naluieof  ■,[  loss  uf  its 
eainiii;;  capacity,  impairment  id'  piod  will,  and  >o  mi. 
In  Indh  ca^is  you  apply  the  principle  id'  partial  los^  .\,s 
to  a  ship  which  may  he  destroyed,  you  can  only  j;iM.  iji,. 

40  value  of  the  ship  as  a  natural  and  le^al  conse<|uence  of  the 
As  to  the  really,  which  can  never  he  destroved, 


injury. 


yon  are  always  upon  the  priiw  iple  of  partial  loss.     As  ti 

the  ship  that  is  destroyed  you  are  upon   the  principle  , if 

total  loss.     Your  Honors  will  lind  even   in  the   II    .Mii  h. 

case.   C'hamller    r.  Allison,  which   is    the    leading;  (.ise  nf 


anion,  willful  .ind  malicious  tort,  and  which  wa^' 


iiaind 


(ir 


hy  your  Honors"  friend,  the  late  Charles  I,  W.ilker,  f 
the  plaintilf  Allison,  that  the  ri^^ht,  not  to  recover  fiiiim. 
prolils,  hut  to  otTer  in  evidence  \y,[s\  protils  as  eviden.  e  nt 
50 the  injury  to  the  realty  as  to  its  e.irninp;  capacity  w.is  put 
upon  Ihe  ground  that  the  suhject  matter  (d'  the  suit  was 
realty,  aiul  that  the  thing  injured  w.as  soinelhiiij;  lli:it 
grew  out  of  it,  to  wit,  good-will.  'I'hal  is  the  hnrdeii  <i| 
.Indge  Charles  I.  WalkerV  argument. 

And  to  he  careful,  even  in  that  e.Mrenie  c.ise.  your  Hun 
(lis  will  lind  in   .Judge  Christiancy's  judgment,  delivering 
the  opinini)  of  the  Court,  that   he  excepted  as  sonietlijn;; 
that   should   he    heyoiid   the    riih;— the  cases   of   peixmal 
property  th.it  could   he   totally  destroyed-  and  he  d.-iiihs 


'^tlui  capture  of  a  ship  at  sea,  and  classes  them  all  under  t 
head  of  trover  ;uti<ins  or  cases  whore  there  is  a   total  i 


nil' 


version  or  joss 


Th 


lese  aie  lieyoml  the  rule,  even  m  ca'^e.s 
of  willful  tort.  The  rule  of  d.images  as  to  such  cases,  as 
he  excepts  them  <tnt  under  the  single  general  term  trover 


tioiis,  is  that  vol!  cannot  even   receive  evidenie,  f 


0  sav 


877 


(Mr.  l)ickinsnii'8  CloMii);  Ar(,'iiiui'iit.) 

■lothiii^;  of  iiwaidiiiji  ilfimni{«'s,  fur  fiiliin-  prnllfs  of  jhm' 
niial  |MoiM<rlv.  'I'lic  only  (lainaurs  lo  he  nivcii  is  |Im< 
\  aim*  of  (lit'  |>io|M'il  V,  Anil  so  lor  nitMlircaiilidn  still,  ho 
IS  not  to  srt'Ui  from  his  nt-nrral  statcint-nt  to  lie  in  nui. 
ilii  t  Willi  the  nnivirsal  ,jiiil^nM>nl  of  tlio  world,  tluit  fvi- 
:.  nt'L'  of  |)ios|>»'rlivc  |M(iti|s  ami  |Miis|ii'rlivt'  earnings  ran- 
■  H.|  lie  aililniril  in  i('s|)(i|    of  r;iiiiin;;s  of   vessfN  ,il    sea, 

icii''  t'Xif|i|s  all  that  ila-s  of  cis.s  s|iitili(ally  from  tlif  inio 
i-i  (hat  case  t'lilirrly.  ami  Ihcii  In'  ilisjiosrs  of  my  frii'iiil's 
..iliiT  conli'iilioii  on  till' llii'oiy  of  intriit  as  atr<'itiii;i  tll(^ 
.|iiistioii  of  ilamap's.  in  harmonv  with  lip'  (loctriiii! 
i|i|i|yiii^;  here  licvoiiil  (|Ui'slioii.  in  ihcsc  words,  w  hiili  aro 
in  his  o|iinioii.  I  read  tliim  tiom  the  head-notes,  hecaiisn 
lli-y  are  there  staled,  lnit  tiny  are  tlu're  e.xailly  ipioted 
(loin  his  opiiiioii:  "  Whcie  suit  is  liiciiij;lii  for  a  tiespass 
'  (oniinilled  while  the  delind.'iiil  wa^actiii^'  in  ;:<iod  faith 
"  .Old  under  an  IioiM'sI    heliel   that  he  had   i  lej^- il    ii<.dit  to 

.'(  <lo  the  act  <'oni|>lained  of,  the  plaiiitilV  is  eiililled  to 
"  lecovet  only  tlic  iit'tnal  d.inia;.;e^  sustained  hy  hiin,  and 
■not  damages  of  a  |innitoi  .  ■■  exemplary  char.ictei'' 
HI  Mich.,  .■>4-.'i.  So  1  don't  ear.  whether  the  rapture  in 
uillfnial  se.-t.  If  till"  proper!  s-  j-;  taken  and  is  a  total  loss 
I.I  the  owners,  the  rnle  of  daMi,,;;e  laiil  down  in  Ih.it  casu 
I- ilie  value  of  thepropeit'  hut  I  may  .as  Aell  put  this 
III  lli'le  jlieolinert  |on  \\  it,  iiatease.  I*'  it  can  he  shown 
tlial  the  action  w.is  Wiiiiton  and  i  hat  always  m\o|ve^  the 
i|iiistion    of   (■/■/'/    iiiiihfc     soiiK  till.!,":    in     the    nature    of 

•,o«\.'inplary  daniajje  lan  he  {^iseii.  lint  never  prospect ivo 
|iiiilils.  No  coiPt  has  evei  dreaineil  even  in  a  red  ,i(  I  ion 
III  hanj;iii>^  npirii  the  question  d'  will|iiini->  oi'  cnil 
iimlivea  ineasiiie  of  d.inia.ii.s  liiviii;;  prospective  piolits. 
A- tar  ;is  any  court  has  ;;i  .lie  even  n  ie,i|  est.il.'  .I'tioiis 
is  I.I  take  tn'idence  of  eaniiiij;  cipai-ii  ■  and  iis.'  it  in  order 
to  fstiniate  actn:il  dama,t;.'s. 

Next,  the  case  of  the  snrni'on  injnn  i,  on  the  London  & 
N.iith  Western  I  Jail  way.  this  class  of  casi-s  asyoiir  lion,  as 
kiiiiw  is  .s/(/ (/('((('/'/.s- ;ind  there  is  no  coiitlict  as  to  the  piiii- 

.joiiple.  The  case  makes  an  analo>;y  to  llie  cuse  of  paiti.il 
lii^s  at  sea,  the  imp.iiinieiit  of  can. i.e.;  c.ipacity,  of  course, 
.IS  I -.in  he  reaiiily  seen.  It  is  imt  ;i  c.ise  o|  total  loss  iie- 
caiise  the  man  was  imt  killed.  If  he  were  killi'd,  e.xiept 
liv  Lord  CampheH's  act  and  similar  acts  in  our  country — 
ill.  re  can  he  no  recovery  for  his  (le.itli.  Imt  hecaiisc  he  is 
injured  .and  his  eitininj;'  capacity  is  impaired  we  have 
.i;:;iin  the  principle  of  partial  loss  and  the  measurement  of 
li  iiiiau'es  accoi(lmjj;ly.  It  is  a  r.idically  ditfereiit  principle 
ti'iiii  that  .applyiiifi  to  the  conversion  or  tortious  destriic- 

;i.ii.iii  of  a  vessel.  It  is  (piite  a  ditfiient  thiiij;  from  a  total 
j.iss  of  a  vessel,  with  the  universal  rule  applvinj^  as  jn  all 
.Klioiis  that  the  measure  of  dam.i^es  is  s(dely  the  value 
of  the  tliinj;  destroyed.  ( )f  coiiise.  in  the  cases  of  eminent 
iloiiiniii,  to  which  I  will  refer  directly  the  case  is  put 
-■(|ii,ii'eiy  upon  tills  principle  that  under  eminent  domain 
where  property  istak*'ii  for  piihlic  use— the  law  recpiires 
that  full  comptuisafion  sli.all  he  made,  and  the  courts  of 
(Iiv;il  Britain  an'  the  United  States  hold  that  as  to  the 
imit    th.it   renmins— not    destroyed,    hut   ini|>aiied  — it   is 

6osiiliject  to  the  rule  that  full  "Oinpensiition  sh.all  he  made, 
Mot  (inly  for  the  real  estate  uctually  taken  hut  the  iinpair- 
nuiit  of  value  in  the  remainder  that  is  not  taken  is  to  be 
jiaiil  for. 

Ill  any  case,  except  under  certain  cases  of  contract,  the 
expected  speciflc  profits  cannot  be  recovered  for  the  loss 


III 


M 


lO 


978 

(Mr.  Dickinson's  Closinj;  Arguint-nt.) 

of  tilt"  nso  (if  tlie  v»'s^('l.  Tiio  »'X|tect(Ml  speclHc  piotit-  k  • 
tak«'n  into  ciinsidt'iation  tVoni  tin- eiiinin^  <'ii|)aritv  ot  lii. 
vcss«'l  in  order  toari'ivt>  at  a  pi'opcr  nu-asnif  of  tiani.i^i'  m 
tilt"  n.itnit'  of  iK'munap'.  lint  in  no  oase  can  tlw  r\ 
pt'ctcii  spccilic  loss  he  given  in  the  case  of  partial  inim  \ 
I  rvlVr  to  st'ction  I'.tti,  page  I'sii,  of  Sedgwick,  Daniij;.--, 
Mil  edition  — 

'•  Itut  I'xpci'tt'il  Hpocirti-  prolltH  ciiiiuot  ho  recovcrod  for  tlio  liis<  ,,f 

IISI'  of    tlu'   VONHl'l." 


;fl 


il    i 


It  is  merely  the  loss  of  earning  power  during  the  jmi  ii„| 
she  is  laiil  up,  and  the  matter  of  piotits  is  sometnnes  (mi 
iideied  as  a  matter  of  evideni'e,  l)ut  never  given  as  iMdlii-. 
even  in  cases  of  |)artiai  loss.  My  friends  iiave  cited  in 
their  aigiimcnt  in  print  -and  again  in  their  oral  aiuu 
inont  -writers  on  the  Code  Napoleon  as  to  the  nieasuiK  of 
damages  in  this   International  Court.     French   writers  of 

-othe  civil  liiw.  wiiich  is  tlu'  parent  of  the  Code  Napulcoii. 
are  also  cited  as  to  the  rule  (d"  damages.  Hut  tiierc  iN  hd 
rule  of  law  as  to  damages  to  he  awarded  in  c.ise  of  toit  liv 
tlu'  ( ivil  law  at  all.  and  the  civil  Iww  can  cut  no  figure  iii 
an  international  court,  when  the  law  accepted  liy  lioti) 
nations  is  the  law  of  nations  for  that  court.  The  dis 
tinction.  for  the  i  ule  of  damages,  hetwei'u  the  rule  under 
the  Civil  L,iw,  the  Code  .Napoleon  and  oms.  you  will  tind 
fnllv  discii.ssed  in  Sedgwick's  latest  work  on  l)amages. 
Aftei' a  full  review    of  the    rule  of  damages  under  the 

3oCivil  Law,  your  Hoiiois  will  find  hnn  quoting  from  Iho 
same  puhlicists  and  w  liters  cited  in  our  friend's  hrief.  .At 
pages  24  and  25  et  .si'tjiiihir,  the  learned  writer  says: 

"  The  I'ivil  law.  as  iiitroiluct'd  into  iiiodi'i'ii  Kuropc,  sorms  to  Imvo 
"  ri'tiiiiH'il  tho  t'lirly  fciitiircs  of  its  (iriniiuii,  in  tlic  ivs|iu('t  of  wliicli 
"  we  iirt"  now  Kiii'iikiuK.  luiil,  instcail  of  laving  ilowu  anv  tixcd  or  arlii- 
"  trary  rnli',  to  liavc  left  tlic  niattor  vt'ry  niiicli  to  tlio  (liscrutioiiarv 
"  fonsiilcration  of  tin'  triliunal  wliicli  haw  I'ognizani't'of  tlu'  I'ansc,  S(i, 
"  nniler  tliis  systi'in  as  cHtalilisln-d  in  Krani'c,  and  provious  to  tlio 
"  adoption  of  tin'  Code  Napoleon,  dama^'os  won'  divided  into  intcrust 
"  and  daniajji's  {inlrrelrt  ami  i/<))iiiiiiii/rs-iiilrf<tsi.  Inlfrrl  answers  pre- 
40  ••  (.JBcly  t(i  our  interest,  and  is  the  nieusnre  of  dannvges  intlii'liil  for 
"  the  lireach  of  a  mere  peeuninry  ohlipition,  as  in  the  common  oasis 
"  of  hills  and  notes.  Ih.mmiiiji's-iiiliTils  correspond  with  our  term 
"  dnninKeH  in  its  apidieation  to  all  other  forms  of  action;  and  in  this 
"  respect  it  is  that  the  systenj  ap|>ears  loose  and  uncertain. 


.Vfter   layinn  down   tin'  rul 


regard  to  inti'rest,  which,  as  with 


"  «R,  is  limited  to  a  fixed  rate,  Domat  says:  '  Tlie  other  kinds  of  dani- 
"  ages  are  undefined,  and  are  incri'ased  or  dimiiiished,  at  the  iliscre- 
"  lion  of  the  jud»j;e,  according  to  tie!  facts  anil  circumstances  of  the 
"  partn'uli.r  case;  thus,  in  the  case  of  a  tenant  who  omits  to  nutkc  the 
"repairs  to  » liii'h  he  is  hound  by  liis  h'ase.  or  of  a  contractor  who 
"  does  not  jicrform  his  contract,  or  perf  irnis  if  ill — in  either  case  they 
50  "  owe  an  indi'tinife  annmnt  of  (hinui:,es  resulting  from  the  default, 
"  and  those  danniges  are  differentia  regulated  according  to  the  di- 
"  versify  of  the  losses  whii'h  happen,  tin"  miture  of  the  facts,  and 
"  the  atteinlauf  cin'umstanciw.'  And  he  illusirntcs  these  rules  liy 
"  one  or  two  cases  as  to  profits  claimed  as  loss,  \.  i.ere  he  says:  'It 
"  must  lie  left  to  the  discretion  of  the  judge  to  arrive  at  sonn-  mcas- 
"  lire  of  compensatiou  according  to  the  circumstances  and  the  par- 
"  ticular  usages,  if  thi're  are  any.'  .Vnd  again:  'It  results  from  all 
"  the  preceding  rules,  that  as  ipiestions  of  danniges  de))eud  on  tlie 
"  attendant  facts  and  ein'umstauces,  they  must  ho  decided  hy  a  sound 
"  discretion,  exercised  as  well  with  regard  to  the  circuuistau'ceM of  the 
"  ca«e  as  to  general  princiiiles.' 

"  And  so  says  I'othier:  '  It  is  necessary  to  exerclBO  a  certain  degree 
"  of  moderation  in  estimating  the  uinouut  of  damages  according  tn 
"the  ])articulur  case.'  And  again,  'Danniges  urn  to  be  ino '"rated 
"  where  they  would  otherwise  be  excessive,  by  leaving  the  coniputa- 
"  tion  to  the  arbitrament  of  the  judge.'  Ho  again,  'Where  the  daiu- 
"  ages  are  considerable  iu  amount,  the"  should  not  be  rigorously 
"  MsesBed,  but  with  a  certain  degree  of  moderation.     And  again,  evcu 


.X) 


!»(!• 


I>'., 


(Mr.  Dickinson's  Closing  Argumont.) 

in  cases  of  fraud,  '  It  niUHt  W  loft  to  tlut  diHcrotion  nf  tlio  judge, 
evfu  in  i'a»i'H  of  fraud,  to  oxiTfiwo  a  ct'rtiiiii  di'i^rct-  of  indulKouco  in 
HxiuK  tlic  iiinouiit  of  dikiiiuKOH.'  Merlin  uhoh  Nulmtuntiully  the  Hame 
lunKU»Ke  ;  liu  HavH,  '  It  ix  to  1it>  obNorvod  that  tho  law  of  JtiHtiuiau, 
HO  faran  it  liniitH exorbitant  or  «x<'t'Hnivt<  danukK*'**  to  prt'cisolv  double 
the  value  of  the  thinj?  in  eontroverHv,.  Iuih  not  the  force  of  law  with 
tiH  |and  the  ('ode  liaH  not  incorporated  it  aiaon^  itH  proviNioUH] ;  but 
the  ))rinei|ile  on  which  it  is  founded,  beinn  one  of  natural  eiiuity, 
Hliould  be  adhereil  to,  by  moderating  the  daniafjcH  wherever  they 
are  too  Kceat,  by  leaving;  them  to  the  arbitrament  of  the  jud^e.' 
»•»»♦» 

"  Our  law  dilTors  very  materially  from  all  thene  HyHteniK.  liy  the 
"  general  HVHtem  of  our  law.  for  every  invasion  of  right  thoro  in  a 
"  remedy,  and  that  remedy  iw  iiimpeiisalinii." 

Your  Honors  will  stu'  tlioit'  is  no  rnlo  at  all  Ikmv,  and 
1  Icavf  tho  anthoritics  and  citiition  in  my  friend's  Iniof 
witli  this  icniaik,  that  the  rnlo  of  damages  in  Interna- 
tional Law  has  always  heen  the  rule  of  damages  under 
^  ,the  system  which  obtains  in  Oreat  liritain  and  the  I'nited 
St.ites.  and  no  Inteinational  Court  has  ever  laid  <l(iwn  any 
other  rule  of  <laniages.  save  that  which  ohtains  luider  our 
systems.  And  I  may  say  that,  in  all  the  history  of  con- 
ventions hetwei'u  th«'  countiies,  ,iiid  of  arhitr.itions,  when 
thetjuestion  of  damages  has  heen  considered,  as  it  has  heen 
in  all.  in  the  1S.^;{  and  1S7I  conventions,  thelJeneva  .and 
Paris  Arhitrations,  no  counsel  on  eith'-r  side  evei'  hefore 
suggested,  nnicli  lessct)ntended,  that theCivil  Law,  orany 
of  its  progeny  in  Codes,  could  furnish  any  criterion  or  aii- 
.gthority. 

Now,  among  the  new  things  stated  hy  my  learned 
friends,  is  one  that  the  case  is  ruled  hy  the  decision  of 
the  "Costa  Kica"  case,  and  I  desire  to  state  that  the  ap- 
pendix to  the  printed  Hritish  argument  in  reply,  assuming 
to  set  out  the  case  of  the  "'Costa  Wica."  does  iii,t  st't  it 
out.  Let  there  he  no  mistake  ahout  this  statemynt  of 
mine  at  all.  In  considering  the  "  Costa  UMca '"  ciise,  your 
Honors  will  need  to  take  the  authorized  puhlication  which 
n)y  friends  have  furnished  yon  since  thiM)ral  argument 
(•(unmenced.  Tliey  furnished  me  one  of  the  earliest 
(upies  that  could  he  ohtaiued,  and  it  is  not  set  out  in  the 
appindix  to  their  hrief. 

Now  I  make  this  further  slatement  hefore  the  Court 
tlial  is  to  rule  on  this  "Costa  Wica  ''  case  as  an  authority 
which  has  heen  dignitled  in  the  argument  hy  every  one  of 
my  learned  friends,  that  it  is  not  an  authority  in  their 
f.ivor,  and  that  it  d(»es  not  ride  prospective  profits  in  favor 
of  (ireat  Britain.  I  make  Hie  further  statement,  that  the 
i>siie  of  prospective  profits  was  not  hefore  the  uni|tire,  as 
jotlie  Netherlands  put  their  defenctMipon  entirely  different 
gtoiiiids,  mid  did  not  even  present,  much  less  argue  the 
i|uestion  of  jirospective  jtrofits  at  all. 

At  page  7<>  of  Mr.  Peter's  oral  argument,  and  also  in 
Mr.  Heiciue's  argument,  with  reference  to  the  capture  of 
tliis  ship,  it  is  stated  in  snpport  of  the  position  that  the 
"Costa.  Rica  "  case  is  a  great  authority  for  prospective 
catch,  "  Tlie  amount  of  damages  already  given  was  much 
"  larger  than  the  amount  claimed,  and  therefore  when 
"  we  come  down  to  the  qiuntion  of  comp(>nsation,  there 
60"  should  bo  no  doubt  left  in  the  mind  of  any  person  that 
■  the  compensaticm  iillowed  should  be  .is  full  and  ample 
"  as  possible."  My  friend  is  mistaken  again,  because  as 
Hixinas  I  heard  there  was  a  decision  of  an  International 
Trihunal  in  the  "Costa  Kica"  case,  I  obtained  it,  and  I 
vviinted  to  see  whether  an  umpire,  wherever  he  came 


1 


mm 


(Mr.  Dickinson's  Closing!;  Aiguni(?nt.) 

from,  or  wliocvor  lio  was,  would  rule  on  any  exaniiiialinn 
of  llio  question,  tliat  nrospt'ctive  prolits  were  In  |„' 
awarded  as  dainajics.  I  find  tliat  tlie  claim  of  dain.iL;.  s 
wiiicli  (Jrcat  Mritain  iiroscnlcd.  and  from  wliich  sli.' 
never  receded,  was  for  prospective  catcii,  and  tliai  Hi, 
claim  for  the  owners  was  made  for  flti.nm  iss.  lo,l  ,  n-, 
fitated  ;it  paj^c  l!>of  the  full  K'ecord.  Tliat  claim  was  mail, 
loup  as  f(dlows: 

£.  H.  ,1. 

I,()s»  1)11  Hnlf  of  tlic  voss»>l i>. IIM  t>  1 1 

LcisH  of  slinri' iif  [irolits 10:i2l  0  ii 

Amount  of  c^xpt'iisfs I!,.")??  1',!  U 

Totiil  cliiiiii t'Ki.d'.U     Is     111 

The  nmi)ir(>  aclnally  awarded,  as  siilticient  indemilv  cm 
this  sum,  hut  i'i.MMi.  There  is  no  mistake  in  lln.^,. 
figures   ;il    all.      The   claim    for   prospective    catch    was 

JO  £in,;{i'4.  The  claim  foi' e.xpen'^fs  .done,  which  were  (ullv 
shown,  was  ,l';i,,"iT".  The  loss  orr  the  vessel  was  l'LM;i:i, 
makirr^  a  total  of  legitirrrate  claims  .-rrrd  orrtside  of  pros 
pective  pruHls  of  rre.rrly  L'ei.ooo.  The  pr'ospective  prntiis; 
claiiired  v/ere  L'lo.:>i'  I.  the  le,i;itirrrate  darrrages  over-  t'.'i.ono, 
and  the  airrorinl  awarded  the  owners  of  the  vessel  lii.sihC 
Th»'rt!  is  rro  mistake  ahorrt  it  at  all. 

'J'lie  ( 'ommissiorrer-  on  the  part  of  the  I'trited  Siirles:— 
I  looked  the  case  tlirorr^h,  and  I  coirld  not  tirid  that  tiie 
quesiiorr  was  raised,  hut   does  not   the  award  to  the  cnu 

3oiir(licate  that  theic  was  sotrietliirrg  irr  Hie  way  of  prosprciive 
profits? 

Mr-.  l)i(-kiriscirr:  No,  yorrr-  Honor-;  1  have  exairriried  Hie 
Kecor-d  for-  that  prrrpose  with  great  (-iire.  The  casi'  ha-; 
been  dignified  hy  every  (ourrsel  when  on  his  leit 
on  the  olliei-  side  as  a  new  dep.-ri-tur-e.  arrd  an  ;iiilhor-it  v  on 
th«  (pieslioii  of  pr-ospective  catch.  I  had  e.\arriiiied  the 
case  hefore.  and  1  have  e.xamirred  it  with  gr-eat  car-e  again. 
for- I  want  to  distinguish  the  ca^e  so  that  it  slr.ill  riot  go 
upon  this  Kecor-d  as  having  a  he.-iring  uporr   this  (pie-tioii 

40 at  all. 

The  ("oimnissionet- on  the  jiart  of  the  rnite<l  States:  f 
under-sl.rnd  you  that  the  aw;rr-d  itself  does  not  show  tli.rt 
tliei-e  was  ariythirrg  specifically  awarded  for-  jir-o-^peclive 
catch. 

Mr.  Dickirrson:     Certairrly  rrol.  and  furlherniore,  (oiiM 
not  he,  lie(-.-iuse  the  legit  irrrate  d.uiiages  outside  of  tin;  pr-os 
pective  (-alcli  wei-e  over- .l'.">,(»(Mi.  and  the  award  was  oiilv 
l';i,NnO.     That  is  as  to  the  owriers.     .Now  for-  the  (-rew,  to 
which  your-  Honor-  has  (-ailed  ;itt<'rrtion.     'I'he  statement 

5ois  made  firat  the  total  pr-olits  would  he,  less  expense-, 
L'2<».(;4H  lits.  till,  'i'hey  dediK-fed  advances  to  the  (-rew  so 
that  they  should  not  irri-lude  in  the  prospe(-tiv(!  (-aldi 
gross  fr-eight,  t'H-_>(;  l:>s.  ."id,  and  the  total  of  the  pr(i>|iertivu 
catch  estimated  for  the  purpose  of  arriving  at  the  (lairrr  of 
the  crew  whiih  is  pi-eserited,  is  l'l!»,s'Ji'   7s,  Id, 

The  ci-ew  among  therrr  would  h.-ive  got  approxirri;itely 
OIK!  half  the  profits  less  the  c.apt.iin's  share;  the  crew 
would  have  received  tH.ndo.  and  that  is  the  claim  made  in 
the  specification  of  the  items,  tor-  the  (-|-ew.  in  the  claim, 

Co  and  the  only  claim  presented  hy  (Jreat  Britain.  .Now 
what  did  tlie  arhitiators  do<  The  claim  of  (treat  Hiitaiii 
was  as  stated  that  each  of  the  crew  should  receive  a  sinn 
proportionate  to  his  rightful  sliaro  of  the  anticipated 
profits  of  the  voyage,  after  deducting  these  advances. 
The  umpire,  in  fact,  awarded  .t:i,(iOO  to  the  odicers  and 


MM 


(Mr.  Dirkitison's  (^losiiiji;  ArLcmncnt.) 

.  ii'W  instead  of  Is.udit.  hikI  the  i'sjHiu,  hfjii'  in  niiiid.  was 
stimatcd  after  tlfdiirtiiiK  the  t'xpiiiscs  ot  l'L',7.")l,  and 
.uivanct's  tS'_'(;  l-_>s.  ."id.  Tlit^v  aic  tln'  cxin'iiscs 
III  this  lu'lialf  wliitli  aiv  iifcts-aiily  deducted  to  as 
i.itain  the  net  iinispective  pntlits.  Were  prosin-ctive 
piitHts  given  hy  tlie  ail)itiatnis;  The  award  was  I'l.C.iiuto 
ilie   ollicers   and   ciew.     Ndw  cotniiig  to  tlie  cajitain   lie 

1,,'lainu'd  his  loss  of  share  ni  prolits  Li\n(M»  expenses,  in- 
(  hHJinj-'  advanees  and  travel  f.Miii.  Kor  arrest  ami  iin- 
jiisoiinient,  indignity,  mental  |).iin  and  anxiety  sntTered, 
injury  to  his  health  an<l  credit,  and  loss  of  tinie.  L'.'>,"(i(»; 
iiiial.  t'7."><>u.  The  t<ital  award  given  to  the  captain  instead 
,it  L'T. .■•<">  was  l':').  l.".o.  Now  what  was  the  claim  of  the 
r:i|itain  for;  In  addition  to  the  loss  of  prospective  cadhf 
\\  hy  he  wastreated  with  inhmnanity.  may  it  plea>-e  your 
Honors.  L'niike  the  cases  of  the  crew  of  tiie  "  Thornton  " 
and  '•  Onsvard."  this  man  was  conlined  as  a  common  felon, 

:, dragged  thiongh  the  streets,  placed  in  jail  with  a  man  who 
was  diseased,  in  a  hare  and  lilthy  jail  full  of  vermin,  with 
ii((  conveniences  whatever,  and  that  was  the  hasis  of  his 
largest  claim  as  yon  shall  see.  (if  conrse  he  was  nlti- 
iiialely  dischaiged.  and  in  this  case  it  was  admitted  hy  the 
Netherlands  that  the  original  arrest  was  without  the  least 
color  of  right.  It  was  conceded  that  for  the  investigation 
he  might  have  heeii  detained,  hut  the  gross  outrages  put 
ii|Hin  him  in  the  course  of  the  iinreasoiial'ledetention  were 
made  the  grounds  of  his  principal  claim,  and  the  principl«> 

;,,;i|iplying  thereloie  was  that  the  arrest  was  ;i  tres|>ass  ((6 
initio.  Here  is  the  evidence  referred  to.  and  even  this 
record  is  not  as  full  upon  the  testimony  which  w.is  .id- 
iiutted  on  the  (juestion  of  prosptntive  profits  as  it  should 
lie,  liecaUM'  there  is  one  appendix  of  evidence  ^lill 
omitted  to  which  I  shall  call  attention  in  a  moment. 
Tiiis  is  among  the  statements  of  how  (,'aptain  Cai- 
peiiter  was  treated.  He  was  first  arr«'sted,  and  then 
l.ikeii  over  to  a  remole  prison  hy  sea,  curried  in 
a    ship  along    with    coolies,    ami    so    on.    and   then    as 

4()appearshy  tlie  declaration  of  t'harles  Mernanl,  ho  was  ini- 
|iiisoiied  III  a  cell  where  native  convicts  were  contined, 
ami  an  inscription  over  the  door  of  the  cell  was  to  the 
ilfecl  that  it  was  used  for  coiideiiin(>(l  Kiiropeans.  There 
was  another  occupant  id'  this  same  cell,  a  cohjred  man  on 
the  sick  list.  The  prison  w.is  iiotoiiously  nnliealtliy. 
which  as  stated  was  to  liaveheeii  expected  in  places  where 
vever.il  linndred  native  convicts  are  contined  with  no 
|iiiiper  sanitary  arrangements.  The  cells  were  on  the 
^iiiiind    tloor.    exposed   to   the   northwest    monsoon,  and 

;iiuere  constantly   damp.     "Carpenter,"  says  the  witness, 

•  when  1  siiw  him  for  the  first  time  on  his  arriv.al  in 
"  Macassar,  appeared   to  he  in  good   health,   hut    on  his 

•  elease  he  was  a  changed  man  as  regards  health  and 
">tieiiglli,  the  change  for  the  worse  heiiig  due  to  his 
"  i-eiilineinent.'"  The  prison  was  notoriously  unhealthy 
as  i-i  shown  hy  the  l)utcli  authorities  now  taking  steps 
III  provide  hotter  accomniodatioiis.  *  "  The  ipies- 
"  tioii  of  the  unhea'thy  condition  of  the  piisiui  has  fie- 
"  i|iieiitly  heeii  ltroi:;;ht    up  in   the  local  pre>s,  and   herri- 

'  '■  lieiii,  a  disease  coiiimonlv  attrihnted  to  had  sanitary 
"  eiPiiditioiis  was  very  |»revalent.  It  fre<piently  happened 
"lliat  prisoners  sentenced  fin'  short  terms  are  discharged 
"  -ntViriiig  from  this  complaint,  which  causes  a  heavy 
'  lierceiitage  of  mortality  amongst  its  victim^." 
Now  Carpenters  own  stat»'iiieiit  is  appended,  showing 


H 


1 1 


1^:! 


i  'It 


(Mr.  Diikiiison's  C'losinj;-  Argiiiiieiit.) 

liow  he  Wits  treiitt'd;  all  this  was  not  <lt>nie<l.  Kiuin  l.i' 
giiiiiiiig  to  I'liii  ho  was  tnatcd  liko  a  t<iiiiiiioii  felon,  wis 
|)Ut  ill  a  i'«'ll  as  a  coiKltMiiiH-il  man.  with  an  iiisii  i|iti,.{, 
over  ihiMlocir  tlias  it  was  a  plaii*  tor  thf  (.■ondciniitMl  .\,,u 
tlu'  .Netlu'ilands  picst'iiti'il  no  aifiui  icnt  on  llic  (|ii.-ti,in 
of  |)i'os|it'('tivt>  catch,  hut  ahiimlant  (>v:(l(>nci-  was  |iicv,.|ii,  { 
on  the  |iart  of  (Jrcat  Hritain  as  to  the  loss  wIh(  h  w  ,, 
losullVri'd  hy  reason  of  the  ini|trisonni('iit  of  Car|i«'ntt'r.  .inil  li\ 
the  ship  ill  prospi dive  protits.  and  the  L'lnpiie  savs,  p,i>v||i_. 
on  t his  (piestitiii  of  tiie  iin|)iisonnieiit  of  Carpnitei  in  n^ 
proper  lieariiiHas  wellason  the  claim  for  prospect  ivepi,  .lit . 

"  Whcrunn  tlif  trtMitiiH'nt  to  wliifli  Mr.  CiiriM-iitiT  wits  sulijiTti  .1  m 
"  prisiiii  lit  Miifiissiir  iippiMirs  to  In-  uiijustitliililt'  in  view  of  ln^  Imih.' 
"  tilt'  Kuliji'i-(  of  II  I'ivili/i'il  Stiiti'.  wliosi-  (It'tciitioii  was  onlv  a  |ii-..aii. 
"tioimrv  iiit'iisnrc,  itiid  tliiit,  consoiiin'Utlv,  this  tiviitiiii'iit  I'lititl.-  lum 
"  to  a  tail'  i'oni|)iMisiitioii; 

••  WliiTcas  tlic  uiijuslitiiiliic  ilt'tt'iition  of  Cniit.kin  Cariifntii-  (huvi  ,| 
"  liiiii  to  miss  the  lii'st  |>»rt  of  tlic  wliali'  tisliiii^'  s)>aso]i: 
2U  ••  Wlifivas.  on  tin-  other  liiiml,  Mr.  ('arpcntcr,  on  lii'int;  srt  fur.  «a>, 
"  in  II  position  to  liiivr  rt'tnnu'il  on  lioiml  tlic  ship  •  Costa  lijia  I'miK.! 
•'  in  .lanniii'v,  IHJt'i,  ut  the  hitcst.  and  whi'iviis  no  concliisivi-  ]iiim.|  has 
"  lii'i'M  iiroiturt'il  liv  him  to  sliow  thiit  iif  was  ohli^cil  to  h'uvc  liis  sl,||, 
"  until  April,  IHitti.  in  the  port  of  Tcrnatc  wiclioiit  a  master,  or.  ^tiH 
••  less,  to  sell  tier  at  a  roiluci'il  price; 

••  Whcri'iis  tlic  owners  <ir  the  ca|itniu  of  tlie  sliip  licinn;  iiii.jrr  au 
"  ol>Iij;atiou  as  a  jirci'antion  iipiinst  the  occnncnce  of  ■ome  inri.lini 
"  to  the  I'liiitaiii,  to  inalti'  provision  for  liis  lieiiij;  repliu'cil.  tlic  iiiali' 
••  of  the  'Costa  i{icii  Packet  '  onuht  to  have  liecn  tit  to  taki'  tlic  lum. 
"  maiiil  and  tocnrrv  on  the  whale  fishiiij;  indiistrv; 

"  .-Vnd  whereas,  thus,  the  losses  sustained  liy  the  propiielois  nl  tlic 
JO  ■'  vessel  '  Costa  Kii'ii  Packet.'  the  olllccrs,  and  the  crew,  in  coiisc^niiihc 
■■  of  the  detention  of  Mr.  Carpenter,   are  huI  mlirr/ii  //,,  „,...<>,,,•,;  ,,,,  >^. 
"  niiti.t''  tif  llfs jtf'Of'iniitfti'ii  ilfti'titiiui : 

"  Whereas,  in  so  far  as  the  indeninitv  to  lie  paid  to  Captain  Ciupni 
"  ter,  the  olllccrs,  crew  and  owners  of  the  vcsstd   'Costa  Itica   I'a.kii 
"  is  concerned,   the  documents  produced,   aiul.   in    particular,  the  i\. 
■'  Jiert   o|iinion   to   which   recourse   has  heen  had  at   Ifriissels.  dn  „.,' 
••/iiiiiisli  tie'  iirrissiini  f/i>mr,'is  for  tixiiiK  the  amount,  etc,  " 

The  e.xjierl  opinion  mentioned  here  hears  diiecilv  mi 
the  ijiiestion  of  prospective  protits,  ;in  expert  niiininM 
wiiiih  is  not  enihraced  in  the  Kecord  as  furnished,  hut  ji 
4'Jappeais  hy  coiite.xt  that  an  e.xptMt  opinion  was  t.iki  n  lie 
s;iles  the  testimony  which  is  set  out,  of  what  wli.ilin- 
protits  could  h(>  made  hy  tliis  ship,  and  had  heeii  in  nli 
Foi' instance.  Mr.  Carpenter  stated  in  his  testiniom .  inni 
there  is  almiidant  evidence  upon  that  point,  thai  llie 
capliiieof  whales  depends  upon  the  skill  of  the  otlii  ei>. 
It  reails  liku  a  paj^e  ot  this  case  hefore  you.      He  sa\s: 

"  The  capture  of  whnlus  depends  upon  the  skill  of  the  olllccrs,  an,! 
"  oven  if  Youn>;  had  had  the  necessary  knowledge.  li<  "  '  Init  on. 
"  otlii'cr  to  assist  him.  This  would  liave  ciialiled  onlv  one  lio.u  to  liavc 
3*-' "  lieeii  hiwercd,  and  it  would  have  lieen  most  dangerous  to  attack  a 
"  Hcliool  of  sperm  whales  with  oiilv'  one  liout,  ISesidcs  this,  Vomih' 
"  hud  not  at  that  time  a  forcijiii-^'oinn  ccrtitli'iite  of  conipclcncv,  aiul 
"  could  not  he  examined  in  Ternate,  and  I  did  not  feel  jiislilieil  iii  mv 
"  duty  to  the  ownorw  in  even  sendiunthe  ship  to  Mueiissur  in  chart;ciif 
"  Young, " 

We  have  the  doctrine  of  aveia^''  ■'Hid  all  ahoiit  Ji  jiis! 
as  ue  have  here.  Tn  alio' her  place  it  is  uio(,.(|  and  sd  nut 
UH  to  the  niiiiiher  of  whales  they  could  have  taken,  ami 
which  they  were  prevented  from  taking,  and  they  claiiin  li 
^'O  these  prospective  protits  as  tin?  necessary  consoipieiicent  ihe 
acts  of  the  authorities  of  'I'hc  .Netherlands.  For  iiistam. , 
referring  to  the  evidence  of  Jkiishach,  Carpenter  say>: 

"  It  is  ipiite  true  that  I  told  him  that  ou  one  voyanc  I  had  rc;ili/,'.| 
"  a  profit  of  jCH.IKKI,  hut  this  was  olitained  iu  the  course  of  ahont  inin 
"  weeks,  and  was  not  the  result  of  u  full  whaliug  cruise,  " 


t)88 


Ki'iiiii  111' 

f'floll.    Wis 

iiiMTi|iii.ii 
lied      .\..\v 

II'  (|llcs|  iiih 

s  |in'>-i'iiici| 
uliif  li  W.I- 
iter.  Mini  li\ 
ivs,  |i;i>-ni- 
icllttM-  ill  it- 

tivclHMtil  .; 

Hlllljcctl  ,1  111 
1'  nf  111-  liilln; 
>lllv  11  |il'.. ■un- 
it ciilitl.  -  liiiii 

'IH'iilfr  nin-i  il 

t;  sft  ficiv  Wil- 
li Itii'ii  l\i>  K<  I 
sivr  |iiiiii|    lias 
leave  lii-  -liiji 
Ulster,  cir.   -till 

eiiij;  iiiiili'i-  an 

•iniie  iiceiililit 

lU'ed.  tlie   llliltr 

tllke  tile   rnlii- 

|>riet(ils  iif   tlie 
ill  e(iliM%|\ieniT 

Hfi  'SS'h't/    •  iTSt^' 

'ii|>tiiiii  ('lU'iiin- 
1  Kieii    Tu.-ket 

tlellllir.   tlie  ex- 

riissels,  ilii  ,■■■■ 


(iilTlllv   c,|| 

X'I't     n|>i||inl| 

slicd,    lillt    it 

S    taken     lie 

lilt  wiialiiii; 

llCt'll     III  llle 

tiiiiiiiiv,  aini 
It,  tlial  the 
tin-  nlliiel- 
ic  sa,\s; 

lie  oIlieiTs.  an! 
■  '  iMit  en. 
lie  iiii.ii  te  Imve 

Ills  t>>  attiii'k  a 
les  this.  Vieiiii' 
)lll|)etelle_\  ,  illKI 

jllstitieil  in  lliv 
tsar  ill  eliar;;e('l 


aiiiitit  ii  Jii-t 
1  ami  set  Milt 
('  laUeii.  ami 
tlicy  claiiin  il 

'(lUl'lllt'llt  the 

Km-  iiistaiie. . 
liter  savs: 

!•  1  had  reiili/.'.l 
«■  iif  almut  niii' 


(Mr.  Dickinson's  Closing  Argument.) 

Ho  was  ntiitendiiigtiiat  i'M,(»tMi  was  too  little.  Tlu-y  had 
put  ill  some  toHtinioiiy  tliat  lie  iiad  ixfore  said  that  tiie 
result  of  a  whaling  voyajj;*'  was  ahoiit  t'H.ood,  whereas  on 
this  heariiijj;  he  contendeil  t!iat  it  was  very  niiuh  more. 

I  coiitiiiiio  reading  from  the  award; 

•'  Autl  wliiTt'iiH,  a  Hiitliciont  iiulemnitv  will  have  to  he  niveii  tlioin  hy 
"  grautiiiK  tho  Hum  of  il'.i.lM  to  Captain  Carpenter,  the  sum  of  tl.tMlil 
1,1  "  to  the  ottleiTM  mill  erew.  and   the  huui  of  jI;;5,M()0  to  the  owuurs  of  the 
"  vessel  '  Co»tn  Kii'a  rueki-t,"  " 

For  these  reasons, 

"  I  (lechiro  tho  Oovcriiinent  of  Ho.'-  Majesty  the  t^ueoii  of  the 
"  Netlierlaiuls  responsilile,  and  I  couHeiniently  fix  the  iinicniuity  to  be 
"  paid  at  — 

"  The  Hum  total  of  Ct.l.'iO  to  Captain  Carpenter. 

"  The  HUm  total  of  .tl  (100  to  the  ortieers  and  crew. 

"  The  Hum  total  of  X;j,S(H)  to  the  owners  of  the  vessel  'Costa  Uica 
•'  I'aeket.'" 

"'  Now,  if  1  understand  Kn^lish,  that  is  a  decision  against 
lirospective  catch,  on  the  wcll-recogni/eil  old  rule  that 
tlu'y  are  not  the  necessary  cons('(|iiences  of  the  tortious 
act,  and  the  other  and  chief  and  familiar  {.iround  that 
such  damages  cannot  he  estimated.  That  is  the  ■"  Costa 
Uica"  case.  That  is  the  authority  to  change  tiie  iini 
versal  law  as  laid  tlown  hy  international  tribtinals  and 
courts  of  both  nations.  The  chief  position  taken  hy  (Jreal 
Britain  in  the  case  was,  and  I  (piote: 

^O  "Just  autieipntioufl  being  entertained  of  tho  profits  to  he  derived 
"  from  any  whaling  cruise  was  the  I'hief  iudueemcut  for  undertaking 
"  theeuteriirise." 

The  question  of  jjiospective  protits  was  clearly  set  out. 
The  British  a'gumeiit  in  the  "("ost.i  liica  "  case  is  inter- 
esting in  a  great  many  ways,  in  its  statement  of  the  tin- 
iloiihted  rules  of  international  law.  The  (piestion  of  will- 
ful intent  isdiscussed  in  the  British  argument  and  itsettect 
upon  aggravating  the  damages.  Tlieciuestiuiiof  the  juiis- 
dictioM  of  tlio  State  on  the  high  seas  is  discussed.  The 
4" learned  counsel  in  the  "Costa  Kica  "  case  says: 

"  In  ships  on  the  high  seas  no  one  is  subject  to  anv  jurisdiction 
"  but  that  of  his  own  country  or  of  the  country  ti>  wtiich  the  ship 
"  belongs." 

Again,  from  Mr.  Justice  Stfuy.  (pioted  in  the  "Costa 
K'ica  "  case: 

'•  The  laws  of  the  sovereigu  rightfully  extend  over  persons  who  are 
"  domiciled  within  the  territory  and  over  property  which  is  there 
•■  situated." 

Again: 

"The  laws  of  every  nation  bind  of  natural  riitht  the  projierty  situate 
"  within  its  territory  as  well  as  all  persons  resident  therein." 

And  finally,  I  am  under  great  ohligations  to  my  learned 
friends  for  the  "Costa  Kica  "case  in  full,  and  heg  to  make 
my  acknowledgments  for  it. 

And  now,  may  it  please  your  Honors,  1  am  going  to  take 
(ii)iiptlie  oral  argument  ()f  my  learned  friend,  Mr.  Peters, 
ill  which  he  returns  to  his  position:  that  the  (Jeueva 
Triliunal  awarded  prospective  catch,  or  something  in  lieu 
of  iirospective  catch;  hecause  he  states  siihstantially  in 
liis  oral  argument  what  he  stated  in  his  brief  in  chief. 

At  page  SU  of  my  brief,  where  I  quote  from  him,  and  I 


III 


\>i 


<»n4 


m 


10 


(Mr.  Dickinson's  Clusiiig  Aigiuncnt  ) 

have  conipartMl  the  statinient  witli  tlu'  statements  ni.nlc 
here  Ity  my  leaintMl  friends,  notahiy  hy  tlie  learned  senini 
eoiinsei  for  Her  Majesty,  lie  says: 

"A  rcfcrciH't'  to  till'  id-iKM'i'ilinns  lit'fort"  tlic  (icnova  Arliilnitu  u 
"  will  hIiow  tliiit  lih  It  iiiitttiT  of  fuct.  iiltli(in);h  tliiH  general  i>i'ii|H>Kitiii|| 
"  waH  laiil  down  in  the  award,  a  hiiiii  in  litMi  of  immppctive  proHtw  was 
"  allowed  to  the  (iovcrni.it'nt. 

"  Hv  n-fcriMici'  t>)  I'rotorol  Xo.  'i!(   it  will  a)ii>i<ar  that  tlio  awiinl  wns 

tina'lly  iiiadc  niion  the  basis  uf  allowiii),'  a  sum  cipial  to  'J.')  per  cciit. 

of  the    valni'   of  thi' vessel   and    onltit  ill    lieu  of  prospeetiv 

this  sniii  anioiiiitiiiii  in  that  ease  to  J^lWH.dOd.  " 


eal-. 


We  liave  said  in  our  Itrief:  "'riiis  is  a  strikinj;  ei  loi  (it 
our  learned  friends.'"  and  we  again  challenge  that  slate 
inent  in  their  hriefand  in  their  oral  arginnent  here.     .\- 


froni  the  natnre  of  the  awaid.  and   after  all  tl 


HI 

le  coiitn 


versy  whirji  ocenrred  over  the  Sta'inpfli  tahles  in  I'lcitin ol 
•_".».  some  seven  or  ten  days  later,  and  when  they  iiijlv 
2o<'<'nsideied  it.  the  (ieneva  Ai  hitr.itors  decided  that  they 
coidd  not  award  "(in;/  sum"  for  piospeclive  eatcli:  hi.. 
cause  as  the  liarned  aihitiator  in  the  '"Costa  IJica 


(MM' 


le 


said,  there  is  no  method  of  measurement,  and  as  all  tl 
cases  say,  hecanse  of  the  arhitrary  ride  that  you  cannot 
meisnie  prosjiective  injuries.  My  learned  friend  still  cc in- 
tends that  (ieneva  lield  otiieiwise.  notwithstaiidiii;;- I liat 
that  liihnnal  of  arl)itration  used  this  langiia};-e: 

'•  .Vnd   whereas   prosjieetive  enrninKs  eannot   pro])erl_v  lie  made  tlip 

"  sulijeet  of  eomiii'nsation    inasmuch  as  they  depend  in   their  nature 

30  "  ui)on   future   and   uneertain   eontin(ieneies,    the  triluinal   is   uiiaiii- 

"  niously    of   opinion  that    there  is    no  (;round    for  awarilinj,'  to   the 

"  I'nited  States  any  sum  liy  way  of  indemnity  under  this  head." 

That  langnaf^i'  is  found  in  Protocol  ;il.  It  is  tiie 
final  dtH'ision  on  the  (|iiestion  of  prospective  ])rofits,  und 
uotwitlistainling  that  languaj;e,  your  Honors  are  asked 
to  tiii<l  that  the  (ieneva  Aihilratiou  (hd  award  smne  sum 
in    lieu    of  prospective   catch.      In    the  sen.se  my   leanu'd 


friends  use  •'  in  lieu  of. 


as  meaiung      in  place  ( 


'f,"    I 


iro- 


50 


pose  to  show  your  Honors  heytuid  the  shallow  of  a  duulit, 
'^^outside  of  the  citations  which  1  have  made  in  my  hrief. 
that  there  was  nothiutc  further  from  the  minds  uf  Hie 
(iene\a  trdiuual.  than  even  the  consider.it ion  of  prospective 
catch.  And  I  propose  to  show  that  the  words  "  ni  lieu 
of"  ap|)earing  ii  the  verhiage  of  Arhitrator  Cockliiinrs 
coinineiit  were  words  which  apply  not  to  the  rule  of  dam- 
ages, liut  to  a  lule  of  plain,  piimitive.  primary  Kngli-li 
coin|)iisition  of  the  old  giainmar  school. 

This  is  the  way  it  occurred  What  led  to  the  Sta'iii|itli 
estimate  in  i'rolocol  No.  -'!•  as  found  in  the  4tli  papers  le- 
latuig  to  till' Tieaty  of  Washington.  ])age  44^  'i'lie  thing 
that  my  learned  friend  pins  liisfaitli  on  now.  is  this  Kiii^- 
lisli  composition.  The  Lord  t'hief  Justice  of  Kngland,  in 
criticising  Haroii  Sta'in|tHi's  tahle.s,  says: 

'Add  to  tins  Mr.  Stiemptli's  allownnei;  iu  lien  of  prospective  catch 
••  one  vear  wanes  ^'iMK.IHMl,  and  twenty-tive  jier  cent,  on  the  values  of 
"the  vessels,  »-t()0,lHMI.' 

I  shall  show  you  how  ihat  came  ;ihout  and  why  the 
words  "in  lieu  of"  were  used  hy  the  Loid  Chief  Justice. 
Your  Honors  will  find  liy  Volume  '.\  of  the  papers  relating 
to  tho  Treaty  of  Washington,  jtage  57!i,  that  the  liihnnal 
uf  nihil  rat  ion  on  consideration  of  the  tahles  of  the  United 
States  wherein  they  claim  for  the  |)rospectivo  catch  of  the 
whaling  ves.sela  $4. yn<i,:i(i-J. ill",  askeil  the  Counsel  for  the 
United  States  to  prepare  tables  eliminating  tho  item  of 


60 


JtSS 


(Mr.  Dii-kinsuira  ClusiiiK  Arguiuent.) 

])rospective  catch,  and  saying  to  the  Anioiican  Counsel 
and  agent:  "  Thero  is  an  indispositiun  to  take;  up  tliis  8ub< 
ject  or  to  allow  piospsctivn  catch;  give  us  sonm  f aides  as 
to  what  you  will  claim  in  lieu  of  prosjHJctive  catch,  or  show 
us  how  your  tables  will  look  without  prospective  catch  in." 
1  am  very  anxious  to  make  niy.selt'  cle.ir  here,  liecause 
the  matter  has  been  controverted  and  is  still  contended  for 

I  by  my  learned  friends.  In  the  original  tablesof  claims  pre- 
sentt'd  by  the  United  States,  the  Americans  did  not,  like 
our  friends  her*',  when  they  diiim  prospective  catch,  or 
as  our  English  fiieiids  did  at  I'aris,  put  in  prospective 
catch  together  with  wages  and  interest  added;  but  when 
the  Americans  put  in  prospective  catch  at  (ieneva,  natur- 
ally they  did  not  also  charge  for  wages  of  men.  because 
pi (ispective  catch  to  be  allowed  at  all  nnist  be  net.  There- 
lore,  when  the  American  coimsel  put  in  their  claim  for 
prospective  catch  at  (ieneva  they  had  not  inserted  wages 

20  of  crews,  itc. 

In  the  British  sclu'dule  at  I'aris,  they  claimed  not  only 
for  prospective  catch  for  one  year  and  two  years  and  so 
on,  but  also  for  the  w.iges  of  men  during  the  same  lime, 
and  also  for  the  provisions  (just  as  Munsie  did  at  N'ictoria 
when  they  started  in  with  the  Hritish  case i  and  also  for 
interest.  But  the  American  (iovernment  was  warned  at 
(ieneva  that  prospective  catch  was  to  be  thrown  out  by 
the  tribunal  of  arbitration  at  (ieneva,  and  it  was  said  to 
tliem:     "Now,    make   your    substitute.      How    will  you 

30 present  your  claim  if  we  eliminate  prospective  catchy" 
This  all  ajipears,  your  Honors,  from  the  citations  to  that 
recoixl. 

The  .American  (iovernment,  or  the  agent  of  the  Amer- 
ican (iovernment,  presented  coini>arative  tables  on  the  I'.tth 
August,  1H7'2,  in  compliance  with  the  re<|iiest  of  the 
tribunal.  Your  Honors  will  see  what  they  say  at  page  ^>S*), 
\'ol.  3,  papers  relating  to  Treaty  of  Washington: 

"  III  lU'Pordancc  with  tlic  sufi^Jt'stioiis  of  hoiuc  of  tlii'  arhitriitors  we 

••  liiivt'  oliininiitiMl   from  tlio  tallies  the   claims   submitted   iu  favor  of 

40 "  wlialing    vessels  for  tlii>   [irospective  eatcli,   the  aiiiouut   of  which 

"  would    l>e  #4,(M)'.t.;t()'.J.r)(l,   lint    we  liy   no  means  intend   to  withdraw 

"  these  claims  or  to  intimate  that  W(>  do  not  eonsider  them  just." 

"  On  this  subject  we  refer  the  arbitrators  to  the  note  alludoil  to  at 
'•  the  close  of  the  American  arjjument.  Should  the  Tribunal  share 
"  our  views,  the  claims  for  injuries  sutVered  by  these  vessels  should  be 
'•  ))ro])ortioiiatel.v  diminished.  In  ease  it  should  not  share  our  views 
"  we  should  ask  it  to  (iiant  us,  as  an  ei(uivalent,  interest  at  the  rate 
"  of  '.i.")  ii.'r  cent.,   interest  on  the  value  of  the  vessel  and  eiiuipmeut." 

It  was  not,  your  Honors,  2.'>  percent,  on  the  vai'ie  of  the 
vessel  and  ecpiipment.  but  interest  at  the  rate  of  L'.'i  percent. 

,11. Mr.  Sta'iuptli  made  an  error  on  this  when  he  came  to  pre- 
pare his  tables.  The  American  counsel  when  preparing 
llieir  tables,  without  prospective  catch,  as  requested,  page 
."is;{.  same  voliune,  take  their  lonner  tables,  add  the  wages 
of  2.')  men  for  ;^  months  and  •27  men  for  4  months,  and 
so  on,  vessel  by  vessel,  but  deduct  the  prosjtective  catch 
item  by  item,  vessel  by  vessel  also.  They  said:  If  we  do 
imt  have  prosj»ective  catch  wo  nuist  now  put  in  the  wages 
"I  the  men  which  never  appealed  in  the  claim  before.  \  ou 
will  find  item  by  item  that  the  vessel  iu  ri'spect  of  which 

(lotiiey  claim  for  prospective  catch  are  only  whaling  vessels, 
and  in  remodeling  their  tables  at  the  retpiest  of  the  arbi- 
trators, they  deducted  from  their  original  tables  the 
amount  they  charged  for  each  vessel  for  prospective  catch, 
and  they  added  beneath  the  wages  of  the  men  which 
were  not  charged  for  before.     And  so  it  api)ear8  through- 


i'i 


!■   >i'i 


I,     ■  I 

'I    ,     I 


(Mr.  DickinHon'8  Closing  Arguiuoiit.) 

out  the  detnilH  of  the  claim  for  each  veHsoI.  Tlicv  dc 
ducted  tho  rhiiiu  for  the  bieakiug  up  of  the  V(»ya(ir  df 
certain  vessels,  hnt  tlu'y  added  the  wagea  of  tlio  nitn  (u 
the  remainder  thus  found.  For  instance,  in  the  "('un- 
cord" wise,  they  deducted  the  sum  charged  fertile  hicik 
ing  up  of  the  voyage,  hut  they  added  the  wages  of  :',s 
men  for  seven  months.     Then  they  followed  what  had  hccn 

losnggested  hy  the  report  of  the  British  Board  of  Tiadc 
Connnittee,  that,  as  to  such  whalers,  not  those  totally 
lost  hut  as  to  the  whalers  for  the  most  part  that  W(  re  a 
partial  loss  (dismantled,  some  sent  homo  and  some  de 
stroyed  or  used  hv  the  Confederate  (lovernment).  tlu! 
claim  of  the  Tnite*!  States  for  prospective  catch  not  \h''\\\^ 
admitted,  something  would  he  fair  in  the  nature  of  diMimr- 
rage  or  for  the  loss  of  their  voy.iges,  and  they  put  tli.it  at 
25  per  cent,  interest.  That  and  the  wages  are  e.xaclly  llio 
sums  the  American  agent  and  counsel   put  in  when  tliey 

20  were  told  to  prepare  tahles  eliminating  prospective  latdi. 
They  charged  wages  then  and  they  asked  for  2;")  i)er  cent, 
interest.  So,  naturally  having  struck  out  the  entire  item 
of  the  i)rospective  catch  at  the  command  of  the  arbitratois, 
they  presented  tahles  without  it,  and  hy  the  rule  of 
English  composition  the  word  "substitute"  would  Ini  a 
synonym  for  "  in  lieu  of,"  In  the  sense  that  there  were 
such  revised  tables  in  place  of  the  old,  with  prospective 
catch  entirely  eliminated.  Tiiat  is  the  way  "m  lieu  of" 
comes  in.     But  Baron  Sta'mpHi  in  making  his  table  .siip- 

30  posed  that  the  25  per  cent,  was  on  the  value  of  the  vessels. 
He  assumes  that  the  report  of  the  Committee  of  the 
English  Board  of  Trade  when  they  said  25  per  cent,  inter- 
est meant  25  percent,  on  the  value  of  the  vessels,  although 
both  the  American  and  the  English  counsel  agreed  that  it 
was  25  i)ei  cent,  interest.  Now,  then.  Baron  StjempHi  pre- 
fixes bistable  with  25  per  cent,  on  the  value  of  the  vessel 
instead  of  25  per  cent,  interest,  and  he  figures  it  out  at 
ti40(»,<M)0.  In  Protocol  No.  2y,  Treaty  of  Washington, 
Volume  4,  Chief  Justice  Cockburn  says: 

40 

"  Ailil  to  this  Mr.  Htiempfli's  allowaucc  in  view  of  iiroHpoctivp 
"  catch  one  v»>ar'H  wageH,  goHS.OOO.  ami  25  per  cent,  on  the  value  of 
"  the  voBBel  i^iOO.OOO  (and  it  makes  «!»««,()00). " 

As  to  that  the  Lord  Chief  Justice  says  very  naturally: 
"  Mr.  Stwmpfli  has  also  acldeil  for  some  unknown  reason " 


50 


The  idea  of  interest  not  being  in  the  mind  of  the  Lord 
Chief  Justice: 

"  Mr.  Stnimpili  has  also  »<l<1ed  for  some  unknown  reason  25  per  cent. 
"  on  the  value  of  the  whalers,  au  addition  which  can  easily  lie  hIuiwu 
"  to  be  equivalent  to  altdgethcr  alldwiuf?  over  and  altovo  the  oriKiuiil 
"  value  of  the  whalers  aud  their  outlits  a  i)erceutage  exceeding  !H)  [mt 
"  cent. ;  and  this  although  thi^  (juestiou  of  interest  is  still  left  open  to 
"  the  decision  of  the  trilinnal." 


It  was  an  extraordinary  proposition  in  the  view  of  the 
Lord  Chief  Justice.  Baron  StaMiiptIi  in  presenting  these 
tables  had  not  got  the  idea  of  interest  because  be  added  5 
60  per  cent,  interest  on  that  sum,  and  it  was  an  astonisher  to 
the  Lord  Chief  Justice  when  he  came  to  review  the  table, 
because  he  at  once  makes  the  point  that  25  per  cent,  ot 
the  value  of  vessels  would  e.Kceed  90  per  cent.— although 
the  Baron  added  besides  interest.  Now,  with  that  excep- 
tion, the  tables  of  Baron  StcetupHi  were  all  right;  and  he 


987 

(Mr.  Dickinson's  Closing  Ai-f^umont.) 

uses  nothing  in  lieu  of  prospective  catch— but,  he  says,  at 
page  44  of  tlio  Piotocol  tilt  from  American  tal)le: 

"  ProHpective  proflts  in  interruption  of  the  voyngo,  t4,i)0(),100." 

Then  in  his  table,  in  wliic^h  there  are  suggestions  to  the 

arbitrators,  this  item  is  struck  out  as  such,  and  the  item 

for  wjtges  comes  in  as  a  substitute  for  prospective  catch 

'$5HH,(»o(>,  and  here  is  where  my  friend's  "  in  lieu  of"  is 

found. 

Then  Baron  Sta>mpfli  comes  to  the  mistake  25  per  cent, 
on  tiie  value  of  tlie  vessels  ^4(K».(K»o,  making  $!)MH,000,  and 
making  a  total  round  stun  at  !^12,<)i»u,(hm).  Tlien  he  sub- 
mits the  interest  at  5  per  cent.,  and  arbitrator  Cock- 
It  was  on  the  'Jd  I)e- 
Si'.t,  that  tlie  mistake  made 
And  after  a  full  discussion 


burn  makes  his  criticism, 
cember,  1H{»2,  Protocol  No. 
by  Haron  Stiempfli  ocfunred. 


twelve  days  later  the  final  award  is  made,  and  i>.  appears 
^'^not  that  Haron  Sta-mpHi's  figures  were  taken  at  .^P.oOO.- 
ottO,  but  that  the  criticism  of  tiie  Lord  CMiief  Justice  had  been 
listened  to,  and  that  the  total  sum  awarded,  instead  of  be- 
ing ^17,000,000,  including  whatever  late  of  interest  might 
have  been  allowed,  was  l»ut !?  15,000,000,  including  interest 
all  told.  Therefore,  the  Baron  Sta'ttijiHi's  figure  of  *400,000. 
in  which  he  made  an  errir,  undoubtedly  went  out,  even  if 
the  wages,  as  they  probably  did,  went  in.  Now,  the 
wages  were  not  given  in  lieu  of  prospective  catch  as  such, 
of  course,  and  interest  was  not.  In  defining  interest  in  law, 
3^^ it  is  laid  down  in  the  elementary  books  that  inasmuch  as 
future  profits  of  money  or  moneys  worth  caimot  be  allowed 
as  damages,  the  law  has  adopted  interest  as  a  i)roper 
rule  in  lieu  of  profits  which  it  cannot  give.  That  is  what 
interest  is  defined  to  be  when  it  is  called  damages. 


1  I 


■  the  Lord 


le  added  5 


Now,  I  venture  to  hope,  that  it  will  not  be 
found  by  this  High  Conunission  that  the  Tribunal 
of   Arbitration   at  Geneva  awarded  anything  as  damages 

40  for  jtrospective  catch,  or  anything  in  lieu  of  pros- 
pective catch,  in  tht  sense  of  admitting  the  doctrine  of 
piDspective  catch  as  .;  nieasure  of  damages.  I  especially 
hope  .so,  in  view  of  the  fact  that  the  arbitratois  expressly 
stated  in  theii'  award  that  they  did  not  allow  any  sum  on 
any  such  cause.  As  a  matter  of  fact  they  did  not.  We 
liavc!  now  seen  that  they  could  not  have  had  it  in  their 
mind,  and  that  the  learned  Chief  Justice  of  England  could 
not  have  had  any  such  thing  in  his  mind  when  he  used  the 
words  "in  lieu  of."     He  meant  when  he  used  those  words, 

50  that  in  place  of  the  illegitimate  item  of  catch  there  had  been 
put  in  a  legitimate  item  of  damages,  to  wit,  the  wagosof 
the  men,  and  he  meant  also  as  he  said  that  "  prospective 
citch  was  not  a  legitimate  item  of  damages." 

Now,  upon  this  evidence,  your  Honors  will  find  in  the 
(icneva  Arbitration  the  testimony  in  behalf  of  the 
wiialers  on  all  fours  in  every  respect  with  the  evidence  in 
thi- case— with  the  exceptions  carefully  pointed  t)ut  by 
luv  learned  associate.  Mr.  Lansing,  in  his  most  careful 
tiihles— that  the  rule  sliould  apply  with  'greater  force  as  to 

<j<j scaling,  because  sealing  is  very  much  more  uncertain  in 
ils  conditions  than  fishing  or  whaling.  In  the  former 
tin-re  is  no  question  of  tlu' conditions  as  to  the  seals,  of  their 
litiiig  easily  frightened,  of  lying  on  the  surface  of  the 
\v;iter,  of  their  sleeping,  sinking,  or  any  of  the  other  po- 
ciiliarities  bearing  on  the  uncertainty  of  taking  them— all 


ItHS 


r 


Mil 


I  I 


?'     I 


(Mr.  Dickinson's  Cl()sin(;  Argument.) 

of  wliicli  hav«*  Ix-on  most  can>fiiily  poiiitcd   out    to  flislin- 
giiish   tiit>   taking   of  seals   from    tlic    taking  of   U<.\\  ,,1 
wliah's,  and  all  of  whifli  add  a  greater  uncertaiiitv  tn  tlio 
taking  of  seals   than   to   tlie  taking  of  whales,     r.iil  ih,. 
testimony  set  out  in  full  in  support  of  the  claim  for  pins 
jiective  catch    for  whalers   before  the  (Jeiieva  .Arltitialinii 
was  to  tiiis  etTect :  in  many  instances  the  vessels  weie  dr 
lostroyed  in  the  midst  (if  schools  of   whales.     In  maiiv  m 
stances  they  had  a  whale  on    hoard  and   another  atl.u  IimI 
alongsidt!;    thoy   were  on   the  ground;  the   whales  wiiv 
there    to    he   caught,  and    they  were  catching  tliem.     .All 
these  (piestions  were  urged  in   favor  of  tlie  cei  tainty  that 
they  could    have   got    so    many  whales.      Indeed,  in  sdim" 
instances  the  proof  at  tieneva  was  as  strong  as  the  posi 
tion  of  that  witness  whom  n)y  friends  put  upon  the  stand 
at  Victoria,  and  who  said  that  the  seals  were  so  thick  iliat 
one  could  walk  on  them. 
20     Mr.  I'eters:     ( )ne  of  your  witnesses  said  that. 

Mr.  Dickinson: — It  was  \  ictor  Jacohson.  your  hrst  wit 
ness.  At  (ieneva  the  testimony  was  uncontrailicted  Ihal 
the  wiiales  were  there  and  countless  whales.  W'li.alis 
tied  to  the  ships,  whales  in  the  ships,  whales  an.xious  to 
he  caught  and  putting  their  noses  right  up  to  the  Iniw 
sprit;  St)  audacious  and  forward  were  the  monsteis  tliat 
the  whalers  were  actually  afraid  of  the  tails. 

The  Commissioner  on  the  pa  it  of  (Jreat  Britain:— Tluy 
made  out  a  good  case  at  (ieneva. 
30  Ml.  Dickinson:— They  made  a  very  strong  (visc;  a 
stronger  case  than  it  is  possible  to  make  out  here  with  re 
gard  to  the  seals,  excejit  on  the  testimony  of  the  single  wit- 
ness Jacohson,  who  found  the  seals  so  thick  that  tiicy 
were  there,  not  only  in  great  streams  flowing  touaids  tiio 
I'rihilotf  Islands,  as  one  of  the  witnesses  said,  hut  liny 
weie  so  thick  that  all  over  the  sea  you  could  walk  on  tiiein 
as  you  could  upon  a  boom  of  logs. 

And   still   they   would   not   give   jtrospective    catcii  at 

Geneva.     I  have  dealt  with  this  (ieneva  judgment  in  all 

40 its  as|)ects  as  to  which  it  is  treated  by  my  learned  friends. 

I  shall  now  refer  to  the  subject  of  my  learned    friend's 

doctrine  of  iiitenf. 

The  Commissioner  on  the  part  of  the  United  States:  -I 
do  not  know  that  anybody  is  aware  what  the  tribunal  at 
(ieneva  finally  allowed  for  any  of  these  items.  I  sup- 
l)o.se  that  no  one  can  be  cei  tain  about  it. 

iMr.  Dickinson:  Except  that  they  did  not  allow  foi  pios- 
pective  catch;  that  is  certain. 

The  Connnissioner  on  the  part  of  the  United  States:  — 

SoKstimating  on  the  basis  of  Baron  Sta'mpHi's figures,  or  the 

suggestions  made  by  Great  Britain,  does  not  either  ard  both 

of  these  allow  something  for  the   enterpiise   beyond    the 

mere  value  of  the  vessel  and  what  was  on  board  of  liei ; 

Mr.  Dickinson: — There  is  siothing  allowed  so  far  as  you 
can  find  out,  and  there  is  certainly  nothing  allowed  for 
prospective  catch.  "  SutTicient  tor  that  argument  is  that 
evil  thereof." 

The  Commissioner  on  the  j)art  of  the  United  States:— 
Taking  the  five  cents  a  ton,  or  the  25  per  cent,  interest  that 
60  was  suggested  by  the  British  counter-case;  or  taking  the  fig- 
ures given  by  Baron  StaMiipfii,  do  not  they  represent  some- 
thing besides  the  value  of  the  vessel  and  the  catch  on 
board? 

Mr.  Dickinson:— Baron  Sttempfli  does  not,  because  he 
says  exactly  what  he  means.     He  made  the  mistake  about 


IJ^r   .,.-   '»Y 


T 


(Mr.  Difkiiii-on's  Closing  Armmifiit.i 

tilt'  ilt'iii  of  !i(4iM»,iMMi  and  r,<tnl  Chit  1'  .liistin-  CocklMirii 
threw  it  niit  by  his  logic.  Nnw,  what  he  dues  allow  ami  sug- 
gests in  a<Milion  is  ijTi^s.too,  the  men's  wages  of  the 
whalers  as  clainieil. 

The  Conuni^sionei' III!  the  part  of  the  I'nileil  States:  — 
lint  the   wages  nl   the   sailors  wer.-    not  a    vahiahle  or  ii 
chattel; 
I  ,     Mr.  Dickinson:     Hut  they  weio  lost  and  Ihev  were  nn- 
(louhteilly  asvarded. 

The  CouHnissionei' on  the  part  of  the  I'niled   Slates: 
Do  not  Ihe-e  tigurt  s,  on  either  side,  repieseiit  to  a  certain 
extent  what  yon  have  descrihed  as  the   earning  lapacity 
ot  the  vessel  in  the  position  in  which  she  was; 

Ml.  Dickinson: — The  most  ol  them,  hear  in  mind,  were 
partial  loss  cases  and  donhtless  something  was  allowed 
lor  that.  Hilt  in  the  .item  of  wages,  w.iges  were  only 
allowed  for  the  time  stated.  In  the  American  aignineiit 
;,  they  claimed  for  wages  only  for  certain  periods  and  on 
account  of  the  long  voyagi^  they  ilaimed  in  some  cases  for 
nine  months,  hut  only  on  the  theory  that  wages  should  he 
rnllected  for  lliu  men  for  the  length  of  voyage  for  which 
lliey  had  not.  received  pay  or  whether  they  did  receive  it 
or  not  the  owners  were  entitled  to  it  and  tor  the  time  it 
woultl  lake  to  gel  hack  to  port.  That  w.is  the  theory  on 
which  they  presented  their  claim  for  w.iges,  and  they 
never  claimed  interest  in  addition  to  prospective  |ndtits 
as  our  learned  friends  do  here  from  start  to  llnisli 
-o     Mr.  Peters:  -They  did,  and  they  got  it. 

Mr.  Dickinson:— They  did  not  even  claim  interest  on 
prospective  profits.  Von  claim  pids|)ective  piotits  and 
interest  on  it.  Voii  did  claim  wages,  prospective  profits, 
and  interest  on  all.     Von  did  claim  (  Miinsie  swore  to  it  at 

Victoria)  wages,  money  lost  on  the  ship,  provisions 

Mr.  I'eters:— That  is  not  correct. 

Mr.   Dickinson:  -Von   did,     and    yon    produced    those 
lieaiitiful  vouchers  to  sustain  the  claim. 
.Mr.  Peters:  — We  ccitiiinly  never  claimed  it. 
40     Mr.  Dickinson: -The  claim  was  put  in  and   yon  figured 
it   out   very    impressively,    including    the    supplies    that 
Miinsie  had  there   carefully  sworn  to  and  for   which   he 
presented  the  vouchers  which  we  all    lememher.   making 
ilie   tot.il   claim    !?lU,(tOO,  besides   prospective    catih   and 
interest. 
Mr.  Peters: -My   learned  friend   is   mistaken   when  he 
claim   that    from   the  Lnited   States.      I  do  not 


io 


Iliiiik  the  .irgiiment  siiouid  proceed  on  tlie  basis  that  we 
ale  making  a  claim  which  we  did  not  make.  The  claim 
jiir  the  '•Caidlena"  is  the  very  first  claim  that  is  nieii- 
t lolled  hefoie  the  I'aris  Trihiinal.  and  before  your  Honors. 
and  that  claim  expressly  on  its  face,  originally  and  al- 
uavs.  was  for  the  value  of  the  vessel.  It  then  put  the 
value  of  the  outfit  inconsumabli' and  till-  svages  of  thecrew 
In  date,  and  afterwards  deducted  tlu^siim  of  .S'>.'-M:!,  which 
iiii  iiideii  the  wages  of  the  crew,  as  shown  hy  the  p.ipers 
;imiexed  to  that  very  claim.  1  am  referring  to  the  claim 
a-  iiiiginally  put  in  at  Paris.  It  is  a  pity  we  should  have 
a  niisnnderstanding  on  a  point  of  that  kind.  ''  claim  is 
Cotnr  vessel,  for  value  of  inconsumable  outfit.  ,ii-ii'ance, 
wages  and  estimated  catch.  From  that  was  deducted  the 
-mil  of  ?!:'..  li':'). ;'>::'.  wliicii  includes  all  groceries,  aminu- 
iiilion.  drygoods.  ship  ch.aiidlery,  miscellaneous  articles 
and  the  wiigcs  of  thecrew  to  that  time;  .so  my  learned 
tiii'iid  is  in  error  when  he  states  we  havt;  a  claim  on  the 


m 


lu 


!Mtii 


(Mr.  Die  kiiiHon's  Closing  Ai'KUiiiiiit.  i 

riiiltd  Sliilis  for  the  niittit  of  this  Vfs>,(|.     TIm'  vimhIm  i 
;it    Viclori.l  writ'  |»llt  ill  lor  .llinflici    |il||'|io-.i> 

Mr.  IHckiiisuii:     I    siilniiit    tli.it    iiinli'i-   tin*  m-IiciIiiIc  In 
*lii|  iiol  (Icdiict  Iht'  wji^jfs  til'  llic  cii'W.  iiinl  thai   liny  ,iUm 

(IcIlllllllitMl    IHOHplMliVl'  (lllcll    ill    tllC   SCllCtluJc    (K     I'jlli-.       \\l' 

spi'iil  a  ioii^' tiiiii'  ill  jioiiijj;  over  IJicsc  very  liiir  vuinhii, 
uf  Mr  Miiiisic.  iiikI  tlicv  wfn-  tutalt'il  l»v  liim  Im'  snii  ;ill. 
iil'Icr  (lavs. iMil  (lavs  s|i('iil  ii|>"ii  IIkmii  liy  my  Icariicil  Iriciil. 
as  "oiitlil,  oilier  lliMii  in'ovisioiis,  ^iiiis  and  aniiiMiiuiiMii. 
^•_',7'_'l.n:.;  iHovi-idiis  in  addition,  ije.t.'iO.Ts;  ^mis  ami  am 
iniiiiilioii.  ^tio.t.ol ;  siiiKliics,  !i<l.7'j:t,7"_'i  value  of  mIiuhii.i. 
iitl.iMio;  lofal,  *|o,(»iio,atl."  outside  of  |)ros|)(.iiive  ealeh  ami 


inleiesi  isee  at    |>a;;e   Il0(d'tlie   Uecordi.      I  do    not    kn 


what 


we  W 


ere  at  winU  on  there,  and    I  do  not    kn 


ii\\ 


o\v   W  ll.ll 


Mimsii'  \v,is  sweariii;;  ahoiil,  unless  he  ex|>ecte(i  to  lecuxci 
all  that  stnlVthat  went   into  his  tradiii'.^  posts  and  (Hi  Ih 
coast    in    the  spring    voya}.;( 


I    adinil    that    inv 


ir I 


friend  does  not  claim  it  now;  hut  you  do  claim  prospMiivi 
catch,  do  von  not '. 

Mr.    I'eters;('erlaiiily. 

Mr.  |)ickiiison:     Ami  you  do  claiiii  interest  on  pri(-i|H(t 


ive  (.1 


t(h 


niiKiM 


Mr      reters:- Certainlv  ;     now     we    are     on    coi 
);;ioiind 

Mr.  I>ickins(»n. — What  yoiidid claim  in  the  "("aroleii.i 
case  may  he  imnia^'i  iai.  if  yon  do   not  claim   it  iio\> 
only  appears,  and    we  hiv(i  only  used   it    in   this  ca 

the  cn'dihili' V  o"  Mr.  Miinsie,  who  Ihoiiuhl  ii 


It 


H'arm^'  on 


was  ifoiii^i'  to  recover 


it.  I 


iccause  he  swore  coiisislciillv 


40 


and  he.inlifnily  from  1       heginnin^  totlie  end  that  all  \\\\-> 
went  into  the  Meiiiig  ^l  a  voyage. 

('(iNsi:(.>ri';NX'Ks  oi-  Intkst. 

1  was  ahoiit  to  say  that  I  would  discuss  tiie  distinction- 
which  my  fiiend  makes  in  prospective  catch  heforc  tin' 
(ieiieva 'rrihiinal  and   here,  that  these  prospective  catdio 

ll^e 
ell 

e>  in- 


diould  not  have  heeii  given  against  (Jreat  liritain  heca 
die  was  only  guilty  of  neglig.nc  >.  hut    should    he  giv 


liiist  the  riiited   States,  hc'cause  the  I'liited   Stat 


tended  to  take  tlie  ships.  We  will  take  Sedgwick  a>.  a 
common  authority.  Tlieie  is  no  dilVereiKX'  hetweeii  a 
fort  from  negligence,  in  respect  of  th(^  damages  to  he  ic 
covered  and  a  tort  with  express  intention.  1  concede  th.it 
tliei  •  is  ii  dilVereiice  when  the  intention  involves  an  ele- 
ment of  evil  motive,  hut  that  is  the  only  tiling  that  di^ 
tingnishes.      Mut  willful    tort   and  gross  negligence  st.i ml 


50 1"; 


■Iv   al 


Iso  oil  the  same  groun 


d.      I  mean  willful  \<iv[ 


th    evil    motive,    in   respect   of  damages.     AggrMv.iifd 


w 


(lamagis, 


(»r 


•.vhat    are  called  exemplary  damages,  ful 


tKMtcfl  of  hy  Sedgwick  and  otiiei  text  writers,  aregiveii 
ill  hotli  cases.  On  the  other  hand,  dain.ages  in  a  collision 
case,  01  damages  for  (-apt'.ire,  in  the  al><eiice  of  evil 
niotiv( 


lalice  and  evil   w.iiilonness   stand    inccisely 


(III 


the  same   ground;    hoth    are  torts,  .and  the  damages  re 
stilting  are  governed  hy  the  s.ime  law  and  rule. 

Tlie  ("ominissioner  on  the  jiart  of  Her  Majestyi-Migiit 
5o there  he  added  a  distinction  .irisiiig  from  this.  Mr.  Dickiii 


III,  that,  taking  tin,'  case  of  tlit-  "  Alaham 


lere 


pro-;pective  catch  was  a  remote  conse(|uence,  heing  the 
conse<|uence  of  a  coiise(|nence,  if  one  might  so  say.  I'oi 
instance,  as  the  coiise(|Ueuce  of  a  iK^gligeiit  act,  the  escape 
of  the  vessel,  the   American   vessels   were  destroyed ;  as  a 


ll.ti 


IJ'  V  "■»ii 


<Mi.  I )irkiiisoirH  Closing  ArK»ii»tiit.  i 

niiis)-i|ii>-nri' of  that  tlu'ic  was  till' iillr;{f(l  loss  ot  |ir(is|ii>i.t 
iv  '  t'jitrli;  wliili- ill  this  ciisc  it   mi^hl  lir  tliiit  thr  .iIIp^i.mI 
(diisi'i|ii)'ii'i>  ol'  till'  |iios|ii'i'livi'  catrh  wii-^  iiiiiiM'iliali',  ami 
not  till'  rn|iM'i|ii('iiri'  III'  a  niiiM>i|ii<'iii'i'. 

Ml.  Dii'kiiisoii:  I  think  |ii)ssili|y  voiir  lloiin's  ronsn- 
<|ni'ii('i's  ^o  too  niiiny  staurs  away;  liiij  on  cilln'i'  la<'ts  liotli 
all' toi'ts.     Takit  voiir   Honor's  ili'^tiiiiliMii  that    ilir  n)';;h 

ip'tin't'liai^i-ahit'  toCirat  Iti  it  >ii>  >vas  in  li'ttni);  Ihrsiiip  p*, 
anil  till'  shi|i  at  soiin'  lati'i  pi'iioil  haviii)^  iloiir  ihi'  '''xna^i', 
that  svas  a  ronsi'i|iii'iii'i'  of  a  ro!ist'i|ni'iiri'.  I  i|nit*' a|i|ii.t 
lii'inl  that;  hnt.  atlcr  all.  (Iii'at  hiitain  woiilil  not  have 
Ih'i'Ii  liahli'at  all  iinlc-^s  tor  a  tort,  ami  that  tort  was  tlm 
iii'^lip'iiri'  of  (irral  lii'ilaiii:  ami,  liki'all  trnts,  Iht-  natural 
ami  li'K<tiniali'  <'<>nsi'i|m'nr<'  was  thr  ili'sti'mtion  of  the 
Anii'iiraii  vi'ssi'Is.  hi'caiisi'  tlii'  "  Alahania  "  li'ft  tno  |i(irt 
hy  ii'asoii  of  tlit*  iii'^lini'mi'  of  (iii'at  IJiitain  an  a  war  vi-s- 
st'l  to  prt'y  on  one  ciiiinni'i'ci'.  It  was  a  <-iil|iahlt' 
2uni'^liK*'i><'*' <"'  it  ^^'it^  »<>t  it  toll;  ami  Ihi' ilistimMion  which 
yoiir  iloiior  sii^^fsls  I  siiliinil  is  not  niailc  at  all  in  tin' 
ciisi's.  Kor  instaiici-,  thi'ii' aii- alinmlant  antlioiitn'-i  as  lo 
unlawful  captnii'  unlawful  sfi/nif  -  tin' aitnal  taking- 
ami  thr  saini'  nili'  as  to  piospi'clivi)  ilania^i's  is  applitiij  as 
applinl  at  (it'iicva,  ami  my  fiim  Is  (aiiiiot  liml  a  casi'.  -I 
do  not  speak  as  to  iiiimc  tcniporaiv  injni-y  or  ili'lay,  hnt  of 
the  (li'strmtion  of  personal  piopi'ily,  or  its  conversion  - 
where  |>rospe(tive  ilaniaues  are  ^iveii,  tlioii|f|i  the  intent 
he  til  (lustroy  or  «'onvert 

;.  Tlio  (,'omniisHioner  on  the  part  of  the  United  Slates: — 
Von  mean  in  conseipieiice  of  the  intent. 

Mr.  Diikinsoii:  — Without  rej^ard  to  the  intent  of  thu 
party  who  does  the  act.  A  man  who  captures  a  vessel  or 
Hi'izas  it  on  the  liinh  seas,  in  the  oases  cited,  as  to  which 
the  rule  aj^iiiist  jirospectivo  damaj;es  has  heeii  put  with 
eipjal  force,  nnist  he  held  hy  the  law  to  have  coiiclus- 
ivelv  intended  to  have  stopped  the  vova;;e.  'I'lieie  is  no 
doiilit  ahont  that.  The  ipiestioii  of  intent  to  stop  the 
voyaj.;!'  turns  on  whether  that  was  the  nalural  coiiseipieiico 

40 of  the  act  of  seizure.  Itiit  it  is  hack  of  all  that  yon  must 
p't  on  a  new  ground  for  damages,  to  wit.  an  evil  motive, 
to  give  anythiiif;  in  the  nature  of  a^nravated  or  ex- 
emplary (laniap'.s.  Let  me  illustrate:  Never,  with  refer- 
eiiie  to  personal  property,  is  the  rule  clian};;ed,  except  in 
till'  single  case  of  contract  If  the  I'nited  Slates  were  a 
person,  and  had,  without  <'olor  of  right,  and  for  the  pur- 
pose of  mischief,  for  the  purpose  of  destroying  tin-  prop- 
erty, with  no  other  fair  ulterior  iiioiive,  made  these 
seizures,  they  should  he  mulcted  in  exemplary  damages 

iolicyond  (piestimi.  There  is  no  ilouht  ahont  that,  however 
one  or  two  of  our  State  courts  ni;ty  ditfer  as  to  that  (pies- 
tidii.  The  universal  rule  is  to  give  soiiiething  in  the  na- 
ture of  exem|ilaiy  or  adiU'd  damages  in  suili  a  case.  Hut, 
\(  the  I'liited  States,  or  its  olHcers,  as  stated  from  the 
upinion  in  the  leadi  ig  case  cited  by  my  friends  from  my 
own  State  (Chandle-  r.  Allison),  are  proceeding  under 
color  of  right,  or  paities  are  in  dispntiN  as  over  a  piece  of 
l.iml.  and  they  go  to  law  about  if,  believing  they  are  right, 
tiiere   are   no  exem|ilary  damages.     To  give  exemplary 

'"ilaiuages,  the  act  must  be  done  with  intent  to  do  mis- 
chief—evil intent.  The  intent  to  destroy  does  not  add  to 
tile  damages,  if  such  intent  to  destroy,  or  take  from,  is 
accompanied  with  a  fair  motive,  and  is  in  good  faith. 
Take  the  case  of  a  man  driving  to  town  on  business  with 
!us  horse,  wa;.;on,  and  family;  a  man  claims  the  horse. 


jli 


M 


F 


i,^ 


lO 


(■1 


W'2 

(Mr.  Difkiiison's  Closing  Argninout.) 

Wi'li,  if  ho  simjily  stops  tiiat  trip  l)y  iciisoii  of  mi  evil  him 
tive,  cliiims  llic  lioiso.  and  canit's  it  off.  wiilioiit  ciilni  cf 
title,  lit'  is  liahlc  in  dainagt's  for  tlif  simple  fact  that  ;li. 
injurt'd  Mian  was  troiihlfd  and  put  to  discomfort;  and  i].- 
is  gi\ I'll  adth>d  or  fXt'iiiiilaiy  damages  too.  Hut  sui)pii-.c. 
instead  of  taking  a  horse  in  that  way  he  takes  it  uinlir 
color  n!  right,  on  a  wi'it  of  re|ilevin,  and  occasions  all  lln- 
same  iiicoiivriiieiice  and  lo:  s  Ity  the  action  iiiidrr  tli  if 
writ  aiiil  carries  the  liorse  otf;  the  same  results  follcuv  ,i, 
to  tile  iiuiinveiiience  of  the  pai'ty  whose  hoise  is  t.ikiii; 
and  yet  it  may  turn  out  that  the  plainlilf  was  witliMui 
right,  and  the  Conit  may  decide  that  the  horse  heloiig-  |,i 
the  man  fioiii  whom  it  was  taken.  He  can  only  iicix,. 
damages  for  the  val'ie  (d  the  ju'operty.  if  not  retuiiicij. 
otherwise  than  if  his  suit  or  a(  t  is  malicious. 

Now.  to  inilher  illustrate  this  rule,  let  me  refer  tn  th,. 
■•  Argeiitino  ■■    c.ise,  which  has  heeii   freciueiitly  cited,  .nid 

2otherule  laid  dow  n  in  the  Court  of  Appeals.  Ofcoiiisc  1 
hardly  need  argue  that,  heing  a  contract  case,  the  Ian 
piiage  of  tlu' opinion  in  the  Mouse  of  Lords  s()uarely  turn 
mg  on  its  heing  a  contract  case,  it  is  not  in  point;  hii 
us  e.x.imine  the  decision  of  this  case  in  thcCuin' 
Appeals  heiow.  This  is  a  vt'i'y  elahoi'ately  argued  ca^c, 
helow  an<l  here.  Loss  of  profits  of  course  wi-re  claiiinil: 
the  delilierate  inieiit  lo  injuie.  That  part  of  this  decisinn 
ivleiiiiig  to  Sedgwick  is  ipioted  hy  my  learned  friend  asjt 
it  distinguished    the    matter.     The  language  (pioted  finin 

■;oSedg\\  ick  is  as  follows:  " 'I'his  geiieial  pi'inciple  pervades 
■•  the  civil  as  well  as  llie  common  law.  and  applies  e(|ii,illv 
■■  to  cases  of  lireach  of  I'ontraet  and  violation  of  dntv;  U\ 
■•all  (ases,  in  short,  wlier"  no  eomplaint  is  made  nl  anv 
••  delilierate  intention  to  injure."  'I'liat  isat  pagi'  IH7.  Tiie 
dehheiate  intent  to  injure  is  evil  intent  . is  Sedgwiik  (lis 
cu.sses;  hut  the  opinion  of  llie  Court,  delivered  iiy  linucn. 
Loril  .Justice,  discusses  the  whole  (|uestioii: 

••  'i'lu'  (Imniit,"''*  r('c(>vrial)lt'  from  a  wriiufiddcv  in  cases  nf  cdlli.^idn  ,it 
•   sea  iiiust  \ir  ini'astircil  accdnliiij^  to  tin-  ordiuarv  ininciiilcs  of  tlio 

•  roniinoii  law.     Coui'ts  of  .Viliiiiraltv  have  no  power  to  (jjivc  nioii'.  tlu'V 

•  ou^jlit  not  to  award  less.     Spcakiuf^  nenerallv  as  to  all  wron^'fiil  uts 

•  wliatfvrr  ■o-/>'//;/  mil  nf  liirt  fi-  hn'ocli  i./  cinili-.nt.  tile  Mnnlish   law  niilv 

•  a<lo]>ts  till'  prini'iiilc  of  rrshhftii,  n,  iiiti-jriini  snlijcct  to  tlie  (|iialiticii- 
'  tion  or  rest  riction  that  the  ilaniaps  must  not  lii'  too  ri'iiioti,  tliat 
'  tlicv  must  111',  in  other  words,  sueli  damani'sas  How  dirertlv  and  inllii' 
'  usual  I'oursi'  of  thiii),'s  from  the  wroiififul  ai't.  To  thrse  tlie  law  -^iiiht- 
'  adds  in  the  ease  of  a  lireaeh  of  eoiitraet — |now  eoiiiiiit,'  to  the  i|nes- 
'  tloli  of  eontemiilation  and  intent] — ^(or  to  speak  aeeordiiij;  to  the  view 

•  taken  liv  sonic  jurists,  the  law  ineludes  under  the  head  of  these  \eiv 
'  damages,  where  the  ease  is  one  of  lireaeh  of  eontraetl.  siieh  ihiiiiat;es 
■  as  ma\'  reasonalilv  lie  supposed  to  have  lieen  in  the  eoiitem|ilatiiiii  of 
'  liotli  parties  at  the  time  thev  made  the  eontraet  as  the   proliiilile  re- 

•  suit  of  its  lireaeh.  With  this  single  moditieation  or  exreptieii, 
•■  irlii'h  IS  1, 14'  lliiil  ii/i/iii'  s  mill/  III  rusis  nf  liri'mji  n/'  cini/rin  I  the  |-',n;,'li>li 
••  law  only  permits  the  reeoverv  of  siu'li  damiifji's  as  are  prodiued  iiii- 

•  mediately  and  naturally  liy  the  aet  eomiilained  of  "i  I.'l  P.  ))..  p.  pi]  i 

That  uKiditication  of  the  conteniplaled  injury  wjieie 
]irotits  are  to  he  made,  where  the  contem|ilated  injiiiy  iiia\ 
atVect  the  amount  of  profits,  or  give  profits  as  d.iniages 
where  prolits  would  not  he  given  l.y  the  rule  in  tnif  ov 
contract,  the  Lord  .lustice  says  only  applies  to  cises  <>\' 
lireaeh  td  contract  and  not  to  cases  of  toit,  ami  of  coiiise 
ill  cniitiact  the  Kasoii  of  the  distiiiition  is  veiy  plaui. 
•that,  where  the  contract  is  hrokeii  the  same  ohjecli'in  to 
prolits  which  makes  the  rule  of  law  ag.dnst  profits  dins 
not  ohiaiii.  hecanse  the  contract  shows  what  profits  an-  in 
lie  made,  and  it  is  Mot  ohno.xious  to  the  ohjection  of  le 
muteness  or  contingency  at  the  hreach. 


4f) 


"io 


Co 


^-TTFMf^l^lll 


lent.) 

11  of  ill)  evil  iii'> 
witlmiit  (mIui  iif 
|il."  t'iX't  tliat  ',li. 
'diiitort;  and  li<< 

Hut       S'lil|MI-C. 

lakes  it  iiiulir 
occasions  all  llii' 
tion  iiiidcr  tiiaT 
r('>uits  t'ollciw  a'- 
'  liorsc  is  taken; 
lilt'  was  witliDut 
iiorse  lielonj^>  tn 
can    only  frcti\r 

if  not  relnineil. 
ms. 

me  ri'l'ei'  In  t  Im' 
uei\tly  citeil.  ami 
als.  Of  conise  1 
let  case,  the  lan- 
•(Is  s()naii'ly  tnin 

in  point:  lint  Iri 

in    the  Coiiil  lit 
tely  aij^neil  ca~e, 
I'se  wt're  ciainuil: 
it  of  this  decision 
I'arned  friend  as  it 
uaj^e  <|noted  fioiii 
irinci|iie  peivailes 
nd  applii's  einiaily 
lation  of  duty;  to 
lit  is  made  (it   anv 
sat  pap' !'.•:.    The 
It  as  Sedgwick  dis 
livered  iiy  iiowni. 
on; 

niscs  of  i'olti>iiiii  :it 
mry  priuiapli's  of  I  lie 

;'!•  to  tiivc  Miol-i'.  tllfV 

to  all  wi'oii'^'fiil  11  ts 
till'  Kiinlisii  law  nulv 
lijfi't  to  till'  iHliilitiiM- 
it  tic  too  rcinoliv  tluit 
low  (liiii'tfv  aiiil  ill  till' 
tlu'si'  till'  law  su|Hr- 
roiiiiun  t>i  till'  ijiH'-- 
ari'oi'ililintutlir  \ii'W 
till'  lu'iiil  of  tllrsi'  MIV 
tnu'tl,  siirll  ilaiiia;,'i's 
till'  couti'mlilatioii  of 
rt    as   till'    in-olialilr  Ir- 

tiiation  or  I'xri'iitiiui, 
iuiih-.i'i  till'  Kiij-IUli 
as  an-   jii-niliii-i'il  ini- 

lofll:!  1'.  I>..  P    l''li, 

lied  injury  where 
plated  injury  may 
rolits  as  d;iina-es 
le  rule  in  tml  or 
pplies  to  cases  nl 
lit,  aiul  of  Colll-e 
ion  is  veiy  plain, 
same  olijecti'Hi  In 
;.iinst  profits  dees 
what  piolils  are  to 
e  ohjei'tioli  of  re 


int.T 

(Mr.  Dickinson's  Closing  Argiuneiit.) 

Therefoi'o  it  is  made  flic  only  exception  wiiere  prospoctivo 
profits  can  ho  Riven,  and  we  liave  tliis,  1  think,  until  re- 
versed, from  the  hijiliest  authority  in  Her  Majesty's  juris- 
prudence. That  is  tlie  contention  bv  which  we  liavw 
stood  at  all  times.  Take  tiio  cases  cited  of  tiie  destruction 
of  the  British  ships  hy  (.lermany.  Of  course  (leiinany 
needed  the  ships,  and  th«  shijis  were  oi  rof/utjc  and  earn- 

loing  |>rotits;  they  were  eii^^ajied  in  tiieir  occu|>ations. 
VVIien  (ierniany  wanted  the  slups  siie  took  them,  and  she 
contemplated  and  therefon*  intended  tiiat,  if  siie  took  the 
sliips  and  used  tiiem,  or  destroyed  them,  they  could  not 
pursue  tlieir  voyaj^es.  So  far  as  tliat  is  concerned  the 
intent  was  theie;  so  far  as  the  owners  were  concerned, 
they  could  not  pursue  their  avocations  and  earn  money; 
and  the  intent,  in  the  sense  in  which  my  friend  uses  it 
here,  was  to  prevent  them.  Also  tiie  otiier  element 
existed  that  Germany  wanted  the  ships.     My  friend  says 

20 that  tiio  United  States  wanted  to  i)revenfc  tiiese  ships 
from  sealing  to  get  the  profit,  and  that  the  United  States 
knew  that  the  people  could  not  seal  and  make  the  protit 
if  they  took  their  ships.  That  is  true  enough.  In  the 
(Jerrnan  case  they  knew  that  if  they  took  the  ships,  the 
ships  could  !U)t  go  on  and  earn  their  profits;  but  the 
Hritish  authority  to  whom  the  whole  matter  was  referred 
by  Germany— -at  least  (ierniany  accepted  the  decision 
upon  it  of  the  learned  Kegistrar  and  the  Committee  of  the 
Board  of  Trade  to  whom  the  matter  was  referred— ruled 

30 out  the  claim  of  tliese  owneis  for  |)iospective  piofits  on 
the  universal  rule  that  they  could  not  he  allowed.  I 
desire,  also,  to  call  attention  right  on  this  (luestioii  of 
intent  to  the  njost  interesting  case  of  "  The  Washington." 
The  reasoning  following  from  it  is  so  jiertinent  that  I  call 
attention  to  it  —under  the  Convention  of  18.W. 

The  Commissioner  on  the  part  of  the  United  States:  — 
Great  Britain  at  the  same  time  i)aid  for  the  "Argus,*' 
which  was  seized  ofY  Knglishtown  down  there  at  Cape 
Smoke. 

40  Mr.  Dickinson:— Yes;  I  am  only  referring  to  cases  where 
there  are  extended  opinions  on  the  subject.  In  "  The 
Washington  "  case,  it  was  held  that  the  United  States  had 
renounced  any  right  to  take  and  cure  tish  on  certain 
coasts,  bays,  harbors  and  creeks  of  Her  Britannic 
Majesty  in  North  America.  A  United  States  ship,  under 
the  flag,  and  undoubtedly  owne<l  and  registered  as  an 
American  ship,  duly  documented,  entered  the  H.iy  of 
Kiindy,  and  (ireat  Britain,  claiming  exclusive  jurisdic- 
tion, seized  and  confiscated  lier.     She  was  a  total  loss  to 

50 iier  owners:  but  no  one  ever  insisted  that  Great  Britain 
,hd  not  seize  her  in  good  faith.  She  claimed  exclusive 
jurisdiction  over  the  Bay,  although  it  was  insisted  that 
under  international  law  by  the  rules  governing  nations, 
the  Bay  of  Kundy  could  not  be  a  closed  sea,  but  the 
owner  had  lost  his  ship,  and  had  been  ruined  in  his  fish- 
ing for  the  season,  and  he  was  given  damages  for  the 
value  of  the  ship.  My  friends  have  no  stafenuMit  of  tiie 
British  report  of  this  (uise,  anil  it  does  not  appear  what 
and  how  the  claim  was  made;  bu;    it  certainly  does  not 

t«;i]ipear  that  any  claim  for  prospective  catch  was  made.  I 
use  it,  however,  to  illustrate  this  point,  that  the  United 
States  never  would  have  maintained  for  one  moment 
that,  however  extraordinary  the  claim  made  by  the 
sovereignty  of  a  great  nation  of  exclusive  jurisdiction 
in  tiie  i3ay  of  Fundy,  so  as   to  prevent    au   American 


994 


(Mr.  Dickinson's  Closing  Argument.) 


I  W 


■    f. 


she     intended     \n 

contemplated    that 

was   in    the    minds 


ship  from   fishing    there,  this   nation    made  it   in   hikIi 

bad   faith    as    to    he    guilty    of    an    evil    motive    wlicn 

she    seized     our    ship.      Doubtless 

stop    the    yhip    from    lishing,    and 

she    would    spoil    the    fishing.     It 

of  the  authorities  of  Her  Majesty's  Government  that,  if 

that  ship   was   taken,    condemned   and   sold,   her  owner 

10  would  lose  her  for  fishing  purposes  that  season.  The  in 
tent  was  there,  as  it  is  here.  Now,  we  submit,  with 
great  respect  for  and  deference  to  our  learned  frii-nds. 
that  the  United  States  would  have  been  turni'ij 
out  of  any  international  tribunal,  and  out  of  that  tii 
bunal,  if  they  had  insisted  that,  because  Great  Britain 
tried  to  stop  the  fishing,  which  it  was  admitted  she  did, 
but  rested  her  claim  to  stop  that  fishing  on  the  ground 
that  the  Bay  of  Fundy  was  her  dominion,  although  it  sub- 
sequently turned  out  by  arbitration  that  she  was  wrong, 

20  she  was  liable  for  exemplary  damages  or  for  prospective 
catch.  1  only  cite  this  case  on  the  doctrine  my  friend 
sets  up  that,  in  some  way  or  other,  on  account  of  the  in 
tent,  he  is  entitled  to  prospective  catch,  and  so  take  these 
cases  out  of  the  ordinary  rule.  The  reason  of  the  rule 
against  prospective  catch  is  not  at  all  on  the  question  of 
motive,  intent  or  indirect  wrong,  but  is  entirely  the  (pies 
tion,  as  laid  down  by  the  Geneva  Tribunal— a  question  of 
impossibility  of  measurement.  That  is  why  prospective 
catch  is  refused.     Then   the   next   point   would   be,   not 

3oW'hether  you  would  get  the  prospective  catch  if  the  tiling 
was  intended,  hut  whether  you  could  get  aggravated  or 
exemplary  damages  because  of  an  intent.  If  you  come  to 
that  point,  you  have  got  to  find  the  United  States  guilty 
of  wanton  nnschief  to  give  exemplary  damages;  and  in 
the  case  of  "  The  Washington,"  where  the  claim  was  made 
to  the  Bay  of  Fundy,  somewhat  more  absurd,  if  you  will 
pardon  the  mild  sarcasm,  than  the  claim  of  the  United 
States  to  exclusive  jurisdiction  in  Behring  Sea,  the  Tri- 
bunal, according  to  my  friends,  should  have  found  Gieat 

40  Britain  guilty  of  an  evil  and  wanton  motive  in  the  seizure 
of  the  "  Washington,"  because  her  position  as  to  jvnisdic- 
tion  was  held  untenable  by  a  board  of  arbitrators  subse- 
quently convened.  The  decision  of  even  an  International 
Tribunal  cannot  put  an  evil  intent  in  the  mind  of  the 
person  doing  an  act  ex  post  facto. 

At  one  o'clock  the  Commissioners  took  recess. 


50 

At  half-past  two  o'clock  the  Commissioners   resumed 

their  seats. 

Mr.  Dickinson: — I  desire  to  recur  briefly  to  the  sugges- 
tions made  by  the  learned  Commissioner  for  Her  Majesty 
as  to  the  (iteneva  tribunal  and  the  effec*^  of  the  award 
against  prospective  catch.  As  I  understoou  this  sugges- 
tion or  query  of  your  Honor,  to  which  I  did  not  make  as 
full  an  answer  as  I  would  like,  it  was,  whether  that  being 
a  case  of  damage  for  the  consecpience  of  a  consequence, 
60  and  therefore  the  damage  not  the  direct  act  of  Great 
Britain,  the  rule  then  adopted  against  prospective  profits 
might  apply  only  to  just  such  a  condition  as  that.  In 
reply  I  desire  to  make  this  further  answer: 

Her  Majesty's  learnod  counsel  before  the  Geneva  trib- 
unal presented  every  position  possibly  tenable,  and  all  tliu 


^^mmm 


995 


(Mr.  Dickinson's  Closing  Argument.) 

authorities  there  were  ajjainst  prospective  catch  or  profits 
as  damages,  in  their  exhaustive  argument  hefore  that 
trihunal  against  those  elements  of  damages  as  then 
strongly  urged  for  the  United  States.  They  cited  all  the 
cases  which  we  cite  here  up  to  the  period  of  the  hearing 
before  the  tribunal  at  Geneva,  both  American  and  English 
and  international.  The  leading  case  wliirh  they  cited 
10  there  as  controlling  was  the  leading  British  case  which 
we  cite  here,  "  The  Columbus,"  and  they  rested  their 
argument  as  we  do  here,  upon  this  position,  that  such 
damages  are  too  remote,  contingent  or  speculative,  and 
not  estimable,  and  that  that  principle  being  common  to 
the  jurisprudence  of  all  civilized  nations,  and  especially 
of  these  two  nations,  is  adopted  by  international  law. 
They  say: 

"  It  is  on  this  principle,  limited  l)y  these  considerations,  that  the 
"  courts  of  common  law  and  of  admiralty,  as  well  as  the  prize  courts, 
20  "  both  in  England  and  America,  have  awarded  damagus  in  cases  of  ool- 
"  lision,  ciiplun;  and  others  of  a  like  nature." 

Capture  and  collision  are  here  placed  on  common 
grounds.  They  also  declare  that  the  true  rule  of  law  as 
adopted  by  Dr.  Lushingtouin  "'The  Columbus  "case,  is: 

"  To  calculate  the  value  of  the  property  destroyed  at  the  time  of  the 
"  loss  and  to  pay  it  to  the  owners  as  a  full  indemnity  to  them  for  all 
"  that  may  have  happened,  without  entering  for  a  moment  into  any 
"  other  consideration.  If  the  i)riuciple  to  the  contrary  contended 
"  for  by  the  owners  of  the  smack  in  this  case  were  once  admitted,  I  see 
S'^  "  no  limit  in  this  application  to  the  diflicnlties  which  would  be  im- 
"  posed  upon  the  Court.  It  would  extend  to  almost  endless  ramiiica- 
"  tion,  and  in  every  case  I  might  be  called  upon  to  determine  not  only 
"  the  value  of  the  ship  but  the  profits  to  be  derived  on  the  voyage  in 
"  which  she  might  be  engaged." 

They  also  quote  Story,  in  the  case  of  the  "  Lively,"  on 
pros])ective  profits,  reported  in  Gallison: 

"  The  calculation  would  i)roooed  upon  contingencies,  and  would  re- 
"  quire  a  knowledge  of  foreign   markets  to  an  exactness   in  point  of 
,„  "  time  and  value  which  would  sometimes  present  embarrassing  ob- 
^    "  stacles." 

The  "  Columbus"  was  a  fishing  case,  and  the  whole  doc- 
trine, up  to  the  conclusion  of  the  Geneva  Arbitration  urged 
by  tlie  British  counsel  then  was  this: 

"  In  them  (the  claims  for  prospective  catch]  exist  all  those  elements 
"  of  uncertainty,  remoteness  and  difficulty  which  would  undoubtedly 
"  lead  the  courts,  both  in  America  and  England,  to  reject  the  claims 
"altogether." 

i;o  Now,  the  counsel  for  the  American  Government  was  pre- 
senting arguments  in  favor  of  piospective  catch  before  the 
(leneva  Tribunal,  urging  eveiy  conceivable  ground,  and 
|)resumably,  then,  in  contesting  the  American  position 
Her  Majesty's  counsel  exhaustively  examined  all  the  law 
and  principles  which  would  apply  against  prospective 
catch  and  presented  them  to  that  tribunal. 

If  the  doctrine  of  a  consequence  upon  a  consequence, 
or  the  doctrine  now  advanced  by  my  leained  friends  on 
the  other  side  as  to  a  supposed  distinction  between  a 

6() direct  act  and  an  indirect  tort  was  a  doctrine  known 
to  the  law,  or  was  tenable  for  one  instant,  or  had 
ever  been  suggested  by  any  one,  I  assume  that  Her 
Majesty's  counsel  in  then-  industry  and  resourcefulness  to 
contest  the  claims  of  the  United  States  for  prospective 
catch,  would  have  made  the  point  that  this  was  not  a 


\\  I  I 


H 


996 


(Mr.  Dickinson's  Closing  Argument.) 

dire(!t  injury  by  Great  Britain,  and  that,  therefore,  slio 
could  not  be  liahlo  for  prospective  catch.  Tlioy  woulil 
have  made  that  point  tiiere,  and  there  was  nothinj^  in  tli.' 
whole  domain  of  jurisprudence — there  was  no  priiiciplo 
known  to  the  law,  and  no  analogy  known  to  the  law 
bearing  in  their  favor  that  was  not  urged.  I  tliinU  K 
must  be  presumed  tliat  Her  Majesty's  learned  counsel  lie 

ID  fore  the  (leneva  Tribunal  wouUl  have  pi-esented  tiiat  pdsi- 
tion  on  principle,  by  analogy,  or  by  authority  in  dcfcii^o 
on  this  point  if  it  was  of  any  value,  for  that  was  a  rase  in 
which  it  came  up— that  is  to  say,  the  distinction,  if  tin  ro 
was  a  distinction,  between  the  direct  act  of  the  tort  feasor 
and  the  consequences  of  negligence— both  torts— was 
squarely,  unmistakably,  iminessively,  there.  But  tiu' 
point  was  not  made  by  Her  Majesty's  counsel  at  (ieiicva 
from  beginning  to  end,  and  presumably,  I  say,  if  tiierc  is 
anything  in  the  learning  of  the  civilized  world  on  wlijch 

20 they  could  stand,  as  my  learned  friends  here  stand,  mak- 
ing that  distinction -that  would  absolve  Great  Britain 
from  liability  for  prospective  catch — they  would  have 
stood  upon  it — else  they  were  ignorant  of  the  principle,  if 
it  be  a  principle,  and  ignorant  of  any  decision  or  analogy 
if  there  were  one  that  could  be  presented  in  the  case,  for 
they  did  not  niake  the  point  or  suggest  or  hint  at  it.  It  is 
made  in  this  tribunal  before  your  Honors  for  the  first 
time  in  the  history  of  jurisprudence.  No  one  has  ever 
made  the  distinction  in  damages  in  an  action  of  tort  be- 

3otween  a  tort  by  negligence  and  a  tort  by  activity.  The 
only  element  of  difference  is  when  you  reach  aggravated 
or  punitive  damages  when  an  evil  motive,  or  its  e(|uiva- 
lent,  gross  negligence,  is  concerned.  Suffice  it  is  to  say 
that  if  the  distinction  here  made,  that  prospective  profits 
were  not  allowed  in  the  Geneva  Tribunal  because  the  act  of 
Great  Britain  was  an  act  of  negligence  instead  of  an  active 
act.  Her  Majesty's  learned  counsel  who  presented  the  case 
before  that  tribunal  did  not  know  of  such  a  point,  as  tiioy 
did  not  make  it.     On  the  contrary,  they  stood  upon  the 

40  principle  in  active  capture  and  in  cases  of  negligence— 
precisely  upon  the  principle  that  we  stand  upon  hcie. 
And  we  cite  the  very  cases,  and  the  leading  cases  tliey 
rested  upon,  on  which  we  stand  here,  that  the  reason  that 
prospective  profits  cannot  be  allowed  is  that  the  law- 
will  not  tolerate  the  consideration  of  jirospective  profits 
because  they  are  speculative  and  uncertain  and  legally  in- 
estimable, in  the  nature  of  things.  And  the  learned 
Tribunal,  of  course,  not  going  outside  to  find  some  other 
excuse  than  the  arguments  and  authorities  cited  l)y  lior 

50  Majesty's  counsel  in  the  exhaustive  presentation  of  the 
case,  ruled,  as  a  matter  of  international  law,  that  under 
the  authorities  of  both  governments,  such  damages  could 
not  be  allowed— not  because  the  action  of  Great  Britain 
was  indirect  in  the  case,  but  because  the  familiar  doctrine 
must  be  held  to  be  universal— that  such  profits  depend  in 
their  nature  on  future  and  uncertain  contingencies. 

In  the  long  dissenting  opinion  of  the  learned  and  great 
Chief  Justice,  and  Her  Majesty's  arbitrator,  as  well  as  in 
the  most  exhaustive  argument  of  Her  Majesty's  counsel 

60 before  that  Tribunal,  contesting  the  claim  for  prospective 
catch  at  every  stage,  it  appears  that  neither  court  or  coun- 
sel ever  discovered  the  rule  for  which  contention  is  made 
here — which,  if  it  be  a  rule,  would  have  been  conclusive 
against  the  United  States  at  Geneva.  If  the  point 
bad    been    made    there    that    there  was  a  distinction 


!t{>7 


i. 


(Ml'.  Dickinson's  CI<"^iiiK  Arji;uiiicnt. ) 

between  injuries  direct  and  injuries  resultint?  fioni 
negligence,  it  seems  to  me  that  it  should  still  he 
held  conclusive  here  that  the  award  did  specify  the  j^roiind 
of  tlie  ruliiifj;  against  it  and  ])ut  it  not  on  tii;it,  hut  on  the 
same  old  ground,  that  such  damages  could  not  he  allowed, 
because  no  rule  of  law  permitted  them,  on  the  ground  that 
they  were  contingent  and  spt.'culative. 

,0  There  is  no  s\ich  distinction  made  then  at  Geneva,  any 
more  than  there  had  been  in  other  cdurts.  between  a  case 
of   negligent  collision  and  a  case  of  capture. 

1  have  cited  the  authorities  used  at  (Jeneva,  and  the 
position  ft  Gen(!va,  and  I  have  cited  all  their  authorities 
under  the  head  of  prospective  catch,  which  will  be  found 
on  reference  to  my  argument.  Other  international  trib- 
unals have  made  the  s-ame  ruling,  and  there  are  none  the 
other  way.  1  have  referred  to  them  all,  taking  the 
"  Canada. "  of  conr.se,  with  others,  because  it  rules  against 

20  prospective  catch,  the  ruling  being  placed  upon  the  old 
ground,  that  it  was  too  contingent  -the  vessel  might  have 
been  lost. 

1  have  also  taken  up  the  case  of  (Jreat  Britain  against 
tiermany,  where  the  Hritish  Committee  and  Kegistiar  re- 
viewed the  authorities  reported  by  Sir  jjouis  Mallet  and 
Lord  li,ntield,  and  rested  the  decisien  in  that  case  upon  i^r. 
Lusbinglon's  leading  case,  the  "  Cohnnbus"'— -that  the  in- 
jured t'amiot  bi'  entitled  to  piospective  profits  for  the 
same   reason.     The    same    ride    was  laid  down     by    the 

jot'onnnissioners  as  to  conmn'ssions,  which  might  have  been 
realized  in  the  "Hiawatha"  case -Commission  of  1871, 
cited  in  my  Itrief.  i>age  los;  and  the  authorities  in  the 
United  States  I  cited  at  page  lo'.t  of  my  l)rief. 

To  the^e  we  add  the  case  in  Kit!  United  States  lleiH.rts, 
ji.  404,  a  case  of  total  loss  -  the  "  Umbria  "  It  was  the 
steamship"  Umbria'"of  the  Canard  line— the  other  ship 
was  (  ut  completely  in  two,  and  therefore  it  was  a  case 
of  tot  li  loss.     1  (juote: 

"En or  is  niso  allo^^cil  in  tlio  refusal  of  the  Court  of  A]>i)cals  to 

•  allow  as  au  item  of  damage  the  probable  profits  of  a  oliarter  party, 
'  made  October  '27,  IHHH,  about  a  fortuifjlit  before  the  eollision  under 
'  wliieh  the  "  Iberia."  deseril)ed  as  then  beiuK  on  a  vo_vaj?e  from  Aden 

•  to  New  York,  was  to  proeeed  to  Cadiz,  in  Spain,  with  a  car^'o  of  to- 
'  liai'co.  Tliere  was  clearly  no  error  in  rejeetinn  this  item.  Tliero  is 
■  nothing  in  the  peculiar  facts  of  the  case  to  take  it  out  of  the  general 
'  rule  that,  in  cases  of  total  loss  liv  collision,  damages  are  limited  to 

the  value  of  the  vessel,  with  interest  tlierecm,  and  the  net  freight 
liending  at  the  time  of  the  collision.  The  proliable  net  profits  of  a 
'  cliarter  may  be  considered  incases  of  dehiy,  occasioned  by  a  |>artial 
'  loss,  where  the  (inestiou  is  as  to  the  value  of  the  use  of  the  vessel, 
'  jvending  her  rei>airs.  In  such  cases  the  net  profits  of  a  charter, 
'  whii'h  she  would  have  perfiu'uied  except  for  the  delay,  may  bo 
'  treated  as  a  liasis  for  estimating  the  value  of  her  use." 

Cases  of  partial  loss  are  here  cited,  one  of  which  is  cited 
by  my  learned  friends  here,  Williamson  against  Barrett, 
li;  Howard,  U'l,  and  the  Couit  goes  on:  •'But  in  cases  of 
Idtiil  loss  the  claims  are  always  rejected."'  The  cases  of 
ihe  "Anuable  .Nancy"  and  the  "Cohnnbus"  are  re- 
Icried  to  as  the  K'ading  American  and  English  cases. 

After  a  review  of  the  authorities,  citing  ami  distiiigui.sh- 
iiig  the  "Star  of  India  "  case,  which  my  fiKMids  have  also 
6(i(ited,  as  a  case  of  partial  loss,  and  stating  that,  in  addi- 
tion to  demurrage  the  vessel  wa-<  also  allowed  for  chart er- 
party  — this  beiiigaca.se  of  contract— the  judgment  pro- 
ceeds: 

••This  does  not  ditt'er  materially  from  the  rule  in  this  country.  So, 
'■  loo,  in  the  case  of  the  'Cousett,'  5  P.  I).,  '2'i\),  the  vessel  was  injured 


40 


50 


Olts 


I,' 

i'. 

•1 


|(  ! 


i        i 


(Mr.  Dickinson's  Closing  Argument.) 

"  by  f(>lli»iou  aud  fomiu'Ui'il  to  i>ut  into  port  to  ri>iiair.  Tlii!  rc|mir, 
"  oc'cnpieil  so  long  a  time  that  it  wan  not  poHsible  for  her  to  tullil 
"  a  chartt-r  into  which  she  hail  entercil,  and  so  was  allowed  damaj;cs 
"  for  its  loss." 

In  the  cases  of  total  loss  tlie  pi-obable  proHts  arc  always 
rejected- is  the  decision  of  the  Court,  and  they  were  ic 
jecteii  in  that  case.  Is  liiere  any  distinction,  such  as  [< 
j^niade  hy  my  learneii  friends,  in  the  standard  aiitlioriiir- 
m  England,  or  has  it  never  before  been  discovered;  Tlir 
genera!  iheorv  as  stated  by  Mdrsdcii  on  Colli.sitiu.  a 
standard  authority  in  Kngland  now.  Chapter  a,  treatint; 
on  the  sul)ject  of  damages— and  it  is  universal —is  as  bil 
lows: 

"Tho  wronf^docr  in  u  collision  is  liable  for  all  the  reasonable  ooiisc- 
"  iiuoucos  of  his  uo^jliKcuce.  ■  such  damages  as  How  directly  and  in 
"  tut'  usual  course  of  thin;.;s  from  his  wr  Jugful  act.'  " 

Now,  does  it  make  any  difference  whether  the  tort  wn^ 
20 oiu' of  negligence  or  of  activity?     This  is  the   result,  even 
wiiere  it  is  willful.     At  page  2'.t  Marsden  says: 

'•  Where,  as  sonietinieH  iuii)|)eus.  one  ship  is  wilfully  aud  nialicioush 
"  driven  against  another,  the  wrongdoer  would  probably  be  held  liulilc 
"  f(U'  tlie  entire  loss,  notwithstanding  negligence  in  the  other  sliip  in 
'■  not  avoiding  the  collision." 

Tills  is  a  disti  *ion  from  the  ordinary  case  of  iie<>li- 
gen(e  oidy  in  this — that  in  a  case  of  negligence  in  an  or 
dinary  collision,  if  the  other  ship  suffers  from  her  own 
negligence  also,  the   loss  shall  be  divided  between  them. 

3°  Now.  the  only  distinction  that  Marsden  makes  in  cases  nl 
willful  collision  is,  I  hat  if  the  other  ship  is  guilty  of  ne;^li 
gence,  and  thus  contributes  to  the  injury,  the  ordinary 
rule  for  divisions  of  loss  shall  not  reduce  the  nmount  of 
damages,  and  the  ship  that  did  it  willfidly  and  maiiciouslv 
shall  lie  responsible  for  the  entire  loss,  which  even  in  tli;it 
case  is  o"'y  the  value  of  the  ship. 

The  Conmiissioner  on  the  pint  of  the  United  Stales: 
The  Snpreme  Court  hav(>  gon<>  further,  and  they  have  licM 
that  where  the   .second  ship   was  guilty  of    mei'ely  supcr- 

4'^vening  negligence,  that  is,  where  she  saw  the  iiegligcnrc 
of  the  other  ship  and  did  not  avoid  it,  she  would  not  lit' 
respoiisihlt;  for  any  damages. 

Mr.  Dickinson: — I  am  taking  the  extreme  case  of  will 
fully  running  into  another  ship. 

Now.  Mar.sden  may  be  searched,  and  the  writings  dj 
publicists  may  h<>  searched,  and  the  decisions  between 
nations,  and  you  will  find  no  lule  laid  down  or  any  c.\ 
ception  taken  and  made  to  the  docrine  here  contended  loi 
by  the  United  States.     The  rule  is  as  to  the  mea-^urenii  lit 

5°ot  damages,  and  it  turns  upon  that — you  cannot  give  any 
thing  else  for  the  vessel  itself  or  for  the  |)ropeity  itself 
than  the  value  of  it.  I  add  this,  that  in  cases  wliciv 
wantonness  is  shown  and  a  malicious  act  is  shown  ;iii 
evil  motive — something  may  be  added  in  the  way  nf 
punishment,  variously  called  aggravated,  punitory  en 
vindii  live  damages,  but  never  are  any  damages  given  lui 
the  thing  itself  except  its  value,  and  never  under  aii\ 
circumstances  have  prospective  profits  been  allowed  as  to 
personal  property,  nor  is  any  authoritative  couit  fouml, 
even  in  dictum,  that  it  can  he  allowed. 

In  the  case  of  the  '•  Lively,"  Judge  Story,  1st  Gailisoii. 
after  reviewing  the  authorities,  even  at  that  time,  says- 
independent,  however,  of  all  authorities: 

"I  am  satistied  upon  principle  that  an  allowance  of  damages  u|"iii 
"  tho  basis  of  a  calculation  of    profits  is  inadtuissible.     The  nilo 


~t 


}»!'!> 


'Ill 


(Mr.  Dickiiibon's  Closing  Aiguinent.) 

"  would  be  in  tbo  LighcHt  dej^n'e  unfnvorablt'  to  the  iuterests  of  the 
"  community;  the  subject  would  bo  involved  in  uttor  uncertainty." 

Thoii  ho  goes  into  the  contingencies,  very  many  more 
contingencies  appearing  in  tiie  case  at  har  tlian  in  that 
case,  or  in  any  case  ever  leporled. 

I  liave  given  your  Honors  decisions  of  the  Supreme 
Court  of  the  United  States,  and  now  we  iiave  the  judg- 
'°ment  in  the  "  City  of  Rome"  case,  wiiicli  rests  upon  tiie 
doctrine  iilentical  with  tliat  in  the  "Columhus"  case,  the 
doctrine  of  the  English  courts  and  the  last  authoritative 
statement  of  it;  Lord  Hannen  said,  in  giving  judgment: 

"  When  I  first  a|)i>lied  my  mind  to  this  case  I  was  favorably  in- 
"  cliued  toward  au  appeal  on  the  ({round  that  this  appeared  to  ^)e  bo 
"  near  the  cud  of  the  venture  that  it  occurred  to  me  that  this  amount 
"  of  i)ro»pective  gain  niijfht  have  been  taken  into  account  by  the 
"  Registrar.  Hut  the  result  of  further  consideration  and  hearing  the 
"  arguments  lead  me  to  the  conclusion  that  no  distinction  can  be 
2Q  "  drawn  between  this  ciiso  and   the   case  of  a  longer  venture,  such 


"  as  a  senliiii)  of 
"  collision    " 


wlniliiiij  ri)i/(iyr,  which    might  be  put  au  end  to  by 


Tl)e  matter  of  seahng  voyages  was  tiien  familiar  to  tiie 
courts.  This  decision  was  rendered  in  1S87  and  the  claims 
of  these  sealers  here  had  heen  made  according  to  my 
friends,  and  they  liad  heen  presented  to  Her  Majesty's 
Government. 

The  Commissioner  on  the  part  of  the  United  States: — 
Sir  James  Hannen  was  counsel  for  the  British  Govern- 
30n;ent  in  "The  Washington  "  case. 

Mr.  Dickinson:— Yes,  inider  the  Mi.xed  Convention  of 
1H.')3,  and  lie  was  also  aihitrator  at  Paris  for  Her  Majesty's 
Goveinment  in  the  B'ur  Seal  Arbitration  in  1M1»3.  Let  ns 
bear  that  in  mind  for  a  little  while;  I  continue  tiie  read- 
ing fiom  his  judgment  of  1887: 

"  There  is  a  difficulty,  jf  course,  in  arriving  at  a  conclusion  as  to 
"  what  will  adequately  compensate  the  owner  of  a  vessel  which  has 
"  been  run  down  for  the  loss  which  he  has  sustained.  But  as  has 
"  been  pointed  out  by  Ur.  Lusliington,  some  definite  rules  must  be 
40"  ailoi)ted  by  courts  as  their  guide,  and  he  had  laid  down  with  his 
"  usual  clearness  and  force,  the  rule  which  guided  him,  and  which, 
"  so  far  as  I  can  see,  has  contiuued  to  guide  his  successors  in  their 
"  judgments." 

Of  course  he  refers  to  the  "Columbus"  case,  the  lead- 
ing case  on  the  subject  in  Great  Britain. 

"  And  I  cannot  adopt  the  suggesticm  of  Dr.  Stubbs,  that  two  or 
"  three  deliberate  decisions  of  Dr.  Lushiugtou's  have  become  ob- 
"  solete,  because  some  cases  which  are  apparently  inconsistent  have 
"  been  decided  in  the  Registry,  and  it  is  remarkable,  that  when 
50  "  the  strongest  of  those  cases  comes  to  be  sifted  "  (no  doubt  therefer- 
"  ence  here  made  is  to  the  '  Hisxitiita '  cited  by  my  learned  friends),  "  it 
"  turns  out  to  be  no  authority  at  all,  being  a  case  uot  of  tctal  loss,  but 
"  of  partial  loss.  1  consider  the  matter  as  concluded  by  authority 
"  that  where  there  is  a  total  loss  the  (juestion  of  the  value  of  the 
"  things  lost  at  that  time  is  what  is  to  be  taken  into  account,  without 
"  I'eference  to  the  (luestion  what  a  vessel  would  have  earned  if  she  had 
"  gone  on  a  longer  or  a  shorter  time." 

The  appeal  was  dismissed,  with  costs. 
Now,  Sir  Charles  Hibbert  Tupper  said  in  presenting  this 
judgment  to  your  Honors  (of  which  we  had  a  mumoran- 
'^"'diini,  not  as  full  as  this  one,  when  we  came  here): 

"  I  was  about  to  explain  what  we  have  in  connection  with  that  case. 
"  We  have  obtained  from  Mr.  Marsdeu  the  notes — and  in  the  notes  the 
"  judgment  of  Lonl  Hannen  seem*!  to  be  very  fully  and  literally  given, 
' '  although  the  case  has  not  V)eeu  veijorted.  1  take  it,  although  I  am  not 
"  speaking  with  any  authority,  that  the  reason  that  the  decision  is  not 


1:11 


U:;i 


'  '  wBS 


•^% 


lO 


lOOO 
(Mr.  Dickinson's  Closing  Argunient.) 

'•  reported  i«  tlmt  it  wonlil  iiitt  linve  iin.v  ver^v  urciit  weight  or  iutcri-^t 
"  iiotwitliHtiindiiif;  tlmt  it  i'iiiiu>  from  no  diHtiiiKuiHht'il  ii  jiulni'  as  I,c,i-,i 
"  tliiuiu'ii  ;  bi'i'ftUSL'  it  was  anterior  to  tlie  eiiHe  of  the  '  ArKiiilino  ' 
"  The  '  Arj?eiitiiio'  case  was  th'eided  liy  tlie  HoUHe  of  LoviIn,  and  I.,  r.i 
"  Haniieu  could  not  have  decided  as  he  did  in  the  ease  of  the  'Cilv  i.| 
••  Home'  with  the  '  Arneutino  '  ease  liefore  him.  The  'Citv  of  ]{,  i,,,,- 
"  case  is  not  reported,  liiit  I  shall  lay  tho  notes  liefore  vonr  lloiinix.  ' 

Mr.  I'ftci.s:— I  may  say  that  sinct.-  Sir  Charles  niaile  tlio-i- 
'rcniarivs.  I  have  ha<i  a  letter  from  Mr.  Kiiss«'li  who  edin 
municateii  witii  the  joint  editor  of  that  hcKik,  '•  Marsdcn 
ill!  C'olhsion,""  and  wjio  states  that  he  has  no  donlif  ih.u 
that  is  the  reason  that  it  was  not  reported  and  refeirni  i,, 
afteiwards.  It  was  considi'ied  that  it  was  overruled  \,\ 
the  "  Argentine) '"  ease. 

Mr.  Dickinson: — Who  wrote  that  it  was  overruled; 

Mr.  I'eters:-!  say  that  we  wrote,  asking'  why  this  (,,><> 
had  not  heen  fully  reported.  We  telegraphed  to  .Mr. 
2oHnssell.  who  tried  to  cdinninnicate  witli  Marsden.  WC 
had  formeily  written  to  Marsden,  and  wc  got  thai  tcle- 
grain  and  sniisecjuently  received  a  sei-ond  eomnuiniciitinn. 
and  the  infoimation  we  then  got  was  that  Mr.  Rnsscjl  IkhI 
comniunieated  with  the  joint  ediroi' of  Mai.sdeu  (>u  Cul 
lisiou"^,  who  slated  that  so  far  as  ho  knew,  that  the  ie;isiiii 
tlie  ease  iiad  not  heen  reported  was,  that  it  must  have  la'tii 
considered  as  overruled  hy  the  "  Aigenlino"  case. 

Mr.  Dickin.^on:— The  "Argentino"'  was  ruled  distiiKtiy 
hy  the  Houi-e  of  Lords.  Itecause  of  a  provision  in  the  coii- 
30tia  t,  and  it  was  put  expressly  on  that  ground 

1  also  have  a  coinmuniiation  as  to  why  the  "Cilv  of 
Koine"  was  not  regnlaily  leported.  it  was  delivered  ni 
ISM  by  the  late  Loid  Hannen,  hut  I  will  not  state,  to  yo 
upiMi  record,  the  contents  of  an  informal  conmuniii  atiou 
upon  such  a  subject.  1  merely  submit  legal  argument 
that  the  ••  City  of  Kome  "  case  is  in  accord  with  ail  the 
authoiities  of  international  courts  and  of  the  courts  of 
tireat  Britain  upon  voyages  at  sea  and  collisions  at  sea 
and  tishing  in  the  sea  and  in  accord  with  the  courts  of  tlie 
40L'iiite(l  States,  cited  with  approval  in  the  courts  of  (iieat 
Britain,  and  that  there  is  not  a  single  decision  in  conflict 
with  the  conclusion  of  Lord  Hannen  in  the  courts  of  either 
i-ountry,  in  the  writings  of  publicists,  or  in  the  dicta  of 
Judges. 

The  judgment  in  the  "  Argentino  "  case,  in  the  language 
of  Lor(i  Hersciiell.  is  s()uarely  based  upon  this  conditKui: 

"  It  does  not  U]ijiear  to  nie  to  lie  out  of  the  ordinary  course  of  tliiiifis 
50  "  that  a  steamship,  whilst  prosecutiiiK  her  vovatje,  s/ionlil  Imre  sunnil 
"  riiililiii/mmt  for  'iiiolliiT  iiilrfiiliire.  \ui\  i/' ill  l/ie  liiilf  iif  n  nJlisidi,  ll,. 
•'  (/inii'ii/'il  r: sail  Ihii/  III, liiiiifi/  .-iinli  nn  I'liiiui/i'iiieiil  tor  an  onlinarv  iiiiiri- 
"  time  adventure,  the  loss  of  the  fair  and  ordinary  earniuKs  of  such  :( 
"  vessel  on  such  an  adventure  appear  to  nie  to  lie  the  direct  and  iia- 
"  tural  consc(|Uince  of  the  collision." 

*««  »*«»»» 

■'  Where  no  claim  is  made  in  respect  of  loss  arising  from  the  owner 

■'  having  been  deprived  of  the  earnings  <if  a  vovafje  which  was  in  cun- 

"  temptation,   ami  the  euuaKement    for   which    had    liocn   secured,   it 

"  woul.i  lie  riKht,  ami  is  no  doubt  the  usual  course,  to  award  daniiips 

uiuler  the  name  of  demnrranein  respect  of  the  lossof  earninns  wliicli 

it  must  reastuiably  have  been  anticipated    would   ensue   during'  tlic 

time  <if  detention.     Hut  where  such  a  claim  is  nuide  as  in  the  present 

cas(>.  the  ow  uer  cannot,  I  think,  be  alhiwed  in  addition,  as  a  separate 

item,  demurrage  in  respe<'t  of  the  time  the  vessel  was  under  repiiir. 

If  he  obtains  as  llama^?es  the  loss  which  he  has   sustained  owiiif,' la 

the  loss  of  the  employment  he  Inul  secured  he  is  put  in  the  same 

position  as  if  there  had  been  no  detention. 


60.. 


1001 


i! 


(Mr.  Dickinson's  Closing  ArKm'i'''it) 

"  There  would  of  conrsc  Imvo  to  be  takou  into  ai'i-ouiit,  liowever, 
"  that  if  till-  Hhiiiownt-r  loHt  the  I'ontfiiipliitcd  vovujjc,  he  Imd  tlio  use 
"  of  the  vtwHol  as  kooii  as  the  rejmirs  were  eoiiiph'ted  for  auv  other 
"  i»iir|)ONe,  and  wiint  lie  earned,  or  rather  what  he  eoiild  have  earned 
"  ui)on  anv  other  adventure  during;  the  time  he  would  otherwise  have 
"  iM'en  euf;aged  upon  the  eonteinplated  voyage,  must  lie  Net  against 
"  the  sum  allowed  hiui  iu  respect  of  the  loss  of  that  voyage." 

Mr.  I'eteis:— We  liavo  written  to  Mr.  Kiissell  with  ref- 
'  '  ference  to  the  "  Argenlino"  case,  and  we  have  received  a 
reply  statinj;  that  he  connnnnicated  with  the  pnhlishers  of 
Marsden's,  and  they  understand  that  the  reason  tliat  the 
opinion  of  Lord  Haiuian  was  not  puhlished  was  hecause 
it  was  overruled  l)y  the  "  Aigentiiio"  case. 

Mr.  Dickini^on:— Let  us  see.  Both  of  these  cases  had 
heen  long  decided  when  the  learned  autiiority,  Mr. 
Marsden,  issued  this  puhlication  with  his  own  preface  on 
the  i:Uh  of  Fehruary,  IS'.tl.  This  is  some  years  after  tlie 
decision,  which  was  in  lSs7.  atter  the  "  Argent ino"  case 
-iiadhcen  decided,  and  we  find  him  in  his  text  s(|uarely 
distinguishing  tlie  "  Argentino"  case  thus  (p.  I'io): 

"  The  'Argentino,'  at  the  date  of  the  collision,  was  under  an  eugage- 
"  nient  to  fake  in  a  i-argo  at  Antwerj)  for  liatouni,  taking  the  place  of 
"  one  of  a  line  of  ships  advertiseil  to  sail  between  Antwerj)  and  llatouui. 
"  It  was  held  liy  the  House  of  Lords,  atlinning  the  decision  of  IJoweu 
'•  and  Liudley.  L.  J  J.  (diss.  Lord  Esher,  M.  K.),  that  there  should  be 
"  allowed  as  damages  by  the  collision  '  the  ordinary  and  fair  earnings 
••  of  such  a  ship  as  'The  Argentino,'  having  regard  to  the  fact  that 
•  she  was  put  up  as  one  of  W.  and  L. 's  line  of  steamers  trading  to  the 
"  lilack  Sea,  and  advertised  as  such.' 
.^' '  •' A  tishiug  smack  recovered,  licsides  the  value  of  her  nets  and 
••  gear  which  she  was  obliged  to  cut  adrift,  the  aniouut  she  might 
"  reasonably  have  exjiccted  to  earn  diiriiig  the  rest  of  the  season.  Jiiit 
"  it  was  held  by  Hir.).  Hannen  in  a  recent  ease  that,  where  the  boat 
"  is  totally  lost  (m  the  case  before  the  Court  she  was  a  Frelicli  boc' 
'•  sunk  by  collision  on  the  banks  of  Newt'ouiidland),  the  prospect'. 
■'  catch  of  fish  could  not  be  recovered,  and  th(>  djimagos  were  contined 
••  to  the  value  of  the  boat  and  gear." — Jlarsden,  iid  Kil..  jip.  120,  I'il. 

Thus  the  learned  autiior  i»y  name  tlistinguished  the 
cases  ill  IMU,  without  a  woid  ahout  one  overriding  the 
<ithei  four  years  after.  The  claims  ot  (ireat  Britain 
iigainst  the  L'nited  States,  including  claims  for  jirospi  ctive 
latch,  were  pending  ahout  this  time,  by  I  he  way. 

Afterwards,  in  IMU,  when  Mr.  Marsden  issued  this 
hook,  he  had  not  found  out  that  tiie  "Argentino"  case 
overrided  the  "City  of  Kome"  case,  and  we  won't  go  into 
any  informal  coirespondence  in  view  of  his  statement  ni 
his  own  text.  There  it  is,  and  moreover,  with  liis  own 
annotations  in  his  own  notes  added.  It  is  curious  that 
the  judgment  of  Lord  Ilannen,  the  suhsecpieiit  aibitiator 
.-,at  I'aris,  when  Great  Britain  claimed  prospective  catch, 
''^  svas  only  repotted  in  the  (hizvtte  as  it  was  and  not  in  any 
icport  to  which  access  is  usually  had  in  the  libraiies. 


Warnings. 

Now  we  take  up  the  cases  of  Warnings,  and  admit 
ilamages  in  the  nature  of  demurrage,  keeping  in  con- 
>ideration  the  distinction,  however,  l)etween  the  ride  in 
partial  loss  and  the  rule  in  total  loss.  We  treat  that  in 
1  iir  brief  and  cite  all  the  case.«,  including  Dr.  Lushington, 
C'OlM.  Twiss,  Loid  Stoweil  and  others. 

In  the  case  of  the  "  Clyde''  Dr.  Lushington  quotes  Dr, 
I  wiss  as  relerring  to  the  case  of  the  "  (Jazelle,"  and  say  ■ 
iiig  that  a  party  was  in  a  better  situation  who  receives 
(Illy  partial  damage,  than  one  whose  property  is  totally 
(Itstroyed. 


10(12 


■sir 


I;       I'vW  >,4 


i.  1    .,  , 


■  '.  M 


'  1!^ 


(Mr.  Dickinson's  Closiiiy  Arniinicnt.) 

Tli»'  sanu'  fiiticisin  ii.is  lit'cn  niadt'  in  cascH  of  injury  t.. 
|ici sons  on  a  liiilwiiy,  tli.it  tlioy  ^iot  iarp'r  diinuij^c^  i',,: 
(K'lsonal  injuries  tiian  arc  awardt'd  for  tho  actual  dciih 
and  dcslinction  of  tlic  |ii'rson.  Dr.  Lushin^ton.  in  tli. 
cast' of  tilt!  "Clydtf"  says.  '•Tliisis  undonhtftlly  true, 
hut  it  docs  not  afft'ct  llio  i)rinci|)le."  Hnt  never  in  mn 
case  lias  the  doctrine  t)f  prospective  catch  as  ct)nt<!ntlcd  fiii 

10 here  hcen  ailniitted  as  a  measure  of  damages  even  in  ca^i  - 
of  partial  loss. 

'I'lie  case  of  lladley  r.  Haxendale,  !•  Exchequer  KN'pDit^. 
341.  was  a  case  of  s|>eci;dcontiact.  The  "Nt)ttinnllill '"  civ,. 
was  a  case  t)f  delay  hy  collision,  which  resulleil  in  the  cin 
celation  of  .i  i  harter-party.  the  chaiter  actually  hi  cs.s, . 
and  tiiert)  were  tianiam's  for  delay.  The  case  of  the  "Cl.n 
ence."  ',\  Wni.  Kob..  :is;{.  was  also  a  case  of  collisiDn  and 
detention.  It  was  attenipted  ti>  prove,  as  in  this  case.  tli( 
loss  hy  evidence  of  the  averago  earnings  of  other  ve.'^.'^els, 

20anil  tiie  Ctinrt  said: 

"TIk"  (lui'stiou  wliifli  I  liavo  to  dotorinino  in  not  tlio  rate  at  wliii  h 
"  siu'li  a  vi'sst'l  as  the  '  C'lurcni't" '  iiiif?lit  lin  liirt'tl  out,  Imt  liow  nnnh 
"till'  coiiijiiiny  liavi'  ai'tually  lost  l>v  her  ilctcutiou  wliiist  uiulcr  rc- 
"  iiair.     *     *     * 

..  «  »  •  j„  ordj,].  t„  (>ntitl<>  a  party  to  lit'  indi'iniiitii'd  for  what  U 
"  tcrnu'tl  iu  this  court  a  ooiisj'(|u«'iitial  loss,  liointt  for  tho  dctoutioii  df 
"  his  vessel,  two  things  are  alisolutcly  nt'cosHary,  actual  loss  autl  rca- 
"  soualih'  jiriiof  of  the  ainonut.     *     *     * 

"The  ohjectiou.  it  a])|iears  to  inc.  lias  licen  founded  ujiou  a  niisup- 
"  iireheheiisitui  of  the  jiriiiciple  upon  which  a  court  proceeds  in  as- 
,g  "  sessiiig  the  amount  of  daniajic.  It  does  uot  follow,  as  a  matlir  ..f 
"  ncecssity,  that  anything;  is  duo  for  the  detention  of  tiie  vessel  wliiUt 
"  under  rejiair.  I'lider  some  circunistances,  nndonlitedly.  such  u 
"  conse(iueiice  will  ftdlow,  as,  for  exiimi)lc,  where  a  fishinj;  vovatic  is 
"  lost  or  wliere  a  vessel  would  have  lieen  lieneficially  i>nijiloye(f.  Tin' 
"  onus  of  jiroviiiK  lior  loss  rests  with  the  plaiutitt',  and  this  iinu-. 
"  has  not  been  disehar(j:ed  nixili  the  jiresent  occasion.  Had  th<' owners 
"  of  the  '  Clarence  '  |)rovcd  that  the  vessel  would  have  earned  fieij.'lit. 
"and  that  such  freight  was  lost  hy  the  collision,  the  cast!  wouhl  haM> 
"  fallen  within  the  principle  to  which  I  have  last  ailvcrted." 

I  liave  citcil  the  .American  anil  English  castas,  inakini; 
40  distinct  ions  in  the  measure  of  damages,  and  your  Honnis 
will  sec  from  the  conclusion  leacht^il,  on  a  full  exainina- 
tit)n  of  the  cases,  that  not  one  allows  prospective  prdiils 
or  i)rospective  cati:h  as  such,  or  permits  any  sucli  rulf, 
and  protits  as  a  measure  of  ilamaj^es  in  cases  of  tort  or 
contract  have  never  been  .dlowed  a.s  such,  savt;  where  at 
the  time  of  the  toit  or  of  the  breach  of  contract  evitlence 
conltl  he  adduced  of  a  certain  ciiaracter  in  the  nature  nl  a 
definite  and  certain  amount  to  he  realized  if  the  breacli  or 
delay  from  tort  had  not  ticcurred.     We  submit,  with  (nn- 

5ofidence,  of  all  the  cases  cited  by  my  learned  friends  upon 
the  dtK'trine  t)f  prospective  catch,  that  there  is  not  out!  in 
point  on  their  contention  here. 

The  case  in  1  Peake,  27i>,  was  not  a  case  wiierc  any 
profits  were  allowed.  It  was  referred  to  arbitration,  and 
it  does  nt)t  appear  what  was  allowed,  and  it  was  a  case  of 
tort,  and  the  tpiestion  before  the  court  was  whetiiec  tln' 
declaration  would  sustain  the  action.  It  chargtxl  vaiioiis 
things  in  the  declaration,  and  it  came  up  on  denun  rer.  .\ 
charge  of  conspiracy  with  an  overt  act  is  analogous. 

60  The  "Risohito,"H  P.  D.,  110,  was  never  cited  by  any 
Court  authority.  It  is  not  an  appeal  case,  and,  of  course, 
is  not  authority  against  the  "  Columbus."  It  was  a  suit 
for  damages  for  delay  or  detention,  and  was  not  a  case  of 
total  loss. 
The  "Gleaner,"  3  Asp.  Mar.  Cas.,  N.  S.,  582,  is  not  an 


KIOH 


(Mr.  Dickinson's  Closit)}^  Aif^utncnt.) 

authoiity.  TIh'  '  Arp-ntino"  we  have  consiilored.  Tlie 
cast)  of  IMiillips  r.  liOiulon  &  Noithwcstcrn  Railway 
Company  was  tlio  caso  of  the  Hurgt-on,  wiiicli  I  have  al- 
ready considered. 

And.  now,  tny  learned  friends  still  insist  that  the  For- 
tune Kay  eases  are  aiitiiorily  for  them  on  prospective 
catch,  and  I  have  somethinti  more  to  say  aliunt  the  matter. 

iqIh  the  Hiitish  and  Foreif,'n  Stat<'  Papers,  isso  si,  Vol.  '-2, 
there  is  a  much  fidler  statement  than  my  friend's  citation 
from  the  Hln<!  Hook  of  the  record  in  this  case.  It  is  Hrit- 
iah  authority,  and  1  nst>  it  instead  of  the  American  report. 
At  pafie  12S-2  it  appears  that  22  vessels  were  enf^ayed,  and 
that  thepaities  were  seining  when  the  tort  was  connnit  ted; 
that  they  were  ((impelled  l>y  a  lai|;e  and  violent  nioh  of 
inhahitants  of  Newfomidland  to  take  up  their  seines  and 
discharge  the  fish  already  enclosed:  that  these  seines  were 
heing  used  in  the  interest  of  all  the  -J-J  United  States  ves- 

,Qsels  waiting  for  caigoes  in  the  harhor.  and  that  the  citdi, 
undisturbed,  would  have  heen  suHicient  to  load  all  of  thetn 
with  protitahlc!  cargoes.  At  page  liisn  of  the  same  rejiort 
it  appears  again  that  the  catch  which  the  I'liitiMl  States 
fishing  fleet  had  on  this  occasion  ihIikiI/i/  n'(ili:iil 
was  exceptionally  large,  and  would  have  supplii'd 
profitahle  caigoo*  for  all  of  them.  The  vessels 
were  com|>elled  to  riilurn  home  in  hill.ist.  tltc. 
The  United  States  (Jovernnieut  pf«  sented  ;i 
claim,  including  interest,  of  sl-jit.oiio.     it  apiKMr- that  the 

.Q  British  (ioveriunent,  through  Lord  ( Ir.iuville.  .idvi-ed  its 
minister  at  Washington  that  they  woidd  imt  look  too  nar- 
rowly at  the  intrinsic  value  of  the(laim-.  Imt  h.ive  regard 
more  to  the  geiieial  principle  involved.  It  appears  hy  the 
cori-es|)on(lerr(je,  however',  that  (ircat  Hrilam  invt  sti;;ated. 
and  took  testimony  as  to  the  value  of  the  claims  hefore 
making  an  offer,  for'  they  did  make  an  otfer.  It  does  ap- 
peal', as  stated  hy  my  leairred  fiieiid.  Mi-.  I'eters.  that  the 
\es.sels,  bec.'a use  their  catch  was  gone,  did  set  out  in  their 
dairus  and  schedrrles  that  their  piotits  if  they  had  heen 
allowfd  to  retain  the  tisli,  would  he  as  scheduled,  iir  addi- 
tion to  other  damages.  The  value  of  their  (ish  wer'e 
scheduled  as  stated  hy  hiru  at  varioirs  sums.  One  vessel 
at  ^2,(KtO,  anotlrei'  at  i*:5,.'')()o,  another  at  s;i,(M((i.  another  at 
?i2, !HH>,  and  so  through  the  wdiole  lists  of  ships.  After 
making  various  reductions  that  are  made  irr  the  claim  for 
these  estimates,  we  find  that  the  sum  of  claims  for  esti- 
mated profits  included  in  the  S120,un0  was  s4.").2Sl.  Now 
we  find  by  a  singular  coinciilt'iice  in  tigirres,  that  after 
the  exatuination  which  the  Hrilislr  (ioverriment  made  into 
the  case,  they  made  an  offer,  which  was  accepted  by  the 
I'nited  States,  of  ^7r),000.  There  rrover  was  a  decision  in 
the  case;  it  was  a  comproirrise  for  ST."), nun,  and 
str-ange  to  =■>;',  the  anrount  accepted  was  just  the 
amount  claimed,  less  the  amount  clairued  as  pr-os- 
|)ective  profits,  withiir  .^2>sl  The  whole  amorrnt  claimed 
was  6l^<*."*'".  tbe  amouirt  r-eceived  was  ^7r»,liU(»,  a  differ- 
ence of  $4r),(>00,  within  $i2Sl  of  what  was  dairrred  as  pros- 
ju'ctive  profits.  This,  ruay  it  please  yorrr  Honors,  is  au 
authority  almost  as  conclusive  against  the  United  States  as 
the  "  Costa  liica  "  case!  Not  quite.  Because  the  fishermen, 
under  their  own  employment,  got  an  attorney  to  draw  up 
their  claim,  and  therein  claimed  prospective  profits,  and 
those  claims  so  scheduled  and  presented,  although  never 
paid  and  never  allowed,  are  cited  as  authoi'ity  against  the 
United  States  on  this  law  question  of  prospective  profits! 


40 


6< 


M- 


Eft  ■ 


f  i|6 


II   ;    J 


30 


lon4 

(Ml.  I )ifkin8<nr8  Closing  Ai'Kiununt.) 

VV'i'll,  HO  miicli  for  tlint.  Tlio  matter  wuh  never  in  .mv 
court;  hotli  piiities  investiK-'iteil  on  their  own  iiccoiint :  tin 
United  States  |)reseiite(l  the  Hciiedule  tlit;  men  li.iil  |ii. 
pared,  iind  (ireiit  Mritain,  atter  exainiiiation,  made  ,111 
(id'er  of  )i<7.">,ooo.  We  did  not  net  any  pro-nieclive  |irn|is. 
nnd  liy  II  hin^nlar  eoiiicidence  the  snni  total  (laiinrd  fni 
prospective  catch  was  the  amount  actually  thrown  out  \n 
10  tile  British  (loverinneut.  At  all  events,  thei«t  wjih  no  pas 
in^  upon  the  tpiestion  ol  prospective  protits. 

Now  my  friends  next  say  on  this  (piestion  of  daina,  c-, 
that  they  wish  prospective  prolits  on  the  ni'<»iindof  aj;;ir,i 
vated  damages  in  somu  way.  And  in  their  ori|rinal  Iniet  thiv 
claim  vindictive  damages,  and  cite  authorities.  That  w.i- 
logical  enough;  if  we  can  he  found  or  treated  as  guilty  ni 
wanton  acts  with  evil  motive,  had  faith,  or  had  inalicimi. 
motives.  This  is  where  they  plant  tliem.selves  under  the 
2oliead  of  measure  of  damages  (British  Argument  in  C'liii  I 
p.  lit): 

"'  (l>)  Wlirii  tin'  iliiiiukgf  I'laiincil  Ih  fdundcil  on  a  tiirt,  tlu>  ciiIimM,. 
"  'aiiiiiMiH  of  till'  wronn-iloor  I'oiiHtitutcM  iiii  cleiiu'iit  of  thi'  i|iii'Htiiiij  u|' 
" 'iluiiiiit;t'.  Ill  Hiicli  ciist's  tlu'  injiirt'il  i>iirtv  iit  I'utitk'il  to  (liiiiiii^riH 
"'bc'voud  flu-  iiiiiouut  of  actiinl  Iohh,  iu  tliu  nature  of  uxi'inpian^.r 
"  'i>nuitivo  ilainiiKi'H.'" 

And  this  is  cited  for  the  doctrine  (Iil.,  p.  '21): 

"  'In  fact,'  sov»  Mavnt',  'if  any  other  rule  I'xistt'd,  a  nmn  of  liiij;p 
"  'fortuno  MiiK'la.  l>y  a  ci-rtjiin  outlay,  purchaNc  tlio  i'i(,'lit  of  licinj,' u 
"  '  puMif  tormentor.  He  might  eopy  the  exam|ile<if  theyonn^  KoMiau 
"  '  uoblo  nientionutl  liv  Oililion,  who  used  to  run  along  flic  Finiiiii. 
"  '  Htriking  every  one  lie  met  upon  the  check,  while  a  HJave  follnucii 
"  '  with  a  jiurNc  making  a  legal  tender  of  the  statutory  shilling.'  ' 

Mr.  I'etiis;— That  is  not  the  statement  of  our  positioii, 
hut  a  quotation  from  the  American  lounsel  Ijcforc  tlic 
Geneva  Tr.huiial. 

Mr.  Dickinson:  -  1  lieg  your  pardon,  IsupiKisedyou  (pKiiiil 
tliese  caMS  as  an  authority  to  sustain  yoiu-  jiositioii,  .uiii 
1  am  not  imstakeii.     I  ipK^te  now  from  page  '20: 

"  'rhi>  acts  in  respect  of  which  damages  are  claimed  were  e(|uivaliiit 
"  to  an  unwarranted  invasion  of  the  territory  of  a  friendly  )Ki\vcr  m 
"  time  of  peace.  They  constituted  an  insult  t"  the  Hag  of  (iii  iii 
"  liritain,  re|icated  from  time  to  time,  accom|ianied  hy  the  sei/iiir  :iii,l 
"  contlHcation  of  valualile  proiun'ty,  in  the  face  of  contiuueil  jikp- 
"  tests,  and  even  after  the  acts  and  dcclaratiims  of  the  United  .Stati  s 
"  Ooverument  had  given  uu  implied  assiu'auce  to  the  contrary.  " 
*  »  ♦  »  *  »  #  »'» 

"  The  injuries,  therefore,  which  were  inflicted  were  the  result  nf  n 

"  wrong  unprecedented  in  its  character,  designedly  perpetrated,  v  itli- 

"  out  notice,  ujiou  innocent  persons  carrying  on  a  lawful  occupation, 

50  "executed  iu  a  most  arbitrary  manner,  and  accompanied  with  circuiu- 

"  stances  of  great  hardshii)  and  sutl'ering. 

"The  damages  thus  caused  have  been  i///7/'(/r<//(v/ by  the  fact  tlial 
"  for  many  years  the  United  States  have  dis])uted  their  liability,  sliilt- 
"  ing  their  grouiul  from  time  to  time  from  one  untenable  ])ositi()n  Id 
"another  equally  unsouml,  during  the  whole  of  which  jieriod  tiny 
"  have  failed  to  make  any  reparation  whatever  to  the  ])artieH  who  hi  r'i> 
"  the  direct  sutl'erers  from  their  acts  and  pretensions. 

'■  It  having  now  been  deterniined  beyond  queHtiou,  that  there  was 
"  no  foundation  iu  international  law  for  the  assertion  of  any  of  llic 
"claims  put  I'orwartl  by  the  United  States,  the  ordinary  practice 
"  among  nations  recpiires  that  Die  danrnges  should  be  assessed  u|iiiii  :i 
Co  "  scale  Ko  liberal  as  to  leave  no  room  for  doubt  that  any  form  or  class 
"  of  injury  sustained  has  been  left  without  a  full  ami  just  rei>aratiiiii.  ' 

Then  my  friends  proceed  to  state  tiie  rule  of  damages,  as 
I  have  just  read  lri)m  page  '21  of  their  Argument  in  L'liicl, 
from  tiie  Ameiican  Argument  at  Uenevo,  as  to  whiih  I 


40 


I<MI,% 


(Mr.  DickiiiHon'H  CloHiii^  Atpiiiit'iit.) 

slinll  have  suiiii'tliinj;  to  say  liitt-r,  Itiil  lie  <lui>s  nav,  after 
citing  tlit'sc  cxtracls,  ami  iiiiiiii'diatt'l.v  follnwiii^  tht'^tntiig 
illiistiatiiiii  Inmi  Maviit',  as  n-ad;  "  'I In-  Inn'  ns  nhmi' 
euiniciitlfil  is  Hiiitiiitrlid  hi)  innfniililvil  nnlliiirihi"  (|i.  21). 
So  aftri'iitiii^  tliis  tnnii  tlif  Aiin'ricaii  lirift  in  tht-  (ii'iicvii 
case,  my  loiini<'*l  Iricml  on  tli*'  otlu-r  Hiili>  <li><>s  ailopt  it  in 
all  its  Htatt'DU'iits  aw  a  riilc  of  cxt'inpiaiy  oi'  luiiiitivo  daiii- 
lagos  for  thin  case.  iiuliHliiij;  tli»'  »asi«  of  (Jibiions' yoimn 
UoiiKiii  iiol)lo  who  ran  aloii^  the  Korinu  strikiiiK  t>very  ono 
he  mot  upon  tin- cheek,  llftlieii  refers  to  "Siitlieriuiulon 
Damages,"  as  a  standard  authority,  and  j;<)e8  on  to  say,— 

"  When'  tliiTO  \H  &  fniiiil  or  (itlicr  liiii'iilinnid  in-nnii,  tliiTc  ist  not  the 
"  Himic  Htricliu'HH  to  cxcluiU'  rt'iuoto  luid  niiourtaiii  tluiimguH,  oven 
"  wbtTo  imuitivo  iluiimgcH  iini  uot  iiivolvnl." 

And  then  my  friend  goes  on  and  (|iioteH  Sutherland, 
I'othier,  an<l  the  Code  Nanoleon,  and  tjm  Civil  Law,  and 
I  all  of  these  under  the  head  of  .Measure  of  |)ania>;es,  every- 
one of  whicii  are  cases  of  e.xeniplary  or  punitive  damaj^es 
from  heginniiig  to  end  of  his  chapter  on  Measure  of  Dam 
ages.  Now  we  are  not  disputing  the  proposiliori  that  an 
injury  (-ond)iued  with  evil  motive,  with  an  intent  to  do 
MUsihief,  a  wanton  act,  will  warrant  ixemplary  damages. 
This  same  class  of  autlioiities  are  cited  now  in  the  oral 
aigument  as  healing  on  the  ipnstion  nf  intent,  and  1  pro- 
po>e  to  call  attention  to  my  learned  friend's  citation  from 
which  he  deduces  his  light  to  some  adilitional  damages 
..because  of  intent,  and  .see  if  they  are  not  the  same  class  of 
cases  that  he  cites  in  his  original  hrief. 

The  case  in  Criilihc.  of  Unlsltm  v.  The  Sl<ih'  li/tjhis  \n 
cited  on  the  (piestion  (d'  intent.  It  is  a  case  of  willlnl  col- 
lision hy  one  steamship  wilUully  innning  into  anothei'. 
"  a  slt?and)oat  of  gieat  strength  andspecil,  aimed  with  an 
••  ite  breaker — with  great  force  mid  violence,  hv  means 
•'  whereof  the  '  Limueiis '  was  struck  just  ahaft  the  wliet^l 
"  on  the  starboard  side,  and  received  great  damage."  The 
charge  was    that  Capt.    Allen  itUeiitionally   ran  into  the 

•  Liimu'us"  with  a  view  of  disalding  her,  and  to  prevent,  her 
contimiing  to  navigate  the  river  as  hy  l,iw  she  was  entitled 
to  do.  It  was  designated  hy  the  Coiut  as  a  gross  o-jtrage. 
So  that  we  see  that  the  case  is  nothing  less  than  our  old 
liiend  punitory  damages  for  a  malii  ions  act.  The  Court 
says: 

'•  TttkiuK  tlio  I'uots  of  tliis  cnso  to  bo  at*  tlic  \vitn(>ss<'s  Jmvc  tcstifiod, 
"  aud  1  ciiu  liiivf  no  other  knowli'd^jc  of  tlioni,  1  do  i.ot  hoc  liow  the 
"  inloroni'O  oim  l)o  iivoidod,  that  at  loust  as  to  tlio  atl'aiis  of  tiio  tliir- 
"tioth  of  May  and  tiio  thirteo-itli  of  .fuiio.  tlio  attaclvs  iijioii  tlie 
"  'LinuiouH'  woro  willful  and  nialii'iouH,  and  a  most  nnjustitialilo  use 
"  (111  tho  part  of  Captain  Alien,  of  HUi)orior  power,  to  injure  and  erush 
"a  weaker  rival.  If  sueli  wi're  not  tlie  fair  and  unavoidable  iledue- 
••  tion  from  the  cireumstaueos  of  the  several  trausaetions,  the  express 
'■  doelaratiouH  of  Captain  Allen  would  removn  all  doubt  on  the  sub- 
"  jeet.  He  never  seems  to  have  suunht  to  shelter  himself  under  any 
•■  ai)ology  from  accident,  or  the  necessity  of  his  position." 

»♦•*•*« 

"Again,  it  is  said  in  the  ease  of  collision  of  vessels,  there  can  be 
■'  11(1  recovery  lieyonil  the  actual  damage.     This  may  bo  true  in  cases 

•  (if  venal  negligence,  or  a  want  of  due  skill  and  care  by  which  the 
'■  injury  occurred,  Imt  can  hardly  lie  ap])lied  to  a  case  of  willful  aud 

malicious  assault  upon  the  property  and  rights  of  another,  with  n 
(liroct  view  to  profit  and  gain.      The  injustice  is  manifest,  of  putting 

'•  such  a  case  uptm  the  same  footing  with  one  of  mere  wont  of  care 

•■ami  skill." 

The  Court  says,  following  the  case  of  the  '•  Amiable 
IS.Hicy,"  that  where  there  was  absolute  ignorance  on  the 


40 


;o 


6o 


I  I 


i       I 


1000 

(Mr.  Dickinson's  Closing  Argument.) 

part  of  tlie  owners  of  the  conduct  of  their  captain,  tli  n 
he  will  not  subject  them  to  this  measure  of  (lainaj;v 
But  suppose  the  owners  liad  been  on  the  ship,  lie  wouhl 
have  done  it  by  liis  reasoning,  and  the  damages  would  \\n\r 
bren  of  the  punitory  cliaracter;  because  the  owners,  bdu 
ever,  were  never  cognizant  of  the  act,  and  tlius  not  guiliv 
of  evil   motive,  tlie  Court  of  course  was  not  (Msposed  t,, 

lo inflict  upon  tliem  vindictive  damages,  noi'  to  make  an 
extravagant  estimate  of  them.  The  Court  Hnally  (  n 
ters  a  decree  against  tlie  owners  for  damages  for  th,. 
cost,  it  is  true,  hut  on  the  claim  of  $10,000  made  Im 
all  these  injuries,  awards  the  sum  of  i^LTtO.  j  dmrt 
know  how  my  distinction  could  be  more  clearly  made. 
But  we  see  that  the  doctrine  of  intent  from  the  citalinn. 
and  stated  in  the  oral  argument  of  the  Mritish  counsel,  i-. 
the  same  proposition  and  nothing  else,  that  of  e.xenipLu  \ 
or  punitive  (iamages  stated  in  their  first  printed  argiiiiuiii. 

20'rhe  dec  ision  of  S\v  .lustice  Story  in  the  case  of  \V^illi,i'n 
Mooney  and  others  ({si  Givllison,  page  'M'>).  is  also  cittd  \,\ 
my  learneil  friends,  but  Chief  Justice  Story  siys  in  that 
case  this: 

"  In  oonsidoriufi.  liowovor.  thi>  |)ropi>r  luciisuro  of  diimiiptcs,  I  uiu 
"  not  iiwart'  tliiit  tlii'ro  ever  liiis  Ih'ou  ivllowod  imy  vindii'tivf  cumi- 
"  )>onsati(iii,  unlt'ss  whoro  the  luiscomluct  liiis  lu>ea  riTi/  iji:>s!<  uud  l.ft 
"  desfitutf  of  nil  iii>oloj;;y." 

This  is  cited  as  to  the  new  doctrine  of  intent,  and  I  am 
30  merely  showing  your    Honois  that  it  is  our  old    (lifinl, 
vindictive  ;iMd  punitory  damages  on   a  gros.s  outrage  or 
evil  motive.     .\t  page  lliil  the  leained  Judge  says, 

"  In  oiiscs  wlii're  tlio  vcssol  luid  cnrno  have  Itcou  ciiiilmvtl,  an,!  nfLr- 
"  wai'dH  lost  to  till' owiii'i',  till!  Snprt'iiic  C!onrt  of  the  I'liitcil  Slatis 
"  liavi'  oontincd  tlifnisclvcs  to  tlic  in-iino  valii«  thon'of  and  iiilrnst 
"  tlii'ivoii  to  till!  judgment;  although  in  tlicsi"  casos  they  adjiwlmd, 
"  that  tluTt-  was  no  |irol)alih' caiiso  of  capturi".  And  a  rnh' sul)staiitiallv 
"  thi'  sanit'  was  adopted  in  a  i'asi>  markoil  witli  ^rcat  iniiiio|ii'ii'ty,  .inil 
"  in  a  cast'  of  j,'ross  ilh'}j;ality,  and  in  wliiidi  the  courts  wcio  dispoM  ,1 
"  to  animadvert  witli  considoralilc  severity,  tliey  contined  the  diuii- 
40  •'  ajreH  to  dcninrrane  and  interest  on  the  ]iriucipal  of  the  captiind 
"  j)roi>erty. 

••  In  cases  of  a  similar  character,  I  should  certainly  foci  niysilf 
"  bound  to  adhere  to  these  decisions." 

This  is  ;m  interesting  case  that  is  cit(>d  by  my  learned 
friend  on  the  (|Ui'stion  of  intiMit,  bei'ause  the  .lodge  has 
stated  therein  what  my  learned  friend  contemls  for.  that 
there  may  be  cases  where  vindictive  or  exemplaiy  dam- 
ages may  l)e  allowed,  but  this  was  a  case  of  caiiture  111 
-QSfead  of  a  case  of  negligence,  ;iiid  I  suppose  a  caiPtiiic 
'  without  intent  to  capture  would  be  (|uitf  rare!  Inanoihcr 
part  of  his  opinion  he  states,  and  this  1  especially  com 
mend  to  my  friencl's  consideration: 

"  The  di.nmtje  sustaine<l  liy  the  owner,  as  to  loss  of  pr  "  will  lio 
"  the  same,  wlietlier  the  caiitnre  he  through  mere  mistai.  IvstiiKitc 

"  niiilice;  and  to  attempt  a  discrimination  as  to  the  cases  will  he  el'tou 
"  illusory,  ami  sonu'times  injurious. 

"  Upon  the  whole  1  am  well  satislied  that  the  profitH  upon  tin'  sup- 

"  position  of  a  prosperous  termination  of  the  voyage,  ouKht  not  in  iiny 

"  case  to  coiiBtitnte  an  item   of  damapfc.      In  easo  of  a  total  loss,  the 

60  "  invoice  jirice  and   interest,  as  adopted  by  the  Hnpreme  Court,  in  u 

•'  fair  and  reasonable  comi)eUHation." 

Abstracts  from  opinions  radically  moditied  by  the  con- 
text are  not  safe  authoritv. 


1007 


1  ":  IT. 


If/,  mill  iift>  r- 

Tuitcil  Sliiti's 

mill  lutrrcst 


sulistiiiitiallv 


fiiol     lllVS.'lf 


mv  Ifiinn'il 


ids  tor.  tliiit 


It'ciailv  ctiin 


upon  till'  sup- 
light  not  ill  iiiiy 
total  loss,  till' 
i'  Court,  is  li 


(Mr.  Dickinson's  Closing  Argumnnt.) 

In  Otli  Wheaton.  also,  thoro  is  a  jiidgniont  by  Chief 
Justice  Stoi-y  at  page  'M\'2,  "The  Apollon  ": 

"  Tho  iirobiiblt'  protlta  of  a  voyugp  oithor  upon  tlio  oiirffoor  frpiplit 
"  do  not  form  an  ituui  for  tlio  oompiitntiou  of  diuirnxoH  lu  oiihos  of  ma- 
"  riuo  torts." 

This  was  a  case  of  capture,  iuul   the  first  consideration 
_by  Chief  Justice  Stoiy  was.  whetlier  there  was  justitiahle 
cause  for  tiie  capture;  and  among  otiier  things  lie  states: 

"  Tlie  iirri'»t  of  tho  offending  vosscl  must  lie  rest  ruined  to  ])lnoes 
•'  wlioro  our  jurisdii'tion  is  coniph'ti'.  to  our  own  wators,  or  to  the 
"  ocean,  the  eommou  highway  of  all  niitions." 

He  discussed  the  claitn  for  prohaltle  profits  in  cases  of 
capture,  and  held  tiiat  the  iiile  of  dainages  in  such  cases 
is,  the  vahie  of  the  vessel,  in  cases  wliicli  did  not  call  for 
"aggravated  or  vindictive"  liainages.  Ilo  held  in  this 
case,  th;it  the  proceedings  and  tlu>  delay  in  the  adjudiea- 

-'^tion  upon  the  rights  of  these  parties  was  entirely  unjiisti- 
tiahle.  1  may  say  in  passing,  that  the  proposilion  to 
which  I  reteried  yesterday  is  laid  down  by  Mr.  Justice 
Story  in  this  case:  that  a  decree  and  a  proceeding  ///  rem 
without  a  certificate  of  |)robable  cause  of  sei/ure,  and  not 
appealed  from  with  etft'ct,  is  conclusive  on  I'vcry  impiiry 
before  evi'ry  other  loiut. 

My  learned  friends  also  <ile  tlie  case  of  Dciniis  vs.  J/a.r- 
/;'«7t/,  reported  in  \0  Allen's  M<iss(trluif<i'lls  Rc/Kirts,  p.  l;?S. 
It  was  a  case  of  a  written  contract  by  which  (lie  master  of 

''^  a  whaling  ship  was  employed,  jiioviding  that  lie  should 
have  a  certain  "  lay  "  or  interest  in  the  prolitsof  a  vovage, 
and  also  an  additional  compensation  depending  upon  tiu- 
anioimt  of  the  cargo,  and  he  was  wrongfully  discharged 
by  the  owners  before  the  e.xpiralion  of  tlie  contract.  He 
may  recover,  as  a  jiart  of  bis  damages,  his  share  of  the 
earnings  of  the  ship  both  before  and  alter  his  removal. 
Hilt  in  that  case  the  ship  proceeded  on  ber  vovagi>. 
It  was  a  case  of  the  wrongful  dischaigi' of  a  man  with 
eai  ning  capacity,  and  tlie(|uestion  was  what  damages  he 

■^' could  recover.     Chief  Justice  Higelow  said: 

"  The  plaiutitThas  a  riglit  to  recover  iis  daiiiut,'i's  the  amount  which 
•'  is  lawfully  due  to  him  under  the  stipiihitioiis  liy  which  his  com- 
"  pensation  for  tticse  services  was  to  lie  regulated  and  f^overned." 

.V  clear  case  of  contract  and  so  dislingnished: 

"  This  includes  the  wages  which  in'  liad  eanicil  previous  to  his  re- 
■  tuoval,  as  well  as  those  which  he  was  preveiiteil  Inuii  earning  liy  his 
'■  v.rongful  discharge.     'J'he  hreach  of  the  euiilniit  by  the  delendants 

•  has  created  only  one  <-ause  of   action  in   favnr  of  the    plainlitV      His 
^" '•  conipciisation    for  this   hreacli    necessarily    ciiihiaco  all   that   he  ia 

"  entitled  to  recover  under  the  I'onlract.      Indeed,  his  right  to  recover 
'•  anything,  as  well  that  which  was  earned  liefon'  as  that  which  would 

•  have  been  earned  if  he  had  not  been  discharged,  depends  on  tho 
"  iiuestion  whether  lie  has  performed  his  part  of  the  contract.  A  party 
"  cannot  si'ver  a  claim  for  damages  arising  under  one  contract  so  as  to 
"  make  two  distinct  and  snb.stantivi'  causes  of  action.  We  are  there- 
"  fore  all  of  oiiinion  that  the  sum  due  to  the  plaintilV  prior  to  his  dis- 
'■  charge,  when  it  shall  have  been  ascertaiiii'd  by  an  assessor,  ought 
"  to  be  added  to  tl'.e  amoicit  of  the  verdict. 

'•  We  tliiuk  it  eiiuaily  clear  that  the  plaintilV  is  entitled  to  recover  in 

■  this  action  his  shaio  or  proportion  of  tho  future  profits  or  earuiugs 
"  of  the  vessel  after  his  disch.irge  by  the  defendants.  These  coiisti- 
•' tute  a  valid  claim  for  da'nage:4,  bi'cause  the    jiartics   have   expressly 

■  stipulated  that  profits  sliouul  be  the  basis  on  which  a  portion  of  the 
"  plaintitt's  coiupensatioti  for  services  should  be  reckoned.  These 
'•  onmings  or  profits  were  therefore  within   the  direct    contemplation 

"  of  .ho  parties  when  the  cinitract  was  entered  into.     They  are  un- 

■  doubtedly  iu  their  nature  .Miutingent  and  siieculativeaiid  iliflicult  of 


fxi 


il 


!'l 


1008 


.'    I 


(Mr.  Dickinson's  Closing  Argument.) 

"  estiniatiou;  but,  beinp  mad(>  by  express  aRreoinent  of  tbe  parties  of 
"  the  essenco  of  the  <'outract,  we  do  not  see  how  they  can  be  exobiilci 
"  iu  aHcortaiuiug  the  eompeusation  to  which  the  plaintiff  is  entitli'il." 

The  case  of  Brown  vs.  Siiiith,  ropoited  in  12  Ciislu'in/,  is 
the  case  of  ;i  master  of  a  wiiahng  vessel  who  iiliandonld  ^i 
voyage  and  wrongfully  sold  the  property  of  the  owuii , 
on  Imard.  Helil,  that  subsequent  return  by  him  of  p.-m 
'°of  the  proiveds  of  such  sale  is  no  bar  to  the  action  agaiiNi 
him  for  bieakiiig  up  the  voyage,  hut  it  reduces  the  dain- 
ages.  This  was  an  action  against  the  master  for  a  vci  \ 
grave  violation  of  his  contract 

Now,  what  kind  of  intent  is  referred  to  in  this  rule  on 
damages^  In  looking  at  Sedgwick  we  find  no  intent 
treated  of  as  affecting  the  measure  of  damages,  exc(]i| 
this  kind  of  evil  intent  or  malicious  motive  which  is  re- 
ferred to  in  the  hooks  which  my  learned  friend  has  citid; 
and  Sedgwi(;k,  at  Section  ;5('>;{,  treats  of  that  whole  suljjiLt, 
^° under  the  title  of  "  E.xemplaiy  Damages." 

This  is  our  familiar  friend,  variously  called  exemplar  v 
aggravated,  vindictive  and  punitive  d;  .  lages  thiougliniii 
the  books— and  here  is  the  oidy  i)li!c    li    all  of  Sedgwick 
where  you  will  find  the  question     '   m:      "  treated.     And 
what  kind  of  intents 

"  Tlie  justitication  of  exemplary  damages  lies   in   the  evil  intent  of 
"  the  defendant;  and  the  allowance  of  such  damages  is   therefoic  le 
"  Btricted   to   cases   of   wanton   injury.     There  must  be  some  wioni' 
"  motive  acconipauving  the  wrongful  act." 
30 

Actual  malice  and  the  commission  of  a  wrongful  act  is 
a  case  for  exemplary  damages,  and  the  whole  subject  c  if 
intent  is  treated  of  in  that  comiection,  as  a  basis  nf 
exemplary  damages,  variously  called  exemplary,  pmiitdry 
and  so  on.  The  same  class  of  dam;igi's  is  given  in  ai'cnid- 
anci'  with  the  Knglish  and  American  authorities  for  giuss 
negligence,  as  shown  in  Sect  ion  ;itW  of  Setlgwick — when 
he  cites  Knglish  and  American  authorities  in  the  mitcs. 
Gross  negligence,  amounting  to  a  conscious  indiflV'reiiceio 
40conse(]uences,  entails  precisely  tl'.e  same  rule  of  ilania^;es 
as  evil  motive.  1  take  the  following  from  '-'eiiivwv  k. 
paragraph  'MS: 

3(W.  '•  For  gross  negligence.  -In  Wilson  r.v.  Hrett.  lit)!'.',  il,  said 
"that  he  eoulil  wee  no  <lilVeicnco  between  .■(•i/Zif/nii-  bm.  //ci.-,-,  ».'(///. 
"  r/fiirr ;  that  it  was  the  same  thing  with  the  aii  litiou  of  ti  •  •! iih' mtive 
"  "epitliet,  and  this  observation  has  been  quoted  \ith  appro  1  I  in  h;',  r 
"  eases." 

"In  Jiailroad  Vo.  vn.  Loekwood,  Mr.  .Tustice  Bradley,  iiit<  i  .i.iiai},' 
"  the  distinctions  comnionlv  drawn  lietween  slight,  onliimrv  ;iinl 
"  gross  negligence,  suid:  'In  each  case  the  negligence,  wliiilivi  r 
50  "  ei)ithot  we  give  it.  is  failure  to  bestow  the  care  anil  skill  wliicli  ihr 
"  situation  demands;  and  hence  it  is  more  strictly  accurate  ]icrlm|is  to 
"  call  it  simply  "negligi'nce. "  And  this  seems  to  be  the  leudeiu  v  ;.f 
"  modern  authorities.' 

"  In  these  cases,  however,  the  ipiestion  was  not  considered  witli 
"  referenci'  to  exemplary  danniges,  but  to  the  amount  of  csre  ilue  l.din 
"  the  defendants  in  their  res|iective  situations." 

Whether  little  or  great  care  is  due,  »  li'  Hciien  from 
that  amount  is.  in  each  ca,se,  negligen.>  wd  creates;; 
liability,  but  one  upon  whom  a  duty  is  in))"  i  Piay  i  ill;i 
6olittle  (ir  far  bel(»w  tin*  line  dividing  liability  fion  impunity, 
and  it  is  not  ''^proper.  Alien  the  latter  is  the  case,  in 
apply  the  leu  'gros's'  io  the  defendant's  derelictinn 
in  resptict  of  d  >'ii;>ges,  liiving  reference,  however,  ineivjy 
to  the  character  01  his  ,1  I -.  md  not  to  his  liabiUty.  The 
allowance  01   e,\v;;:!;)I,tiy  damages  depends  upon  the  had 


1009 

(Mr.  Dickinson's  Closing  Argument.) 

motive  of  the  vviong-doer  as  exhibited  by  his  acts.  On 
the  whole  careful  review  of  the  cases  the  statciuient  I 
have  nriade  is  borne  out  as  follows: 

"  Where,  therefore,  the  acts  fall  short  of  willful  iniseoniluct,  or  that 
"  entire  want  of  care  which  would  raise  the  presuinijtiou  of  u  cou- 
"  scions  iuditteronce  to  consequences,  exemplary  damages  should  not 
"  be  given. 
^  "  Cxross  negligence,  so  fur  as  ri(/ht  «/  nctiim  is  concerned,  is,  as 
"  Rolfe,  B.,  said,  only  negligence  with  a  vituperative  epithet  ;  as  a 
"  malicious  wrong,  so  far  as  right  of  action  goes,  does  not  differ  from 
"  any  other  wrong.  Hut  as  malice,  thongh  not  making  the  act  legally 
"  more  wrongful,  may  be  a  ground  for  exemplar}'  damages,  so  may 
"  grossness  of  negligence  in  the  sense  explained  above  ;  and  the  term 
"  so  explained  is  open  to  no  objection,  and  accords  with  its  use  in 
"  common  speech. 

"  Grost'  negligence,  then,  in  the  seLse  of  culpable  indifference  to 
"  conseciuences,  is  usually  held  to  be  a  good  ground  for  the  allowance 
"  of  exemi)lary  damages  ;  in  this  sense  it  is  therefore  such  negligence 
"  OS  evinces  a  conscious  indifference  to  consecpiences. " 

-o     And  here  it  is  in  Admiralty  as  well,  may  it  please  your 
Honors,    in   cases   of   marine  tort — Sedgwick,  Sec.  Hr)2-  - 
citing,  Mr.  Justice  Story  in  2  Mason,  page  Hit,  of  illegal 
captures,  and  quoting  many  other  judgments. 
Section  ;$J:7  of  Sedgwick  says: 

"In  actions  of  tort,  when  gros-i  fraud,  malice  or  oppression  ap- 
"  pears,  the  jui'y  are  not  bound  ti  adhere  to  the  strict  line  of  compeu- 
"  sation,  but  may,  by  a  sevi>rer  verdict,  at  once  impose  a  punishment  ' 
"  on  the  defendant,  and  hold  him  up  as  an  example  to  the  commu- 
"  nity.  It  might  be  said,  indeed,  that  the  malicious  chai-acter  of  the 
"  defendant's  intent  does,  in  fact,  increase  the  injury,  and  the  doc- 
s'^ "  trine  of  exemplary  damages  might  thus  be  reconciled  with  the 
"  strict  notion  of  compensation;  but  it  will  appear  from  the  cases  we 
"  now  proceed  to  examine  that  the  idea  of  compensation  is  abandoned, 
"  and  that  of  punishment  introduced.  Damages  assessed  upon  this 
"  principle  are  called  'exemplary  or  vindictive  damages.' 

"348.  Origin  of  the  doctrine  of  exemplary  damages. — The  term 
"  '  examplory  damages  '  seems  to  have  owed  its  origin  to  Lord  ("am- 
"  den,  the  first  reported  case  in  which  !t  occurs  being  that  of  Huckle 
"  r.  Monev." 


note  to  Sec.   347,   page  502,   the  learned 


40 


In  the  foot 
author  says: 

"Other  terms  sometimes  used  are  'punitory  '  or  'punitive'  damages 
"  and  'smart  money.'  These  terms  are  usually  employed  indifferently 
"  in  describing  these  damages.'" 

In  McKeon  vs.  The  Citizens  R.  R.  Co.,  reported  in  42 
Missouri,  iit  i)age  7!*,  it  was  attempted  to  make  a  distinc- 
tion between  exemplary  and  punitive  damages,  but  the 
cases  were  soon  overruled.     Id. 

The  j)hrase,  aggravated  damages,  also  necesarily  in- 
volves the  presumption  of  evil  and  malicious  intent  and  is 

5o\ised  by  the  writers  and  by  Justice  Story  as  synonymous 
with  exemplary  or  vindictive  damages  in  the  case  of 
"Tlie  Apollon  "  in  It  VVheaton. 

But  in  no  case  does  the  question  of  evil  intent  give  any 
aildeu  measure  of  actual  damages.  It  is  only  damages 
added  to  actual  damages  put  upon  the  defendant  as  u 
punishment  for  evil  intent  or  wanton  mischief. 

[  liave  thus  taken  the  pains  to  go  through  the  old  doc- 
trine of  exemplary  and  punitory  damages  because  my 
ic  ..ned  friends  have   brought  into   this  case   this   novel 

(lopt  )position— that  if  it  be  shown  that  there  is  an  intent  to 
destroy  or  injure,  not  an  evil  or  malicious  intent,  but  a 
mere  mtent  to  do  the  thing  witli  all  its  natural  conse- 
(|Uences,  then  we  have  a  new  measurenieut  of  damages, 
and  they  dwell  on  it  as  if  that  would  be  a  ground  for  giv- 
ing prospective  i)rotits  as  damages. 


' :  •:  I 


1(110 

(Mr.  Dickinson's  Closing  Argument.) 

I  have  endeavored  to  sho;v  that  the  question  of  intern 
cuts  no  fi}i;ure  in  any  case,  except  it  he  an  evil  intent,  an.l 
after  all  your  Honors  are  hron^ht  to  the  consideration  ot 
the  question  of  wliether  the  United  States  could  he  hcM 
responsihie  in  the  cases  at  har,  as  frankly  claimed  in  niv 
friends'  original  printed  argument,  not  on  this  new  ddr 
trine  of  the  oral  argument,  but  under  the  rule  of  punitory 

loand  vindictive  damages,  as  for  wanton  mischief,  as  tni 
had  faith  and  malicious  motive.  That  is  all  there  is  of  it. 
because  no  case  has  been  cited  and  none  can  be  cittil 
where  any  such  measurement  of  added  damages  is  givci:, 
even  between  private  persons  on  any  other  ground. 

Now,  my  friend  said  that  the  American  counsel  cited 
this  doctrine  of  vindictive  damages  at  Ueneva.     It  w,is 
cited,  but  it  was  not  on  the  question  of  prospective  catcii, 
neither  was  it  for  the  purpose  obtaining  anything  in  addi 
tion   by  way  of  actual  damages.     It  was  cited  to  tiie  po-,! 

20ti(m  that  one  aspect  of  that  case  called  for  punitory 
damages. 

It  was  cited  on  this  proposition— and  the  position  of  tlie 
American  counsel  was  speedily  disapproved  by  the  Boaid 
of  Arbitiation— that  they  claimed  to  have  shown  in  theii 
case,  and  in  their  argument  as  presented,  (and  all  the  .■ 
cases  on  damages  which  my  learned  friend  has  cited  in 
the  brief,  were  presented  in  the  original  argument  with 
the  American  case  at  Geneva)  unhappily,  that  Great 
Britain     did     the    things    complained    of     with    actual 

30  evil  intent  to  injure.  That  is,  where  they 
placed  them.selves  there.  Actual  hostile  intent;  that  was 
frankly  claimed  at  Geneva;  and  1  refer  to  it  here  meicly 
to  show  how  the  doctrine  of  exemplary  damages  canic 
to  he  frankly  in  that  argument  which  is  quoted  in  the 
British  brief  here.  It  was  not  considered  or  discussed  mi- 
der  the  head  of  personal  damages  to  citizens  in  the  Aniei- 
ican  argument,  but  it  was  cited  under  claim  for 
general  damages  from  Great  Biitain,  such  a-; 
for      driving     our     shipping       from     the      se.is      and 

40  increased  cost  of  the  war  and  other  dama;;es 
that  could  not  be  estimated.  As  to  these  claims  and  the 
supporting  charge  of  bad  faith  necessary  to  go  with  tliein, 
actually  made  in  the  American  argument  in  that  case,  the 
British  counsel  distinctly  refused  to  enter  into  the  discus- 
sion, and  stated  in  their  reply  that  claims  like  that  had 
rarely  ever  been  made,  and  had,  if  made,  never  been  con 
ceded  or  recognized  in  an  international  court.  T(»  that 
point  alone,  so  made  by  the  American  ounsel,  was  the 
rule  of  exemplary  and  vindictive  damages  cited  and  nsed 

50 at  Geneva,  and  not  as  my  learned  friend  would  have  it. 
on  anv  claim  for  damages  suffered  by  citizens  of  the 
United  States  on  which  damages  were  asked  or  awarded. 
This  feature  of  the  American  case  was  eliminated  liy 
the  arbitrators  themselves,  and  it  was  not  even  consid- 
ered, because  Great  Britain  proposed  to  retire  from  the 
arbitration  if  it  were  even  urged.  Thus  that  pait  of  the 
controversy  ended  and  went  out  of  the  case,  and  with  it 
all  the  contentions  and  citations  on  vindicative  daniajics 
that   my  learned   friend,    Mr.    Peters,    has    cited   in  his 

^o  brief. 

It  is  absurd  to  contend,  it  seems  to  me,  that  in  a  casi-  of 
this  kind,  where  there  is  a  conflicting  claim  of  right  hy 
both  and  a  dispute  between  nations,  ultimately  settled  hv 
friendly  agieement  and  arbitration,  where  each  paity 
claims  against  the  other,  that  acts  involving  damages  have 


loll 

(Mr.  Dickinson's  Closing  Argument.) 

been  done  by  eacb  and  recovery  of  one  or  the  other, 
all  depending  however  upon  a  decision  on  the  question  of 
jurisdiction  and  dominion,  disputed  in  good  faith,  there 
should  be  any  question  of  wantonness,  bad  faitli,  or  evil  in- 
tent. That  if  it  be  decided  one  way,  that  one  party  would  be 
liable  for  damages,  and  if  decided  the  other  way  the  other 
party  would  be  iialsle  for  damages  and  it  does  seem  to  me 

louot  to  he  supposed  that  it  could  be  contemplated  thaf 
either  paity  would  be  liable  for  damages  in  the  nature  of 
exemplary,  punitive  or  aggravated  damages,  or  that  if 
the  decision  at  Paris  (as  a.ssumed  possible  in  the  treaty) 
had  been  the  other  way  that  the  United  States  would  be 
here  insisting  against  Great  Britain  that  her  acts  were 
willful,  wanton  and  with  evil  intent  in  injuring  our  prop- 
erty rights  in  Beting  Sea. 

The  true  doctrine  I  have  cited  from  the  same  authority 
that  my  learned  friends  have  brought  here— fioin  1 1  Michi- 

jogan— Chandler  r.s.  Anderson,  that  if  a  thing  is  done  under 
color  of  right,  the  doctrine  of  exemplary  damages  can 
have  no  application.  In  such  a  case  the  damages  can 
never  even  be  discretionary  with  a  jury. 

You  will  find  the  authorities  under  the  proper  heads  in 
mv  brief. 


Commencing  at  page  138  of  my  brief  and  argument,  I 
have  called  attention  to  other  claims  conventions  under 
which  extravagant  damages  have  been  presented,  not  for 

^  the  purpose  especially  of  stigmatizing  a  particular  class 
of  claims,  but  to  illustrate  what  is  set  down  as  a  universal 
rule  by  no  less  authority  than  Chief  Justice  Cockburn, 
and  by  British  authorities  repeatedly,  as  in  the  German 
Claims  case  often  referred  to,  and  in  the  British  argument 
repeatedly  at  Geneva— the  commonly  accepted  rule— that 
gieat  caution  should  be  used  in  considering  the  estimates  of 
persons  on  their  own  claims.  It  is  recognized  that  as  to 
claims  of  this  sort  against  governments  the  tendency  to 
exaggerate  is  universal.  For  this  reason  I  have  shown  by 
instances  and  citations  how  enormously  claims  have  been 
exaggerated  before  other  and  all  Claims  Conventions. 
For  instance,  the  audited  claims  in  the  hands  of  the  British 
Government  under  the  Convention  of  1W71,  which  had  been 
brought  in  and  were  considered  worthy  of  presentation  by 
that  nation  against  the  United  States.  There  were  !ii!t6,- 
(100,000  of  claims  so  presented,  and  something  over 
^1.000,000  was  the  result  as  allowed— I  think  $1,800,000— 
idthough  Great  Britain  had  presumably  sifted  them  before. 

-The  claims  of  American  citizens  presented  before  that  same 
Commission  against  Great  Britain  in  like  manner  were 
about  $1,000,000  and  nothing  was  finally  allowed  on  them. 
Before  the  Spanish  and  United  States  Commissi(m  $30,000,- 
(100  were  presented  and  $1,000,000  allowed.  $470,000,000 
were  presented  under  the  Convention  with  Mexico  and 
$3.(»00,000  were  allowed.  In  the  case  of  the  "  Montijo," 
which  is  cited  in  our  brief  from  the  British  and  B'oreign 
State  Papers,  the  amount  claimed  for  our  citizen  by  the 
I'nited    States    was    llt-i,0O0,    and     that    compensation 

^was  cut  by  the  American  arbitrator  himself  to 
^33,000.  The  claims  against  Prussia,  audited  by  Great 
iiritain  herself,  shows  the  enormous  difference  be- 
tween what  is  right  and  what  claimants  will  present. 
One  of  the  most  interesting  cases  referred  to  in  the  books 
on  this  matter,  to  which  publicists  refer,  not  to  cens'pe, 


H- 


1012 

(Mr.  Dickinson's  Closing  Argument.) 

but  to  inculcate  caution  in  the  consideration  of  claims  Ik,- 
fore  Claims  Conventions,  or  claims  pressed  for  inteni.i- 
tional  grievances,  is  a  case  which  is  often  referred  to  in 
the  colleges  as  bearing  upon  this  very  question,  that  of  the 
British  subject  in  (Greece,  in  1K80,  who  invoked  liis 
nation's  protection,  alleging  that  he  had  been  damagcil 
by  an  attack  on  his  property  to  the  amount  of  some  l';ii. 

loOOO  and  odd.  Great  Britain  acted  on  the  claim,  and 
taking  up  the  cause,  made  reprisals  and  seized  an  im- 
mense amount  of  (Jreek  property,  when  Kussia  in- 
tervened and  remonstrated.  Through  the  mediation  of 
France,  the  controversy  was  referred  to  Commissioiieis 
for  further  investigation,  and  the  actual  damages  as 
shown  on  this  claim  of  over  $1100,000  or  £21,000,  after  nil 
this  trouble  and  international  turmoil,  turned  out  to  be 
but  £'ir)0  as  the  total  damage  to  that  citi?"  •..  (S'.'e  1. 
Baker's  Halleck,  p  472  note).     This  whole  sul._  .>ct  is  dis- 

20 cussed  by  Chief  justice  Cockburn  in  the  Geneva  case,  as 
cited  in  my  brief,  and  I  need  not  go  over  it  again.  The 
whole  question  as  to  padding  and  exaggeration  in  fact 
here  has  been  gone  into  by  my  associates.  The  exorbitant 
character  of  the  claims,  we  will  say  for  warnings,  as  one 
instance  in  this  case,  are  al  lost  beyond  belief.  There  is 
not  a  single  ship  here  for  which  claim  is  not  made  for 
from  five  to  twenty  times  her  value.  In  the  matter  of 
warnings,  the  testimony  has  been  analyzed  correctly  by 
the  counsel  for  the  United  States,  and  we  submit  that  it 

30  lias  been  fairly  presented  in  the  argument  of  the  junior 
counsel. 

1  have  discussed  the  claims  for  false  imprisonment  in 
my  biief;  only  those,  however,  set  down  and  referred 
to  you  under  the  British  Schedule,  pages  1  to  60.  Com- 
paring them  with  the  case  of  Captain  Carpenter  in  the 
"Costa  Rica "  case,  I  submit  that  there  is  no  such  ground 
for  allowing  damages.  Damages  in  that  case  were 
punitory  or  exemplary,  besides  the  actual  expense  and  de- 
tention with  loss  of  wages.     The   men  in   tliis  case  were 

40 not  put  in  cells  or  abused;  they  were  detained;  and 
they  should  be  paid  for  their  time,  1  have  no 
doubt,  if  improperly  detained.  But  as  for  adding 
anything  as  for  malicious  prosecution,  gross  outrage, 
maliciously  false  imprisonment  in  the  way  of  exemplary 
damages,  as  in  Carpenter's  case,  it  is  absurd.  The  cliiof 
persons  who  make  these  claims  were  for  the  time  actually 
employed  by  the  United  States,  and  were  paid  for  their 
time  generously,  what  they  asked,  by  tiie  United  States 
Government. 

jO  Now  my  fiiends  have  said  that  they  are  entitled  to 
charge  for  logai  services  of  lawyers  in  preparing  these 
claims.  It  is  not  so.  Your  Honors  have  seen  from 
what  I  have  quoted  from  Sedgwick  that  if  they  actually 
expended  the  money  in  and  al)OUt  their  release,  yes;  luit 
they  cannot  put  in  as  a  part  of  a  general  charge  so  inncli 
for  what  they  may  intend  to  pay  a  lawyer;  they  cannot 
do  that  in  any  case;  and  cannot  put  in  whatever  a  lawyer 
may  chaige.  No  one  testified  at  Victoria  as  to  the  value 
of  the  services. 

60  The  Commissioner  on  the  part  of  the  United  States:— Uo 
I  understand  you  that,  according  to  the  practice  in  this  class 
of  cases,  they  would  not  be  entitled  to  add  a  reasonal)le 
amount  for  legal  expenses  in  making  up  and  presenting 
their  claims? 
Mr.  Dickinson:— Whatever  is  reasonable;  as  shown  by 


I  ■■  ir\ 


iiif 


101?. 

(Mr.  Dickinson's  Closing  Argument.) 

evidence,  yes;  an  arbitrary  svitn.  no;  but  for  presenting 
their  claims  at  Paris  they  cannot  claim  anvtbiii^. 

The  Commissioner  on  the  part  of  the  United  States: — I 
mean  with  our  own  government. 

Mr.  Dickinson:— I  have  said  they  could  for  defending  in 
Court  in  our  brief;  but  they  have  lumped  in  a  lot  of  money 
without  proving  that  they  over  paid  it  out,  or  that  the  ser- 
10  vices  were  wortb  it.  Take  for  instance  the  testimony 
upon  the  Belyea  services,  who  came  down  to  Ottawa,  and 
the  witness  Munsie,  at  page  ;?40  of  our  argument: 

"  Q.  The  contract  with  Mr.  Bolyoa  was  not  in  writing,  I  think?  A. 
"  No,  not  in  writing. 

"  Q.  It  was  wadi'  up  at  tlie  time  thouf^h?  A.  It  was  made  at  the 
"  time  he  undertook  to  look  after  the  case. 

'■  Q.  You  ai'o  hound  to  pay  him  i?7.")()y  A.  If  I  do  not  get  the  claim 
"  I  might  not  jiay  liim  ;  I  might  object  to  it. 

"  Q.  But  you  agreed  to  pay  him  SToO.  at  all  events,  for  his  services?    A. 
"  There  might  liave  been  a  condition, 
-in     "  ^'     ^^'*''  there?    We  don't  want  any  statement  as   to  what  might 
"  be,  but  what  is.     A.  I  won't  state  positively,"  an  '  so  on. 

Can  a  man  put  down  a  sum  of  money  on  a  piece  of 
jiaper  and  succe^^sftdly  claim  it^  No  sucli  tiling  was  ever 
allowed  in  a  court  of  admiralty. 

Mr.  Peters:  -We  distinctly  do  not  dain)  for  that.  You 
will  find  Mr.  Munsie  in  evidence  goes  on  to  state  that,  at 
the  time  that  agreement  was  made,  no  such  thing  as  a 
Convention  of  this  kind  w;is  thought  of  at  all.  It  would 
be  utterly  improper  to  claim  it. 
30  Mr.  Dickinson:  — It  was  for  services  in  pre|)aring  claims 
against  the  United  States  at  Ottawa  and  i-Isewlieie.  But 
the  whole  mattei  is  disposed  liy  a  ret'erence  to  Sedgwick, 
sections  i';]4- "J;!").  it  Wheatoii.  s's  That  this  class  of  dam- 
ages for  services  in  seeking  to  rivover  are  added  oidy  as 
jjunitory  or  vindictive  damages.  And  see  Story  as  cited 
and  Sedgwick  in  the  sections  cited. 

I  submit  what  I  have  bad  to  say,  in  addition  to  what  had 
been  .said  by  my  learned  associates  on  the  value  of  seal 
4oskins,  at  pages  141-142  of  my  brief  as  to  the  standard  of 
value.  If  there  was  a  market  at  Victoria,  that  fixes  the 
standard  of  value.  We  show  beyond  (piestion  a  market 
at  Victoria,  and  the  standard  of  value  is  the  place  of 
sale,  and  not  the  stock  market  in  London,  any  more 
than  the  standard  of  value  of  wheat  on  a  contract 
for  delivery  in  the  West  is  to  be  stock  or  market  cpiota 
tions  in  the  City  of  New  York.  Tlu'i'e  is  abundant  evi- 
dence of  a  market  at  Victoria  and  at  San  Francisco,  ami  we 
never   have   been   able   to  see   bow   evidence  of  London 

josales  could  be  competent.  The  claims  originally  set 
down  in  the  .schedule  presented  at  Paris  were  in 
terms  based  on  the  Victoria  market,  and  with  the 
exception  of  a  sale  by  Mr.  Munsie  the  Victoria  prices 
were  set  down  in  the  British  schedule  at  Paris.  The  cases 
we  have  analyzed  as  to  the  measure  of  damages  for  per- 
sonal property  would  invariably  exclude  the  London 
market  as  a  measure  of  value.  Wherever  such  claims  for 
d:images  are  f)iesented  as  to  cargo,  on  the  basis  of  the 
highest  market  somewhere,  in  cases  of  marine  tort  or  con- 

60 tract,  such  claims  have  been  invariably  ruled  against. 
The  time  of  the  measure  of  value  in  such  cases  is  the  date 
of  the  seizure.  The  place  of  the  measure  of  value  of 
cargo  in  capture  is  invariably  the  port  of  departure,  if  a 
market  exists  there,  or,  if  not,  the  nearest  market.  In  this 
case  the  measure  claimed  is  neither  the  port  of  departure  or 


i 

Jbj^OMi 

■       i 


1014 

(Mr.  Dickinson's  Closing  Argument.) 

the  port  of  destinntion  of  the  ship,  hut  the  highest  market 
anywhere  on  the  face  of  the  eai'th.  Such  a  market  mav 
he  the  ultimate  market  of  a  cargo  after  passing  tluoiifrh 
dealers  and  various  intervening  hands,  hut  that  ultimate 
market  never  fixes  a  measure  of  value  for  the  first  handler 
of  a  cargo,  or  the  carriers  of  it. 

10  Interest. 

Now,  may  it  please  yoiu-  Honors,  I  have  devoted  somo 
time  to  the  question  of  interest  in  my  hrief.  My  friomls 
have  charged  interest  upon  everything,  and  I  suhmit  that 
hy  the  rule  of  international  law  in  any  case  interest  is  luit 
ailovvahle  as  a  matter  of  light.  I  have  no  doubt  of  tlio 
power  of  the  Court  to  allow  interest  at  some  rate,  hut 
there  is  no  accepted  rule  tiiat  interest  should  be  allowed. 
hut  quite  the  contraiy.     I  do  not  see  how  it  is  po.ssible  fur 

2oiuteit'st  to  be  allowed  hack  of  the  time  that  they  pic- 
sented  tlieir  claims  at  Paris.  There  never  was  a  time 
before  when  the  United  States  could  i)ay  them  or  could 
know  the  claims.  It  has  been  shown  by  the  com;- 
spondence  in  my  learned  friends'  hrief  that  they  never 
presented  the  claims  to  the  United  States,  that  they  said 
they  had  not  been  audited,  and  they  were  never  presented 
or  shown  to  the  United  States  until  they  were  presented 
at  Paris.  Now  the  universal  rule  I  have  discussed  is 
against  interest,  as  a  rule  of  international  law,  and  it  is  so 

30  held  hy  British  authorities  especially.  There  is  no  sucli 
thing  as  interest  to  be  allowed  as  a  matter  of  right,  and 
never  in  the  way  of  damages  for  delay.  I  have  notiiiiigto 
add  to  what  I  have  set  down  in  my  brief,  where.  I  tiiink, 
the  subject  is  fairly  and  exhaustively  treated.  I  assume 
that  my  work  there  will  receive  consideration,  without 
needlessly  repeating  it  here  (see  Brief,  p.  143  et  se<i.). 
At  half-past  four  o'clock  the  Commissioners  rose. 


■i:':  ; 


r' 


Commissioners  under  the  Convention  of  February  8, 

1896,  between  the  United  States  of 

America  and  Great  Britain. 


Legislative  Council  Chamber,  Provincial  Building, 
At  Halifax,  September  25,  1897. 

'o     At  10.30  A.  M.  the  Commissioners  took  their  seats 
"Say ward"  Costs. 

Mr.  Dickinson:— I  now  take  np  the  "  Say  ward  "  costs. 
My  position  as  to  that  question  is,  that  this  High  Coni- 
mis'sion  has  no  juiisdiction  of  the  claim.  It  is  one  of  the 
most  serious  matters  in  the  Kecord,  in  our  opinion, 
because  the  consideiati;/.i  of  it  may  involve  and  imperil 
the   Convention    itself,    if   we  are    right   in  our  conten- 

,Qtion.  The  claim  for  the  "Saywaid"  costs  is  for  the 
disbursements  of  Great  Britain,  as  a  nation,  in  employing 
counsel  in  the  case  of  Cooper,  decided  in  14;?  United 
States,  to  which  reference  has  been  made.  There  is  no 
dispute  about  that.  It  is  not  contended  tiiat  it  is  a  claim 
of  any  person,  but  is  admitted  fully  on  th((  Kecord  that 
it  is  a  claim  of  Great  Britain  in  that  nation's  own  behalf, 
for  the  expenses  of  a  vain  attempt  to  get  a  writ  of  pro- 
hibition down  from  the  Supreme  Court  of  the  United 
States.     My  learned  friends  say  in  their  brief,  and  they 

,Q reiterate  it  in  their  reply   and   in   their  oral   argument, 

■'  "  The  facts  are,  therefore,  that  this  particular  ilaini  was 
formulated  and  placed  before  the  Paris  Tribunal,  it  was 
not  then  objected  to  as  a  fair  matter  for  coiisideiation." 

I  now  proceed  to  show  to  the  Court,  to  a  demonstration, 
that  the  claim  was  not  before  the  Tribunal  of  Arbitration 
at  Paris,  that  it  <fas  promptly  objected  toon  every  ground, 
and  that  the  Tribunal  of  Arbitration  decided  against  con- 
sidering it  as  l)efore  it.  In  the  tirst  place,  yoin-  Honors 
will  find  that  it  is  not  in  the  schedule  of  the  British  case 
at  all.  That  .schedule  of  claims  presented  by  Great 
Britain  before  the  Tribunal  of  Arbitration  at  Paris, 
in  respect  of  which  findings  were  made,  was  presented  on 
September  6,  181*2  (Vol.  1,  Am.  Print.,  p.  Th  a  limitation 
of  time  fixed  under  the  treaty  of  February  2!>,  1802,  and 
the  British  schedule  so  filed  is  before  you  in  the  original, 
and  is  also  found  in  Volume  4,  American  Reprint,  page 
133.  That  is  the  schedule  of  the  British  case,  pp.  1  to  60, 
showing  the  claims  of  Great  Britain,  the  consideration  of 
which    was   before    the    Paris    Tril)unal.     Nothing    was 

c^evei'  heard  of  this  claim  foi'  disbursements  until  three 
months  thereafter,  when  on  the  extrenje  last  page  of  the 
British  counter  case,  immediately  before  the  index  and 
after  the  "  conclusion,"  this  statement  was  made  at  page 
315;  marginal  page,  260  (see  Am.  Reprint,  Vol.  8): 

• '  With  reference  to  the  clnim  for  damages  mentioneil  at  p.  12  of  the 
•'  British  case,  and  the  particulars  set  out  in  the  sclieilule  thereto, 
'•  Great  Britain  will  claiui,  in  addition  to  the  amount  there  stated,  the 
•  •  sum  of  862,847. 12,  the  amount  of  expenses  incurred  by  the  Govern- 
"  ment  of  Canada  in  connection  with  the  ])roceediuga  before  the 
"  Hupreme  Court  of  the  United  States,  with  the  view  of  establishing 
6o  "  the  illegality  of  the  seizure  of  the  'Say ward,' and  the  arbitrators 
"  will  be  asked  to  find  that  such  exijonses  wore  incurred,  and  should 
•'  be  included  in  the  amount  of  damages  which  Great  Britain  is  entitled 
■'  to  cloim." 

My  friend  says  that  this  was  before  the  Paris  Tribunal 
without  objection,  and  was  considei-ed.    I  now  address 


40 


l(»l« 


'■  !  ■,(  '. 


;"'     f 


(Mr.  Dickinson's  Closing  Aiguinont  ) 

myself  to  what  I'ollowi'fl  on  its  iippoarance  in  that  trihiinal. 
As  appiMi's  liy  tiic  lirst  vohnno  of  tin*  Anioiicin  Ucpriiii. 
as  i-arly  as  I'lotocttl  ill.  of  Mio  I'aiis '''lilinnal,  tlii)  I  nil.ii 
States,  in  a  motion  which  a|>poars  in  that  i)rol(i((i|, 
nii>voil — 

"  to  (lismiHH  from  tlio  iirbitriition  r.o  much  of  the  (U>inanil  of  tlic 
"  (Jovi'niiiit'nt  of  (ircat  Mritaiii  n-.  rclati's  to  tht>  siiiii  Htatcd  uihui  pii^'i; 
•O"  315  of  the  coiintt'i- casi' of  -.lid  (iovi'i'iiiiioiit  to  liav((  lit'oii  iiu'iincd 
"  oil  m'l'oiiiit  of  «'X|i('Uh('s  iii  ('(miii'i'tiou  with  tlit)  iiroi-eciliiigH  bcf  no 
"  tliu  Huprt'iiu^  Court  of  the  Uiiitml  HtatuH." 

That  motion  was  ma'^i'  promptly  on  its  appearanco  on 
April  4tli,  IslKi,  at  tiio  t.i.licst  timo  it  could  Ins  ina<le  allci- 
the  Ti'ihimal  oij^anizcil  So  iliat  it  was  objocttMl  to  at  the 
outset.  On  Ai)iil  7lh,  IS!»;5,  the  .American  counsel,  .Mr. 
Phelps,  as ap|)eais  hy  \'olumeXI..  paji<'  14!t,  called  up  Ihe 
nioti<^n  to  stiiki;  this  item  out,  as  I'ollows: 

20 

"  Mr.  Plu'lps:  —I  lii'f,'  to  roiuind  the  Trilmual  of  another  motion  that 

"  has  lu'cn  tiled  hy  tlic  ,\K<'ut  of  the  United  States,  to  strike  out  from 

"  tlie  ease  certain  claims  for  daniajjes  and  certain  evidence.     We  await, 

"  of  course,  the  pleasure  of  the  'l'ril)unal  as  to  the  time  when  it  slunild 

"  be  heard.     Tim  hour  for  adjournment  has  nearly  come.     1  wish  imlv 

"  to  sa.v  that  at  some  time,  at  the  convenience  of  tlu^  Tribunal,  anil  ln"- 

"  fore  the  argument  on  the   merits  comnieuces,  we  ch'sire  to  have  an 

"  opiiortunity  to  jiresent  this  motion,  so  that  wo  may  know  at  the  he- 

"  Biuning  of  the  argument  ir/m/  r/:iimK  nml  ii-lint I'l-iiifun'  nrr  nynvi/i''/  /n/ 

'*  ///«  '/)'i/innii'  f/s  /■'  /f/f  rifst',  iitiil anhjt'rt  Itt  ri)itsitlfi'iiliutt, 

"Sir    Hichanl  \Vid)ster:— My  learned  friend,  the  Attorney -(Icnciul 

"  has  asked  me  to  deal  with  these  matters.     They  are  so  snuill  that   t 

3*^"  am  perfectly  willing  thi^y  shouhl  l>e  discussed  at  any  time  the  'I'ri- 

"  bunal   thiuli  convenient.     We  did  understand   the  Tribunal  to  smv 

"  the  other  day  that -and  I  read  the  wonls — "they  consider  that  tins 

"  'other    motion  must  lie  reserved  to  a  later  stage  of  the  pmceid- 

"  '  ings.'  " 

So  it  was  called  up  ou  April  7th,  and  a  heai'itifj;  asked 
for.  On  April  l:.'th,  as  appears  by  Protocol  VII.,  Vuliiiinj 
1,  page  'I'l,  the  matter  was  called  up  formally  hefoic  tlie 
Tribunal,  and  this  action  was  taken: 

40  "  It  is  ordered  that  the  argument  and  consideration  of  the  niotinn 
"  made  liy  tlie  United  States  of  .\merica,  on  the  4th  day  of  .\|iril,  |.S'.),t, 
"  to  strike  out  certain  parts  of  the  counter  case  and  proofs  of  the  (inv- 
"  ernnient  of  (ireat  liritaiu,  be  postponed  until  such  time  as  may  l)e 
"  hereafter  indicated  by  the  Tribunal." 

.Now.  that  was  on  April  l:.'th.  On  May  Pth.  as  will 
appear  by  Volume  {•>,  "  .American  Reprint,"  pafj;e  4:.'.").  tiio 
matter  havinj;  i)een  postponed  to  tlie  beai'ingof  the  main 
case,  Mr.  Coudert  says  (.and  this  <;itation  should  be  abided 

to  tho.se  in  ni ,'  brief): 

50 

'•There  is  also  a  new  element  of  damagen  assorted  here,  that  of  tlie 
"  'Sayward  '  case.  Tliat  wi>  object  to  /»  liflu,  because  it  is  not  in  tlie 
'•  bill'of  iiartienlars,  and  this  Court  has  no  jiower  now  to  examine  new 
"  matters  now  brought  U]),  and  of  which  we  were  not  notilied  in 
'•  season.  This  claim  llrst  ajipears  in  the  counter  case.  Jbit  even 
"  if  it  were  otherwise  I  shouhl  say  upon  lis  face  that  claim  caiiiml  be 
"  Riistained.  The  learned  counsel  for  (Jreat  JSritaiu  selected  its  own 
"  triluinal.  It  went  bcfort?  the  Suiireme  Ciourt  of  the  United  States 
"  to  ask  for  relief,  and  it  failed  to  get  it.  It  is  estopped,  therefore, 
"  from  denying  that  the  decision  was  a  just  decision.  Is  there  any 
"  precedent  for  holding  that  a  defeated  party,  ofter  liaviug  been  de- 

60"feated  in  the  tribunal  of  Ids  own  choice,  can  call  U|)on  the  other 
"  party  to  jia.v  all  its  expenses  for  the  preparation  and  argument  of 
"  his  case?  I  submit  there  is  no  such  precedent,  ami  that  this  claim 
"  must  be  at  once  dismissed,  and  that  it  should  be  found  as  a  fact 
"  that  Oreat  Britain  having  gone  to  this  Court,  the  Supreme  Court  of 
"  the  United  States,  of  its  own  option  and  volition,  cannot  now  make 
"  auv'  claim  upon  the  United  States. 


1017 


"I 


ti'ilitiiiiil. 
K«'j)i'iiil, 


anil  (if  till' 
1  il|iiiii  |iii^;i: 
I'll  llU'iirird 
liiigH  be  1'  11-0 


iraiH.'t'  mi 
ladt!  iil'ti'i' 
I  til  fit  tile 
inst'l.  Mr. 
led  u|i  llu' 


motion  tlmt 
ki'  out  from 
,  Wi'iiwait, 
I'll  it  sliiiuM 
1  wisli  only 
mil,  iiiiil  ln'- 
'  to  Imvr  lui 

W  lit    the  li.'- 

'  ri'ijiirth'<t  In/ 

uev-CioiiiTiil 
MiiiiU  tliat  r 
line  till'  Ti'i- 
luiial  to  siiv 
lor  that  this 
tlio  iH'oiTcd- 


■iiif^  asUi'il 
.,  X'liluiiii' 
iK't'oic  Uk' 


f  till'  iiioliiiu 
April,  l.H'.K!, 

i  of  till'  (iov- 
UH   liiiiv    bu 


1,  as  will 
;i'  4L'r).  th'! 
tilt'  main 
lie  aildi'il 


tlmt  of  tlio 

is  not  ill  tlio 

'xiimiiic  now 

uotilifil  ill 

Jiut  ovi'u 

1  I'lUiiiiil  bo 
;toil  its  owu 
;uiti'il  States 
il,  tlieiefore, 
[s  there  iiiiv 
ug  lieeu  lie- 
Ill  tlie  other 
art^uiiu'iit  of 
it  thin  I'liiiiu 
ml  as  II  fiu't 
line  (!oui't  of 
it  now  make 


(Mr.  Dickinson's  Cloying  Argument.) 

"The  cinim  (or  the  money  paitl  to  British  HclioonerB  is  for  mouovs 
"  pa'  \  I  think,  aftor  the  subniission.  At  all  uvents,  it  in  only  in  the 
'•  conntcr   easu,  and  it  Iuih  eomo  too  late." 

Now,  then,  the  Higii  Coniinissioners  scf  tliat  uiy 
learned  friends  tire  mistaken  in  saying  tiieie  nevei-  was 
any  objection  made  to  its  eonsidonition  liet'oie  the  Paris 
Ti'il)unal.    They  are  also  mistaken  as  to  the  matter  having 

10  been  received  bet'oio  the  Tribmial.  The  British  connsel 
never  asked  for  its  consideration  in  their  argtimont  at  all, 
and  the  next  otiicial  act  touching  this  claim,  it  having 
been  designated  l)y  the  British  counsel  as  a  matter  of 
small  importance,  was  on  May  HI,  1K!»;{.  in  I'rotocoj  XXX., 
Vol.  1,  page  X\,  which  is  conclusive  as  to  the  withdrawal 
by  the  liritish  coinisel  of  this  claim  from  consideration. 
On  May  31st  the  matter  having  last  ajjpeared  before  the 
Tribunal  on  May  }»th,  as  seen,  and  noliiing  having  V)een 
heard  of  it  from   the  British  counsel  after  that  time,  Sir 

:o Charles  Russell,  as  appears  by  Protocol  XXX.,  jiresented 
to  the  Tribunal  the  following  paper: 

"  The  British  Ooverument  having  submitted  to  tlio  arbitrators  cor- 
"  tain  questions  of  faet  us  involveil  in  the  claims  for  damage  set  forth 
"  in  the  schedule  to  the  llri/is/i  Case,  pni/ct  1  In  6'W  inclusive,  ask  for 
"  the  following  findings  thereon,  namely:" 

Then  follows  the  finding  rcrhafiiii  et  literatim  as  sub- 
sequently adopted  so  far  as  they  go  e.\ce|it  the  formal 
parts.  Of  coinso  that  disposes  of'  the  cliim  for  the  '*  Say- 
,yWard"  costs,  as  Sir  Charles  Uussell  asked  for  considera- 
■^  tion  by  the  Paiis  Tribunal  of  claims  between  1  ami  tiO, 
inclusive,  and  did  not  urge  the  "  S;iyward  "'  cik^s  at  all. 
thus  throwing  out  by  his  own  act  the  ""Saywanl  "  costs. 
and  withdrawing  ami  e.xciuding  that  cljiim.  That  had 
been  the  insistent  coiitenlioii  of  the  Anieiican  counsel 
that  nothing  could  be  presented  to  tiii'  tribunal  exct?pt 
claims  1  to  tin,  inclusive,  in  the  oii,i;inal  British  case.  It 
was  therefore  never  received  by  and  iievei  pa^.sed  upon  by 
the  Paris  Triliunal  To  conclude  the  Paris  history,  the 
.^tribunal  itself,  upon  the  proposition  suliinitti'd  in  writing 
by  Sir  Charles  liussell  on  August  l.">tli  following,  made 
the  findings  of  fact,  and  found  the  cliiims  befoie  \]  nw, 
in  respect  of  wiiich  findings  of  fact  weiv  leiiniiv  1  to 
1)0  only  those  between  i)ages  1  to  do,  inclusive,  of  the 
original  British  case,  thus  formally  excluding  this  claim 
by  the  act  of  the  tribunal  itself  as  one  iifit  "  before  "  it. 

Now,   may  it  please  the  Coiut,  tiie  only    pretense  of 

standing  the  item  "'Say ward"  costs   would    have   before 

thia  tribunal  is  that  it  appears  under  this  cajition  of   the 

-Q schedule  which   is   found  on  page  7   o*     !^e  pamphlet  of 

'   this  claims  convention.     Appendix  t'  i.'fi'ired  to  in  the 

convention,   referred   to  in    Article   I.,   is   tlius  entitled, 

"Appendix    of    Claims."     '*  Claims    submitted    to    the 

Tribunal  of  Arbitration  at  Paris."    Then  follows  the  list 

of  vessels  and  personal  claims  for  ISSO  and  ISST,  and  then 

below,  "Costs  in  the  '  Say  ward' Case  ";  then  follow   the 

'  Additional  Claims  "  for  the  "  Wanderer,"  the  "  Winni- 

fred,"   the   "Henrietta"  and  the  "Oscar  and    Hattie." 

The  claim  of  costs  in  the  "Sayvvard"  case   not    having 

(3(,  been  submitted  to  or  considered  by  the  tribunal  at  Paris, 

but    excluded  by  it,    is  not  one  of  the    claims    under 

Article  I.  that  acu  be  considered,  and  the  item  "  Costs  in 

'  Say  ward '  Case  "  was  interpolated   in  the  appendix   by 

mistake,  no  doubt,  and  cannot  be  considered  in  this  case. 

The  matter  of  attaching  schedules  to  statutes  is  a  com- 


'■■  a 


T" 


lOlH 

(Mr.  DickiiiHou'H  Closing  AiKunient.) 

mon  nmctioti  enoiiKh  in  the  legiHlution  of  both  countries 
1(1  tl 


lo  canons  of  coMHtniction  iih  to  tlii'ni  are  porfectly 
ettled.     Thu  anthoritieH  hearing  niton  this  nnestioii 


ani 

well  settled,  i'liu  anthonties  heainig  npon  mis  qnesnoii 
are  cited  nt  page  152  of  our  brief.  The  rule  is  this,  that  if 
there  is  anything  in  a  schedule  attached  to  the  statute,  re- 
pugnant to  the  provisions  of  the  statute,  of  course  the 
schedule  goes  down  so  far  as  it  is  repugnaii^.     Wo  have 

loseon  that  the  rules  of  construction  of  treaties  are  the  saiim 
as  of  statutes. 

Now,  then,  take  up  the  careful  delimitation  of  the  con- 
vention itself.  Your  lienors  have  seen  by  the  drafts  pio 
posed  back  and  forth  in  the  negotiation,  that  it  was  at  tirsi 
proposed  to  include  all  Hi  itish  claims,  and  then  all  claiiiiH 
of  every  description,  and  then  to  include  claims  attaclicd 
—  I  quote:  "  including  those  attached  in  the  schedule  "  (ir 
again  including  those  that  were  referred  to  in  the  Tails 
Award.     Forms  were  interchanged  back  and  forth,  and  it 

20  was  finally  decided  that  the  claims  to  ho  submitted  to  tills 
convention  should  lie  only  th(>  claims  tluu.  were  in  tlit) 
finding  of  the  Paris  Award.  The  words  that  would  taku 
in  anything  claimed  outside  of  the  finiling  were  pro|i(ist(i 
and  lejec  tedj  and  thus  the  claims  to  be  ccmsidercd  wcin 
delimitated.  Those  added  afterwards  werocarefully  speci- 
fied in  Artich^  1  referring  hack  to  the  fifth  preaiuhle  ,is 
Additional  Claims. 

Now.  then,  the  costs  in  the  "Sayward"  case  were  ex- 
cluded in  terms  by  the  convention  itself.    By  Article  I  it  is 

30 provided  that  "  all  claims  on  account  ttf  injmies  sustained 
"  l»y  persons  in  whose  behalf  G  "^  Britain  is  entitled  to 
"  claim  (Ompensation  from  the  ed  States,  and  arising' 

"  by  virtue  of  tlit^  treaty  afores  ■  award  and  the  liiid- 

"  ings  of  the  said  tribunal  of  arltuiation,  as  also  Ihc  adili- 
"  iiinntl  rhtiiii.s  s^iccifu'tl  in  lite  /ifth  paraifiaplt  iif  (he  jirc- 
"  (iiiihle  livnld.'"  Tt  is  made  absolutely  certain  thai,  all  ntlur 
things  were  excluded.  After  naming  the  findings  of  .said 
Tribunal  at  Paris,  as  claims  that  were  referred  to  the  con 
veiition,  they  only  admit   such  additional   claims  as  aio 

40 specified  in  tht-  fifth  i)aragrapli  of  the  preamble.  Now.  it 
is  a  common  canon  of  construction  that  if  anytliinj; 
specific  is  named,  it  excludes  everything  else;  that  if  a 
specific  inclusion  is  put  in  it  is  exclusive  of  eveiylliing 
else.  So  that  in  order  to  get  in  anything  additional  it  lie 
comes  necessary  tos[)ecify  the  additional  claims,  and  your 
Honors  will  see  clearly,  therefore,  that  the  costs  in  tlio 
"  Bay  ward  ''  case  w;M-e  not  within  the  general  specific  in- 
clusion embraced  in  the  findings  of  the  Paris  Tri()uiial.  he 
cause  they  were  excluded  from  the  consideration   of  tiiat 

50 arbitration,  and  excluded,  as  f  think  I  have  demonstrated, 
on  the  objection  of  the  United  States;  that  the  inclusion 
of  arything  else  is  carefully  limited  to  additional  claiiiis, 
carefully  listed,  and  so  both  governments  carefully  e.x 
eluded  everything  else  as  to  which  there  were  not  findinga 
of  fact  in  the  Scliedule  of  the  British  case  from  pages 
1-60  inclusive,  within  the  covers  of  which  you  do  not  liud 
costs  in  the  "Sayward  "  case. 

Were  they  in  the    additional   claims  specified  in  the 
fifth  paragraph  of  the  preambled  The  fifth  paragraj)h  names 

60 as  the  only  claims  outside  of  the  Paris  findings  that  can 
be  considered  by  the  convention,  the  "  Winnifred,"  the 
"  Henrietta " and  the  "Oscar  and  Hattie,"  and  this  list- 
ing of  them  in  the  convention  itself,  excludes  the  case  of 
the  "Sayward  "  costs  as  an  additional  claim,  even  if  they 
appear  in  an  appendix,  as,  of  course,  the  provisions  of  the 


1'  Tl 


1019 

(Mr.  Dickinson's  Closing  Argument.) 

convention  control  and  oliminute  anything  attached  in  a 
Bchednlfl  that  is  ropn^nant. 

Ev»>n  if  the  matter  were  not  ahsolutely  concluded  on 
the  ({uestion  of  jurisdiction,  the  counsel  of  the  United 
States  are  unaware  of  any  principle  hy  which  the  legal 
expenses  of  a  defeated  party,  incurred  in  a  case  wherein 
he  has  vainly  invoked  the  wrong  judicial  jurisdiction  for 
10 relief,  can  ho  allowed  him.  The  rule  is  otherwise  if  the 
party  has  appealed  to  the  proper  jurisdiction  by  appeal,  as 
we  have  seen. 

In  the  schedule  of  tlm  British  case  there  is  $1,800 
charged  as  Cooper's  own  legal  expenses,  hut  that  is  not 
this  claim. 

We  submit  further  that  no  rec^lamation  can  bo  made 
against  a  government  upon  judicial  acts  in  its  courts, 
unless  the  proceeding  complained  of  has  been  sanctioned 
by  the  court  of  last  r»*sort  in  the  judicial  system  of  the 
20  country  complained  of,  or  there  is  a  legal  excuse  for  the 
failure  to  appeal. 

It  is  not  true,  as  intimated  in  the  British  argument, 
that  the  application  for  a  writ  of  prohiltition  was  a  con- 
sent proceeding. 

As  showu  in  my  brief,  it  was  vigorously  contested  by 
the  United  States,  and  the  note  rerlxile  of  the  Secretary 
of  State,  referred  to  in  the  British  argument,  recognizes  the 
fact  that  regular  appeal  proceedings  had  been  taken  in  the 
"Say ward"  case  by  Cn  per,  and,  of  course,  has  no  lefer- 
3oence  to  the  applicatif>n  tor  a  writ  of  prohibition  of  years 
later.  The  costs  in  the  "Say ward  "  case  in  the  litigation 
so  "appealed"  might,  on  amicable  adjustment,  be  in- 
cluded in  the  convention,  and  they  wore. 

Finally,  the  owner  of  the  "Say ward."  the  clain)ant,  as 
has  been  seen,  is  a  civil  citizen  of  the  United  States. 
Thomas  H.  Cooper  is  the  sole  owner  of  the  "  Say  ward," 
and  is  the  sole  claimant  within  the  findings  of  fact  of  the 
Paris  Tribunal.  Hence  this  claim  takes  the  title  of 
"  '  Say  ward  '  Co.sts,"  It  further  appears  conclusively  that 
40  Cooper  appeared  in  the  United  States  Court  as  a  claim- 
ant on  his  ap^)eal,  which  he  did  not  prosecute. 

The  Commissioner  on  the  part  of  the  United  States:  —If 
I  remember  correctly.  Cooper  was  the  only  party  in  that 
case  in  the  Supreme  Court. 

Mr.  Dickinson:— Oh,  yes.  He  appealed  from  the  Alaska 
courts  and  then  applied  for  a  writ  of  prohibition  as  owner, 
and  he  presented  a  sworn  claim  at  Paris  as  owner. 

The  Commissi(mer  on  the  part  of   the  United  States: — 
He  was  the  only  party  in  litigation. 
50     Mr.  Dickinson:— The  only  party. 

The  Commissioner  on  the  pait  of  the  United  States: — 
At  page  153,  line  4,  by  the  word  "  costs,"  in  the  "  Say- 
ward  "  costs,  you  mean  the  expenses  incurred  at  Sitka? 

Mr.  Dickinson:  — In  the  schedule  to  the  British  case  hd 
charges  his  legal  expenses  in  his  litigation  at  Sitka  and  'he 
appeal. 

The  Commissioner  on  the  part  of  the  United  States:-- 
Does  he  also  charge  the  costs  of  taking  out  the  appeal? 

Mr.  Dickinson:— He  charges  additional  legal  expenses, 
60  and  he  did  appeal. 

Mr.  Peters:— Do  you  allege  that  t,here  is  anywhere  in 
any  schedule  any  claim  of  Cooper's— any  charge  whatever 
for  anything  connected  with  the  appeal  to  the  United 
States  Supreme  Court? 

Mr.  Dickinson: — I  do  not  know;  he  does  not  specify. 


1020 

(Ml.  i)irkinson's  Closing  ArKuinoiit.) 

Mr.  Peters:— Tliere  was   no  charge  whatever  in  any  of 
those  for  any  appeal  to  tlie  Supreme  Court. 

Mr.  Dickinson:— Tliere  are  certainly  charges  hero  whiili 
might  be  in  connecti<in  with  tlie  appeal. 

Mr.  Peters:- That  is  not  in  connection  with  theappcil 
to  the  Supreme  Court —tlia*  is,  in  (leleiKling  the  original 
suit  at  Sitka. 
jQ  Mr.  Dickinson: —In  the  schedule  in  the  British  case  it  is 
set  out  this  way:  "Statement  of  the  legal  and  personal 
expenses  incurred  at  Sitka  (iiiit  t'/scirliere  l)y  reason  of  thr 
Sei/,ur.>  ol  the  *  \V.  P.  Sayward,'  the  arrest,  and  (letentinn 
of  her  Master  and  Mate  and  the  claims  arising  thercfnuu  " 
(Vol.  -i,  p.  IT).')).  We  assume  that  he  charged  for  all  iiis 
legal  ex p«uises.  and  inasnnich  as  he  iipjiealed.  v,  <  should 
say  that  he  charged  for  his  expenses  of  appeal. 


20 


ADOITIONAIi  Cr,AlMS. 


Now  as  to  the  "  Additional  Clainis."  I  have  treated  tiieni 
quite  fully  in  my  hrief  at  page  1511,  and  following:  I  suit 
niit  that  an  act  of  Her  Majesty's  cruiser  is  presumed  to  he 
the  act  of  the  sovereign  on  t!'t>  high  seas  or  in  fonii;!! 
waters  Kverythiiig  done  by  the  conmiander  of  a  coin 
missioned  shi|)  of  war  is  presumed  to  he  by  direct  autlior- 
ity  and  express  order  of  the  State.  Tiie  act  may  be  dis- 
avowed by  tlie  (Tovernment,  but  until  it  is  disavowed  it  is 
conclusively  the  act  of  the  sovereign.     This  a|)plies  to  the 

30caseof  th»>  "  Winnified."  Hear  in  mind,  your  Honors,  that 
the  additional  claims  are  not  in  any  respect  gov(>riied  hv 
the  lindings  of  fact  at  I'aris.  It  is  expressly  provided  liy 
the  terms  of  this  conv(>ntion  that  nothing  lomid  in  die 
findings  at  I'aris  shall  bind  us  on  these  claims,  althciiuh 
that  was  attempted  in  some  preliminary  but  reje(  liii 
drafts  of  the  convtMitioii.  We  lind  in  the  .")th  preatn- 
ble,  which  is  made  a  part  of  Article  I.,  that 
the  United  States  "admits  no  liability"  as  ii> 
these    .■uMitional     claims.       The}'     are     foreign     to     tlio 

40tiii(iiiigs  of  fact  in  the  I'aris  /Vward  as  not  being  ijisfoie 
that  Tribunal.  We  submit,  therefore,  that  Her  Majesty's 
naval  coiiimander  in  the  I'acitic  consented  to  the  taking 
of  this  ship,  the  "  Wiiiiiifred."  after  she  was  broiiglit  into 
Anu'iican  waters.  That  consent  was  an  act  of  the  sover 
eigiity  of  Oreat  Mrit.iin  and  that  nation  is  estopped  from 
setting  up  a  claim  in  respect  of  the  taking  ami 
proseiiition  of  the  vessel  thereof.  Kurtlierniore.  in  the 
"  Winnifred's '"  case  the  claimants  stooii  upon  their  de 
fense  on  tlu'  merits,  and  did  not  raise  the  (piestioii  of  tiio 

SOaulhority  or  jurisdiction  of  the  (iovernnient  of  theriiited 
States  to  seize  her,  Jind  we  submit  that  no  International 
Court  can  revise  Hie  judgment  of  the  court  oC  a  iialioii, 
unless  that  judgment  be  iiy  ilie  court  of  last  resort  in  its 
jndici.il  system.  This  rule  is  established  as  one  of  iiiii 
ver.sal  apidication,  to  which  there  can  be  no  exception,  un- 
less an  appeal  was  prevented  by  the  seizing  nation,  as 
heretofore  shown  in  this  argument.  It  is  not  coiileiidnl 
here  that  tlie  owners  were  jirevented  from  taking  an  ap 
peal   which  wonld    make  the  only  exception  to  the  rule, 

60  that  in  order  I  )  recover  damages  lor  discrimination  or  in 
justice  in  the  courts  of  a  country,  the  claimant  niusi 
show  that  he  has  appealed  to  the  court  of  last  resmt. 
This  is  the  man  who,  although  l-.e  claimed  to  have  gone 
into  the  harlior  in  distress,  was  ;i(!tually  found  seiiling  in 
violation  of  the  Act  of  (Hreat  Britain  for  the  enforceiiieiil 


(Mr.  Dickinson's  Closnig  Argnniont.) 

tif  tlu'  modus  rirciiili,  and  also  in  violation  of  tiio  laws  of 
the  ruiti'd  Stat'";-..  It  is  ratiier  strange  that  if  ho  went 
tiu'ie  in  (listrt'ss  he  stjonld  |)ioiti'(1  to  lower  his  hoats  and 
seal.  1  s'.iitniit,  therefore,  thai  there  is  an  old  rnle  also 
tliat  her.rs  on  this  qnestion — that  a  man  cannot  go  into 
any  coii' t  and  iccover  when  he  nnist  test  his  case  on  facts 
showing  that  his  coiidnct  was  against  pnhlic  policy.  II  is 
loadniitted  on  all  hands  that  at  tlie  time  he  was  seized  he 
was  taking  seals;  and  as  a  matter  of  fact  the  dead  seals 
taken  wcie  finmd  lying  on  the  decks  of  his  ship,  taken, 
if  the  Conrt  please,  in  violation  of  the  laws  and  treaties  of 
both  nations. 


rovided  !iv 


■)" 


The  "  Oscai'  a. id  Hattie  "  case  has  heen  presented  to  yunr 
Honors  with  great  fulln<ss.  The  revers;d  of  the  judgment 
in  the  conrts  of  Hritish  C'ohiniltia  hy  the  conrt  of  last 
joi'*!^<>rt  in  the  Dominion  of  Canada  is  the  proposition  on 
which  the  United  St-ues  is  so\ight  to  he  held  responsiide.  I 
have  already  contended  that  the  ollicers  of  the  I'nited 
States  cr\iiser  had  no  discretion  hut  to  seize  the  ship 
wlieii  they  found  on  Itoard  iiriiiiti  fdcii'  evidence  of  the 
vii)lation  of  the  British  and  American  Acts  of  l^'.H,  and 
the  iiiihIiis  rimxli. 

In  (Jreat  Britain  a  treaty  is  not  the  law  of  the  land  ex- 
cept it  he  fortihed  hy  an  Act  of  I'arliauienI;  hut  in  the 
I'nited  States  a  treaty  is  tlu?  law.  The  Act  of  isjtl  in 
■oGreut  Britain  provides  that  if  a  sealing  vessel  was  found 
in  t'lie  sea  with  seals  and  implements  on  hoard,  that  made 
a  pfiiini /iici\'  case  for  seizure.  I  have  said  toyonr  Honors 
I  woidd  show  that  the  I'liited  States'  instructions  of  lMt2 
to  this  elTect  were  furnished  to  her  Majesty's tioviMinnent. 
I  am  now  referring  to  a  matter  that  youi-  Honor  the  Com- 
missioner on  the  part  of  the  I'nited  States  has  iiupiire*! 
about.  At  the  time  the  case  of  th(>  "Oscar  and  llattie' 
was  being  argued  by  my  associate  on  the  evidence,  your 
Honor  asked  us  if  the  naval  instriii'tions  to  tlu' comman(U>r 
of  the  I'nited  States  vessel  had  been  connnunicated  to 
(ireat  Britain^ 

The  Connnissioner  on  the  pait  of  the  I'nited  States:  —I 
was  anxious  to  know  whether  they  were  connnunicated 
to  Great  Britain, 

Mr.  Dickinson:  — Ves;  it  will  he  found  in  Foreign  Rela- 
tions of  the  I'nited  States  fertile  fiscal  year  ending  June, 
iSiCJ,  page  »i;{s  and  following. 

Mr.  Feters: — That  book  \vas  certainly  not  put  in  evi- 
dence. 

Mr.  Dickinson: — This  i '.lirespondonce  was  all  furnished 
to  von. 

Mr.  Peters:-Not  that. 

Mr   Dickinson: -Oh,  yes;  it  was. 

Mr.  l'eters:  —  VV((  have  no  correspondence  showing  that 
notice  was  given  to  (ireat  Britain.  Wo  had  the  insti-uc- 
lions  but  we  certainly  ha<l  not  these  letters  to  Sir  .Inlian 
I'auncei'ote. 

Mr.  Dickinson:     If  my  learned   friend  (d)jects,   I  might 
ask  him  why  he  has  put  in  such  a  lot  of  matter  in  his  aigu 
Mient  that  we  had   not  notice  of.      There  are  those  drafts 
of  till'   convention,    for   instance,  and  the  (iresham  cor- 
lespondence. 

Mr.  Beters:  This  appears  to  be  a  regular  publication, 
.iiid  I  have  no  objection  to  my  learned  fiiend  reading  it. 

Mr.  Dickinson:  -The  following  is  the  cnrrespoiidence  in 


|4i  > 


(Mv.  Diikinson's  Closing  Aiguriient.) 

legaid  to  the  matter,   which   I   wish  to  submit  to  your 
Honors: 


'm 


lit'   h!" 


20 


30 


!  /  'Vi 


Liiril  Siilisbiiry  to  Sir  Julinii  Puiiiic/iili: 
"  (Telegram). 

"  Apihl  '2;Ji),  IKirj. 

"  The   Ooveruor-General  of  Canada  wos   yesterday   iustructcil  li\ 

10  "  telegraph  to  imblish  an  anuonncemout  in  the  Ofticial  Gaz'tti>  tlmt 

"  the  iiKiilim  rirviiili  of  last  year  wouUl  bo  continued.     His  Exculloiu  y 

"  was  also  reiinested  to  inform  the colloetors  of  eustoms  iit  thevmidus 

"  British  Columbian  ports  of  the  continuation  of  the  inuiliin  riivn,!,, 

"  The  British  Commander-in-Chief  in  the  Pacific  Ocean  has  been  in 
"  structed  by  the  admiralty  to  take  the  necessary  action. 

"  1  have  to  request  you  to  convey  the  foregoing  information  to  tin' 
"  United  States  Government,  and  to  state  that  Her  Majesty's  (Jovorii- 
"  ment  can  have  no  objection  to  their  taking  similar  stejjs. 

"  The  necessary  order  in  council  will  be  issued  as  soon  us  ]ioHsililc 
"  after  the  Queen's  return  to  England.  Her  Majesty  is  expected  tn 
"  arrive  about  the  3d  cf  May. 

Mr.  Blaine  In  Sir  Jnlinn  Pnunce/nli: 

"  Depaktment  of  State, 
"  Washinoton,  April  '28th,  IH'Vl 
"  Sir, — I  have  the  honor  to  transmit  to  you  herewith  copies  of  the 
'  instructions  which  have  been  issued   by  the  Secretary  of  the  Niivv 
in  pursuance  of  the  Convention  of  April  18,   1892,   relative  to  tliV 
■,!:r„Ois  vireiiili  respecting  Behring  Sea. 

"  This  Government  would  be  pleased  to  receive  in  exchange  copies 
of  such  instructions  as  may  be  issued  by  Her  Britannic  Majcstvs 
Government  on  the  same  subject. 

"  I  have,  etc., 

James  Q.  Blaine.' 

Mr.  Tritcif  to  Commnnilcr  Kraiis. 

"  Navy  Depabtment, 
"  Washinoton,  April  '2.'),  IKllii, 
"  Sir,— In  pursuance  of  a  convention  between  the  United  States  ainl 
"  Great  Britain,  dated  April  18th,  1892,  for  a  iiuhIuk  riremli  respcctiii;; 
"  the  taking  of  seal  in  Behring  Sea,  you  will  cause  the  vessels  uiiilir 
"  your  command  to  warn  all  American  and  British  vessels  they  unit 
"  outside  of  Behring  Sea  not  to  enter  the  prohibited  waters  of  tliiit  mh 
"  for  the  pur)>oseof  sealing,  and  you  will  deposit  on  board  of  each  vessel 
40  "  so  warned  a  copy  of  the  convention,  of  the  President's  prociaiimliuM, 
"  dated  l'el)ruary  15th,  1892,  of  the  British  seal  tishery  (Behring' Sen  1 
"  act  1891,  and  of  these  instructions.     Entry  of  notice  and  waruiun  will 
"  be  made  upon  the  legister  of  all  vessels  notified. 

"  Any  vessel  found  to  be,  orto  have  been,  employed  in  sealing  wil  Inn 
"  the  prohibited  wntors  of  Behring  Sea,  whether  with  or  witlicmt 
"  warning,  and  any  vessel  found  tliereiu,  whether  warned  or  imt, 
"  having  on  board  implements  for  taking  seal  or  seal  skins  or  lioilies 
"  of  seals  will  be  seized. 

"  The  prohibited  waters  include  that  i)art  of  Behring  Sea  east  of 
"  the  line  of  demarcation  marked  upon  Hydrograi)liic  ()Hi<'o  elunt 
"  No.  ti8. 
50  "  Tlic  commanding  offlcer  of  th.'  vessel  making  tlie  seizure  will,  at 
"  the  time  thereof,  draw  up  a  dclaratiou  in  writing,  stating  the  eoii- 
"  dition  of  tlie  seized  vessel,  1  iaire  and  date  of  seizure,  giving  hititiide 
'•  and  longitude  and  circumstances  showing  guilt.  The  seized  vessel 
"  will  1)0  brought  or  sent  in  charge  of  a  sutlicieut  force  to  insure  <le 
'•  livery,  together  with  witnesses  and  proofs  and  the  declaration  of  tlie 
"  offloer  making  the  seizure  if  American,  to  Sitka,  and  there  iK'liveicil 
"  to  the  oflicer  of  the  United  States  district  court  at  that  place,  iiinl. 
"  if  Britisli  to  Unalaska,  and  there  delivered  to  the  senior  British  naval 
"  orticer  in  Behring  Sea.  The  master  of  the  seized  vessel,  iier  mate  nr 
"  boatswain,  and  such  ))ortion  of  lier  crew  as  can  conveniently  be  I'linieil 
"  therein,  will  be  sent  as  prisoners  with  the  vessel  to  sufl'er  tiic  iieiiulty 
.(3o  "  of  the  law. 

"  A  signed  and  certified  list  of  the  papers  of  the  seized  vesscU  will  lie 
"  delivered  to  the  master  thereof,  and  a  duplicate  coi)y  will  be  traus- 
"  mitted  with  the  declaration. 

"  Verv  respectfully, 

"B.  F.  TiiACi, 
"  Secretary  of  the  Navv." 


■  "I 


1023 


(Mr.  Dickinson's  Closing  Argument.) 

(Sir  Julian   PdUiiCi/ofr  In   Mr.    Bhiine. 

"  BiuTisH  Legation, 
"  Washinciton,  May  11,  1892. 
"  Sir, — In  the  memorandum  which  you  placed  in  my  bauds  ou  the 
"  '23rd  ultimo,  respecting  the  instructions  to  bo  issued  to  uavnl  officers 
"  charged  with  the  enforcement  of  the  mmlns  rimidi  in  Behring  Hea, 
"  under  the  convention  of  the  18th  ultimo,  it  was  suggested  that  seal- 
"  ing  vessels  found  in  Behring  Sea  in  contravention  of  the  convention 
"  shouhl  be  seized  without  the  previous  warning  given  last  year,  owing 
JO  "  to  the  late  date  at  which  the  iiunliix  tirmili  of  1801  was  agreed  to. 
"  I  transmitted  the  memorandum  to  the  Manpiiii  of  Salisbury,  and 
"  I  have  now  received  his  lordship'-s  observations  thereon. 

"  Lord  Salisl)urv  points  out  that  tlie  act  of  Parliament  referred  to  iu 
"  the  memoruudum  throws  ou  the  owner  and  master  of  any  ship  found 
"  in  Behriug's  Sea  with  the  enuipmeut  specified  tlie  duty  of  proving 
"  innocent  intent.  The  British  instructions  of  last  year  did  not  re- 
"  (piire  proof  of  previous  warning  l)efore  seizure,  but  authorized  the 
"  naval  ofHcers  to  let  a  vessel  go  with  warning  if  they  thought  the 
'•  master  was  acting  in  ignorance  of  the  prohibition  or  believed  his 
"  ship  to  be  outside  the  line  of  demarcation. 

"  Her  Majesty's  Government  see  no  reason  for  altering  that  iustruc- 
20  "  tiou  They  will  take  steps  to  warn  the  sealing  vessels  which  cleared 
"  bef(n'e  notice  was  given  of  the  renewal  of  the  mmhis  rimnli,  and  it  is 
"  not  likely  that  many  vessels  will  be  left  unwarned.  But,  in  their 
"  opinion,  it  would  seem  desirable  that,  in  order  to  obviate  cases  of 
"  hardship  which  might  arise,  the  United  States  naval  officers  should 
"  receive  some  discretion  similar  to  that  given  in  the  British  instrnc- 
"  tions. 

"I  have,  etc., 

"Julias  Pauncefote." 

Mr.  Blaiiii'  III  Sir  JiiliciK  I'^nniofnie. 

"  Dei'ahtmicnt  of  State, 
30  "  Wa.shinoton,  May  12,  18',)2. 

•'  Sin,  —  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of 
"  vesterday  .suggesting  that  the  memorandum  which  I  placed  in  your 
"  liands  ou  the  the  2;ird  ultimo  respecting  the  instructions  to  be  issued 
•'  to  naval  officers  charged  with  the  euforcemeut  of  the  hkhIus  rin-mli 
"  iu  Behring  Sea,  under  the  conveutiou  of  the  18th  ultimo,  be  modi- 
"  tied  so  as  to  authorize  the  naval  officers  to  let  a  vessel  go  with 
"  warning  if  it  is  tlioiight  t'  t  the  master  is  acting  iu  iguoniuce  of  the 
"  jirohibition  or  believes  li  hi)!  to  bo  outside  of  the  line  of  deuiarca- 
"  tiou. 

"  In  rej)ly,  I  have  the  honor  to  inform  ymi  that  this  Government 
"  does  not  think  it  necessary  to  modify  th.  iustructions  given  to  the 
40  "  naval  officers  of  the  United  States.  If  1  vessel  is  found  in  Iti'hriug 
"  Sea  with  a  sealing  outfit,  the  only  safe  course  to  take  is  t  ompel 
"  her  to  leave  that  Sea,  and  this  can  only  be  etl'i  .tively  dcnu;  !■  taking 
'  her  out  under  convoy.  This  the  United  States  officers  are  iliiectid 
•'  to  do,  and  to  turn  such  British  vessels  over  to  the  British  naval  of- 
'■  ticer  at  Ulialaska.  1/ In'  rlniimrs  In  Inlr  Ihr  rrniiiinxihi'i'i/  iif  ri'lrimiiii/ 
"  .•ini//  rrssris,  llfii  il  ifi  his  ritjlil  In  i/n  Sft. 

"  I  have,  etc., 

"  James  (i.   Blaine." 

Sir  Jidi'iii  Pnuiiicfiili'  III  Mr.  Blaiin: 

'■  BiiiTisH  Leoatiox, 
"  Washixoton,  June  2,  1mii2. 
"  Sir, — With  reference  to  previous  correspondence  iu  rcpiid  to  the 
"  enforcement  of  the  mmlns  rlri'mli  iu  Bcliriug  Sea,  I  huvi'  :lic  honor, 
'•  in  accordance  with  directions  which  1  have  received  fr<nu  tlie  Mar- 
"  cpiis  of  Salisbury,  to  transmit  to  you  herewith  coi)y  of  the  iustruc- 
"  tious  which  have  been  issued  to  commanders  of  Her  Majesty's 
"  vcshoIh  in  Behring  Sea. 

"  I  have,  etc., 

"  JiLiAN  Pauncefote." 

(IncloHure.) 
"  Iiixlriicliotis  III  N'lrnl  Offtf.ers. 
CiQ  "  Proceed  to  Behring  Sea  and  cruise  as  may  be  necessary  with  the 
'  object  of  carrying  out  order  in  council  of  May  St,  18112,  which  renews 
■provisions  of  order  iu  council  of  2'(d  June,  18i(l.  Before  entering 
■  the  Sea,  cruise  oft' the  p"*"*  "U'^  ^'i""  **"''''  pli»<'<'s  "nd  |)orts  of  en- 
"  trance  to  Sea  as  you  think  best,  in  order  to  iiitt  rcept  sealing  vessels, 
•  and  send  on  board  copy  of  convention  and  a  written  order  informing 
'  them  you  are  instructed  that,  if  found  hunting  seals    or   preparing 


50 


T|T7! 


10 


l(»L>-i 


(Mr.  Dickinson's  Closing  Argument.) 

to  ilo  so  iu  Behi-in);  Sea,  they  will  be  seized.  Use  utmost  eudeavovH 
'  to  carry  out  this  duty.  After  currying  out  above  proceed  into  tlic 
'  Sea  and  cruise  there,  as  uecessnrv  to  enforce  convention,  Heizin^, 
'  whether  warned  or  cot,  any  vessels  fouud  offending.  British  vesHcl'. 
'  should   have   sealing  equipment  confiscated,    and.   after  recording 

name  of  the  master  and  vessel,  send  ship  to  Victoria,  B.  C,  to  rc- 
'  port  to  (Collector  of  Customs.  American  vessels  should  be  turned 
'  over  to  nearest  Americun  authority,  with  necessary  proof  of  offence, 
'  etc.  (^o-operate  cordially  with  American  cruisers  as  much  iis 
'  possible  iu  arranging  above  duty."' 

The  "  Pathfindkk  "  Claim  No.  21. 


This  vessel  was  found  in  Neah  Bay,  in  waters  within 
the  exclusive  jurisdiction  of  the  United  States;  she  wa- 
boaided  by  the  ofticeis  of  customs,  who  had  l)een  advised 
that  she  had  escaped  from  a  previous  seizure  that  had  hei'ii 
made  nnder  the  direction  of  the  Treasnry  Department  Un- 
alleged  violation  of  the  laws  of  the  United  States. 
20  The  revenue  cuiler  without  delay  towed  her  to  tlie 
nearest  telegraph  station,  at  Port  Townsend.  a  six  houi's 
run,  and  at  once  comnmnicated  hy  telegraph  with  liic 
Treasury  Depaitment  at  Washington,  whereupon  her  re- 
lease was  immediately  ordered  hy  telegraph.  She  was 
detained  for  a  part  of  one  day,  and  the  utmost  p()ssihl(> 
expedition  was  used  in  obtaining  authoritative  instructions 
in  regaid  to  iier  case 

For  this  act  (ireat  Britain  brings  a  claim  for  "  seizure" 
and  for  damages  for  future  catch. 
30  It  need  not  i»e  argued  that  the  general  rule  is  that  all 
foreign  vessels,  and  for  this  purpose  even  ships  of  war,  are 
liable  to  visitation  fiom  customs  and  quarantine  ofticeis 
of  the  nation  whose  jurisdiction  they  enter  (see  Bai<ei"s 
Halleck,  Vol.  T.,  p.  217,  notes  5  and  (I;  and  see  Hall,  pp. 
litr)-2O(l-201t). 

The  United  States  have  statutes,  called  "lioveiin}> 
acts"  similar  to  those  of  Great  Britain,  and  "ofticeis  <<( 
revenue  cutters  are  authorized  to  search,  examine  and  re- 
main on  board  all  incoming  vessels,  domestic  or  foreij;!!, 
40  when  within  4  leagues,  or  12  miles,  of  the  coast"  (K'ev. 
Stat.  r.  S.,  Sees.,  27()(>-2Mt;7-2S«i,S;  and  Sec.  it.  (Jeo.  11., 
Chaj>.  .$.■)).  The  existing  Englisii  law  was  enacted  in  !7;>."i; 
the  American  act  now  in  force  in  17l»9. 

The  law  as  to  a  vessel,  that  has  put  into  a  foreign  pui  t 
in  distress,  is  perfectly  well  settled.  The  privilege  of  smii 
vessel,  by  the  comity  of  nations,  which  in  this  respect  has 
become  international  law,  is  admitted  to  the  fullest  extent; 
but  the  exemption  does  not  go  to  the  length  of  exchidnig 
reasonable  quarantine  or  customs  inspections.  The  df- 
5otentions  for  customs  inspection  may  be  for  a  sufticient 
time  to  ascei'tain  the  character  of  the  ship,  and,  in  case 
the  distress  privilege  is  claimed,  by  protest  or  otherwise, 
the  authorities  are  entitled  to  be  reasonably  satisfied  dl 
the  good  faith  of  such  claim.  The  privilege  itself,  so  far 
as  property  is  concerned,  goes  only  to  the  exemption  of 
the  ship  from  the  execution  of  the  laws  of  the  jurisdic 
tion  which,  but  for  the  privilege,  miglit  work  forfeiture 
of  ship  or  cargo. 

There  is   no  doubt  whatever,  either,  that  even  if   the 
60 privilege  be  claimed,  but  the  good  faith  of  the  claim  is 
fairly  doubted,  that  very  question  may  be  brought  before 
the  com  ts  of  the  nation  of  the  port  for  trial. 

The  burden  of  proving  the  necessity  or  distress,  which 
brought  the  ship  in,  is  upon  the  ship  ("The  Diana,"  7 
Wall.,  3r)4,  and  see  "The  Copenhagen,"  I.  C.  Rob.,  2sitl 


1025 


(Mr.  Dickinson's  Closing  Argument.) 

In  any  case,  however,  the  privilege  must  he^asseited 
and  claimed  j>romptly  from  the  authorities  of  the  juris- 
diction in  person,  or  l>y  a  consul  of  the  ship's  nation, 
otiierwise  it  does  not  avail. 

In  this  case,  as  the  Conmiissioners  will  find  on  reference 
to  the  Record,  the  claim  now  set  up  on  the  part  of  this 
vessel  that  she  was  in  Neah  Bay  to  "fix  her  rudder,"  or 
10  otherwise  from  distress,  was  never  made  to  the  visiting 
officers  at  any  time,  or  brought  to  their  attention  formally 
or  informally! 

On  the  long  Pacific  coast  of  the  United  States,  which 
is  especially  exposed  at  all  times  to  offenses  against  the 
revenue  laws,  or,  for  that  matter,  on  an\'  other  of  their 
coasts  washed  by  the  high  seas,  the  proper  officers  of  tiio 
customs  service  may  visit  a  ship,  and,  upon  reasonable 
suspicion  as  to  its  chara'^ter,  detain  it  for  the  necessary 
time  to  ask  for  instructions  from  their  Government. 
20  The  right  and  the  practice  is  one  of  self-protection,  and 
not  one  that  any  nation  can  surrender.  The  distiess 
theoiy  and  the  bill  for  damages  originated  with  Munsie, 
like  many  other  things,  but,  all  unwittingly,  lie  did  not 
fit  his  proofs  to  tiie  law  requiring  that  the  distress  priv- 
ilege should  be  promjitly  claimed  in  order  to  form  even  a 
pretense  foi  his  good  hope  of  avails  from  a  damage  claim 
against  our  Government. 

The  Commissioner  on  tlie  part  of  ihe  United  States:  — 
Yon  put  the  case,  Mr.  Dickinscm,  of  a  seizure  in  territor- 
30ial  waters.  It  would  seem  to  he  one  of  those  cases  occur- 
ring very  frecpiently  along  the  coast,  in  which  the  British 
Government  would  naturally  say  that  the  vessel  had 
ample  remedy  in  the  Courts  of  thf  United  States,  and 
therefore  wouM  not  take  cognizance  of  it;  but  does  not 
the  case  take  on  a  little  different  aspect  in  view  of  the 
fact  that  it  has  some  connection  with  what  previously 
transpired? 

Mr.  Dickinson: -What  did  the  Collector  of  Customs 
know  about  that? 
40  The  Commissioner  on  the  part  of  the  United  States: — 
I  do  not  know;  I  am  asking  the  (luestion.  These  investi- 
gations and  these  seizures  are  occurring  frequently,  and 
no  question  is  made  about  them.  Assuming  it  to  be  an 
ordinary  seizure,  giving  it  the  aspect  which  the  British 
Government  gives  it,  hut  standing  alone  disconnected 
from  what  had  previously  occurred,  it  (-learly  was  an 
ordinary  case,  and  the  British  Government  might  well 
say  she  had  ample  remedy  in  our  Court;  but  the  question 
in  my  mind  is,  whether  it  does  not  take  on  a  somewhat 
Sodirteient  aspect  in  consequence  of  its  connection  with 
what  previously  transpired. 

Mr.  Dickinson:  —  !  will  answer  that  suggestion,  your 
Honor,  and  show,  I  think,  that  she  could  have  had  no 
remedy  in  any  Court  under  any  circumstances.  In  the  first 
place  no  cutter  seized  her.  but  the  Collector  of  Customs, 
without  knowing,  as  appears  by  this  Record,  anything 
about  what  the  previous  seizure  was  for,  took  her  over  to 
the  nearest  telegraph  station  to  get  instructions  from  his 
ibief  as  to  whether  he  ought  to  hold  her;  and  when  the 
^liiited  States  Government  acted,  it  did  not  authorize  or 
latify  the  act  of  even  detaining  her,  and  the  action  it  did 
lake  was  to  piomptly  telegraph  ordering  her  release. 
He  had  a  rignt  to  go  aboard  of  her  and  inspect  her. 
Hid  he  have  the  right  to  ascertain  her  character  and 
whether  his  Government  wanted  her?  That  questiim 
will  have  to  be  answered,  yes,  in  either  country.     He  was 


(I 


W: 


loar. 


^y 


I         !    '.!' 


(Mr.  Dickinson's  Closing  Argument.) 

away  from  a  telegrapli  station;  it  was  in  Neah  Bay; 
instead  of  sending  a  ship  to  find  out  whether  he  ought  to 
detain  her,  as  would  have  heen  allowable,  he  took  th(> 
shi|)  right  along  with  him  for  the  six  hours  run,  not  for 
the  puipose  of  injuring  hei',  but  for  getting  the  quickest 
pos8il)le  information  for  her  l)enefit,  as  to  whether  he 
should  release  her;  and  when  the  United  States  Goverii- 

loment  acted,  it  was  to  promptl)'  release  her.  The  (jucs- 
tion  turns  upon  this,  whether  the  Collector  of  Custotns— 
not  the  same  revenue  officer  who  knew  what  she  had  Ijeen 
seized  for  before— on  learning  that  there  was  sometliin;,' 
suspicious  about  a  vessel,  cannot  board  her,  and  detain  her, 
until  he  gets  instructions  from  his  Government. 

Tiie  Commissioner,  on  the  part  of  the  United  States:— 
He  did  more  than  detain  her. 

Mr.  Dickinson: — But  what  for?  He  took  her  to  tlie 
nearest  port  to  send  his  telegram.     He  was  his  own  nies- 

20 sage-bearer  to  his  Government.  "Shall  I  hold  this 
ve.sselil"  Had  he  better  seize  her,  wait  and  delay  ii(>r 
there,  and  send  a  small  boat  for  instructions?  Which  was 
more  for  the  benefit  of  the  vessel  seized?  His  duty  was 
to  get  instructions  from  his  Government,  it  will  be  con- 
ceded. Sliould  he  have  iield  her  right  where  he  seizeil 
her  and  wait  tlieie  four,  five,  or  six  days  until  he  iiad 
sent  a  small  boat?  Or  should  he,  in  the  most  expeditiou.s 
way  possible,  get  information  from  his  Government? 
When    his   Government  acted  as  it  did,  he  released  her 

30 promptly.  Should  the  Collector  be  responsible,  or  iiis 
Government  for  bin),  when  he  did  the  most  expeditious 
thing  possible  -  not  merely  reasonable  diligence  — tn  get 
the  information  he  was  entitled  to,  and  obtain  authority 
from  his  Governments  It  was  not  for  him  to  pass  on  the 
question  of  law,  or  the  question  of  what  his  Governmeiit 
would  or  could  do;  it  was  a  question  for  his  Goverii- 
mrnt:  he  had  no  discretion.  The  Government  could  not 
be  held  any  way  for  the  act  of  a  civil  official,  promptly 
disavowed. 

40 

Now,  may  it  please  your  Honors,  the  "  Black  Diamond  " 
and  "James  Gaudin  "  claims  I  have  discussed  as  fully  as 
I  care  to. 

Asamatter  of  law,  as  tothe  "Carolena,"  "  Onvviird  "and 
"Thornton,"  we  submit  that  they  are  cases  carrying  ail 
the  i-esults  of  total  loss,  because  the  owners  tieated  tlieiii 
as  in  a  case  of  total  loss,  and  would  not  have  accepted  any 
return.  Here  is  the  evidence.  They  were  seized  in  isso, 
-Qbear  in  mind,  and  the  s  ew  sealing  season  for  which  tl.ey 
claimeil  did  not  commence  until  the  next  year  in  July. 
It  ajtpears  distinctly  that  the  Connnissioner  of  B'isheries 
in  Canada,  and  before  that,  the  Government  of  Her 
Majesty,  had  been  advised  by  the  United  States  that  tiio 
vessels  would  be  returned.  I  show  this  by  the  letter  of 
John  Tilton,  Deputy  Minister  of  Fisheries,  to  Mr.  Munsie. 
found  at  page  iW~  of  the  Record,  commencing  at  line  h>: 

"  Ottawa,  July,  26,  IHK7. 

"  Dear  Sii«: — I  have  to  acknowledge  receipt  of  your  letter  of  tlio 

gQ  "  19th  instant,  aildresseJ  to  the  Minister  of  Marine  anil  FiHhi'ries,  in 

"  which  you   state:    'Wo  have  not   rt  neived  a  single  word  from  the 

"  '  United  States  Government  ai)out  the  release  of  the  vesselN,'  ro- 

"  f erring,  of  course,  to  those  seized  last  season. 

"  On  the  '2nd  April  I  coniniuuicatcd  to  you  the  decision  of  tho 
"  President  of  the  United  States,  in  so  far  as  releasing  the  vesseln, 
"  etc..  which  letter  you  acknowledged." 


r  • " 


1027 

(Mr.  Dickinson's  Closing  Argument.^ 

It  was  on  the  2d  of  April,  it  was  communicated  from 
Ottawa  and  it  was  acknowledged  by  Muusie. 

"  Have  you  made  any  application  for  the  surrender  of  the  vessels, 
"  or  have  you  reason  to  suppose  the  United  States  Government  would 
"  communicate  the  action  to  you  by  other  means  than  the  ordinary 
"  ofiicial  channel  ? 

"  This  department  lost  no  time  in  communicating  the  decision  in 
"  question  to  you,  with  the  expectation  that  you  would  at  once  take 
'*-'  "  steps  to  regain  possession  of  the  vessels." 

As  to  the  "Thornton,"  it  appears  that  in  Decemher, 

1886,  by  Mr.  Warren's  testimony,  he  provided  a  vessel  to 
take  the  place  of  the  "Thornton"  in  the  fleet  (Record, 
page  1158);  and  after  the  seizure  of  the  "  Thornton"  (page 
1181.  hne  20),  he  used  the  "  Mary  Taylor"  for  seaHng  on 
the  coast  and  Bering  Sea  for  the  season  of  1SS7. 

Now,  as  to  the  "Onward,"  December  30,  188(i,  it  ap- 
pears that  Charles  Spring  and  Alexander  McLean  dis- 
20s()lved  partnersbij),  and  in  that  agreement  the  "Onward" 
is  not  included  as  a  going  vesvsel,  but  "interest  in  the 
claim  against  the  United  States"  for  the  "  (inward  "  ap- 
pears. Your  Honors  will  see  that  the  parties,  as  appears 
clearly  by  the  Record,  Munsie,  Warren  and  Sf»ring,  treated 
the  vessels  as  a  total  loss,  and  their  interest  in  them  as  a 
claim  against  the  United  States  tor  thcii-  loss.  For  in- 
stance, your  Honors  will  remember,  without  any  refer- 
ence to  the  Record,  that  in  188t'),  or  early  in  the  spring  of 

1887,  Warren  said  that  it  would  not  pay  to  take  them 
30 down  to  Victoria.     That  was  the  .suggestion  then  made; 

but  we  have  them  in  1886,  not  disposed  to  ask  for  the 
vessels,  and  when  Munsie  writes  Tilton.  he  is  asking  for 
information  as  late  as  July;  and  Tilton  says:  "1  have 
advised  you  that  you  can  get  your  vessels  as  early  as 
April,  and  I  have  got  your  answer  to  the  letter,"  aud 
Munsie  has  not  asked  for  the  vessels  from  that  time  until 
Tilton  WTites  him  again.  Again,  in  Volume  5  of  the 
"American  Reprint."  at  page((o,  he  put  in  a  claim  on  the 
18th  of  October.  1886.  for  the  value  of  the  "Onward." 

40The  "Thornton"  did  the  same  thing  (see  the  same  page) 
in  October,  1886;  and  Munsie  for  the  " Carolina"  on  the 
20th  of  October  (page  ("ilt).  Now,  this  being  so,  it  is  treated 
by  the  parties  themselves  as  a  (;ase  of  capture  and  loss;  and 
it  is  immaterial  whether  the  United  States  got  into  com- 
munication with  their  people  or  not.  If  the  claimants  had 
got  into  communication,  they  would  have  straightened 
out  the  mistake  about  the  telegram;  but  it  is  immaterial 
whether  they  understood  each  other  or  not.  A  tender  back 
of  these  ships  was  legally  unnecessary,  for  a  tender  would 

50  not  have  been  accepted  They  were  always  treated  as  cases 
uf  total  loss  to  the  owners.  They  were  given  the  oppor- 
tunity to  ask  for  them  and  they  never  diil  ask,  but  treated 
them  as  claims  for  damages  and  value  as  total  losses.  I 
need  not  refer  to  the  authorities  on  this  point.  The  law 
does  not  require  a  vain  thing  or  an  unnecessary  thing.  A 
leading  authority  is  the  ca.se  of  the  Arlington  estate  in 
the  Supreme  Court  of  the  United  States,  I  do  not  remem- 
ber the  volume;  but  this  is  the  doctrine:  that  where  the  law 
requires  a  payment  of  taxes,  and  the  conditions  are  such 

fctliat  it  appears  from  the  conditions  that  a  tender  if  made 
would  not  have  been  accepted  a  tendei'  need  not  be  shown; 
in  that  case  the  United  States  had  asserted  a  confiscation 
for  treason,  but  they  also  had  a  tax  title  upon  the  property, 
and  the  question  arose  as  to  whether,  coming  back  to  the 
tax  title,  the  owners  of  the  estate  in  privity   with  the 


1028 

(Mr.  Dickinson's  Closing  Argument.) 

Lees,  when  the  law  required  the  payment  of  ta.xes,  clso 
title  would  be  t'oifeited,  were  ()l)liged  to  show  a  teiider  of 
taxes,  wlieii  it  appeared  that  the  United  States  were  in 
po^^session  at  the  time  claiming  title  on  other  grounds,  and 
thus  that  they  vvoidd  not  have  accepted  the  tender  of  taxes 
from  the  original  owners. 

'°  I  desire  now  to  i-efer  to  some  things  that  have  lidon 
omitted,  hefore  coming  to  the  scope  of  the  Convention, 
which  latter  subject  1  shall  be  very  brief  about,  as  I  have 
treated  it  so  fully  in  the  printed  argument.  1  refer 
to  the  St.  Clair  case,  15-1:  U.  ti.,  to  which  your  Honor 
called  attention  yesterday,  and  which  was  a  case  of  murder 
on  the  high  seas.  The  question  arose  as  to  whether  the 
Court  below  was  right  in  holding  in  a  criminal  case  tliat 
the  registry  was  sutticient  evidence,  in  the  absence 
of  any  proof  of  othei'  nationality  of  the  ship,  to  sustain 
the  jurisdiction  of  the  United  States;  and  heio  your 
Honors  will  see  that  the  ettect  of  the  registry  laws  was 
precisely  like  those  of  Great  Britain  in  their  terms.  Tlio 
learned  Judge  who  delivers  the  opinion.  Justice  Harlan, 
reviews  the  registiy  laws  of  the  United  States,  and  con- 
strues them  as  follows: 

"  No  vessel  shall  bo  entitled  to  be  regiHtereJ,  or,  if  registered,  to 
"  the  benefits  of  registry,  if  owneil  iu  whole  or  in  part  by  uuy  citizen 
"  of  the  United  States  who  usually  I'esides  iu  u  fonn'gu  eoiiutry, 
"  during  the  oontinuanee  of  such  residence,  unless  he  be  a  ctiusul  of 

30  "  the  United  8tat<>s,  or  an  agent  for  and  partner  in  some  house  of  trade 
"  or  eopartnershii)  consisting  of  citizens  of  the  United  States  actually 
"  carrying  on  trade  within  tlie  United  States  ;  and  that  no  vessel  sliafl 
"  be  entitled  to  bo  registered  as  a  vessel  of  tho  United  States,  or,  if 
"  registered,  to  the  benefits  of  registry,  if  owned  in  whole  or  iu  imrt 
"  by  any  person  naturalized  in  tho  United  States,  and  residing  tor 
"  more  "thau  one  year  in  the  country  from  which  he  originated,  or  fur 
"  more  than  two  years  in  any  foreign  country."     *     *    * 

"  We  are  of  opinion  that  the  court  below  (\id  not  err  in  holding  that 
"  the  certificate  of  tho  vessel's  registry,  and  its  carrying  the  American 
"  flag  was  admissible  in  evidence,  and  that  sucli  evidence  madi',  at 
"  least,  a /i/-/)(/'/ ./Wr/>  case  of  i)roper  registry  under  the  laws  of  tho 

40  "  United  States  and  of  the  nationality  of  the  vessel  and  its  owners. 
"  'The  purpose  of  a  register,'  this  court  has  said,  'is  to  declare  the 
"  nationality  of  a  vessel  engaged  iu  trade  with  foreign  nations,  and  to 
"enable  her  to  assert  that  nationality  wherever  found '  (The  "Mo- 
"  hawk,'  3  Wall.,  !>(!(),  571 1.  The  object  of  the  above  evidence  was,  no 
"  doubt  to  meet  any  (luestion  that  might  arise  as  to  tho  jurisdi<tion 
"  of  a  court  of  the"  United  States  to  punish  the  particular  ott'ense 
"  charged.  If  the  proof  was  unnecessary  for  that  purpose,  it  could  not 
"  have  i)rejudiced  the  accused.  If  necessary  it  was  jiriDin  /u'  !,■  sutli- 
"  cieut  to  establish  the  nationality  of  the  vessel.  A  vessel  registered 
"  as  a  vessel  of  the  United  States,  is,  in  many  respects,  considered  as 
"  a  portion  of  its  territory,  and  '  persons  on  board  are  protected  and 

50  "  governed  by  the  laws  of  the  country  to  which  tho  vessel  belongs." 

There  is  no  question  whatever  about  that  In  luy 
opinion  a  sailor,  ov  a  per.son  who  articles  on  an  American 
registered  ship,  bearing  the  American  flag,  should  be  con- 
clusively held  quoad  tiie  criminal  laws  to  have  enlisted  on 
an  American  ship,  'i'hat  is  a  different  case,  may  it  please 
your  Honors,  than  where  there  is  a  direct  proceeding  to 
determine  the  nationality  of  the  ship.  The  man  enlists 
on  a  ship  purporting  to  be  an  American  ship,  with  all  the 
,  insignia  of  Aujerican  nationality,  and,  of  com-se,  he  can- 
not raise  the  question  of  nationality  collaterally;  I  think 
that  it  should  not  ha  prima  facie  merely,  but  conclusively 
presumed  in  any  collateral  proceeding  that  the  ship  is 
American  on  the  certificate  of  registry  and  the  flag.  This 
is  a  question  of  criminal  jurisdiction  in  a  municipal  court. 
It  is  quite  a  ditfereiit  case,  however,  from  a  proceed- 


1! 


<;l» 


102!t 

(Mr.  Dickinson's  Closing  Argument.) 

ing  (lirectlv  raising  the  question  on  tliat  as  an  essen- 
tial issue  as  to  what  is  the  nationality  of  a  ship  in  a 
civil  proceeding  like  this.  I  refer  to  the  ca.se  in 
2  Wallace,  Jr..  which  my  friends  criticise,  to  show 
it  was  generally  considered  there ;  hut  that  case 
held  that  tlie  register  was  not  even  prima 
favi".  evidence  of  ownership.     I  have  referied  to  that  inci- 

lodentally,  hut  I  have  always  conti-nded,  as  I  said  hioadly 
in  my  hrief,  that  the  Hag  and  the  registry  must  he  held 
in  any  Court  and  everywhere  as  j)rima  facie  evidence  of 
nationality,  and  whoever  invades  the  deck  invades  it  at 
his  peril;  hut  the  question  of  owneiship  may  he  raised  in 
a  direct  proteeding,  and  necessarily,  as  nationality  follows 
ownership,  the  questicm  of  nationality  in  a  direct  proceed- 
ing against  the  ship  is  quite  a  dirt'Hrent  thing  from  per- 
mitting it  to  he  raised  collaterally  hy  a  sailor,  or  a  chart- 
erei',  or  a  consignor. 

20  Sir  C.  H.  Tiipper:  -There  is  a  recent  case  in  England 
holding  the  same  as  this  St.  Clair  case  in  the  United 
States. 

Mr.  Dickinson:— I  am  only  referring  to  criminal  cases 
to  show  the  distinction  as  to  the  effect  of  the  register. 
Criminal  cases  are  under  municipal  law,  and  the  position 
of  Great  Britain  is  jirecisely  the  same,  that  though  a  ship 
is  registered,  it  does  not  hy  any  means  follow  that  she 
is  of  the  nationality  of  the  registry,  as  hoth  the  British 
act  and  ours  provide  that  even  if  registered,  she  has  not 

30  the  privileges  of  a  British  ship,  unless  British  owned;  and 
an  American  ship  has  not  the  privileges  of  an  American 
ship,  even  if  registered  as  such,  unless  she  is  American 
owned,  and  owned  hy  naturalized  citizens  residing  in  the 
United  States. 

I  am  clearing  up  in  a  somewhat  hasty  and  disconnected 

way  several  matters  which  I  think  worthy  of  mention. 

My  learned  friend  has  referred  to  the  statement  in  our 

hrief  as  to  tiie  greater  losses   hy  citizens  of  the  United 

States   hy  seizures  in  Bering  Sea.     In   connection   with 

^°my  learned  friend's  contention  that  seizures  hy  the  United 
States  were  wanton  and  willful.  I  stated  that  tht>  United 
States  could  hardly  he  hehl  to  wan^onviess,  when  tiiey  took 
the  ships  of  our  citizens  as  well  as  the  ships  of  Great  Britain 
when  exclusive  jurisdiction  was  claimed  in  Bering  Sea; 
and  I  stated  that  the  losses  hy  the  citizens  of  the  United 
St  ites  in  this  matter  as  compared  with  those  of  British 
snhjects  were  as  a  thousand  to  one.  Whereupon  my  friends 
respond  tiiat  the  seizures  are  very  much  greater  of  British 
than  of  American  ships.     When  I  referred  to  the  losses 

5°  as  a  thousand  to  one,  1  included  hoth  seizures  and  warn- 
ings; and  I  differ  from  my  friends  here,  and  will  demon- 
strate from  their  own  hooks  that  the  seizurgs  and  warn- 
ings of  even  'lominally  American  ships  owned  by  American 
citizens  were  greater  in  Bering  Sea  than  those  of  n<iu)i- 
nally  British  ships.  1  refer,  of  course,  too,  to  the  t^xclusiou  of 
American  citizens  from  Bering  Sea;  to  the  tremendous 
losses  incurred  hy  the  preparations  made  in  issd  and  1SS7 
iu  San  Francisco  for  the  sealhig  business,  when  most  of 
our  American  citizens  oheyeU  the  law,  kept  out  of  the 

'"'Sea,  and  so  lost  their  investments.  But  on  the  matter  of 
the  actual  seizures,  to  say  nothing  of  the  immense  num- 
bers of  vessels  that  would  have  gone  into  Beiing  Sea, 
but  were  kept  out  by  obeying  the  law  on  the  side  of  the 
United  States,  tlie  actual  seizures  and  warnings,  as  shown 
hy  my  learned  friends  in  their  case  here,  show  an  excess 


II  I  I 


r-*^M' 


V      !i: 


ill 


i     t 


(Mr.  Dickinson's  Closing  Argument.) 

of  seizures  iind  warnings  of  United  States  vessols  liv 
United  States  cruisers  over  tliose  of  (J teat  Britain.  I 
refer  to  the  statenibMits  of  the  seizures,  made  hy  (irc.it 
Britain  before  the  I'aris  Tribunal,  showing  the  places  dt 
seizures  and  warnings,  V^>linne  :»  of  the  American  He|»rinl. 
ap])enilix.  commencing  with  map  fl,  and  1  find  they  arr 
schedided  for  l.s.s*;,  IHh"  and  lss!».  Of  British  ships  m 
lolhM'i.  1H87  and  1hs!>,  there  were  seized  and  warned  !)>•  ih.. 
United  States.  17;  of  United  States shi|)s  there  weie  seized 
and  warned.  '21.  The  next  lot  of  seizures  and  warnings 
of  British  ships  shown  was  4."),  and  of  United  States  sliip> 
»!2,  All  these  by  United  States  cruisers.  My  frieniU 
thought  I  was  very  nuici)  in  error,  so  I  have  looked  l)a(  k 
to  the  British  case  to  see  whether  I  was  or  not.  These 
ma|ts  were  put  in  evidence  hy  Great  Britain  at  Victoria. 

Mv  learned  friend,  Mr.  Beiqne,  iias  statc(i  that  niv 
position     at     Victoria    was,    that    these    were    natidnal 

2oclaims  of  Great  Britain.  Well,  1  am  not  aware  tliat 
I  have  changed  my  attitude;  neither  are  your  Honors 
aware  of  it.  Early  at  Victoria  I  did  think  that  tiie 
claims  should  all  be  charged  together  for  the  pm- 
po.se  of  shoitening  the  te.stimony  and  shortening  the 
time  of  the  session.  I  urged  then  that  this  fund,  when- 
ever it  was  given,  although  found  in  separate  claims  In 
the  Commissioners,  would  be  given  into  the  hands  of  Great 
Britain  to  he  distributed,  of  course.  We  pay  not  to  the 
claimants,  but  to  the  treasury  of  Great  Britain,  not  with 

Sostanding  that  your  Honors  find  specific  claims;  but  ur^ed 
in  connection  with  what  I  argued  that  inasnmch  as 
nuich  of  the  testimony  would  necessarily  apply  to  every 
case,  how  nnicli  better  it  would  be  to  open  entirely  on  ail 
the  British  testimony  and  then  let  us  put  in  our  deieiise.  I 
submit,  in  looking  back  over  the  ground,  considering  the 
difficulties  we  have  all  labored  under,  and  how  we  had  to 
mix  up  the  cases  on  this  Record  by  putting  in  a  piece  of 
evidence  hero  and  another  there,  not  in  any  consecutive 
Older,  and  then  asking  to  have  it  read  in,  "or  coiisideicd 

40  ill  at  somo  other  jdace  also,  whether  it  would  not  have  been 
better  to  have  so  done.  I  do  uot  wish  to  say  now.  I  told 
you  so,  Lut  the  difRcuties  that  did  arise  were  what  I  liad 
in  view,  and  I  never  took  any  other  position  tlian  that 
tliese  were  claims  of  individuals,  national  only  in  the  sense 
that  they  were  jiresented  by  (ireat  Britain,  but  always 
claims  of  individuals. 

My  learned  friend  says  that  on  the  Record  1  stated  that 
there  had  been  no  delay  by  tireat  Britain,  and  that  I  con- 
coded  it.     That  is  right.     It  was  not  in  that  connection, 

5<' however,  but  because  I  was  objecting  stiennously  at  the 
time  to  any  evidence  of  the  correspondence  on  any  ground. 
My  friend  offered  the  diplomatic  corrosp(mdeiicc  between 
the  two  governments  in  order  to  show,  as  he  stattnl  at  Vic- 
toria, and  states  in  his  original  brief,  what  claims  were 
to  be  presented  before  you,  instead  of  going  to  the  Con- 
vention itself,  and  going  to  the  award  and  findings  of  fact 
by  theParisTribunal.  Another  ground  vvasthathe  wanted 
to  show  that  the  United  States  had  delayed  in  some  way; 
another  ground  was  that  he  wanted  to  show  that  Great 

60  Britain  had  been  prompt.  I  objected  to  the  introduction 
of  the  correspondence  in  this  case  for  the  reason 
that  it  v\  as  not  competent  on  any  of  these  grounds.  But  he 
saiil  he  wanted  to  show  that  Great  Britain  had  not  delayed 
in  the  matter,  and  I  said,  as  he  states,  for  the  purpose  of 
that  argument  then,  that  I  was  uot  making  any  conten- 


lOI'l 


iicce  of 

'ciitivc 

isidt'iiMl 

vehci'ii 

I  told 

it  1  lia.l 

ui  that 

sense 

always 

ed  tliat 
I  con- 
nection, 
at  the 
;ronnd. 
)et\veen 
at  Vie- 
is  wt'ie 
It'  Con- 
of  fact 
vvanteil 
le  way; 
t  Great 
(Inotioii 
reason 
But  lie 
delayed 
•pose  of 
conton- 


u 


(Mr.  Dickinson's  Closing  Argumont.) 

tion  that  ftteat  Britain  had  delayed  in  the  matter.  The 
Court,  however,  ruled  against  n)e  and  a<lniitted  all  diplo- 
matic correspondence  oflfered  hy  CJreat  Britain,  in  spite  of 
my  contentions.  I  do  now  contend  that,  afti-r  its  admis- 
sion, overruling  me,  that  on  none  of  the  grounds  on  which 
my  friend  contended  for  its  admission,  does  the  ividenco 
sustain  him  on  the  points  that  either  the  United  States 
jodejayed,  acted  in  had  faith  or  that  (Jreat  Britain  was 
prompt,  or  that  the  correspondence  aids  in  the  construction 
of  the  Convention.  I  do  now  contend  especially  that  there 
is  not  a  word  in  the  correspondence  which  shows  that  the 
United  Statesare  guilty  of  any  delay.   While  I  am  on  that 

1)oint  I  may  as  well  dispose  of  various  statements  which 
lave  heen  made  as  to  Mr.  Bayaid's  position  and  his  delay. 
My  friends  have  stated  that  "although  these  seizures  in 
"  IHMd  were  made  on  the  1st  and  2d  of  August,  and  althoujOi 
"  information  was  furnished  to  the  Secretary  of  State  on 

JO"  the  isth  of  the  same  moi.th.  and  althongh  the  British 
"  Government  asked  on  the  27th  of  September  for  the  i)ar- 
"  ticulars  of  the  seizures,  no  intimation  as  to  the  cause  of 
"seizure,  nor  any  particulars  relating  thereto,  could  he 
"  ohtained  from  the  United  States  Government  until  the 
"  12th  of  April,  1H87,  and  not  before  the  11th  of  July, 
"  1M.S7,  did  that  Government  communicate  the  pieci.se  na- 
"  ture  of  the  proceedings;"  and  Mr.  Beicpie  says  in  iiis 
argumont  that  "  nothing  was  heard  from  Mr.  Bayard  in 
"  legai'd  to  these  .seizures  untilJuly  is,  lH,s7."  Now,  again, 

;o  how  easy  it  is  to  be  mistaken.  The  correspondence  does  not 
show  that  Mr.  Bayard  had  any  information  on  the  isthof 
August,  lS8t).  The  correspondence  does  show  that  on  the 
ISth  of  August,  after  the  seizures,  one  of  the  masters  of 
the  American  revenue  cutters  telegraphed  the  Secretary  of 
the  'J'reasury  that  he  liad  made  such  seizures,  and  it  appears 
that  promptly  full  inCormation  was  asked  for  hy  the 
Treasury  for  th  >  use  o^  the  State  Department,  when  the 
Bi  itish  (jrovernment  asked  for  it  on  the  27th  of  September 
and  opened  the  correspondence;  but  it  is  not  the  fact   that 

("it  was  not  until  the  12th  of  April  or  July  18th,  18S7,  that 
the  requests  were  responded  to  by  the  United  States;  be- 
cause your  Honors  will  see  that  by  Mr.  Bayard's  letter, 
on  the  question  of  whether  the  United  States  intended  to 
convey  the  meaning  that  no  seizures  were  made  in  1SS7, 
at  page  81  of  the  Record,  it  appears  that  he  had  written  a 
full  letter  to  Her  Majesty's  (rovernment  on  February  3, 
1S87;  the  controversy  arising  thereafter  in  IS'^T,  wlien  a 
seizure  was  made,  was  over  the  construction  of  Mr.  Bay- 
ard's letter  of  February  S,  18S7.  Furthermore,  it  is  charged 

'here  that  they  got  no  information  whatever  as  to  seiz- 
ures of  IS8(i:  How  about  Mr.  Tilton,  the  Canadian  Fish- 
eries Minister,  wlio  got  all  his  information  througli  Her 
.Majesty's  Government,  writing  on  July  2<>th  that,  as  early 
as  the  2d  of  April,  he  had  received  full  information  from 
IbM"  Majesty's  Government,  which  had  theretofore  re- 
ceived full  and  accurate  information  from  the  United 
States  Government,  with  its  position  as  to  these  seizures? 
Delayed  until  July,  1887?  Delayed  until  April,  1887? 
There  is  the  evidence  in  Mr.  Tilton's  letter  that  as  early 

'^"  IS  April  2  the  British  Government  had  sometime  before 
then  the  information  that  every  ship  seized  in  lH8ti  had 
lieen  ordered  to  be  released.  Of  course,  this  matter  of 
obtaining  information  from  Alaska  occupied  some  time, 
lint  when  that  information  was  obtained  it  was  promptly 
tnrnished.     In  citing  examples  in  the  introductory  part 


II  I  I 


IdH:^ 


m^ 


(Mr.  Dickinson's  CloHJiif?  Argument.) 

of  our  Jirgunit'iit  in  H'ply  to  the  cliaigK  of  dt'lay,  I  have 
citt'd  cxiiinpU's  from  liotli  novt'inmcntH  without  criticizing. 
OovtMiimonts  do  not  niovo  so  ntpidl)-  jis  iiidividiialH,  cs- 
pt'ciiilly  as  thoy  must  vrril'y  tlie  irifornintion  on  whicii 
tiii'y  act,  and  bo  caivfnl  of  picmiscs  hcfori'  (oming  to  a 
conchisioii. 

My  learned  friends  have   stated   also  that  we  were   fur- 

lonished  the  claims,  and  liave  delayed  tlieii'  payment  on 
various  groMM<ls.  constantly  shifting  them,  and  ho  on. 
Nosv  the  Kecoi'd  shows  at  page  r.!>  that  it  was  not  until 
April.  iN.ss,  that  even  Her  .Majesty's  (roveinment  ha<l  any 
statement  of  the  claims  at  all;  they  were  furnished 
through  the  Tanadian  (iovernment,  and  Her  Majesty's 
(loveiument  never  did  make  any  claims  against  the 
United  States— verified  claims  nv  otherwise  oi  suggest 
them,  until  April  I'.t,  Iss.s,  and  then  Her  Majesty's  (Jov- 
ermneiit   stated    that   they  had  "hut  just  ieceived"the 

20 particulars  of  the  claim  for  compensation  on  account  of 
Hi'itish  sealers  seized  ami  warned  off  by  the  United  St  tius 
authorities  in  Mering  Sea.  Did  tliey  ask  for  jiavment; 
Were  they  del.iyed  then  to  April  is.  Isms;  ^uf  at  all;  he- 
cause  no  claims  were  |)reseuted.  Her  Majesty's  Govern- 
ment go  on  to  say  that  '•  a  just  assessment  of  these 
"  claims  appears  to  them  difficult  without  justification 
"  and  verihcution,"  up  to  Ajiril  inth.  and  they  therefore 
suggest  whether  the  United  States  wouM  he  disposed  to 
agi'ee  to  aConvention;  and  negotiations  were  commenced 

30 which  resulted  in  the  'J'reaty  of  \s\\-2  without  the 
presentation  of  any  claims  whatever.  'I'hen  after  that 
Treaty  was  there  any  delay  J  In  tho  Treaty  it  wns 
decided  that  the  matter  of  clainis  should  he  postponed  that 
the  subordinate  question  of  clain)s  should  no  longer  deliy 
the  settlement  and  deteiniination  of  the  cpiestions  in 
volved.  and  so  on.  Therefor*;.  n|»  to  the  time  the  nego- 
tiations commenced,  (ireat  J3iitain  had  not  presented  the 
claims,  as  erroneously  stated  by  my  learned  friends, 
doubtless  by  a  mistake  in   the  constructi(jn  of  the  ( orre- 

40spondeiice.  It  is  admitted  by  the  law  of  nations  that  he- 
fore  a  claim  can  be  presented  by  one  (iovernment  to 
another,  the  claims  shall  bo  first  audited  and  then 
presented  by  the  Government  of  the  claimants.  The 
Government  of  Great  Britain,  itself,  proposed  that  they 
should  enter  upon  the  negotiation  which  resulted  in  the 
Paris  treaty  of  l^'.>-2,  whei'ein  it  is  recited  and  is  conclusive 
that  the  matter  of  claims  should  be  postponed  by  agree- 
ment until  after  the  disposition  of  the  main  question. 

And  we  are  charged  with  delay  too,  in  the  printed  argu- 
-'  ment,  as  if  it  were  delay  in  ban  faith.  That  I  do  not  refer 
to  nor  di.scuss  further  than  I  have  done  in  my  brief,  al- 
though it  has  been  made  enough  of,  even  in  the  oral  argu- 
ments, to  cut  a  great  figure,  by  three  of  Her  Majesty's 
counsel — my  learned  friends  the  Senior  Counsel,  Mr. 
Beique  and  Sir  Charles.  Now,  it  appears,  when  we  come 
to  consider  it,  that  no  claim  can  be  based  on  the  corre- 
spondence introduced  by  my  learned  friends.  The  only 
figure  any  delay  could  cut  is  in  lespect  of  the  subject  of 
interest. 

Now,  your  Honors  will  find  on  this  Record— and  [ 
put  this  down  as  a  statement  to  which  there  can  be 
no  contradiction,  it  being  a  rule  of  international  law  that 
before  claims  are  presented  to  a  government  they  must  be 
audited  by  the  presenting  government— that  no  claim 
was  presented  to  the  Government  of  the  United  States 


60 


i'll 


lOHU 


(Mr.  DickiiisoirH  Closing  ArKumeiit.) 

by  fireat  Hritiiiii  until  the  Paris  Triltuiml  iiict  in  IMK(,  unti 
the  statiMuent  is  itositivoly  iinassailabh^on  this  lit'i-ord. 

In  issM  (Jrwit  Britain's  "Minister  slated  that  thatOovern- 
nient  had  just  received  theelainis  from  the  clainiaiils,  hut 
never  presented  ili>  U);  negotiations  were  continued  in  the 
Tit-aty  and  tlie  consi<ierati')n  of  claims  was  jjostponed  hy 
the  Treaty  of  I'ai  is  in   1H)»2,  ami  they  weie  never  shown 

lo or  suggested  to  tliu  United  States  in  detail  or  in  general, 
until  laid  upon  the  Kec'ird  in  the  Mritish  case  at  Paris, 
pages  1  to  tin,  inclusive,  in  IS'.Ki, 

But  it  is  said  tiiat  we  have  shifted  our  ground  and  there- 
fore we  are  to  have  a  sort  of  rule  of  exemplary  damages! 
Lung  before  the  Paris  Tribunal  your  Honors  will  Hnd  the 
statenient  of  the  United  States,  consistent  with  its  state- 
ment from  beginning  to  end,  as  shown  by  Mr.  Carter  in 
his  argument  which  1  have  le'ferred  to  in  my  brief.  That 
statement  was  this:  We  claim  a  property  light  in  seals 

20  and  therefore  the  exclusive  jurisdiction  of  the  seal  fisheries 
and  for  the  protection  of  seals  in  Bering  Sea,  and  we 
claim  also,  whatever  there  is  of  it,  Russia's  right 
in  the  Bering  Sea  in  connection  with  the  same 
thing.  If  it  was  exclusive  and  a  viair  clntifmin  we 
will  get  that  Russian  right.  They  were  both  claimed  and 
there  was  never  any  departure  from  both  claims.  The 
Tribunal  at  Paris  bad  not  sat  when  the  Supreme  Court  of 
the  United  States  in  14H  U.  S.  showed  the  position  of  the 
United  States  -without  any  side  lights  from  the  debate  at 

30  Paris.  The  position  of  the  United  States  in  isso  and  Issi) 
was  that  we  had  property  rights  in  the  seals  in  Bering  Sea 
and  bad  as  well  whatever  rights  Russia  had.  And  it  was 
so  stated  by  Mr.  Phelps  when  the  controversy  was  opened 
on  September  1:ith,  18S8,  as  shown  in  Volume  :i  of  the 
American  Reprint,  at  page  isl  of  the  appendix. 

In  respect  of  the  "  shiftings  "  of  the  United  States  in 
this  matter,  contended  for  in  my  learned  friends'  printed 
argument,  and  in  their  oral  argiunent,  for  the  sole  purpose, 
I  suppose — the  only  purpose  it  can  be  used  for—of  getting 

40 .something  in  the  nature  of  exemplary  damage  or  to  indi- 
cate a  new  way  of  estimating  seal  skins  and  the  value  of 
vessels,  I  call  your  Honors'  attention  to  the  statement  by 
Mr.  Carter  of  this  same  question  at  page  2!>  of  N'ohune  I) 
of  the  American  Reprint,  although  Great  Britain's  claim  as 
to  shifting  positions  was  not  made  at  Paris  with  anything 
like  the  emphasis  with  which  it  is  made  here.  But  not- 
withstanding all  this  you  will  find  that  the  point  my 
friends  seek  to  make  is  that,  given  the  premise,  that  hav- 
ing furnished  particulars  of  the  claims  to  us,  we  shifted 

?° ground  to  excuse  ourselves  and  delay  payment,  and  this 
is  stated  in  plain  cold  print  in  their  printed  argument, 
page  14.  line  H»,  and  at  page  IT),  line  :?u. 

My  friends  have  referred  to  "  The  Jones"  case  under  the 
Convention  of  isnu.  In  negotiations  between  govermuents 
there  are  frequently  long  delays.  I  cited,  without  reHect- 
ing  upon  Great  Britain— which  we  have  not  done  in  any 
place  in  the  argument  or  out  of  it— that  Great  Britain 
delayed  in  that  case  three  (o  three  and  a  half 
years  before  responding  to  our  claim  for  damages.  They 
say  that  is  true,  but  in  the  ''Jones"  case  great  damages  were 
given  for  delay  and  they  piedicate  upon  that  that  the 
United  States  must  be  mulcted  for  delay  here.  They  say 
that  in  the  "Jones"  case  the  awaid  was  largely  increased 
over  what  the  American  counsel  and  American  Conunis- 
sioners  contended  for  and  the  reason  was  the  delay.     My 


('K^ 


ll    I 


lo:u 


(Mr.  Dickinson's  Closing  Argument.) 

leaiiied  friend  is  mistaken  again  abont  tliat.  In  the  "Jonos" 
case  the  ship  was  a  valnable  one.  The  amonnt  was  largely 
incieased  over  what  the  British  counsel  arlniitteil.  Tlio 
value  of  the  ship  instead  of  the  price  she  brought  umler 
the  decree  of  sale— for  wiiich  he  contended —was  given. 
It  does  not  appear  iiow  the  claim  was  presented  or  th(> 
particulars  of  the  claim,  but  as  to  the  fact  that  this  ship 
10  was  a  very  large  ship  of  great  tonnage— that  fact  does  ap- 
pear. It  does  appear  that  British  counsel  contended  that 
the  less  measure  of  damage  should  only  be  given,  to  wit, 
what  the  ship  brought,  but  a  very  n)uch  larger  amount 
than  tliat  contended  for  by  the  British  counsel  was  given, 
to  wit.  her  value,  and  what  my  friend  states  does  not  ap- 
pear, but  tlio  contrary. 

Vauje  of  Vessels. 

20  Now  a  word  upon  the  subject  of  sales  of  ships  as  a 
measure  of  values.  In  regard  to  the  evidence  of  sales,  the 
true  rule,  as  I  understand  it,  and  as  stated  by  authority,  is 
that  tli(>  evidence  of  market  value  is  the  measure  in  case 
of  total  los.s.  And  the  evidence  as  to  value  in  Nova  Scotia 
and  elsewhere  is  only  competent  as  to  shipping  sailing  out 
of  Victoria  in  the  absence  of  proof  of  sales  of  shii)s  of  this 
class  in  Victoria  sufficient  in  number  to  show  a  market 
value  there.  On  the  admission  of  this  testimony  of  cost 
of  building  and  of  values  at  Nova  Scotia  and  soon,  in  Vic- 

Sotoria,  it  was  stated  from  the  bench— to  my  objection 
that  the  market  value  at  Victoria  only  was  propei  — 
that  there  was  an  exception  to  the  rule,  and  analogies 
were  drawn  from  other  cases.  One  case  I  reniernlier 
particularly,  referred  to  by  the  Couit,  where  on  the 
coast  of  Africa— where  there  could  be  said  to  be  no  evi- 
dence of  a  market  and  therefore  evidence  of  the  i)rices  at 
other  places  was  admitted.  But  on  the  evidence  of  value, 
sales  are  the  best  evidence  of  market  value,  and  you  cannot 
go  into  the  question  of  cost  of  building  and  sales  elsewhere 

40  unless  there  is  absence  of  evidence  of  sales  to  (i.x  the 
market  at  the  time  and  j)lace.  Cost  and  other  market 
sales  might  be  given  as  secondary  evidence  in  the  absence 
of  best  or  primary  evidence— the  evidence  of  sales  bearing 
on  time  and  place.  But  without  producing  evidence 
of  sales  within  reach  of  the  claimants,  they  contended  for 
secondary  evidence  of  value,  of  the  cost  at  Nova  Scotia 
and  the  cost  of  building  at  Victoria,  because  there  were  not 
suffirient  sales  at  Victoria  to  afford  a  basis.  J  call  your 
Honors" attention  to  the  cases  of  sales  wi„hin  their  power 

30 to  give  evidence  upon.  I  do  not  refer  now  to  the  mere 
adjustments  like  the  .adjustment  of  partnerships  between 
(Jutinan  and  his  partners,  or  to  the  settlement  of  estates. 
These  are  excluded,  but  on  the  face  of  these  regi.stiies  at 
Victoria  put  in  evidence  by  Great  Britain,  your  Honors 
will  tind  :{t)  sales  of  this  class  of  vessels  at  or  sailing  out 
of  the  port  of  Victoria,  as  to  which  your  Honors  have  not 
been  furnished  with  an  item  of  evidence  by  my  learned 
friends  on  the  other  side. 

My  friend  and  learned  associate,  Mr.  Lansing,  has  called 

''^attention  to  this  evidence.  The  legal  effect  I  apj)ly,  and  1 
cannot  do  it  any  better  than  by  referring  your  Honors  to 
an  elemental  V  lulo  well  stated  in  the  case  of  the  Kelrna 
K  •  h'oad  against  the  United  States  in  UV.t  U.  S.,  .^)tiOy.")ti7. 
Th.ii  is  on  this  point— that  even  where  evidence,  either 
a.fr  .  lative  or  negative,  is  largely  in  the  hands  of  one  of 


hc:, 


(Mr.  Dickinson's  Closing  Argument.) 

two  parties  to  litigation  aufl  it  is  not  produced  for  the 
benefit  of  the  Court  considering  the  question,  it  must  he 
taken  that  the  evidence,  if  produced,  would  he  most 
strongly  against  the  party  failing  to  produce  it.  Tt  is  a 
rule  of  evidence  of  universal  api)licatiou  strongly  stated 
in  that  case  and  by  the  authorities  there  cited.  Here  are 
thirty-six    sales,   excluding    mere    partnership  transfers 

10  which  are  not  actual  sales,  shown  on  these  registries,  of 
this  very  class  of  sealing  shi|>s  and  mostly  of  these  very 
ships,  ar.  1  not  a  man  but  was  within  control  of  these 
clain)ants  and  within  reach  of  this  court.  Man  after  n)an 
on  the  stand,  appearing  by  these  re;;istries  as  party  to 
these  sales,  were  witnesses  for  Great  Biitain,  and  not  a 
word  concerning  the  sales  of  these  vessels  was  brought 
out.  To  be  accurate,  the  |)arties  to  these  sales,  with  the 
exception  of  two,  were  on  the  stand  upon  the  question  of 
catch  or  some  othei-  question,  where  this  testiiuony  could 

20  have  been  gone  into,  and  were  on  the  stand  as  witnesses 
of  Great  Britain. 


Ii 


40, 


"Black  Diamond"  No    5. 

I  desire  to  refer  agaii\  to  the  "Bl<irk  Diainoiul "  case.  I 
think  my  learned  friends  were  not  mistaken  in  the  admis- 
sion they  put  in  their  printeil  brief  as  to  the  ovvniMship  of 
the  "Black  Diamond''  by  Frank. 

Mr.  Peters:  -1  propose  to  show  in  my  reply  that  we 
)  were  mistaken. 

Mr.  Dickinson:— This  is  for  the  "Black  Diamond"  of 
1880,  and  against  oui-  objection  there  was  read  into  the 
Record  the  correspondence  with  reference  to  a  compromise 
for  a  lump  sum  by  my  learned  friends,  and  among  other 
claims  for  ships  named  by  Kir  Julian  Pauncefote  in  his 
statement  or  schedule  is  the  "  Black  Diamond."  He  saj's 
in  liis  letter  as  to  the  "  Black  Diamond  ": 

"  Black  Diamond.  " 

"  (Additional  claim  siibuiittod  In  the  Manter,    Mr.  Henry  Paxton, 
for  (Iftuiaptes  allrg(!d  to  liivvo  been  Nustaiued  hy  reason  of  the  above 
"  schoucr  liaviuf;  been  ordered  out  of  Bering  Sea  in  188(5  by  the  United 
"  States  authorities.) 
"  Estiuiated  eateh  for  Auf^ust,  1880,  1,000  hkius  at  37.50 
"  e.ich  (the  price  of  wkins  at  Victoria  Juriijf^  the  fall 
"  of  188(i) S7,.')00  00 

"  Tliis  claim  was  sent  in  too  late  for  insertion  in  the  general  list  of 
"  British  claims.  In  view  of  the?  leufjtli  of  time  that  had  elai)sed  since 
"  the  occurrence  of  tlie  action  comiiliuned  of,  Her  Majesty's  (iovern- 
"  meiit  deemed  it  advisable  to  cause  an  incjuiry  to  be  made  as  to  the 
"  reason  for  tlie  delay  in  iireseutiuf:;  the  claim.  The  reason  given  was 
^O  "  that  at  tlu'  time  of  the  seizure  of  the  vessel,  the  co-owiiors,  who  were 
"  l/ivee  ill  iiniiihi'r"  |l'a>itou  had  a  cajitain's  interest  of  thirteen  sharesj 
"  were  doubtful  as  to  how  far  aii  ajipealto  the  United  States  (Jovern- 
"  meut  for  redress  would  be  entertained.  In  the  following  year  one 
"  of  the  owners  was  lost  at  Hea"|that  was  (iutmanj  "and  anolher 
"left  the  coiiutrv  "  [that  was  Frank]  "ami  it  was  only  after  the 
"  publication  of  tlie  award  that  the  surviving  owner  consulted  his 
"  solicitor  and  was  informed  that  he  had  a  good  r.nd  ecpiitable  claim 
"  for  eompeusatiou.  The  claim  was  then  drawu  uji  and  iiresented 
"  at  ouue." 

The  owners  were  not  I'axton  and  Gutman  alone,  there- 
iiofore.  The  other  and  third  owner  who  had  left  the  country^ 
was  a  gentleman  named  Alexander  Frank,  ofcour.se,  and 
my  friends  were  right  in  stating  the  position  of  Great 
Britain,  as  Great  Britain  understood  it,  that  Frank  was 
that  owner.  That,  as  otiierwise  .shown,  was  the  truth. 
At  one  o'clock  the  Commissioners  took  recess. 


103C 


i'         .*. 


'!-,^],'b 


10 


(Mr.  Dickinson's  Closing  Argument.) 
At  half-past  two  the  Commissioners  resxuned  their  seals. 

The  Scope  of  the  Convention. 

Mr.  Dickinson: — I  now  come  to  the  scope  of  the  Con- 
vention, which  I  shall  discuses  biiefly,  because  I  assume 
in  the  presentation  of  the  oral  argument  on  tlie  law, 
that  your  Honors  will,  inasnuich  as  the  printed  brief 
is  uol  discursive,  but  most  carefully  condensed,  read  it 
and  consider  the  authorities  there  cited.  I  shall  not  at- 
tempt to  detain  the  Court  by  reading  what  is  set  down 
there,  except  as  it  may  be  necessary  and  material  to  fur- 
ther ehicidate  the  points  made,  international  Law  ap- 
plies here  and  applies  to  these  claims.  The  application  of 
it  to  this  Convention,  and  the  fact  that  it  governs  this 
case,  is  discussed  in  the  brief.  Passing  over  that  subjec  t, 
I  come  directly  to  the  interi)retution  and  the  scope  of  the 
Convention  itself.  I  call  your  Honor.s'  attentiim  to  this 
"'-'important  consideration  from  Sir  Sherston  Baker's  Hal- 
leck.  and  I  shall  read  from  Vattel  to  the  same  efi'ect  and 
from  Hall.  It  is  the  same  doctrine  in  all  the  jjublicists 
whom  1  have  cited. 

Regarding  treaties  like  this  for  the  peaceful  settlement 
of  disputes,  by  Arbitiators  or  Commissioners,  Sir  Sher- 
ston Baker's  Halleck,  \'ol.  1.  p.  4t>7,  says: 

"  If  the  contending  parties  Imve  agreed  to  abide  l)y  the  decision  of 
"  these  referees,  they  are  tmnnd  to  do  so,  except  in  cases  where  tlie 
,Q  "  award  is  olitaiued  liy  collusion,  nr  is  mil  canjhifd  irilliin  tlir  limlls  :./' 
"  ///(■  siilntiissinii.  Jf  is  I'Sfi'il  fit  sjierifii,  in  tlir  iii/rfrmrti/  tn  itr/ii/rntr,  the 
"  t.enii  ijin'sliiiiis  irliic/i  urn  la  lie  ileiiili'it  hii  llie  urliilni/urs,  uni/  if  Ihni  ,■./'- 
"  Civil  llii'sr  jirevisi'  Imiiiiils  uinl  jirulnnl  In  i/r  iilr  njinii  nllii'r  /niinls  limn  llmsf 
"  siihniilti'il  III    lliriil.    Ilnir    ilrrisiliii     is    in     nil    rcsjicci    liinilinf/.       Thus    till' 

"  award  of  the  l\ing  of  the  Netherlands,  (>n  reforencc  liy  treaty,  in 
"  IH'27,  of  the  (piestioii  of  the  uortheasteru  boundary  of  the  failed 
"  States,  not  being  a  decision  of  the  <iuestion  siibuiitted  to  him,  luit  a 
"  j>r<)])osal  for  a  coniprcunise,  was  not  regarded  as  l)inding  either  upon 
"the  Unites  States  or  Ctreat  liritain,  and  was  rejected  by  both." 
-*     ■*     * 

The  same  rule  of  interpretation  applies  to  treaties  as  to 

^°  statutes,  and  1  have  cited  the  rule  from   Greenleaf  as  tt> 

statutes,  and  Vattel  as  to  treaties,  and  some  other  autluir- 

ities   following.     Vattel  says,  and  I  quote  from  Chitty's 

Philadel|)hia  Edition  ^p.  i!T7): 

"  In  order  to  obviate  all  ditliculty,  it  is  necessary  that  the  arbitra- 
"  tioii  articles  should  precisely  specify  the  subject  in  dis])uti'~  the 
"  demands  of  the  one,  the  objections  of  the  other  *  *  ♦  if  then 
"  the  sentence  be  coutiued  within  these  i>rccise  grounds  the  dispu- 
"  tautH  must  accpiiesce  in  it." 

50  In  my  opening  remarks  submitted  to  the  Court  the 
other  day,  I  showed  the  history  of  arbitration  as  well  as  1 
could,  the  care  with  whii'h  treaties  have  deliminated  siiii- 
jects  of  reference,  and  definitely  described  and  delincd 
them,  so  that  there  might  be  no(loul)t  as  to  the  specitic 
(luestimis  referred,  carefully  avoiding  reference  to  geneial 
(luestioiis  or  anything  under  a  general  head.  Hall  says. 
Fourth  Edition,  jiage  :{7l»: 

"  The  decision  liy  arbitrators  must  lie  disregarded  when  the  tribunal 
f     "  has  clearly  exceeded  the  powers  given    to    it    l)y  the  iustrumeut  of 
"  Bulimission." 

Of  course,  if  there  is  no  obscurity  in  a  treaty  or  a  stat- 
ute, there  can  be  no  reference  made  to  extraneous  matter, 
but  if  there  is  ambiguity  and  extrancdus  matter  is  to  he 
referred  to,  the  universal  canon  for  construction  is  that  if 


1087 


(Mr.  Dickinson's  Closing  Argnnient.) 

the  treaty  or  statute  itself  contains  anything  to  tinow 
light  upon  it,  that  fhall  he  tirst  referred  t.>.  I  suhinit 
further,  however,  that  it  is  a  law  of  statutory  construc- 
tion, and  of  the  construction  of  treaties,  that  iinytliing  re- 
ferred to  set  out  by  lefereiice  in  any  statute  or  treaty 
is  a  part  of  the  statute  or  treaty,  as,  for  instance,  in 
legislating  as  to  land,  if  a  map  or  chart  is  referred  to, 
10  recorded  at  any  place,  and  specific  reference  is  made  to 
the  place  of  record  and  date,  that  map  or  chart  becomes 
a  part  of  the  statute  as  much  as  if  it  was  embodied  in  the 
statute  itself.  Any  public  document  that  is  referred  to 
and  identified  iu  a  statute  or  treaty  becomes  a  part  of  it. 
Another  canon  of  construction  I  have  before  referred  to 
is,  that  the  construction  of  a  statute  or  of  a  treaty  is  to  be 
taken  most  strongly  against  the  party  prei)aiing  the  clause 
upon  which  the  question  is  raised.  To  that  1  cite  Vattel, 
and  by  |>arity  of  reasoning,  a  nation  caiuiot  enlarge  the 
2o  scope  of  the  clraft. 

The  authorities  unite  in  declaring  that  the  ordinary  rule 
of  interpretation  of  contracts  and  statrrtes  applies  to  the 
interpretation  of  treaties.  The  rule  has  added  empliasis 
wherr  the  iritcrrratiorial  compact  in  enter-ed  into  among 
natiorrs  whose  orgarric  law  icquirt's  the  ratiHcatioii  of  the 
compact  by  more  than  one  branch  of  the  (Jovcr  rinrerit. 

Yoru'  Honors  will  observe  that  in  this  Corrverrtion,  the 
last  clause  of  Article  IX.,  as  in  ail  treaties  by  tlie  ITnited 
State.s,  proposed  tentatively,  it  is  provided  that  the  C'on- 
3ovention  shall  be  latitied  by  Her  Hritarniic  Majesty  and  by 
the  President  of  the  United  States  of  Airrcrica.  "by  and 
with  the  advice  and  consent  of  the  Serrate  thcieoi."  So 
thei'e  is  an  added  reasoir  for'  the  .strict  crrfoicemerrt  of  the 
rule,  where  ratification  is  re(piir'ed  to  he  had  by  another 
body  tharr  tlie  executive(le|)artment\vliiih  originally  signs 
the  treaty. 

Mr.  Peters:— I    worrld    like   to  ask    my    learned   friend 

whetirer- on  that  ground  there  shoidd  lie  a  dilfeient  rule 

of  constructioir  of  a  treaty   made  between  Great  Britain 

40 and  the  United  States,  and  a  treaty  irr  the  same  words 

between  Great  Britain  and  some  other-  pow^er^ 

Mr'.  Dickinson: — No,  and  I  have  not  said  so;  no  differ 
ence  in  the  rule  of  corrstruction.  I  have  been  unfortu- 
nate if  I  have  not  stated  that  1  am  endeavoring  to  point 
out  that  in  the  construction  the  aibitratiorr  mrrst  be  con- 
fined strictly  to  the  treaty,  and  I  have  said  tliat  that  rule 
has  an  added  force  when  on  its  fact?  it  is  to  i)e  r-atilied 
by  another  body  than  that  which  negotiated  the  treaty. 
1  am  endeavorirrg  to  point  out  the  danger'  if  the  arbitra- 
ge tors  shordd  go  outside  of  their  jurisdiction.  My  learned 
friends  cannot  be  more  anxious  than  I  that  we  should 
havean  award  which  does  not  pass  the  limitsof  thisCon- 
vention.  We  want  an  award  that  will  be  final  and  con- 
clusive, lam  endeavoring  to  point  out  that  airy  departur'e 
which  would  pass b(\yond  the  boundai'y  of  the  jurisdictiorr 
of  the  C'onrmission  would  eiidairgei'  the  treaty  itself. 
Mr'.  Peters:— Who  is  to  judge  of  the  jurisdiction? 
Mr'.  Dickinson: — This  Uonrmi.ssion,  in  the  first  instance. 
Hut  1  am  stating  an  added  reason  for  the  rule  under  the 
6i)circumstances.  For  ir'.stance,  to  illustrate  exactly  what  I 
mean,  if  I  have  not  urade  myself  clear.  If  this  ('oirven- 
tion  shoirld  proceed  to  hear  claims  for  damages  for'  the 
destruction  of  a  vessel  in  t!>e  North  Atlairtic,  and  shoirld 
pass  judgment  upon  it,  theavvar'tl  would  birrrl  nooire,  and 
the  tiiire  when  it  would  be  fornrally  demonstrated  would 


(1 


1  ; 


•" 


('■ 


I'fi':: 


1038 

(Mr.  Dickinson's  Closing  Argument.) 

be  when  the  Congress  of  the  United  States  shonld  come 
to  make  the  appropriation  to  pay  the  award.  On  the  other 
hand,  if  tlie  decision  were  to  be  against  Great  Britain,  the 
time  when  it  would  be  apparent  would  be  when  Parliament 
came  to  vote  the  money  to  pay  the  award.  Tliis  question 
came  up  in  the  construction  of  the  treaty  itself  in  18!t2, 
when  it  was  proposed  in  making  the  findings,  to  find  tliat 

loGieat  Britain  on  the  one  side,  or  the  United  States  on  the 
other  were  wrong,  as  a  fact  legally  concluded,  on  whitli  a 
liability  might  be  hung  on  such  finding;  it  was  objected 
to  and  avoided  because  the  Tribunal  had  no  power  to  find 
facts  on  which  a  liability  or  an  escape  from  liability  would 
follow,  and,  second,  because  no  representative  of  the 
United  States,  without  concurrence  of  the  Senate,  could, 
by  consent,  enlarge  the  treaty.  At  page  27  of  my  brief, 
I  have  cited  the  colloquy  which  tooK  place  in  Sir  Charles 
Russell's  argument  in  the  American  Reprint,  pages  4ti  56. 

20  If  this  is  a  reference  of  specific  claiins  embraced  within 
certain  pages  of  tiie  Re;:or(l,  as  pointed  out.  then,  if  any 
other  claim  is  considered,  tlie  whole  award  as  to  the  valid 
claiM)s  will  go  by  the  board.  That  is  the  danger,  if  our 
contention  is  riiiht. 

Mr.  Peters:-  We  will  take  the  risk. 

Mr.    Dickinson:-  Veiy  well,  any  advocate,    when  the 

forensic  sjjirit  is  hot  uiuni  him  will  take  chances  to  win, 

but  after  all,  the  sober  second  thought  is,  when  we  come 

back    reveised.    we  always   wish    we   had  not;  we  wish 

30  we  had  kept  within  the  law  when  we  have  to  come  back 
aftt'i-  a  new  trial  has  been  ordered,  and  our  labor  has  gone 
tor  nothing. 

1  refer  m'xt  on  page  27  to  other  claims  conventions,  and 
the  si)ecific  reference  of  matters  carefully  deliminated 
and  defined.  By  the  treaty  of  Washington,  Article 
XII.,  a  commission  was  created  to  which  was  refeiied 
certain  s]tecific  claims,  no  more  carefully  pointed 
out  in  the  Convention  than  in  this,  and  the 
jurisdictional  question  came  up  under  that  act,  as  it  did 

40  under  the  Treaty  of  1S.5S  It  always  comes  up.  The 
Alabama  Treaty  or  Convention  was  siti  (jeueris.  It  i)ro- 
vided  for  just  what  we  have  under  this  convention.  Al- 
thouiih  it  provided  in  one  instrument  a  board  of  arbitra- 
tion at  (ieneva,  and  in  the  same  treaty  for  giving  a  lump 
sum.  it  also  provided  that  if  the  arbitrators  did  not  choose 
to  give  a  lumpsum  they  might  refer  it  to  assessors,  whose 
powers  were  limited  by  Article  X.  of  the  treaty  thus: 

"Abticle  X. — lu  caao  tLo  tril)unnl  flnds  that  Groat  Britaiu  has 
"  failed  to  fultil  any  iluty  or  duties  as  aforesaid,  and  does  not  award 

50  "  a  sum  in  Rrosi,  the  hi^h  contractiuK  parties  afjree  that  a  hoard  of 
"  assessors  sliall  \w  appointed  to  asocrtain  and  determine  what  claims 
"  are  valid,  and  what  amount  or  amounts  shall  be  paid  by  Great 
"  Britain  to  the  United  States  on  acpount  of  the  liability  arising  from 
"  sneh  failure,  as  to  eaeh  vessel,  according  to  the  extent  of  such  lia- 
"  V)illty  as  decided  by  the  arbitrators.     *    *     * 

"The  members  thereof  shall  severally  subscribe  a  lolemn  dcclara- 
"  tion  that  they  will  impartially  and  carefully  examine  and  decide  to 
"  the  best  of  their  judgment,  and  according  to  justice  and  e(iuity,  all 
"  matters  submitted  to  them,  and  shall  forthwith  proceed,  under  sucli 
"  rules  and  regulations  as  they  may  prescriV)e,  to  the  investigation  of 
' '  the  claims  which  shall  bo  presented  to  thorn  by  the  Ooverument  of 

60  "  the  United  States,  and  shall  examine  and  decide  upon  them  in  such 
"  order  and  manner  as  they  may  think  proper.     *     »    • 

"  Tho  decision  of  the  assessors  shall  be  given  upon  each  claim  in 
"  writing,  and  shall  be  signed  by  them  respectively," 

Now  as  to  the  claims  to  be  considered,  we  submit,  and 
this  is  our  position:  The  "claims"  are  such  as  are  speciti- 


'  If; 


1030 

(Mr.  Dickinson's  Closing  Argument.) 

cally  described  as  referred  to  the  Commission  in  and  by 
the  Convention  of  February  8,  1896,  and  the  "persons  in 
whose  behalf  Great  Britain  is  entitled  to  claim  compensa- 
tion "  are  those  specifically  named  in  that  convention  as 
the  pereons  who  presented  the  claims  at  Paris,  unless  and 
except— 
(a.)  The  United  States  establish  that  another  person  in 

loany  case  is  the  "actual"  owner,  who  is  a  citizen  of  the 
United  States,  an  exception  provided  for  in  tbe  conven- 
tion itself. 

These  are  not  claims  of  vessels.  These  are  claims  of 
persons.  Your  Honors  will  find  in  conventions  hereto- 
fore where  vessels  were  the  subjects  of  claims,  the  claims 
have  always  been  presented  by  the  owners,  and  the 
crews  presenting  claims  always  as  persons,  and  the  find- 
ings have  invariably  depended  on  the  personal  status 
of  the  claimant.     This   whole  Treaty,  taken  together,  is 

2o consistent,  and  is  like  all  other  conventions  in  that  re- 
gard. 

We  have  stated  that  the  Convention  of  February.  1896, 
consists  of  three  documents:  First,  the  Convention  standing 
by  itself;  second,  the  treaty  signed  at  Washington,  February 
9, 1892;  third,  the  award  and  findings  of  tiie  Pai  is  Tribunal. 
These  are  found  specifically  referied  to  in  this  Convention 
by  date  and  otherwise  identified  by  reference.  And  you 
will  find  there  specified  certain  Findings  of  Fact.  The 
subject  matter  of  the   Findings  of   hacts  is  the  British 

3oschedule  from  pages  1  to  60  inclusive.  We  find  by  the 
tentative  drafts  3  and  4  in  the  negotiation  that  it  was  first 
provided  that  the  claims  should  be  for  compensation  as 
claimed  to  be  due  from  the  United  States.  That  is,  those 
which  might  be  made  under  the  award  of  the  Paris  Tri- 
bunal without  any  reference  to  the  Findings  of  Fact. 
The  effect  of  these  first  drafts  was  that  because  the  United 
States  were  found  not  to  have  jurisdiction  in  Bering  Sea 
that  any  one  who  was  injured  in  Bering  Sea — any  one 
under  British  protection  might  bring  a  claim  against  the 

40  United  States?  Then  the  word  "  Findings  "  was  put  in 
as  a  limitation  to  the  jurisdiction.  And  we  als^o  find  in- 
stead of  the  words,  "claims  for  injuries  sustained  and  for 
the  compensation  as  (;lainu>d  to  be  duo  as  from  tbe 
United  States  under  the  award  of  the  Tribunal  of  Arbi- 
tration," as  proposed,  these  words  were  changed  in  the 
next  draft  to  the  following:  "  All  claitns  sustained  by  per- 
"  sons  in  whose  behalf  Great  Britain  is  entitled  to  claim 
"  compensation  from  the  United  States,  and  arising  by 
"  virtue  of  the  treaty  aforesaid,  and  the  award  and  finu- 

50"  ings  of  the  said  tribunal  of  arbitration."    Then  it  must 
be  a  claim  arising  under  the  treaty  and  the  findings  of  the 
said  Tribunal  of  Arbitration. 
The  preamble  of  this  Convention  leads: 

"And  whereas,  the  Agent  nf  Great  Britain  did,  in  accordance  with 
"  the  provisioDB  of  soid  Article  VIII.,  submit  to  the  Trilmnal  of  Arbi- 
"  tration  certain  tindings  of  fact  which  were  agreed  to,  as  proved  by 
"  the  Agent  of  the  United  States,  and  tlie  arbitrators  did  unanimously 
"  find  the  facts  so  set  forth  to  be  true,  as  appears  by  the  award  of  the 
"  Tiibnnal  rendered  on  the  15th  day  of  August,  1893."    *    *    » 

^'o  That  was  specifically  referred  to  by  date  and  identified. 
Then  the  Convention  goes  on  to  say : 

"  And,  whereas,  in  view  of  the  soid  findings  of  fact  ond  of  the  decis- 
"  ion  of  the  Tribunal  of  Abitrotion  concerning  the  jurisdictional 
"  rights  of  the  United  States  in  Behring  Sea,  and  the  right  of  proteo- 
"  tion  or  property  of  the  United  States  in  the  fur  seals  frequenting  the 


I    ■ 


i.  ti 


1040 

(Mr.  Dickinson's  Closing  Argument.) 

"  islands  of  tbo  Uuited  States  in  Behring  Sea,  the  Government 
"  of  the  United  States  is  desirous  tbat,  in  ho  far  as  its  liability 
"  is  not  already  fixed  and  determined  by  the  findings  of  fact  nud  the 
"  decision  of  said  Tribunal  of  Arbitration,  tbo  question  of  sucli  lia- 
"  bility  sbould  bo  definitely  and  fully  settled  and  determined,  and 
"  compensation  made  for  any  injuries  tor  whicli,  in  the  contemplation 
"  of  the  treaty  aforesaid,  and  tbo  award  and  findings  of  tbo  Tribunal 
"  of  Arbitration,  compensation  may  be  due  to  Great  Britain  from  tbo 
"  United  States. " 
lO 

Tliese  words  weie  afterwards  continued  in  the  suhae- 
quent  drafts  until  it  comes  to  tlie  final  treaty  wliich 
was  accepted.  Now  is  anything  outside  of  the  fin(lings 
of  fact  to  come  in?  Yes.  The  "additional  claims" 
which  are  specified  in  the  next  pieamblo.  Addition  to 
what?  The  canon  of  statutory  construction  is  tliat  if  a 
general  clause  is  used,  and  a  s|)ecific  clause  adding  to  it  is 
afterwards  used,  nothing  else  can  come  in  except  whnt  it 
specifies.     But  in  order  to  he  sure,  these  additional  claims, 

^°bear  in  mind,  are  not  claims  that  arose  since  the  Tribunal 
of  Arbitration  convened,  but  they  were  claims  which 
would  be  governed,  if  the  contention  of  my  learned  friend 
is  correct,  by  the  eflfect  of  the  award,  as  much  as  claims 
referred  to  in  the  findings,  because  of  the  statenient 
in  the  preamble  that  all  these  additional  claims  arose 
prior  to  tiie  said  award.  Our  friends  say  they  are  not 
restricted  to  the  claims  referred  to  in  the  findings.  Of 
course  if  the  draft  had  been  as  first  made  that  all  British 
claims  could  be  presented  for  injuries  sustained  for  which 

3° compensation  is  claimed  to  he  due  from  the  United  States 
under  the  award  of  the  tribunal,  there  would  have  i)een 
no  need  to  specify  these  adilitional  claims,  because  the 
award  of  the  tribunal  would  have  determined  the  liability 
of  the  United  States;  and  yet  it  is  stated,  let  me  re))eat,  in  the 
preamble,  that  these  additional  claims  stand  on  precisely 
that  ground  and  that  they  arose  prior  to  the  award,  and 
yet  they  are  named  as  additional  claims.  It  seems  clear 
that  the  additional  claims  were  included  by  a  specific  pro- 
vision in  the  convention,  because  all  claims  not  referred 

4° to  in  Schedule,  pi>.  1  to  ti(»,  were  excluded  by  the  specific 
general  clause  on  which  your  jurisdictiorr  is  based. 
Article  1  specifies: 

"  The  high  contracting  i)artieH  agree  that  all  claims  on  account  of 
"  injuries  sustained  by  per.sons  in  whoso  behalf  Groat  Britain  is  cu- 
"  titled  to  claim  compousatiou  from  the  United  StatoH,  and  arising  by 
"  virtue  of  the  treaty  aforesaid,  the  award  and  tho  findings  of  the 
"  said   tribunal  of  arbitration." 

They  have  to  arise  both  by  the  awai-d  and  tbo  findings. 
50 Can  your  Honor's  consider  that  as  other  than  the  liririta- 
tioui 

Under'  Article  '\  there  is  referred  to  you  by  the  conven- 
tion "every  question  of  fact  not  found  by  the  tribunal  of 
arbitration."  Cair  your  Honors  firrd  any  (juestion  of  fact 
as  to  any  claim  which  was  not  in  the  British  Schedule, 
from  pages  1  to  <>0,  inclusive,  other  than  as  to  "the  addi- 
tional claims"? 

Your  Honors  will  see,  when  you  come  to  construe  the 
two  together  — the  award  and  the  findings  referi-ed  to  in 
60 the  convention  not  being  set  out,  hut  identified  and  made 
part  of  the  convention  -that  the  subject  matter  of  all  llio 
findings  is  this,  as  stated  in  Firrding  Number  1.  "  That  tho 
"  several  searches  and  seizur'es,  wliether  of  ships  or  goods, 
"  and  the  several  arrests  of  masters  and  crews,  i'es|)ect- 
"  ively  mentiorred   in   the  Sclredule  to  the  British  Case, 


1(141 

(Mr.  Dickinson's  Closing  Argument.) 

"  pages  1  to  6(»,  inclusive,  were  made  by  the  authority  of 
"  the  United  States  Government." 

And  the  lindmgs  of  fact  apply  to  nothing  else  except 
what  is  hetween  pages  1  to  (If*,  inclusive.  I  have  given 
you  in  the  pamphlet  your  Honors  have  before  you  the 
award  of  the  Paris  tribunal,  and  the  findings  of  fact  at  page 
22  of  that  pamphlet,  and  your  Honors  will  see  that  in  Find- 
loing  One  is  the  subject  matter  of  all  the  findings  of 
fact,  and  is  in  respect  of  only  what  is  within  the  covers 
of  the  British  case,  pages  1  to  tlu.  inclusive.  Upon  your 
Honors  is  conferred  jurisdiction  to  consider  no  question 
except  such  (juestions  as  to  these  as  were  not  found  by  the 
Tribunal  of  Arbitration  at  Paris.  For  instance,  they  say  in 
the  findings: 

"  That  the  several  searches  and  seizures,  whether  of  ships  or  goods, 
"  and  the  several  arrests  of  masters  and  crews,  respectively  mentioned 
"  in  the  schedule  to  the  British  case," 

Pages  1  to  (iu,  inclusive,  again,  your  Honors. 

Then  Aiticle  2  says,  "That  the  seizures  aforesaid." 
What  seizures  afore.said?  The  seiziu-es  mentioned  in  pages 
1  to  tio,  inclusive,  of  the  British  case,  named  in  Finding 
One,  are  the  aforesaid  seizures.  The  third  finding  says: 
"  That  the  said  several  searches  and  seizures."  What  said 
several  searches  and  seizures?  Again  those  referred  to  in 
the  Britisii  case  from  pages  I  to  <Hi,  inclusive,  named  in 
Finding  One. 

30  "3.  That  the  said  several  searches  and  seizures  of  vessels  were  made 
"  by  public  armed  vessels  of  the  United  States,  the  oommauders  of 
•'  which  had,  at  the  several  times  when  they  were  made,  from  the  ex- 
"  ecutive  department  of  the  government  of  the  United  States." 

Again  the  alleged  acts  or  offences  for  which  the  said 
several  sent  dies  and  seizures  were  made  described  iu  pages 
1  to  (iO,  inclusive. 

"Section  5  reads  :  That  the  district  courts  of  the  United  States  in 
"  which  any  proceedings  were  had  or  taken  for  the  purpose  of  con- 
"  demning  any  vessel  seized  as  mentioned  in  the  schedule  to  the  case  of 
40  "  Groat  Britain,  pages  1  to  (H),  inclusive,  had  all  the  jurisdiction  and 
"  powers  of  courts  of  admiralty,  including  the  prize  jurisdiction,  but 
"  that  in  each  case  the  sentence  pronounced  by  the  Court  was  based 
"  upon  the  grounds  set  forth  in  the  libel." 

And  from  the  findings  of  fact,  your  Honors  have  to  deal 
with  that  schedule  and  nothing  else  under  the  terms  of 
the  convention,  Article  One.  It  is  identified  and  your 
Honors  are  referred  to  it.  There  is  no  question  of  law,  fact 
or  assessment  sent  down  to  your  Honors  except  you  find 
it  as  to  persons  and  the  property  of  persons  within  pages 
5°  1  to  60,  inclusive,  of  the  British  schedule. 

It  follows  that,  as  to  everything,  except  "additional 
claims,"'  the  Convention  of  ISitti  confers  jurisdiction  upon 
the  Commissioners  for  three  purposes  only: 

(1.)  To  determine  the  amount  of  each  claim  appearing 

by  the  British  schedule  (pp.  1  to »'.(),  inclusive),  the  amount 

being  the  question  on  which  the  finding  in  express  terms 

declined  to  pass. 

(2.)  To  determine  as  to  the  liability  of  the  United  States 

,   on  account  of  "each  "  clnim  of  each  person  for  injuries. 

''°as  set  down  in  the  British  schedule  (pp.  1  to(!0,  inclusive). 

(li.)  To  determine  the  (luestion  of  liability  of  the  United 

States,  which  might  be  raised  on  account  of  "  whether  the 

vessels  mentioned  in  the  schedule"  (pp.  1  to  (10,  inclusive), 

or  any  of  them,  were  wholly  or  in  part  the  actual  property 

of  citizens  of  the  United  States. 


V'\ 


\  ■  :    ! 


1042 

(Mr.  Dickinson's  Closing  Argument.) 

Finding  I.,  last  paragraph,  clearly  points  out  that  tli<' 
que.stion  for  the  future  negotiations  of  the  govornuK'nts  is 
only  as  to  the  liability  of  the  United  States  in  law  ;\nd 
fact  "  to  pay  the  amcMints  mentioned  in  the  schedulf  to 
the  British  case."  Article  :<  of  the  Convention  provides 
that  the  Commissioners  shall  hear  only  questions  of  fact 
not  found  by  the  Tribunal  of  Arbitiation,"  and,  of  course, 
loto  ascertain  what  was  there  found,  and  what  is  theret()i(> 
excluded  from  the  cognizance  of  the  Commissioners,  cui 
otdy  be  ascertained  by  the  findings  themselves,  here  again 
referied  to  as  a  part  of  the  Convention,  as  has  been  seen. 

The  claims,  then,  referred  by  the  Convention,  are  no 
part  of  them  claims  of  vessels,  hut  are  claims  on  account 
of  ''persons,"  "arising  by  the  treaty,  and  award,  and  the 
findings  of  fact."  The  word  "arise,"  in  pointing  the  wav 
to  the  description  of  the  particular  claims  to  be  referred, 
as  used  in  Article  I.  of  the  Convention,  is  clearly  used  in 
20  the  sense  of  "  having  their  originals,"  "  presenting  them- 
selves," "appearing  from." 

The  only  other  sense  in  which  the  term  can  be  used  in 
connection  with  the  context  would  be  that  of  "  cause  "  or 
"  creation,"  which  would  give  to  the  sentence  the  mean- 
ing that  the  claims  for  injuries  were  caused  or  created  hv 
the  treaty,  the  award  and  findings.  If  that  construction 
is  accepted  it  is  against  Great  Britain  on  other  accounts 

These  claims  are  of  persons,  as  ascertained  by  the  find- 
ings by   the  schedule  (pp.  1  to  *l(»,   inclusive)  and   bv  tiic 
3oC(mvenlion  of  ISiMl. 

Article  I.  of  the  Convention  names  the  claims  as 
"  claims  on  account  of  injuries  sustained  by  persons." 

Article  III.  provides  that  the  Commissioner  shall  de- 
termine, &c.,  in  respect  of  "  each  claim,"  and  "  assess  the 
compensation  if  any  to  be  paid  on  account  thereof." 

Article  VIII.  uses  this  language:  "The  amount  awarded 
to  Great  Britain  under  this  Convention  on  account  of  any 
claimant,  shall  be  paid,  &c." 

'J'he  schedule  of  claims  of  persons  presentad  before  tlie 
40  Paris  Tribunal,  found  by  the  findings,  and  of  the  persons 
who  presented  them  as  claimants,  at  l>age  87  of  my  brief 
and  following  is  set  out,  and  the  list  and  the  nature  of  tiie 
claim  of  each,  as  set  out  in  schedule  (pp.  1  to  60,  inclusive) 
of  the  British  case. 

The  details  are  omitted  of  the  several  items  that  go  to 
make  u|)  the  claims,  except  in  one  case,  which  is  used 
for  illustration  of  every  other  claim.  The  amounts  are 
omitted  because  the  findings  did  not  pass  on  amounts, 
and  their  assessment  was  referred,  in  consequence,  to  tiu' 
50  Commissioners  by  clause  second  of  Article  III.  of  the  Con- 
vention. 

There  is  no  admission  or  finding  on  the  part  of  any  one 
that  any  claim  existed  as  of  right  prior  to  the  award,  or 
that  any  claim  existed  only  by  reason  of  the  award  ami 
the  findings  of  fact. 

We  will  now  turn  to  the  schedule  itself,  as  to  whicli 
there  is  nothing  to  found  an  assessment  upon,  or  to  attach 
a  finding  to,  that  is  not  covered  by  the  findings  of  fact  of 
the  Paris  Tribunal,  and  I  have  at  page  M"  of  my  printcii 
^argument  set  down  the  persons  and  their  claims  just  as 
they  are  from  the  British  schedule,  giving  descriptions  of 
property  as  there  set  out,  omitting  the  amounts,  however, 
which  for  assessment  are  i-eferred  to  your  Honors 

Take  William  Munsie  for  the  "Caro!ena":  He  is  tin' 
claimant  and  sworn  owner;  he  presents  a  claim  for  tlii' 


H)4:j 


(Mr.  Dickinson's  Closing  Argument.) 

value  of  the  vessel,  value  of  outfit,  insuniiice,  wages  of 
crew,  the  passage  of  crew,  passage  of  mate,  personal  ex- 
penses, legal  expenses,  estimated  seal  catch  for  IHHfi,  total 
claim  by  owner  with  interest  at  7  percent,  to  date  of  pay- 
ment. James  Douglas  Warren,  for  the  "Thornton," 
similar  details.  Charles  Spring,  similar  details  as  to  the 
"  Onward  "  and  "  Favourite,"  and  so  on  through  the  en- 

lotire  list. 

Mr.  Peters:  -I  would  like  to  correct  that  statement.  I 
want  lo  point  out  that  the  statement  as  read  hy  Mr. 
Dickinson  at  page  'M  is  not  quite  correct.  I  wish 
your  Honors,  if  you  have  the  schedule  before  you, 
would  look  at  what  I  mean.  That  purpoi  ts  to  be  a  state- 
ment of  the  ditt'erent  items  whicii  were  original!)' 
claimed  by  William  Munsie  for  the  schooner  "  Carolena"; 
he  puts  them  under  these  different  items.  I  want  to 
show   why  they    may   be   misleading:  "Items   of  claim 

20"  without  amounts  as  follows:  Value  of  vessel,  value  of 
"  outfit,  insurance,  wages  of  crow,  passage  of  crew,  passage 
"  of  mate,  personal  expenses,  legal  expenses,  estimated 
"  seal  catch  for  188(5.  total  claim  by  owner,  with  interest 
"at  7  per  cent,  to  date  of  payment."  Now  that  is  taken, 
and  my  friend  will  agree  with  me  in  this,  from  the 
schedule  as  presented  to  the  Tribunal  at  Paris.  You  will 
find  at  the  very  first  of  it  what  assumes  to  be  a  summary 
of  the  claims,  and  that  .schedule  contains  the  following 
items  at  first  sight:  Value  of  vessel,  va'ue  of  outfit,  in- 

30  8uiance,  wages  of  crew,  i)assage  of  crew,  passage  of 
mate,  personal  expenses,  legal  expenses,  estimated  seal 
catch  for  1H86,  just  as  my  friend  had  got  it  there;  but 
there  is  one  thing  which  makes  it  misleading.  At  the 
bottom  of  the  claim,  as  summarized  in  the  original  claim, 
there  is  a  reduction  made  for  the  value  consumed  during 
a  full  voyage,  which  makes  it  appear  that  tiio  amount 
charged  was  for  value  of  outfit.  It  is  simply  a  cross 
entry,  and  there  is  no  charge  at  all  In  that  sunmiary 
you  will  notice  that  there  is  not  a  claim  made  for  the 

4oestimated  catch  for  the  year  1SS7.  When  you  come  to 
refer  to  the  statement  itself,  the  affidavit  itself,  the  claim 
itself,  and  the  schedules  to  the  claim,  you  will  find  there 
is  a  specific  claim  put  in  for  the  estimated  catch  for  the 
year  1887. 

Mr.  Dickinson:— He  makes  it  as  owner  of  the  claim  and 
every  item  of  it;  that  is  the  point  I  am  making. 

Mr.  Peters: — Two  items  he  charges  there,  that  is,  the 
value  of  the  outfit  and  the  wages  of  the  crew,  are  simply 
a  cross  entry,  and  ^2,213  is  deducted.    The  other  point  is 

jothat  in  the  body  of  the  claim  the  claim  for  1S87  is  clearly 
mentioned;  therefore,  if  you  take  this  as  a  correct  sum- 
mary of  the  claims  we  have  put  in,  you  might  be  misled. 

Mr.  Dickinson:— Mr.  Munsie  makes  a  personal  claim  for 
himself  for  all  he  sets  out;  that  is  the  point;  and  he  is  the 
only  person  named  in  the  scl  edule.  In  his  testimony  he 
claimed  to  have  paid  the  crew,  and  so  on;  now  I  sup|)ose 
my  friend  calls  attention  to  that  item  of  1887,  to  make  the 
point  that  he  claims  for  some  one  else  besides  himself, 
that  is.  that  he  claims  for  the  crew. 

'•o     Mr.  Peters :~No,  I  do  not. 

Mr.  Dickinson:— The  point  I  am  making  is  that  the 
schedule  does  not  point  out  the  name  of  any  other  person, 
and  there  is  no  controversy  as  to  any  person  except 
William  Munsie  and  his  claim.  But  even  in  the  point  my 
learned  friend  makes,  he  will  find  in  Exhibit  E  of  Munsie'a 


r^ 


!•■; 


v. . 


1044 


If 


(Mr.  Dickinson's  Closing  Argument. "i 

statement  a  reference  to  tlie  estimated  value  nf  the 
"Carolena"  catch  for  J8H7,  less  cost  of  outfit  and  wam's 
of  crew  and  hunters. 

Your  Honors  will  find  throughout  that  the  owner,  as 
to  whorji  only  a  claim  can  he  made  under  the  tindiii^cs  of 
fact,  as  to  which  tiie  findings  of  fact  can  he  applied  to  all, 
in  reference  to  the  "  Sayward,"  "Cilrace."  "  Anna  Heck" 

loand  "Dolphin,"'  is  Thomas  H.  Coo[)er,  and  your  lienors 
cannot  find  that  any  one  else  owned  these  vessels,  aii.l 
apply  the  findings  of  fact  sent  down  to  your  Honors  liy 
the  convention. 

Now,  after  going  through  that,  to  mai;e  assurance 
douhly  sure  that  every  person  who  had  any  claim  of 
which  you  can  take  cognizance  should  be  named  anil 
found  within  that  Biitish  schedule,  and  must  be  embraced 
in  the  sciiedule  in  order  to  have  any  r.tanding  here,  1  call 
attention  to  the  last  page  of  the  British  schedule,  distin- 

2oguishing  the  claims  of  persons  for  arrests,  sufferings  and 
losses,  every  possible  other  thing  being  given  in  tiie 
schedule  of  ovviicis' claims — we  have  David  Munro.  Mm- 
ketich,  Guttormsen,  Norman.  Oglivie,  Black,  Warren, 
lieilly,  and  so  on,  who  were  all  on  ships  for  which  own- 
ers claim.  This  is  exclusive  of  any  possibility  tliat  any 
one  else  can  come  in  under  schedules  1  to  <')0  inclusive, 
other  than  the  ownersand  crews  who  are  named  personally. 
Next,  no  claims  are  made  in  behalf  of  any  other  pei.su'n 
at  all.     In  my  learned  friend's  first  brief  he  said  that  this 

30 was  done  and  instanced  as  examples,  the  "Lily,"  the 
"Ariel"  and  the  "Triumph,"'  but  tliose  instances  are  the 
only  ones  where  any  claim  is  suggested,  and  in  these  you 
will  see  that  in  the  case  of  Morris  Moss,  owner  of  the 
"Lily,"  Burns  of  the  "Triumph,"  and  Bucknam  of  the 
"Ariel,"  claims  are  set  up  in  general  for  the  crew  and 
hunters.  It  is  true;  but  the  crew  and  hunters  are  not 
named,  may  it  please  your  Honors,  at  all;  and  in  the 
details  of  each  of  thes'i  claims  in  schedule  1  to  flo,  inclusive, 
the  claim  for  these  is  made  by  the  owner,  and  is  included  in 

40  the  claim  of  the  owner,  and  so  stated  and  so  sworn  to,  so 
the  owners  are  the  persons  who  claim  for  that  item,  even 
as  to  the  "Lily,"'  "Ariel"  and  "Triumph,"  and  no  other 
peison  is  named.  No  other  persons  are  named  as  claim- 
ants, and  no  other  persons  are  described  or  suggested  in 
the  schedule  referred  to  the  Commission,  or  in  any  jiaper 
referred  to  in  the  treaty,  the  award  or  the  findings  of  fact 
of  the  Convention.  Hence  there  is  no  jurisdiction  of 
such  claims,  here  presented  for  the  first  time  in  the  whole 
history    of    the    subject    by    the    British     (iovernment. 

50 They  ask  for  a  lump  sum  for  persons  in  general  not 
named  in  the  schedule,  for  crews  and  others  whose  names 
are  not  mentioned  anywhere.  We  submit  that  this  will 
not  do  under  this  Convention,  and  the  new  position  of 
Great  Britain,  advanced  at  page  5()  of  the  argument,  can- 
not be  maintained. 

As  I  understand  the  argument  of  my  learned  friends, 
they  have  prided  themselves  on  this  position  that  these 
are  not  claims  for  persons  but  for  ships.  Your  Honors 
will  find  on  examination  of  the  Convention  that  you  will 

60 be  all  at  sea,  if  you  put  it  as  a  claiu)  for  ships,  and  any 
such  i)osition  is  carefully  avoided  in  the  findings  and  the 
Convention,  because  it  is  expressly  provided  that  you  have 
got  to  find  the  claim  of  each  claimant;  it  is  expressly 
provided,  too,  that  it  is  for  claims  of  persons.  There  never 
was  a  convention  yet  made  up  for  claims  for  ships  or 


1045 


St'  names 


(Mr.  Dickinson's  ClosiiiR  Argument.) 

property,  and  in  all  llio  conventioiiH  wIkm is  claims  ar<»  pro- 
sentt'd  in  respect  of  injury  to  a  ship  or  on  a  ship  they 
have  huf'n  |»rt'sentt'(l  by  persons,  lu*  tln-y  frt'ightei',  char- 
terer, owner,  crew  or  whatever,  separately,  and  the  de- 
cisions under  such  conventions  have  tinned  on  the  poli- 
tical or  civil  status  of  clainiaint  persons. 
Sor  lething  has  been  said  about  the  award  finding  that 
lothe  ships  seized  were  British  ships.     Tlie  finding  is: 

"  Tlmt  the  Haid  sovernl  m-ardioM  and  HeiznroH  of  veHHi>lH  were  made 
"  by  public  armed  vosselH  of  tliu  United  8tato»,  the  commauders  of 
"  which  had,  at  the  Hoverul  timen  when  thov  wore  made,  from  the 
"  Executive  Dei)artnumt  of  the  Government  of  the  United  States,  in- 
"  BtruotioUH,  a  copy  of  one  of  which  is  annexed  In  reto. " 

And, 

"4.  That  the  neveral  orders  mentioned  in  the  schedule  annexed 
"  hereto  and  marked  (C),  warning  vessels  to  leave  or  not  to  enter 
"  Behrin^  Hea,  were  made  by  public  armed  vessels  of  the  United 
-O  "  States,  the  commanders  of  which  had,  at  the  several  times  when 
"  they  were  given,  like  instructions  as  mentioned  in  finding  3,  and 
"  that  the  vessels  so  warned  were  engaged  in  sealing  or  prosecuting 
"  voyages  for  that  purpose,  and  that  such  action  was  adopted  by  the 
"  Government  of  tlie  United  States." 

Now,  in  Schedule  "C,"  the  only  time  that  the  words 
"British"  vessels  appear,  the  word  "British"  being 
carefully  excluded  from  the  Convention  it.'^elf,  ,as  we  have 
seen,  and  from  the  findings  themselves,  is  in  that  annex 
"C"  as  follows: 
30 

"  The  following  table  shows  the  names  of  the  IJritish  sealing  vessels 
"  seized  or  warned  bv  United  States  revenue  crui'^'  rs,  188C-18l)0,  and 
"  the  approximate  distance  from  laud  when  seized 

That  is  the  familiar  schedule  referred  to  previously, 
and  the  finding  only  uses  the  schedule  to  show  what  the 
names  of  the  vessels  were,  as  it  states,  and  it  does  not  pur- 
port to  find  that  they  were  British  ves-,els  any  more  than 
it  purports  to  find  the  facts  set  out  in  Annex  B,  which 
is  the  libel  used  as  an  example,  or  the  facts  found  subse- 
40  quently  in  other  exhibits  referred  to  in  the  findings.  It 
is  merely  referred  to  as  stated  in  finding  4  to  give  the  list 
of  vessels,  but  does  not  refer  to  British  vessels. 

Mr.  Peters,  do  I  understand  you  to  say  that  even  if  a 
crew  are  not  named— which  from  our  own  point  of  view 
would  throw  the  claim  out  of  the  case  —do  1  understand 
you  to  say  tliat  you  have  made  claim  for  the  wages  of 
the  crew  as  such? 

Mr.  Peters:— This  is  our  claim  exactly  on  that  point. 
The  wages  of  the  crew  would  be  included  in  the  gross  es- 
se timated  catch.  The  suni  that  we  claim  for  the  crew, 
whatever  it  might  be  in  addition— I  think  it  was  put  at 
$500  each — is  a  sum  for  their  personal  sufferings.  The 
claim  for  wages  is  different. 

The  Commissioner  on  the  part  of  the  United  States:— 
As  I  understand  it,  the  name  of  each  vessel  represents 
the  entire  undertaking— everything  there  is  behind  it? 

Mr.  Peters: — Yes,  it  might  be  fifty  people. 

Mr.  Dickinson:— I  desire  to  say  a  tew  more  words  as  to 
the  warning  claims: 

"  Warning  Claims." 

The  "  Favorite:' 

It  is  entirely  a  fictitious  claim,  tiiere  being  no  founda- 
tion in  fact  for  the  demand.  She  was  one-half  owned  by 
Alexander  McLean,  a  citizen  of  the  United  States.     He 


^IM 


I(i4n 


1 

W' 

1 

m 

S|^ 

»''' 

i 

^iiy 

■1' 
■if- 

(Mr.  Dickiiison'H  C'losiiiK  Argument. ) 

wan  the  cnptain  in  the  voya^je,  and  t(vstil!o<l  that  ho  l«>ft 
th<»  Sea.  not  hecansc  of  the  warning,  hut  ht'cause  lie  con- 
Kidt'ii'd  the  season  coniplt'tod.  She  lett  the  Sea  with  the 
largest  catch  hut  one  ever  made  in  the  leering  Sea. 
Tlirre  i.s  a  large  claim  for  proHpectivo  catch  ht'caiiseof  the 
warning. 

I  am   now  discussing  the  caF.es  wliere   they  may  have 
lodiarter  value  if  they  had  heen  damaged  hy  warning. 

The  "  lihiik  DiamoiKl" 

This  is  ohjected  to  aa  not  properly  hefoto  the  Commis- 
sion. The  (.'ommissioii,  under  the  provisions  of  the  Con- 
vention, nuist  find,  it  seem»  to  us,  a  part  ownership  in 
Alexander  Frank,  and  there  can  ho  no  recovery.  That  is 
a  case  of  warning. 

The  •'  Alfiril  Adams'' 
2Q  VVa.s  half  owned  hy  Alexander  Frank,  a  citizen  of  the 
L'nited  States,  who  is  admitti'd  hy  the  counsel  lor  (ireat 
Britain  to  have  heen  tquaily  interested  in  the  venture. 
Tiic  cl.iini  is  one  entirely  pertaining  to  the  value  of  the 
venture,  as  no  claim  is  made  for  the  ship  or  injury  to  tho 
ship. 

The  little  ''Triumph" 

Is  an  entirely  fictitious  claim.  Tho  vessel,  although 
warned  het'ore  entering  the  Sea,  pro(;eeded  to  seal  the  day 
after  the  warning,  aiiil  continued  uninterruptedly  until  the 
3°L'(lth  -August,  when  she  left  the  Sea  with  her  catch  on 
hoard.  The  vessel  was  hut  fifteen  tons  hurthen,  and 
hunted  until  the  usual  close  of  the  sealing  sen.son.  Her 
catch  wa"  greater  in  comparison  with  her  equipment  than 
that  of  the  "  Maiy  Ellen  "—the  largest  catch  ever  known 
in  the  Sea. 

The  "Jnanifx'' 

Is  entitled  to  her  charter  value  from  July  ;Ust  to  August 
2(tth  or  l,'.')th,  the  close  <.f  the  season,   in  addition   to  fhe 
40  value  of  (11!»  seal  skins  taken  froni  her  by  officers  of   the 
United  States. 

The  "Pathfinder"  iXo.  14). 

It  is  admitted  that  Andrew  J.  Bechtel  was  equally  in- 
terested in  the  venture.  This  is  a  case  of  warning.  The 
claim  is  entirely  for  the  value  of  tho  venture.  The  United 
States  assert  that  Bechtel  was  equal  owner  of  the  hottom 
of  the  ship.     He  is  admitted  to  be  an  American  citizen. 

The  "Black  Diaiiioiul"  and  "Lily." 
5°     We  submit  they  are  entirely  owned  by  Frank,  a  citizen 
of  the  United  States. 

The  "  Miuuie." 

Would  be  entitled  to  denuirrago  from  the  I7th  day  of 
August  to  the  2(ith  or  y.'ith  of  August,  in  addition  to  the 
value  of  418  seal  skins. 

The  bin  "  Triumph." 
One-third  owned  by  Daniel  McLean,  a  political  and 
gQ  civil  citizen  of  the  United  States  in  1KS9,  at  the  time  of  the 
seizure,  and  a  naturalized  citizen  of  the  United  States  since 
18!»2,  and  a  resident  of  the  United  States;  and  therefore  up 
to  and  since  1H!»2,  and  at  the  time  of  the  Paris  treaty  and 
at  the  time  of  the  Couvention  and  since,  a  United  States 
citizen. 


r 


1047 

(Mr.  Dickinson's  Ciuaing  Argumunt.) 
The  ••  Ariel." 

An  entirely  flctitiouH  claim.  A  frnudulont  claim  was 
nia<U)  to  r«'c'ov«>r  for  interrnption  of  tho  voyago  from  the 
80th  of  Jniy,  tuid  it  is  now  admitted  timt  siic  m«iik>d  overy 
day  possible  and  was  on  the  ground  -  called  by  the  counsel 
for  (ireat  Britain  the  best  in  Moring  Sea— until  tht»  IHthof 
August,  when  tho  captain  prc|>aro<l  to  loavo  tho  Sea.  She 
'Omado  a  full  catch.  It  nhv  is  entitled  to  anything  after  her 
owners  have  made  a  fraudulent  claim,  and  have  sworn  to 
it;  she  is  entitled  to  demurrage  from  August  l8th  to 
August  20th  or  25th. 

The  "  Kate.'' 

Also  an  entirely  fic;titiou9  claim,  because  to  make  out 
any  dem.i:id  \*.  all  a  prolonged  season  to  October  1st  ia 
claimed.  This  is  exce[)tional  and  a  claim  siu'  ijcueris. 
She  cannor,  recover  anything  unless,  the  season  lasts  to 
20 October  Ist.  'I'ho  testimony  referred  to  in  tho  oral  argu- 
ment regarding  this  claim  discloses  that  the  captain  and 
mate  both  intended  to  abandon  sealing  the  last  of  August. 
The  vessel  sealed  every  day  up  to  anil  incbuiing  August 
18th.     The  only  dam.ige  that  could  be  awarded  would  bo 


demurrage  from   I8th  August  to  2t)th  or 
close  of  the  season. 


."itii  August,  tho 


30 


The  "i'«//(//Hrfcr"(No.  21). 

The  claim  for  seiziue  in  Neah  Bay  for  thousands  of  dol- 
lars is  too  ridiculous  for  serious  consideration. 

The  "  Heriiiefta" 

Tho  United  States  admit  liability  for  the  charter  value 
of  the  '*  Henrietta"  from  the  titli  September.  lSit2,  until 
the  2'M\  day  of  November,  1S!»3,  together  with  such  losses 
as  tho  owner  actually  sustained. 


^^11 


11  i  I 


May  it  ]ileaRe  the  Court,  I  have  now  discharged  a  ve- 
g[)onsibility  which  was  never  sought  nor  coveted  by  me — 
'^^a  responsibility  which  I  endeavoied  to  lay  down  lionorably 
on  my  leturn  from  Victoria,  when  theie  was  a  change 
in  the  administration  of  my  (iovernment,  but  as  my  Gov- 
ernment desired  me  to  finish  the  labors  commenced  at 
Victoria,  and  the  labors  which  preceded  Victoria  in  mas- 
tering the  enormous  history  of  the  matter,  I  have  re- 
mained in  the  case.  I  shall  bo  satisfied  aid  rewarded  suffi- 
ciently if  in  any  way  I  have  been  able  to  aid  this  High 
Commission  in  reaching  a  conclusion  upon  the  important 
questions  involved.  Little  other  reward  can  be  expected 
5^  except  that  of  a  clear  conscience  for  having  performed 
a  laborious  duty  with  some  degree  of  industry. 

I  desire  to  say  to  my  friends,  the  counsel  for  Great 
Britain,  that  I  fully  appreciate,  and  desiie  to  put  on 
record,  that  at  no  time,  from  my  first  entrance  into  the 
case  until  now,  has  theie  been  any  cause  of  embai-rass- 
ment  or  of  difficulty  on  the  i)art  of  the  counsel  for  the 
United  States  that  they  have  not  aided  to  remove;  they 
never  have  failed  in  courtesy  and  in  furnishing  to  us  any- 
,  thing  within  their  reach,  whether  it  would  help  or  harm. 
'°lt  is  an  acknowledgment  that  is  due,  and  that  I  make 
with  the  greatest  pleasure. 

My  associate  counsel  know  that  they  have  my  grati- 
tude for.  and  my  high  appreciation  of  their  invaluable 
assistance  at  all  times  in  the  course  of  these  pi-oceedings. 


1048 

(Mr.  Dickinson's  Closing  Argument.) 

The  High  Commissioners  have  knowledge  of  their  services, 
and  know  that  those  wordy  of  mine  are  well  deserved. 

Notiiing  remains  for  me  but  to  thank  the  High  Com 
missioneis  for  their  courtesy  and   kind  attention  during 
the  long  presentation  of  the  case  of  the  United  States. 


10 


The  Commissioner  on  the  part  of  the  United  States:~Mr. 
Peters,  I  would  be  glad  if  you  would  state  distinctly  your 
position  in  reference  to  the  quefstion  raised  by  Mr.  Dickin- 
son, near  the  close  of  his  argument,  with  regard  to  the  in- 
terest of  the  hunters. 

Mr.  Peters:— I  will  certainly  make  myself  very  plain  on 
that  point. 

At  lialf-past  throe  o'clock  the  Commissioners  rose. 


Commissioners  under  the  Convention  of  February  8, 

1896,  between   Great  Britain  and  the 

United  States  of  America. 


Legislative  Council  Ciianibers,  Proviiuial  Building, 
At  Halifax,  N.  S  ,  Sept.  L>7th,  IS'.iT. 
10 

At  l(t.3(>  A.  M.  the  Coininissioneis  look  tlR'ir  seats. 
Mk.  Peteus'  Akgument  in  Kepia'. 

Mr.  Peters: — Your  Honors,  in  rising  to  reply  to  the  ar- 
guments delivered  by  tiie  (counsel  fur  the  United  States,  I 
f)ropose  to  take  S()ine\.')r>t  the  coursi!  pursued  by  my 
earned  friend,  Mr.  DicUhison,  and  to  l)egin  by  what  he 
called  clearing  away  the  driftwood,  so   that  we  can  come 

20tlownas  quickly  as  possible  to  the  real  questions  in  dis- 
pute. Before  proceeding  to  deal  with  the  (juestions  be- 
fore the  Court  let  me  ren)aik  that  my  learned  friend,  Mr. 
Dickinson,  took  occasion  to  refer  to  certain  n)isunder- 
standings,  which  had  apparently  arisen  between  counsel, 
as  to  statements  in  their  i»rinted  briefs.  I  am  exceedingly 
glad  that  Mr.  Dickinson  has  referred  to  tiiat  matter  in  the 
manner  in  which  be  did.  and  that  he  has  tonseciuently 
obliterated  any  cause  of  dispute  on  matters  of  rather  a 
pergonal  nature.     My  learned  friend's  explanation,  so  far 

3° as  1  am  concerned,  was  most  satisfactory,  and  is  readily 
accepted  by  us  in  the  generous  spirit  it  is  offered. 

There  are  two  or  three  cases  of  a  special  nature  entirely 
difTerent  in  their  circumstances  from  most  of  the  cases, 
which  your  Honors  have  before  you,  and  in  the  process 
of  clearing  away  the  driftwood  1  propose  to  take  up  these 
cases  first. 

"Oscar  and  Hattie." 

I  shall  begin  by  making  reference  to  the  argmnent  of 
40  my  learned  i'riends  in  regard  to  the  case  of  the  "  Oscar  and 
iiai  tie."  It  stands  upon  an  entirely  ditferent  footing  from 
any  >ther  claim  liefore  this  tribunal.  My  learned  friend, 
Mr.  VVarien,  pointed  out  what  he  deemed  vvasa  misappre- 
hension on  oiu'  part  with  rt>gai'(l  to  that  case.  He  said  we 
had  treated  it  as  if  it  were  a  prosecution  for  an  offense 
against  the  iiioiliis  rircnili  of  isu-j.  when,  as  a  matter  of 
fact,  it  was  a  prosecution  under  the  terms  of  the  Seal 
Fisheries  Act,  ISJU.  There  is  really  no  ilispute  between 
us  on  that  point.  We  all  know  that  the  Seal  Kislieries  Act 
:;oof  lM>i  was  passed  in  conformity  with  the  terms  of  the 
/((o(//(.s  of  IS'.H,  for  the  purpose  of  making  effectual  that 
iiKidus,  and  when  we  speak  of  the  piosecutioii  under  the 
terms  of  the  iiiudu.'i  rirciuli  of  1S!Il>,  it  will  be  fully  under- 
stood that  we  mean  the  prosecution  which  had  its  basis  in 
the  treaty  of  IKIM;  and,  of  course,  had  to  be  carried  out 
under  the  act  necessary  to  make  thiit  treaty  alive.  The 
distinction  is  a  merely  technical  one,  and. we  have  not 
dealt  with  these  matters  in  a  technical  way  at  all. 

Let  us  come  at  once  to  tlitonly  ([uestion  really  in  dis- 
(opute  in  the  case.  Our  (;ontention  has  l)een  to  this  effect, 
that  the  offense  aimed  at  l)V  both  the  treaty  and  the 
statute  is  the  hunting  or  attempting  to  hunt  seals  in 
Hehring  Sea.  No  person  is  guilty  of  an  ott'ense  against  the 
terms  of  the  treaty,  or  against  the  lernis  of  the  Seal  Fish- 
eries Act  of  1M)1,  unless  he   has  either  hunted   seals  in 


'ii 


Rt^ 


1050 


(Mr.  Peters'  Argimient  in  Reply.) 

Bt'hring  Sea  wliilst  that  act  was  in  force,  or  lias  iiiteuded 
or  attempted  to  seal  there. 

The  Coinrni.ssioner  on  the  part  of  Great  Britain:  -Theie 
is  a  distinction  between  the  words  "  intended  "  and  "at- 
tempted"? 

Mr.  Peters: -I  did  not  mean  to  use  the  word  intemlfd, 
vonr  Honoi'.     His  attempting  to  seal  or  ills  being   theie 


10  with  the  intention  of  seahng;  that  would   be  an   (itYt 


against  the  Se;d  Fisiiery  Act  (U' agiiinst  the  treaty.     Ti)at 
is  the  position  we  always  took. 

Now.  we  find  by  the  letter  from  C'onnuander  Evnns  of 
the  United  States  cruiser  (which  letter  har%  been  so  fre- 
quently leferred  to)  that  this  vessel  was  seized  for  three 
renstins— the  first  and  .second  reasons  were  for  breaches  of 
the  revenue  laws— and  the  third  reason  was  for  having  on 
board  seal  skins,  aims  and  other  imiileincnts  that  ((Uild 
be  used  in  killing  seals  M  jiage  ITn  of  our  arguiiK.'nt  we 
t^oset  out  the  words  of  that  letter  as  follows: 

"  (1st.)  Violation  of  the  Uuitod  States  rcvcuuc  laws,  ns  lioiuK  ilU'- 
••  frally  iu  the  Ihiitetl  States  ports;  (2n(l.)  violation  of  the  same  law  in 
"  haviut;  transferrevl  seal  skins  to  ami  reeeiving  siii)i>lies  fnnn  the 
"  '  C'o(initlani;'  (lid.)  having  on  board  27()  skius  and  a  coini)lete  seal- 
"  ing  outfit  in  viidation  of  the  modus  fireiidi." 

The  first  point  I  wish  to  call  your  Floiior's  attention  to 
is  this:  It  is  manifest  that  the  first  twogrouiids  of  seizure 
were  insulficient,  and    their  insutficieiicy  is    lies!    pi  >  -ed 

30  by  tlie  fact  that  no  steps  were  ev(>r  taken  to  in  tuiy  ^^  ay 
enforce  the  seizure  upon  either  the  fir.st  or  second  gi.ni.ids 
alleged.  The  third  ground  is  in  inifestly  insufficient  also, 
that  is  if  lam  correct  in  stating  tliat  the  offense,  iiotli 
under  the  treaty  and  under  the  Seal  Fishery  Act  of  IsiM, 
is  not  the  having  on  board  seal  skins  or  sealing  outlit,  liut 
the  sealing  or  attemjiting  to  seal. 

It  therefore  follows  that  the  grounds  ui)(iu  which  this 
vessel  w;is  originally  seized,  were  insufficient,  and  there- 
fore the  seizure  itself  was  illegal.     We  .submit  that  a  seiz- 

40ure  which  was  originally  for  insufficient  cause,  could  never 
justify  a  condemnatidii.     That  is  our  point. 

What  does  my  learned  friend  answer  to  tliat^  He  an- 
swers that  the  vessel  after  seizuie  l)y  the  conimander  of 
the  Piiited  States  cruiser  was  handed  over  to  Captain  Parr 
of  the  British  Navy  vuider  the  terms  of  the  modus,  that 
tiie  facts  were  then  known  to  him,  and  tiiat  if  the  vessel 
was  improperly  taken  over,  it  was  Captain  Parr  that  was 
to  blame.  I  submit  that  it  does  not  appear  here  by  the 
Kecord  that  Captain  Parr  was  informed  that  the  cause  of 

Soseizure  was  merely  having  sealskins  and  sealing  outfit 
on  board.  Thei"  is  iiothing  to  show  that.  If  tiiat  had 
been  shown  to  Captain  Parr  the  assumiition  is  that  he 
would  have  acted  in  accordance  svitli  the  statnte  and  the 
treaty,  and  would  have  followed  the  instrnctinns  which 
he  had  from  iiis  own  (iovernnient,  and  that  he  would  not 
liave  taken  the  vessel  over  on  a  charge  which  did  notcoii- 
stitnte  an  ofTeiise  eitiier  under  the  statute  or  the  tre;ity. 

We  therefore  start  from  the  point  that  the  grounds  for 
the  seizure,  ;is  stated  by  the  ofiticers  of  the  United  States, 

60  were  insufficient,  and  that  no  matter  what  happened 
afterwards,  that  seizure  could  not  become  the  foundation 
for  an  act  of  condemnation.  We  contend  that  not  only 
was  the  seizuif^  for  an  insunicient  ground  liut  also  that  i.ie 
captaia  of  the  "  Mohican"  at  the  time  of  seizure  kiK.'W 
that   no  offense    had    been   committed   against   the  Seal 


ior>i 


II 


(Mr.  Peters'  Aigument  in  lieply.) 

Fishery  Act  of  1891,  and  tiiat  lie  was  convinced  at  tiiat 
time  that  tlio  vessel  was  tiicrc  for  an  innocent  purpose. 
We  contend  tiiat  it  was  tliis  knowledge  of  innocence  tliat 
induced  liini  in  stating  tlie  cause  of  the  seizure,  to 
confine  himself  to  an  aili'galitm  tiiat  slie  had  on 
hoard  2H>  seal  siiius,  wiiereas  if  lie  had  heon  satisfied 
tliat  slie  was  tiiere  for  an  imiiroper  purpose  lie  would 
loiiave  put  ill  liis  report  that  siie  was  seized  for  some 
offense  against  tlie  mixhi^  riveirli,  or  against  tlie  Heal 
Fishery  Act  of  isni,  We  say  tiiat  he  seized  tiii.s  vessel 
knowing  tliat  slie  iiad  not  committed  an  of1"ense. 

Tlie  answer  from  our  learned  friend  is,  lliat  according 
to  the  instructions  given  hy  tlie  United  Stales (jovernment 
to  the  commandi'r  t)f  their  cruiser,  he  had  no  d'scretion, 
but  was  obliged  to  s(Mze.  These  instructions  lu.ve  been 
referred  to,  and  I  read  them  again  from  page  (53i>,  Foreign 
Relations  of  the  United  States: 

20  "  Any  vessel  found  to  be,  or  to  have  been,  employeu  in  sealing 
"  within  the  prohibited  waters  of  Behring8ea,  whether  wnh  or  without 
"  warning,  and  any  vessel  found  therein,  whether  warned  or  not,  hav- 
"  ing  on  board  imjilements  for  taking  seal  or  sealskins  or  bodies  of 
"  seals  will  be  seized." 

Upon  the  face  of  these  instructions  it  would  appear 
that  the  United  States  had  given  to  their  officers  no 
ojjtion  as  to  whether  they  would  seize  the  vessel  or  not.  It 
appears  to  be  a  precise  instruction  that  he  should  seize 
every   vessel    having  sealskins   on   board.     We  say  that 

30 these  instructions  slu)uld  not  have  been  given,  and  that 
they  went  beyond  the  terms  of  the  Seal  Fisheries  Act, 
and  beyond  the  terms  of  the  treaty;  and  that  if  an  officer 
of  the  United  States  having,  in  consequence  of  these  in- 
structions, made  a  seizure  which  he  would  not  have  made 
had  he  received  instructions  telling  him  to  seize  for  of- 
fenses against  the  Seal  Fishery  Act  of  18!>l,  or  against 
the  modus  rirctidi  of  1892,  the  United  Stat' s  Uovern- 
nient  is  responsible.  We  say  that  if  ju'oper  iistructions 
had    been   issued  to  him,  and  if  a  i)roper  disc  etion  had 

40  been  left  to  him,  as  should  have  been  done  under  the  treaty, 
he  would  not  have  made  this  seizure.  We  say,  there- 
fore, that  it  is  th(!  fault  of  the  United  States  that  the 
seizure  was  made,  because  they  have  given  instructions 
that  go  beyond  the  treaty,  and  we  .say  that  they  should 
bear  the  consequences  and  nay  the  damage.  That  is  our 
contention  with  regard  to  this  point. 

When  this  argument  was  presented  the  learned  Com- 
missioner for  the  United  States  suggested  that  it  was  pos- 
sible that  these  instructions  might  have  been  transmitted 

SObythe  Government  of  the  United  States  to  the  Govern- 
ment of  Great  Britain,  and  that  from  a  mutual  transmis- 
sion of  the  instructions  it  might  be  argued  that  there  had 
been  an  agreement  as  to  what  construction  should  be  put 
upon  the  statute  and  upon  the  treaty.  Tho  learned  Com- 
missioner of  the  United  States  asked:  Had  these  instruc- 
tions been  transmitted  to  the  British  Government? 

It  appears  that  on  the  '28th  April,  1H92.  pursuant  to  a 
request  from  Sir  Julian  Fauncefote,  the  instructions  were 
transmitted  to  him.     But  we  fiiul  that  these  instructions 

fiOwere  not  entirely  agreed  to  by  the  British  Government, 
and,  therefore,  no  inference  as  to  an  agieement  on  con- 
struction can  be  drawn  from  the  fact  of  their  having  been 
transmitted.  I  contend  that  the  correspondence  slw/wa 
tliat  wiien  the  instructions  were  sent  by  the  United  States 
to  Great  Britain,  that  Government  did  not  consent  to  the 


I    I    ! 


20 


so; 


1052 

(Mr.  Peters'  Argument  in  Reply.) 

foim  of  instructions  but  objected  to  it,  Further,  by  the 
very  instructions  which  she  at  that  time  exchanged,  slie 
showed  tiiat  sbe  objected  to  the  American  instructions. 
The  instructions  were  submitted  to  Sir  Julian  Pauncefote 
on  the  '28th  of  April,  and  the  letter  transmitting  them 
was  ansA'cred  by  Sir  Julian  Pauncefote  on  tbo  11th  day 
of  May,  lb'^t2,  as  follows: 

'°     Sir  Julian  Pauncefote  to  Mr.  Blaine: 

"  British  Legation, 

"  Washinoton,  May  11,  1892. 
"  Sib, — In  the  memorandum  wbioh  you  placed  in  my  bandH  on 
"  the  23d  nltiuio,  roapectiug  the  instructions  to  be  issued  to  naval 
"  officers  charged  with  the  enforcement  of  the  moitus  viveiidi  in 
"  Behring  Seo,  under  the  convention  of  the  18th  ultimo,  it  wns  sug- 
"  gested  that  sealing  vessels  found  in  Behring  Sea  in  coutravimtiou  of 
"  the  convention  should  be  seized  without  the  previous  warning  given 
"  last  year,  owing  to  the  late  date  at  which  the  vtoUiis  vivemit  of  1891 
"  was  agreed  to. 
"  I  transmitted  the  memorandum  to  the  Marquis  of  Salisbury,  and 
I  have  now  received  his  lordship's  observations  thereon. 
"  Lord  Salisbury  pt)int8  out  that  the  act  of  Porliament  referred  to 
'  in  the  memorandum  throws  on  the  owner  and  master  of  any  ship 
found  in  Behring  Sea  with  the  equipment  specified,  the  duty  of 
■  proving  innocent  intent.  The  British  instructions  of  last  year  did 
'  not  require  proof  of  previous  warning  before  seizure,  'l)ut  au- 
thorized the  naval  officers  to  let  a  vessel  go  with  warning  if  they 
thouglit  the  master  was  acting  in  ignorance  of  the  prohibition  or 
believed  his  ship  to  be  outside  the  line  of  demarcation. 
"  Her  Majesty's  (lovernment  seo  no  reason  for  altering  that  instruc- 
tion. They  will  take  steps  to  warn  the  sealing  vessels,  which  cleared 
before  notice  was  given  of  the  renewal  of  the  modus  vivenili,  and  it 
ia  not  likely  that  many  vessels  will  be  left  unwarned.  But,  in  their 
"  oi)inion,  it  would  seem  desirable  that,  in  order  to  obviate  cases  of 
"  hardship  which  might  arise,  the  United  States  Naval  Officers  should 
"  receive  some  discretion  similar  to  that  given  in  the  British  inatruc- 
"  tions. 

"  I  have,  etc., 

"Julian  Pauncefote." 

It  is  explicitly  stated  there  that  the  British  Government 
did  not  assent  t<>  the  form  of  the  American  instructions. 

Mr.  Uickinson: — That  is  not  (piite  material  here  as  the 
40"  Oscar  and  Ilaliif^"  had  been  warned. 

Mr.  Peters:  -I  am  .iwan*  of  that,  but  I  am  pointing  out 
that  it  cannot  be  argued  that  (ireat  Britain  agreed  to  the 
instructions  that  the  United  States  were  giving  to  their 
otFiccrs.  Of  course  I  need  iiardly  i)oint  out  tliat  neitlier 
one  (lOvernment  nor  the  other  could  in  any  way  affect  the 
form  of  instructions  which  would  l)e  given  by  one  of  the 
nations  to  its  own  oHiccrs.  The  only  objection  that  could 
be  insisted  upon  would  be  v.hen  tht."  instructions  were  ab- 
solutt'ly  in  conflict  with  tlie  tfrnis  of  the  mutual  agree- 
SOineiit  which  had  been  arrived  at  Ijctwcen  the  two  nations. 
To  that  letter  which  1  have  read  from  Sir  Julian  Paunce- 
fote, Mr.  Blaine  replied  ou  May  12,  1892,  as  follows: 

Mr.  Blaine  to  Sir  Julian  Pauncefote: 

"  Depautment  oi'  State, 

"  Washington,  May  12,  1892. 
"  Sm, — I  have  the  honor  to  acknowledge  tlie  receipt  of  your  note 
"  of  yesterday  suggesting  tlint  the  meuiorandum  which  I  placed  in 
'•  your  hands  on  tbe  2;)d  ultimo,  respecting  the  lustructioua  to  be 
"  issued  to  naval  officers  charged  with  the  enforcement  of  the  modus 
6o  "  fii-midi  in  Behring  Sea,  under  the  convention  of  the  18th  ultimo,  be 
"  modified  so  as  to  authorize  the  naval  officers  to  let  a  vessel  go  with 
"  warning  if  it  is  thought  that  the  master  is  acting  in  ignorance  of 
"  the  prohibition  or  believes  his  ship  to  be  outside  of  the  line  of  de- 
"  marcation. 

"  In  rei)ly,  I  have  the  honor  to  inform  you  that  this  (lovernment 
"  dooH  not  think  it  necessary  to  modify  tlie  instructions  givMi  to  the 


¥ 


,v 


I    ^' 


fA  . 


1053 


.itious. 
aunce- 


1892. 
our  uote 
)laped  in 
UR  to  be 
le  moilits 
Itimo,  1)6 
go  with 
ranee  of 
lie  of  de- 

'ornmont 
>i\  to  tho 


lO 


(Mr.  Peters'  Argunient  in  Reply.) 

"  naval  ofHcera  of  tiie  Uuitod  States.  If  a  vphscI  in  found  in  'Jeliring 
"  Sea  with  a  Healing  outtit,  the  only  Hafc  course  to  take  is  to  compel 
"  her  to  leave  that  sea,  aud  this  can  only  be  oft't'ctivclv  done  bv  taking 
"  her  out  under  convoy.  Tliis  the  Uuiteil  Htiites  oflicevH  are  "directed 
"  to  do,  and  to  turn  such  British  vessels  over  to  the  British  naval 
"  oKcer  at  Uualaska.  If  he  chooses  to  take  the  resi»onsibility  of  re- 
"  leasing  such  vessels,  then  it  is  his  rifjht  to  do  so. 

■■  I  have,  i'c, 

"  .Tames  O.  Blaine." 


Up  to  tliis  time  there  is  simply  a  sujigestion  on  the  part  of 
Great  Britain  tiiat  certain  (iistietidii  sliould  bo  given. 
But  it  is  also  quite  plain  tliat  (tieat  Britain  did  not  give 
her  consent  to  tiie  I'oi'm  of  the  United  States  instructions. 
This  letter  of  Mr.  IVaine,  for  some  reason  that  wo  have 
no  explanation  of,  does  not  ajipear  to  have  h(>en  entirely 
acceiitahle  to  the  autliorities  of  I  he  Tnited  States  them- 
selves, because  on  the  2ist  of  May,  Js'.tzi,  Mr.  Wharton, 
who  was  the  acting  Secretary  of  State  at  tiiat  time,  wrote 
20to  Su' Julian  Pauncefote  the  following  letter,  which  I 
contend  has  the  effect  of  taking  hack  some  of  the  ideas 
expressed  in  Mr.  Blaine's  letter: 

Mr.  Wliarton  to  Sir  Julian  Pauncefote: 

• '  Depart-mknt  op  State, 

•■  Wamiinoton,  JIhv  21st,  1892. 
'•  Sir:— In  the  note  which  I  addressed  to  you  ou  tho  12th  instant,  in 
"  referring  to  vessels  witli  sealiiit;  outtit  which  luinht  be  seized  by 
"  American  vessels  iu  Behring  Sea  and  hauiied  over  at  Unalaska  to  a 
"  British  naval  oflicer,  it  was  not  intended  to  convey  tho  imjiression 
lO  "  that  the  Government  of  the  United  States  would  ai)i)rove  of  the  re- 
■ '  lease  of  such  seized  vessels  by  the  British  naval  officer,  although 
"  under  the  orders  which  your  note  of  the  11th  instant  indicated  such 
"  ofiScer  would  receive,  he  would  seem  to  have  the  right  to  do  so." 

The  last  clause  of  Mr.  Blaine's  letter  was  that  the  British 
officer  to  whom  a  .^eiztd  vessel  was  delivered,  if  he  wished 
to  take  the  responsibility  of  releasing  such  vessels  as  were 
handed  over  to  him,  he  would  have  the  light  to  do  so. 
That  had  been  written  only  a  few  days  before  the  pen- 
ning of  the  letter  now  being  considered  in  which  Mr. 
I"  Wharton  asked  it  to  be  understood  that  the  United  States 
Government  does  not  agree  that  the  British  officer  shall 
have  the  right  to  release  any  vessel  that  is  banded  over  to 
him  for  prosecution. 

"  I  understand  that,  iu  accordance  witli  the  terms  of  the  modus  con- 
'•  veution  of  the  IHtli  ultimo,  both  governments  have  jirohibited  seal 
"  killing  in  Bering  Kca  ;  that  the  laws  enacted  to  enforce  said  pro- 
"  hibitiou  make  the  ])rosence  of  a  vcbhcI  in  that  sea  with  a  sealing 
"  outfit  a  pri)iiii/(icif  oH'ense  ;  and  that  under  Article  III.  of  the  eon- 
"  ventiou  when  seized,  it  is  the  duty  of  the  respective  naval  officers  to 
.,  I  "  hand  the  vessel  over  to  the  authorities  which  '  shall  have  jurisdic- 
"  tion  to  try  the  offense  and  impose  the  penalties  for  the  same.'  " 

That  is  what  the  United  States  officials  understood,  but 
that  is  not  what  the  British  Government  understood,  and 
so  there  was  a  disagreement  as  to  the  real  meaning  of  the 
statute  and  the  treaty. 

Mr.  Dickinson:— Did  it  result  ultimately  in  disagree- 
ment? 

Mr.  Peter8:--Yes,  it  ends  in  a  disagreement,  and  the 
two  countries  have  been  ajiai't  on  that  point;  and  it  is  for 
'  this  Court  to  decide  whicli  is  right.  It  is  for  this  Cnurt  to 
decide  whether  or  not  the  British  Govenunent  is  right 
when  they  contend  that  the  offense  against  the  treaty 
was  taking  or  attempting  to  take  seals,  or  whether  as  the 
Cnited  States  contends,  it  consists  in  the  vessel  being  iu 
'he    sea    with    seal    skins    or    sealing  outtit  on  board, 


k 


1054 


(Mr.  I'ttfis"  ArgiiiiH'iil  in  Ucply.) 

nlthough  botli  tliosoiziiig  (idlicoiiUKl  tlic  pnrty  sci/od  knew 
tliat  110  seals  liad  hccii  taken  l)_v  tlie  vessel  in  lU'lirin^  Sea 
and  tliat  tliete  was  no  iiitentidn.  to  take  any.  Tlie  letter 
jiiocectls: 

"  Umlov  tlic  (■iiciinisliinccs  uttciidiii),'  the  iciiewul  of  laat  yeiir's 
■' nioiliiH,  witli  till'  full  ussnr.'n'i'  received  bv  the  hcuIcih  lii>f(iro  tliey 
•'lint   to  si'.i  tlmt    it   wiiiiltl   lie  coiitiiMU'cl   in   f<ii<'c,  it   can   luiidlv  lie 

lo  "  ilainiiHl  tlmt  anv  nl'  (l-.'ui  i'mnil  this  season  in  iirhriiin  !Soa  ari'  ou- 
■•  titli'd  (o  u  fiirtliti  warnint,'.  L  snliiiiit  that  the  onlv  |pi-oi)it  ('(lurse 
'•  for  the  naval  otliccrs  to  pnvsuc,  is,  when  a  vcssi-l  has  lici'ii  sci/ed,  to 

"  dflivi'i'  hi'V  ovi'i'.  in  ac rdano'  with  tlic  tciiiis  of  the  convention,  to 

"  the  judicial  authorities  for  a  Ic^'al  delerniination  of  the  facts  of  the 
"  case. 

"  It  nia\  not  lie  iiiopiioitune  to  recall  the  fact  that,  so  far  as  I  am 
■'  adviscil,  till  onlv  seizures  made  last  scumiu  in  the  ISehrinj.;  Sea  were 
"Viy  the  Anil  I'ican  naval  ollicers,  and  that  the  two  ISritish  vcssel.s 
"  seiy.id  and  tiirned  over  to  the  Urilish  naval  ollicers  (one  of  whirli 
"  baviup  lieeu  cleared  hv  the  Uritish  customs  authorities  after  the 
•'  pulilicatiou   of  the  niodusi,  were  releasi'd  at  Victoria  without  any 

20  "  ]i'il''i"l  investi^iation.  In  view  of  (he  fact  that  hoth  f{overniiieut"s 
••  have  united  in  the  earnest  eH'ort  to  iircvent  this  season  the  uniire- 
"  eedented  slant;liter  of  the  seals  in  Jiehrin^  Sea  which  occurred  last 
"  year,  all  sealilii,'  vessels  found  in  those  watirs  should  he  taken 
"  therefrom  h\  force  and  delivered  over  to  the  judicial  authorities. 
•'  lu  no  other  way  can  the  lU'ohiliition  decreed  iiy  the  two  nations  be 
"  made  effective. 

"  I  have,  etc., 

•■  WlLLIA-M    F.   WlIAllTON, 

'•  Acting  Secretary." 

After  this  coiT(s|ioiuieiK'e  hail  takni  place,  the  last  letter 
:^c.of  which,  as  has  heen  seen,  lieing  date  tl  the  21st  day  of 
May,  ls()2.  Sir  .Jidian  I'auncefote  on  2d  June,  writes  to 
Mr.  Blaine  sending  hint  a  copy  of  the  instriicli(Mis  <i,iven 
by  the  (iovernnient  of  (iriat  Ihitain  to  the  coniniandors 
of  British  cruisers,  (ireat  Britain  had  objected  tu  the 
form  of  the  I'niied  Slates  instructions  in  several  parlicu- 
lars,  then  (heal  Biitain  sent  tu  llie  I'liited  States  ;i  cepy 
of  the  instrmtions  which  she  was  giviii};-  to  lier  naval 
officers,  and  the  difference  between  these  instrnctions 
marks  tlie  dispute  between  tlie  two  j;ovei  iiments. 
40  Mr.  Dii  kiiisiiii:  (iive  the  date  of  these  two  sets  of  in- 
strtictiens,  not  of  the  letter  announcin<^  them. 

llr.  Peters: — The  insti iiitiniis  given  by  Mr.  Tracy,  tb.e 
Sfici'etary  of  the  Navy,  to  Caplain  Kvans,  lli(>  cotnniander 
of  the  "Viiiktiiwn."  was  dated  \\'asbiiiL;t<Hi,  2.'itli  April, 
1H92.  The  d.ito  of  the  Britisii  nistriictiniis  are  nut  hero, 
hut  Idoy  must  have  been  after  the  Kth  May,18!>2.  The 
British  instructions  contained  the  following: 

'   Uhb  ntnioKt  omleavonrs  to   carry  out  this  duty.     After  carryiuf,' 
"  .'ut  above  proceed  into  the  sea  and  cruise  there,  as  necesHary  to  eu- 
-Q  "  force  eonveutiou,  seiziup,  whether  warned  or  not,  any  v.-isels  found 
'  otleudiui:. " 

These  are  tin-  woids  of  the  British  insi  1  iictions. 

A  comparison  of  the  instnictioiis  given  (o  the  officers 
of  the  cruisers  of  the  two  (lovernnients,  clearly  sliows  the 
difference  of  opinion  as  to  tbf  const  rnel  ion  <d"  the  treaty, 
tlie  one  r.inl.-inling  that  the  mere  having  certain  articles 
on  board  wa-  in  itself  an  offense  subjecting  the  vt'ssel  to 
seizure,  whether  it  was  known  that  she  wa<  guilty  or  not, 
and  the  other  contending  that  the  offense  is  being  bmud 
'"Muinting  seals,  or  preparing  to  do  so,  in  Behring  Sea. 

Your  Honors  nnisl  decide  upon  that  point;  an<l,  if  yon 
come  to  tb.e  < •Olid union  as  1  submit  upon  reading  the  ti'caty. 
and  ujioii  rciK,mg  tlx-  Seal  Fishery  Act  of  IMU,  you  must 
com.',  that  lie  construction  contended  for  by  us  is  tin 
convrt  1.1  •     .lid  that  the  otfeiise  is  the  sealing  or  attempt 


I  (lor) 


(Mr.  Potcjs'  Aif^utnout  in  Hcply.) 

ing  to  soal,  in  the  Si'ii,  and  not  tli(:  nicre  liavinji,-  tlio  tilings 
witli  wliicli  yon  might  seal,  or  dead  simIs  on  iioard;  tlien 
wliat  i"ollo\vs:  as  an  actual  fonscquenco  tliia  vosst'l  has 
heon  seized  for  an  olTense  wliicii  is  not  an  offense  against 
the  tieaty.  And  svlio  lias  slie  heen  seizeil  by?  Hy  the 
United  Stales  (iovcinnieut ;  and,  liieretme,  it'  liiey  were 
l)ound    iiy  tli<  ii'  treaty  ol)liga(iiins  to  seize  for  one  oft'euBe, 

loaud  they  have  seized  for  anotinT,  wiiy  siionld  tiiey  not 
pay? 

It  fitands  apparent  l)ef'ore  tiiis  Court  tiiat  the  "Oscar" 
and  "Ilattio"  did  net  lireak  nor  intend  to  lireait  the 
modus  vivciiffi  of  isjt^,  or  tlu^  Seal  Fisiiei'ies  Art  of  1891. 
She  was  perlei  tly  innocent  (d'  either  having  hrc.Uen  or  in- 
tending to  break  that  statute  oi'  treaty;  an<l  the  (piesfion 
is,  when  we  find  she  was  seized  fdi' the  reasun  Miat  tlie 
United  Stales  liovernnienl  hy  thel|- iiisli  uitions  had  made 
it  inipossilde  for  llieir  own  ollicers  to  use  the  discietion 

2owhicli  the  treaty  ically  gave  them,  are  they  not  tlie  people 
who  ought  to  pay  tin  damage!'  This  (jnestion  we  put 
bef  )re  yon,  and  it  appeals  to  us  to  bo  a  fair  one. 

it  is  fnrtiier  aigued  by  my  learned  friend  that  the 
Supreme  Court  of  Canada  has  decided  that  there  was  a 
prima  facie  cause  for  seizure,  but  no  cause  to  condemn. 
I  refer  your  Honors  to  the  di'cision  given  by  the  Su- 
preme Couit  of  Canada.  Justice  (Jwynne,  at  page  258  of 
the  Exhibits  says: 

"  This  appeal  must,  in  my  opinion,  he  allowuil  with  costs.  Orant- 
30  "  ing  that  tho  sliip  haviiin  lieon  taken  witliin  the  JJering  Hca  cast 
"  upon  tho  appf'Ilaut  tlic  onus  of  i)rovin(;  that  tlie  vessel  liail  not  been 
"  used  and  oniployoil  in  taking'  soalN  in  the  lieriuf.;  Sea,  that  onns  was 
"  comi)letPly  disehargej  by  the  evidence  of  the  officers  in  charge  of 
"  the  vessel,  whose  veracity  was  not  assailed  in  tho  slightest  par- 
'■  ticular.  The  evidence  established  beyond  doubt  that  the  vessel  was 
"  taken  almost  immediately  afiev  she  had  entered  the  sea  on  the  north 
"  side  of  one  of  the  Aleutian  islands,  which  constituted  the  extreme 
"  southern  lioundary  of  the  Sea  where  she  had  entered  for  water,  and 
"  within  two  hundred  miles  of  which,  as  was  shown  by  independent 
"  testimony,  seals  had  never  been  known  to  be  taken  or  seen. 

"The  rmval  ollicer  of  the  United  States  who  too!i  the  vessel  and 
40  "  handed  her  over  to  the  authorities  for  trial  entertained  no  <loubt  of 
"  the  truth  of  the  statement  made  by  the  captain  of  the  vessel  when 
"  taken,  as  to  tlu^  purjiose  for  wliicli  she  had  ^'oiu  to  the  north  side  of 
"  the  island  instead  of  to  the  soutli,  and  had  so  entered  tlu^  Hehring 
"  Hea,  namely,  the  state  of  tlu'  wind  at  the  lime,  and  the  wonder  is 
"  that  she  should  have  been  taken  at  all,  or  lieing  taken,  should  have 
"  been  put  upon  trial." 

There  is  the  opinion  of  one  of  the  .Judges,  in  apfieal,  and 
he  distinctly  states  tiiat  tlie  oHicer  who  seized  tlie  vessel 
knew  that  the  vessel  was  tiiere  for  an  innocent  purpose. 
j;oTlien,  Sir  Henry  Strong,  in  giving  judgment-  and  he  de- 
livered the  opinion  of  the  Court 

The  ('ominissioner  on  IIk;  part  of  the  I'nited  States:— 
I  suppose  tiiere  were  no  additional  jirnofs  allowed  in  the 
Supreme  Court? 

Ml.  Peteis:  -No,  your  Honor.  Tho  record  on  appeal 
consisted  of  a  r.  print  of  the  evidciutt  taken  before  the 
court  Ix'low.  Tht  jiidgment  of  the  Chief  Justice  is  at 
page  252  of  the  Kx'  ihits.     He  says: 

"The  oflfense  charged    igainst  (he  ship  was  therefore  that   she  or 
•>0  ■'  some  of   hor  eiiuipmeni    or   crew  luul    been    employed    in    killing, 
"  taking,  or   hunting   or   i     attenii)tiiig  to   kill  or  take  seals  within 
"  Behriug  Sea  as  detincd  bj    he  onler  ui  council.'' 

That  is  what  he  says  tht?  olV.iise  was.  Ho  there  refers, 
as  your  Honors  see.  to  the  libd  laid  ag.niist  the  vessel  at 


!l  I  I 


:^i 


■J 
:f 


105tj 

(Mr.  IVt'Ts'  ArguiiHMit  in  Iti'ply.) 

Victoria.  My  position  is  tins:  slie  was  sci/t'd  for  having 
on  board  seal  skins,  wliicli  was  not  an  oll'enso,  and  she 
was  taken  to  Victoria  and  libeilcd  for  killing,  hnnting  or 
attempting  to  kill  seals.  She  was  seized  for  an  alleged  of- 
fense, which  was  not  an  olTense,  and  she  was  libelled  for 
another  otTenso,  which,  if  trne,  was  an  offense. 

Mr.  Warren:— She  was  libelled  on  both  charges, 
lo     Mr.  reters:--Th<'n  on  what  gronnd   did  they  put  this 
new  one  in? 

The  only  gronnd  at  all  .^uflicient  was  the  on*;  Sir 
Heiu'y  Strong  stated,  and  for  that  she  was  not  seized. 
That  being  the  case.what  does  the  Court  tind^  The  Court 
finds,  that  in  point  of  fact,  the  otTense  did  not  exist.  I 
refer  yon  again  to  another  passage  (page  '2'A  of  the  Ex- 
hibits, line  40 1.  of  the  Chief  Justice's  judgment,  lie  had 
been  leferring  to  ct'rtain  evidence  given  in  the  case  by 
the  officers  of  the  seized  vessel,  and  sa}b: 

20  "  Then  to  ret)ut.  tliiH  testimony,  two  witnospcH  arc  called  on  Viebalf 
'•  of  tlip  Crown,  liotli  of  tlieni  no  ilonlit  eiititloil  to  the  utuKwt  credit; 
"  Ciiptaiu  Johnson,  CVuunmndcr  of  the  United  Statea  «hi|)  '  Mohiean' 
"and  Eusij^u  Harrison,  the  hoarding  oflieer  who  seized  the  '( )sear  ' 
"  and  '  Hattie.'  Had  these  Keiitlemeu,  or  either  of  them,  eontrailieted 
"  the  testimony  of  the  master  in  any  material  jxiint,  it  might  have 
"  discredited  him  entirely;  hut  srj  far  from  material  eontrailietioii  I 
"  find  in  their  de|)ositious  most  material  corrohoration  of  Cnptain 
"  Tutle's  account  They  slinw  that  th<'re  were  no  seals  witliin  two 
"  hundred  miles  of  Attou  Island.  They  do  not,  either  of  them,  even 
"  suggest  that  there  was  any  circumstances  leading  to  a  susjiicion 
"that   the    'Oscar'   and    '  Hat*'e  '  was   intended  to   go  furth<'r  into 

30  "  Behrin;,'  Sea  for  the  iMirpose  of  hunting  seals;  and  Ensign  Harrison, 
"  at  least  rather  coiitirms  the  ca]>tain's  story  ahout  water,  and  both 
"  say  that  he  accounted  for  his  whereahouts  in  JJehring  Sea  hy  at- 
"  trilmting  it  to  the  failure  of  his  supidy  of  water.  I  am  therefore 
"  unable  to  agre<'  with  the  learned  Chief  .Justice  (Beghie)  in  his  con- 
"  elusion  that  this  evidence  for  the  Crown  atfects  the  claimant's  case 
"  in  the  least  degree,  save  to  confirm  it." 

Thus  you  have  the  Supreme   Court   of  Canada   stating 
that  the  evidei\ce  shows  that   the  captain  of  the   "  Mohi 
can,"  Ca|)tain  Johi\son,  and  his  ofticer,    Mr.    Harrison,  at 
the  time  they  made  the  seizure,  had  no  cause  for  suspicion. 

4° and  did  not  suspect,  that  this  .ship  had  either  broken  or 
intended  to  break  ihf  nioclns  riroidi  of  ISltl  or  ls!t2.  Does 
not  this  all  strengthen  the  position  I  am  taking  that  the  in- 
structions given  by  the  United  States  (lovermnent  to 
their  officers,  which  instructions  I  say  went  beyond  the 
terms  of  the  modus  n'roidi,  and  beyond  the  tei  tns  of  tiio 
statute,  took  away  fiom  their  ofticers  the  discretion  which 
thev  ought  to  have  bad  the  right  to  exercise? 

While  1  am  on  this  point  let  us  see  to  what  conclusion 
the  position  of  (he  United   States  would  bring  ns.     Their 

50 construction  is  thatunderall  circunistances,  when  you  fhid 
on  board  one  of  these  ships,  seal  skins,  arms  or  aimnuni- 
tion,  you  must  si'ize;  you  have  no  discretion  under  the 
terms  of  the  Act.  Let  me  i)ut  this  case  to  your  Honors: 
Assume  that  the  Uinted  States  Government,  for  the  ])ur- 
poseof  ascertaining  whether  olTenses  were  being  com- 
miled  against  this  )ii(>dits  or  not,  liad  placed  a  detective  on 
board  a  Biitisb  sealer,  and  that  that  detective  went  from 
Victoria  to  Japan,  or  to  the  Russian  side  of  Behriiig 
Sea  in  the  vessel,  and  knew    t'lat  thev   fished   there  all 

60 through  the  season  continuously,  and  after  the  season 
was  over,  came  back  and  went  to  Attou  Island  to  Ret 
water;  that  an  officer  from  a  United  States  cruiser  then 
came  and  said:  ''  1  intend  to  seize  this  vessel;"'  and 
assunii;  that  the  detective,  tlieir  own  employee,  went  on 


1(157 

(Mr.  Petors'  Aigiiiiu'iit  in  Reply.) 

board  tlio  United  States  ship,  and  said  to  lior  captain: 
"  I  know  that  these  men  have  not  coannitled  any  lireach 
of  the;(/o(^^s■  virciuli;  \  know  that  the  seals  that  tliey  havo 
on  hoard  W(>re(an<;ht  on  tlie.lapan  coist;  I  know  tliey  came 
in  iieie  for  wati.'r;  I  know  lliat  of  my  own  knnwied^;o." 
Accoi'ihnjf  to  my  learned  fViend'scoiitentioii,  althoiij^h  the 
captain  ahsohitelv  lielieved  the  statement  ot  the  detective, 

lolie  would  have  no  conis((  lo  pnisne  except  lo  airest  tlie 
vessel  and  send  her  I'or  trial. 

Let  mti  pnt  another  case,  and  which  nearly  happened  in 
this  case.  Here  is  a  vessel  tishin^  near  some  of  the 
Russian  Islands  -the  Copper  Islands,  and  .she  ^oes  to 
Atton  Island.  As  it  hap|)ens,  if  yon  look  at  the  evidence 
yon  will  tind  tiiat,  when  she  came  there,  the  '' .Mohi'an  " 
nnist  have  hecn  actnally  anchorel  in  one  of  the  little  hai'- 
horsof  Atton  Island;  assume  that  tlie  '"  .Mohican  "  actually 
saw  the  vesssl  connnj;  from  the  direction  of  the  Copper 

20  Isl  nids  to  the  pl  ice  wiiere  she  was  caught;  saw  her  coming 
there,  get  water,  and  then  set  sail  on  her  way  to  Victoria. 
Yet  he,  hefore  she  got  out  (d'  the  part  of  the  Reining  Sea  in 
which  they  ari>  not  allowed  to  seal,  knowing  that  sh(>  had 
come  there,  and  having  sen  hei'  call,  for  the  piu'pose  of 
getting  water,  having  watched  her  get  underway  and 
sail  in  I  lie  direction  of  Victoria,  according  to  my  learned 
friends'  construction,  nnist  seize  her.  lie  has  no  dis- 
cretion.    Is  that  reasonable? 

I  say  thai  your    Honors   have  this    inatt"r  hefore   yon, 

30and  that  it  is  for  you  to  construe  the  act.  We  care  not 
forth(>  instructions.  TIk!  United  Statesaud  (rreat  Ibitain 
were  boimd  and  could  only  give?  instructions  which  were 
in  ;iccordani-e  with  tin;  terms  of  the  treaty  and  of  the  terms 
of  the  Seal  Fi-^hery  Act  of  ISiU.  You  are  asked  to  choose 
bet  ween  two  const  ructions  of  the  statute  and  treaty;  one 
that  will  not  permit  an  innocent  person,  whose  innocence 
is  made  ajipaicnt  at  the  time,  to  bo  inlerfereil  with,  and 
the  (jther  that  will  compel,  not  only  the  otMc(>rs  of  the 
United  States  but  also  the   ofticers   of  (!reat   Britain,  to 

40arrest  a  vessel  which  they  know  to  bis  ii.nocent.  Which 
construction  ought  to  be  jmt  upon  that  treaty  and  upon 
that  statute?  Could  there  he  any  doubt  what  would  h  ip- 
pen  in  ordinary  litigation?  What  is  th(>  rule  of  construc- 
tion applying  to  statutes  in  eveiw  nialti>r,  especially  where 
it  involves  a  ciiminal  chaige?  Von  are  to  find  out  what 
was  the  harm,  the  wrong  to  lie  prevented:  find  that  out 
first,  and  then  put  such  a  construction  as  will  remedy  and 
prevent  the  wrong  and  harm,  carry  that  out.  Wiiat  was 
the  object;  what  liid  they  want  to  prevent?     Look  at  the 

Sotermsof  the  Conv(Mition  itself;  look  at  the  terms  of  the 
VKxhis  vivt'iidioi  isi>2  and  ISitl— they  are  both  the  same  — 
I  am  reading  from  page  ISD  of  the  British  .Argument: 

"  For  tlio  jmrposo  of  iivoidiu^;  irritatiujj;  ilifforouct's,  aud  witli  a  view 
"to  promote  tlie  friondlv  Hettlcment  of  iinestions  iieudiug  lietwoou 
"  tlie  two  goveniiiieuts  touching  their  resiiective  rights  in  Hehriiig 
'•  Sea,  and  for  the  im'servation  of  the  seal  K])eeies,  the  tollowing 
"  attreemeut  is  made  without  jjrejtidiee  to  the  rights  or  claims  of 
"  either  party  :- 

"  (1.)  Her  Majesty's  Govornment  will  jirohibit,  until  May  next,  seal 
"  killing  in  that  part  of  IJohriug  .Sea  lying  " — so  and  so,  '■  and  will 
'  o  "  promptly  use  its  best  efforts  to  ensure  the  ol)servanco  of  this  pro- 
"  hibitionhy  British  sulijeets  and  vessels." 

That  is  what  they  w(>re  to  prohihit,  and  you  now  have 
before  you  simply  a  question  of  construction.  You  are 
asked  on  the  one  side  to  give  a  construction  that   will 


1 


UK)S 


(Mr.  Peters"  Argument  in  Heply. 


f;. 


make  it  necessaiy  that  an  iiiniKent  vessel  sliall  l)e 
taken  from  wlieie  slie  is  innocently  employed  ddinj,' 
notiiirijj;  against  any  treaty;  tiiat  she  must  be  taken  to 
I'lialaska  ami  tnrneil  over  to  the  Hritisli  oHicers;  tliat  tlie 
Hiili-<li  (tHicers  nmst.  in  tiieir  tnrn,  hand  lier  over  to  lie 
trie(l,  allhoUKh  a  tiial  (an  have  no  resnlt  other  than  an 
ac(inittal.      And  on  the  other  side  to  place  Hn<li  a  cnnstnic 

lotion  that  yi-n  shall  only  ^ei/.e  a  vessel  when  the  sri/in^ 
oHicer  U'lieves  she  has  actually  heen  gnilty  of  seahn^  or 
atteniptin^i  to  seal,  or  at  all  events  has  a  donht  whetlii  r 
she  is  i^nilty  or  not.  I  do  not  deny  that  if  there  had  heen 
in  the  miml  of  the  seizing  otlicer  a  reaxmahle  doniit  as  to 
whethei' the  statement  made  at  the  time  hy  the  Captain 
of  the  "  (Jscar"  and  "  Hat  tie  "'  was  tine  or  not,  that  wmdd 
have  justitied  tin?  seiznie;  hnt  here  no  snch  donht  e.\i^tcd; 
the  seizing  ollicer  was  jieifectly  satisfied  on  that  point,  .nid 
thei'el'oio  i  say  that  we  are  entitled  to  recovei-. 

20  There  are  one  or  two  other  sections  1  wish  to  read  from 
the  jndt;nient  of  the  Chief  .Inslice.  I  woidd  refer  you  to 
page  2r>t5  at  the  very  hottom  line,  where!  he  says: 

'■  Hiu'rison  dooH  uot  111  iinv  way  (•imtnulict  C.vptaiii  'riiitlc's  stalc- 
"  iiH'iit.  Wlu'ii  lu!  si'izuil  the  Hliij)  lie  had  a  colli)!!'  of  Ixiats  tii'il  tcj 
"  the  Htci'u  (if  tlii^  vi'SHC'l  and  one  lioat  was  coiiiiiiK  frmii  tlio  islaiul 
•'  witli  tliri'i'  iiH'u.  All  till"  nuns  and  dtlior  a|)i)liaiii'i'H  wcrc!  on  tlic 
"  si'lioouiT  ill  tlu'ir  ordinary  iiositioii.  In  liin  croHs-cxuiiiination  he 
"  says  In^  does  not  tliiiili  tlie  lioatK  weri'  tied  to  tlii"  strrn  of  tin; 
"  scliooncr  for  tlic  |)nr]iosi'  of  scaling ;  lie  docs  not  Ixdicvc  tliiit  tlicrc 
"  are  ever  any  seals  around  this  island  of  .\ttou.  Several  witnesses 
30  "  conlhni  the  statement  that  it  is  not  a  tishinn  |ilaee;  that  you  must 
"  ]ir(ireed  two  or  three  hundred  miles  further  to  catch  seals.  Harrison 
"  states  that  he  knows  there  is  a  suitalili^  idace  on  Attoii  Island 
'•  where  a  siijiply  id'  wati'r  I'lili  lie  hail.  He  adds  :  '  there  was  a  heavy 
"swell  coining  in  from  the  northward  and  westward '—that  is  the 
"  excuse  why  he  did  not  tio  to  the  other  side  of  the  island,  which 
"  would  have  been  outside  the  jiroliiliitod  territory — '  ('a|)taiii  Turllc 
"  told  them  that  lie  had  liecn  soaliiifj;  for  a  month  around  ('(i|i|ii'r 
"  Islands,  lint  that  he  had  not  lieeu  Hcaliiif?  in  Belirin^;  Sea,  and  that 
'he  had  (jone  to  (iot/.leli  Harlior  for  the  sole  jiurpose  of  ohtainint; 
"  water,  and  that  the  t'lshiiiK  season  for  him  was  closi'd. 

"  Comniauder  .Tolmson  of  the  '  Mohican  '  admits  that  almost  iiiuue- 

40"  diately  after  the  seizure  that  he  knew  that  Captain  Turtle  had  liei'ii 

"  lately  sealiun  in   the  neij;hliorhood  of  Cojiiicr   Island,  lint  cannot 

"  say  whether  it  was  Harrison  or  Turtle  who  f,'ave  him  the  information. 

"  He  also  states  that  there  aro  no  neals  within  '200  miles  of  Attou.' 

So  far  as  this  Commission  is  concerned,  that  is  a  jioiii- 
wliich  we  well  nndorstandat  tlieiiresent  time,  perhaps  he(t 
tor  than  f  lie  Court  who  were  trying  the  case  of  the  "  O.scar 
and  Hatlie."  It  is  ai)parent  now  from  what  we  know 
that  that  was  a  part  of  the  sea  to  which  vessels  never 
went  to  hunt  seals. 
50  "  The  evidence  of  Captain  Turtle  is  also  corrohorated 
by  the  evidence  of  Joseph  lirown  "  itself. 

I  think  these  are  all  the  jiarts  of  the  judgment  of  the 
appeal  court  to  which  I  need  call  your  attention.  My 
leaiiied  friend  says  that  the  Supreme  Court  of  Canada 
held  that  there  existed  prima  fucic  evidence  for  seizure, 
hut  not  for  condemnation.  I  would  note  at  this  point 
that  the  ciuestion  before  the  Supreme  Court  of  Canada 
simply  was  whether  there  was  ground  for  condeinuatioii 
or  not;  wli(;ther  i\u\  decree  of  condemiiation  should  he  re- 
60  versed  or  sustained;  that  that  was  the  only  (jueslion  they 
had  before  them,  and  the  remark  of  the  Chief  Justice 
that  there  wav,  prima  facie  evidence  for  the  seizure  was 
not  at  all  necessary  for  the  judgment. 

Mr.   iJickinson:— And  "sufficient." 

Mr.  Peters;— There  might  have  been  sufficient  evidence, 


1061) 


If^r  l-ri-Vr- 


(Mr.  Peters'  Argument  in  Heply) 

if  yon  simply  liivd  the  factthnt  the  arti(.U>H  were  foiiiid  on 
boar,!;  i)Ml  that  priiint  J'dcic  i'v'uU'\\c(>  (•oasi'ij  to  exist  wlion 
it  ajipcars  lliat  the  captain  of  tlie  "  Moliican  "'  was  satis- 
fied at  (he  time  that  tiiere  was  no  improper  pnrpose.  I 
do  not  know  your  Honors  that  it  is  necessary  1  should 
say  anvtiiinji  fintlier  upon  the  cfiso  of  the  "  Oscar  and 
Hat  tie." 
10  Mr.  Dickinson:— The  para^^raph  at  tiie  top  of  pa^e  *253 
of  the  Kxhihits  is  the  essential  paraKrapii. 

Cask  ok  thk  "  Winnikkku." 

Ml.  I'eters:  — Now,  I  |)ropose  to  make  a  few  nMnarks 
witii  regard  to  the  case  of  the  "  Winnifivd."'  The  facts 
of  the  "  Winnefrcd  "  case  are  vei'v  familiar  to  your  Hon- 
uis,  and  it  will  not  he  necessary  foi'  me  to  do  more  than  to 
call  your  attention  to  one  or  two  points  which  have  been 
referred  to  hy  my  learned  friends.     The  jmits  of  the  Kec- 

-Oord  F  wish  to  refei'  to  are  iiaj;es  l.M-t  and  l.'d.").  If  your 
Honors  remendier,  the  situation  of  afl'airs  proved  was  this: 
The  ■' Winnifred  ■'  was  seized  on  the  high  .seas  outsidf  of 
the  tlueeiniie  limit- .some  fifteen  miles  from  land.  She 
was  seizoil  originally  for  a  hreai'h  of  the  hioihin  vimi'li, 
\W2,  or  of  the  Heal  "Fishery  Act  of  jsui,  to  he  e.xact.  She 
was  taken  to  Unalaska  in  charge  of  :i  prize  crew,  and, 
while  she  was  thus  in  charge  at  L'nalaska,  a  conference 
was  liehl  between  the  connnander  of  the  "  Jtusli,"  Captain 
Parr,  of   the   British  navy,  and  Cajjtain    Hooper,  of  the 

30 United  States  revenue  service. 

It  will  be  noticed  that  up  to  the  time  of  this  conference 
the  vessel  had  been  .seized  and  held  on  one  charge  only, 
and  that  was  a  charge  of  having  broken  the  terms  of  the 
niodits  riniidi.  That  a|)iiears  very  clearly,  and,  in  fact, 
is  not  disputed.  This  conference  took  place  on  the  27th 
day  of  July,  is'.io. 

Perhaps,  before  cotning  to  this  conference.  I  had  better 
call  your  Honors'  attention  particularly  to  the  evidence 
to  show  what  she  was  seized  for.     It  is  at  the  bottom  of 

40  page  ir>14,  and  it  is  the  report  of  Captain  Coulson  to  the 
Seci'etary  of  the  Treasury.  He  re[)orts  that  on  the  20th 
of  July,  ls(t2,  be  fell  in  with  the  schooner  "  Winnefied  " 
and  he  seized  her,  and  he  goes  on  to  say : 

"Ililaced  tlio  ves.sc!  iu  i'liai'p;o  of  Lieut.  DodRO  aud  foiir  mon  and 
"  took  lier  iu  tow  aud  brought  licr  to  tliiH  port  " — lie  in  writin^^  from 
Uunlaf'ka— "aud  have  lior  under  our  oliargp  awaiting  tlie  returii  of 
"the  '  Yorktowu '  witli  ("omniauder  Evau.s,  before  turning  her  over 
"  to  the  custody  of  ('apt.  A.  H.  Cliase,  R.  N.,  commanding  Her 
"  Jlajesty'H  naval  force  iu  these  waters,  iu  accordance  witli  the  pro- 

,     "  visions  of  the  articles  of  couveution  between  the  United  States  aud 

'^°  "  Great  Britain." 

That  settles  beyond  dispute  that  she  was  seized  for  a 
breach  of  the  jihxIii.s  rirciidi,  was  taken  in  charge  of  a 
prize  crew  to  Unalaska  for  that  breach,  and  at  Unalaska 
was  being  held  for  the  ])urpose  of  being  banded  over  to 
the  commandei'  of  the  British  navy.  Under  these  circum- 
stances the  conference  alluded  to  took  place  and  the  sub- 
stance of  what  transpired  is  contained  in  Captain  Coul- 
son's  report  set  out  at  J{ecord,  page  15 IT),  as  follows: 


60 


"On  July '27tli  Commander  Evans,  U.  S.  N.,  aud  Captain  A.  H. 
"  Chase  Parr,  R.  N.,  commanding  Her  Maj"'8ty"s  naval  force  in  IJehring 
"  Sea,  met  by  ai)pointnient  ou  board  the  '  Rush,'  aud  after  a  full  die cua- 
"  sion  of  the  matter  it  was  agreed  " — and  I  want  to  call  your  partitular 
attention  to  this  agreement  — "on  thi>  part  of  Captain  Parr  that  his 
' '  government  would  waive  the  right  of  custody  of  the  seized  vessel  until 


{I    >    ' 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Hiotograpliic 

Sciences 

Corporation 


23  WIST  MAIN  STRUT 

WnSTIR.N.Y.  UStO 

(716)  •72-4S03 


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o\ 


■( 


I  ... ,. 


imi) 

(Mr.  Peters'  Argument  in  Reply.) 

"  Hhe  had  been  tried  1>t  tlio  United  Stnteg coiirtH  for  violntion  of  the  U. 
"  8.  Revenue  Lbwh,  ))rovided  tliat  in  cane  of  failure  to  pouvict  her  on 
"  thoHe  uharf^es,  the  vchhoI,  her  enrKo.  outflts,  &i'.,  and  inaHter  and  crew 
"  were  to  l)e  turned  over  to  HerMBJi'sty'H  the  Queen  of  Kn^land'H  rep- 
"  resentativeH  at  Victoria,  U.  V.,  for  trial  on  charge  of  violation  of  the 
"  terms  of  the  existing  motiim  vive>i(ti." 

He  alh'ues  that  lliis  agreement  was  made  at  that  time. 

,Q  Now  it  is  argued  tliat  after  this  arrangement  had  heen 

maile,  the  schodner  was  seized  again  for  a  charge  against 

the  revenue  hiws.     Wo  siilmiit  that  there  is  no  evidence 

to  show  that  Jiny  actual  .seizure  took  place  at  all. 

Mr.  Lansing:— The  .same  letter,  Mr.  Peters,  the  las^t 
paragraph 

Mr.  Peters:  -I  intend  to  read  the  letter  precisely  as  it  is 
The  letter  says: 

"I   have   therefore  made   formal    seizure  of  the   '  Winifred,' and 

"arrested  her  master  O.  M.  O.  Hansen  and  crew  for   violntion  of  the 

««  "  U.  S.  Revenue  Laws  an  above  cited,    and  as  soon  as  the  necessary 

"  papers  can  l>e  procured  she  will  be  delivered  into  the  custody,"  anil 

so  forth. 

Hilt  tiiis  is  wliat  1  wish  to  point  out,  that  there  is 
niitiiing  in  the  evidence  to  show  that  any  new  seizure 
actually  was  made. 

In  any  case  it  is  clear  that  the  only  legal  cause  of 
seizure  on  the  high  s-eas  was  (he  breach  of  Uw  iikkIiis,  and 
if  the  i»insecntii)n  lor  this  wasalandoiied  the  vtsst-l  having 
heen   ton  ibiy    hroiiuht    within    the    jurisdiction     foi'    a 

johieach  of  the  nKidn.s  the  seizure  could  not  bt?  utilized 
for  any  other  jirosecution,  iKtr  could  she  ho  seized  again 
for  another  charge. 

We  must  niideistand  how  the  matter  stands.  Up  to 
the  time  of  this  conference  there  is  no  evidence  that  they 
ever  io  lianded  her  over  to  Captain  Parr.  It  seems  to  ine 
that  they  alleged  she  had  been  h.mded  ovtM' to  Captain 
Parr,  and  that  he  then  handed  her  hack  again  that  she 
should  he  proceeded  against  for  anything  they  saw  tit. 
The  very  letter   I   have  read  here  shows  that  that  was 

40 ""t  the  case,  because,  at  this  conference,  what  is  alleged 
is  that  after  a  full  discussion  of  the  matter  it  was  agreed 
on  the  part  of  Captain  Parr  that  he  would  waive  tiie 
right  of  custody  of  tlie  seized  vessel  until  slu^  had  l>efii 
tried,  and  so  forth,  provided,  that  in  case  of  failure  tn 
convict  her  under  the  charges  against  the  revenue  laws, 
she  should  he  turned  over,  showing  that  she  never  was, 
as  a  matter  of  fact,  handed  over  to  Captain  Parr,  and 
until  she  was  lianded  over  to  Captain  Parr  he  had  nothing 
to  »lo  with  her  wliatever.     What  do  the  facts  amount  to? 

50 The  vessel  is  brought  in,  having  been  s«Mzed  for  a  breach 
of  the  niodiis  liveiidi.  Until  she  is  handed  over  to  Can- 
tain  Parr,  he,  as  a  British  ofHcer,  had  nothing  to  do 
with  her  whatever.  They  discuss  the  matter  to- 
gether: the  officer  of  the  United  States  tells  Cap- 
tain Parr  that  there  is  n  charge  against  her  for 
breach  of  the  revenue  laws.  Captain  Parr  is  not 
in  a  position  to  know  whe^^her  the  charge  is  a  good  one  or 
a  bad  one.  Ho  simply  takes  it  for  granted  that  the 
charge  is  a  proper  one,  and  one  for  whicii  the  vessel  could 

60  have  been  seized  at  the  place  she  was  seized,  that  is,  at 
sea;  .and  he  says  "all  right,  prosecute  away  under  your 
revenue  laws,  and,  afterwards,  if  you  fail  to  bring  her  in, 
hand  her  over  to  the  British  officers  so  that  she  may  be 
prosecuted."  But  she  never  was  handed  over.  And  how 
does  that  leave  the  United  States! 


lOti] 


}»'"M«  ["If 


(Mr.  Peters'  Argument  in  Reply.) 

She  wa8  seized  for  a  breacli  of  the  modus  virendi;  and 
we  say  that  is  the  only  matter  she  could  have  been  seized 
for.  They  have  not  proceeded  under  the  terms  of  the 
modus  Vivendi;  they  have  not  taken  any  steps  against 
her.  I  cait*  not  for  what  rea.son  that  was.  They  were 
not  prosecuted,  and  therefore  tlie  modus  vivcudi  cannot 
bo  pleaded  as  a  defense. 

lo  What  other  defense  have  they  for  tlie  seizure  in  the 
open  sea?  Tlie  only  defense  is  that  tliei-o  was  some  imag- 
inary oflfence  against  their  revenut*  laws.  Can  any  one 
imagine  an  offense  against  the  revenue  laws  that  would 
justify  such  a  seizure^  Tin?  seizure  staiuls,  as  it  appears 
to  me,  without  justirication.  They  stand  in  thi;  position 
that  they  have  taken  our  vessel;  she  is  absolutely  lost  to 
us;  and  when  the  reason  is  asked,  they  have  none  to  give. 
It  is  no  answer  to  say  that  she  was  condenuied  by  a  court, 
and  that  we  should   have  .ippealed    from   the  decision; 

20  what  does  that  amount  to  when  the  fact  is  that  the  was 
seized  outside  the  Jurisdiction  of  the  Tnited  States, 
forcibly  brought  within  the  jurisdiction,  and  then  arrested 
and  tried  for  an  offense  that  she  could  not  be  seized  for 
outside  of  that  jurisdiction?  Nothing  that  ever  could  be 
donti  would  have  the  elTect  of  waiving  that  objec  tion. 

Mr.  Warren:  -In  order  that  tlie  position  taken  with 
reference  to  the  "  Winnifred  "'  may  be  understood  by  the 
Counsel  for  Ureat  Britain,  1  may  e.xplain  that  oui'  posi- 
tion is  that  the  vessel  was  tendered  to  the  captain  in  the 

3oharbo'''it  Una  tska,  and  be  refused,  and  she  was  seized 
ther.. 

Mr.  Peters:— The  tender  is  imni.iterial.  I  s.iy  that  by  a 
statement  iriade  to  Captain  I'arr  they  induct-d  him  to  be- 
lieve that  there  was  some  other  proper cbarg'-  upon  which 
she  was  liabl««  to  condenniation,  and  that  statement  was 
not  correct.  I  do  not  mean  that  llu»y  made  it  with  an 
improper  purjviae.  Captain  Pair  bad  no  means  of  judg- 
ing whether  they  w<>re  right  or  wrong  in  their  .illegation, 
and  he  bad  no  right  to  judge  it. 

40  I  want  to  be  understood  as  refeiiing  your  Honors  back 
to  the  argument  made  by  the  cnuusel  wlio  (halt  with  this 
case  on  our  side.  Mr.  Heicpie  dealt  fully  with  this  mat- 
ter, and  showed  that  Captain  I'arr  woulfl  havt!  no  right  to 
act  as  judge  on  this  point. 

Cask  of  tiik  "  Waxokkkh." 

I  come  ne.xt  to  the  case  of  the  "  Wanderer,"  dealt  with 
by  Mr.  Warren  The  facts  relating  to  this  ve.ssel  have  al- 
ready been  spoken  of,  and  1  do  not  wish  to  do  nioie  than 

so  bring  your  Honors' attention  to  the  objections  raised  by 
my  learned  friend. 

The  "  Wanderer  "  belonged  to  one  Pa.xton.  She  went 
sealing  in  the  spring  of  tlie  year  1S8!».  In  that  year  a 
proclamation  was  issued  by  the  President  of  the  United 
States  preventing  seal  hunting  in  Bohring  Sea,  or  in  that 
part  to  which  we  always  have  reference.  Captain  Pax- 
ton  hired  a  crew  and  began  the  voyage  to  Behring  Sea. 
On  that  point  there  is  no  <loubt  whatever.  It  is  set  at 
rest    by   the  evidence  of  the   witness   Bjorre,   at  page 

^^1 1541.  My  learned  friends  ask  the  Court  to  inter 
that  in  reality  Paxton  never  intended  to  go  to  Behring 
Sea,  and  that  he  is  only  tiiking  advantage  of  the  circum- 
stances to  make  a  claim'  which  i-eally  has  no  foundation— 
that  in  point  of  fact  he  only  intended  that  his  vessel 
should  seal  in  the  early  spring  on  the  coast  of  Vancouver 


il  I   I 


10 


20 


30 


40 


(Mr.  Poters'  Ai')^iiirioiit  in  Kt'ply.) 

Islaii'l  and  then  ivtiirn  to  do  trading-  That  point  in  set  nl 
rest  by  Bjerre  at  |»ago  1541,  line  10,  whii-h  agrees  entirely 
with  the  evidence  given  l»y  Paxton: 

"Q.  Mr.  Ujerro,  I  lK>li«>vo  tliiit  yon  w«'ro  on  llm  '  WBiidprcr'  id  IHH97 
"  A.  YeH,  Hir. 

"Q.  Ah  innte?     A.   As  iniitr. 

"Q.  For  wlint  trip  cliil  vou  fugn^e  yourRrlfy  A.  I  eufiraKPd  for  the 
"  trip  ou  tli«  ooHHt  auil  lit'liriiiK  Hpb— tlip  Healing  and  hiiutiux  trip. 

"Q.  Did  you  cUKaKo  for  liotli  the  voyaKcou  tlicfoaNtaud  in  BchriuK 
"  Sea?     A.   Yen,  nir;  l>otli. 

"Q.  At  wliat  time  ilid  you  en«HK«'V  A.  Aliout  the  niiddlo  of  Fetiru- 
"  ary. 

"  Q.  I>id  tlie  veHHel  h'ave  for  l>oth  the  I'oiint  trip  and  for  liehriug  H«'ii 
'•  at  that  time?     A.  She  h>ft  for  the  round  <'r\nMe  for  the  HeaHou. 

••(J.  What  crew  liad  you?  A.  Wo  had  nix  eauoeH,  Captain  I'axtou 
"  and  nivHelf  iind  the  eook. 

"O.  Vou  had  an  Indian  erew,  liad  yi>n  not?  A.  Ye»,  wir;  we  had  an 
"  Indian  erew. 

"  Q.  How  nniny  IndiauN?  A.  12  for  the  eanoeH,  but  l:t  iuehidiu); 
"  the  eook. 

"  y.  Did  you  then  proceed  to  seal  ou  the  eonstV  A.  Yen,  sir;  we 
"  sealed  on  the  eoast. 

•'Q.  And  in  t lie  month  of  May  where  were  yo\iV  A.  On  the  eonst  of 
"  Vaneouvi'r  Inland,  well  to  the  northward. 

••Q.  What  place  alioutV  A.  Wo  W4're  between  Clayoiiuot  Souml  and 
"  Cai)e  Scott;  about  the  hitter  end  of  the  month  we  readied  Cape 
"Scott." 

"  Q.  Wt're  you  on  your  way  to  lichrinK  S<-a  thiuiV  A.  Yes.  nir;  wo 
"  were  sealiuK  aUing  the  coant  then. 

"  Q.  On  your  way  to  Hehrinn  Sea?     A.  On  ourwiiv  toKehriiiK  Sea. 

"  Q.   Did' you  continue  to  go  to  IJehrinK.Scay     A.   S'o,  sir;  wc  liud  to 

turn  back." 

Then  hi-  pu'S  into  tiie  renson  of  their  turning  bai  k.  At 
another  part  of  liis  evidence  he  e.xplains  tliat  I^axton  j;avc 
him  a  certain  amoimt  of  iinuiev  ^Cl")  as  asortof  .soiatiiiiu 
for  having  Inst  the  voyage.     This  is  at  page  1542,  line  l'O: 

•' Q.  Whi'ii  the  vesricl  came  back  liere  to  Victoria,  did  you  com 
'•  plain  to  Captain  Paxton  of  not  having  gone  to  the  Hchring  HeaV  .\. 
"  Yes,  sir;  I  coiiiiilaiucd  bcciuiKc  he  ciime  back  here. 

"  l).  Did  you  ask  f<u-  any  indemnityV  .\.  I  did  not  iiHk  him  for 
'•  any,  but  he  gave  me  sonic. 
"  i}.  What  took  place?  .-V  I  told  him  that  1  had  lost  my  season's 
work,  that  I  was  engaged  for  the  whole  trip,  and  that  I  had  hist  it 
on  account  of  the  Indians  not  going  ;  1  told  him  I  was  engaged  on 
the  const  as  ucll  as  for  flic  Hcliriiig  Sea.  and  Captiiin  I'lixfon  toiil 
"  me  he  was  sorry,  but  he  was  in  as  bad  a  box  himself  as  I  was.  lie 
•'  gave  mo  8'M>  over  and  almve  my  wages  as  a  kind  of  indemnity." 

Tile  allcgatiuii  <if  the  (ithcr  side  is.  yon  (Udn't  intend  tn 
go  to  lit  liiiii^  Sea.  We  answer  hy  tlu-  evideiiccnf  Hjcric, 
which  appeals  to  me  to  he  most  conclusive  Tlieii  again 
it  is  contended  yim  li;ive  hot  acted  fairly  witli  tlie  lomt, 
because  in  your  oii^;iiial  ( ;i-e  yon  did  not  maiie  it  ap 
jiear  tliat  ihe  "  \V;iiideier"'  was  eiiiployed  liiat  same 
spiiiig  nndei  a  <  liai  ter  paity  to  bring  down  seal 
skins  from  Slmtni^aii  Isljiiid  to  N'iitoiia,  under 
vviiich  cli;iiter  party  she  m:ide  a  small  aniomit  of 
money.  In  this  coiuiei  tioii  I  refer  to  a  remark,  and  I 
must  siiy  a  ittiiark  liMnlly  fair.  m;iile  by  tlie  counsel  of 
the  I'liited  Slates,  as  follows:  •'  Hut  while  talking  of  the 
"evidence  of  the  captain  (I'axtoni  let  me  say  that 
"  although  the  captain  emli  avored  to  create  and  establi^•ll 
the  belief  that  this  vessel  was  deprived  of  the  si'ason's 
trip,  the  fact  w;is  developed  by  the  Tnited  Slates 
counsel  that  on  the  retniii  after  the  intli  of  May  lie 
made  a  charter  to  Shnmigan  Islands,  and  brought  back 
a  cargo  of  skins  .ind  received  p;iy  for  it,  and  yet  the 
captain  is  silent  on  that,  until  the  United  States  coinisel 


(k) ,, 


4i];, 


10(53 

(Mr.  Peters'  Argument  in  Reply.) 

"  had  forced  from  the  witness  Williiini  Mnnsie"  ([  do  not 
think  it  <'ame  from  Munsie)  "  the  fact  that  the  vessel  had 
"  l)een  chartered  for  this  purpose."  The  fact  is  that 
Bjerre  gave  evidence  on  Ihis  very  point. 

Mr.  Warien:  I  read  the  testimony  of  that  witness  re- 
garding the  charter  in  the  oral  argument. 

Mr.  Peters:— Well,  this  is  the  idea  intended  to  he  con- 
loveyed  that  the  claimant  kept  hack  a  charter  under  which 
he  made  money,  and  that  he  ought  to  have  made  known 
that  fact,  which  was  hrought  out  l>y  Hjerreat  iiiit!  .'>."•,  page 
1542,  where  the  <|nesl ion  was  put  to  him  hy  the  counsel 
on  hehalf  of  (Jreat  Ihitain,  as  follows: 

"  Now,  uftcr  rniiiiuK  Imrlt  to  ViftoriB,  did  ,vou  no  out  ou  any  other 
"  trip  ou  till' '  Wttuderrr' iu  IHHliy    A.   Yes,  Bi'r." 

So  far  from  there  having  been  ;uiy  desirtf  to  keep  hack 
this  circumstance,  the  charter  jiarty  itself  was  put  in  evi- 

2odenco  and  cv»'iy  information  possible  to  he  given  was 
given  with  regard  to  it. 

Now,  let  us  set'  where  we  stand  on  the  «pieslion  of  law 
involvt'd  in  this  ca.se.  The  (piestion  my  learned  friend 
raises  hefoie  the  Commissioners  is  this:  He  puts  the  caso 
of  a  person  who  merely  had  in  his  mind  the  idea  of  enter- 
ing upon  a  sealing  voiiture,  anil  who,  upon  hearing  of  the 
President's  proclamation  against  entering  H«'liriiig  Sea, 
changes  his  intention  and  desists  from  the  venture, 
and  asks  is  it  reasonable  that  that  per.son  should  ask  that 

,othe  Ignited  States  pay  bim  the  amount  of  moiiev  that  he 
would  have  made  if  be  bad  carried  his  iiiteiitinu  out.  My 
answer  is  that  I  do  not  propose  to  deal  with  im;igiuaiy 
cases.  I  would  rather  deal  with  the  case  as  we  have  it 
here,  and  the  case  we  b;ive  here  is  not  of  a  I'PIsou  merely 
intending  to  enter  upon  a  sealing  vnyage.  but  it  is  tlu'  case 
of  a  person  taking  aitive  steps  and  showing  liis  iuleiition 
hy  these  active  steps. 

In  the  tiist  place,  I'a.xton  i>wiis  the  "  W.andeier,"  and  he 
is  a  mail  of  not  a  great   deal  of  n> Mils,      Hesiys,  "  I  will 

.gtake  that  vessel  and  go  sealing  witli  an  liidian  crew."  He 
goes  on  the  voyage  to  a  certain  point  be  hires  suih  white 
men  .is  are  nipiired  and  engages  an  Indian  crew  and  pro- 
ceeded as  far  ;is  Cape  Scott,  and  then  tlu'  trouble  takes 
place  and  be  is  uiialde  ti>  cany  out  bis  voyage.  It  is  not 
merely  an  iuleiition  which  be  had  in  bis  mind,  but  an  in- 
tention !-liown  by  bis  .icts.  It  is  just  like  the  cnse  of  a 
crime  where  the  mere  iuteiilioii  is  not  the  i  rime,  but  the 
overt  act  must  be  regarded.  I'a.xton  showed  bisinteiition 
by    overt    acts  and   by   the  ex|M'nditiiie    of  con^iileiable 

-Q  money. 

The  next  contention  of  the  I'niteil  States  is  that  in  any 
event  they  cannot  be  called  upon  to  pay  damages  unless  their 
olHceis  have  actually  warned  a  vessel  that  in  to  say,  un- 
less an  olficer  of  a  cruiser  bad  warned  tlieiii.  Now  let  us 
test  tliat.  What  ditfereiice  is  there  in  the  two  cases?  We 
have  in  this  case  a  prociaiiiation  issued  and  tlie  tact  that 
in  instances  by  no  means  few  -tlu'  I'liited  States  (lovern- 
meiit  jint  that  proclamation  in  force.  We  have  them 
making  a  proclamation  with  the  ability  to  carry   it  out 

rxjand  actually  <"arrying  it  out.  Suppose  a  vessel  went  so 
far  as  the  Uniniak  Pass,  and  when  she  was  there  she  was 
met  ity  a  United  States  cruiser  and  an  otticer  was  sent  on 
board  and  she  was  warned  and  turned  hack,  and  she  dues 
not  go  into  the  Sea  and  loses  her  voyage,  would  my 
friend  deny  that  the  United  States  was  liable  in  such  a 


I  1 1   K 


II 


1 1 


I   ? 


h 


10(14 


w 


i 


'  ?  ■ 

m 

ir 

ip 

m 

m 

■;■}** 

(Mr.  Peterw'  Arf2;unient  in  Reply.) 

case?  I  ilo  not  think  so.  What  is  tho  difforence  hetwcfii 
a  person  wliu,  on  thti  way  to  Bohring  Soa,  finds  that  Ihf 
people  whom  he  has  eiiiployei)  have  disciovered  al>ont  thf 
proclamation,  and  found  out  that  there  is  dandier  of  bein^' 
seized  in  the  Sea  and  resolve  that  they  shall  not  go  am 
further.  Where  will  you  draw  the  line/  I  .suhniit  tliat 
any  person  who  entered  upon  a  sealing  voyage  and  had  ii 

loship  and  provisions  (though  in  this  case  the  captain  did 
not  provision  the  ship,  but  had  the  money  to  buy  the  pio 
visions  and  I  think  said  he  would  buy  them  at  Sand 
Point),  and  by  leason  of  the  position  taken  by  the  United 
States  goveriuneiit.  be,  or  the  men  employed  l»y  him. 
find  that  there  is  such  danger  of  being  .seized  that  thtv 
are  frightened  to  jtioceed  and  abaiidoii  the  voyaue,  is  en- 
titled to  u'akf  the  United  Stat(>s  liable  for  damages.  1  do 
not  say  that  a  mere  empty  fear  in  the  minds  of  the  men 
—a  mere  suspicion  that  something  might  happen,  woidd 

-obe  sullicieiit   to  entitle  a  re<ov»'ry,  but  in  this  case  there 
was  not  only  tin-  fear,  but  the  fear  was  based  up(»n  sui) 
stantial  grounds.     In  all  human  probability  tlie  *'  Wan 
derer."  if  she  had  |)roceeded  on  her  way  to  Behiiiig  Sea, 
would  have  been  seized.     My  friends  say- true,  you  wcif 
prevented  from  pioceoding  with  yoiu'  first  (;rew,  but  you 
ought  to  have  got  another  crew  after  you  came  back  to 
Victoria,  you  should  have  taken  white  men  or  other  In 
dians.    What  jiosition  would  the  captain  have  been  in  tiieii? 
Every  time  he  would  get  a  new  crew  ho  would  be  faced 

30  with  the  same  ditiiculty— the  same  proclamation,  which 
frightened  the  jm-vious  crew  in  May.  might  have  friglit- 
ened  a  latt-r  crew. 

Your  Honors  remember  the  reasons  tho  Indians  gave. 
They  said  to  the  captain,  "Are  you  a  rich  manf'  and  he 
said,  "  No."  And  they  asked  him,  "  Are  you  able  to  pay 
us  our  wages  if  the  ship  is  seized^"  and  he  said  that  that 
was  doubtftd.  Nearly  everything  be  had  was  invested  in 
that  venture  and  the  Indians,  naturally  looking  after 
themselves,  said,  "  If  we  are  going  into  the  Sea  to  face 

40  the  probability  of  seizure  we  want  to  be  paid."  He  did 
not  say  he  was  able  to  pay  them,  and,  therefore,  he  could 
not  have  got  another  <;rew.  But,  says  my  learned  friend. 
"  Wiiy  did  you  not  take  a  white  crew?''  The  consei|uence 
of  doing  so  woidd  have  bt'en  that  the  captain  would  have 
had  to  buy  boats  at  ^ino  each  and  a  large  amount  of  amu- 
nition  at  considerable  expense  and  guns  at  a  high  price, 
and  he  would  have  been  compelled  to  engage  in  a  venture 
far  more  expensive  than  he  intended.  Our  contention  is 
that  he  had  a  right  to  go  with  the  crew  which  he  had  on 

50  hoard  the  "  Wanderer,"  and  he  was  stopped  by  the  proc- 
lamation of  the  President  of  the  United  States— not 
merely  the  proclamation  hut  the  actions  of  the  United 
States  which  had  been  brought  to  the  notice  of  his  crew. 
And  it  is  a  very  strong  piece  of  evidence  to  show  what 
very  great  pains  they  must  have  taken  to  spread  this 
notice,  for  we  find  that  the  Indians  in  this  out-of-the-way 
place  on  Vancouver  Island  knew  all  about  it  and  were  ini- 
[)ressed  with  the  danger.  I  say  he  was  not  compelled  to 
enter  upon  a  new  venture  with  a  larger  amount  of  ex- 

^"pense  and  risk.  I  do  submit  that  if  the  Court  comes  to 
the  conclusion  that  the  facts  are  true  as  stated,  that  this 
claim  is  a  reasonable  one. 

Then  let  me  point  out  this.  It  has  l)een  argued  that 
wo  have  no  cause  of  action  unless  an  actual  warning  took 
place.     The  President's  proclamation  did  not  require  a 


1U65 

(Mr.  Peters'  Argument  in  lloply.) 

warning,  and  therefore  thoy  are  stating  that  we  ought 
not  to  recover  because  we  were  not  warned  when  the 
President's  proclamation  said  nothing  about  a  warning, 
but  said,  in  etTect,  that  sei/ure  sliuuld  take  place  without 
any  warning. 

There  is  another  point.     It  was,  I  think,  suggested  by 
the  Commissioner  on  the  part  of  the  United  States,  that  it 
lo  was  possible  that  wo  might  liavi*  abandoned  Behring  Sea 
and  have  hunted  on  the  Kairweathor  grounds. 

The  Commissioner  on  the  |,art  of  the  United  States:— 
I  asked  the  (piestion  in  anothor  connection  altogether;  it 
never  occm-red  to  me  that  that  would  bo  a  specific  answer 
to  a  claim. 

Mr.  Peters:— I  thought  possibly  that  it  might  bo  argued 
or  used  in  mitigation  of  damages.  If  your  Honors  will 
look  at  the  map  you  will  find  that  a  trip  t<>  the  Fair- 
weather  grounds  is  a  matter  of  considerable  niomont.  It 
20 is  many  hundreds  of  miles  before  you  come  to  the  Fair- 
weather  gntunds. 

The  Commissioner  om  the  part  of  the  United  States:— It 
is  said  to  l)e  one  thousand  miles  from  Cape  Scott  to 
Behring  Sea. 

Mr.  Peters:  -The  Fairweather  grounds  are  grounds 
hunted  on  by  vessels  on  the  wav  to  Behring  Sea;  there  is 
no  evidence  on  this  Record  to  show  that  any  vessels  ever 
fitted  out  for  the  sole  purpose  of  hunting  on  the  Fair- 
weather  grounds. 
30  Mr.  Warren: — The  case  of  the  "  Winnifred"  is  specific 
on  that  point. 

Mr.  Peters:— The  learned  counsel  v/ill  remember  that 
he  asked  the  Court  to  disbelieve  Caj>tain  Hansen  on  that 
point.  He  tried  to  make  it  appear  that  that  was  a  little 
stretch  of  the  imagination  on  the  part  of  Hansen,  and  that 
he  always  intended  to  go  to  Behring  Sea,  and  possibly  my 
learned  friend  was  correct  in  his  contention.  But  outside 
of  that  case— the  witness  in  which  my  learned  friend  asked 
the  Court  to  disbelieve — there  is  no  evidence  that  any 
40  vessel  ever  fitted  out  from  Victoria  to  go  simply  to 
Fairweather  grounds.  There  were  son  etimes,  no  doubt, 
considerable  catches  made  on  the  Fairweather  grounds,  but 
it  was  not  a  place  where  catches  were  made  with  any  cer- 
tainty. Some  vessels  might  catch  forty  or  fifty  seals  on 
the  way  up,  and  some  might  catch  more,  but  there  was 
very  great  uncertainty  about  it.  The  consequence  was 
that  you  will  not  find  an  instance  of  any  vessel  being 
fitted  out  to  go  to  the  Fairweather  grounds  only.  The  ob- 
ject of  any  of  these  vessels  after  they  had  left  the  coast 
50  fishing  was  to  go  to  Behring  Sea  as  (juickly  as  pos- 
sible, and  simply  go  to  the  Fairweather  grounds  on 
the  way  up.  And  after  June  they  could  not  get 
anything  on  the  Fairweather  grounds.  Although  my 
learned  friends  cross-examined  Paxton  on  many  other 
points,  they  never  cross-examined  him  as  tc  why  he  did 
not  g.*  to  Fairweather  grounds.  Perhaps  the  Indians 
would  not  have  been  willing  to  go  there  under  the  circum- 
stances. 

The  Commissioner  on  the  part  of  the  United  States:— 

fioDo  you  understand  that  it  was  the  general  practice  of 

vessels  to  take  their  departure  from  a  certain  point  for 

Behring  Sea  direct,  or  was  it  the  usual  practice  to  sail 

along  the  coast? 

Mr.   Peters: — They  nearly  all  sailed  alor<^.,  the  coast. 


li  I! 


VVllH 


10 


um 

(Mr.  Pet«i«'  Ai'(;iiint!nt  in  R«'|tly.) 

Their  clcaraiico  \vn«  >?<'n«'rally  for  lh«>  Nortit  Pacific  and 
B(>liriii)!  H«'a 

Tlio  CiiiiiiiiissidiuM-  on  tli**  part  of  tli<*  ('nih-tl  StatoH:— 
Your  |iro|M)Hitioii   is  that  tli<>   Kairw«>allif<-  groniHls 
not   in   itst'lf  thr  (iltjfctivf  point,  hnt   only   laki-n  on  tl 
way  tip; 

Mr.  IVtiMs:     Yi's.  and  that  no  |M'rson  would  have  j^onc 

loto  tli»'  cxpt'iiso  of  fitting  up  a  vi-ssrl  foi'  tii*-  pinpost;  tif 
fiHhin);  on  tin-  Kairwoathcr  grounds  alonr.  Il,  i  h  also 
natural  that  tli**  Indians,  when  not  willing  to  n<>  to  Hi-li- 
rinj;  Sf.i,  would  not  liav««  hrcn  willing  to  ^o  to  the  Fair 
weather  ):rounds  ,ind  turn  iiack.  This  interruption  took 
plave  on  the  l.^th  of  Mav.  and  the  lishin^  on  tlu;  hair 
weatliei'  grounds  would  he  over  in  tlie  n>onth  of  ,Iinie.  sn 
that  tliey  would  only  have  had  ahout  a  month  to  do  tlieir 
sealing;  had  weather  niight  have  prevented  them  fruui 
getting  Ihei'e  to  ilo  any  sealing  at  all.     W<.'  suhniit,  Ihere- 

20 fore.  Ih.'it  the  fact  that  this  man  I'axton  proved  that  the 
United  States(!oveinment  issued  ;i  |)ro(lamation,  llieetTirt 
of  which  was  known  to  his  men,  is  sutticieut. 

lieference  has  heeu  mailo  to  the  instructions  given  to 
the  naval  ollkers  of  the  I'nited  Slates,  and  my  friend 
pointed  out  tliat  these  instiiK  tioas  were  dated  at  a  <late 
later  than  this  vessel  turned  hack  from  Cape  Scott.  That 
has  nothing  to  do  with  the  mailer,  hecause  it  isappaivnt 
that  instrui  linns  to  naval  ollicers  never  could  have  lieen 
known  to  I'axton      They  were  given   to  the  captains  of 

3()the  cuttt>rs  piivately  at  a  time  which  would  enahle  them 
to  a(  t  ."o  scon  as  the  Hehring  Sea  season  opened.  The 
I'lesideufs  pioclamation  was  |inhlished  in  March,  long 
liefore  I'axton  w.is  compelled  to  turn  hack.  Our  conten- 
tion is  that  when  the  I'lesideiit's  procl.imatiou  was  made 
iwn  to  the  world,  it  was  known   that  it  did  not  mean 


km 


empty  words,  aiidth.-it  it  would  he  (anied  oul ;  and,  then 
fore,  when  we  find  that  the  pio(  lamatioii   fiighteiied  the 
Indians  so  that  the  captain  could  not  c.-n  ry  out  his  intended 
voyage,  it  appeals  lo  us  that  thecase  isagood  one  without 


f  (if  actual  warning 


40  proo 

CVSK   OK  TIIK  '■  HkNHIKTTA." 

Now,  as  to  the  case  of  the  "  llenriett.i,'  which  is  one  of 
the  atldilional  cases.  Attheprtsent  I'lonient  I  have  not 
made  u|)  my  mind  that  it  will  lie  iiece  sar^  lo  make  any 
remarks  in  addition  lo  what  have  ,ihi  an /  lieeii  maile.  It, 
hefore  I  close  my  reply.  I  find  .iiiylhiig  is  called  for,  I 
shall  then  make  seine  oli-ervalions,  hut  at  the  present 
time  it  appears  that  the  liahilily  lo  pay  c  impensatiou  is 
5"fnllv  iin«l  fi.Mikiy  admitted  hy  my  friends  on  the  other 
si(h',  and,  Iheretore,  it  simply  comes  down  toaijueslion 
of  the  aniouni  of  damages. 

•  Savw.\hi)  Cost.'" 

As  to  the  '•  Say  ward  "  costs  case,  it  has  already  heeii  so 
fidly  argued  in  oin  hiief.  .ind  hy  Mr.  Hei(|Ue.  that  I  think 
the  contention  on  hotli  sides  is  fully  hefore  the  Commis- 
sion. I  (oiilent  myself  hy  referring  to  Iheargnmeiil  made 
by  Mr.  Heiijne,  and  the  writt«'n  argument. 

Main  .-Vucumknt. 

Now,  having  made  these  remarks  upon  tlie  special  cases, 
I  wiflh  to  bring  your  Honors"  attention  to  the  argninenl 
presented  hy  my  fiiend,  Mi'.  Lansing.     1  may  say  it  is  my 


60 


•  rT^  '  'jri 


if 


m\7 

(Mr.  PetoiH'  Aij<»'>i»'"t  in  H»'|»ly.) 

|)Ui'p>>8t^  to  (lenl  with  tli«>  qiicstionH  of  fact  first,  and  then 
with  tht>  (juestions  of  law. 

Th(>  tirs't  <|ii<>stioii  Ml'.  l>aiiHiiii;(U'als  witli  is  our  nii'thod 
of  cotii|Mitinf;  t'stiiiiatfti  catch.  In  tlio  inethoii  that 
we  pr(i|i(i8e  tor  cstiniatiiig  catch,  which  your  Honora 
will  find  at  pa^cs  7t*  to  .^2  of  our  ai^uniciit.  wt>  made 
tliis  ^cncinl  statement,  that  u|)(in  looking  at  all  thu  ves- 

lOrtuls  about  which  w«*  had  (orrect  information  as  to  thoir 
catch,  and  the  time  they  were  in  tli«'  Sea,  the  only  vessel 
in  regard  to  which  it  could  he  really  said  that  she  had 
bet'H  alile  to  hunt  without  intei  ruption  on  account  i>f  th(> 
action  of  the  United  States  (lovermni'nt  w.is  the  "Mary 
Gllfu;"  we  therefdre  said  that  in  attempting  to  compute 
tho  estimated  catch  it  was  tail' that  the  "  Mary  Kllen" 
Hhould  he  taken  as  a  test  case.  That  was  our  proposition. 
The  argument  that  Mr.  Lansing  lias  submitted  tu 
tliis    Tnbunal     controvt.ts     that     proposition,    and    he 

2otak'.mupa  great  deal  of  time  in  arguing  that  tliat  is 
an  unfair  comparison.  He  takes  a  great  deal  of  pains, 
by  tables  and  diagrams  of  his  own,  to  lay  before  yon 
various  averages  anil  various  statements,  and  upon  them 
all  he  con)es  to  no  conclusion.  He  says  it  is  iiupossible  to 
coMie  to  any  conclusion;  an<l  when  asked  to  show  any 
better  mode  than  we  have  proposeii  to  est  imat*' an  average 
catch  that  any  vessel  ought  to  make,  he  says:  "  VViiat  I 
am  here  t(t  prove  is  not  th.it  then' exists  any  better  mode, 
but  to  piove  that  there  is  no  basis  upon  which  any  calcu- 

^olation  can  be  made."  That  is  the  point  h<>  attempts  to 
prove  by  the  complicated  tables  which  be  lias  pioduced. 

Now,  in  the  first  place,  he  calls  attention  to  a  table  that 
we  inserted  in  our  argument  at  page  75.  That  table  was 
not  put  in  for  the  purpose  of  founding  any  special  calcu- 
lation ujton  it,  but  for  the  puipose  of  showing  coiicisely 
certain  mformation  which  we  had.  concerning  the  move- 
ments <»f  the  (litTerent  vessels.  1  wouM  make  this  state- 
n:  uit,  that  it  is  no  easy  matter,  wbeie  there  is  ilisputed 
t(    .imony  here  anil  tbete,  to  make  a  tabulated  statement 

(owhich  would  be  absolutely  coirect.  We  li.ive  not  done  it 
and  Mr.  Lansing  I, as  not  done  it.  It  nnist  be  rememi)ered 
that  many  of  the  witnesses  upon  whose  evidence  the  ta- 
bles were  founded  were  spejiking  from  memory,  and  when 
there  were  discrepancies  bet  ween  persons  speaking  from 
memoiy  it  was  impos-iitle  to  tell  which  was  correct  We 
can  only  get  at  it  appro.ximately.  When  this  matter 
came  up  in  Olid  aigument  1  made  a  calculation,  which 
calculation  will  lie  found  set  out  in  the  report  of  my  tirst 
address.     1    see   one    or  two   erroi-s      Kor   instance,    the 

;Mcatch  of  the  "Oiiwaid,"  in  my  nial  argiiinent, 
is  put  at  5()H.  whereas,  as  ,»  matter  of  fact, 
it  ought  to  be  \H)7.  I  collected  it  in  reality,  Imt 
I  happened  to  give  my  notes  to  theshorlhand  reporter  and 
he  copied  it  with  the  mistake  in  it.  1  made  (his  calcula- 
tion upon  the  tables  contained  in  our  printed  argument. 
.Mr.  Lansing  says  that  the  calculation  is  all  wrong.  My 
lalciilation  showed  lor  boats  somewhere  between  seven 
and  nine  on  an  average  and  it  showed  for  canoes  about 
tour.     He  contends  that  is  all  wrong,  and  that  you  cannot 

(  )niake  up  any  such  calculation,  and  he  also  says  that 
our  table  shows  sometimes  the  first  lowering  day,  and 
sometimes  the  day  the  ship  entered  the  Sea.  and  some- 
liujes  it  shows  the  last  lowering  day  and  sometimes  the 
day  the  ship  left  the  sea,  and  therefore  the  calculation 
is  not  reliable.      I  am  not  here  to  say  that  we  can  give 


KHIH 


.  ,  t 


m 


rI-' 


(Mr.  PoterH*  ArKUinunl  in  R«?|»ly.) 

^oii  nil  t'xnct  tnbh)  by  wliicli  you  can,  tn  n  m>al,  Hay  what 
18  the  avtM-n^t*  that  a  VfHSfl  Hhoiild  hnvo  <;aiiKlit  in  1886  or 
1887  <tr  I8H)».  Wf  (K)  not  proiMwo  to  do  that,  hnt  wo  think 
we  can  n'*'«'  von  ilata  from  wnicii  yon  may  come  to  a  verv 
(rood  idea  of  it.  Now.  my  friend,  in  ordtM' to  correct  me, 
made  np  several  statement.s.  I  will  refer  to  one  of  them 
It  is  what  1  call  liiH  main  tnbh*.     lie  inserts  tiiis  table  as 

lO  follows; 

"  Data  relafinn  to  Healing  vessels  e(]ui|)|H!d  with  boatH," 
then  comes  the  following  information— the  year,  tonnage, 
nnnd)er  of  bojits,  date  of  entering  tlie  Sea. 

Tli«' Commissioner  on  the  part  of  the  I'nited  States:  — 
How  is  that  lttter«'d? 

Mr.  LansJMK:  It  is  what  I  term,  "The  (leneral  Tabli' 
IJelating  to  Catch." 

Mr.  Peters: — The  one  1  am  reading  at  the  jiresent  tiim' 
is  tliu  one  relating  to  boats.     Tiie  information  that  that 

-o table  gives  ns  is  as  to  the  vessel,  the  year,  the  lunnber  of 
boats,  tonnage  and  the  dale  of  entering  tiio  Sea— the  last 
lowering  day,  the  day  of  leaving  the  St-a,  the  catch,  and 
then  remarks.  My  friend  tiutk  pains  to  tell  ns  that  lliis  was 
bettor  than  onr  tables,  because  it  not  oidy  named  one  wit- 
ness, as  wo  did,  bnt  all  the  witnesses  who  had  given  evi- 
dence on  the  point.  I  am  not  pre])ared  to  admit  tho  ac- 
curacy of  my  friend's  table,  becanso  it  is  not  correct,  bnt 
I  dare  say  it  is  correct  enough  for  practical  purposes. 
You  will  find  in  one  case  that  he  makes  a  vessel  enter  the 

30  Sea  (»n  the  24th  .)idy  and  you  will  find  that  that  vessel  had 
tho  first  lowering  day  on  the  20th  July,  which  is  impos- 
sible. 

Mr.  Lansing:— Is  not  that  the  testimony  of  tho  wit- 
nesses? 
Mr.  Peters: -I  am  not  discussing  that  point. 
Now,  I  have  taken  his  own  table,  the  table  as  he  makes 
it  up  himself,  and  let  us  see  Ijow  we  shall  come  out  on 
liis  own  statement.  I  have  mad«'  some  simple  calcula- 
lations  based  on  tiiis  table,  and  I  will  give  your  Honors 

40 tho  result.  In  1880,  according  to  Mr.  Lansing's  table, 
there  were  in  Reliving  Sea  six  vessels  that  carried  boats; 
the  "Mary  Ellen,"  the  "Pathfinder,"  the  "Theresa." 
the  "Thornton,"  the  "Vandeibilt"  and  the"  Adele." 
These  vessels  had  between  them  in  all  27  boats,  and  they 
caught,  according  to  my  friend's  table,  8,.'>7S»  seals.  So 
that  every  small  boat  that  was  in  Behring  Sea  in  1880 
caught  on  an  average  817.74  seals.  I  take  this  not  from 
my  figures  but  from  his.  I  follow  on,  and  I  find  again  in 
that  same  year  the  "  Mary  Ellen  "  bad  five  boats,  and  she 

50  was  in  the  Sea  .5.5  «lays.  That  is  27.5  hunting  davs  for  one 
boat.  I  make  the  same  calculations  for  each  of  the  others 
to  find  out  how  many  hunting  days  for  one  boat  each  one 
of  these  vessels  had.  Then  I  add  them  all  up,  and  I  find 
that  all  of  these  vessels  together  had  1236  days  in  Behring 
Sea  for  one  boat.  I  divide  that  into  the  whole  nnndier  of 
catch,  and  I  find,  according  to  their  own  figures,  that 
every  boat  on  an  average  caught  per  day  0.93  seals.  That 
is  the  catch  per  boat  pei-  day  in  that  year  according  to  my 
friend's  own  figures.     Nearly  7  seals  per  day;  not  so  very 

'''o  far  from  the  statement  I  previously  made.  By  making 
similar  calculations,  and  leaving  out  the  vessels  that 
were  seized  that  year,  or  interfered  with,  and  the  average 
per  day  per  boat  is  7.32.  Now  I  will  make  the  same 
calculations  for  the  canoeu  of  that  year.  I  find  that 
in    that    year   there    were    in   the  Sea  8    vessels   that 


r 


(Mr.  Pet*'!!*'  Ai-giiiiu'tit  ill  l{»'|>ly.) 

had  canot'H.  They  hail  hetwt't'ii  tlieiii  7(i  C!iii<»eH,  and  they 
caught  altogethor  10,641  ueals.  That  is  onvh  vnmw  in  thu 
Sea  that  year  caught  on  an  av«>i-aKt>  ir>'2  H<>alH.  HriiiKiiiK  it 
down  to  th(!  niiiiihci'  of  working  days  for  oiin  caiiot*  th«> 
combined  nuinhur  of  days  in  the  S<>a  for  all  of  tliOHO  ves- 
Helf  for  ono  canoe  would  \w  'J,ho4,  divido  that  into  the 
total  nunilwr  of  neals  caiight  and  yon  will  ftiid  that  every 

locanoe  einployed  in  the  Sea  in  IbMt  caught  an  avera^n  of 
3.71*  sealrt  per  canoe  per  day. 

There  in  another  tiling  I  Hliould  point  out.  The  average 
catch  per  canoe  of  the  Neason  was  i.''>2,  and  the  lowest 
catch  of  any  veHsel  with  caMoes,  that  remained  during  the 
entire  Heason,  was  ono  with  1 1  canoes,  which  caught  l,lfKi 
seals,  or  an  average  of  inu  for  each  canoe.  My  friend, 
Mr.  Lansing,  hy  liis  coinpntatioiiH  and  reasoning,  has 
proved  conclusively  that  we  never  caugl.v  the  nunilier  of 
seals  we  did  catch;  that  the  number  of  seals  actually 

20 caught  could  not  be  caught.  That  is  the  logical  conclusion 
of  his  argument.  1  think  one  of  the  remarks  before  the 
Tribunal  at  Paris  by  Mr.  Coudert  was.  that  give  him 
figures,  and  give  him  a  pen,  and  he  could  prove  anything. 
The  answer  was  that  Mr.  Coudert  could  do  it  without  a 

Een,  and  that  remark  niif^ht  apply  to  Mr.  Lansing.  He 
as  proved  to  you  conclusively  that  we  caught  more  seals 
than  we  could  by  any  possibility  have  caught.  Before  I 
leave  this  matter  of  1M8((  I  would  like  to  make  this  addi- 
tional statement.  Tlie  average  catch  per  boat  for  the 
30  season  of  18H«1  was  317.74!  The  lowest  catch  of  any  vessel 
that  i-emained  during  the  entire  season  was  the  "  Vander- 
bilt,"  which,  with  5  boats  caught  1,545,  or  i*r>{»  for  each 
boat. 

Now  let  me  give  you  the  average  for  1H8U  for  the  canoes 
of  vessels  that  remained  in  the  Seii,  and  .v<Me  not  inter- 
fered with.  There  wore  M  canoes,  and  they  caught  alto- 
gether 1»,04H.  with  an  average  for  each  canoe  of  l.'it!,  or  an 
average  per  canoe  per  day  of  :t.t». 

Mr.  Ijtuising:--!  would  like  to  know  Iimw  you  determine 
40  which  is  the  correct  staiementas  to  tht;  catch,  and  the  cor- 
rect statement  as  to  the  number  of  days. 

Mr.  Peters:  — 1  will  show  you  what  1  have  dene.  In  the 
first  jdace  I  have  not  gone  liack  of  the  first  of  July,  and  I 
have  counted  the  sealing  season  as  never  extending  back 
of  the  first  of  July.  That  is  what  I  iiave  done  originally, 
and  always  have  done.  In  the  second  place  I  have  adopted 
the  day  of  leaving  the  Sea  in  every  case  where  it  is  given. 
Where  it  is  not  given  I  have  taken  the  last  "lowering 
day."  As  to  the  number  of  seals  I  have  allowed  in  each 
50  case,  the  figures  I  hav«!  adopted  will  appear  by  comparing 
one  with  tlie  other.  The  only  difference  I  have  made 
from  your  table  is  in  the  case  of  the  "  Onward."  In  that 
case  we  have  proved,  beyond  peradventure  or  a  shadow  of 
a  doubt,  that  the  "Onward"  had  (>()(•  seals  instead  of  500. 
It  appears  from  the  log  book  of  the  "  Favourite"  that  that 
nuinber  of  skins  were  taken  off  the  "  Onward,"  and  were 
on  the  "  B^avourite  "  before  seizure. 

Now,  I  take  the  year  ISH7,  and  from  the  same  tables  I 
find  in  i-egard  to  boats,  that  in  that  year  there  were  seven 
'^'O  vessels  that  carried  boats,  and  they  carried  altogether 
thirty-four  boats.  They  were  the  "  Allie  I.  Alger,"  the 
"Favourite,"  'Mary  Ellen,"  "Mary  Taylor,"  "Path- 
finder," "  Penelope,"  and  the  "  Vanderbilt."  They  caught 
H,}»94  seals,  an  average  for  each  boat  of  264.53.  I  find  also, 
bringing  that  same  calculation  down  to  the  number  of 


r. 


107i» 


(Mr.  FoUmh'  AiKiinifiit  in  Koply.) 

workiiiK  tlayn  for  onu  lioiit  in  the  Sen,  that  tlH>y  liad 
iiltogutmn'  i73i(  working  <|jiyH  for  onu  ImuiI.  Dividing 
thut  into  till*  nunilHM-  of  hchIh  that  w«>r«>  cmi}j;lit,  you  will 
find  thf  liontH  ciiiiKlit  that  year  an  avoraKoof  5.  ISpor 
boat  |H>r  (lay.  Hringin^  that  down  to  Ihu  actnal  uv«<r- 
a^e  of  what  they  i-auKht,  you  will  find  that  thu  avi>r- 
ago  catch  per  lioat  per  seaKon  was  'J»I4.     Tlu'  lowest  catch 

lo  wnH  the  "  Vanderbiit,"  whoMt>  six  boats  caUKht  liftn  or  an 
avra^e  of  iiOH.\  s«'als  each  boat. 

Now,  then,  in  Ihm7  for  canoes— we  fhid  that  thore 
were  |o  v«»jsels  that  carried  altogether  H'.\  canoes.  They 
caiiKbt  IHMW  s«'als,  o'  an  average  of  lllt.HT  per  canoe,  j 
tind,  making  th«<  same  calculation  I  did  before,  that  there 
were  'Jl\H  working  days  for  one  canoe,  and  dividing  that 
into  the  nundierof  seals  caught  wotdd  give  an  average  of 
;i.»i4  per  canoe  per  day  for  1HS7. 

Now  I  venture  to  say  that  this  way  of  making  up  an 

2oaverage  is  a  better  test  llian  to  lakt!  the  av«'rage  of  any 
one  vessel.  So  that  that  gives  you  for  the  year  an  aver- 
age of  IIS).:(7  that  each  canoe  caught  <U' an  average  pei 
day  for  each  ••aiioe  (d' ;i.<'»4.  Now  it  you  take  that  year, 
thu  vessels  (hat  were  not  interfered  with,  and  I  call  your 
Honors  to  note  this  particularly,  for  you  will  see  the  big 
jump  that  is  taken  showing  the  elfect  that  interference 
had  in  that  sanu>  year  u|ion  the  catches  of  vessels  that 
were  interfered  with.  Tlieie  were  four  vessels  carrying 
;k>  canoes,  and    they   caught  ."s^U:?  si-als,  or  an  average  of 

3i)l7s.|u  for  each  canoe,  or  an  average  per  «lay  per  canoe  of 
5.HH.  So  that  the  canoes  of  vessels  not  interfered  with 
caught  H.'-'H  per  day,  whil"  if  you  include  those 
that  were  int'-rfered  with,  tlie  c;itcli  is  reduced 
to  :i.ti4.  Nothing  would  be  stronger  than  this 
illiiHtratioii  taken  from  my  liarned  friend's  own 
tables.  I  could  go  on.  and  give  the  same  statisticij  for 
1889,  b  I  I  iiave  not  done  so  toi'  the  reason  that  m  jSH!) 
tliere  >  no  .so  many  seizmes  and  interferences  that  it  is 
not  fair  to  take  an  average  of  all  the  vessels.     Hut  I  sub 

4on3it  you  have  a  right  to  say  that  if  no  interruption  had 
taken  place  in  IsH!)  the  catch  would  have  been  fully  as 
good  as  the  averagu  nuidu  in  one  of  the  years  belore. 
So  much  in  regard  to  this  part  of  thu  table. 

Now  let  me  refer  your  Honors  to  some  of  the  blue  priids 
that  my  learned  friend  lias  fornmlated.  You  will  tind 
several  of  them,  but  one  particularly  I  want  to  call  your 
attention  to,  and  that  is  the  one  showing  the  numbi-r  of 
"Lowt-ring  days"  that  dilfeient  ves.sels  had  in  the  Sea. 
It  is  blue  print  No.  5  and  is  a  comparison   of   the  days 

50  when  hunting  was  carii»'d  on  in  Itehring  Se.i  in  IHH(i, 
1887  and  18M!t.  You  will  se<'  at  a  glance  the  remarkable 
coincidence  in  the  nmnber  of  lowering  days  of  ditfereut 
vessels  in  ditferent  parts  (d'  the  Sea,  and  the  fact  of  tlie 
weather  being  tine  in  tlillerent  parts  of  the  Sea  at  the 
same  time.  Take  July,  for  instance,  and  the  first  part 
of  August,  and  see  how  nearly  in  all  those  years  the 
same  weather  seemed  to  have  prevaile<l  everywhere. 
That  chart  demonstrates  in  the  very  clearest  manner,  not 
my  learned  friend's  contention,  but  ours. 

Cio  I  am  not  going  through  my  friend's  argument,  where 
he  attempted  to  show  that  the  "  Mary  Ellen's  "  catch  was 
not  the  pro[)er  test.  When  he  begins  to  reckon  from  the 
24th  of  August  backward,  and  the  first  of  July  forward, 
it  looks  all  right  on  paper,  but  you  cannot  trust  any  sncli 
general  statement  as  he  has  given  us  here.     You  can 


1071 

(Mr.  IVtoi'H*  At-KUinuiit  in  Ueply.) 

flgiiroout  alnioHt  any  rt>Hult  IIiIh  way  nml  that  way,  du- 
landing  u|Kin  tlio  tiay  yoti  Hlart  with.  I  do  not  think 
that  much  kcmhI  can  Im  got  out  of  it,  and  it  couh'h  down 
to  Mr.  Coudert'H  r«>niark,  that  with  a  |H>n  and  figures  you 
can  tiguru  out  ahnoHt  any  lusult. 

At  uno  o'clock  tliu  C'oniniisHionorH  look  roccHs. 


lo 


At  halt-past   two  o'clock  the  ConnnissiontTs  rcHunied 
thoir  Hcatu. 

Mr.  Pet«'rs:--My  l«'arn»Ml  fiii-nd,  Mr.  TjinHing.  dealt  at 
length  in  his  argument  with  llui  proposition  tliatlhert;  are 
no  dethiite  sealing  grounds  in  Mehring  Sea;  and  in  hiii 
oitening  statements  he  said,  stating  tint  position  of  tlie 
United  States  here:  "Now.  vonr  Honors,  it  is«>videiit that 
20"  the  peoplo  who  undertook  this  venture  are  as  varied  in 
"  their  occupatiouR  as  the  purchasers  «>('  lottery  tickets, 
"  and  the  same  spirit  which  induced  !!:  persons  to  invest 
"  their  money  in  a  lottery  induced  th -i  >  to  go  into  the 
"  husin»'ssof  sealing.'' 

I  am  not  prepared  to  say  that  tliii!  is  not  a  fair  com- 
parison from  Mr.  Lansing's  poini  t  vjevx  when  .ironing 
that  particidar  point,  hut  in  ai  voc  lo  it  I  <<(iuld  refer 
yoiu'  Honors  to  liis  own  t.ihle,  compiled  lui-  the  ye.irs  l><8« 
and  IMST,  and  I  would  point  out  th.il  in  that  talile  he 
3oshows  that  the  catches  01  each  one  dl  the  vessels  in  these 
years  wert^  «>Mough  to  >.''ve  tliem  a  veiy  i  onsidei.iltle  pidtit. 

If  it  is  to  he  compared  with  a  hillery.  it  is  ceilainly  a 
lotterv  in  which  «'very  man  has  a  prize.  My  learsed  friend, 
Mr.  l)i«:kinson,  did  not  <onii»are  si-ai  tishing  to  a  loiiciy 
hut  he  compared  it  to  whaling,  and  arguing  fioni  the 
"  Costa  Hica  "  and  (ieneva  cases,  he  s.iid  that  whaling  ia 
afar  moriM-ertain  occupation  than  .sealing,  i  should  like 
to  know  vvliere  my  learned  friend,  Mr.  Dickinson,  gets  Ins 
authority  foi'  that  stalenienl.  1  was  jilways  disposed  to 
40think  that  whaling  was  a  most  imcertain  an  wt-ll  as  dan- 
g»>ri>\is  occnp.iti<»n.  I  should  like  to  see  the  authoritative 
chapter  and  verse  that  my  learned  fiiend  ipiulcs  when  he 
says  "that  sealing  is  as  imcertain  as  whaling." 

In  suiting  forth  his  proposition  that  tliere  ar*>  no  defin- 
ite sealing  grounds  in  Hehring  Sea,  .Mr.  hansiiig  takes  up 
several  statements  that  have  heen  made  on  Iwhalf  of 
(treat  Hiilain. 

lletlealt  first  with  Mr.  H(»d  well's  argument  as  to  the  testi- 
mony of  Laugldan  Mclican,  where  he  says  that  there  were 
?ohanks  in  hehring  Sea.  After  (juoting  Mr.  liodwell's  re- 
marks. .\lr.  Lansing  added,  "hut  he  (Mr.  Bodwell)  does 
not  tell  your  Honors  where  these  hanks  are  to  he  fttund." 
And  producing  a  chart,  Mr.  Lansing,  referring  to  the 
locality  des(;rihed  hy  Mr.  Hodwell  as  peculiarly  a  sealing 
ground,  asked  that  a  single  point  he  mentioned  in  that 
area  where  the  water  is  less  than  lUMt  feet  in  depth.  But 
my  learned  friend,  Mr.  Lansing,  when  he  puts  a  cpies- 
tion  of  that  kind,  d-x  •  not  seem  to  comprehend  what 
really  represents  a  tishing  hank  at  sea.  Let  him  go  to 
(Jothe  tishing  hanks  of  Newfoundland  and  inquire  what 
depth  of  water  is  on  them.  We  know  a  hank  at  sea  by 
the  fact  that  there  are  soundings,  and  when  you  find  in 
Behring  Sea  that  there  are  sountlings  at  a  certain  place, 
you  know  that  they  indicate  the  banks. 

I  refer  your  Honoi-s  to  the  following  authorities  in  sup- 


W72 


...rv 


'    "      ''1m 

"      :    '  ■                           ■.r'^\': 

-    ..      '       —                        ■  ']i^'*- 

;          Wi 

i'                 Vi(i 

•  -^  '      m 

iv .      ii 

ij.  '        ':i"; 

■  !•'    ■         ;t' 

Mi,         i?r; 

:r,:ii'        4? 

lO 


30 


(Mr.  Peters*  Arguinent  in  Reply.) 

port  of  Mr,  Bod  well's  contention.     I  will   road   first   from 
the  United  States  case  at  Paris,  page  14,  Vol.  2: 

"  A  peculiar  fuaturo  of  HcliriuK  Hi>a  Ih  the  cxtenHiTC  bank  of  BoanJ 
"  iogH  whiuli  Htrct<'li'>H  off  for  25()  or  more  uiileH  from  the  American 
"  couHt,  n'uili'riun  the  eaHteru  ])urtion  of  the  Sea  very  shallow.  Tb<' 
"  i-hurts  show  that  throuKhoiit  one-tliiril  of  the  Sea  the  depth  of  the 
"  water  doeo  not  Keuernlly  exceed  Hftv  fathomn,  and  they  also  hIiow 
"  that  the  average  depth  of  the  whole  Sea  is  very  conHidcralil/  lean 
"  than  that  of  the  adjoining  ocean." 

At  Vol.  a,  page  ll!».  speaking  of  the  distance  which  the 
seals  wander  from  the  islands  (luring  the  siminier  in  their 
search  for  food,  the  case  proceeds: 

"  The  great  distance  of  the  feeding  gronudH  from  the  iHlands  is  not 
"  remarkable,  as  the  seals  are  very  rapid  nwimmers  and  (lossess  great 
"  endurance." 

•And  later  on  in  the  same  page: 

)  "  that  a  female  could   leave   the  islands,  go  to  the   fishing  grounds 
"  a  hundred  miles  distant,  and  easily  return  the  same  day." 

At  Vol.  7,  page  3l>4,  Prof.  Townshend,  in  his  deposition 
attached  to  the  conntercase  of  the  United  States,  says: 

"  In  the  stomachs  of  many  of  the  seals  examined  as  above  stated, 
"  there  were  found  large  quantities  of  fish,  usually  ccdflsh." 

In  speaking  of  the  codfish  it  says; 

"  It  is  found  from  the   shallows  along   the  shore  out  to  the  banks 
where  the  tishermcu  usually  take  them." 

And  again: 

"  In  its  freciueut  migrations  from  bank  to  bank  the  cod  passes  over 
"  tracts  of  ocean  where  the  water  is  of  profound  depth." 

Vol.  9,  page  HIO,  United  States  argnrnent  at  Paris: 

"  All  the  schooners  prefer  to  hunt  around  the  banks  where  the 
"  female  seals  are  feeding." 

Mr.  Condert,  in  his  oral  argument  at  Paris,  Vol.  2,  page 
^o:i5.5,  says: 

"  The  facts  stated  here,  that  there  is  this  large  numlN?r  of  seals  con- 
"  stautly  upon  the  laud,  explains  the  scarcity  :if  fish,  and  it  is  also 
"  apparent  that  there  are  feeding  grounds,  that  is,  places  where  enor- 
"  mous  masses  of  tish  congregate,  and  to  which  the  seals  resort." 

In  the  United  States  Counter  Case,  Vol.  7,  pages  107, 
los,  it  is  said: 

"It  must  also  be  recollected  in  considering  this  question  that  the 

"  sealing  captains  have  each  year  become  more  and  more  familiar  with 

"  the  migration  route  of  the  seals  in  the  North  Pacific  and  their  feod- 

50  .<  igg  grounds  in  Bchring  Sea,  which  naturally  tends  to  increase  an- 

"  nually  the  catches  in  these  localities." 

Mr.  Lansing  also  refers  to  Mr.  Bodweli's  argument 
where  he  contended  that  the  position  of  the  United  States 
at  Paris  was  tliat  the  seal  industry  was  in  danger  of  heing 
d  'stroyed  hy  the  efforts  of  the  p«'lagic  sealers,  whereas 
now  the  position  is  that  it  was  difficult  for  the  sealers 
to  find  seals.     He  said: 

"  My  learned  friend  is  in  error.  He  dm-s  not  unilerstand  the  posi- 
"  tionof  the  United  States  in  1H!)2,  or  else  he  has  been  misinformed 
"as  to  the  fricts.  The  position  that  we  assumed  l>efore  the  Paris 
"  Tril>uual  was,  that  the  seals  taken  were  not  so  great  in  number,  but 
"  that  for  every  skin  taken  two  s<>alH  wore  destroyed;  that  is,  that  out 
"  of  every  hundred  seals  killed,  but  ♦hirty-three  were  secured  by  the 
•'  hunters.  That  was  the  first  contention  of  the  United  States  at 
"  Paris." 


Ou 


1073 

(Ml".  Peters'  Argument  in  Reply.) 

Notwithstanding  that,  the  following  is  an  extract  from 
the  United  States  written  argument  at  Paris: 

*'  Offioers  from  the  navy  of  the  United  Htates,  BritiHh  sea  captains 
"  as  well  as  Amoricnn  .leiinieu,  jouraalistR,  untiveH  all  cunour  ns  to  the 
"  fearful  ileBtrnctiou  which  in  K*'iuK  on.  It  in  not  poHnible  to  read  the 
"  teHtiniouy,  oven  inakiug  fur  more  allownnco  for  exuKgcration  than 
"  the  nature  of  the  uhhb  will  juntifv,  without  reachiuft  the  conclusion 
"  that  pelagic  sealing  must  bo  stopped,  or  all  hope  of  preserving  the 
'"  "  herd  abandoned." 

I  refer  your  Honors  also  to  tlu;  United  States  case.  Vol. 
2,  pages  187,  18HandL'li>;  Vol.  5),  pages  297,  298  United 
States  argument  at  Paris. 

At  page  199  United  States  Argument  at  Paris,  Vol.  9, 
the  following  passage  occurs: 

"  But  notwithstanding,    lot  the  inquiry  how  soon  the  destruction 
"  will  l>e  complete  proceed,  nnd  for  this  purpose  let  it  lie  assumed  that 
"  the   present   magnitude  of  the    pelagic  catch  and  the  consequent 
20  "  destruction  of  females  bo  continued." 

These  quotations  will  show  that  our  learned  friend  Mr. 
Lansing  has  made  a  st.atement  before  this  tribunal,  which 
is  hardly  sustained  by  the  Record  at  Paris. 

At  page  200  of  the  oral  argument,  Mr.  Bodwell  speaking 
of  this  matter,  says: 

"Again — and  it  is  a  point  with  which  I  will  have  to  deal  with  more 
•'  fully  later — the  position  assumed  by  counsel  for  the  United  States 
"  is  inconsistent  with  the  whole  of  their  contention  from  the  beginning 

,_  "  of  this  coutroveruy.     If  it  is  a  fact  that  seal  hunting  is  so  un<-ertain; 

^  "  if  it  is  a  fact  that  the  sealing  grounds  are  unknown  and  that  the  sea- 
"  sou  is  short;  how  is  it  that  the  United  States  went  to  Paris  and 
"  asked  for  regulations  upon  the  tlie^^rv  th.'<t  the  largo  industry  was 
"  necessary  for  the  comfort  of  the  iuhaiiitant.i  of  the  world  generally, 
"  and  that  it  was  in  danger  of  being  destroyed  by  the  efforts  of  the 
"  pelagic  sealer  ?" 

At  page  29H,  Mr.  Bodwell  refere  to  the  matter  again  as 
follows: 

"We  take  the  position  that  the  United  States  having  at  one  stage  of 
•■  the  controversy  made  their  cose  on  the  ground  that  sealing  was 
40  "  being  conducted  so  successfully,  that  the  habits  of  the  seal  were 
"  so  well  known,  the  places  of  abode  so  well  defined,  tliat  the  efforts  of 
"  the  pelagic  sealers  were  practically  destroying  the  seals  herd,  I 
"  say,  we  assert,  that  it  was  not  competent  for  them  at  another  stage 
"  of  the  controversy,  in  order  to  benefit  themselves,  to  take  an  entirely 
"  different  and  inconsistent  position  and  assert  that  the  former  con- 
"  tention  was  not  correct." 

It  a|)pear8  to  me  that  the  position  taken  by  Mr.  Bodwell 
is  perfectly  consistent  and  that  Mr.  Lansing  has  not  cor- 
rectly stated  what  Mr.  Bodwell's  jMisition  is. 
50  Ml".  Lansing:--!  took  that  statement  from  Mr.  Bodwell's 
typewritten  copy  of  his  address,  where  he  said  wo  ob- 
tained regulations  within  the  prohibited  zone. 

Mr.  Peters:— I  wish  to  point  out  that  when  your  Honors 
come  to  look  at  this  argument,  you  will  find  that  the  posi- 
tion that  Mr.  Bodwell  took  is  not  the  position  which  Mr. 
Lansing  assumed  he  took,  and  therefore  Mr.  Lansing's 
remarks  on  this  point  have  no  relevancy  whatever. 


60 


Duration  of  Season. 

The  next  thing  dealt  with  by  Mr.  Tiansing  was  the 
duration  of  the  sealing  seivson.  My  learned  friend  has 
taken  the  same  pains  with  regard  to  this  as  to  other 
matters  and  has  attempted  to  come  to  an  average.  I  be- 
lieve that  when  my  learned  friend  considers  his  position 


i    .'- 


It 


i-'  !i 


1074 

(Mr.  Peters'  Argument  in  Reply.) 

on  this  matter  a  second  time,  he  will  see  tliat  we  are  right 
in  asking  your  Honors  to  be  very  careful  in  adopting  my 
learne  i  friend's  averages  as  a  basis  for  any  computation. 

He  produced  a  document  marked  Number  4  and  he 
told  your  Honors  that  from  this  document  we  could  cal- 
culate the  average  date  of  entering  and  leaving  Behring 
Sea.  My  learned  friend  in  making  up  these  averages 
lotook  the  years  1888  and  1890,  and  declined  to  take  into 
consideration  any  other  years.  He  did  that  on  the  ground 
that  in  these  years  there  were  no  seizures,  and  presum- 
ably he  argues  that  the  years  in  which  seizures  were  not 
made  would  afford  the  best  basis  of  an  average. 

Now,  although  there  were  no  seizures  in  1888,  many 
people  tliought  there  would  be  seizures,  and  many  pe<  pie 
who  sent  their  ships  to  Behring  Sea  thought  tiiero  was  a 
special  airangenieiit  made  under  which  they  would  be  al- 
lowed to  fish  from  the  ir»th  of  July  to  the  20th  of  August. 
20  That  had  nothing  to  do  with  the  supposed  action  of  the 
United  States,  but  it  was  based  on  the  supposed  intended 
action  of  tiie  Government  of  Great  Britain.  Whether 
there  was  any  foundation  fortius  belief  or  not  it  is  not  for 
me  to  say,  but  those  engaged  in  sealing  iiad  it  in  their 
minds,  and  consequently  Ks88  would  not  be  a  fair  year  to 
take  as  an  average. 

Mr.  Lansing  draws  this  conclusion: 

"  We  And  tlmt  in  1H88  tlio  avoriiRe  date  for  entering  theSoa  wns  tho 
"  14th  July,  and  tho  averuKO  date  for  Icaviu):;  the  Sea  wa8  the  26th 
30  "  August,  and  tho  duration  uf  the  aoasou  waH  44  days." 

He  says  also,  that  in  1S)KI  the  average  day  for  entering 
the  Sea  was  .Inly  12th  and  the  average  day  for  leaving  the 
Sea  was  August  27th,  making  the  duration  of  the  season 
47  days.  He  finds  the  geneial  average  for  these  two  years 
was  about  4.5  days,  and  he  applies  that  average  to  tlie 
schooners  seized  in  18S»».  The  manifest  absurdity  of  the 
application  of  that  average  appears.     He  says  that  he  has 

{)roved  beyond  doubt  that  the  average  season  was  45  days 
»ut  that  we  are  claiming  for  the  "  Carolena  "  80  days. 

Now,  as  to  the  "  Carolena;"  she  was  seized  on  the  first 
of  August,  and  we  are  claiming  that  until  the  end  of 
August  she  would  have  thirty  days  more  to  hunt  in  Behr- 
ing Sea.  That  is  all  we  are  claiming.  He  gets  at  the 
eighty  days  by  taking  into  his  calculation  that  the  "Car- 
olena '■  entered  the  Behring  Sea  in  the  early  part  of  June. 
Now,  as  a  matter  of  fact,  we  all  know  that  June  cannot  be 
counted  in  at  all;  and  what  we  are  claiming  for  the  "  Car- 
olena "  is  that  we  might  have  stayed  until  the  end  of  Au- 
50 gust,  a  claim  admitted  to  be  fair. 

As  regards  tho  "  Thornton,"  he  tries  to  make  out  by  his 
table  that  we  are  claiming  an  umensonable  season.  We 
are  only  claiming  until  the  end  of  August,  and  therefore 
my  learned  friend's  calculation  has  no  reference  to  the 
matter  at  all. 

The  same  remarks  would  apply  to  the  "Favourite,"  the 
*'  Black  Diamond  "  and  all  the  other  vessesl  for  188(;. 

There  is  another  reason  why  my  learned  friend's  calcu- 
lations, as  to  the  average  number  of  days  vessels  remained 
60  in  the  Sea  for  the  year  1888,  is  not  reliable  as  a  basis.  He 
states  that  the  "  Annie  C.  Moore  "  entered  Behring  Sea 
in  1888  on  the  20th  July;  and  he  takes  that  date  in  mak- 
ing up  his  average.  Now,  after  the  evidence  we  have  pre- 
sented to  your  Honors  in  this  case,  can  any  one  say  with 
any  show  of  reason  that  the  20th  of  July  must  he  taken 


1076 


(Mr.  Peters'  Argument  in  Reply.) 

as  the  opening  of  the  Behring  Sen  sealing  season?  In  that 
same  year  my  learned  friend  sets  forth  that  the  "  E.  B. 
Marvin "  entered  the  Sea  on  the  10th  of  July,  the 
"Ocean  Belle"  on  the  9th  of  July  and  the  "Favourite" 
on  the  20th  of  Julv;  and  he  takes  tliose  dates  in  estimat- 
ing his  average.  But  it  is  clear  upon  the  evidence  that 
this  was  not  the  usual  tinie  for  vessels  to  enter  the  Sea  and 
ID  that  there  were  special  circumstances  in  this  year  which 
prevented  them  from  coming  in  earlier. 

In  1890  the  "  Beatrice"  entered  on  the  15th of  July  and 
the  "  Favourite  "  on  the  Idth  of  July;  and  the  "  Sapphire  " 
on  the  12th  of  July.  There  must  have  been  special  reasons 
for  those  vessels  coming  in  so  late;  no  one  who  under- 
stands the  evidence  in  tliis  case  can  doubt  that  the  first  of 
July  is  the  usual  time  for  a  sealing  sciiooner  to  enter 
Behring  Sea. 

Your  Honors  must  see  quite  well  that  the  foundation,  on 

20  which  this  average  of  the  duration  of  the  season  was  based 

by  my  learned  friend,  is  altogether  wrong.     If  you  take 

that  calculation  out  of  my  learned  friend's  argument  as 

regards  the  sealing  season,  there  will  be  nothing  left  of  it. 

The  Commissioner  on  the  part  of  Her  Majesty:  — Do  you 
mean  the  15th  of  June  or  the  15th  of  July* 

Mr.  Peters:— My  learned  friend  Mr.  liansing  makes  the 
average  day  of  entering  the  Sea  the  15th  of  July,  and  he 
says  tliat  when  you  come  to  calculate  the  length  of  the 
season  you  have  to  calculate  from  the  15th  of  July. 
30  Now,  suppose  the  vessel  entered  the  Sea  on  the  first  of 
July  as  many  of  them  did.  and  if  you  carry  out  my  learned 
friend's  calculation  of  average  you  will  fiml  that  they 
should  leave  the  Sea  on  the  lith  of  August,  which  of 
course,  is  quite  absurd. 

Your  Honors  will  see  that  Mr.  Lansing's  calculations  if 
carried  out  to  tlieii'  logical  conclusions,  reduce  themselves 
to  an  absurdity.  Any  method  which  brings  out  such  re- 
sults as  those  to  which  the  calculations  of  my  learned 
friend  would  lead,  is  plainly  wrong,  and  therefore  should 
40  be  completely  t  u'own  to  one  side. 

As  I  said  befoie,  if  you  take  that  portion  from  Mr.  Lan- 
sing's argument  on  the  question  of  the  duration  of  the 
sealing  season,  his  deductions  all  fail.  I  do  not  know  that 
there  is  really  nnich  more  than  this  to  be  said  on  that 
matter. 

He  goes  very  carefully  into  the  question  of  lowering.,— - 
days  and  all  that  sort  of  thing.  These  matters  have-ttsSn 
dealt  with  already  by  my  learned  friend. ^JWIritst  I  am  on 
the  qtiestion  of  the  duration  oftJiii-ft-jaTiTig  season — and  it 
50 is  ai)phcal)le  under  all  the  poiTils  which  are  raised  for  the 
purpose  of  showing  the  season  is  so  uncertain--!  will  say 
that  any  calculation  based  on  the  movements  of  the  ves- 
sels, alone,  cannot  be  fair,  for  outside  of  the  fact  of  the 
direct  seizires,  the  knowledge  that  seizures  were  about  to 
be  made  nuist  have  had  a  great  effect,  both  on  the  time 
that  vessels  would  stay  in  the  Sea,  and  also  as  to  the  places 
in  which  vessels  would  fish  and  the  way  in  which  they 
would  conduct  the  voyages.  It  cannot  be  said  that  a  per- 
son woul<l  act  as  freely  and  "o  about  as  fearlessly  if  he  was 
60  in  great  danger  of  being  seiz"!!,  as  he  would  if  lie  had  no 
fear  of  seizure  whatever.  The  dread  of  seizure  nuist  have 
had  a  great  influence.  Foi'  instance,  when  a  vessel  was  in 
the  Sea  and  had  a  fair  catch,  it  would  naturally  occur  to 
the  mind  of  the  captain  of  the  vessel:  "  I  have  got  so  many 
seals  now  aud  it  is  better  for  me  to  go  out  with  those  and 


1076 

(Mr.  Peters'  Argument  in  Reply.) 

make  so  much,  than  8tay  in,  with  a  chance  of  making 
more,  hut  run  the  risk  of  being  seized."  Also  when  lie 
was  on  exceptionally  good  sealing  ground  the  fear  of  seiz- 
ure doubtless  would  lead  him  in  many  instaiu-es  to  leave 
the  spot  for  some  other  part  of  tlie  Sea  where  in  hif  opin- 
ion the  cutters  would  he  less  likely  to  find  liim.  It  i .  very 
difficult  to  estimate  how  much  these  matters  lessoned  the 
loaniount  of  catch,  yet  it  should  have  the  effect,  when  your 
Honors  come  to  the  computation  of  probable  catch,  (if  in- 
ducing you  to  allow  an  amount  larger  than  the  average 
of  vessels  actually  opeiating  were  shown  to  have  made. 

Mr.  Dickinson: — You  had  witnesses  on  the  stand,  but 
not  one  of  them  testified  that  he  went  out  earlier,  except 
the  "  Jnanita,"  on  that  account.  The  theory  is  all  very 
well,  but  you  have  specific  vessels  here. 

Mr.  Peters:-— My  learned  friend  is  in  error  in  that  re- 
respect.      Mr.  Clarke  who  was  the  captain  of  the    "  Ju- 
2oanita" 

Mr.  Dickinson: — The  "Juanita"  I  except. 

Mr.  Peters:— Mr.  Clarke  said  he  had  this  information 
that  no  seizures  were  to  be  made  from  such  a  day  in  July 
until  such  a  day  in  August,  from  Captain  Warren,  and 
Captain  Warren  said  it  came  from  the  Custom  House 
officer;  therefore,  it  may  fairly  be  assumed  that  every 
person  who  had  dealings  with  the  Custom  House  officer 
got  the  same  information  as  Clarke. 

Mr.    Dickinson: — But  the  officers  were  on  the  stand; 
30  why  did  they  not  swear  to  it  in  the  specific  cases? 

Mr.  Peters: — This  fine-drawn  argument  which  my 
learned  friend  makes  for  the  year  1888,  was  not  sug- 
gested at  Victoria;  he  never  thought  of  making  .such  an 
argument  then.  We  had  very  little  to  do  with  the 
catches  of  1888.  The  matter  was  not  brought  be- 
fore us  in  a  very  clear  manner,  and  the  question 
of  the  notice  that  there  would  be  no  seizures, 
and  that  the  British  Government  would  protect  sealers 
between  certain  dates,  only  came  out  from  one  wit- 
4ones&,  and  I  am  only  bringing  it  up  now  to  show  that 
there  may  have  been  a  reason  for  these  vessels  going  in 
late  in  1888.  At  all  events  I  am  entitled  to  point  out  the 
fact  that,  for  some  reason  or  other,  these  vessels  did  not  go 
in  in  1888  until  a  late  date,  and  to  connect  that  with  the 
undoubted  fact  that  between  the  first  of  July  and  the  15th, 
there  was  always  good  fishing  in  Behring  Sea. 

Mr.  Dickinson:— The  time  in  question  was  when  they 
left,  1888;  on  your  argument,  as  I  understand  it,  and  at 
Victoria,  you  did  claim  for  the  Warren  vessels  in  1888  on 
50  prospective  catch. 

Mr.  Peters:- We  claimed  for  prospective  catch  for  some 
of  the  vessels  for  the  year  1888,  and  we  gave  evidence  of 
the  catches  that  had  been  made;  but,  as  there  were  no 
other  catches  made,  we  could  not  give  further  evidence  in 
that  direction. 

Mr.  Dickinson:— I  did  not  want  to  mar  the  harmony  of 
your  argument;  I  shall  not  interrupt  ordinarily;  hut  the 
theory  was  so  different  from  the  practice  in  the  matter 
that  it  struck  me  as  a  little  astonishing. 
60  Mr.  Peters: — I  am  just  poiinting  out  that  Mr.  Lansing's 
carefully  prepared  statement  is  one  that  will  not  hold 
water. 

Mr.  Dickinson: — It  was  carefully  prepared  in  answer  to 
your  own  tables  in  which  you  had  pursued  about  the  same 
course,  only  your  tables  were  faulty. 


1077 


1!" 


(Mr.  Peters'  Argument  in  Keply.) 

Mr.  Peters:— I  do  not  admit  the  faultiness  of  my  tables. 
You  will  fliid  that  Mr.  Ljinsing's  and  mine  are  not  so  very 
far  apart  after  all;  I  point  out  another  matter,  I  always 
like  to  condemn  a  man  out  of  his  own  moutii,  if  I  can. 

Mr.  Dickinson: — Mr.  Lansing  only  went  into  mathe- 
matics because  you  did. 

Mr.  Peters: — If  my  learned  friend  prepared  all  tliose 
ID  blue  prints  and  all  those  arguments  after  he  came  here  to 
hear  this  oral  argument,  he  is  entitled  to  a  great  deal  of 
credit;  however,  that  is  all  1  have  to  say  on  that  point. 

Value  of  Vessels. 

1  como  now  to  another  question  dealt  with  by  Mr.  Lansing, 
and  that  is  tho  question  of  the  value  of  vessels.  There  is 
one  thing  I  wish  to  call  your  Honors'  attention  to  in  the 
first  instance,  as  I  do  not  tliink  it  has  been   mentioned 

20  specially  heretofore.  At  Victoria  there  was  a  dis- 
pute and  a  considerable  amount  of  argument  between 
counsel  upon  this  point.  Mr.  Dickinson  alleged  that  when 
we  came  to  calculate  what  should  be  paid  for  the  vessel 
itself,  the  only  proper  measure  of  damage  was  what  he 
called  the  market  value  of  vessels.  We  did  not  altogether 
agree  with  that  proposition,  and  we  also  thought  that  there 
were  special  reasons  existing  at  Vic^toria,  establishing  that 
that  was  not  the  proper  test;  we  gave  a  lot  of  evidence  as 
to  what  it  cost  to  build  a  vessel,  and  as  to  what  certain 

30  vessels  cost  to  bring  from  Nova  Scotia,  and  other  evi- 
dence of  that  description. 

There  are  four  vessels  I  wish  to  call  your  Honors'  atten- 
tion to  particularly,  about  whici>  there  can  be  no  dispute 
on  that  pouit,  the  "  Thornton,"  "  Anna  Heck,"  "  Dolphin  " 
and  the  "Grace."  If  your  Honors  will  remember,  those 
vessels  were  steam  schooners— schooners  with  auxiliary 
steam— and  they  were  the  only  steamers,  so  far  as  the 
evidence  discloses,  of  that  description  at  Victoria.  The 
witnesses  brought  from  San  Francisco  did  not  mention 

.}oany  schooners  of  that  description. 

'I'hey  were  vessels  particularly  and  especially  built  by 
Mr.  W^arren  to  carry  on  a  special  business,  and  therefore, 
so  far  as  those  vessels  were  concerned,  there  was  no  ques- 
tion of  market  value  whatever.  Tiiey  were  vessels  that 
stood  in  a  different  position  from  any  others  in  contro- 
versy. I  think  it  should  be  remarked"  that,  with  regard 
to  those  four  vessels,  you  have  to  deal  with  them,  no 
matter  wiiat  rule  you  lay  down  as  to  the  valuation  of  ves- 
sels, as  separate,  special  and  distinct  cases.     I  do  not  think 

30  the  remark  has  been  made  before,  but  I  would  like  to  call 
it  to  your  Honors'  attention  now.  Tliey  are  built  in  a 
special  way  and  for  the  special  business  in  (luestion.  By  the 
Paris  award,  if  your  Honors  remember,  it  was  one  oiE  the 
terms  of  the  regulations  that  steamers  should  not  be  used 
in  the  pursuit  of  seals  and  that,  of  course,  would  have 
the  effect  of  doing  away  with  their  use  altogether.  They 
are  of  a  particular  value,  and  should  bo  paid  for  at  their 
cost;  and  the  very  fact  that  legulations  were  made 
against  the  use  of  steamers  in  Beh ring  Sea  would  rather 
"jtend  to  show  that  the  United  States  Government  thought 
that  these  steamers  wei-e  of  peculiar  vaUie  in  regai-d  to  seal 
fishing. 

Mr.  Lansing:— Again  I  must  correct  you.  That  was  a 
suggestion  of  the  British  Commissioner.  We  have  tho 
report  before  the  Paris  arbitration. 


107H 


I  •>!  1 


(Mr.  Peters'  Argument  in  Heply.) 

Sir  C.  H.  Tupper:— Tiiey  were  not  British  nor  United 
States.  When  tlie  arguments  were  conchided,  tliose  were 
rt'gulations  of  the  Judges. 

Mr.  Lansing:— The  only  way  you  can  draw  any  infer- 
eiue  in  the  matter  is  from  what  suggestion  was  made  by 
tlie  agent  of  one  government  or  the  other? 
Sir  C.  H.  Tupper:— As  matter  of   fact   the  two  British 

lo Commissioners  diflfered. 

Mr.  Petei-s:— However,  I  am  not  on  that  point  at  all. 
It  would  appear  that  there  was  some  special  value  at- 
tached to  those  steam  schooners  for  seal  fishing,  and  it 
»vas  shown  that,  on  account  of  the  regulations,  tliey  could 
no  longer  he  used. 

Leaving  that  point,  I  will  again  refer  to  Mr.  Lansing's 
argument  on  the  value  of  vessels — and  his  very  nhle  argu- 
ment I  will  say.  It  is  able,  hut  at  the  same  time  it  will 
not  stand  investigation;    it  is  plausible,  hut  not  sound. 

20  Mr.  Lansing  says  that  the  market  price  is  the  price  which 
Itiiuls  you  in  this  case,  and  that  before  you  can  recover 
you  nnist  show  what  the  market  i)rice  is,  and  you  nnist 
find  that  market  price  by  thiding  out  what  vessels  sold  for 
ill  Victoria. 

He  goes  on  to  say,  "the  counsel  for  Great  Britain  had 
opportunities  to  prove  what  the  ma;ket  price  was  by  reier- 
ling  to  many  sales  that  were  made  from  the  years  18H3to 
1H!»2."  I  think  he  goes  as  far  as  that,  or  18t»0;  that  many 
sales   took  place,  and  that  those   sales  conid   have  been 

30  referred  to  and  proved,  so  as  to  show  what  the  market 
price  in  Victoria  was.  Then  he  gives  a  long  list,  and  it 
sounded  very  imposing  as  my  learned  friend  delivered  it; 
but  when  we  come  to  get  at  what  it  really  amounts  to, 
wo  find  that  all  of  the.se  sales  he  spoke  of,  36  or  33  in 
immber,  were  with  regard  to  no  more  than  nine  vessels. 

We  have  a  few  remarks  to  make  with  regard  to  tliose 
very  sales.  These  are  taken,  as  my  friend  says,  from  the 
records  before  us  here,  and  in  addition  to  that  all  the  nine 
vessels  he  referred  to  in  these  years  IHSfi  and  1887,  and  I 

40think  1888 -all  the  years  in  dispute— were  owned  by 
people  who  were  using  them  for  sealing,  and,  therefore, 
they  were  not  for  sale,  and  this  remark  applies  to  the 
whole  of  them.  You  see  the  point  is,  for  what  sum  could 
we  on  the  first  of  August,  1880,  rei)lace  the  vessel  seized? 
I  take  it  that  is  the  thing  to  he  arrived  at;  and  how  are 
you  going  to  help  yourselves  if  you  say  that  in  1884,  1885 
or  ISitO,  the  sale  of  the  "Alfred  Adams,"  the  "Triumph," 
the  "  Winnifred,"  the  "  Wanderer"  or  the  "Pathfinder" 
took  place?     Every  person  who  had  a  vessel  fit  for  sealing 

scat  that  time  was  operating  it  in  .sealing. 

Another  observation  I  would  like  to  make.  My  learned 
friend  takes  up  the  case  of  tlie  "Alfred  Adams,"  and  he 
says  there  is  a  sale  of  the  "  Alfred  Adams"  on  the  iid  of 
January,  188(5;  it  should  have  been  the  'ilst,  and  that  is  a 
mere  slip.  Well,  at  that  sale  we  do  not  know  what  \mce 
that  vessel  brought  and  it  is  not  very  material.  It  was 
before  the  1st  of  August,  188(>-  early  in  the  year  1886  — 
and  liefore  they  had  gone  so  deeply  into  the  matter  of 
sealing. 

60  Now,  then,  the  "Sayward";  he  mentions  no  less  than 
hve  sales  of  the  "Sayward."  To  show  you  the  value  of  this 
calculation,  I  call  your  attention  to  the  fact  that  every 
one  of  the.se  sales  was  in  1889  or  1890,  and,  therefore, 
( annot  be  saitl  to  be  nmch  evidence  of  the  value  of  ships 
in  1886.     Your  Honors  will  understand  that  we  are  not 


107» 

(Mr.  Peters'  Argument  in  Reply.) 

claiming  for  the  actual  taking  of  any  vessel,  except  in 
some  special  cases,  after  1887.  There  were  no  vessels 
taken  and  confiscated  in  188!). 

Mr.  Dickinson:  -Your  testimony  was  there  oflfered 
clear  down  to  18'.»0,  inclusive,  as  to  values  of  t-hips. 

Mr.    Peters: — If  that  is  the  case,  it  does  appear  to  me 
that  the  United  States  have  taken  a  very  extraordinary 
lo  course  at  the  jiresent  moment.     If  I  rememher,  they  bit- 
terly fought  our  putting  that  evidence  in  as  to  isyo. 

Mr.  Dickinson:— But  everything  you  did  get  in  at  Vic- 
toria, in  spite  of  us,  we  have  to  meet  and  treat  as  compe- 
tent evidence,  of  course. 

Mr.  Peters: — Any  way  you  take  it,  this  is  no  test,  and 
several  of  the  sales  of  the  "Kay ward"  are  not  sales  at 
all,  but  were  transfers,  as  they  appear  from  the  registry 
itself. 

The  next  sale  he  mentions  is  that  of  the  "Little 
20 Triumph,"  and  he  has  two  of  her,  one  in  is8t>  and  one  in 
1888.  The  register  shows  the  first  sale  on  the  I8th  of  De- 
cember, 188(5;  that  was  a  sale  by  bailiff  to  Burns.  It  was 
under  compulsory  process,  and,  therefore,  is  no  criterion 
of  value.  The  sale  in  1888  was  after  the  seizures.  In 
any  case,  she  was  a  very  small  vessel. 

The  "  Favourite":  Mr.  Lansing  mentions  a  s-ale  on  the 
20th  of  January,  1888.  There  was  a  sale  on  that  date 
from  Charles  Spring  to  Laughlin  McLean,  one  of  Spring's 
captains;  and  on  the  same  day  McLean  conveyed  the  same 
3°  property  back  to  Spring.  These  transactions  on  their 
face  show  that  it  was  a  mode  of  transfer  resorted  to  for 
the  purpose  of  completing  the  whole  title  in  Charles 
Spring,  and  was  not  a  bargain  and  sale  of  property.  This 
property  was  owned  jointly  by  Spring  and  somebody  else, 
and  those  two  parties  conveyed  it  to  Laughlin  Mcfjean, 
who  conveyed  the  title  back  to  Spring  in  order  to  complete 
the  title  in  Spring. 

He  next  mentions  the  "  Winnifred,"  and  he  calls  atten- 
tion to  eight  siles  of  her,  three  in  1883,  four  in  1884  and 
40one  in  1886.  There  was  no  sale  whatever  in  lS8«i  and 
there  was  no  sale  after  188(>  until  IS'.K),  and  tlie  prices 
would  have  afforded  very  little  information.  Besides,  the 
"Winnifred,"  as  your  Honors  will  remembei-,  was  a  very 
small  vessel,  only  13  tons  if  I  have  it  correctly.  Again 
these  sales  of  the  "  Winnifred"  should  not  be  taken  into 
consideration  for  this  reason:  looking  at  these  sales  you 
will  find  that  thoy  took  place  about  the  same  time,  as  fol- 
lows: There  was  a  sale  to  a  man  named  Thomson,  pilot; 
Baker,  a  pilot;  Dyer,  a  pilot;  McDonald,  a  pilot,  and  Mc- 
S^Ijcod,  a  pilot,  and  McLeod  and  others,  pilots.  Your 
Honors  will  remember  this  boat  was  owned  at  one  time  by 
pilots. 

Mr.  Lansing:— That  is  Edward  Crowe  Baker. 

Mr.  Peters:  He  was  one,  but  not  one  of  those  names  I 
read;  although  the  evidence  shows  he  was  Secretary  of  the 
Pilot  Board.  It  is  shown  by  the  evidence  that  these  pilots 
owned  a  boat  between  them  and  each  took  so  many  shares; 
and  what  my  friend  has  got  is  the  transfer  of  those  differ- 
ent shares  to  those  different  pilots,  and  he  makes  out  six 
60()i>  eight  sales  whereas  theie  was  really  only  one. 

The  "  Juanita"  is  the  next  he  mentions,  and  he  makes 
her  sales  December  12,  1883,  March  31,  1885,  January  9, 
1889,  October  30,  1889,  and  May  7,  1890.  The  two  first 
sales,  in  December,  1883,  and  March,  1885,  were  before 
sealing  began — before  the  value  of  these  vessels  became 


m 


1080 


i 


(Mr.  Peters'  Argument  in  Reply.) 

as  great  as  it  afterwards  was.  Tlie  other  sales  were  long 
after  ISSC,  and  I  again  refer  to  some  of  the  details  of  these 
sales.  Sale  (a):  That  is  December  12,  1H83,  was  to  Hall  and 
Goepel,  who,  the  evidence  shows,  afterwards  continued 
to  operate  the  ship  as  a  sealer;  consequently  she  was  not 
in  the  market  for  sale  after  that  date.  Sale  (h):  March 
31,  lt<85;  sale  of  an  interest  to  Clarke,  who,  the  evidence 

loshows,  was  a  master  employed  by  Hall  and  (Joepel  in 
sealing  operations.  Sale  (c):  January  5>,  1S89;  sale  to  a 
man  named  Melgesen;  and  Clarke's  evidence  (Record,  i)age 
1838,  line  (in)  tihows  he  was  in  the  sealing  venture  of  Hall 
and  tioepel  in  1881t.  This  sale,  apart  from  the  fact  that  it 
was  at  too  late  a  dale  to  be  evidence  of  market  value, 
would  naturally  be  one  surrounded  with  special  conditions 
on  account  of  llelgesen  embarking  as  a  joint  owner  with 
Hall  and  tioepel.  Sales  (d)  and  (e),  October  30,  1889,  were 
conveyances  back  from  Ilelgesen  to  Hall  and  Goepel,  he 

2ogoingoutof  the  business  and  conveying  back.  Sale  (f) 
may  have  been  a  lioiia  jidi'  sale,  so  far  as  the  evidence 
goes. 

The  "Wanderer":  Mr.  Lansing  mentions  the  following 
sales:  December  3.  188»(;  Jamiary  4,  1887;  Juno  13,  1887, 
Mid  A|)ril  11.  1888;  there  is  only  one  sal«!  there  that  really 
goes  into  the  matter.  So  far  as  the  sale  in  1887  is  con- 
cerned, these  are  the  purchases  tliat  were  made  by  Pax- 
ton,  who  was  the  claimant,  and  who  gave  his  evidence  in 
the  case.     1  would  refer  to  Mr.  BodwelTs  argument,  page 

30  330,  line  4(1,  where  the  matter  is  discussed  generally.  I 
would  also  i?tate  that  the  "  Wanderer "  was  not  large 
enough  to  be  taken  as  a  criterion  with  regard  to  vessels 
much  larger. 

'1  he  "Tiiun)ph '':  He  mentions  five  s.iles,  two  Decem- 
ber 7,  1887,  December  1(»,  1887,  October  11,  188J),  and  De- 
ceujber  17,  18!t0.  The  first  sale,  December  7,  1887,  was 
from  Daniel  McLean  to  Blackett;  the  second,  of  the  same 
date,  is  a  sale  to  Joshua  Davis.  The  evidence  in  the  case 
discloses  that  the  "Triumph"  was  purchased  in  Daniel 

40  McLean's  name  at  Shelburne,  N.  S. ;  your  Honors  will  re- 
member tiiat  he  went  round  and  purchased  her  in  1887. 
Mr.  Edgar  Crowe  Baker  gives  precise  and  definite  infor- 
mation as  to  what  that  vessel  cost  landed  at  Victoria;  so 
that  we  want  no  further  evidence  than  that  as  to  the  value 
of  this  vessel.  These  other  sales  were  to  people  who  took 
a  share  in  the  vessel  almost  immediately  after  she  got 
there;  so  there  is  nothing  to  l>n  inferred  from  that.  This 
whole  thing  is  really  shown  by  Mr.  Baker's  books. 

Baker  sold  to  Mi-.  Cox  in  188;»;  not  only  is  the  evidence 

5oof  the  sale  given,  but  full  particulars  are  in  evidence.  It 
was  proved  that  she  was  sold  for  ^9,(»00 — this  will  be  found 
at  Record,  page  1431,  lines  50-()0.  Mr.  Baker  was  so  dis- 
gusted at  the  action  of  the  United  States  tJovernment  in 
wariiing  his  ship  out,  and  the  loss  he  thereby  sustained, 
that  he  sold  her  almost  for  a  song.  That  is  clearly  proved; 
so  it  does  not  help  my  learned  friend  at  u\\. 

Tlie  "  Pathfinder"— he  mentions  two  sales,  both  in  1890, 
the  4th  of  November,  1890.  The  first  was  a  transfei'  to 
Wentworth  E.  Baker,  who  was  known  as  one  of  Munsie's 

60  ca|>tains.  The  evidence  shows  that  he  was  on  the  "  Viva  " 
at  one  time  and  afterwards  on  the  "  Pathfinder."  Sale 
(,b)  was  to  Arthur  E.  Morgan,  and  the  Commissioners  may 
assume,  although  there  is  no  evidence,  that  he  was  also 
one  of  Munsie's  captains.  Anyhow,  the  sales  were  a  good 
while  after  this  transaction  took  place. 


^p 


1081 


(Mr.  Peters'  Argument,  in  Reply.) 

I  will  give  the  following  summary  of  what  Mr.  Lansing 
has  said  upon  this  point.  The  following  are  the  only  sales 
in  the  list  which  oould  under  any  circumstances  whatever 
be  referred  to  as  establishing  the  market  price: 


i6 


"  Alfrnd  AtlaniH," 
"  Littlp  Triumph," 
"  Jiianita," 
"  Wanilorer," 
"  Triumph," 


Gntman, 

liiims, 

Hall, 

PHXtOD, 

Blac-kett, 
Davis, 


in 


1886. 

1880. 

188U. 

1880  and  1887. 

1887. 

188'J. 


Our  contention  is  that  even  these  piices,  if  proved, 
would  not  assist  the  Commissioners  tor  the  following 
reasons:  The  little  "Triun)ph"  was  sold  under  com- 
pulsory process;  the  "  Wanderer"  was  too  small  a  vessel; 
the  "Juanita"  sold  on  the  31st  of  March.  1885,  before 
the  boom  in  sealing  began;  the  "Triumph  *'  is  better  evi- 
dence, in  the  fact  tfiat  the  man  who  purchased  her  brought 

2oher  from  the  Atlantic  coast,  and  the  exact  cos^t  is  given  in 
detail  in  the  evidence. 

Mr.  Lansing  says  there  were  36  sales,  but  in  the  details 
of  his  notes,  as  above  criticised,  the  number  is  only  33. 

My  friend,  Mr.  Bodwell,  in  his  original  argument,  clearly 
laid  down  the  proposition  that  we  had  to  make.  I  do  not 
intend  to  repeat  what  has  been  alleged.  The  point  we 
submit  is  this,  that  under  the  peculiar  circumstances  ex- 
isting at  Victoria,  you  have  to  take  into  consideration 
what  it  would  cost  to  build  the  ship,  and  if  you  have  to 

30  go  outside  you  have  to  take  the  cost  at  Victoria  and  add 
the  cost  of  bringing  the  vessel  around  and  putting  her  in 
order  for  sealing.  Our  proposition  in  regard  to  how  the 
value  of  the  vessels  should  be  estimated  has  been  clearly 
stated  before,  and  I  do  not  think  it  is  necessary  to  say  any- 
thing more  about  it.  These  3S)  sales  that  Mr.  Lansing 
mentioned,  become  more  important  and  njore  necessary 
to  answer  from  the  reason  that  Mr.  Dickinson  in  his 
closing  reniaiks  saw  fit  to  emphasize  the  point  Mr.  Lan- 
sing had  taken. 

40  The  next  thing  that  Mr.  Lansing  takes  up  is  the  special 
cases,  and  I  ask  your  Honors  to  refer  to  tlie  case  of  the 
"  Anna  Beck."  in  my  original  argument  at  page  144  of  the 
argument  of  Gieat  Britain,  for  the  puipose  of  making 
correction  in  the  schedule  which  will  assist  your  Honors 
hereafter.  You  will  find  at  page  1 14  in  the  list  of  the 
articles  claimed,  this  item: 

"  Lint  of  ntoroB  on  board  at  the  time  of  the  seizure  as  per  captain's 
"recollection,  *960.;W," 

joand  you  will  find  fuither  down  the  page: 
"Sealing  boat  and  outfit,  «140.00." 

In  the  first  |)lace  1  would  ask  you  to  stiike  out  that 
sealing  boat  item  altogether,  and  I  ask  you  to  strike  out 
the  $!>fi().30  and  write  opposite  instead  the  figures  $3!»5, 
which  is  the  amou;\t  it  sliould  be.  On  reference  to  the 
captain's  list  at  page  lOfil  of  the  Hecord,  it  appears  that 
the  boat  is  included  in  the  Jiit(>0.3(»;  $IL'.5  is  charged  for 
the  boat  and  her  outfit  is  charged  separately,  and  as 
60 the  boat  is  already  charged  for  it  would  be  improper 
to  charge  it  again.  It  also  appears  that  the  $!!Kiu.3(>  in- 
cludes certain  items  for  |)rovisions  and  coal  which  should 
not  be  charged  if  we  get  the  estimated  catch,  therefore  I 
have  deducted  the.se  items,  and  the  list  would  then  amount 
to  *31».5  instead  of  ^iXU». 


1082 


% 


;  r. 


,:1 


fj.;-;          :|jf 

'' 

'i'-.-' «-r# 

:'■                           ■■    'iijif 

i- '          '  u 

•;•'  ■          M- 

j. '■  '          'I* 

■  i , 

.1 " 

ta 

"ir.'l 

(Mr.  Pctors'  Argiinient  in  Reply.) 

Mr.  WniTon: --There  jh  a  statement  in  the  "  Ada"  case 
that  has  never  l)een  corrected.  Yonr  attention  waH  called 
to  it  in  the  written  argument— the  item  of  ifil.OOd,  we 
claim,  is  iiiHerted  twice. 

Mr.  I'eters:— Yes,  a  misprint.     I  will  have  it  corrected 
before  I  conclude. 
The  Connnisaioner  on  the  part  of  Her  Majesty  :--It  is 

lo  very  obvious  in  the  case  of  the  "  Ada"  that  this  is  a  mis- 
print. 

Mr.  Bitdwell:— I  took  it  for  granted  that  any  one  would 
see  that. 

Mr.  IVtors:— There  is  another  matter  to  which  I  wish 
to  refer.  Voui'  Ihmors  will  understand  that  a  large  por- 
tion of  the  argument  of  Mr.  Lansing  dealt  with  the 
question  of  the  unceitainty  of  sealing  and  the  dilticulty 
of  catching  seals,  leading  one  to  suppose  that  it  was 
almost  impossible  to  catch  any.     He  referred  particularly 

20 and  dealt  at  some  length  witti  one  diflicidty,  and  that  was 
the  questitJU  of  fog.  He  used  this  argument^he  said 
that  in  respect  to  the  vessels  that  we  claimed  for— a  ma- 
jority of  them  were  vessels  carrying  ("inoes,  His  conten- 
tion was  that  where  Indians  were  used  there  was  additional 
trouble,  because  Indians  were  superstitious  and  refused  to 
go  out  in  time  of  fog.  For  the  purpose  of  proving  that 
proposition  he  used  the  log  of  the  "  Favourite,"  to  show 
that  the  Indians  did  not  go  out  in  time  of  fog,  and  that 
voyages  were  broken  up  on  account   of    their  supersti- 

3otior).  He  (piotes  the  log  where  it  is  .said:  "Indians  came 
aft  in  a  body  and  wanted  to  go  home."  This  should  be 
read  in  connection  with  the  entry  on  the  19th  of  May  |)re- 
ceding  this,  which  shows  the  reason  why  the  Indians 
wanted  to  go  home,  viz.,  that  the  Indian  food  was  all 
used  uj).  Another  entry,  made  on  July  8d,  shows  that 
the  Indians  were  not  so  very  su|)erstitious.  The  entry 
describes  the  death  of  an  Indian  from  a  loathsome 
disease  resendtliiig  smallpox,  and  shows  that  the  In- 
dians behaved  well  and  sewed  up  and   buried  the  corpse, 

40  and  the  entry  then  recites  the  funeral  and  the  subsequent 
entries  show  that  the  vessel  proceeded  on  her  voyage  as  if 
nothing  bad  liap|)ened.  On  the  7th  of  July  the  Indians 
arranged  for  another  steerer  to  take  the  place  of  the  one 
who  died;  this  shows  that  the  Intlians  were  not  so  super- 
stitious as  Mr.  Lansing  contends.  On  the  question  of  fog, 
Mr.  Lansing  quoted  page  (it,  where  it  is  said  that  the  In- 
dians were  somewhat  timid  of  going  out  because  it  was 
slightly  foggy.  The  entry  there  is  that  the  Indian  hunt- 
ers were  somewhat  timitl   about  going  out;  this   was  a 

50  peculiar  case,  for  in  the  entry  preceding  this  it  appears 
that  tiiey  were  out  in  a  light  fog  and  afterwards  were  out 
in  a  thick  fog.  We  find  the  captain  entering  that  the 
Indians  were  .somewhat  timid  to  go  out  in  a  fog,  but  it  is 
plain  that  tliey  were  afraid  of  something  happening  such 
as  occurred  two  days  before.  It  is  plain  that  the  Indians 
were  not  afraid  of  the  fog  as  other  entries  clearly  prove 
that.  Mr.  Bodwell  read  several  entries  from  page  73  to 
page  80  from  the  log,  which  I  refer  to,  and  I  also  wish  to 
reter  to  some  other  entries  as  follows:  "June 

6odense  fog  settled  down."  Wednesday,  June  18th,theentry 
shows,  "light  fog,  three  canoes  missing,  which  did  not 
reach  the  ship  till  7  P.  M."  "July  25th,  this  day  begins 
with  light  winds  and  fog;  lowered  canoes;  *  *  * 
fog  thick  every  day  since  entering  sea.  Au- 
gust   5tb;     this     day     begins     with    dense     fog;     12 


1088 

(Mr.  Peters'  Arguiiiciit  in  R«|>ly.^ 

o'clock  similar  weather,  4  i>.  M.  fo^  lightoiiine  some,  fog 
set  in  ag»in  H  v.  M.  catch  24  hcuIh."  "  2tst  Jmy,  nowlow- 
01*6(1  canoeH,  Btill  very  thick,  4  i>.  M.  canoeH  returning  with 
22(i.  ThJH  day  heginH  with  li^ht  wind,  10 
A.  M.  fog  at  tinieH,  4  P.  M.  «lense  fog.  July  25tli,  this  day 
begins  wiiii  iiglit  wind,  dense  fog,  tiring  hig  guns;  5  p.  m. 
canues  returned  with  82  seals.  July  27th,  this  day  hegins 
10  with  douse  fog.     July  28th,  this  day  hegins 

Mr.  Lansing:— When  y«ni  say  "hegins"  iliat  means 
midnight,  does  it  \wti 

Mr.  Peters:-  I  read  all  the  entries  of  tln'  day.  "This 
"  day  l)egins  with  moderate  wind  and  fog. 

"August  2d— This  day  hegins  with  heavy  fog. 

"August  8th— This  day  hegins  with  calm  and  dense  fog. 

"August  !tth  — Light  rain  and  fog.     Keptiloseto  vessel. 

"August  loth— This  day  hegins  with  moderate  breeze 
' '  and  fog. 
2o     "August    nth  — Light  winds  and   small   rain;  lowered 
"  canoes." 

So  that  I  think  I  have  effectively  shown  that  the  idea 
that  the  Indians  will  not  hunt  in  foggy  weather  is  not 
founded  on  the  evidence  of  that  log,  and  I  think  that  the 
"  Favourite  "  is  probably  as  representative  a  ship  as  any 
you  can  get  in  the  whole  couise  of  this  evidence. 

1  proj)ose  now  to  take  into  consideration  the  argument 
of  my  friend  Mr.  Warren.  The  first  part  of  his  argument, 
going  so  far  as  page  71  of  the  typewritten  copy  that  I 
30  have,  has  reference  to  the  special  cases  with  which  I  have 
already  dealt.  Having  already  dealt  with  these  questions, 
I  come  to  a  question  that  is  of  very  great  importance  in 
this  case,  namely,  the  consideiation  of  the  citizenship  of 
certain  persons  who,  it  is  alleged,  were  interested  in 
the  s^'ps  on  account  of  which  claims  were  made. 

Citizenship. 

Mr.  Warreu  deals  with  these  questions  simply  from 
40  the  point  of  view  of  fact,  leaving  the  questions  of 
law  to  be  argued,  as  they  were  afterwards  argued, 
by  the  senior  counsel  for  the  United  States.  At  page  71 
of  tliis  typewritten  argument  he  takes  u|)  the  question 
whether  or  not  it  is  proved  that  persons  alleged  to  be  in- 
terested were  United  States  citizens,  and  if  so,  whether  or 
not  it  is  proved  that  they  were  really  interested  in  the 
ships  in  question.  He  first  deals  with  the  (piestion  of  fact 
with  regard  to  Cooi)er.  Keferiing  to  the  Cooper  claims 
represented  by  the  "Ciraco,"  "  Dolphin,'' "Anna  Beck" 
30 and  "Say ward."  So  far  as  the  Cooper  claims  are  con- 
cerned, there  is  no  dispute  betweiMi  us  that  Coo|)er  was 
a  British  subject,  and  that  he  was  at  the  time  of  the 
seizure  of  the  vessels  in  1SS7,  and  for  that  matter  up  to 
the  present  time,  continued  to  be  domiciled  in  San 
Francisco. 

The  Commissioner  on  the  part  of  the  United  States: — 

Some  time  before  you  finish  I  would  like  you  to  restate 

your  position  about  Cooptsr's  interest  in  these  vessels. 

Mr.  Peteis:— I  shall  deal  with  them  when  dealing  W'*b 

()oMr.    Dickinson's    argument.     I  have  a  very    full    r    ,v. 

upon  it. 

The  next  person  who  comes  up  for  consideration  in  this 
connection  is  Alexander  Frank.  So  far  as  Alexander 
Frank's  native  bii  th  is  concerned,  there  is  no  doubt  about 
it.     He  was  by  birth  a  citizen  of  the  United  States.     We 


ll)H4 


M 


(Mr.  PeteiH*  AiKiiinriit  in  liejily.) 

alk'KO  that  Aloxanilt>i'  Frank  at  tli«>  tinio  of  th(>  Hcixurn  of 
t\w  vosHols,  in  which  it  iH  alli>(;«'(l  ho  whh  intoreHtHil,  was 
doniioilcd  at  Victoria,  and  liail  his  cuinniorcial  iloniicil 
tht'ro  also,  and  that  in-  was  in  ovciy  sonHi',  hoth  coni- 
MUMX'ially  and  ofht-rwiHc,  to  h"  looked  npon  ns  a  person 
domicili'il  in  Mritish  ti'rrilory.  My  lenrnod  friends,  ho 
far    as     I     can     nnderstand     Ihoir     arKinni'iit,     contest 

lothis  |iropoHition.  Hut  I  aile)re  that  the  ovidoncu 
is  conclnsive  on  this  jioint  that  he  was  domiciled 
at  Victoria.  'I'lie  hest  »>viil(nce  that  can  he  not  is  the  (>vi- 
donci>  of  Mr.  Frank  hiniseir,  which  is  given  at  the  last  of 
the  Hecor<l,  page  IW.\.  I  simply  refer  to  iijs  evidence. 
The  evidencfi  n'wvn  hy  him,  and,  as  a  matter  of  fact,  the 
evidence  here  and  there  all  throu^j;!)  the  Uecord,  corrolm- 
rati'd  hy  various  other  witnesses,  is  that  for  years  hefore 
ISSH— as  far  hack  as  lSH,'i-when  it  was  allej>;ed  that  he 
went  into  partnership  with  (hitman,  he  w.is  resident  in 

20  Victoria,  carrying  on  hiisiness  at  Victoria,  and  at  one  or 
two  jilaces  along  the  const  of  Vaiiconver.  That  evidence 
was  given  l»y  Frank  hinisi'lt  and  hy  those  other  witnesses 
wh(»  showed  where  tliese  triuhng  places  were  and  what 
bnsinesB  ho  was  doing.  .No  other  residtMice  was  attempted 
to  he  given  than  that  he  was  then  resident  at  Victoria,  so 
that,  taking  the  doctrnie  which  my  learned  friend  alleges 
and  which  we  admit,  that  residence  is  always  evidence  of 
domicil,  we  have  the  most  complete  evidence-  at  all 
events   nntil  answered  -that   from    IHs.")   down   to    |MS8, 

30 v.hen  we  say  his  connection  with  t  s  matter  absolutely 
ceased,  Frank  was  a  person  dom  I'd  in  British  terri- 
tory. He  did  not,  as  a  matter  of  t,  ,  leave  Mritish  terri 
tory  nntil  late  in  the  year  ISH!»,  when  he  sold  ont  every- 
thing, got  rid  of  his  business  and  went  to  San  FrancLsco, 
where  he  has  since  been  domiciled.  So  that,  as  to  his 
position,  it  might  be  taken  for  granted  that  Frank  was  a 
native  born  citizen  of  the  United  States;  that  in  the  yeais 
iSKCi,  1887.  and,  if  it  were  material,  I88i>,  he  was  domiciled 
at  Victoria. 

40  The  ne.xt  man  that  comes  up  for  considiiation  in  this 
coinu'Ction  is  A.  .1.  Heciitel.  There  is  an  attempt  made 
hero  by  my  leained  friend  in  his  written  and  oral  argu- 
mnnt  to  dispute  the  propr)sition  that  Becbtel  was  domi- 
ciled in  Victoria.  I  can  oidy  refer  your  Honors,  without 
going  over  it  again,  to  the  evidence  given  by  Becbtel  at 
the  first  of  bis  examination.  That  evidence  establishes 
clearly  and  plainly  that  for  eighteen  years  Bechtel  bad 
been  domiciled- living  at  Victoria -carrying  on  business 
there,  mairied  there,  with  a  family  there— at  one  time  in- 

Soterested  in  the  se;ding  business,  and  finally  he  became  a 
naturalized  citizen  of  (hvat  Britain.  So  that  evidence  Is 
plain  .ind  conclusive  that  he  was  not  only  ia  l.'^Sfibutin 
other  years  in  which  it  is  alleged  he  had  an  interest  in  the 
seized  vessels,  domiciled  in  British  territory,  and  as  vve 
say.  a  subject  of  Gieat  Britain. 

The  next  n)au  we  havo  is  .VIexaiider  McLean,  who  was 
interested  in  the  "Onward  "  ami  "  Favourite."  The  facts 
with  regard  to  him  which  are  in  dispute  between  us  are 
as  follows:  It  is  admitted  that  he  was  originally  a  subject 

6oof  (ireat  Britain.  It  is  proved  that  he  was  naturalized  in 
the  United  States  at  a  date  prior  to  the  event  that  took 
place  ill  l88t>;  it  is  also  proved  beyond  the  shadow  of  a 
doubt,  that  in  issfi,  when  tlie  "Onward  "  was  seized  and 
the  "  Favourite  "  warned,  he  was  domiciled  in  the  City  of 
Victoria  carrying  on  business  there  and  acting  as  nia.ster 


■ill 


1086 

(Mr.  Pi'tors'  Argument  in  Reply.) 

of  a  vt>s8«>l  which  wmh  triulin^  from  (hnt  port  TImt  fact 
in  not  <liHpiit<>(l  hy  my  i)>arn<>(l  fritMid.  It  wuh  nft«>r\v(iniH 
8tntt><i  l>y  my  It'iirncd  friiMid  that  Iih  went  hacl<  to  San  Fran- 
ciHco,  aiitl  h<>nim«t  (iomicili'd  tiu-rt';  ho  far  as  \vt>  art*  con- 
cerned tliu  position  that  we  take  is  that  it  is  jtcitVctly  im- 
nintorial  where  he  iH'camH  <lomi('iled  after  the  act  which 
in  comnlaineii  of  took  place.     Onr  contention  will   l)e  that 

lotlui  iiaoiiity  of  the  United  States  is  lo  l,e  settled  liavin}; 
regard  to  the  state  of  facts  that  »'.\isted  at  tho  time  the 
8«i/ure  look  place,  and  it  does  not  matter  that  ho  went 
hack  to  the  United  States  afterwards.  If  he  had  the  right 
to  jtnttection  at  the  time  of  tlie  seizure,  the  claim  rests  hy 
virtue  of  that  right  to  protect  and  the  seizure.  Mis  going 
back  nfterwardtt  to  his  native  country  would  have  no 
offoct. 

Now,  with  regard  to  Unniel  McLean,  1  explained  that 
matter  fully  in  my  original  oral  argument  and  I  do  not 

20  wish  to  go  over  it,  hut  there  still  seems  to  he  some  little 
misapprehenHion.  I  do  not  think  I  gave  your  Honors  ref- 
erence to  a  (hx-nment  that  I  should  have  given.  Our  alle- 
gation i8  that  Daniel  McLean  was  jiart  owner  of  the  vessel 
big  "Triumph,"  seized  in  lMSi»,  and  we  allege  that  011 
the  Kith  day  of  OctolH'r,  ISHO,  Daniel  McLean  hecaine  a 
naturalizeil  subject  of  (heat  Britain.  He  had  previously 
been  naturalized  as  a  citizen  of  the  United  States,  hut 
under  the  treaty  he  luul  the  right  to  he  renaturalized  on 
complying  with  the  statute,  made  hy  Great  Britain,  or  in 

3otb'.«  case  Canada,  which  statute  required  him  to  go 
through  certain  forms.  I  refer  to  Record.  ll>r)7,  line  40, 
where  is  set  out  a  formal  document  admitting  Daniel 
McLean  to  he  naturalized  in  Great  Britain.  We  therefore 
contend  that  there  was  no  question  of  his  being  a  United 
States  citizen,  because  he  had  complied  with  and  obtained 
a  certificate  of  the  Court  that  he  was  naturalized  in  Great 
Britain.  According  to  the  argument  of  my  friends,  which 
is  pressed  especially  with  regard  to  a  Spanish  case  cited, 
where  the  Government  of  Spain  was  allowed  to  traveree 

40  the  fact  of  naturalization,  it  is  clear  that  they  were  granted 
only  the  right  toask  the  production  of  the  order  of  naturali- 
zation, and  could  not  go  behind  it,  upon  the  ground  put  by 
my  learned  friend  that  the  certificate  of  naturalization 
granted  in  a  court  is  a  judicial  pioceeding  and  cannot  be 
inquired  into  by  any  collateral  proceedings.  We  have  the 
fact  that  Daniel  McLean  was  not  a  citizen  of  the  United 
States.  My  friend,  in  his  argument,  lays  down  the  propo- 
sition that,  in  order  to  have  a  right  to  reclamation,  you 
must  have  a  domicile  in  Great  Britain  at  the  time  of  the 

Soconvention  as  well  as  at  the  time  of  seizure,  otherwise  you 
cannot  recover.     I  do  not  admit  that  proposition,   and  I 
tliink  I  will  be  able  to  show  that  I   am  right.     He  alleges 
that  Daniel  McLean  afterwards  became  naturalized  in  Sr.u 
B>ancisco. 
Mr.  Dickinson:— Domiciled  and  naturalized. 
Mr.  Peters:— Well.  I  will  r.'fer  to  that. 
Mr.  Warren: — In  1892  he  made  an  affidavit  that  he  was 
an  American  citizen.     That  is  the  proof  of  it. 

Mr.  Peters;— I  thought  I  answered  that  fully.     I  have 

60 the  affidavit  here  at  page  1821  of  the  Record,  line  50. 

If  my  learned  friend  only  relies  upon  this  affidavit  for 
the  purpose  of  proving  that  Daniel  McLean  in  181)2,  when 
this  affidavit  was  made,  was  domiciled  in  San  Francisco, 
I  pay  no  regard  to  it  at  all. 


I(t86 


if- 


(Mr.  Peters'  Argument  in  Reply.) 

Mr.  Warren:— I  do  not  rely  on  that  to  prove  that  point; 
■we  have  positive  ovidence  that  he  lived  there. 

Mr.  Peters: — And  if  he  rehes  upon  it  for  any  other  pur- 
pose, to  show  th.-xt  he  was  naturalized  in  the  United 
States,  he  nuist  take  some  other  mode  of  procedure.  In 
tlie  first  place,  we  have  Daniel  McLean,  renatnralized  in 
1886.  In  1887,  beyond  the  shadow  of  a  doubt,  he  was  liv- 
loing  at  Victoria. 

Mr.  "Warren: — There  is  no  evidence  wliatever  on  that 
point  that  he  was  living  at  Victoria. 

Mr.  Peters:— The  evidence  is  as  clear  as  daylight. 

Mr.  Warren: — Let  us  see  it. 

Mr.  Petere: -These  are  the  facts.  In  188S),  or  prior  to 
that,  McLean  came— where  from,  and  went  where  to?  To 
San  Franci.sco?  No;  from  Nova  Scotia,  and  what  for?  To 
purcliase  a  vessel.  He  bought  the  vessel  and  came  hack 
to  Victoria.  He  lived  in  Victoria,  sailed  that  vessel  from 
20  Victoria,  and  on  the  face  of  that  are  you  to  say  that  he 
was  living  elsewhere^  This  was  both  in  1888  and  1889. 
He  was  sailing  a  ship  from  Victoria  and  he  was 
swearing  that  he  was  a  Britisii  subject,  and  he 
sweais  it  when  he  went  to  Shelburne  to  buy  the 
other  ship  which  he  bought.  I  an?  not  altogether  in 
love  witii  either  of  the  McLean'sand  I  would  not  Hke  to  pay 
a  great  deal  of  res}>ect  to  the  evidence  of  eitlier  of  them, 
certainly  not  Ale.xander— and  Daniel  seems  to  have  as  little 
regard  for  the  oath  as  Alexander.  No  doubt  Daniel  makes 
30 statements  inconsistent  with  one  another.  No  doubt  he 
swears  with  regard  to  one  shij)  that  lie  was  a  citizen  of 
Great  Britain  and  had  never  taken  the  oath  of  allegiance 
to  the  United  States,  and  with  regard  to  another  one  that 
he  had  taken  such  oath,  but  had  been  naturalized.  We 
have  these  ditTering  affidavits  in  the  first  place;  but  they 
are  only  statements  not  quite  consistent  with  each  other, 
and  can  have  no  weight  as  against  the  solemn  record  of  the 
court  that  on  a  certain  date  he  was  naturalized  as  a  sub- 
ject of  Great  Britain,  It  should  also  be  noted  that 
40 Daniel  McLean  made  no  attempt  to  hide  his  inteiest 
in  the  "Triumph."  He  let  his  name  go  on  the  register, 
which  he  certainly  would  not  have  done  if  he  had  again 
been  naturalized  in  tiie  United  States. 

Tlio  onus  of  proving  that  Daniel  McLean  was  a  citizen 
of  the  United  States  was  on  the  United  States.  We  have 
made  this  point  plain  and  clear  that  in  188(5  he  was  natural- 
ized as  a  subject  of  Great  Britain;  we  have  no  evidence 
that  he  was  lenaturalized  before  18S{t,  when  this  seizure 
took  place,  and  after  that  we  contend  that  there  was  no 
50  necessity  to  inquire  as  to  his  domicile. 

The  Commissioner  on  the  part  of  Her  Majesty:— His 
aflidavit  might  raise  the  old  question  of  admission. 

Mr.  Peters: — Yes,  but  the  naturalization  to  be  of  any 
benefit  must  have  been  in  1889. 

The  CUmimissioner  on  the  part  of  Her  Majesty:— Yes,  I 
undei-staiul  that. 

Mr.  Peters: — It  might  be  an  admission,  but  it  would  lie 
upon  them  to  produce  tho  naturalization  papers.  At  all 
events,  we  have  produced  naturalization  papers  of  1886, 
60  th(!  seizure  being  in  1881).  We  contend  that  it  will  lie  on 
the  United  States  to  prove  that  between  1886  and  I88!t 
renaturalization  took  place,  if,  as  a  fact,  it  did.  Surely 
there  is  no  presumption  that  a  man  would  chop  around  in 
his  naturalization  in  the  short  space  of  three  years.  In 
point  of  fact,  he  could  not  do  so  under  the  laws  of  the 


m 


1087 

(Mr.  Peters'  Argument  in  Reply.) 

United  States  in  such  a  short  time.  That  is  the  way  the 
niattor  stands  so  far  as  the  facts  are  concerned  as  to  whether 
these  different  people  who  are  alleged  to  have  heen  citizens 
of  the  United  States  were  or  were  not  eo  at  the  time  the 
seizures  took  place. 

OWNERSHII'. 

lo  We  come  now  to  another  question  of  fact  as  to  the 
interest  the  United  States  claim  these  peojtle  had  in  these 
vessels.  That  becomes  a  very  material  question  of  fact— 
a  (lucstion  of  fact  upon  which  we  veiy  greatly  differ. 
I  am  going  to  make  this  general  remark  l)efore  dealing 
with  the  evidence.  There  are  two  ways  in  which  you 
may  approach  a  qnestion  of  this  sort.  Mr.  Warren 
api)roaches  the  case  from  this  point  of  view.  He  takes  it 
for  granted  in  every  instance  that  these  men,  Bechtel 
and    Frank    and    McLean,   had    all   along    an    intention 

20 and  desire  to  cheat  the  laws  of  the  United  States,  and  to 
cheat  the  laws  of  Gieat  Britain.  1  do  not  say  that  he 
used  those  words,  but  I  say  that  he  approaches  the  matter 
as  if  he  took  it  for  granted  that  these  men  were  all  guilty. 
I  say  tiiat  is  not  the  way  to  approach  a  matter  of  this 
kind.  There  is  no  evidence  showing  that  tiiese  men  had 
any  intention  of  defrauding  either  the  laws  of  Great 
Britain  or  the  laws  of  the  United  States.  Vou  should  not 
convict  a  man  until  the  evidence  really  makes  it  clear  and 
plain  that  he  is  guilty.     Now  let  me  see  how  this  matter 

20  st'i'i'li^  t>'i  tliat  question  as  to  whether  or  not  you  should 
approach  the  evidence  from  that  point  of  view!  Take  the 
greatest  sinner  of  them  all,  the  man  that  has  heen  the 
most  ''ouglily  dealt  with  by  my  learned  friend  on  the 
other  side,  the  man  Bechtel.  and  ask  yourself  this  ques- 
tion: In  1885,  when  it  is  alleged  that  he  did  a  certaiu  act 
to  defraud  the  laws  of  the  United  States,  could  he  or  uot 
have  had  that  iutention  in  his  miiuK 

Mr.  Warren:  — I  never  contended  he  did  intend  to  defraud 
the  laws  of  the    United   States,    but  it   was  the   laws  of 

40  Great  Britain,  and  he  did  intend  to  defraud  thisComtnis- 
sion. 

Mr.  Peters:— I  am  surprised  to  hear  my  learned  friend 
using  f'..i  argument  of  that  kind,  and  yet  it  is  an  argu- 
ment that  has  been  used  froni  tlie  beginning  of  this  trans- 
action. As  long  ago  as  when  the  matter  was  first  discussed 
by  the  Senate  of  the  United  States,  some  of  the  members 
of  that  body  put  forward  the  suggestion  that  these  men 
were  "  rt'calcitraiit  Yankees,"  who  had  gone  over  to  de- 
fraud the  United  States  under  the  British  Hag.     If  that 

50 ground  fails  them,  they  have  no  other  ground  upon  which 
to  stand.  Now  my  learned  friend  criticises  all  the  evi- 
dence from  that  point  of  view.  What  is  the  fact?  In 
January,  188.5,  and  in  February,  18sr),  and  in  July,  1885, 
the  schooner  "  Carolena  "  was  l)ought,  and  at  that  time 
there  was  no  proclamation  preventing  sealing  in  Behring 
Sea,  and  no  person  either  in  the  United  States  nor  out  of 
it  knew  of  any  intended  prohibition,  and  Bechtel  could 
have  had  no  idea  of  defrauding  a  law  of  the  United  States 
of  the  e-xistenco   of   which   he   was   ignorant.     1   might 

60  further  say  that  at  the  time  this  vessel  was  bought  there 
was  no  talk  of  sending  her  to  Behring  Si-a  at  all.  She  was 
bought  for  the  purpose  of  trading  and  sealing  on  the 
coast.  Another  conclusive  proof  that  the  intt'ntion  to  de- 
fraud tlie  United  States  did  not  exist.  The  "  Pathfinder" 
was  purchased  in  1885,  am}  the  same  remarks  apply  to 


m 


1088 


in 


'-,ti 


::f;vft 


1 , 
i 


(Mr.  Peters'  Argument  in  Reply.) 

her.  Again  the  absence  of  any  attempt  from  the  begin- 
ning to  hide  any  interest  tliese  people  njigiit  have  had  in 
the  ships  goes  to  show  their  honesty  of  intention.  I  refer 
your  Honors  to  the  claim  put  in  by  Capt.  Warren,  on  the 
9th  of  December,  1887.  For  example  the  "Alfred 
Adams." 
Tiio  first  paragraph  of  the  original  claim  states: 

lo  "  I  am  tlie  duly  authorized  agent,  &c.,  in  this  behalf  of 
"  Gutman  &  Frank,  &c.,  the  said  tiutnian  being  owner  of 
"  tlie  hereinafter  mentioned  sch(H)ner  "  Alfred  Adams,' 
"  and  his  partner,  the  Aaid  Frank,  being  equally  interested 
"  with  Ciiitmnn  in  the  results  of  the  sealing  voyage 
"  hereinafter  referred  to."  lioference  to  the  other  claims 
will  show  the  same  freedom  from  any  attempt  at  con- 
cealment. 

So  that  you  have  the  fact  that  there  was  no  attempt  to 
conceal  the  interest  of  these  people  in  the  vessels.     They 

20had  no  idea  that  any  such  question  was  to  be  raised. 
When  you  come  to  think  of  the  matter,  heie  we  are  at 
this  time  in  1897  discussing  seriously  the  question  whether 
there  is  anything  in  the  point  at  all,  whether  if  one  of 
these  men  was  a  citizen  of  the  United  States  it  affected 
his  claim  one  way  or  the  other,  and  do  we  suppose  that 
these  men.  away  back  in  1886  and  1887,  were  .so  good  in- 
ternational lawyers  that  they  could  settle  and  guard 
against  these  very  things  which  even  the  lawyers  at 
Paris  could  not  settle.     It  is  not  settled  to  this  day,  and 

30  you  are  asked  to  find  that  these  men  knew  more  than  the 
lawyers  do  to-day. 

Mr.  Dickinson: — It  is  not  so  much  the  question  of  fraud 
as  the  actual  status  of  the  individuals. 

Mr.  Peters: — I  submit  that  this  is  a  question  of  fraud. 
Let  me  point  to  show  your  Honors  that  the  first  time  the 
question  was  ever  raised  was  al  Paris,  and  you  will  find 
the  reference  in  Volume  7,  "  American  lieprint,"  page  131. 
It  is  in  the  reply  of  the  United  States  to  the  British  claims 
for  damages.     There  for  the  first  time  it  was  alleged  that 

40 the  interest  of  these  different  persons,  to  wit,  Boscowitz, 
McLean,  Bechtel  and  Frank  in  these  vessels,  prevented 
them  from  being  entitled  to  recover.  That  allegation  was 
based  on  the  attidavit  of  T.  T.  Williams,  which  was  dated 
December  12th,  1892. 

Mr.  Warren:— It  was  in  1889. 

Mr.  Peters: — My  leained  fiieiid  is  in  error.  The  affi- 
davit is  dated  in  1892,  in  which  he  says  that  he  learned 
the  facts  in  1889.  and  made  a  report  of  them, 
but   it   was  a   private  report  to  the    United  States  Uov- 

SOoinineiit  or  tl  e  Alaska  Fur  Conipany  for  the  purpose 
of  enabling  them  to  arrange  certain  transactions  with  the 
United  States  (Government  about  their  lease.  No  person 
ever  saw  that  report,  and  it  was  not  brought  to  the  notice 
of  the  claimants  or  the  British  (Toverimient  until  1892.  I 
am  right  in  stating  that  the  first  time  that  the  United 
States  ever  laised  the  qu(;stion  that  these  vessels  were 
owned  in  whole  or  in  part  by  citizens  of  the  United  States 
was  before  the  Tribunal  at  I'aris. 
Now,  instead  of  approaching  the    evidence  from  the 

60  point  of  view  in  which  Mr.  Warren  approaches  it,  namely, 
from  a  solenui  belief  that  everything  was  done  for  the 
purpose  of  fraud,  let  us  a|)proacli  it  from  the  other  point 
of  view.  Take  Mr.  Bechtel,  and  wbatare  the  facts?  'i'hoy 
want  to  prove  that  Bechtel  was  not  the  mortgagee  of  the 
"  Carolena,"  but  was  in  fact  a  part  owner.     What  are  the 


1(189 

(Mr.  Petors'  Argument  in  Reply.) 

facts  iipoii  which  thi-j-  rely  to  niovo  that  statement?  In 
the  first,  place,  tiiey  allege  tliat  l)ecaiise  Hcciitt'l  iiappened 
to  he  in  a  hlacksmiti)  sliop  wiien  ('otsfidd  was  ciigagt'd  hy 
Munsie  to  go  as  a  liunter.  tiiat  tiicn  lore  he  was  interested 
in  tlie  vessel.  Thev  took  a  godd  (leal  of  pains  and  con- 
8ideral)le    evidence   to    provt;   that   Hfchtel    was   actually 

E resent  in  the  hlacksniith  shop  wiien  Cotsford  was  hired 
.„  y  Munsie  to  go  on  the*  "  Caiolena '"  as  a  hiuitsman.  Ho 
was  present  when  t'otsford  was  hired  hy  Munsie,  and 
may  have  takni  part  in  the  conversation.  That  is 
all  thai  was  i)roved  at  that  time  Fact  No.  2  was 
that  Bechtel  took  a  trip  on  the  "Carolena"  from 
Victoria  to  Kuyo(|Uot,  heing  on  his  way  to  a  i)lace 
called  Alherni,  where  he  had  some  sort  of  husine.ssi. 
That  is  tile  whole  of  tiiat  fact.  Fac  t  nnndx'r  ;?  was  lie- 
cause  he  took  two  mortgages  on  the  vt^s.sel.  whi(  ii  on 
tlieir  theory  agrees    witli  th«  cost  of   a  half    interest  in 

2othesliip.  That  is  tlu^  tiiird  and  last  thing  alleged.  In 
other  words,  tliey  say,  we  claim  you  honght  the  vessel  for 
lf2.0(Hi;  you  originally  hoiight  a  ci-rtain  |)ortion  and  took  a 
mortgage,  and  finally  took  another  mortgage,  and  each 
of  these  mortgages  represented  a  half  interest  in  what 
Munsie  had  lionghl  to  this  dale;  therefore,  they  ask  you 
to  assume  that  it  was  not  a  mortgage  tiausaction.  hut  wa.s 
what  lias  heeii  termed  a  "  whitewash  mortgage";  that  in- 
Btead  of  heing  a  mortgage  it  was  really  a  purchase.  Sup- 
pose yon  hail   ail   these  facts  hefore  you.  and  nothing  m 

joexplanatiou  <jf  them  on  the  one  hand,  and  on  the  other 
hand  yiiu  had  tiie  alt.solnte  positive  oaths  of  these  two 
men.  Munsie  and  Bechtel.  thai  no  mattei'  what  the  thing 
looked  like,  that  the  |)iircliase  w;is  not  fur  thai  aMimuit, 
but  was  for  a  largi-r  amount;  that  the  nioilgage  was  a  ri'al 
mortgage,  for  a  rash  l<ian  aftei  wards  duly  paid  oil"  in  cash. 
On  the  one  hand,  you  would  have  ciicimislances  of  siis- 

fiicion,  and  on  the  other  hand  yon  wouhl  have  the  ahso- 
ute  positive  evidence  And  on  this  state  of  the  case  you 
are  asked  to  say  that  the  United  Statt's  has  made  out  their 

40 claim  that  Bechtel  was  really  half  owner  in  tin;  vessel  and 
nothing  else.  Now,  let  me  point  out  a  few  fads  to  show 
that  the  ti-ansaction  will  not  hear  that  construction.  The 
vessel  was  hoiight  on  three  dilTeient  o<'casions.  The  first 
purchase  was  January  21,  IJOS.').  No  attempt  was  made  to 
show  that  B(!chtel  had  any  connection  with  that  first 
purchase.  On  that  occasion  there  was  one-third  of  the 
vessel  lionght,  and  there  is  no  allegation  that  Bechtel  had 
anything  to  do  with  it  whatever.  Tliesei oiidand  third  pur- 
chases, it  is  alleged  that  Bechtel  had  .something  to  do  with. 

50  Now  let  me  see  what  happened.  After  the  whole  thing  was 
completed  in  June  when  the  vessel  was  finally  bought,  a 
mortgage  for  $1,000  was  executed  hy  Munsie  to  Bechtel. 
According  to  their  theory  that  was  purchase  money,  and 
should  have  never  been  paid  hack.  Accoiding  to  our 
theory  that  was  mortgage  money  and  should  have  been 
paid  liack.  According  to  their  theory,  the  money  never 
would  have  been  paid  back,  while  according  to  our  theory 
the  money  would  have  been  paid  hack.  What  was  the 
result?    The  money  was  paid  hack.     The  result  sustains 

60 our  theory,  and  does  not  sustain  theirs.  Following  that 
on  we  find  by  reference  to  the  Hecord  that  this  mortgage 
was  afterwards  discharged  on  the  Record.  The  discharge 
was  recorded  on  the  8th  of  November,  1800,  and  the 
receipt  for  the  payment  of  the  money  was  given  on  the 
7th  of  Novembei,  1890.     This  I  say  is  consistent  with  our 


•I 


lOHO 


■m 


(Mr.  Peters'  Argument  in  Reply.) 

theory,  and  it  is  inconsistent  vvitli  theirs.  If  it  be  true 
that  thiH  was  a  niortnage  put  on  for  the  purpose  of  pio- 
tecting  Beclitel's  interest  in  the  "  Oarolena,"  wl)y  was  the 
mortgage  ever  i)aid?  Why  was  it  ever  discharged  or  a 
release  given? 

Mr.  Warren: -Because  they  had  new  dealings  on  that 
date  with  the  "  Maty  Taylor." 

10  Mr.  Peters:-  My  learned  fiiend  does  not  see  where  he 
is  coming  out  If  Bechtel  wanted  to  protect  his  interest 
in  the  ship,  that  ship  was  seized  by  the  United  States  and 
had  gone  to  pieces  by  that  time,  and  if  he  wanted  to  ])ro- 
tect  his  claim  he  would  have  left  that  mortgage  on,  but 
instead  of  that  the  mortgage  was  paid  and  discharged.  I 
say  that  is  inconsistent  with  their  tliecuy,  and  it  is 
consislent  with  ours.  But  let  us  follow  this  a  little  fur- 
ther. The  transaction  so  far  related  entirely  to  the  "  Caro- 
lena."     But  theie  was  auolher  ship  afterwards  bought  by 

20  Mnnsie,  the  "  Pathfinder,"  and  it  is  alleged  that  the  trans- 
actions with  regard  to  the  "  Pathfinder  "  were  the  same 
as  with  regard  to  the  "  C'arolcna."  Mr.  Warien  connects 
them  botli  together.  He  savs  this  is  all  one  line  of  decep- 
tion from  beginning  to  end;  that  what  we  did  with  re- 
gard to  the  "Carolena"  we  also  did  with  regard  to  the 
"  Pathfinder."  Tiie  "  Pathfinder  "  was  purcha.sed  in  Nova 
Scotia  for  the  sum  of  $4,428.  She  was  brought  ronnd  to 
Victoiia.  and  before  she  got  there  a  mortgage  was  exe- 
cuted by  Mnnsie  for  e.xactiy  one-quarter  of  the  amount  of 

30 the  original  purchase  money.  Mnnsie  states  that  the 
amount  of  ninney  actually  borrowed  was  $1, 000.  Subse- 
quently another  mortgage  was  executed  to  his  brother, 
M.  N.  Kechtel.  for  the  same  amount,  $1,1(»7.  Now  my 
learned  friend  says  tliat  this  was  carrying  out  tiie  same 
scheme  that  they  had  in  regard  to  the  "C'aroiena."  Now 
it  is  a  rule  in  criminal  cases  where  you  are  attempting  to 
convict  a  [x-ison  by  circninstaiitial  evidence,  that  if  you 
can  provt>  one  circumstance  absolutely  inconsistent  with 
the  theory  set  up    by  the  prosecution,  that  one  circum- 

40 stance  is  of  more  value  than  all  the  other  circumstances 
that  go  to  show  the  man  is  guilty.     J  think  that  is  a  plain 

Erinciple  of  criminal  law.  Now  what  is  the  theory  of  the 
hiited  States  all  through  these  transactions.  Their  theory 
is  that  they  will  convict  Mnnsie  and  Bechtel  of  having 
entered  into  transactions  which  were  not  straight;  that 
Bechtel  was  the  real  owner  of  the  ship,  and  not  tlie  mort- 
gagee; that  tlie  mortgages  were  not  actual  mortgages,  but 
really  represented  the  value  of  what  was  a  half  interest  in 
the    "Carolena,"    and    that    the     same    deception    was 

SOpracticed  in  the  case  of  the  "Pathfinder"  We  are  in 
luck  here  in  being  able  to  follow  the  transac- 
tion a  little  further,  and  being  able  to  show 
that  whatever  suspicious  conclusion  my  learned 
friend  drew  from  these  acts,  there  is  one  circumstanec 
clearly  i)roved  utterly  inconsistent  with  there  being  any 
wrong  intention  on  the  part  of  Bechtel  or  Munsie  with  re- 
gard to  these  transactions,  witli  regard  to  the  interest  of 
Bechtel  in  these  vessels.  What  happened  with  regard  to 
that^    M.  N.  Bechtel  died.     His  executor  was  a  man  by 

"°the  name  of  H.  Haines.  Mr.  Haines  also  died,  but  his 
books  and  papers  were  kept  and  had  been  handed  over  to 
Mr.  Carne.  When  this  matter  came  up  it  will  be  remem- 
bered that  it  was  alleged  by  Munsie  that  he,  Munsie,  had 
paid  oflf  the  estate  of  M.  N.  Bechtel;  that  to  know  whether 
that  was  correct  or  incorrect,  we  sent  for  the  gentleman 


!■',    1        I 


1091 


(Mr.  Peters'  Argument  in  Reply.) 

who  had  control  of  tl>e  books,  and  they  were  produced  in 
Court,  and  what  did  they  prove?  The  very  first  entry 
was  $1,000  paid  by  Munsie  to  that  estate  on  account  of 
the  schooner  "  Pathfinder,"  on  the  7th  of  November,  1890. 
I  read  fiom  the  Record,  page  1.5!)(i,  line  40: 

"  Q.  I  believe  that  wben  Mr.  Haynes  went  away  he  left  the  books  of 
"  the  estate  with  you?    A.  Yes,  sir;  that  is  the  book  you  have  there. 
lO     "  Q.  And  in  that  estate  book,  under  date  of  the  Hth  of  November, 
"  1890,  is  an  entry  of  the  payment  of  $1,000  to  them  by  Mr.  Munsie? 
"  A.  Yes,  sir. 

"Q.  Whose  handwiiting  is  that  in?  A.  I  cannot  swear,  sir;  I  snp- 
"  pose  it  is  Mr.  Havnes'.  I  never  saw  the  book  until  here  just  a  short 
"  time  ago  before  he  went  away. 

"  Q.  That  is,  you  never  looked  at  it?    A    Never  looked  at  it. 

"Q.  He  left  :'t  with  you  for  safe  custody?  A.  Yes,  sir;  as  one  of 
"  the  guardians  of  tlie  children,  it  is  my  iiroperty. 

"  Q.  There  is  aa  entrv  here  '  Bv  cash  from  William  Munsie,  account 
"  schooner  "  Pathfinder,"  S!1,000?  '     A.  Yos,  sir. 

"  Q.  That  is  the  whole  entry?    A.   Yes,  sir. 
2o     "  Q-  And  that  entry  is  exactly  the  same  as  when  you  received  the 
"  book,  of  course?    A.  Oh,  yes,  sir. 

"Q.  This  purports  to  be  an  account  of  the  M.  N.  Bechtel  estate? 
"  A.  Yes,  sir. 

"  Q.  And  it  purports  to  show  the  amounts  received  and  the  amounts 
"disbursed?     A    Yes,  sir. 

"Q.  In  connection  with  the  estate?    A.  Y^es,  sir. 

"Q.  And  also  there  appears  to  bo  a  division  of  the  estate  at  the  end 
"  of  the  book  in  a  sort  of  ledger  account?    A.  Y'es,  sir. 

"Q.  Was  the  estate  handed  over  to  you?  A.  To  Mr.  Munsie  and 
"  myself. 

"Q.  And  there  is  this  entry  in  the  book,  'by  cash  to  Came  & 
,_  "  Munsie,  guardians,  32,562.97,'  that  was  handed  over  to  you?  A. 
3"  "  Yes,  sir. 

"  Q.  You  have,  since  that  time,  had  the  handling  of  whatever  assets 
"  there  were  ?     A.  Yes,  sir. 

"  Q.  I  believe  there  is  some  real  estate  too  ?  A.  Yes,  sir  ;  I  have 
"  charge  of  all.     We  were  appointed  by  the  court  as  guardians  to  the 

"children." 

»  ♦  •  »  ♦  • 

"  Q.  And  this  purports  to  be  the  account  of  Oc'o.  W.  Haynes,  ad- 
"  ministrator  of  the  estate  of  Myre  N.  Bechtel,  in  account  with  the 
"  estate  ?    A.  Yes,  sir. 

"  Q.  The  first  entry  is,  '  1890,  November  8th.  To  cash  received. 
"From  William  Muns'ic,  schooner  "  Pathfinder,"  81,000.'  This  is  the 
4*-'  "  account  put  in  by  the  administration,  I  believe  ?    A.  Y'es,  sir. 

"  Q.  Tins  was  made  up  when  the  estate  was  handed  over  to  the 
"  guardians,  showing  the  bulance  due  ?     A.  Yes,  sir. 

"  Q.  And  on  that  is  your  receipt  and  Mr.  Munsie's  for  the  balance 
"  of  the  estate  ?    A.  Yes,  sir. '' 

Now  in  order  to  i)ut  this  matter  beyond  a  doubt  we  were 
fortunate  enough  after  tiiis  length  of  time  to  find  the 
original  check  for  that  $1,000.  and  this  ciieck  is  produced, 
dated  November  7,  18ito,  on  tlie  Bank  of  British  Colum- 
bia, and  is  signed  by  William  Munsie,  endorsed  by  Geo. 
SoH.  Haynes,  administrator  of  M.  N.  Bechtel.  It  is  un- 
doubtedly genuine  as  it  has  the  stamp  of  the  bank  on  it, 
and  it  shows  that  this  mortgage  was  paid  on  the  11th  of 
November,  1890. 

Now  Mr.  VV'arrenin  referring  to  this  makes  the  extra- 
ordinary statement,  a  statement  in  which  I  think  be  is 
not  justified  by  the  evidence,  but  in  his  oral  argument  he 
makes  a  statement  to  this  effect  that  by  some  means  fair 
or  false,  presumably  false,  Munsie  &  Bechtel  had  made  it 
appear  on  paper  that  the  payment  of  $1,000  had  been 
6omade  by  Munsie  to  Bechtel  on  a  certain  day. 

That  shows  the  way  my  learned  friend  approaches  this 
evidence.  He  says  the  men  are  guilty,  and  he  starts  out 
with  that  assumption,  and  therefore  he  looks  at  every 
piece  of  evidence  as  presumably  false.  In  order  to  carry 
out  his  theory  what  would  he  auk  your  Honors  to  believe? 


■  i 


1092 

(Mr.  Peters'  Argument  in  Reply.) 

He  would  ask  you  to  believe  tliat  this  proof  of  payment  is 
the  result  of  a  conspiracy  between  Munsie,  Bechtel,  Haynes, 
the  executor  of  M.  N.  Bechtel,  the  Bank  of  British  Col- 
umbia, and  divers  other  persons  unknown.  I  say  if  there 
is  one  tliii  j^  in  this  case  that  is  clearly  proved,  it  is  the 
fact  that  uiere  was  a  bona  jkle  mortgage  to  M.  N.  Bechtel, 
and  that  that  mortgage  was  paid  on  the  7tb  of  November, 
IO1890.  I  have  said  nothing  alfout  the  evidence  of  Fred- 
erick Carne,  wiiose  testimony  corroborated  that  of  Bech- 
tel and  Munsie,  and  who  was  always  looked  upon  as  a 
fair  and  respectable  man,  and  against  whom  not  any 
word  has  ever  been  said. 

Mr.  Dickinson: — Unintentionally,  I  think,  you  stated 
the  mortgages  were  on  the  vessels.  You  will  remem- 
ber they  were  on  a  certain  number  of  shares  of  the  ves- 
sel. 

Mr.  Peters:— That  is  correct,  the  mortgage  on  the  "  Car- 
2oolena"  was  on  one-half,  or  32  shares  of  the  vessel,  and 
the  mortgage  on  the  "Pathfinder"  was  on  16  shares. 

At  5.15  o'clock  the  Commissioners  rose. 


GommiBsioners  under  the  Convention  of  February  8, 

1896,  between  Great  Britain  and  the 

United  States  of  America. 


-1:1 


lO 


Legislative  Council  Chamber.  Provincial  Bniltlin^. 
At  Halifax,  September  28,  1807. 

At  10.30  A.  M.  the  Commissioners  took  their  seats. 


The  Commissioner  on  the  part  of  the  United  States:  - 
The  Commissioners  have  concluded  to  annul  the  12th  rule 
providing  for  a  certificate  of  the  record  by  the  stenograph- 
ers, and  the  Secretaiy  will  see  that  the  order  is  entered 
upon  the  protocols. 

Also  we  entered  an  order  on  the  protocols  this  morning, 
Axing  the  compensation  of  the  Secretary  and  the  clerKs 
for  this  session,  which  I  will  hand  down  to  the  Secretary, 

20  Mr.  Peters:— At  the  time  of  the  adjournment  yesterday 
afternoon,  I  had  about  completed  the  discussion  of  the 
transactions  relating  to  the  "  Carolena  "  and  **  Pathfinder," 
so  far  as  the  mortgages  and  bills  of  sale  were  concerned, 
and  I  had  also  adverted  to  other  matters  which  were 
charged  as  evidence  to  prove  that  Bechtel  was  not  a  mort- 
gagee, but  was  an  owner.  I  leave  that  matter  with  simply 
this  remark;  you  have  proved  three  things  I  have  stated 
before,  namely,  that  Bechtel  was  present  at  a  blacksmith's 
shop,  when  one  of  the  men  was  hired  and  perhaps  took 

30 part  in  the  conversation;  that  Bechtel  took  a  trip  to 
Clayoquot  in  the  "  Carolena;"  and  that  these  two  mort- 
gage transactions  took  place.  I  leave  that  matter  with 
this  query,  that,  taking  all  those  facts  together  and  admit- 
ting them  all  to  be  true,  are  they  inconsistent  with  the 
statements  so  positively  made  by  Munsio  and  Bechtel  that 
Munsie  alone  held  the  ship? 

Yesterday  when  I  was  speaking,  my  learned  friend,  Mr. 
Warren,  interrupted  me  when  I  made  the  statement  that 
the  United  States  were  charging  that  these  men  had  a 

40  fraudulent  intention  against  the  United  States — against 
the  laws  of  the  United  States  and  against  the  laws  of 
Great  Britain.  My  learned  friend  made  this  statement 
and  I  think  my  friend.  Mr.  Dickinson,  also  corroborated 
that  statement,  that  they  were  not  on  the  Question  of 
fraud  at  all,  but  that  they  were  inquiring  simply  into  the 
status  of  these  men,  irrespective  of  whether  there  was 
any  fraud  or  not. 

Mr  Warren: — I  stated,  Mr.  Peters,  that  my  claim  in 
the  argument  was  that  there  was  fraud  against  the  laws 

50  of  Great  Britain,  and  now  a  fraudulent  claim  here. 

Mr.  Peters: — I  will  show  my  learned  friend,  then,  that, 
according  to  the  argument  he  advances,  if  that  is  what  he 
intended  to  say,  it  is  not  what  he  has  said.  He  has  gone 
further,  and  I  will  prove  it  to  your  Honors.  If  he  aban- 
dons that  position,  that  is  all  right;  but  I  want  to  show 
as  a  matter  of  fact  that  that  is  the  position  he  has  taken. 
I  find  in  one  part  of  his  argument,  where  he  was  dealing 
with  Gutman  and  Frank,  he  says  that  "Subjects  of  the 
"  United  States  and  Great  Britain  were  willing  to  make 

60  "  false  oaths,  and  did  make  false  oaths,  for  the  purpose  of 
"  having  registered  vessels  in  the  names  of  British  subjects 
"  that  were  partly  owned  by  citizens  of  the  United  States." 
Further  on  he  says,  referring  to  the  bill  of  sale  given  by 
the  estate  of  Morritz  Gutman:  "The  reason  I  now  call 
"  your  attention  to  that  Record  is  this,  that  on  that  same 


1094 


0^')<'y  '^ 


m- 


(Mr.  Peters'  Argument  in  Reply.) 

*'  day  was  recorded  a  fraudulent  bill  of  sale  to  Morris  Moss 
"  for  the  same  ship,  the  '  Black  Diamond '  and  the  '  Lily.' 
"  Of  that  fraudulent  bill  of  sale  to  Morris  Moss  I  will  speak 
"  later;  but  this  fact  which  comes  to  my  mind  as  I  talk 
"  shows  that  there  was  fraud  from  the  beginning  to  the  end 
"  in  connection  with  the  ownership  of  Frank,  the  American, 
"  in  regard  to  this  '  Black  Diamond.'  "    Further  on:  "  The 

lo"  bill  of  sale  is  produced.  I  will  show  your  Honors  that 
"  this  entire  transaction  between  Gutman  and  Frank  is 
''  honeycombed  with  fraud."  Again,  and  he  is  now  talking 
about  the  claim  that  James  D.  Warren  put  in  on  behalf 
of  one  of  the  Frank  vessels  in  1887.  He  says  "that 
"  James  D.  Warren  knew  that  if  he  swore  that  Alex- 
"  ander  Frank  owned  one  half  of  the  bottom  of  that 
"  ship,  that  Frank's  claim  would  go  down."  This  was 
at  a  time  when  they  did  not  know  that  the  United  States 
Government  made  any  such  claim.     Further  on  he  says: 

20  "  I  claim  that  there  is  conclusive  evidence  of  the  attempt 
"  of  these  men  to  cover  up  their  tracks,"  which  looks  very 
much  as  though  he  was  arguing  that  there  was  not  only 
fraud,  but  an  attempt  to  hide  it.  Then  he  says  a  little 
further  0:1:  "  I  have,  in  presenting  the  facts  in  relation  to 
*'  the  fraudulent  concealment  of  the  interests  of  citizens  iu 
"  certain  of  these  claims  referred  by  the  Convention  to 
*'  your  Honors,  thrown  aside  the  pretended  claim  of  Great 
"  Britain,  and  considered  the  claims  as  those  of  i)rivate 
"  individuals."    Those  statements  will  at  all  events  make 

30  clear  this  position  that,  whether  my  learned  friend  meant 

to — or  was  carried  away 

Mr.  Dickinson:— There  is  not  the  slightest  doubt  that 
we  claim  that  every  one  of  those  statements  are  true,  and 
stand  on  them. 

Mr.  Peters: — Very  well,  then.  As  a  matter  of  fact,  they 
did  not  and  could  not  know  at  that  time  that  the  United 
States  were  going  to  take  the  stand  they  did  take,  and 
that  argument  must  fall  to  the  ground. 

Having  made  the  remarks  I  did  yesterday  with  refer- 

40  ence  to  the  facts  in  the  "  Carolena  "  case,  so  far  as  they  relate 
to  the  ownership  of  Bechtel,  and  connected  that  with  the 
"  Pathfinder,"  and  made  the  remarks  I  did  with  regard  to 
her,  it  is  perhaps  unnecessary  for  me  to  take  any  further 
time  regarding  the  contradictions  of  matters  whereby  the 
credibility  of  Munsie,  Bechtel  and  other  witnesses  has  been 
attacked;  but  so  many  and  frequent  attacks  have  been 
made  upon  the  credibility  ot  these  two  witnesses,  that  I 
deem  it  my  duty  to  take  up  very  briefly  a  few  of  the  niain 
charges  which  they  make  against  them,  and  to  prove  to 

50  your  Honors  on  what  little  ground  they  rest.  In  the  first 
place,  an  attempt  is  made  to  make  it  appear  that  Munsie 
was  charging  ^(>,000  to  outfit  the  vessel;  this  charge  was 
made  most  deliberately.  I  have  already  answered  that  in 
my  oral  argument  when  we  were  considering  that  point, 
and  I  pointed  out  that  we  did  not  charge,  and  never  did 
charge,  the  outfit  as  against  the  United  States  Govern- 
ment; and  I  have  pointed  out,  and  I  again  point  out,  that 
the  $6,000.  which  my  learned  friends  still  continued  to 
argue  in  their  oral  argument  was  for  the  outfit  of  the  ves- 

6o6el,  even  after  it  had  been  fully  corrected  by  me,  repre- 
sented far  moi-e  than  outfit;  so  really  there  is  nothing  in 
that  charge  whatever.  We  never  did  claim  the  $6,000 
against  the  United  States  Government;  we  did  not  claim 
it  in  1887,  when  the  claim  was  put  in,  as  by  reference  to 
that  claim  will  appear,  and  we  do  not  claim  it  now.     It  is 


f    rip 


1095 

(Mr.  Peters'  Argument  in  Reply.) 

therefore  incorrect  to  say  that  we  have  attempted  to 
charee  the  United  States  Government  with  that  $6,000. 
On  that  point  I  would  like  again  to  refer  your  Honors  to 
vouchers  which  were  set  out  in  our  Appendix,  Exhihit 
B,  Exhibit  No.  10,  Great  Britain,  vouchers  1  to  60, 
which  will  fully  prove  the  statement  I  have  made  as  to 
this  matter. 

lo  The  next  ground  of  attack  niade  against  Mr.  Munsie  by 
Mr.  Warren — it  was  made  at  Victoria  and  has  been  re- 
peated here— is  this:  Mr.  Warren  takes  up  vouchers  1  to 
50,  and  he  undertakes  to  show  that  those  vouchers  were 
fraudulent;  and,  if  I  remember  correctly,  that  they  were 
made  within  three  months  of  the  hearing  at  Victoria. 
Now  that  is  a  very  serious  charge.  It  is  a  charge  that 
Mr.  Munsie  not  only  put  forward  a  fraudulent  claim,  but, 
for  the  purpose  of  backing  up  and  proving  that  fraudu- 
lent claim,  he  produced  in  court  and  swore  to  the  correct- 

zoness  of  vouchers  which  were  as  a  matter  of  fact  not  bona 
fide  vouchers.  In  other  words,  he  is  guilty  of  two  crimes; 
he  is  guilty  of  forgery,  and,  certainly,  he  must  have  been 
guilty  of  perjury;  and  all  this  fraud  is  on  the  assump- 
tion that  this  was  done  for  the  purpose  of  chargin;^ 
the  United  States  with  the  amounts  mentioned  in 
those  voucheis.  The  answer  to  that  charge  is 
very  clear  and  very  plain.  Answer  number  one,  which 
has  already  been  given,  is  that  the  amount  of  those 
voucheis  never  was  and  is  not  now  claimed  by  us,  and 

30  therefore  they  could  not  have  been  maile  up  with  a  fraud- 
ulent purpose.  Answer  number  two  is,  that  any  person 
can  look  at  them  and  see  whether  these  vouchers  present 
anything  like  an  appearance  of  having  been  made  up  at 
the  time,  or  made  up  three  months  before  the  hearing  at 
Victoria.  I  produce,  and  ask  your  Honors  to  look  at  one 
or  two  of  these  vouchers  without  going  through  them  in 
detail.  If  your  Honois  will  look  at  the  voucher  of  Mr. 
Robinson  (handing  Commissioners  voucher).  The  charge 
is  that  that  voucher  was  made  up  three  months  before  the 

40  trial  at  Victoria.  I  am  going  to  take  two  or  three,  and 
the  same  remark  is  made  as  to  them.  Here  is  one  of  E. 
B.  Marvin  which  T  will  ask  your  Honors  to  examine  as  a 
fair  sample.  I  say  the  charge  is  reckless  and  there  is  no 
foundation  for  it;  and  I  say  more,  that  if  my  learned 
friends  really  thought  that  that  statement  was  correct, 
the  proof  of  it  was  right  under  their  hands  as  to  the  E.  B. 
Marvin  voucher;  E.  B.  Marvin  &  Co.  carrying  on  business 
at  Victoria  at  the  present  tinre  keep  books,  and  the  cor- 
rectness of  the  statement  of  Munsie  could  have  been  tested 

50  then  and  there.  Without  going  through  the  whole  of 
these  vouchers,  let  me  take  some  of  the  names  that  are 
familiar  to  us.  We  have  here  Colonel  Piyor;  that  the 
articles  were  bought  from  him  on  a  certain  day  and  the 
original  voucher  is  produced.     We  have  Kelly  &  Com- 

Eany,  who  I  believe  are  there  yet,  although  they  may  not 
e,  and  could  easily  have  been  produced.  I  contend,  your 
Honors,  when  this  charge  is  made  the  answer  to  it  is  simple; 
to  look  at  those  documents  and  say  whether  there  is  not  on 
their  face  conclusive  evidence  that  they  are  original  genu- 
6oine  vouchers.  Still  the  charge  is  made  that  they  are  not 
original  genuine  voucher-s;  that  they  are  vouchers  made  up. 
When?  Three  months  before  this  trial.  1  do  not  understand 
how  my  learned  friend  could  make  such  a  charge.  There  is 
one  piece  of  evidence  before  us  that  proves  conclusively 
the  incoritctness  of  that  statement,  and  that  is,  that  the 


101(6 


i ,.', 

i     I     ' 

ll. 


(Mr.  Peters'  Argument  in  Reply.) 

very  claim  with  regard  to  the  *'  Carolena  "  was  sworn  to, 
at  all  events,  in  18K7,  and  that  in  the  schedulo  to  that 
claim  the  very  amounts  mentioned  in  these  very  vouchers 
are  set  out,  proving  conclusively  to  my  mind  that  the 
vouchers  were  in  existence  in  1887.  \Vhat  other  point 
can  we  give  in  regard  to  these  vouchers?  Mr.  Munsie 
says  that  when  Captain  Warren  went  to  Ottawa  to  make 

loup  the  claim  that  was  to  be  put  in  against  the  United' 
States  GovernnuMit,  these  vouchers  were  sent  to  Ottawa 
with  Captain  Warren,  and  Captain  Warren  says  the 
same  thing.  Mr.  Munsie  also  says  that  at  Ottawa  Capt. 
Warren,  or  whoever  was  in  charge  of  these  voucliers, 
lost  some  of  them,  and  when  he  came  to  make  up  his 
claim  on  the  present  occasion,  he  went  to  the  parties  and 
got  duplicates  of  them;  and,  if  you  will  look  at  his  tivi- 
deuce  where  it  is  given  in  the  ca.se,  in  his  direct-examina- 
tion you   will  find  that  with  regard  to  each  voucher  he 

20  swears  which  is  duplicate  and  which  is  original. 

Mr.' Dickinson:— Mr.  Peters,  you  do  not  pretend  that 
he  had  these  vouchers  from  Bechtel  on  the  mortgages,  at 
Ottawa? 

Mr.  reter8:--The  receipts  for  interest  are  a  different 
thing  altogether,  which  1  am  going  to  deal  with  particu- 
larly. They  are  not  included  in  vouchers  1  to  50.  I  am 
speaking  now  of  what  we  call  the  vouchers  1  to  60,  which 
do  not  include  the  receipts  for  interest  at  all.  I  am  now 
dealing  with  what  appears  to  me  to  he  an  extraordinary 

30  and  unfounded  charge  made  in  regard  to  those 
vouchers.  It  stands  out  clearly.  It  is  on  a 
idea  I  pointed  out  yesterday,  as  to 
which  he  approached  the  evidence 
and  its  consideration.  He  takes  it 
for  granted  that  they  were  guilty  of  fraud,  and  everything 
he  could  get  his  hand  on  he  used  as  evidence,  as  thouga 
it  were  a  guilty  person  who  made  the  voucher,  and  made 
it  for  the  purpose  of  hiding  his  guilt;  and  I  say  in  this 
criticism  he  has  gone  too  far.     What  does  he  say  again} 

40  He  brought  these  vouvchers  in  and  he  says,  *'  look  at  the 
paper  they  are  backed  with."  What  does  that  mean?  He 
says  the  paper  they  are  backed  with  is  the  same  paper, 
the  same  ink,  and  all  that  kind  of  thing.  Of  course  it  is. 
When  we  were  preparing  to  bring  this  matter  into  Court 
we  wanted  to  get  these  vouchers  into  good  shape  so  they 
could  bo  easily  handled  and  we  simply  had  covers  put  on 
them.  That  all  was  explained  at  the  time.  I  would  not 
have  been  so  surprised  at  my  learned  friend  making  these 
remarks  showing  that  he  had  something  of  the  kind  in 

50  his  mind  at  the  time,  but  this  matter  was  explained  at 
Victoria,  and  I  am  surmised  that  this  statement  should  be 
openly  and  boldly  made,  here  in  oral  argument.  Another 
statement  is  made  here  in  regard  to  Mr.  Munsie,  and  that 
is,  my  learned  friend  charges  that  Mr.  Munsie  has  made 
a  positive  misstatement  as  to  whether  or  not  the  "  Caro- 
lena "  hunted  seals  or  traded  on  the  coast  in  the  spring  of 
1886;  and  in  order  to  substantiate  that  charge  he  refers  you 
to  the  evidence  of  Serault,  whom  he  alleges  proves  that 
the  vessel  did  go  sealing  in  that  spring.     Also  he  read  a 

60  portion  of  Munsie's  evidence  at  page  145  of  the  Record, 
and  contended  that  it  was  a  statement  by  Munsie  that  the 
vessel  had  not  been  fitted  out  to  trade  in  the  spring,  but 
that  all  of  the  supplies  put  on  board  were  for  the  Behring 
Sea  voyage.  That  is  the  charge  he  wishes  to  make.  The 
object  of  the  statement  is  this,  and  it  is  very  plain.    What 


par    with    the 
the   manner    in 
of    these     men 


rfi 


li 


1097 

(Mr.  Peters'  Argument  in  Reply.) 

my  friend  wialios  to  argiio  principiilly  ia  that  Mnnsie  put  a 
certain  amount  of  piuvisionH,  supplies  and  ammunition  on 
board  that  year,  and  he  wants  to  make  it  ajipear  that 
Munsie  claimed  that  those  supplies,  ammunition  and  pro- 
visions were  put  on  hoard  simply  and  snioly  for  the  Behring 
Sea  trip,  whereas  as  a  matter  ot  I'aet,  they  wore  put  on 
board  for  two  trips,  thr  spring  trip  and  the  liohring  Sea 

lo  trip.  In  order  to  givo  any  impitrtancf  to  the  matter  at  all,  , 
you  nnist  assume  tliat  Mnnsie  was  going  to  eiiarge  for 
these  provisions,  whereas  hi.'  was  not  ciiarging  for  them 
and  did  not  charge  tlit.'m.  Again,  let  me  point  out  that 
there  imver  was  any  attempt  on  the  part  of  Mnnsie  in  his 
evidence  to  hide  from  this  Connnission  the  fact  that  part 
of  the  provisions  and  supplies  that  went  on  hoard  that 
ship,  were  for  the  spring  trip,  whether  it  was  a  sejilingtrip 
or  a  trading  trip  it  matteis  very  little.  The  best  evidence 
of  that  is  that  Mr.  Mnnsie  produced  the  vouchers,  and  on 

20  the  face  of  the  vouchers  it  api)eared  that  a  lot  of  these 
provisions  were  supplied  in  February;  and  no  person  could 
bo  charged  with  attempting  to  hide  a  thing  when  he  pro- 
duced the  vouchers,  which,  on  their  face,  showed  that 
these  were  for  the  apiing  trade. 

And,  again,  I  would  point  out,  when  you  come  to  the 
point  as  to  whether  that  vessel  went  on  a  sealing  trip  or  a 
trading  trip  in  thespring,  you  must  remember  that  the  giv- 
ing of  that  evidence  was  manyyeais  after  the  transaction 
took  place,  and  Munsie's  state  of  mind  as  to  what  took  place 

30  that  spring  was  this.  He  nowhere  positively  denies  that  the 
vessel  was  sealing  or  trading.  He  says  the  vessel  went 
out,  he  thinks,  for  the  purpose  of  trading,  and  that  she 
bought  some  skins.  Wi)etber  she  confined  her  opera- 
tions to  trading  and  the  buying  of  skins  he  is  not  clear 
about.  He  nowhere  makes  a  positive  statement  which 
would  be  essential  to  my  learned  friend's  contention.  He 
has  not  made  the  statement  positively.  He  himself  was 
in  doubt  as  to  how  the  vessel  was  employed  that  spring, 
and  when  the  man  himself  is  doubtful  on  the  point,  how 

40 can  you  make  criticism  when  some  other  person  comes 
in  and  says.  Yes,  you  were  sealing  in  that  year?  In  order 
to  show  that  I  am  correct  in  that  statement,  and  to  show 
the  state  of  mind  of  Mnnsie  on  that  point,  I  refer  to 
Record,  134-13.">,  Munsie's  cross-examination,  line  05: 

"  y.  Aside  from  the  largo  items  as  to  which  1  have  asked  you,  there 
"  is  a  very  large  amount  of  supplies  as  lo  ■which  I  have  not  asked 
"  you  ?  A.  You  see  the  vessel  left  in  February  to  go  to  the  coast  for 
•'  an  Indian  crew.  They  consumed  a  good  deal  of  stuff  on  that  voy- 
"  age." 

50 

It  is  attempted  lo  be  shown  in  the  first  place  that  we 
were  attempting  to  claim  all  these  provisions  for  the 
Behring  Sea  trip,  whereas  here  is  Munsie's  own  answer  : 
•'  They  consumed  a  good  deal  of  stuff  on  that  voyage." 
Then  again  : 

"  Q.  But  haven't  you  made  a  claim  against  us  for  it  all  in  the 
"  «10,000?" 

That  $10,000  happened  to  be  the  sum  total  of  all  the 
^'O  vouchers. 

"  A.  Everything  from  February  to  March. 

"  Q.  And  you  had  a  coasting  license  from  February  to  June?  A. 
"  When  the  vessels  go  out  they  must  always  take  a  coasting  license. 

"  Q.  Yon  do  a  coasting  business  from  February  to  June?  A.  The 
"  captain  would. 


'■!:;■ 


■  :vi:- 


lo 


1008 
(Mr.  Petors'  .Arguniont  in  Reply.) 

"Q.  And  tbo  veNHnl  didu't  «<>  np  to  nehriDKHo*  at  all,  did  she,  until 
"  the  oami)  back  to  r«Ht  iu  May?    A.  Hho  cnmo  l)aflk  in  Maj. 

*'  Q.  And  includiHl  in  hero  arc  all  the  Fobruary  and  Maroh  HuppHes 
"  before  she  oailod  on  hur  coaHting  trip?    A.  All  included  there. 

That  is,  iiirlii(]<*(l  in  tlit>  vonctioiH,  sliowin^;  plainly  that 
there  vvns  no  dispntt'  aiiont  it.  H«  ways  that  tho  provisions 
were  indndod  in  the  vonc^liers. 

"  Q.  Did  the  '  (!nrok>nn '  do  any  trading  with  the  Indians  on  the 
"  way  up?  A.  Hho  might  have  done  a  little;  I  wouldn't  Hay  whether 
"  she  did  or  nt)t." 

The  Commissioner  on  tlie  part  of  the  United  States:  — In 
that  tlie  direct  examination  or  tho  cross-examination? 

Mr.  Peters:-  It  is  the  crossexaniination,  hnt  this  is  tho 
first  time  it  came  np.  Mr.  Dickinson  very  properly 
wanted  an  exi)lanation.  and  said  in  effer-t  -Did  yon 
charge  all  this  to  the  Behring  Soa  trip?  "Oh,  no,"  saicl 
2oMnnsie,  and  lu'  then  explaiiuMl  folly  what  the  vonchers 
meant.  Yonr  Honors  will  rememher  that  this  course  was 
taken  almost  at  the  suggestion  of  the  Commission,  the 
idea  heing  that  we  were  not  to  go  fnlly  into  the  vouchers 
until  tliert'  was  somothing  challenged.  This  course  was 
always  followed  with  regard  to  the  examination  of  the 
vonchers  of  other  ships;  there  was  never  any  examination 
unless  some  item  was  challenged. 

The  witness  goes  on  further: 

"  Q.  Did  the  'Carolena'  do  any  trading  with  the  Indiann  on  the 
30  "  way  up  ?  A.  Hhc  might  have  clone  a  little;  I  wouldn't  Bay  whether 
"  »h(''  did  or  not. 

"  Q.  What  did  she  have  on  board  to  trade  with  Indians  ?  A.  She 
"  really  did  not  have  anything  except  tho  Hupplies." 

You  see  the  charge  is  that  some  of  these  goods  might 
have  heeii  used  for  trailing  and  that  we  were  keeping 
that  hack,  w  hercas  hei v  is  Munsie's  answer  which  is  per- 
fectly fair.  We  know  well  that  one  of  tiie  chief  articles 
of  trading  with  tho  Indians  was  this  pilot  hread  ahout 
which  wo  have  heiird  so  much. 


40 


50 


"  Q.  Were  they  put  on  board  for  her  to  trade  ?  A.  No,  they  were 
'  not. 
"  Q.  What  were  they  |)ut  on  board  of  her  for?  A.  To  go  down 
and  ]>ro<Mire  the  itow  of  Indians,  come  back  here  to  tit  out  for 
lieliriug  Sea  supplies  enough,  provisions  for  the  crew  and  the  In- 
diitus, 

"  Q.  Y011  don't  know  what  trading  they  did  ?     A.  I  do  not. 
"  Q.  Never  -^us  reported  to  you  ?     A.   I  don't  remember. 
"  Q.    \nv  >  ,o'/ng  done  on  that  trip  ?     A.  I  believe  she  bought  from 
the  iiidinns. 

"  Q.  Aitii  b- ought  them  to  you  ?    A.  Yes. 

"  ().   }i-;\f  mauy  ?      A.  I  don't  remember;  a  few  that  brought  up 
Homt  rtiiii  skins." 


Ro  that  on  thcfpiestion  as  to  whether  she  actually  sealed 
or  not  the  w  itness  said  in  elfect^really  at  tiiis  time  of  day 
I  don't  rcmemlier.  In  the  face  of  that  to  charge  that  he- 
cause  Michael  Serault  swears  that  she  did  some  sealing — 
that  therefoi'c  Munsie  has  Ixcn  contradicted,  and  ask  you 
tohelieve  that  Munsie  has  been  guilty  of  swearing  what 
was  false,  1  say  is  without  foundation. 
60  'Ihc  next  charge  made  is  a  serious  one.  There  is  no 
hesitation  on  my  learned  friend's  part  to  state  holdly  the 
charges  that  he  makes  against  Mimsie  and  Bechtel.  The 
next  charge  is  that  he  has  brought  into  court  a  set  of  forged 
receipts— eleven  receipts;  the  charge  is  that  these  receipts 
are  bogus. 


X  m 


M, 


lornt 


(Mr.  Pt'tors'  Argument  in  Rt'ply.) 

Mr.    Dickinson:  -  Tliero  is  no  doubt  about    that;    wo 
charge  that  thi'so  are  l)ogus  rcceipta. 

Mr.  Petern:— Ho  charges  that  they  were  not  only  bogus 
but  he  goes  furtlier  and  ho  gives  a  reaHon   for  it.     He 
alleges  boldly,  with  just  as  nuich  force  as  if  he  were  an 
expert  in  handwriting,  and  had  trained  very  carefully  to 
be  able  to  give  expert  testimony,  that  these  receipts  on 

lotho  face  of  tlwni  show  themselves  to  be  written  with  the 
same  pen,  with  the  same  ink,  and  by  the  same  hand  at 
the  same  time,  and  be  makes  that  statement  just  as 
boldly  as  though  bu  were  an  expert  in  bandvriting.  I  do 
not  pretend  to  be  an  expert  in  handwriting,  and  I  do  not 
presume  that  your  Honors  pretend  to  be  expo;  U  in  band- 
writing,  but  I  contend  that  if  the  coiuisel  wishes  to  rely 
on  a  matter  of  that  kind  he  should  have  got  expert  testi- 
mony and  brought  it  before  your  Honors,  and  not  rested 
merely  upon  the  assertion  of  counsel  in  a  case  where,  like 

20 this,  you  have  sworn  testimony  on  one  .side  that  they  wore 
not  made  with  the  same  pen  or  ink,  but  were  made  at 
ditTerent  times.  Of  course  there  is  no  doubt  of  their  all 
being  written  by  the  same  band.  Without  venturing  to 
class  myself  with  my  learned  friend  as  an  expert,  I 
venture  to  say  that  an  examination  of  the  receipts 
will  show  to  any  person,  that  they  were  not  written 
at  the  fame  time,  although  written  by  the  same 
jt'jrson,  and  not  being  written  at  the  same  time  could 
hot  have  been   written   with    the   same    pen    and    ink. 

30 1  profess  to  be  able  to  use  my  eyes  a  little,  and  in  the 
first  place.  I  say  that  if  written  by  the  same  person  with 
the  same  ink  and  jien,  and  at  the  same  time  you  would 
find  some  similarity  with  regard  to  the  main  letters  and 
with  regard  to  the  wording  of  the  receipts.  I  am  going 
to  show  you  that  that  is  not  the  case.  Looking  at  these 
receipts  you  will  find  that  with  regard  to  the  word 
"  Munsie,"  it  is  written  with  two  ditTerent  spellings 
— two  dilTercjnt  ways.  A  man's  handwriting  naturally 
changes  from  year  to  year,  but  these  changes   will   not 

40 appear  where  be  is  writing  the  same  word  twice  at  the 
same  time.  He  will  write  that  in  the  same  way.  We 
find  one  receipt  "  WMIIiam  Mimsie,  Esquire,"  and  another 
one  of  the  receipts  be  spells  Munsie  "  Monsie,"  instead  of 
"Munsie."  Again  the  letter  "V,"  which  is  used  in  the 
word  "  Victoria  "  at  the  top  of  each  receipt,  is  written  in 
three  ditTerent  ways.  A  glance  at  the  receipts  will  show 
this,  but  to  make  it  clear  I  will  give  your  Honors  the 
paper  I  have  in  my  band  to  show  you  the  difTerence  in 
the  formation  of  these  letters.     In  the  word  "  mortgage" 

5otbe  letter  "g"  occurs  twice  each  time,  and  that  letter 
"g"  is  entirely  ditTerent  in  formation  in  some  of  the  re- 
ceipts from  what  it  is  in  others.  The  same  remark  can 
be  made  as  to  the  letter  "  g"  in  "being,"  which  occurs  in 
the  receipts.  Now  we  come  to  tlie  word  "sixty,"  which 
appears  in  every  one  of  the  receipts,  as  that  was  the 
amount  of  the  interest.  You  will  find  that  there  are  six 
different  kinds  of  s's  at  the  beginning  of  the  word 
"sixty."  You  will  also  find  that  with  regard  to  the 
figures   "6u"   that  they  appear  in  four  ditTerent  ways. 

60  Again  when  we  (;ome  to  the  signature  "  A.  J.  Bechtel," 
the  signature  is  written  in  four  ditTerent  ways  on  these 
receipts.  All  this  I  am  bringing  to  your  Honors' 
notice  to  prove  that  Mr.  Warren's  assertion  as  an 
expert  witness  that  these  receipts  were  all  written  at  the 
same  time,  and  with  the  same  pen  and  ink,  is  not  borne 


1100 


(Mr.  Iclors'  Argument  in  Reply.) 

out  by  the  looking  pt  tlie  documents  themselves.  In  one 
receipt  the  signature  is  "A.  J.  Bechtel,"  the  "A"  being 
written  in  the  form  of  a  small  "a."  The  next  one  is 
written  "A.  J.  Bechtel,"  in  the  peculiar  manner  appear- 
ing I  n  this  paper,  whicl)  I  will  hand  to  your  Honors;  the 
third  and  fourth  are  different  A's,  and  the  last  one  is 
written  "Andrew  J.  Bechtel."    And  you  are  asked  to  be- 

lolieve  that  all  those  different  signatures  on  these  receipts 
were  made  at  the  same  time,  with  the  same  pen  and  ink. 
Then  again  I  venture  to  say  that  looking  at  the  receipts 
there  is  notliiiig  that  induces  any  one  to  say;  as  a  matter  of 
course,  that  they  were  all  wiitten  at  the  same  lime  or 
that  the  ink  is  the  same.  For  instance,  one  receipt  reads 
tlms:  "  Being  amount  due  for  interest  on  mortgage 
schooner  'Carolena'  to  I'.tth  of  December,  1885,"  and 
the  next  one  is,  "being  amount  interest  due,  &c.,"  and 
the  next  one  in  which  there  is  a  difference  is,   "  being  in- 

2otere8t  due,"  «&c.,  and  the  next  one  is,  "  Being  amount  of 
interest,"  &c.  All  tliese  things  go  to  prove  that  my 
learned  fiiend  has  not  very  much  foundation  for  the 
statement  he  makes  that  these  receipts  were  all  wiitten 
at  the  same  time,  and  by  the  same  pen  and  ink.  Now  I 
explained  to  your  Honors  before,  the  fact  of  these  being 
numbered  1,  2,  H.  4,  5. 

Tlie  Connnissioner  on  the  part  of  the  United  States:— I 
would  like  to  see  the  paper  you  are  reading  from  when 
you  have  finished  with  it. 

30  Mr.  Peters:— Certainly.  1  want  your  Honors  to  look  at 
another  thing.  Tlie  charge  is  that  these  receipts  were  all 
made  at  the  same  time.  I  ask  you  to  look  at  receipt 
marked  No.  4,  and  look  at  the  word  "mortgage."  The  word 
mortgage  is  tliere  written  with  a  sharp  pen.  Now  refer  to 
the  first  receipt,  and  look  at  the  woid  mortgage.  Is  there 
anything  there  that  induces  the  belief  that  these  were 
written  by  the  same  pen  at  the  same  time?  I  would  say 
that  the  contrary  conclusion  would  bo  arrived  at.  I  ven 
ture  to  say  that  there  is  no  evidence  to  show  that  these 

40  were  written  at  the  same  time  and  with  the  same  pen 
and  ink. 

Mr.  Dickinson:— Can  you  i)ick  out  the  duplicates  substi- 
tuted for  the  originals? 

Mr.  Peters:— I  am  coming  to  the  (juestion  of  duplicates. 
I  do  not  pretend  to  be  expert  enough  to  pick  out  those 
which  were  duplicates  and  the  others  which  were  not.  It 
is  in  evidence  that  some  of  these  receipts  were  lost,  and  it 
is  in  evidence  that  Munsie  got  some  of  the  receipts  in  dupli- 
cate, one  or  two  or  a  few.     Mr.  Dickinson  asks  me  now 

50  whether  I  can  pick  out  the  receipts  which  are  duplicates. 
If  I  remember  correctly  he  did  not  ask  the  witness  to  try 
to  do  that.  Ho  had  both  Bechtel  and  Munsie  on  the 
stand,  and  if  my  recollection  serves  me  properly  he  never 
asked  the  witnesses,  and  as  he  did  not  ask  the  witnesses 
i',  's  hardly  fair  t^  ask  me.  There  is  one  fact  that  he  relies 
'A\  very  strongly,  and  that  is  the  receipts  ai-e  written  on 
the  same  form  of  receipt.  What  is  there  extraordinary 
about  thati'  It  is  a  common  form  of  receipt.  Bechtel 
evidently  had  a  book  of  receipts,  and  that  book  of  receipts 

60  would  of  course  contain  a  number  of  blanks  and  what  is 
there  unusual  about  his  having  these  receipts  for  some 
time?  You  nmst  remember  that,  with  regard  to  these  du- 
plicate receipts  that  were  obtained,  they  were  not  obtained 
lately  for  the  purpose  of  this  enciuiry,  but  the  evidence 
sliowb  that  they  were  obtained  years  ago. 


(Mr.  Peters'  Argument  in  Reply.) 

Mr.  Dickinson:— Von  just  stated  that  the  witness  was 
not  asked  to  pick  out  the  duplicate.  Bechtel  was  asked 
distinctly  at  page  151,  where  he  says: 

"  Mr.  MnnHio  at  ouo  tiiuo  askod  me  to  give  a  r<  ceipt,  that  he  had 
"  lost  one  or  two,  luiuhiid  tlieiu  or  Homuthiug;  I  woiiUl  not  say  what 
"  ones  they  were. 

"  Q.  You  cannot  distinguish  them  now?     A.  No;  I  cannot." 

ID 

Mr.  Peters:— My  learned  friend  is  quite  in  order  in  his 
statement.  I  spoke  only  from  memory;  my  recollection 
was  that  he  had  not  heen  asked  tiiat  question.  It  appears 
that  Bechtel  answered  the  question  that  he  was  unable  to 
pick  them  out. 

Mr.  Dickinson:  -It  would  have  been  a  very  serious  fault 
under  cross-examination  not  to  have  asked  such  a  ques- 
tion. 

Mr.  Peters:— However,  I  was  referring  to  the  fact  of 

20  the  receipts  l)eing  on  this  form,  and  I  say  it  was  a  com- 
mon form.  It  might  have  been  peculiar  if  he  had  given 
these  duplicate  receipts  in  lSit7  for  the  purposes  of  this 
case,  and  happentiil  to  have  the  same  form  of  receipt  that 
he  had  away  back  in  1H88  and  1SS7,  but  when  it  appears 
that  thesis  dupUcate  receipts  were  asked  foi'  some  three  or 
four  years  ago  a  ditTerent  state  of  affairs  arises  altogether, 
and  there  is  no  conclusion  to  be  drawn  from  the  fact  that 
he  had  the  same  blank  forms. 

Before  I  leave  the  matter  of  these  receipts,  I  make  this 

^o  statement  that  the  charge  made  with  regard  to  them  is  a 
statement  altogetlier  too  bold  to  make  with  the  evidence 
that  the  coimsel  had  before  iiim  who  made  it.  It  is  a 
statement  of  a  very  serious  nature,  affecting  both  Munsie 
and  Bechtel — which  statement,  I  do  sul)mit,  sliould  not  be 
made  unless  there  is  very  strong  evidence  on  which  to 
base  it,  and  in  tiiis  purticulai*  there  is  no  foundation 
for  it.  My  learned  friend  makes  another  statement  to 
this  effect.  I  tiiink  your  Honors  will  remember  tiie  dis- 
pute that  came  up.     We  alleged  that  tlie  "  Carolena  "  was 

^ooriginally  bought  at  tlie  price  of  $l?,8(Ht.  On  the  other 
hand,  it  was  alleged  on  behalf  of  the  United  States  that 
she  was  not  bought  for  the  price  of  ^1$,  800,  but  that  she  was 
bought  for^2,(K)0,  aiu'  in  answer  to  that  the  question  came 
up  as  to  whether  or  not  tlie  ivul  transaction  was  that 
Urquba:',  who  it  .".ppears  was  only  part  owner  of  that 
ship,  bail  in  re;»lity  got  $3,800  for  the  vessel,  and  only  ac- 
counted >  liicuoy  for  the  sale,  as  if  made  at!?'2,000.  My 
frieiid  ventures  to  say  that  that  suj^gestion  is  made  by 
Muufcie  -  lie  bopjd   that  this  suggestio;'.  was  not  made  by 

[joHie.  He  said  tliat  tlie  suggestion  was  made  by  Munsie, 
and  '<e  hopes  it  was  not  made  by  counsel  for  (Jieat  Britain, 
and  he  was  (piite  forcible  in  tiie  language  that  he  ii.«'jd, 
that  if  we  were  to  besmirch  anybody's  character  we  ought 
not  to  besmiich  the  charactei  ot  ;i  man  who  was  dead.  I 
say  that  the  suggestion  as  to  Unpiliart's  object  in  stating 
the  amount  of  ^:i,000  as  the  price  for  which  the  schooner 
was  sold,  is  not  made  by  us  or  Munsie,  but  is  the  direct  re- 
sult of  Hickey's  evidence;  it  is  tiie  di'ect  statement  made 
by  Hickey.     I  refer  to  Kocord,  li.age  lOi^r),  line  ti8: 

(,,,  "  y.  Now  in  selling  tliivt  vcHHc' us  von  hupposcd  you  were  doing  at 
"  the  rate  of  82,000  for  the  whol.i  vessel,  did  you  tlien  consider  or  did 
"  vou  not,  that  the  8'i,000  was  her  value?  A.'  I  did  not  consider  it  was 
"  her  value. 

"  Q.  Will  you  give  me  vour  opiuiou  new  ns  to  what  you  thought  the 
"  vessel  was  worth?  A.  \Vcll,  sir,  at  the  time  I  considered  she  was 
"  worth  far  more  than  82,000  to  me,  but  as  to  her  actual  value  I  could 
"  not  8»"  posit'  cly. 


M 


u 


I! 


1J02 


(Mr.  Peters'  Argument  in  Reply.) 

"  Q.  So  that,  if  I  understand  you  correctly,  to  a  certain  extent  the 
"  sale  was  forced  upon  you  more  or  less?  A.  Certainly  it  was  forced 
*'  upon  mo,  for  I  regarded  my  position,  which  was  worth  $150  a  month 
"to  me  approximately,  my  salary  was  a  stated  salary  of  3140  per 
"  month,  and  there  was  an  allowance  made  to  me  of  my  household 
"  coal,  which  is  usually  considered  worth  something  to  a  man.  I  cer- 
"  tainly  would  not  forget  that,  a  yearly  salary,  for  a  few  thousand  dol- 
"  lars  that  might  be  in  the  venture  of  a  vessel." 

«o     And  also  at  page  102-t,  line  50: 

"  Q.  You  did  not  know  whether  Mr.  Urquhart  accounted  to  you  for 
"  all  the  proceeds  he  actually  got  of  the  si-hooneror  not?  A.  Idonot 
"  know.  I  was  of  the  opinion  that  he  rendered  mo  an  account  of  the 
' '  sale  of  the  complete  vessel,  but  subsequently  I  have  been  led  to  believe 
"  that  he  sold  only  two-thirds  of  the  vessel  for  that  amount  of  money 
"  and  retained  one-third  of  the  vessel  which  he  subsequently  sold  after- 
"  ward.     But  ho  rendered  me  no  account  of  that  sale." 


20 


30 


Mr.  Warren: — ReafI  tlie  question  immediately  after  that. 
Mr.  Peters:— Yes,  I  will. 

"  Q.  What  I  want  to  get  from  you  is  whether  what  he  paid  to  you 
"  was  for  the  first  sale  that  took  place  in  the  month  of  .Tanuary,  1884? 
"  A.  Yes,  sir;  he  never  rendered  me  any  statement  afterwards." 

Mr.  Warren: — Read  the  next  question. 

Mr.  Peters: — Wait  a  moment  and  I  will  do  s.-";  J  o))j.t'. 
to  having  the  continuity  of  my  remarks  distu'iM  i(  b\  ■!) 
frequent  interruption;  I  refer  to  page  1027.  lui.  S?,,  i  j 
evidence  is  given  in  Mr.  Dickinson's  re-e.xamiiianoa  ol  the 
witness: 

"  Q.  During  his  lifetime  had  yon  any  reason  to  doubt  that  Captain 
"  Urqihr.rt  was  an  honest  and  upright  man?  A.  Well,  sir;  I  am  very 
"  loth  to  answer  the  question." 

And  yet  it  is  stated  in  the  face  of  that  evi<lence  that 
Munsio  is  the  iiiaii  who  gets  up  this  idea  and  the  learned 
counsel  "hopes  it  is  not  tiie  counsel  for  Great  Britain." 
The  person  who  made  the  charge  and  who  was  very  deli- 
cate ahout  giving  Unjuhart  tliis  character  was  Mr.  Hickey, 
who  is  a  witness  called  for  the  United  States  and  not  by 
us,  and  is  a  man  we  had  never  seen  before  he  came  on  the 
4° stand. 

Mr.  Dickin.son:  -After  Munsie  had  testified — Munsie'a 
evidence  was  printed  in  the  papers  — the  witness  stated 
that  he  had  nt;ver  heaid  of  that  rutil  he  saw  it  in  the 
pajKirs. 

Mr.  Warren:— l{i>ad  at  page  1024,  line  (>3. 

Mr.  Peters: — I  will. 

"Q.  And  as  you  now  bolii'vo  at  the  time  ho  rendered  you  that  si.^te- 
"  nu'iit,  he  had  not  sold  all  tlio  vi^hkpI?     A.   I  had  not  boon  given  t«j 
"  nnilcrstaud  that,  but  F  luMinl  it  read  in  the  pajjcrs. 
5*-*      "Q.  Of  I'oiirse,  wlictlior  ho  did  or  did  not  account  to  you  for  all  the 
"  shari's  of  the  vessel,  you  do  not  know?     A.  I  don't. " 

The  conclusion  from  his  evidence  is  as  clear  as  noon- 
day. Ml.  lli(  key's  statement  is  this,  that  Mr.  Unpihart 
made  a  salt;  of  the  vessel  in  Jauuaiy,  l^.s.5,  and  he  says 
that  at  that  time,  in  .lamiary,  IKH.")-  and  Mr.  Uniuhart's 
baidc  accoiuit  shows  the  same  thing  -that  in  January, 
\Hsr>,  Mr.  rr(piliart  accounted  to  him  for  tin;  sale  of  vvli.ii' 
he  siii>pos('d  to  he  the  whole  vessel  for  $iL',00(»  and  that  I..; 
60  never  accounted  to  liim  fo''  the  siile  that  was  made  >i. 
Fehriiary,  iss.').  lie  knew  nothing  ahout  it.  He  though! 
the  wholt!  vessel  was  sold  in  January.  The  conclusion  is 
plain,  that  as  l)i>twcen  llickc' and  Urquhart,  Urquhart 
oidy  accounted  to  Hickey  fo.  it;  sale  ihat  took  place  iu 
January.     Hickey's  oath  is  c;  >',!  ;ind  plain  on  that. 


Ki 


1103 


I  fm\} 


i  M 


I 

1 


(Mr.  Peters'  Argument  in  Reply.) 

My  learned  friend  refers  to  his  having  heard  it  from 
the  newspapers.  His  statement  is  that  he  imagined  he 
had  sold  the  whole  of  the  vessel  in  January,  and  he  now 
hears  for  the  first  time  that  it  was  not  ail  sold  at  tliat 
time,  but  that  a  part  of  it  was  sold  later,  and  for  that  he 
did  not  account  to  him.  This  was  the  first  time  that  it 
had  ever  lieen  told  to  him. 

lo  Now.  there  is  a  good  deal  of  comment  made  by  my 
learned  fiiend,  because  the  interest  clause  in  struck  out 
of  the  mortgage;  Bechtel,  and,  I  think,  Munsie,  too,  made 
the  statements  that  tlie  rate  of  interest  charged  was  high, 
12i  per  cent.,  and  Munsie  did  not  want  a  mortgage  on 
record  with  sucli  a  high  rate  of  interest  in  it.  He  did 
not  want  it  to  api)ear  to  the  outside  world  that  he  was 
paying  such  a  high  rate,  and  hence  it  was  put  in  without 
interest.  With  regard  to  tiiere  being  no  time  of  payment, 
that  explains  itself,  for  the  mortgage!   was  on  demand. 

20  Criticism  is  made  on  the  form  of  mortgage,  that  there  is 
no  time  of  payment  mentioned;  I  say  that  there  is  a  time 
,of  payment,  and  that  it  is  made  payable  on  demand. 
Bechtel  says  that  Munsie  had  stated  that  he  might  want 
to  pay  it  oiRf  at  any  time,  and  therefore  it  was  made  pay- 
able on  demand.  As  to  the  power  of  sale  being  struck 
out,  if  your  Honors  will  read  the  foini  you  will  see  that 
the  power  of  sale,  as  originally  inserted,  would  not  be  appli- 
cable to  a  mortgage  payable  on  demand.  It  reads  in  this 
way :  I.William  Miuisie,  so  and  so,  in  consideration  of  $1 ,000, 

30 do,  &c.,  hereby  for  myself  and  heirs,  etc.,  do  covenant 
that  I  or  my  heirs  will  pay  to  the  said  .Andrew  J.  Bechtel 
the  said  sum  of  $1,000,  without  interest,  on  demand. 
Tiien  tlie  form  proceeds:  Second,  if  the  said  principal  sum 
is  not  paid  then  1  will  during  that  time  pay  interest  at 
6uch  a  rate,  and  tor  a  better  security  to  the  said  Bechtel, 
for  repayment  in  maimer  aforesaid  of  the  said  principal 
sum  and  interest,  bereliy  mortgaged  to  the  said  Bechtel 
thirty- two  shares  of  the  vessel,  and  declare  this  mortgage 
shall  not  be  exercised  until  tlie  day  of 

40  I  understood  my  learned  friend  to  say  that  the  power  of 
sale  in  the  mortgage  was  struck  out.  But  now  he  says 
that  it  was  void  l)y  not  having  any  date  put  in.  As  the 
mortgage  was  payable  on  demand  it  will  be  apjiarent  that 
you  could  not  fix  a  date  for  the  exercise  of  tlie  power  of 
sale.  Tn  order  pioperly  to  provide  for  "  power  of  sale  " 
he  would  li;ive  had  to  provide  lor  the  giving  of  some 
notice  or  some  demand  when  the  money  shonld  come 
due,  and  tlien  a  declaration  that  the  jtower  of  sale  should 
not  be  exercised  until  after  the  dem;nid   or  notice  should 

50  have  been  inserted.  These  people  weic  not  lawyers,  and 
they  «iid  not  know  how  to  do  it,  and  so  they  left  it  blank. 
The  omission  of  a  date  when  th(>  power  of  sale  could  be 
exercised  niiKht  have  had  some  effect  on  tluMjuestion  as 
to  whether  that  mortgaj^e  could  liav(!  lieen  enforced,  but 
it  has  no  etTecl  whatever  on  the  qnestion  as  to  whether  it 
was  a  fraudulent  oi'  honest  mortgage. 

As  to  the  interest  clause  being  stricken  out,  the  ex- 
planation «>f  that  as  given  is  sufficient.  Bechte!,  at  page 
15'2,  line  20  of  the  Hecord,  says: 

60 

"Q.  Mr.  Be -'tpl,  why  wan  tliat  luortjjraK*'  cxproBPcd  to  lie  without 
"  intorest  ?     A.  Tho  iiiortRaKo  for  »1,(»(M»  ? 

"Q.  Yes.  A  Well,  the  rate  of  iutcrc'sl  Mr.  Munsie  thouf^ht  was  a 
"  little  too  hiRh,  ami  he  did  not  like  to  luive  his  l>usine,ss  exposed. 

"Q.  Wan  there  a  note  taken  at  the  same  time  ?  A.  Mo,  sir;  I  WM 
"  advised  to  take  a  note  afterwards. 


1104 


K     '- 


(Mr.  Peters'  Argument  in  Reply.) 

' '  Q.  Was  there  a  note  taken  for  the  loan  ?    A.  No,  sir. 
"  Q.  Was  a  note  ever  taken  for  the  loan  ?    A.  No,  sir." 

If  this  man  Bechtel  really  did  all  these  things;  if  it  was 
all  a  fraud,  and  all  a  concocted  scheme,  tiiere  is  a  good 
deal  of  ingenuity  displayed  in  this  answer  I  have  just  read 
as  to  why  interest  was  not  put  in.  One  would  hardly 
think  of  such  a  thing  when  they  were  simply  concocting 
a  fraud.     So  much  for  the  niorfgages. 

My  learned  friend  made  a  statement  a  little  while  ago 
and  I  would  like  to  see  whether  I  am  correct  or  not.  I  stale 
that  he  had  said  the  power  of  sale  clause  in  the  mortgage 
was  stricken  out. 

Mr.  Warren:— I  did  so  state,  but  I  corrected  it  after- 
wards to  the  Commissioners. 

Commissioner  on  the  part  of  the  United  States:— He 
did  say  that  it  was  erased,  but  afterwards  on  an  inquiry 
from  me  if  he  meant  to  say  that  it  was  actually  erased,  or 
that  that  was  the  effect  of  it,  he  said  that  was  the  legal 
eflect. 

Mr.  Peters: — I  will  leave  that  point  then.  The  charges- 
I  have  dealt  with  now  are  the  main  charges  made  by  my 
learned  friend  on  the  other  side  against  Munsie.  Then 
they  turned  to  Bechtel  and  make  several  charges  against 
him  of  a  serious  nature.  Here  is  the  first  charge  they 
make,  referring  to  a  piece  of  evidence  given  by  Bechtel  at 
page  1S3  of  the  Kecord,  line  30: 

30  "  Q.  When  you  went  on  the  ship  did  you  go  below?  A.  No,  I  did 
"  not. 

"  Q.  Didn't  go  below?    A.  I  believe  I  did  go  in  the  cabin. 
"  Q.  Didn't  you  go  below  on  the  tonnage  deck — below-decks — to  see 
"  what  they  had  aboard?    A.   Not  in  the  hold,  where  they  kept  their 
"  supplies. 

"  Q.  What  did  you  go  there  for?  To  say  good-bye  to  Captain 
"  Ogilvie?     A.  Yes. 

"  Q.  Ever  been  on  her  before?  A.  Oh,  yes;  I  had  been  on  her  sev- 
"  ernl  times. 

"  Q.  Just  went  on  to  visit  the  captain?  A.  Yes,  to  see  the  captain; 
"  that  is  all." 

40 

He  says  ho  had  been  on  her  several  times,  and  perhaps 
he  was  on  her  several  times  that  very  year.  Now  it  after- 
wards turns  out  by  tlio  evidence  of  one  Cotsford  that  on 
the  May  trip,  when  she  was  going  on  her  final  trip,  Bech- 
tel actually  went  up  in  the  "Carolena"  to  Clayoqnot,  on 
his  way  to  .Vlberni,  and  my  learned  friend  says:  "Oh,  tiiis 
"is  a  (lireit  contradiction  of  everything  Bechtel  has  said. 
"  How  can  you  l)t4ieve  tlie  statement  that  he  went  there  to 
"say  good-bye  to  tiie  captain,  when  he  afterwards  went  in 

50  "  the  shiji  to  Ciayoquot;"'  and  then  he  «) notes,  ^'fdlsns  in 
"  luio,  falsiis  hi  (turn thus."'  The  wliole  thing  is  answered. 
My  learned  fi  lend  entirely  forgot  that  at  N'ictoria,  on  the 
same  i)ago  of  the  evidence,  Bechtel  states  that  he  made 
several  visits  to  the  vessel  during  that  year.  My  leained 
fiitMid  (booses  to  say  that  because  he  paid  a  visit  on  one 
occasion  and  wenr,  on  board  to  say  good-by  to  the  cap- 
tain, be  was  denying  that  he  ever  went  on  a  voyage  on 
the  "Carolena."  The  suggestion  that  he  went  up  in  the 
"Caioicna''  was  not  befoie  his  mind,  or  in   the  mind  of 

^anybody  at  that  time.  Suppose  you  were  asked  to  find, 
as  tliey  do  ask  you  to  find,  that  in  this  particular  Bechtel 
is  .'^wearing  to  what  is  false,  the  first  (juestion  you  have  to 
ask  yourselvfs  is,  Which  visit  was  the  man  referring  to? 
Was  it  the  visit  in  February,  when  the  vessel  was  outfitted 
to  go  on  the  spring  voyage,  or  was  it   in  May,  when  she 


1 105 


^^^ft^l 


(Mr.  Pefeis'  Argument  in  Reply.) 

was  going  out  on  the  Bohring  Sea  voyage?  My  friend 
should  have  followed  that  examination  up;  but  instead 
of  doing  that,  he  leaves  the  question  open  and  the 
date  open,  and  then  he  asks  you  to  find  that  it  was  a 
fraud.  We  say  that  you  should  find  tiie  man 
innocent.  You  never  should  find  a  man  guilty  when 
there    is    a    fair    and    reasonable    doubt    of    liis    guilt. 

loThat  is  so  in  a  criminal  case.  Fiaiid  is  never  to  be  pre- 
sumed, hut  is  always  to  be  f)roved.  Yon  cannot  assume 
fraud,  you  must  prove  it,  and  here  where  you  have  a 
piece  of  evidence  capable  of  two  constructions,  one  of 
which  would  make  the  man  guilty  of  a  fraud,  and  the 
other  in  favor  of  his  honesty,  what  is  your  duty?  It  is  to 
take  that  construction  of  the  evidence  which  establishes 
the  man's  innocence.  But  suppose  that  Bechtel  did  re- 
fer to  the  voyage  of  the  "Carolena";  that  he  was  re- 
ferring to  the  voyage  when  he  did  go  up,  what  are  you 

20 to  assume  from  that?  It  was  a  matter  of  no  consequence 
to  the  case;  it  did  not  afl:"ect  the  ownership  of  the  vessel 
one  way  or  the  other,  and  therefore  it  did  not  affect  the 
question  before  this  Tribunal  one  bit.  It  was  imma- 
terial, so  far  as  the  owneiship  of  the  vessel  was  con- 
cerned, whether  Bechtel  owned  a  trading  station  at  Al- 
berni  or  not.  His  trip  on  that  vessel  was  entirely  imma- 
terial. At  that  time  there  were  no  steamers,  and  they 
had  to  take  advantage  of  such  means  as  were  at  band  to 
get  to  their  trading  |»osts,  and   there  was   nothing  at  all 

30  in  the  fact  that  he  went  on  the  "Carolena";  so  far  as 
ownership  is  concerned  it  was  not  material.  It  must  be 
remembered  that  Bechtel  was  speaking  twelve  years  after 
the  occurrence,  and  perliaps  he  miglit  mix  up  the  Febxni- 
ary  trip  with  some  other  trip,  or  mix  up  the  vessels,  or  it 
would  not  l)e  strangt*  if  he  forgot  tlie  whole  transaction. 
I  venture  to  say  that  any  one  of  us  would  not  consider 
tliat  we  had  done  anything  out  of  tlie  way,  or  l)ioken  the 
solemnity  of  an  oath,  if  we  should  go  upon  the  witness 
stand  and  foiget  all  about   some  voyage  or  trip  that  had 

40 taken  place  some  ten  or  twelve  yeais  before  I  know, 
as  far  as  1  am  personally  concerned,  unless  I 
had  some  memoranda,  I  slionld  be  conniietely  in  the 
dark.  J  very  nuich  doubt  if  Bechtel  had  been  asked  as 
to  whether  be  went  u|)  in  the  vessel  in  188<)  he  would 
have  bet'u  able  to  say  yes  or  no.  It  was  |)ure  accident 
that  we  hai)p('ned  to  get  another  man,  Cotsfoni,  who 
was  aboard  the  'Carolena"'  but  once,  and  could  not 
therefore  make  any  mistake  about  it. 

Mr.  Warren: — There  were  two  other  witnesses. 

50  Mr.  Peters:  — Of  course,  the  very  moment  the  fact  was 
discovered  then  the  other  men  who  were  aboard  the  ves- 
sel at  that  time  remembered  about  it.  We  do  not  dispute 
the  fact  that  he  was  on  the  vessel  at  that  time.  All  we 
.say  is  that  when  Bechtel  was  examined  the  matter  was 
not  before  his  mind,  n.tr  before  the  counsel's  mind,  and  it 
was  only  ac(  idental  that  the  other  man  happened  to  re- 
member that  he  was  aboard  the  ship.  Tiie  question  was 
never  followed  up,  but  stood  at  that  point. 
The  next  suggestion  is  that  Bechtel  made  :\  false  state- 

6ouient  in  this;  it  appears  now  by  the  evidence  of  Munsie 
that  Bechtel  was  intere.sted  in  the  years  1887  and  1889 
in  the  venture  of  the  "  Pathfinder  "  in  Behring  Sea.  He 
paid  so  much  money  for  a  half  share  of  the  piofits  that 
vessel  wouW  make.  Counsel  for  the  United  States  allege 
that  Bechtel  before  Munsie  made  that  admission,  had  gone 


1106 


(Mr.  Peters'  Argument  in  Reply.) 

on  the  witness  stand  and  made  statements  utterly  incon- 
sistent with  it.  They  say  he  made  a  statement  that  he  had 
no  interest  in  the  sealing  business  until  189n,  and  that  this 
was  untrue.  I  am  going  to  examine  that  statement.  Let 
me  make  this  remark  in  the  first  place,  that  so  far  as  the 
"Pathfinder"  was  concerned  in  1887,  1888,  and  1889.  al- 
though Bechtel  bought  an  interest  in  the  profits  he  liad 

ID  nothing  to  do  witii  the  actual  business.  Munsie  transacted 
the  whole  business;  Munsie  outfitted  the  vessel  and  hired 
the  ciew,  and  incurred  all  the  expenses,  while  Bechtel 
simply  as  a  speculation  invested  $2,000,  expecting  to  get 
back  one-half  the  net  profits  of  the  voyage  if  the  vessel 

'  was  successful.  If  she  was  not  successful  or  was  lost  h(.' 
lost  his  money.  I  say  that  that  could  not,  strictly  speak- 
ing, be  termed  engaging  in  the  sealing  business.  Let 
me  put  an  example.  Supjjose  one  buys  a  hundred  or  a 
thousand  siiares  in  a  mining  company,  of  which  there  are 

20^0  many  floating  at  the  present  time  for  mining  in  the 
Klondyke.  Would  the  fact  that  you  had  done  so  justify 
any  person  in  saying  that  you  were  in  the  mining  bus! 
ness  when  your  real  business  was  that  of  a  doctor,  a  lawyer 
or  a  merchant.  I  say  No,  nor  does  the  admission  of  Munsie 
justify  the  United  States  counsel  in  saying  Bechtel  was  in 
the  sealing  business  durinp'  >Jie  years  in  question. 

At  the  time  the  evider.\  I  am  about  to  r  ad  was  given, 
the  point  that  was  before  the  minds  of  11  o  witness  and 
counsel  was  as  to  whether  Bechtel  had  an  interest  in  the 

30 bottom  of  ve.«sels: 

"Q.  Where  do  yoM  reside,  Mr.  Bechtel?    A.  Victoria. 

"Q.  How  long  have  you  resided  in  Victoria?    A.  About  23  years. 

"  Q.  I  believe  you  are  married  and  settled  down  here?    A.  Yes. 

"  Q.  And  have  a  family  here?    A.  Yes. 

"Q.  And  this  has  been  your  home  for  the  last  23  years?    A.  Yes. 

"  Q.  What  business  are  you  in  now?    A.  In  the  sealing  business. 

"  Q.  How  long  have  you  been  engaged  in  the  sealing  business — 
"  about  how  long?  A.  I  can't  say  exactly  as  to  a  mouth;  over  three 
"years. 

"Q    About  three  years,  you  mean?    A.  About  three  years— longer. 

"  Q.  What  was  your  business  before  that?    A.   Hotel  business. 

"  Q.  You  kejjt  an  hotel  hero?  Whot  was  the  name  of  the  hotel?  A. 
'I have  kept  diflferent  hotels. 

"Q.  You  were  a  hotel  keeper  in  Victoria  for  how  many  years?  A. 
'  for  about  18  years. 

*'  Q.  Prior  to  1880  had  you  anything  to  do  with  the  sealing  business? 
'  A.  No,  sir. 

"  Q.  Had  you  anything  to  do  with  the  shipping?     A.  No,  sir. 

"  Q.  Did  you  know  anything  about  ships  up  to  tL.;t  time?  A.  No, 
'  sir. 

"Q.   Had  you  owned  any  ship  before  then?    A.   No,  sir. 

"Q.  Had  you  any  share  or  interest  in  any  ships  of  nuy  kind  up  to 
'  that  time?"   A.  Not  any. 

"Q.  And,  in  fact,  had  you  in  188t)  any  interest  in  any  ship?  A. 
"  Not  any. 

"Q.  Or  in  1887?    A.  No,  sir. 

"Q.  OrinlbaO?    A.  No,  sir. 

"Q.  And  I  believe  I  might  also  :;ay  1890?    A.   No,  sir;  not  in  1890. 

"Q.  Now,  in  the  year  1885  you  had  a  transaction  with  Mr.  Munsie? 
"  A.  Yes,  sir. 

"  Q.  He  borrowed  some  money  from  you?    A.  Yes,  sir." 

"  Q.  You  did  not  enter  the  sealing  business  until  1890?    A.  I  think 
"  it  was  in  1890  I  bought  a  vessel  in  San  Francisco. 
(3(3     "Q.  You  had  no  interest  in  the  sealing  business  before?    A.  No, 
"  sir. 

"  Q.  Did  you  enter  the  sealing  business  in  1890  and  enter  the  owner- 
"  ship  of  sealing  vessels?  A.  I  would  not  be  positive  whether  it  was  in 
"  1990  or  1891,  but  I  bought  the  'City  of  San  Diego 'in  San  Francisco; 
"in  1890  and  1891. 


40 


50 


h:-    .-!«*• 


1107 


(Mr.  Peters'  Argument  in  Reply.) 

He  had  been  examined  as  to  tiie  owr.ership  of  vessels, 
and  when  Mr.  Dickinson  put  the  question  he  answered, 
showinf?  clearly  that  the  witness  was  not  speaking  of  any 
little  venture,  but  the  question  was  directed,  and  his 
answer  was  directed  as  to  whether  or  not  he  had  any 
ownership  in  vessels. 
There  is  another  suggestion   that  my  learned  friend 

ID  makes,  and  it  is  this.  He  says  that  at  a  certain  stage  in 
the  course  of  the  enquiry  at  Victoria,  Munsie  became  re- 
formed. That  he  had  dworn  falsely  with  regard  to  the 
"  Carolena,"  but  afterwards  had  found  it  was  a  good 
thing  to  reform,  and  therefore  when  he  came  to  deal  with 
the  "  Pathfinder,"  instead  of  telHng  the  story  as  he  had 
in  the  case  of  the  "  Carolena,"  and  swearing  that  Bechtel 
had  no  interest  in  the  vessel  or  venture,  he  altered 
his  statement,  and  admitted  that  Bechtel  had  an  in- 
terest in  the  venture.     My  learned  friend  in  his  written 

20  brief  accepts  with  thanks  our  ad  mission  that  Bechtel  had  an 
interest  in  the  venture,  and  argues  further  that  he  really  had 
a  interest  in  the  vessel  also.  The  statement  that  he  became 
reformed  does  not  amount  to  much  in  itself,  but  tlie  sug- 
gestion that  goes  with  it  is  of  a  serious  nature.  He  says 
that  Munsie  went  into  the  "Carolena"  case  believing  that 
it  would  ruin  his  case  if  he  admitted  that  either  the  ship 
was  owned  by  or  that  Bechtel  had  any  interest  in  the 
cargo  or  the  venture,  but  that  he  subsequently  found  out 
that  the  counsel  for  Great  Britain  contended  that  it  did 

30  not  make  any  difference  if  Bechtel  owned  a  share  in  the 
venture.  And  so  they  say  Munsie  concluded  to  admit 
that  in  the  "  Pathfinder"  venture  Bechtel  did  have  an  in- 
interest.  In  other  words,  they  say  he  ought  to  have  ad- 
mitted the  same  thing  in  the  case  of  the  "  Carolena,"  and 
that  he  did  not  admit  it  because  he  did  not  know  what  the 
law  was,  but  when  he  came  to  the  case  of  the  "  Path- 
finder "  he  had  been  better  informed,  and,  therefoi'e,  made 
this  statement.  Now,  that  contention  assumes  two 
things.     In   the  first  i)lace,   that   Munsie  did  not  know 

40  what  the  British  counsel  were  contending  for  before  the 
"Carolena"  case  was  tried.  Is  that  correct?  A  very 
casual  examination  of  the  Record  will  show  that  it  is  not 
correct.  The  pleadings  in  the  case,  wliich  were  drawn 
long  before  tiie  case  of  the  "  Carolena  "  had  been  tried, 
and  which,  of  course,  were  drawn  with  Munsie  as  in- 
structor, and  which  Munsie  actually  saw,  contained  the 
following  paragraphs: 

[Mr  Peters  here  read  paragraph  2  of  the  United  States 
answei-  and  paragraph  4  of  the  British  reply  in  the  "  Caro- 
5°lena"  case  (see  pp.  3  and  4,  Appendix  A)|. 

Now  these  as  before  stated,  were  well  known  by  Munsie 
before  he  went  on  the  stand  in  the  "  Carolena"  case,  and 
the  same  pleas  in  exactly  the  same  form  are  to  be  found 
in  the  "Pathfinder"  case.  Those  pleas  were  drawn  up 
and  delivered  early  in  the  proceedings,  so  the  very  ground- 
work and  basis  and  foundation  of  my  friend's  sugges- 
tion falls.  It  could  not  be  contended  for  a  moment  that 
we  did  not  have  our  instructions  in  the  "Carolena"  and 
60 "Pathfinder  "  long  before  what  is  called  the  reformation 
took  place.  I  know  my  learned  friends  could  not  have 
thought  about  it  in  that  way,  because  it  is  not  only  a 
charge  against  the  witness,  but  it  is  also  a  charge  against 
the  counsel  for  Great  Britain. 

Mr.  Warren  also  alleges  that  a  contradiction  exists  be- 


11  OH 


(Mr.  Peters'  Argument  in  Rt.'ply.) 

tween  the  witness  Munsie  and  the  witness  Mun^er  in  re- 
spect to  the  payment  of  *4(>  wa}i;cs  which  Munsie  alleged 
ho  paid  Muiiger  and  which  Munger  stated  ho  was  not 
paid.  Tiiis  is  Munsio's  evidence  with  regard  to  that  at 
page  109,  line  2»i,  of  the  Record: 

"  Q.  I  have  James  Mun^^er  down  bere  as  having  been  paiil  940?  A. 
"  There  is  a  balance  due  him  of  the  difference  between  840  and  877.  I 
lO  "  will  say  there  is  an  apimrent  balance  due  them,  yet  there  is  not.  I 
"  will  explain  that.  When  they  came  home  I  told  him  I  was  not  re- 
"  sponsible  for  their  wap;es  after  the  time  of  the  seizure.  They  said 
"  they  were  destitute  and  that  if  I  paid  them  up,  either  in  full  or  in 
"  part,  they  would  give  me  an  assignment  of  their  wages.  I  madethe 
"  best  terms  I  could  with  each  of  them  and  these  are  the  amounts  I 
"  paid  them,  and  I  took  an  assignment  of  their  wages. 

"  Q.  So  far  as  this  claim  is  concerned,  you  stand  in  their  shoes?  A. 
"  Exactly. 

"  Q.  You  claimed  you  were  not  liable  to  pav  them  after  the  seizure'' 
"A.  Yes. 

"  Q.  Have  you  got  these  assignments;  they  were  in  writing?  A. 
20  "  They  were  in  writing. 

"  Q.   Have  you  got  them?    A.  I  have  not. 

"  Q.  Where  are  they?  A.  It  appears  they  went  to  Ottawa  with 
"  some  other  papers,  and  from  there  to  Washington  during  the  time 
"  Captain  Warren  was  there,  and  these  vouchers  that  are  duplicates 
"  or  some  of  them  also  went  to  Ottawa  and  wei-e  never  returned. 
"That  is  one  reason,  I  presume,  that  I  had  to  get  some  duplicate 
"  vouchers.  The  vouchers  all  went  to  Ottawa,  and  I  believe  that  when 
"  Captain  Warren  was  at  Washington  he  had  them  there  also. 

That  evidence  shows  that  there  was  a  dispute  between 
Munsie   and    Mnnger  as  to  the  wjiges;  tliat   Munsie   paid 

3ohini  $40;  that  Mnnger  claimed  ^77;  and  that  Munsie 
took  an  asnignnient  for  the  wages  Mnnger  never  con- 
tradicts that  and  never  states  that  tliere  was  not  an  assign- 
ment taken  I  admit  that  Mnnger  sa5's  he  was  not  paid 
his  wages,  hut  Mnnger  was  depending  altogether  on  his 
memory,  whereas  Munsie  had  made  his  entries  alxut  it 
severui  years  hcfoie,  and  took  an  assignment,  and  made 
a  note  of  that  assignment.  Munsie  also  had  the  voucheis 
for  it  as  far  hack  ns  1S,S7,  ;nid  it  might  he  quite  jKissihle 
that  Mnnger  was  swearing  as  to  the  *30  in  dispute. 

40     Mr.  Lauf-ing:     He  says  he  was  not  paid  one  cent. 

Mr.  Peters:  Munsie  swears  positively  that  Mnnger 
made  the  aFsignnient  of  his  wages  to  Munsie,  and  this  is 
not  denied.  We  are  not  claiming  to  recover  l)ack  the 
wages,  and  so  far  it  is  immaterial.  I  liave  gone  into  the 
evidence  of  Munsie  and  FJechtel  at  some  lengtli,  for  the 
reason  that  all  tlirough  the  United  States  brief  these  two 
witnesses  are  lield  nj)  as  men  ntteily  unworthy  of  belief. 
There  are  many  suggestions  that  these  men  were  guilty 
of  fraud,  and  1  deemed  it  my  duty  to  take  up.  one  by  one, 

50 the  cliarges  made  against  them  by  the  United  State.'t 
counsel.  an<i  to  show  that  they  were  really  without  suf- 
ficient foundation. 

Let  me  say,  your  Honors,  in  this  connection,  that  on 
the  part  of  onr  learned  friends  the  counsel  for  the  United 
States  there  has  been  altogether  too  much  tendency  to 
abuse  witnesses  and  to  make  rash  statements  concerning 
them.  Not  only  does  this  apply  to  Mansie  and  Pechtel, 
but  it  ai)plies  to  some  other  witnesses  called  on  behalf  of 
Great  Britain,  who  are  men  of  the  greatest  respectability 

6oand  truth.  Take,  for  instance,  what  has  been  said  of  the 
witness  Lubbe,  the  witness  Charles  Spring,  witness  Cap- 
tain Paxton,  witness  J  D.  Warren  and  the  witness  Owen 
Thomas.  I  say  that  not  (mly  have  attacks  been  made 
upon  some  of  these  witnesses  l)y  some  of  the  American 
Counsel,  but  that  these  attacks  have  been  made  in  a  rash 


1 10ft 


IO'< 


(Mr.  Peters'  Argument  in  Reply.) 

and  reckless  way,  and  without  any  evidence  on  the  record 
to  sustain  them.  Mr.  Warren,  junior  counsel  for  the 
United  States,  in  tlie  course  oT  iiis  argument,  said: 

"I  refer  to  the  Record,  2002;  we  have  it  on  this  Kecoril,  if  your 
"  Honors  ])leaHo.  that  ho  reliable  a  ){outlemaii  as  Theodore  Liibbo 
"  owued  an  interest  in  the  'Mary  Ellen'  and  '  I-'avoinite, '  and  'On- 
"  ward,'  when  he  was  a  citizen  of' the  United  States  of  America,  ond 
that  these  vessels  were  registered  in  the  name  of  so  estimable  a  gen- 
tleman as  William  Spring,  who  necessarily  made  oath  that  he  was 
"  the  sole  owner  of  the  bottom  of  the  shij).  'We  have  it  on  this  Record 
"  that  Patrick  Hiekev  was  a  citizen  of  the  United  States,  and  that  he 
"  owned  half  of  the  bottom  of  the  '  Oarolona,'  and  that  she  was  regis- 
"  tored  in  the  name  of  Donald  Urquhart,  a  British  subject,  who 
"  necessarily  swore  that  he  was  the  sole  owner.  We  have  it  on  this 
"  Record  that  Alexander  McLean,  a  citizen  of  the  United  States,  was 
"  the  owner  of  half  the  bottom  of  the  '  Onward '  and  '  Favourite,'  and 
"  Oharlea  Spring,  a  British  subject,  made  oath  bef<tro  the  Paris 
"  Tribunal  that  he  was  the  sole  owner."  * 

Here  we  have  u  statement  ma'le  boldly  and   recklessly 

2° by  my   learned  friend  Mr.  Warren,  that  these  witnesses 

put  themselves  on  the  registry  as  owners  of  these  ships, 

and  swore  the  oath  which  was  ni'cessary  in  order  to  l)e- 

come  the  owner  of  a  British  ship. 

Now  the  facts  are  as  follows,  as  shown  by  the  registry 
of  these  very  ships,  that  not  one  of  these  men  mentioned 
by  counsel  for  the  United  States  made  the  oath,  and  were 
not  required  to  make  the  oath,  for  the  reason  that  while 
the  American  citizenship  interest  remained  the  siiips  were 
not  registered  in  the  names  of  one  of  these  gentlemen. 
30 Take  for  instance  the  "Onward,"  where  the  charge  is 
made  that  Alexander  McLean  and  Chailes  Spring  were 
the  joint  owners,  and  that  Charles  Spring  nuist  necessarily 
have  sworn  so  and  so.  Now  the  facts  are  that  Charles 
Spring  and  Alexandei' McLenn  became  owners  in  1885  and 
they  dissolved  tlieir  partnership  in  tiie  fall  of  188(».  The 
evi  lence  on  the  record  will  show  that  n\)  to  the  year  1887, 
this  vessel  stood  in  the  name  of  William  Spring,  and  later 
on  in  the  name  of  the  executors  of  William  Spring. 
Chailes  Spring  was  not  on  the  registry  until  after  Alex- 
4oander  McLean  parted  company  with  him,  and  Charles 
Spring  did  not  have  to  make,  and  never  did  make  any  affi- 
davit as  to  ownership  in  that  ship. 

Mr.  Warren: — Well,  if  you  wish  I  can  read   you   the 
affidavit  right  here. 

Mr.  Peters:— My  learned  friend  is  referring  to  another 
matter,  and  I  do  not  wish  to  be  interruptecl.  He  is  re- 
ferring to  the  affidavit  put  in  evidence  in  the  case,  and  I 
am  referiing  to  the  registration  of  the  ship.  My  learned 
friend  says  that  these  men  were  the  owners  of  certain 
;o ships,  and  that  Chas.  Spring  must  necessarily  have  sworn 
to  the  oath  required  by  the  Merchant  Shipping  Act;  but  I 
am  showing  to  your  Honors  that  he  did  riot  so  swear.  Now 
take  the  charge  against  .Mr.  Lubbe,  who  was  a  partner  of 
William  Spring  &  Company,  and  we  tind  that  Lubbe  was 
never  on  the  registry  of  the  ship  at  all.  and  never  was 
required  to  make  or  maile  any  atlidavit  as  alleged. 

Mr.  Wairen: — Was  she  never  registered  in  the  name  of 
William  Spring  when  Lubbe  was  his  partnei  < 

Mr.  Peters: — I  am  answering  your  aigument,  and  your 
Goiillt^Kfition  is  that  Lubbe  himself  made  tliis  atlidavit. 

Mr.  Warren:  -1  never  did. 

Mr.  Peters:--Yes,   you  did;  with   reference  to  Charles 
SjjHng. ■ 

*  Mr.  Wnrren's  Atgiimetit,  p.  7B6. 


lUO 


(Mr.  Peters'  Aigiimeut  in  Reply.) 

Mr.  Warren: — No,  VV^illiani  Spring. 

Mr.  Pet  ns:- The  ship  was  it-gisUued  in  tlie  name  of 
Williatn  Spring  and  Peter  Franiiis,  as  far  back  as  1878,  and 
it  stood  in  these  names  until  IKSi).  There  is  not  a  tittle  of 
evidence  to  |)r<>ve  that  in  1878  Jiiibhe  had  anythii., ;  to  do 
whatever  with  the  jtartnershii  of  William  Spring  <Sc 
CJonipany. 
lo  Mr.  Dickinson:  -  Did  the  changes  in  the  title  appear  on 
the  registry? 

Mr.  Peters:     Certainly. 

Mr.  Dickinson:  — Don't  you  have  to  have   an   affidavit 
every  time  yon  change? 

Mr.  Peters: — I  am  reading  the  registry  and  there  is  no 
change  in  the  registry. 

On  the  I'Jth    June,  1878,  this    vessel   was  registered  in 
the  name  of  William  Spring  and  Peter  Francis,  who  were 
in  partnersiiip  under  the  firm  name  of  William  Spring  & 
2o  Company. 

Mr.  Waiien: --Who  wafc  the  other  partner  of  William 
Spring  &  Company? 

Mr.  looters:— 1  wish  my  learned  friend  would  not  interrupt 
(juiteso  nmch.  If  you  choose  to  I  will  sit  down  and  allow  you 
to  make  any  remarks  you  like,and  I  shall  then  go  on  witli  ray 
argument  as  if  you  had  not  spoken.  I  am  pointing  out  that 
in  1878  the  vessel  was  registereil  in  the  name  of  William 
Spring  &  Company.  There  is  evidence  that  Lubbe  was  in 
the  firm  .at  one  time,  but  there  is  no  suggestion  and  no  evi- 
3odence  that  he  was  in  the  firm  in  1878.  Tlie  affidavit  on 
which  this  ship  was  registered  was  made  in  1878,  and 
therefore  it  is  a  reckless  charge  for  my  learned  friend  to 
say  that  William  Spring  or  Lubbe  or  anybody  else  did 
make  an  aflidavit  which  was  not  true  in  1878.  I  again 
refer  your  Honors  to  some  other  remarks  by  the  learned 
junior  counsel  to  show  that  our  witnesses  were  dealt  with 
unfairly,  and  that  there  was  a  slur  cast  upon  their  evi- 
dence without  any  reason  wliatever.  Mr.  Warren  at 
another  part  of  his  argument  says: 

4*-'  "  Xhe  teHtimony  of  Captain  Paxton  furnishes  the  sole  basis  for  this 
"  claim  against  the  United  States,  and  I  ask  your  consideration  of  the 
"  testimony  of  Captain  Paxton." 


He  was  speaking  of  the  claim  of  the 
Mr.    Wavren:--!    was    speaking  of 

"Wanderer." 
Mr.  Peters: — Very  well,  that  is  immaterial 

friend  continues  in  his  statement: 


'  Black  Diamond." 
the  claim   of    the 


My  learned 


"  I  call  your  Honors'  attention  to  this  factagain,  that  Captain  Paxton 
50  "  took  the  witness  stand  in  Victoria,  and  testified  in  regard  to  these  oc- 
"  currences  on  the  western  coast  of  Vancouver  Island,  and  then  left  the 
' '  City  of  Victoria  without  saying  a  word  about  this  charter  party,  and 
"  it  was  not  until  such  a  time  Lad  elapsed  that  page  1833  of  this 
"  Record  was  printed  that  the  United  States  was  allowed  after  many 
"  difficult  attempts,  to  examine  a  copy  of  this  charter  party.  Is  the 
"  testimony  of  that  man,  who  we  believe,  advances  a  claim  before 
"  this  High  Commission  that  is  entirely  flctitious,  to  be  taken  as  a 
"  basis  for  awarding  damages  by  your  Honors."* 

The  inference  which  my  learned  friend  wishes  your 
Honors  to  draw  from  that  statement  is  that  Captain  Pax- 
'^°ton,  by  malice,  forethought  and  intention  omitted  to  tell 
your  Honors  that  the  vessel  was  chartered  to  go  to 
Shumagin  Island,  and  that  Captain  Paxton  did  this  for 
tlie  pui'pose  of  making  his  claim  larger  than  it  ought  to 

•  Mr.  Warren's  Arguinont,  |(.  70fi. 


•Ill 


nil 

(Mr.  Peters'  Argument  in  Koply.) 

be.  Now,  I  really  fail  to  aeo  whore  (?iiptain  Paxton  did 
anything  very  terrible  there.  Ah  a  matter  of  fact  Mr. 
Paxton  ga\.^  his  evidence  before  this  Court,  and  he  gave 
it  fairly— he  gave  it  well— and  there  was  no  sujrgestion 
that  he  was  telling  anything  that  was  incorreet.  Ho  was 
not  asked  about  this  charter  party;  it  was  a  matter  that 
he  perliaps  consideied  immaterial.     It  never  was  brought 

loto  his  attention  in  any  way  whatever,  and  yet  you  are 
asked  on  the  statement  of  counsel  and  without  any  evi- 
dence to  sustain  it,  that  this  witness  was  knowingly 
guilty  of  sitp2)ressio  rerL  which  is  just  as  bad  as  if  he 
swore  to  something  false.  I  say  that  tlicn'O  is  no  evidence 
at  all  on  the  Record  to  show  that  Captain  Paxton  did  not 
tell  the  truth,  and  there  is  no  reason  why  he  should  be 
charged  with  suppressing  the  truth. 

Again,  when  the  learned  counsel  for  the  United  States, 
Mr.  Warren,  was  making  some  remarks  on  the  evidence 

2oof  Jaujes  D.  Warren,  in  connection  with  what  they  call 
the  Frank  claims,  he  spoke  as  follows: 

"Idonotloae  sight  of  the  fact  that  Warron  Hworo  that  Giitman 
"  owned  the  Hchoouer,  nor  do  I  cnre  what  he  Bwore  to  in  that  re^^ard, 
"  for  James  D.  Warren  know  that  if  he  swore  that  Alexander  Frank 
"  owned  one-half  of  the  bottom  of  that  Hhip,  that  Frank's  claim  would 
"  go  down." 

I  say  that  that  is  another  reckless  statement  made  by 
counsel.  Upon  what  evidence  does  he  make  that  state- 
ment?   Is  it  not  a  fact  that  the  United  States  themselves 

^  did  not  raise  the  (juestion  of  the  United  States  ownei-ahip 
until  18!)2,  and  that  the  question  never  was  presented  to 
them  until  18S!>.  Yet  in  view  of  that,  you  are  asked  Nj 
believe  tiiat  a  statement  made  by  J.  L).  Warren  in  1887, 
before  the  question  even  arose,  was  made  for  the  purpose 
of  helping  out  the  Frank  claims,  and  that  he  knew  that 
if  he  had  made  any  other  statement  Franks'  claims  would 
go  down.  When  Captain  Warren  n)ade  that  statement, 
he  could  not  have  known  that  the  question  of  American 
citizenship  would  be  raised,  and  there  was  no  object  in 

'^  his  doing  anything  but  telling  the  truth.  I  think  we 
have  the  right  to  complain  of  remarks  of  that  kind  with 
regard  to  our  witnesses  by  the  counsel  for  the  United 
States.  My  learned  friend,  Mr.  Warren,  also  made  some 
attacks  on  the  credibility  of  Owen  Thomas. 

I  venture  to  say  that  Owen  Thomas  impressed  your 
Honors  as  a  witness  who  told  the  truth,  and  told  it  fear- 
lessly and  honestly.  On  the  first  occasion  he  appeared  in 
Court,  Owen  Thomas  was  just  out  of  an  hospital,  and  far 
more  fit  to  be  in  his  bed  than  on  the  witness  stand.     On 

'° the  second  occasion,  he  gave  his  evidence  verv  '.\A\y  and 
fairly,  and  ho  turned  out  to  be  a  witness  w  ;>  r  jt  only 
wanted  to  tell  the  truth,  but  who  had  a  clear  recollection 
of  what  had  occurred,  and  whom  it  was  very  hard  to 
puzzle.  It  seems  to  me,  your  Honors,  that  when  any  of 
our  witnesses  gave  evidence  which  was  strongly  against 
the  case  of  the  United  States  counsel,  their  line  of  conduct 
was  to  :ibuse  those  witnesses.  Now,  with  reference  to 
Owen  Thomas,  Mr.  Warren  said  in  his  argument: 

60  "I  desire  to  call  your  Honors'  attention  to  who  this  Owen  Thomas 
"  ia  and  what  we  know  of  him.  Owen  Thomas  is  the  man  whom 
"  William  Munsie  brought,  when  he  was  an  invalid,  from  the  hos- 
"  pital  to  the  court  room,  to  give  testimony  concerning  the  trip  of  the 
"  '  Carolena '  on  the  coast  of  Vancouver  Island  in  the  spring  of  the 
"  year  1886.  What  did  William  Munsie  prodiice  this  witness  for? 
"  He  actually  produced  him  himself,  because  the  testimony  shows  that 


III-. 


M  'i 


to 

thu 

for 

(> 


lO 


2<) 


(Mr.  Pc'tprs'  Argument  in  Reply.) 

"  Mr.  MuuRitt  wi'iit  to  tho  hoHpital  utid  brouftht  TIkiiiiuh  from  tlioro  t 
"  thi)  cimrt  room,  'flic  witm-HH  wiiw  proililcnl  aiul  tOHtitlcil  thiit  th 
"  '  (/'iiroli'iia  '  tlitl  no  truilinK  on  the  coiiHt  in  the  H|)rinf(  of  IHNti,  iiuil  fo 
"  tlui  purjioMo  of  cHtiililiHliiiiK  tlmt  tlioHC  Hnpiilii'H  put  on  hoiird  tli 
"  '  Citroli>nii  '  were  moIcIv  fur  ii  voyiiK"  to  Ki'lirniK  Hni. "  * 

A}>:<iiii: 

"  Uw<!n  TlioniUH  ix  ithHolutcIv  contriKJicti'd  on  the  niont  mittcrinl  mat- 
ti'r,  a»  to  vvlit'tlinr  or  not  it  K''«iit  i|Uiintitv  of  provisionN  wore  put  on 
the  '  (!aroUnia  '  for  who  in  lti-hrinf{  Hva,  or  for  uho  on  tlm  woHt  coaBt 
"  of  Vuuconvor  Islund  in  trading  or  in  Honhnjif-  "  t 

Ami  amain  Mr.  VVarien  said: 

"  This  captain  who  in  oonviclt'd  of  k'^''"K  fulHu  tt'Mtiniony  in  an- 
"  other  ciiHc  putu  language  on  tln>  Itei'ord  licri-  wliicii  is  not  an  con- 
"  oluHivr  nn  a  reliable  witnosH  could  liavc  muili'  it,  Init  it  Ih  concluHivo 
"  onouKh  for  our  pur|)om'H."  | 

My  Icaiiit'd  tricnd,  .Mi.  W'aricn,  (|iH)ti's  sonHMjf  the  evi- 
denci'  (it  Captain  Uwcn  Thomas,  and  he  (juotes  it  to  sup- 
port tiic  case  of  thu  United  States.  Then,  again,  Mr. 
Warren  contiuned  to  make  tiiither  reckless  charf^es.  He 
.said: 

"  Tl;is  captain,  wlio  is  convicted  of  swearing  falnoly  once  in  a 
"  while  to  lu'lp  out  this  nnui  Frank,  niakcH  some  reference  to  Morris 

"  MOHH."   i. 

Now,  yoMi'  Honors,  my  learned  friend  tries  to  make  out 
tiiat  Owen  Thomas  gave  his  evidence  having  some  fraud- 
ulent pnrpo.-e  in  view.     There  is  nothing  whatever  on  the 

3o]?ecoi(l  to  show  that.  1  say  that  such  cliarges  are  reckless 
and  unfounded.  1  say  that  the  .statement  n  -  by  my 
learned  triiiid  Mr.    W'arien  in  regard  to  onr  >ses  are 

reckless.     1  cainiof  hetter  prove  this  than  I'  'asting 

his  opinion  of  Charles  Sprnig's  t>vidence  with  iMi'.  Dickin- 
son's opniimi  of  the  evidence  of  the  same  witne.ss  and  then 
leave  your  Honors  to  judge  hetween  them.  At  page  898 
of  the  Kecoid  you  will  tind  that  when  C'has.  Spring's  tiist 
case,  namely,  the  "()nward''  was  heing  conducied,  my 
I'^arued  friend  .Mr.  Dickinson  made  these  remarks  about 

40 the  witness. 

"  It  is  ii<>rliaps  due  to  tlie  United  States  to  say  that  the  counsel  of 
'•  that  (iovernnicut  are  vcrv  greatly  iniiircsscd  with  the  good  faith  and 
'•  fairness  of  the  claimant  in  ])reKeuting  his  claim.  Wo  shall  do  little 
"  more  than  our  duty  in  i>uttiug  in  here  some  inatterH  that  may  aid 
"  the  testimony  given  Ity  this  claimant  in  enabling  the  Commi.sHionerB 
"  to  arrive  at  a  proper  assessment,  that  is  so  far  as  the  value  of  tho 
"  ship  and  |)roper\y  seized  arc  concerned.  *  *  *  l  may  aj,j  to 
"  what  1  have  stated  that  it  is  a  matter  of  regret  to  tlu^  counsel  of  the 
"  United  States  that  this  claim  cannot  be  more  promptly  dispohsd  of, 
"  and  the  owners,  wi<oevcr  they  arc,  as  the  Commissioners  tind,  com- 
-Q  "  pensated  more  pron.ptly  than  is  ))0!.siblo  under  the  cii'oumstances. " 

Heie  we  have  Mr.  Dickinson  standing  up,  and  properly 
standing  up.  and  1  was  glad  tt;  see  him  do  so, 
and  stating  that  the  witness  Charles  Spring  had  made 
a  very  favorable  impression  on  his  mind.  Mr. 
Dickinson  told  your  Honors  that  he  was  impressed  with 
the  fair  manner  in  which  that  claim  was  ])re.sented  and 
uiged  by  Mi'.  S|)ring.  and  yet  you  have  Mr.  Dickinson's 
associate  counsel  conung  here  and  saying  that  Charles 
Spring  is  a  man  who  ought  not  to  be  helieved  because  he 
60  made  a  false  oath. 


*  Mr.  Wanin's  Aij^iiiir'UI,  |i.  76U. 
•f  .Mr.  Wmicn'H  Argiiiiii'nI.  p.  77o. 
t  Mr.  \\'n,'i('nV  ArKUiiR'nt,  p.  781. 
^  Mr.  Wiii-rcirrt  .\i'};iiiiiciit,  |i.  78('i. 


II  1» 

(Mr.  IV'ters'  Argument  in  Reply.) 

Mr.  Dickinson:— Charles  Spring  very  frankly  tacknowl- 
edged  that  ho  nitide  this  false  statement. 

Mr.  Peters: -This  njaj;  bo  a  fitting  occasion  to  apply  the 
remark  vviiich  Mr.  Dickinson  applied  to  tho  British  coun- 
ael  the  other  day.  I  might  remind  him  that  "a  house 
divided  against  itself  cannot  stand,  hut  must  fall."  We 
have  the  senior  counsel  for  the  United  Htates  saying  one 
lo thing  and  his  associate  counsel  saying  another. 

Mr.  Warren:—!  read  Spring's  false  atlidavit  out  of 
Volume  5,  )>ago  60. 

Mr.  Dickmson:— Mr.  Spring  frankly  explained  that,  and 
when  on  the  stand  took  those  statements  hack.  That  is 
the  reason  I  referred  to  liim  in  such  terms. 

Mr.  Peters:— I  will  refer  your  Honors  to  what  Spring  did 
Bay  with  regard  to  that.  If  a  man  makes  a  statement 
here  or  there  that  does  not  quite  agree  with  another  state- 
ment made  later  on,  it  is  not  right  that  he  should  he 
20  charged  by  counsel  with  perjury.  Ono  must  take  all  the 
facts  and  circumstances  into  consideration,  and  one  must 
try  to  find  out  whether  the  wrong  statement  was  made 
intentionally  or  not.  If  a  man  is  to  be  found  fault  with 
because  his  statements  at  one  time  appear  inconsistent 
with  his  statements  at  another  time,  then  I  am  afraid  a 

f|reat  many  of  us  would  be  in  trouble  in  the  course  of  our 
ives. 
At  one  o'clock  the  Commissioners  took  recess. 


30  

At  half  past  two  o'clock  the  Commissionera  resumed 
their  seats. 

Mr.  Peters: — When  the  Court  adjourned  I  was  about  to 
refer  to  a  statement  made  with  reg.'rd  to  Charles  Spring. 
It  is  contended  by  my  friend,  Mr.  Warren,  that  a  contra- 
diction exists,  or,  perhaps,  oven  more  than  that,  that  Mr. 
Spring  made  a  misstatement  in  an  affidavit  which  was 
made  by  him  on  the  18th  day  of  October,  1886,  which  will 

40 be  found  in  Volume  5  of  the  American  Heprint,  page  60. 
The  affidavit  in  question  was  an  affidavit  which  mcluded 
both  the  claini  of  the  schooner  "Onward"  and  the  claim 
of  tho  schooner  "  Favourite."  Paragraph  6  of  that  affida- 
vit is  the  one  in  question,  and  that  paragraph  reads  as 
follows:  "That  I  liave  also  paid  and  incurred  liabilities  con- 
"  nected  with  the  arrest  of  the  said  vessel  and  in  defense 
"  of  the  master  and  crew  for  illegal  and  other  expenses 
"  $1,000;  and  I  also  claim  ^fi,000  damages  because  the 
"  officer    in    command  of    the  United    States  schooner 

50"  'Corwin'  as  she  passed  the  'Favourite'  ordered  her 
"  to  cease  sealing,  which  she  did,  and  thereby  lost  her 
"  season." 

My  learned  friend  assumes  that  that  is  meant  to  be  a 
statement  that,  immediately  after  the  "Favourite"  was 
warned,  she  sto|>ped  sealing,  and  that  she  never  took  a 
single  seal  after  that  date,  '"hat  I  submit  to  your  Honors 
is  rather  a  strained  construction.  In  addition  to  that  it 
must  be  remembered  tliat  Mr.  Spring,  when  making  this 
affidavit,  was  simply  making  the  statement  second  hand. 

60  He  was  not  himself  on  board  the  "Favourite  ;"  whatever 
information  he  had  nuist  have  been  obtained  from  the 
captain  of  the  "Favourite"  and  Alexander  McLean;  and 
you  must  remember  that  in  the  books  which  were  pro- 
duced by  Alexander  McLean  there  is  no  statement  to 
show  that  any  seals  were  caught  after  the  vessel  was 


.114 


(Mr.  Peters'  Argument  in  Reply.) 

warned.  Let  nie  then  refer  you  to  wliat  Mr.  Spring  said 
with  regard  to  that  affidavit  when  he  was  cross-examined 
about  it  hy  the  counsel  for  the  United  States,  at  page 
1309  of  the  Recoi-d  : 

"  Q.  He  told  vou  that  he  bad  taken  seals  right  np  to  the  day  he  had 
"  left  Behring  Sea,  did  he  not?  " 

IQ     The  "he"  referred  to  is  Captain  Alexander  McLean. 

"  A.  I  don't  think  so. 

"  Q.  Will  you  swear  that  he  did  not?  A.  Yes,  I  will  swear  that  he 
"  didn't.  Yes,  1  feel  very  positive  on  that  point  that  he  didn't  tell  me 
' '  that  he  didn't  toke  seals  up  to  the  time  of  leaving  Behring  Sea — up  to 
"  the  19th;  in  fact,  so  far  as  dates  are  concerned,  I  don't  think  he  said 
"  anything  at  all  about  it. 

"  Q.  Then  you  do  not  want  to  have  the  Commission  understand 
"  that  you  are  putting  Captain  McLean  in  a  bad  light  about  that?  A. 
"  No,  I  wouldn't  wish  that  at  all;  but^I  am  speaking  as  I  feel  at  pres- 
"  ent. 

"  Q.  He  gave  vou  the  entire  amount  of  his  catch,  as  has  been  testi- 
20  "  fled  to  here,  did  he  not?    A.  Yes,  I  think  so. 

"  Q.  And  all  you  say  now  is  that  you  do  not  know  that  Captain  Mc- 
"  Lean  told  you  that  he  took  seals  on  the  19th  day  of  August,  or  any 
"  other  particular  day?    A.  No. 

"  Q.  But  he  did  tell  you  he  took  seals  after  he  was  warned?  A. 
"  Yes. 

"  Q.  And  you  know  that,  do  you  not?    A.  Yes. 

' '  Q.  And  Captain  Alexander  McLean  has  testified  here  as  to  his  ex- 
"  act  catch  in  Behring  Sea  in  the  year  1886  on  the  "Favourite,"  has  he 
•'  not?    A.  I  think  so." 

I  have  siinph'  the  remark  to  make  that  that  is  but  an 

3°  incident.  There  is  nothing  to  show  that  Mr.  Spring  made 
that  statement  with  an  improper  motive;  it  is  simply  a 
general  statement  put  in  the  affidavit.  1  would  make  this 
remark  with  regard  to  an  affidavit  of  this  kind  -  and,  as  a 
matter  of  fact,  it  applies  to  every  affidavit —the  affidavit 
is  drawn  by  one  person  and  sworn  to  by  another;  that 
tlie  remark,  made  time  and  time  again  by  your  Honors 
at  Victoria,  that  evidence  on  affidavits  is  very  seldom 
satisfactory,  ap|)lics  to  this  case.  The  question  was 
perhaps  never  brought  to  his  mind  whetiier  or  not  a  few 

40 seals,  or  a  number  of  seals  had  been  caught  after  the 
waining;  but  when,  in  cross  examination  on  the  jwint, 
his  attention  is  clearly  brought  to  that  i)articular  point, 
Mr.  Spring  has  no  hesitation  whatever  in  explainingexactly 
the  position  lie  took,  and  shows  that  Mr.  Dickinson  was  per- 
fectly justified  in  the  statement  he  made  at  the  close  of 
tlie"  Onward  "  case, that  Mi-.  Spring  was  a  man  who  brought 
his  claim  before  the  Commission  fairly  and  honestly,  and 
he  only  wislied  he  could  take  some  steps  to  hasten  a 
prompt   settlement  of   the  case.     So  I  think,  so  far  as 

?o Spring  is  concerned.  I  have  sufficiently  answered  all 
charges  which  have  been  made  by  my  friend.  Mr.  War- 
ren. 

The  Commissioner  on  the  part  of  the  United  States:— 
I  do  not  want  to  bother  you,  but  there  is  one  thing  I  in- 
tended ti)  have  asked  before  and  I  will  do  so  now;  at  page 
107  of  the  Brilish  aigunient  you  give  credit  for  187  seals 
taken  between  the  Kith  and  I'Jth,  why  should  j'ou  not  give 
cre(iit  for  those  taken  on  the  2d  and  3d  of  August?  She 
was  warned  on  the  1st. 

^O      Mr.  Beitpie:— The  morning  of  the  2d. 

Mr.  Warren:— She  was  warned  at  iJ  o'clock. 
The  Commissioner  on  the  i)art  of  the  United  States: — 
On  the  left  hand  page  you  will  find,  at  about  line  35, 
under  date  of  August  1st,  the  log  shows  "  mi(hiight  an 
American  steamer  spoke  us." 


^"^^ItTi 


i..n» 


1115 


(Mr.  Peters'  Argument  in  Reply.) 

Mr.  Beiqne: — We  claim  only  from  August  4:th. 
The  Commissioner  on  the  part  of  the  United  States:  — 
You  give  credit  from  August  4th. 

Mr.  Peters: — That  is  all  we  claimed  for.  We  only  claim 
from  August  4th. 

The  Commissioner  on  the  part  of  the  United  States: — 
I  see  your  point  now.     Whether  your  claim  is  right  is  an- 

lo  other  thing. 

Mr.  Peters: — To  the  present  time  your  Honors  will  see 
I  have  taken,  in  the  first  place,  the  evidence  with  regard 
to  the  question  as  to  whether  or  not  Bechtel,  Frank  and 
McLean  were,  or  we  "e  not.  United  States  citizens,  and 
then  I  began  to  deai  with  the  question,  if  they  were 
United  States  citizens,  what  interest,  if  any,  had  they  in 
the  particular  vessels  in  dispute;  and  I  have  to  the  pres- 
ent time  dwelt  on  that  portion  of  the  case  relating  to 
Becl'tel.     The  remarks  I  have  made  with  regard  to  the 

20 attacks  on  other  witnesses  only  came  up  incidentally — 
not  exactly  relating  to  that  point— hut,  in  connection  with 
the  charges  made  against  Bechtel,  I  wish  to  go  back  to 
the  original  line  on  which  I  started,  and  that  was,  to 
examine  the  exidence  and  see  whether,  as  a  matter  of  fact, 
American  citizens  had,  or  had  not,  the  interest  in  the  ves- 
sels the  United  States  alleged  they  had.  I  have  done  with 
Bechtel,  and  I  now  come  to  the  case  of  Frank.  Our  al- 
legation is,  on  the  facts,  that,  with  regard  to  the  "  Black 
Dir.mond "    in    1880,    Frank    had   no  interest  whatever 

30  in  the  ve -sel;  nor  in  her  cargo  or  her  ven- 
ture. The  interest  Frank  is  alleged  to  have 
in  that  vessel  arises  from  his  partnership  in  the  firm  of 
Gutman  and  Frank,  and  our  allegation  is  that,  in  1886, 
neither  Mr.  Gutman  nor  Mr.  Frank  had  any  interest 
whatever  in  the  "Black  Diamond."  That  is  our  allega- 
tion, and  I  shall  proceed  to  prove  that  later  on.  In  the 
year  1889  only  two  vessels  were  seized,  the  "Black 
Diamond  "and  the  "Lily."  We  allege  that  Frank  had 
no  interest  whatever  in  either  of  those  vessels,  or  in  their 

40 cargoes,  or  in  their  ventures,  or  in  either  of  them,  our 
allegation  being  that  all  the  interest  that  the  firm  of  Gut- 
man &  Frank,  or  Gutman,  had  was  parted  with  to 
Morris  Moss— I  think  on  the  8th  day  of  November,  1888 
— and  that  in  1889  B^ank  had  nothing  to  do  with  the  ship 
at  all. 

Mr.  Warren:— That  date  is  very  important,  and  it  had 
better  be  stated  coi'rectlv.     It  is  t!>i  10th. 

Mr.  Peters:— The  Sth  is  the  date  of  the  bill  of  sale,  I 
think. 

50  Mr.  Warren:  -  The  10th,  and  :  Imi.  is  the  evidence  in  the 
Record. 

Mr.  Peters:-  1  am  stating  my  general  position  that,  in 
1889,  Frank  had  no  interest  whatever  in  the  ships.  That 
leaves  only  one  other  year  to  be  accoiMitod  for  and  that  is 
1887;  and,  so  fiir  as  that  year  is  concerned,  the  ship  inter- 
fered with  was  the  "  AUhmI  Adams."  So  far  as  sbw  is 
concerned  we  allege  that  in  that  yeai'  Frank  was  inter- 
ested in  the  venture  as  one  of  the  firm  of  Gutman  & 
Frank,  but  that  he  was  not  interested  in,  and  did  not  own 

6(1  any  part  of  the  bottom  of  the  ship.  These  are  the  posi- 
tions we  take  on  the  que.^^tion  of  fact.  I  will  refei'  your 
Honors,  first,  to  the  (jnestion  as  to  whether  in  1889  Frank 
had,  or  hail  not,  any  interest  in  tlu'se  vessels,  that  is,  in 
the  "Blr.ck  Diamond"  and  the  "Lily."  This  question 
turns    on    the   point    whether  or  not    o"    the    10th    of 


Al  .11 


1116 


(Mr.  Peters'  Argument  in  Reply.) 

November,  1888,  a  sale  of  the  vesssels  was  made  to 
Morris  Moss.  The  facts  are  that  these  two  ships 
had  been  held,  as  it  was  alleged,  as  part  of  the  estate 
of  Gutnian  &  Frank.  We  do  not  admit  that  fact  al- 
together, but  it  was  so  alleged.  But  two  ships  stood  in 
the  name  of  Jacob  Gutman  on  the  register,  after  his  death. 
Frank  found  himself  with  certain  assets  belonging  to  the 

10  firm  and  with  certain  liabilities  to  pay,  the  liabilities  ex- 
ceeding the  assets,  or  very  nearly  equal.  Frank  desired 
to  close  up  the  estate  and  get  rid  of  his  own  liability  for 
the  debts;  and,  in  order  to  do  tliis,  he  made  an  arrange- 
ment with  the  executor  of  Jacob  Gutman,  whereby  he 
agreed  to  take  the  whole  estate,  becoming  himself  respon- 
sible for  all  the  debts.  This  was  the  first  step;  it  was 
necessary  that  an  arrangement  of  this  kind  should  receive 
the  sanction  of  the  court,  which  sanction  would  certainly 
be  granted  unless  some  good  cause  should  be  shown  against 

20  it.  Mr.  Warren  contends,  and  this  is  the  first  point,  that 
on  the  9th  of  November,  1888,  Moritz  Gutman,  executor 
of  Jacob  Gutman,  by  a  bill  of  sale,  transferred  the  title  of 
the  two  ships,  the  '"  Lily  "  and  the  "  Black  Diamond,"  to 
Alexander  Frank;  and  that  the  transfer  from  the  executor 
of  Gutman  to  Mor.is  Moss,  being  made  subsequently  to 
Frank's  bill  of  sale,  was  invalid.  The  answer  is  that  this 
assignment  to  Frank  only  operated  as  an  agreement  to 
transfer,  oul  is  perfectly  consistent  with  Frank's  s^tory, 
which  is,    that  he  bought  the  whole  of  the  assets  of  the 

30  estate  and  then  began  to  dispose  of  them  as  quickly  as  he 
could.  Your  Honors  will  see  what  I  mean,  when  I  say 
that  that  agreement  between  the  executor  of  Jacob  Gut- 
man's  estate  and  Frank  only  operated  as  an  agreement  to 
transfer;  that,  so  far  as  the  transfer  of  a  ship  was  con- 
cerned, it  is  quite  a]»parent  that  no  transfer  could  be  of 
any  use.  to  place  the  ship  really  at  the  disposal  of  tiie 
transferee,  so  that  he  could  deal  with  it  as  he  liked,  unless 
it  was  in  conformity  with  the  statue  lelating  to  Merchant 
!Shi|)ping,  so  that  it  could  be  legistered  as  a  bill  of  sale  of 

40  the  ship.  Anytliing  informal  could  not  be  registered;  a 
transfer  of  shi|)s  not  ii'  the  form  required  by  the  Merchant 
Shipping  Act  simply  amounted  to  an  agreement  to  trans- 
fer. 

Mr.  Dickinson: — Are  you  going  to  show  the  document 
where  Frank  agreed  to  i)ay  all  the  debts? 
Mr.  Peters:  —He  swore  to  it. 
Mr.  Lansing:— There  is  no  agreement. 
Mr.  Warren:— Let  us  see  the  testimony  or  the  affidavit. 
Mr.  Petei's:— 1  refer  to  the  testimony  of  Frank,  which 

50 1  will  read,  if  there  is  any  doubt  about  it.  It  is  in  the 
evidence  of  Frank;  1  do  not  say  the:e  is  any  affidavit 
about  it.  He  was  liable  for  the  debia,  and  what  he  wanted 
to  do  was  to  get  the  assets  in  order  to  clear  himself  of 
liability  by  virtue  of  being  a  partner  in  that  firm.  I  will 
come  to  that  in  a  moment.  This  is  shortly  Frank's  story: 
He  says;  "  I  was  a  paitner  in  this  firm;  1  was,  therefore, 
liable  for  the  debts,  that  there  were  certain  assets;  the 
business  had  gotten  into  rather  strained  circumstances;  I 
wanted  to  get  rid  of  that  liability,  so  I  bougiit  all  the 

60  assets,  became  liable  lor  all  the  debts,  and  wanted  to  wind 
the  thing  up."  He  wanted  to  go  to  San  Francisco  and  go 
into  other  business  there  and  get  out  of  business  in  Vic- 
toria altogether.  Now,  what  does  he  do  first?  Here  is 
tiie  evidence  my  learned  friend  asks  for  on  the  point  of 


1117 


M  I 


lO 


He   had   uo   liabilities;  noue 
partnerHbip   interest?     A.  So 
A.  So  far  as  I  know. 


(Mr.  Peters'  Argument  in  Keply.) 

the  debts,   Hecoid,  page   10!>7,  line  ;U,  cioss-exainination 
of  Mr   Frank: 

"Q.  Ami  j'ou  claim  now  that  vou  did  not  own  the  'Lily 'or  the 
"  '  Blai'k  Diamond,'  or  any  intei-cst  in  them,  during  Jaeol)  Gutinan'a 
"  lifetime,  but  after  his  death  you  set  uj)  a  claim  for  them?  A.  The 
"  estate  was  insolvent  1  knew  at  the  time,  and  as  I  was  financially  re- 
"  sponsible  for  the  debts  of  the  (Hincern,  to  protect   my   interest   I 

claimed  an  interest  in  them. 

"  Q.  And  did  you  pay  all  the  liabilities  of  the  estate  of  Jacob  Gwt- 
"  man?    A.   I  paid  all  the  liabilities  of  the  tirm  of  (jutman  it  Frank. 

"  Q.  Tiiat  was  all  the  estate  that  Outman  had — that  interest?    And 
"  all  his  liabilities  were  settled  too?     A. 
"  came  in  that  I  recollect  about. 

"  {).  All  the  estate  consisted  of  this 
"  far  as  I  know. 

"  Q.  And  you  paid  all  the  liabilities? 

"  Q.  When  did  you  pay  them,  prior  to  November,  1888,  or  have  you 
"  been  payiuff  them  since?  A.  I  do  not  know  when  I  paid  them.  The 
"  lai-Rcst  amount  was  to  the  tirm  of  S.  H.  Frank  &  Company,  a  firm  of 
"  which  1  am  a  member,  and  1  do  not  know  when  I  paid  them.  I  took 
20  "  mv  own  time.  l)eeause  I  was  in  no  hurry  to  pay  them.  I  could  not 
"  tell  wlien  1  did  i>ay  thom,  but  I  settled  with  everybody  I  know. 
"  There  is  no  claim  against  the  firm  of  Gutman  &  Frank,  of  which  I 
''  was  a  mi'Uiber. " 

Mr.  Lansing: —Where  is  the  agreement,  Mr.  I'etets,  to 
pay  the  liabilities^ 

Mr.  Peters:  It  is  in  tiie  petition  1  think;  we  will  read  it. 
Now.  what  I  was  getting  at  is  this:  Frank's  statement  is, 
that  he  took  over  the  whole  of  the  estate  and  he  had  to 
pay  all  the  liabilities,  and  that  he  did  that,  not  with  tlie 

3°intention  of  going  on  with  the  business,  but  he  intended 
to  get  rid  of  the  business  altogether.  He  says  that  be- 
foi'e  it  was  a'tnally  closed,  before  the  whole  thint;-  was 
settled  up,  that  he  hail  made  ariangiinents  with  Morris 
Mess  to  sell  the  vessels  to  him.  The  vessfis  stood  as 
registered  in  thr  name  of  .lainb  (intman;  thei'efore  in 
order  to  transfer  a  legal  estai  in  those  vessels,  ;i  l)ill  of 
sale  was  necessary,  and  only  ■'  w  ,is  necessary;  that  was 
a  bill  of  sale  from  the  execiilni  of  .[acob  (futman  to 
Morris  Moss. 

4°  The  point  we  are  on  now  is  not  wliethci  Frank  before 
1888  had  an  interest  in  the  vessel,  but  whether  after  that 
year  he  had  any  interest.  Mis  stoi\-  is  that,  ui  order  to 
close  ui)  the  estate,  he  made  a  bargain  to  take  over  all  the 
assets  and  that  his  next  step  wa-^  to  dispose  of  t lie  assets 
as  quickly  as  he  could.  In  order  to  dispose  of  those  vessels 
it  was  not  possible  to  take  a  Inll  of  sale  first  to  Frank  and 
then  from  Frank  to  Moiris  Moss;  the  only  proper  mode 
was  to  take  a  bill  of  sale  direct  from  the  executor  of  Jacob 
Gutman  to  Morris   Moss,   and   that  was  done,  and    that 

5^ passed  the  legal  title.  Now  my  learned  friend  wants  the 
eviileiice  that  tlie  consideration  for  a  general  assignment 
was  the  payment  of  the  liabilities.  1  refer  your  Honois 
to  Appendix  B,  page  l'I4  of  Kxhibits.  which  is  the  petition 
of  Moritz  (intman,  the  executor  of  the  estate  of  .Jacob 
(lUtnian,  asking  loi'  authority  to  carry  out  the;inange- 
meut  that  he  had  made  with  Fraid<,  and  in  paragraph  9 
of  that  petition   I  find  the  following: 

"  That  I  have  leceivcd  an  oft'er  from  .Vlcxaudcr  Frank,  the  jiartner 
"  of  tlie  said  J.icob  (iutmau,  deceased,  in  tlie  said  tirm  of  '  Outnuin  & 
"  Frank.'  for  tlie  purchase  of  the  interest  of  the  said  .Jacob  Gutman, 
"  ileoeosed,  in  the  assets  of  tiie  said  iirm  {excepting  thcreo\it  the  said 
"  claim  of  *2(t,4:);i  against  the  United  States  authorities)  which  was 
"  for  claims  arising  prior  to  188',t,  thi>  consideration  otl'ered  by  the 
"  said  i\lexauder  Frank  for  such  purchase  being  the  assumption  by 
"  the  said  Alexander  Frank  of  all  the  liabilities  of  the  said  f^rm." 


6o 


Ills 


(Mr.  Peters'  Argument  in  Reply.) 

I  think  that  is  satisfactory.  1  say  that,  on  the  face  of 
the  transaction,  on  the  face  of  Franit's  evidence,  it  is  a 
perfectly  reasonahle  story.  If  we  liad  found  Frank  re- 
maining in  Victoria  foi'  years  afterwards  and  going  on 
with  the  busine.^s  of  (lUtnian  ct  Frank  there  might  be 
some  groiind  for  suspicion;  hut  when  we  find  Frank  wind- 
ing up  every  particle  of  business  that  the  firm  of  Gutman 

IO&  Frank  had  up  to  that  time,  winding  up  the  business  at 
Victoria,  and  doing  it  during  the  year  immediate!'-  follow- 
ing— we  know  a  business  cannot  be  wound  up  ai  once — 
winding  up  tlie  dilferent  trading  stations  that  he  had  on 
the  west  coast  of  Vancouver  Island,  is  it.  not  a  confirma- 
tion of  his  story  that  he  made  tliis  arrangement  for  the 
purpose  of  winding  up  that  estate  and  getting  clear  of  the 
liabilities^  The  story  on  its  face  is  reasonable.  My  learned 
friend  pi-oceeds  further  to  raise  a  point  of  a  very  technical 
nature,  namely,  that  we  have  no  evidence  of  the  bill  of  sale 

20  to  Morris  Moss,  and  that  the  record  we  produce— that  is, 
the  register  we  produce — is  not  priiiid  facie  evidence  that 
such  sale  is  valid.  Well,  my  learned  friend  is  in  error  in 
that  particular.  The  Merchant  Shipping  Act,  under 
which  these  acts  are  recorded,  expressly  provides  that  the 
entries  in  the  registry  shall  bnj>riiiia  facie  evidence;  and 
all  through  this  case,  if  your  Honors  will  remember, 
whenever  they  wanted  anything  further,  whenever  they 
wanted  a  bill  of  sale  or  anything  of  that  kind,  if  we  could 
Hud  it,  we  produced  it.     The  act  to  which  I  will  refer  you, 

30  the  Merchant  Shipping  Act — I  will  give  the  section— Sec- 
tion CVII.,  1854,  settles  the  point.  You  see  there  is  a  lit- 
tle misapprehension  here,  perhaps,  in  the  words.  The 
document  which  we  produce  here  is  not  merely  the  regis- 
ter that  the  ship  carries  when  she  is  at  sea,  but  it  is  a  rec- 
ord of  all  transactions  concerning  the  ship  which  have 
been  made  since  she  was  first  registered,  and  that  is  pro- 
vided for  by  the  Merchant  Shipping  Act,  Section  CVII., 
as  follows: 

"  Every  Register  of  or  Doi'laration  made  iu  purHuauce  of  the  Second 
'  Part  of  this  Act  in  respect  of  any  British  ship  may  be  proved  in  any 
'  Court  of  Justice,  or  before  any  Person  having  by  Lav  or  by  Oon- 
'  sent  of  Parties  Autliority  to  receive  Evidence,  either  by  the  Produo- 
'  tion  of  the  Original,  or  l>y  an  examined  Copy  thereof,  or  by  a  Copy 
'  thereof  purjtorting  to  bo  certified  under  the  Hand  of  the  Begistrar 
'  or  other  Person  having  the  Charge  of  the  Original;  which  certified 
'  Copies  he  is  hereby  recjuirod  to  furnish  to  any  Person  applying  at  a 
'  reasonable  Tiiiic  for  the  same,  upon  payment  of  One  Shilling  for 
'each  such  certitied  C!opy;  and  every  such  Register  or  Copy  of  a 
'  Register,  and  also  every  Certificate  of  Registry  of  any  British  Ship, 
'  l)urporting  to  be  signed  by  the  lU^gistrar  or  other  proper  Officer, 
'  shall  be  received  in  evidence  in  any  Court  of  Justice  or  before  any 
'  Person  having  by  Law  or  by  ('ouseut  of  Parties  Authority  to  receive 
"  Evidence  as  priiiiu/ncie  Proof  of  all  the  Matters  contained  or  recited 
"  in  such  Register  when  the  Register  or  such  t!opy  is  produced,  and 
"  of  all  the  Matters  contained  iu  or  endorsed  on  such  Certificate  of 
"  Registry,  and  purporting  to  bo  aiitheuticated  by  the  Signature  of  a 
"  Registrar,  when  such  certificate  is  produced." 

Mr.  Lansing:  -Excuse  me  a  moment;  do  you  claim  that 
municipal  laws  of  CJreat  Rritain  bind  an  intei-national 
court  as  to  priiuii  f(tvie  evidence* 

The  Conuuissioner  on  the  part  of  tiie  United  States:— It 

f)ois  well  settled  so  far  as  the  rules  of  evidence  are  concerned. 

We  .'ire  proceeding  with  regard  to  iiiles  of  evidence.    Was 

it  (tointed  out,  Mr.  Peters,  at  \'ict()ria  that  you  relied  on 

this  entry? 

Mr.  Peters:— Certainly,  your  Honor.     We  put  this  in, 


40 


50 


1110 


I 


(Mr.  Peters'  Argument  in  Reply.) 

and  wlienever  they  wanted  bills  of  sale,  or  anything  of 
the  kind,  we  produced  them  if  we  had  them. 

The  Conmiissioner  on  the  part  of  the  United  States: — 
Was  it  pointed  out  that  you  relied  on  this'< 

Mr.  Peters:— Most  unquestionably  so,  your  Honor. 

The  Commissioner  on  the  i)i)rt  of  the  United  States:— 
Were  you  requested  to  product  the  bill  of  sale?    Did  you 
10 read  this  entry  into  the  Record  out  there;  especially  call 
attention  to  it'i 

Mr.  Peters:   -No,  I  put  the  whole  Record  in. 

The  Comn)is8ioner  on  the  part  of  the  United  States: — 
But  this  particular  entry  you  did  not  put  in? 

Mr.  Peters: — No  particular  entries  I  think;  but  we  put 
them  all  in.  As  a  matter  of  fact  I  have  the  bill  of  sale, 
and  can  produce  it  if  it  is  wanted.  This  question  Mr. 
Warren  raises  here  is  a  technical  question  raised  for  the 
first  time. 
20  The  Commissioner  on  the  i>art  of  the  United  States: — 
What  I  want  to  know  is,  whether  this  was  not  the  first 
time  he  could  raise  it;  whether  he  understood  out  there 
that  you  intended  to  rely  on  this  entry. 

Mr.  Peters: — We  put  it  in  the  whole  Record.  If  they 
thought  for  a  moment  there  was  any  want  of  proof  of 
that  kind,  they  only  had  to  ask  for  a  document,  and  any 
document  we  had  we  would  produce;  and  we  are  willing 
to  produce  it  now. 

The  Commissioner  on  the  part  of  the  United  States:— 
30  Does  that  Merchant  Shipping  Act  control  the  courts  of 
Canada  on  rules  of  evidence? 

Mr.  Peters:— Certainly,  your  Honor-.  If  the  Commis- 
sioners are  desirious  of  looking  at  the  bill  of  sale,  we  can 
produce  it. 

The  Commissioner  on  the  pait  of  the  United  States: — 
I  have  not  the  slightest  curiosity  about  it.  I  want  to 
understand  where  the  parties  are,  that  is  ail.  The  whole 
Record  is  in  evidence.  The  question  we  have  to  consider 
is  whether  we  can  discredit  Mr.  Frank. 
40  Mr.  Peters: — Yes,  and  I  venture  to  say  in  an  enquiry  of 
this  kind  a  technical  objection  of  this  kind  should  have 
no  weight  whatever.  Ijet  us  see  what  evidence  there  was 
on  the  registry. 

The  Commissioner  on  the  part  of  the  United  States: — I 
remember  he  testified  positively  that  he  parted  with  that 
interest. 

Mr.  Peters:— Absolutely,  and  his  statement  was  that  he 
bought  that  business  with  the  intention  of  selling  it  out 
as  quickly  as  possible. 
50  Tne  Commissioner  on  the  part  of  the  United  States:— 
His  testimony  was  subject  to  some  criticism  because  he 
took  rather  a  peculiar  position  with  reference  to  the  as- 
sets. But  he  testified  positively  that  he  parted  with  these 
vessels. 

Mr.  Peters: — The  part  that  is  subject  to  some  criticism 
is  that  part  where  he  says  that  although  he  made  an  aflft- 
davit  that  these  vessels  belonged  to  Frank  and  Gutman, 
he  said  afterwards,  as  a  matter  of  fact,  that  they  did  not 
belong  to  B^-ank  and  Gutman,  but  to  Gutman  alone,  but 
f>o  that  he  was  in  that  position  that  he  had  to  get  the  assets 
to  p.ay  the  debts  of  the  firm,  and  so  after  the  death  he 
claimed  them.  Now,  we  find  by  this  Record,  the  follow- 
ing entry:  "  Moritz  Gutman,  November  10th,  1888,  at 
10  o'clock  A.  M."— that  is  the  date  of  the  Registry  of  the 
bill  of  sale,  dated  10th  of  November,  1888-  "  to  Morris 


:l:i.' 


iiao 

(Mr.  Peters'  Argument  in  Reply.) 

Moss  of  Victoria,  merchant  ''—and  that,  unfU  r  tlie  terms 
of  the  Merchants'  Shipping  Act,  is  prima  fucic  evidence  of 
the  bill  of  sale  mentioned. 

Mr.  Dickinson:— Did  I  understand  your  Honor  to  say, 
as  a  ruling,  that  the  registry  was  prima  facie  evidence? 

The  Commissioner  on  the  part  of  the  L'nited  States:  I 
did   not   lule  upon  it  at  all;  I  merely  said  that  we  were 

10  proceeding  upon  the  rules  of  evidence,  and,  of  course, 
we  had  to  he  govei  ned  by  the  rules  of  evidence  existing 
in  some  country. 

Mr.  Dickinson:— VVe  have  presented  authority  that  hy 
the  rules  of  common  law  tlie  register  is  not  evidence  of 
title;  we  presented  many  authorities,  including  the  view 
of  Lord  Stowell  in  support  of  our  contention. 

The  Commissioner  on  the  part  of  the  United  States:— 
But  they  produce  a  statute  here.  The  leason  the  matter 
did  not  attract  my  attention  at  Victoria  was  because  we 

2ohad  the  positive  evidence  of  Frank,  in  which  he  said  that 
he  got  theequitalde  title.  Tlien  came  the  question  whether 
he  parted  with  it,  and  he  testified  positively  that  he  did 
part  witli  it,  so  that  the  matter  of  registry  did  not  attract 
my  attention. 

Mr.  Dickinson:— We  tliink,  on  the  other  hand,  that  we 
have  shown  by  the  Kecord  that  Frank  never  parted  with  it. 
Ap  regards  the  title,  the  bill  of  sale  was  in  evidence  ^how- 
ing  that  the  title  went  to  him— confirmed  bv  the  Probate 
Court. 

30  Mr.  Peters:— My  learned  friend  is  in  error  when  he  says 
that  the  title  passed— confirmed  by  the  Probate  Court. 
The  document  that  was  given  assigned  all  the  assets  of 
Frank,  an<1  that  was  registered  in  one  of  the  registry 
offices  apjdying  to  the  registration  of  ordinary  personal 
property,  and  had  no  application  whatevei'  to  the  transfer 
of  the  vei^stl,  and  could  by  no  po.ssibility  have  been  re- 
corded in  the  shipping  otrice,  and  had  no  more  effect  than 
an  agreement.  If,  for  instance,  aflei'  that  document  had 
been  signed,  Frank  had  been  a  British  subject  and  wanted 

40  to  get  himself  pnt  on  the  re)L;istry  as  owner  of  that  ship, 
and  Mr.  (hitman  the  executor  had  refused  to  execute  a 
bill  of  sale,  he  could  not  have  recorded  the  original  assign- 
ment, and  would  have  been  obliged  to  have  recourse  to 
some  Court  of  Chancery  to  compel  Gutman  to  execute  a 
proper  document  in  puisuance  of  tin;  first  one. 

Mr.  Dickinson:  -But  you  do  not  deny  that  you  could 
pass  property  in  a  ship  without  registration. 

Mr.  Peters:  -According  to  your  view,  you  could  pass 
ownership  in  a  ship  by  worti  of  mouth. 

50  Mr.  Dickinson:  -It  would  be  too  al)surd  to  contend  that 
vou  could  not  pass  property  in  a  ship  in  either  country 
without  registiation. 

Mr.  Peters:— You  cnidd  pass  a  right  of  action.  You 
could  pass  such  ;in  interest  in  a  ship  that  would  enable 
you  afterwards,  by  going  into  couit.  to  force  the  assignor 
to  give  you  a  title  that  you  (ould  lecord.  But  you  could 
not  pass  a  legal  estate  as  contradistinguished  from  an 
equitable  estate  and  as  against  other  people.  For  in- 
stance, it  is  clear  that  although  that  assignment  to  Frank 

60 was  executed,  if  the  executor,  Moiitz  (lutman,  had  one 
or  two  or  ten  days  afterwards  exei  uted  a  proper  hill  of 
sale  and  recordeil  it  under  the  terms  of  the  Merchants' 
Shipping  Act  to  some  third  peisoii,  that  third  person 
would  have  taken  a  c<>mplete  and  absolute  title  as  against 


In*" 


1121 


I'M 

■|ii 

T 

■i 

(Mr.  Peters'  Argument  in  Reply.) 

Frank  or  anybody  else— and  as  they  did  to  Morris  Moss  in 
this  case. 

Mr.  Warren: — Without  the  authority  of  the  Probate 
Court  which  had  formerly  ratified  the  other  transfer. 

Mr.  Peters: — Now,  there  is  a  point  that  the  Honorable 
Commissioner  of  the  United  States  called  my  attention  to. 
You  ask  whether  this  question  about  production  of  the 
lo bill  of  sale  came  up  at  Victoria.  It  was  called  to  their 
attention.  Let  me  refer  to  page  1K14  of  the  Record,  at 
the  top  of  the  page.  Mr.  Wan-en  was  putting  in  the  de- 
fense in  the  case  of  the  "Black  Diaruond,"  and  he  was  there 
putting  in  this  affidavit  of  Moritz  Gutmau  that  was  made 
at  the  time  of  this  transfer,  and  to  which  we  have  just 
refeired.  At  that  time,  on  page  1814,  he  makes  these 
remarks: 

"  That  is  dated  on  the  9th  day  of  November,  1888,  and  in  that  con- 
"  nection  we  desire  in  defence  to  note  on  the  Record  that  the  bill  of 
20  "  sale,  which  is  contained  in  the  rej»ister  tendered  in  evidence  by  the 
"  counsel  for  Great  Britain,  bears  date  the  10th  of  November,  1888, 
"  and,  of  course,  Mr.  Frank,  not  being  a  British  subject,  as  has  been 
"  admitted  on  the  Record,  the  bill  of  sale  could  not  be  made  to  Mr. 
"  Frank." 

Now,  we  have  the  statement  that  they  were  taking 
notice  of  the  very  entry  we  have  in  the  registry.  Surely 
it  cannot  be  allowed  to  them  to  take  objection  tliat  we 
had  not  put  in  the  bill  of  sale,  when  they  were  objecting 
at  that  time  that  the  bill  of  .sale  was  of  such  a  date  that 

30  the  other  one  was  prior  to  it.  We.  of  coui-se,  also  con- 
tend that  the  Merchants'  Shipping  Act  fully  justifies  us 
in  relying  upon  that  as  evidence.  I  also,  without  reading, 
refer  you  lo  tlie  following  sections  of  the  Merchants' 
Shipping  Act,  ;58,  40,  42,  44  and  55. 

Another  conmient  that  my  learned  friend  makes  is  that 
he  says  that  not  only  wns  that  bill  of  sale  to  Morris  Moss 
after  the  assigimient  to  Alexander  Frank,  and  therefore 
passed  no  title,  but  he  says  also  that  the  application  to 
confirm  the  arrangement  whereby  the  assets  of  the  estate 

40  were  iianded  over  to  Frank  was  made  on  the  14th  of 
November,  which  was  after  tlie  bill  of  sale  to  Moss. 
There  is  notliing  in  that,  as  this  application  was  merely 
a  formal  application  made  to  confirm  tlie  settlement  be- 
tween Frank  and  the  administrator  and  would  not  affect 
Moss,  as,  so  far  as  he  was  concerned,  he  was  not  subject 
to  the  order  of  tlie  Court  — tlie  only  man  who  was  subject 
to  the  order  of  the  Court  lieing  tlie  administrator. 
The  object  of  tliis  application  was  clear  -  here  was  an 
administrat()r  with  an  oi^tate  in   his   bands.      He  makes 

50a  lump  sale  of  the  whole  tiling.  He  sells  the  whole 
estate  in  consideration  of  the  liabilities  being  paid.  That 
is  a  transaction  whicii,  if  tlieie  were  outside  creditors 
who  di(l  not  get  jiaid,  might  be  brought  up  on  review  by 
them,  and  it  was,  to  say  tlu^  least,  prudent  that  before  it 
was  conii>leted  the  adni'iiistratorsjiould  lay  the  facts  be- 
fore the  Court  and  in  advance  ask  assent  to  the  arrange- 
ment. I  do  not  know  wlietlier  that  would  protect  him, 
but  it  was  a  jirecautionary  measure.  Frank  was  no  party 
to  the  application.     It  was  an  application  made  solely  for 

^tlie  protection  of  tlie  administrator. 

Again,  my  learned  friend  contends  tiiat  the  mortgage 
given  to  Gutnam  and  Frank  for  sl,:i50,  which  was  given 
years  before,  in  some  way  or  otbei'  sliows  a  fraud.  He  calls 
it  a  fraudulent  mortgage.  Now,  I  just  point  ont  that  that 
is  the  first  time  wo  hoard  anything  about  that  mortgage 


I'lHi 


1122 


Htm.t 


(Mr.  Peters'  Argument  in  Reply.) 

being  fraudulent.  It  does  not  appear  to  have  any  con- 
nection with  the  price  of  the  vessel.  A  strange  fact  relat- 
ing to  it  is  that  Frank  was  not  cross  examined  about  it.  It 
is  only  in  argument  for  the  first  time  that  we  hear  any  al- 
legation that  it  was  a  fraudulent  mortgage.  There  is 
nothing  in  the  record  to  show  that  there  was  anything  in 
the  slightest  degree  wrong  about  that  mortgage.  Further 
10  than  that,  it  appears  by  the  register  that  that  mortgage 
was  duly  paid  and  discharged. 

Mr.  Warren:— Do  you  say  that  mortgage  was  not  given 
at  the  time  of  the  purchase? 

Mr.  Petei's: — I  say  that  there  is  nothing  to  show  that 
it  had  anything  to  do  with  the  purchase  of  the  ship. 

Mr.  Warren: — It  is  dated  the  same  day. 

Mr.  Peters: — I  do  not  care  about  that.  There  is  no  com- 
ment niade  on  it  until  they  come  here  in  argument. 

The  Commissioner  on  the  part  of  the  United  States: — 
20  What  attracted  my  attention  to  it  was  that  it  should  ba 
allowed  to  stand  on  the  vessel  after  it  was  sold  to  Morris 
Moss. 

Mr.  Peters:— There  is  a  very  clear  answer  to  that.  It 
appears  that  the  mortgage  got  lost,  and  under  the  Mer- 
chant's Shipping  Act  when  a  mortgage  is  lost  you  have  to 
get  an  Order  in  Council  to  discharge  it,  and  this  one  is 
discharged  by  Order  in  Council  after  some  considerable 
delay. 

The  Comn)issioner  on  the  part  of  the  United  States: — 
30  What  attracted   my  attention  to   this  was  that  it  was 
allowed  to  lemain  there  until  the  vessel  was  afterwards 
sold,  and  then  it  Avas  discharged. 

Mr.  Peters: — There  is  nothing  inconsistent  in  that. 
Fiank  did  not  testify  that  the  mortgage  was  paid  off  when 
he  sold  the  schooners  to  Moss. 

The  Commissioner  on  the  jjart  of  the  United  States: — 
It  would  attiacc  the  attention  of  a  lawyer — the  fact 
that  the  title  was  cleaned  up  on  the  subsequent  sale. 

Sir  C.  H.  Tupper:— The  probability  is  that  getting  the 
40  order  to  discharge  it  would  involve  some  time. 

Mr.  Peters:  -  We  are  without  evidence  as  to  when  it 
was  paid. 

Mr.  Lansing: — The  receipt  is  dated  the  19th  day  of  No- 
vember, 1889. 

Mr.  Warren:  — It  was  not  put  in  the  liability  of  the 
estate 

Mr.  Peters:  -What  has  that  got  to  do  with  it?  That  is 
of  small  consequence. 

The  Conmiiasioner  on  the  part  of  the  United  States: — 
50  It  might  be  an  important  circumstance  and  it  might  not. 

Mr.  Peters: — Mr.  Frank  says,  in  effect — True,  1  had  an 
int.;rest  in  the  firm  of  Ctutman  and  Frank  up  to  1888. 
I  then  began  to  dispose  ot  the  assets  and  to  pay  the  liabil- 
ities, and  the  first  step  was  to  sell  the  ships,  and  I  sold 
them  to  Morris  Moss.  Remember,  Morris  Moss  was 
not  un  unlikely  person  to  buy  ships.  He  was  handling 
vessels  constantly.  There  is  nothing  strange  in  tlu'  fact 
that  he  should  have  bouglit  it,  and  bought  it  subject  to  a 
mortgage,  and  there  is  nothing  irreconcilable  in  the 
f>ofact  that  it  should  be  paid  oft'  when  Victor  Jacobson 
bought  it  after  wauls. 

The  Commissioner  on  the  part  of  the  United  States: — 
There  is  nothing  irreconcilable  about  it,  but  it  is  a  circum- 
stance— that  is  all. 

Mr.  Peters:— It  is  a  strong  circumstance  in  connection 


1123 


(Mr.  Peters'  Argument  in  Rtply.) 

with  this  matter  that  when  Frank  was  on  the  stand  he 
was  not  examined  in  such  a  way  as  to  suggest  that  the 
mortgage  was  not  perfectly  correct.  I  take  the  position 
tliat  you  never  can  assume  a  fraud.  You  must  jirove  it. 
When  you  come  to  a  (juehtion  of  the  kind  now  raised,  with 
respect  to  that  mortgage  it  lay  upon  the  other  side  to 
prove  tiiat  in  some  way  it  was  wrong  or  fraudulent.  It 
lo  was  the  duty  of  our  learned  friends,  when  Frank  was  on 
the  stand,  to  cross-e.vamine  him  to  show  that  tiiere  was 
something  wrong  about  it.  Frank  is  not  asked  about  it, 
and  not  being  asked  about  it,  how  canyon  presume  that 
there  is  anytliing  wrong  about  it?  Another  point  that 
,they  sought  to  make  is  that  the  old  certificate  of  registry 
remained  on  board  the  ship.  There  is  no  conclusion  to  be 
drawn  from  that,  because  it  is  apparent  that  they  could 
take  out  a  new  register  at  any  time,  and  as  the  vessel  was 
always  kept  in  the  name  of  a  liritish  subject,  the  pos 
2oition  of  affairs  would  not  in  any  way  liave  been 
altered  by  taking  out  a  new  certificate,  whenever 
a  change  in  the  register  occurred.  It  is  more 
regidar  to  do  so,  but  it  is  not  always  done,  and  is  certainly 
not  necessary.  Then,  again,  there  is  no  evidence  worthy 
of  consideration  tiiat  Frank  had  anything  to  do  with  out- 
fitting the  vessels,  or  either  of  them,  in  188l».  All  that 
there  is  is  the  evidence  that  lie  took  passage  in  her  to 
Clayoquot,  which  is  quite  consistent  with  the  vessel  being 
owned  by  some  other  person,  and  that  a  few  skins,  which 
30 were  caught  on  the  coast,  weie  left  at  Frank's 
place  of  business  on  the  coast.  But  that  does  not  prove 
anything  moi-e  than  that  they  took  that  means  of  dispos- 
ing of  skins  before  setting  out  for  Belning  Sea.  It  cer- 
tainly would  have  been  foolish  to  have  taken  them  into 
Behriiig  Sea,  where  they  would  have  been  subject  to 
seizure.  For  aught  we  know,  Frank  .may  have  bought 
them.  The  circumstance  is  entirely  too  cimall  to  be  looked 
upon  as  proof  that  Frank  owned  the  vessel  or  had  an  in- 
terest in  her  ventiue. 
40  A  point  is  also  made  by  the  United  States  counsel  that 
in  18SD  one  of  these  vessels  in  question  left  f,ome  provisions, 
not  used  on  the  Bebring  Sea  trip,  at  F'.anl.'s  station  at 
Clayoquot  for  which  the  master  says  he  t.iok  a  receipt, 
and  the  conclusion  is  drawn  by  my  learned  friend  that,  be- 
cause the  master  took  a  receipt,  it  meant  that  they  were 
afterwards  to  be  accounted  for  to  Frank.  I  can  just  as 
well  draw  the  conclusion  that  he  took  the  recoiiJt  in  order 
to  show  to  Morris  Moss  what  he  did  with  the  provisions. 
Again,  we  show  clearly  that  in  1889  Moss  hired  the  mas- 
50  ter.  That  is  proved  by  the  master.  It  is  assumed  by  my 
learned  fiiends  that  lie  hired  the  captain  as  agtnt  for 
Frank.  That,  however,  is  mere  assumption.  I'rank's 
story  from  the  beginning  is  that  he  wished  to  close  the 
business  out,  and  in  order  to  do  that  he  had  to  take  time. 
His  story  is  that  be  sold  these  ships  immediately  and  that 
all  his  business  in  Victoria  after  1888  was  simply  that  of 
closing  up  the  old  business,  a'ld  he  finally  succeeded  in 
doing  this  some  time  in  the  year  IHei).  A  further  attempt 
to  cast  doubt  on  Frank's  evidence  is  made;  he  was  cross- 
do  exa  mined  on  this  line;  he  was  asked,  "  Will  you  swear  that 
Morris  Moss  or  the  estate  owns  this  claim?"  Frank  says,  "I 
will  not  swear  anything  about  it."  They  say,  "Tliat  is 
most  extraordinary:''  What  is  Frank's  story?  That  he 
sold  the  ships  in  1888  to  Morris  Moss,  and  that  he  never 
had  anything  more  to  do  with  them  and  has  been  living  in 


, !  f  ■  P: 


;|f  :i; 


IIlH 


H-i* 


(Mr.  Peters'  Argument  in  Rei)ly.) 

San  Francisco  ever  since.  Is  it  to  be  supposed  lie  could 
state  exactly  whether  the  estate  of  Moss  had  a  claim  in 
regard  to  these  vessels.  He  simply  says,  "I  don't  know 
anything  about  it;  it  is  not  my  business." 

J  finally  say  that  there  is  nothing;  in  the  examination  of 
Frank  or  in  anythinji;  that  he  said  upon  that  point  which 
throws  any  doubt  upon  our  contention  as  to  his  state- 
loment;  that  is  so  far  as  ISHJt  is  concerned,  and,  if  I  am 
correct,  that  disposes  of  the  two  vessels  seizud  in  that 
year. 

Now,  let  us  consider  Frank's  position  in  the  year  ISSO. 
Mv  friend  relies— and  I  fully  admit  that  he  has  the  riglit  to 
rely  — upon  the  statement  made  in  our  brief,  from  which  it 
might  be  inferred  that  in  18S<»  Frank  had  an  interest  in 
the  ventures  of  these  vessels.  I  wish,  however,  before 
leaving  the  point  I  was  just  discussing,  to  say  that  in  ad- 
dition to  the  evidence  of  Frank  upon  this  point,  of  the 
20  registry,  we  have  the  affidavit  of  Morris  Moss,  who,  if 
you  remember,  was  dead,  and  whose  affidavit  was  lead, 
in  which  he  positively  swears  that  the  claim  belonged  to 
him. 

Mr.  Lansing:— Registered  owner? 

Mr.  Peters:  -He  swears  that  he  is  the  registered  owner 
and  makes  the  claim  on  his  own  behalf. 

Now,  coming  to  the  year  188(i,  if  you  turn  to  page  -47  in 

my  brief  you  will  find  the  following,  and  it  is  partly  on 

this  that  my  friend  relies.     I  say  that  that  admission  was 

30  not  intended  to  go,  and  does  not  go  as  far  as  they  contend. 

At  line  24  the  statement  referred  to  is  made  as  follows: 

"  In  tho  raso  of  tlio  'Blnck  Diamond,'  No.  5,  *  *  *  the  title 
"was  in  a  British  subjei't,  but  the  vesHelK  were  operated  for  the 
"  benefit  of  n  trading  tirm  at  Victoria,  oomj)ORed  of  the  owner  and 
"  one  Alexander  Frank,  who  was  a  native  born  citizen  of  the  United 
"  States." 

Now,  my  leained  friend  takes  that  as  an  admission  that 
in  tS8fi  Frank  was  interested  as  a  member  of  that  firm  in 
that  vessel,  and  possibly  he  has  some  ground  for  so  con- 

40  tending,  but  the  evidence— and  after  all  it  is  the  evidence 
which  must  be  looked  to — does  not  liyany  means  bear  out 
that  contention.  VV'e  do  not  admit  that  in  the  year  1886 
Grutman  and  Frank  had  any  interest  whatever  in  the 
"  Black  Diamond." 
I  will  first  give  you  the  entries  from  the  registry.     We 

find  them  as  follows:  "  On  the  Kttb  June,  1884 " 

Mr.  Warren: —You  claim  that  this  registry  was  put  in 
to  prove  the  title  in  the  '"  Black  Diamond"  case,  No.  5.  I 
would  like  to  see  the  reference.    The  testimony  was  given 

50 by  Henry  I'a.Kton  to  show  who  owned  the  ship. 

Mr.  Peters:-  1  am  not  going  to  foiget  any  evidence  in 
the  Record.  I  am  perfectly  satisfied  to  read  every  single 
part  of  the  evidence.  I  wish  to  point  out  that  this  ques- 
tion of  whether  the  vessel  was  or  was  not  owned  in  part 
or  whf)lly.  actually  by  a  subject  of  the  United  States  is 
part  of  my  leained  friend's  defense.  It  was  for  him  to 
make  it  out.  It  is  for  us  to  look  at  the  Record  and  see 
whether  he  has  made  it  out.  We  find  that  he  has  not.  I 
find   by   the   Record  that  on   the   ll)th   June,   1884,    the 

<^'C"  whole  of  the  "Black  Diamond"  stood  in  the  name  of 
Joseph  Quadros.  I  find  that  on  February  24,  J  886,  a  bill 
of  sale  dated  16th  day  of  January,  1886,  was  recorded. 
That  bill  of  sale  was  from  Joseph  Quadros  of  13  shares 
to  Henry  Paxton.  We  find  that  there  was  no  other  change 
of  ownershi)),  so  far  as  the  registrj^  shows,  until  November 


1125 


(Mr.  Peters'  Argiiineiit  in  Rejtly.) 

8,  18S8.  when  a  bill  of  sale  was  legisteied,  dattMl  3d  Janu- 
ary, 1887,  from  Joseph  Quadrog  to  Jacob  Gutnian. 

Mr.  Ijunsin};: — Was  Qiiadros  a  claimant? 

Mr.  Peters: — Just  allow  mo  to  make  my  position  clear. 
Do  you  object  to  paying  Quadros?  Then  1  find  another 
bill  of  saio  registered  on  Novoniber  s,  1H88,  and  dated 
10th  January,  1S88,  from  Henry  Paxton  to  Jacob  Gut- 
louian,  of  thirteen  shares  The  point  that  I  wisli  to  make 
is  that  this  record  shows  that  Outman  never  had 
any  interest  in  the  ship  until  the  3d  January,  1887,  and  as 
Frank  oidy  claims  to  have  an  interest  in  this  ship  as  a 
partner  of  Jacob  (iutman,  it  follows  that  until  the  3d 
January,  18!S7,  Frank  had  no  interest  in  that  ship.  That 
is  the  way  the  niatter  stands  on  the  Jiecord. 

Mr.  Lansing: -Now,  Mr.  Peters,  if  you  would  allow  mo 
— who  is  the  claimant? 

Mr.  Peters:-  And  in  confirmation  of  that  point,  and  to 
2o8how  its  strength,  t  will  point  out  t(^  you  that  the  claim 
for  the  "  Black  Diamond  "  was  never  treated  as  belong- 
ing to  Gutman  even  by  his  own  e.xecntor  I  refer  your 
Honoi-8  to  the  petition,  which  I  have  already  referred  to,  of 
Mr.  Gutman  for  the  confirmation  of  tlie  sale  of  the  estate 
to  Frank,  which  is  fouud  at  page  214  of  Appendix  B,  Sec- 
tion 8,  of  the  Petition,  is  as  follows: 

"  That  the  said  Arm  of  Outmau  &  Frank  have  a  rlaim  nf^ainst  the 
"  Oovernment  of  the  United  StatcB  of  America  for  the  amount  of 
"  twenty  thousand  four  hundred  and  forty-threo  dollars  (!S20,443), 
30  "  such  claim  being  for  the  seizure  of  a  certain  schooner  known  of  the 
"  name  of  the  'Alfred  Adams  '  and  owned  by  the  said  firm  of  Gutman 
"  &  Frauk,  and  of  certain  sealskins  belonging  to  the  said  firm  and 
"  that  proceedings  have  been  commenced  and  are  now  being  pursued 
"  for  the  recovery  of  such  damages." 

This  is  the  only  claim  referred  to,  so  that  you  have  the 
fact  appearing,  by  the  registry  of  the  ship,  that  she  did  not 
stand  in  the  name  of  Gutn.an  &  Frank,  and  you  have  the 
further  fact  that,  when  the  schedule  of  assets  is  uiade  up 
by  the  executor  of  (iutman,  this  is  not  put  in  as  one  of  the 

40  the  assets.  Now,  my  learned  friends  say,  that  is  very 
true,  but  this  does  not  agree  with  the  evidence  of  Paxton, 
because  Paxton  makes  statements  l)y  which  you  are  bound, 
and  these  statements  of  1 'a xton  do  not  agree  with  your 
theory.  I  say  that  these  statements  of  Paxton  are  recon- 
cilable. You  nmst  remember  that  this  vessel  did  become 
— I  do  not  say  tlie  property  of  (Tutman  &  Fiank— but 
that  Gutman  &  Frank  became  interested  in  the  running 
of  the  vessel,  and  Gutman  became  inteiested  in  her  in 
18k7.  and  the   witness   Paxton    was  examined   as  to  the 

Soownersbip  of  tlie  vessel;  this  is  wliat  they  rely  ou,  at  page 
17.')!t,  just  above  line  tlO: 

"Q.  You  do  not  know  whether  he  ever  sold  anv  or  not?     A.  No. 

"  Q.  When  did  you  see  Mr.  Frank  last?  A.  1  saw  Mr.  Frank  last 
"  in  1«>.)1. 

"  Q.  Did  you  not  see  him  when  he  wus  uj)  hero  within  three 
"  months?    X.  No;  I  have  only  been  here  three  weeks  myself. 

"  Q.  You  spoke  of  Mr.  (lUtman  as  managing  owner?    A.  Yes. 

"  Q.  Who  else  were  you  thinking  of  as  owner?  A.  I  am  the  other 
"  owner. 

"  Q.  Of  the 'Black  Diamond'?    A.  Yes. 
60      "  Q.  At  that  time?    A.  At  that  time." 

They  were  asked  about  the  sales  to  Frank  as  far  down 
as  18t>l. 

Mr.  Warren:- -Gutnian  died  in  1887. 
Mr.  Peters:— I  was  talking  about  Frank. 


I  l'J«l 


10 


(Mr.  Peters'  Arnuineiit  in  Reply.) 

"  Q.  Whom  did  voti  buy  your  intert'Ht  in  tho  'Dlni-k  Diamond  '  of? 

A.  A  mail  uaiiit'd  {jimdroH  or  HomeUiinK- 

"  y.  Wlicrt'  did  lie  livoy    A.  He  livod  u|)  nortli. 

"  Q.   Nortli  wlicro?     A.  Ou  tho  northern  imrt  of  the  Inlnnd. 

"  Q.   Wliere  tlid  you  buy  the  boat?    A.  In  Victoria. 

"  Q.  At  wliiit  tini'eV     A."  It  woh  tho  latter  part  of  1885  or  the  early 

part  of  1880. 

"  Q.  How  niui'h  didyou  buy?    A.  Thirteen  Hharen. 

"  Q.  When'  iloeH  thiH  man  live,  or  where  did  he  live  at  the  time? 

A.   At  that  time  he  lived  here." 


il(>  tolls  tilt' f<torv  jii.st  as  the  liecord  (Ioph.  "1  bought 
in  l«H»i  thiitwii  sliiUfH."  That  is  nil  ho  had.  Tho  rent  of 
the  interest  \v;ih  Quailros'.  VViien  (iutnian  came  into 
the  niattt'i  he  bought  the  rest,  but  in  IHHO  Outman  had 
not  bought.  1  daresay  it  is  quite  possible  tliat  Frank  and 
Gutnian  might  have  had  somotliing  to  do  with  helping  to 
tit  the  vossel  out- doing  the  business  of  the  vessel.  It  is 
evident  that  that  is  what  Paxton  is  referring  to;  his  evi- 
2odence  is  consistent;  lie  says  he  bought  thirteen  shares: 

"  Q.  Where  doeR  this  man  live,  or  where  did  he  live  at  the  time? 
"A.  At  that  time  he  lived  here. 

"  Q.  The  man  from  whom  you  bought?    A.  Yes. 

"  Q.   Where  in  he  living  now?     A.    lip  north. 

"  Q.  Where  iH  up  north — what  town?     A.  Close  to  Alert  Bay. 

"  Q.  What  is  his  first  name?    A.  Joe. 

"  Q.  Did  you  puy  any  cash  for  the  shares  yon  bought?  A.  Part 
"  easu — well,  the  same  as  cash  all  through. 

"  Q.  When  did  Mr.  Outman  buy  his  part  of  the  '  Ulaek  Diamond?' 
"  A.  Some  days  after,  I  think — or  before — I  think  I  l)ought  my  part 
■3Q  "  first.  Quadros  owed  me  considerable  money  and  he  gave  me  these 
"  shares  to  represent  the  money." 

From  Paxton's  evidence  it  appears  that  he  did  not  know 
exactly  when  Uutman's  interest  was  bought,  but  wh(  ,' 
the  registry  comes  to  be  looked  into — and  there  is  no  sug- 
gestion that  there  is  anything  wrong  with  the  registry- 
it  appears  that  (iutman  did  not  obtain  his  interest  uiitil 
the  beginning  of  the  next  year,  namely,  1887.  The  wit- 
ness is  speaking  from  memory,  twelve  years  after  the  oc- 
.Qcurrence,  and  he  says:  "To  tell  the  truth,  I  do  not  know 
whether  he  bought  before  me  or  after  me."  So  far  as  the 
United  States  case  is  concerned,  I  simply  say  the  onus  of 
proof  was  upon  them  and  they  have  failed. 

With  legaid  to  the  interest  of  Alexander  McLean  and 
Daniel  jMcLeaii  in  the  ships  of  which  they  are  respectively 
alleged  to  be  the  actual  owner  in  part  or  whole  that  ques- 
tion has  been  so  clearly  put  before  tho  Commission  that 
it  is  not  necessary  for  me  to  make  any  further  statement. 
And  I  may  say  that,  except  with  regard  to  some  few 
statements  1  shall  make  in  closing  with  regard  to  some 
special  cases,  1  have  very  little  e'  ,.  to  say  with  regard  to 
the  evidence. 

Mr.  Warren:— Can  I  give  two  references  to  the  "  Black 
Diamond  "  without  reading  them? 

Mr.  Peters:— I  have  no  objection. 

Mr.  Warren: — They  are  page  1761,  line  3,  and  the  rest 
of  ]>age  ITtlc  tiiat  you  did  not  read. 

Coninii.ssioner  on    tlu^  part  of   the  United  States:— To 
what  ])ointdoes  the  evidence  I'efer? 
5o     Mr.  Warren:— It  siiows  absolutely  that  the  bill  of  sale 
was  from  Paxton  to  Jacob  Outman  in  November,  1886, 
and  that  he  sold  the  whole  vessel. 

Mr.  Peters:— When  you  come  to  look  at  the  bill  of  sale 
you  will  find  that  the  man  is  a  year  astray.  There  was 
no  reason  for  making  the  bill  of  sale  wrong.     Paxton  was 


50 


ii-j: 


'   I 


(Mr.  I'fteio'  Argument  in  Ivt-ply.) 

not  in  any  difficulty  or  any tliinj,'  of  that  kind.  Th«»  bill  of 
sale  from  I'uxton  to  (hitniun  is  datod  .lannary,  1888. 

ConimisHioner  on  the  part  of  the  United  States:— Mr. 
Peters,  you  a|»parently  -idniittetl  in  your  argument  that 
these  vessels  wtre  operated  for  (he  herietit  of  the  firm. 
That  was  relied  >>\t  in  thearf^innent  on  helialf  of  the  United 
States,  and  your  reply  takes  no  notiee  of  that.  Tliorefore 
lo  it  miKlit  he  assumed  that  they  relied  on  that  admission, 
although  what  they  inferred  from  it  |)eihaps  goes  a  little 
beyond  the  admission  Do  you  wish  to  withdraw  that 
admission? 

Mr.  Peters:-- In  so  fai  as  it  may  he  held  that  Frank  had 
anything  to  do  with  that  one  vessel  in  iSKd,  I  do.  1  fully 
admit  that  in  ls,s7  he  iiad  an  interest.  'I  hat  is  what  I 
stated  at  the  time  1  mad(!  my  oral  arginnenl. 

Commissioner  on  ttie  part  of  the  United  States:— I  think 

this  is  the  first  time  you   have  foiinally  withdrawn  it.     If 

20  there  is  any  objection  on   the  part  of   the    United  States, 

should  you   not   give  some   reason  for  the  condition  of 

things^ 

The  Commissioner  on  the  part  of  Her  Majesty:— I  see 
that  I  have  this  note.  Septendier  Itlth,  Mr.  Peters  .says 
the  admission  as  to  the  "  Black  Diamond  "  is  not  correct 
and  desires  to  withdraw  it. 

Mr.  Peters:— That  is  the  fact.  I  so  stated  in  my  oral 
argimient. 

Commissioner  on  the  part  of  the  United  States:— I  had 
30  forgotten  that  you  formally  withdrew  it.  Judge  King's 
memoranda  is  undoubtedly  correct.  There  was  no  objec- 
tion. 

Mr.  Peters:-  Now  1  want  to  say  a  word  on  the  value  of 
seal  skins. 

V.M.L'E  OK  Skins. 

Mr.  Warren  in  bis  argument  (piotes  from  the  evidence 
of  Munsie,  page  IT),')!*,  line  5.5,  where  it  is  shown  that 
Munsie  purchased  a  portion  of  the  skins  brought  down  in 

4ol88i>  in  the  "  Wanderer,"  from  Behring  Sea,  namely,  the 
catch  of  the  "  Allie  1.  Alger,"  and  from  that  ho  argued 
that  Munsie  was  not  a  sealer  but  a  dealer  in  furs.  But 
this  is  the  only  evidence  there  is  tiiat  Munsie  ever  bought 
any  skins,  anil  tiie  circumstances  of  this  were  peculiar, 
as  that  same  schooner,  the  "Wanderer,"  brought  down 
his,  Munsie's  catch,  of  the  "  Vivu  "  and  "  Pathfinder,"  and 
it  is  a  very  small  bit  of  evidence  on  which  to  found  this 
statement;  it  is  clear  from  all  the  rest  of  the  evidence  that 
Munsie's  business  was  that  of  a  sealer  and  not  a  dealer  in 

^ofurs,  l.ence  Mr.  Warren's  argument,  which  he  founds  on 
that,  that  those  engaged  in  sealing  were  nt)t  shipping  to 
London,  but  oidy  the  dealeis,  is  very  weak  and  not  en- 
titled to  any  ,s(>rious  consideration.  It  does  not  at  all  de- 
tract from  our  theory  that  as  early  as  1888  individual 
sealers  were  sliipi)ing  their  catches  to  London,  and  had 
knowledgt>  of  the  fact  that  London  was  the  real  market 
for  seal  skins.  The  evidence  which  he  had  previously 
quoted  from  page  l8S(i,  line  -i^,  shows  that  Hall,  Goepel  &, 
Co.  were  shipping  in  1S88. 

60  Witii  reference  to  Mi'.  Warren's  argument  on  page  231 
that  Morris  Moss  would  not  have  got  the  London  prices 
for  the  catch  of  the  "  fjily  "  and  the  "  Black  Diamond  "  in 
1889,  on  the  grouml  that  he  was  buying  for  Leibes  &  Co., 
who  were  buying  for  the  purpose  of  manufacture,  it  would 
seem  that  this  is  a  distinction  without  a  ditference,  because 


112S 


I 


(Mr.  Peters'  Argument,  in  Reply.) 

all  the  evidence  sliovvs  that  all  the  skins  manufactured 
were  sent  to  Loudon  to  be  dressed  and  dyed  before  being 
brought  back  to  America.  It  goes  tberefore  without  say- 
ing, that  any  one  engaged  in  the  business  of  buying  skins 
whethei'  for  manufacture  or  resale  on  tlie  London  market 
would  keep  himst>U'  posted  on  the  London  prices,  and  the 
strength  of  our  argument  was  that  Morris  Moss  being  in 

lothe  trade,  and,  necessaiily,  therefore,  having  knowledge 
of  the  London  market,  would  not  take  less  for  his  skins 
at  Victoria  than  he  could  get  by  shipping  to  liondon.  The 
point  is  not  whether  his  principals  were  buying  for 
manufacturing  purposes  or  not,  but  whether  in  the  or- 
dinary course  of  things  he  would  have  the  knowledge 
which  must  have  been  possessed  by  the  trade,  and  in 
view  of  the  fact  that  all  the  business  of  selling,  as  well  as 
dressing  and  dyeing  of  skins  was  done  in  London,  it  seems 
that  the  irrebutable  presum[)tion  must  arise  that  the  deal 

joors  in  furs  would  keep  themselves  posted  on  the  London 
price.  That  would  necessarily  regulate  the  |irice  which 
Lifcbes&  Co.  would  give  in  Victoria  for  skins  to  manufac- 
ture. They  would  not  i)ay  more  than  the  London  i)rice 
for  skins,  because,  if  a  higher  sum  was  asked,  he  could 
buy  at  Lampson's  sales,  skins  for  manufacture  just  as  eas- 
ily as  he  could  buy  them  in  Victoria,  and  would  save 
freight  one  way.  Therefore,  it  would  only  be  connnon 
business  jirudence  to  keep  posted  on  the  London  price, 
and  it  must  be  taken  that  Morris  Moss,  their  agent,  would 

30  have  all  Lampson's  catalogues  and  full  inforniation  as  to 
the  state  of  the  market,  and  he  would  not,  in  his  own 
business,  whatever  he  might  do  for  his  principals,  accept 
less  than  he  could  get  for  his  skins  by  dealing  directly 
with  Lampson's  in  London. 

Questions  of  Law. 

I  shall  now  leave  the  (piestions  of  fact  and  take  up  the 
points  of  the  very  able  argument  of  my  learned  friend, 
Mr.  Dickinson,  in   which  he  deals  with  the  (piestions  of 

'^'-'law.  before  doing  .so,  T  want  to  point  out  that  there 
were  one  or  two  questions  that  arose  in  the  early  part  of 
the  case  that  no  longer  exist.  At  Victoria,  it  was  alleged, 
as  a  matter  of  law,  that  no  person  who  had  died,  since 
these  cases  arose,  had  any  claim  bi'I'ore  this  Commission. 
We  argued  thai  that  was  not  so,  and  the  claim  has  not 
been  put  forward  in  my  learned  friend's  written  brief, 
nor  in  his  oral  arginneiit.  In  fact,  1  understand  he  does 
not  claim  that  that  piinciplt!  applies  between  nations. 
.Another  tpiestidu  that   has  (iisajipeared   is  my  learned 

i'-' friend's  claim  that  a  British  subject  domii;iled  in  the 
L'nited  States  could  not  lie  registered  as  an  owner  of  a 
British  vessel.     That  contention  has  also  disappeared. 

D.\MACiES  NOT   EXAGGEkATKI). 

Now  in  dealing  with  my  learned  friend's  argunit>nt,  it 
is  mv  intention  to  take  up  tirst  the  (piestion  of  damages, 
which  is  distinct  anil  separate  fi'om  the  otliei-  questions, 
aiid  deal  with  that  very  shortly.  There  have  been 
Oocharges  made,  both  in  the  printed  brief  and  in  the  oral 
aigument,  that  the  claims  w<'  make  are  e.xtiavagant 
claims;  that  they  should  be  estimated  at  the  lowest  pos- 
sible amount  on"  that  ground;  that  they  are  far  larger 
than  H"  value  of  the  vessel.  Upon  that  point  1  would 
like  to  .all  vour  Honor's  attention  to  what  some  of  these 


iion. 
not 
ief, 
oes 


112!) 

(Mr.  Pt?ters'  Argument  in  Roplj'. ) 

vessels  do  earn,  and  did  earn  in  the  years  we  are  dis- 
puting about.  Take  tlie  "  Mary  Ellen  "  in  ISSO.  Her  ad- 
mitted catcli  was  2.:?!)r»H(>tils,  Wliicli  at  $0.5(1,  the  juice  ad- 
mitted l)y  the  IJinted  States,  gives  tlie  value  of  $l.'),5ti7. 
The  vessel  was  sold  in  issti,  aieording  to  tlie  Llnited 
States'  argument,  for  4,r)0U  dollars.  So  that  her  gross 
catcli  amounted  to;{.4  times  her  value.   Ii,  ilie  same  year, 

lotlie  "Kavoniite"  (niuglit  2.'i.")!t  seals,  which  would  he 
worth  at  the  United  States  price,  ?(|4.t'>s;{..')0.  That,  you 
must  rememher,  is  up  to  the  4rh  of  August;  she  lett  the 
Sea  August  ITtli.  At  the  United  States'  prices  that  would 
give  the  value  of  !t^I4.(i8;5.  She  was  sold,  according  to  the 
United  States'  argunuMit.  for  !Si'..0(>i).  just  as  shecame  from 
tlie  Sea.  So  that  her  catch  w;is  ('(jual  to4.s!)  times  her 
value. 

The  "  I'athlinder"  in  1887  was  w.irned  out  on  the  17th 
of  August,     She  caught  ti.UOU  seids.  which  at  the  United 

20 States' price  would  amount  to  sil.uoi*.  or  1.70  times  the 
price  of  the  v.due  of  the  ship.  The  price  of  the  shi|)  was 
*«,428. 

The  "  Favourite  '"of  1SS7,  lowest  catch  mentioned  in  Mr. 
liansing's  table  was  l.(!84  seals,  which  at  $5, So  would 
amount  to  .i;(>,'i62.  which  is  over  three  times  the  value  of 
the  vessel. 

riu^"Viva"in  KSHit  caught  2,  iso  seals,  and  the  price 
realized  was  ^W  a  skin,  s-j:5.itso.  She  cost  at  '•  Vic;- 
toria,"  when  new,  >;!>,0(io,  .so  that  her  catch  was  2.<i<)  times 

30  what  she  cost  new.  The  pi'ices  for  this  catch  are  not 
im;iginary,  hut  were  taken  fiom  the  actual  account  of 
seals.  So  that  3'ou  have  some  little  idea  of  the  value  of 
the  industry  and  the  amount  of  money  that  the  vessels 
might  have  made  if  they  had  gone  on.  This  one  state- 
ment is  (piiti.' sutTicient  to  taki;  away  the  charge  hy  my 
leaiiied  friend  that  tlu'  claims  are  greatly  e.vaj 


iggerate<l. 


Intkkkst. 

Now  leaving  that  matter  1  come  to  the  question  whether 
40 or  not  we  ;ire  entitled  to  recover  interest.  1  have  already 
cit(Ml  the  .luthoritii's  usually  relied  njiou  in  international 
cases  on  the  point  that  inteiest  forms  a  part  of  a  jusl  com- 
pensation as  hetweeii  nations.  I  have  referied  to  the 
(Jeneva  casi>.  where  that  principle  is  e.xpi'e.ssly  laid 
down,  and  to  the  case  of  the  •'Canada."  decided  hy 
Mr.  Thornton,  the  opinions  of  Mr.  Wirt.  Attorney-tien- 
eral  of  the  United  States— these  arc  all  set  out  in  my  brief 
and  fully  discussed  in  my  learned  friend's  brief,  so  that  I 
do  not  propose  to  go  over  them  again.  Hut  my  learned 
50fri«Mid  answers  our  claim  for  interest  in  this  w.iy.  Ho 
says  you  camiot  have  interest  and  prospective  pi'olits  to- 
gether; that  intei-est.  is  to  he  given  in  [dace  of  prospective 
profits,  if  pi'ospective  profits  can  he  given.  With  regard 
to  that  (piestion  I  have  to  say  tliat  the  very  cases  1  havt^ 
cited  absolutely  disposes  of  that  conterUion.  In  the 
"  Co.sta  Uica  "  cas(>  interest  was  allowed  on  all  the  claims, 
and  tlu)  siune  irr  the  case  of  the  •'('anad.i,"  decided  hy 
.Mr'.  Thor'nion  I  have  already  argued  this,  arrd  Mie 
authorities  arc  heforc  you.  .arrd  a  cai'etnl  readiirg  ot  those 
'''Owill  completely  dispo-e  of  tirat  corrterrliorr. 

Next  he  .rrgues  that  at  ,all  events  no  irrtercst  can  he 
chai'ged  until  the<late  t  he  claims  were  pr'cser. ted;  thai  they 
w(>re  rrot,  as  he  clainrs.  pr'esented  uirtri  ISlKi.  and,  there- 
fore, in  iuiy  event,  no  irrterest  carr  he  claimed  before  that 
date.     Tluit  is  his  contention.      Now   1   s.ry   in  answ(M'  to 


J 130 


(Mr.  Peters'  Argument  in  Reply.) 

that  tliat  the  correspondence  in  (>vidence,  and  quoted  in  our 
brief  siiows,  that  the  st>izures  were  promptly  protested 
against  and  compensation  claimed. 

As  a  matter  of  fact,  at  Victoria,  when  we  first  argued 
tiie  question  as  to  wiiether  we  should  he  allowed  to 
put  in  evidence  the  diplomatic  correspondence  that 
took    place    after    the    .seizure — the    reason   I   gave   for 

lo  introducing  it  was  that  we  should  he  allowed  to  put  the 
correspondence  in  to  show  that  (Jreat  Britain  had  been 
guilty  of  no  laches  in  pressing  tiie  claims — and  Mr.  Dickin- 
son answeied  that  n<>  such  thing  was  charged,  that  wo 
had  pressed  the  claims  piomptly.  and  without  any  laches. 
I  also  call  your  att(Mi(ion  to  this  fact  in  regard  to  the 
claims  of  IHSC)  and  KS87  that  they  were  all  presented  hy 
the  claimants  to  the  (ioveinment  of  Canada,  which  is 
the  same  thing  so  far  as  you  are  concerned  asthedovern- 
ment  of  (ircat  liritiiin,  hicause  that  was  the  chaimel  they 

20  hail  to  go  through.  They  wtMe  presenied  as  early  as  De- 
cember i)tli,  ISST.  Formulated  claims  were  put  in,  so  that  so 
far  as  the  claimants  were  concerned  there  was  no  laches 
on  their  i)art.  'I'liei-e  was  only  one  exception.  The 
"Black  Diamond  "  of  I8><()  was  not  presented  until  some 
time  afterwards,  but  yoiu'  Honors  will  remember  that 
theie  were  some  s))ecial  circumstanci'S  connected  with  that 
case.  The  claims  for  IS,s|»  were  all  presented  in  that  year 
excei)t  one  which  was  presented  in  .Jamiary,  1S!»(>,  and  with 
regard  to  tbespeci.U  claimsortbeadditioual  claims,  as  they 

3oaie  called,  the  claims  were  all  i)restMited  pronq)tly,  the 
•'Wanderer'"  being  the  only  one  as  to  which  any  delay 
occurred. 

It  will  be  admitted  that  so  far  as  jtre.senting  the  claims 
were  concerned,  the  individual  claimants  could  go  no  fui' 
thertban  present  th"ir  claims  to  their  own  (lovermnent, 
and  that  tiie  pressing  of  those  clamis  r)uist  be  in  the  bands 
of  that  ( Jovernment.  I  submit  that  after  the  protests  h.id 
l)eeu  put  in  bylireat  Bii'ain.  the  position  taken  by  the 
I'nited  States  rendered    it  .ibsolntely  futile   to    make  any 

4opi'esentation  of  the  claims  in  a  formal  manner.  The  con- 
tention of  the  I'nited  States  w.is:  we  are  not  liable,  and 
that  was  the  position  they  biild  im  til  after  the  I'aiisaward. 
How  then  has  the  non-pr(?sentat ion  of  the  claims  in  for- 
mal shape  ad'ecli'dlbe  claim  for  interest;  'i'here  was  no 
use  delivering  tlu-m  to  the  United  States  (iovernment  who 
dis|)nted  their  liability  in  toto.  The  formal  claims  only 
consisted  in  itemized  ligures,  and  th(>se  evidently  would 
not  be  of  any  importance  until  the  question  of  liability 
wassettleil.     There  was  no  use,  I  contend,  in    pi'eseiiting 

Sothe  paitic  iilars  of  tlie  claims  until  the  United  Stales  had 
evidenced  their  willingni'ss  to  consider  their  settlement, 
and  that  willingness  they  did  not  evince  mitil  the  main 
question  in  dispute  was  settled. 

I  return  to  my  learned  friend  Mr.  Dickinson  the  words 
which  he  borrowed  from  a  repoit  of  the  Supreme  Court  of 
the  United  States.  "  the  law  will  not  require  any  one  to 
do  a  thing  which  is  vain  and  idle."  That  is  all  1  have  lo 
say  with  regard  to  the  ([uestion  of  inteiest.  I  refer  your 
Honors  to  my  brief,  pages  Hr>  to  H7,  where  the   argmuent 

60  on  interest  is  fully  set  out. 

Damaoeh. 

Coming  to  tiie  question  of  damages  generally,  I  may 
say  that  my  learned  fi'iend  Mr.  Dickinson  to  some  extent 
appears  to  misunderstand  the  position  we  take,  and  more 


1131 


^^^^ 


(Mr.  Peter's  Aiguineiit  in  Reply.) 

paitioularly  does  lie  riiisunderstand  it  on  the  very  iinport- 
tant  question  of  tlie  right  to  recover  for  pios))ective  catch. 
If  from  anytliiiig  we  liave  said,  either  in  oral  or  written 
argument,  that  misunderstanding  still  exists,  1  wish  to 
put  heyond  doubt  the  ground  upon  which  we  claim  dam- 
ages for  prospective  catch.  From  the  reading  1  liave 
given  of  Mi'.  Dickinson's  oral  and  written    argument,  he 

lo seems  to  think  that  we  {;laim  inospective  catch  under  the 
head  of  punitive  damages,  or  what  he  sometimes  culls 
Stuart  money.  That  nevei'  was  our  contention,  and  it  is 
not  oui'  (;ontention  now.  W'c  allege  that  wiien  a  wrong- 
ful act  has  been  done  hy  one  person  to  anothci',  with  the 
intention  of  causing  a  particid.ir  kind  of  damage,  and 
that  jtarticular  kind  of  damage  is  caused,  sucli  damage 
being  tiie  result  actually  int(Mi(led,  must  in  law  always  be 
considered  as  pro.xiuiate  and  nevei' too  remote.  On  that 
contention  we  base  our  claim  to  I'ecover  [irospectivi;  dam- 

2oages.  V\'e  do  not  claim  vindictive!  damages,  which  tny 
learuiMl  fritMid,  Mr.  Dickinsnu,  is  very  fond  of  referring 
to,  nor  do  we  allege  evil  intent,  as  Ik;  also  is  fond  of  say- 
ing; but  we  simply  state  that  the  United  States  seized 
our  vessels  in  iMSd.  ls,s7  and  lS)Si»,  with  the  object  and  in- 
tent of  i)it'venting  us  carrying  on  sealing,  and  that  thev 
succeeded  in  that  object  ami  intent  I  do  not  use  the 
words  vindii'tive  damages  or  evil  intent,  but  we  content 
ourselves  with  tiie  fact  that  they  did  intend  to  stop  us 
carrying  on  the  sealing  business,  and  that    they  wc.m  suc- 

30cessful  in  so  doing.  I  say  that  the  United  States  went 
therewith  the  purposi!  and  with  the  inti  nt  of  |)reventing 
US  from  cai  lying  on  the  sealing  business  and  from  making 
a  catch  of  seals,  and  having  siieceeijod  in  I  bat  intent,  the 
loss  of  the  (expected  catch  must  he  l(,ok(Ml  upon  as 
proximate  damages  and  cannot  be  too  remote. 
In  short,  the  fact  that  the  damage  which  h.is  actually 
occurred  was  iniendi'd,  removes  all  (luestion  ot  remoteness 
— that  point  disappears.  I  venture  lo  say  that  my  learned 
friend,  Mr.  Dickinson,  has  not  nut  that  piopnsitiou  which 

40I  have  annoimred  in  my  original  argument  When  1  was 
arguing  in  tliisc.iseoriginally,  I  a'-ked  my  leaiiKMl  friend  to 
point  out  one  antborily.  in  which  it  ua-  shown  that  the 
intention  to  stop  the  caiivingon  <ii'  a  icitain  business  was 
the  object  with  which  an  ait  was  done,  where;  it  was  held 
that  the  prevent  I'd  piosjiective  prolils  coidd  not  be  recov- 
ered. My  learned  trieiid  has  entirely  failed  to  jiroduce 
any  such  authority.  My  second  proposition  is,  that  when 
it  becomes  clear  that  the  damages  are  not  remote  because 
tli(!y  were  inti'uded,  then  the  samc!  strictness  of  interiire- 

5otation  with  regard  to  certainty  is  not  to  Ix;  ust'd  as  in  oidi- 
nary  cases.  On  this  point  1  wish  to  refer  your  Honors, 
not  for  thi'iiuiM.ise  of  criti<ising  my  learned  friend's  argu- 
ment, hut  for  the  purimse  of  showing  my  side  of  the  case 
to  a  cpiotation  my  friend  uses  from  my  original  brief.  At 
page  21  of  my  brief  1  niakt!  a  (piotatiou  from  "Sutherland 
on  Damages,"  showing  that  where  there  is  a  fraud  or 
other  intentional  wrong  there  is  not  the  sam(>  strictness 
to  exclude  remott?  ancl  uncertain  damages,  even  when 
the  punitive  damages  are  not  involved. 

60  I  call  your  Honors'  attention  to  this  (piotation,  he- 
cause  my  learned  friend  Mr.  Dickinson,  (pioting  that  in 
his  printed  brief,  has  taken  rather  a  wrong  impression 
from  it,  and  has  not  n>ade  the  (piotatiou  in  full,  hut 
leaves  out  the  important  words,  "  oven  where  punitive 
damages  are  not  involved,"    I  do  not  mention  this  to  cfist 


ins 


(Mr.  Poters'  Aif^iinioiit  in  Reply.) 

any  reflt'ctioi)  upon  my  loaincil  I'l iond.  but  simply  to  jtoint 
out  that  those  words  wliich  my  learned  Ciieiid  hus omitted 
in  his  written  argument,  havt;  a  stronfi;  heatirif;-  on  our 
cast^  The  gist  of  thi'  \vh(>le  (juotation  is  that  where  thero 
is  an  intentional  wrong,  yon  aic  not  to  look  so  elosely 
into  the  (piestion  of  certainty  of  damages  as  in  a  ciso 
where  theii>   is  a  meic  accidental  wrong,  and  this  (piite 

lo independently  of  the  cpiestion  of  punitive  damages.  I 
point  out  to  my  learned  friend  this  mistake  he  has  fallen 
mto,  both  in  his  oral  an<l  written  argument  The  person 
who  with  intent  has  ciused  an  uncertain  loss  is  respon- 
sible for  the  uncerlainty  which  he  has  caused.  .My  learned 
friend  .Mr.  l>ickinson  cannot  say:  'I'ruj'.  1  injured  you 
very  badly,  and  stopped  you  from  catciiing  tiiese  seals; 
.and  true,  1  intended  to  do  it,  hut  at  the  same  tiuK?  Lush- 
ington  said  a  good  many  years  ago  in  such  and  such  a 
case   of  Admiralty,  "  )ou  caimot   g»^t  anything    but   the 

20  value  of  the  ship."  Mr.  Dickinson  argues  that  in  all  cases 
where  the  vessel  was  destroyed  you  can  get  the  value  of 
the  ship  and  nothing  more,  but  1  think  your  Honors  will 
conclude  that  in  a  c.isc  wiieic  intent  was  shown,  that  is  no 
measure  of  damages.  My  leai'ned  friend,  .Mr.  Dickiu-son's 
argmruMrt  amomrts  to  this:  although  we  .lest royed  a  ship 
worth  *4, .")(>(>.  which  ship  could  hav(>  e;u'ned,  as  is 
shown  by  the  evidence  tlnee  times  its  value,  and  although 
we  stopjied  you  from  cu'rying  on  yoiu'  business  and  from 
reali/ing  thiee  times  the  vahn;  of  the  ship,  yet  you  are  to 

30get  nothing  nior-e  than  the  e.Nacl  value  of  the  ship.  I  think 
yoru-  Honors  will  setf  that  that  is  neither- (Common  scMrse 
noi'  law.  1  a-^ked  my  lear'ued  friend,  Mr.  Dickinson,  for 
his  authority  for  such  air  aigimrent.  ami  I  suiimit  that  he 
failed  to  show  mc  ;rrry. 

Now,  yoni'  Horrors,  \  rcfiM'  yon  to  that  ))ai't  of  my 
learned  friend's  written  argmneiit  where  he  ([Uott'd  my 
citation  frorrr  Sutherland,  but  where  In;  omitted  to  (piote 
the  words  "•  where  purritive  damages  arc  not  involved." 
1  do  not   say   (hat    nry   ieairretl  friend    did    not    interrd  to 

4oquote  the  iangiiage  per-fectly  coir-cctiy,  but  Iris  (|nota- 
tion  without  tiiose  wtuds  might  mislead  your  Honors. 
.At  }>age  l;!l  of  his  arginnent  he  makes  a  citation  from 
my  brief,  but  he  leaves  out  the  woi-ds  '•  whei'»;  pimitive 
damages  are  not  i  rvoived." 

Mr.  Dickinson:- -The  (piestion  of  fraud  is  the  point  I 
was  makirrg  there. 

Mr.  I'eteis:  -That  does  not  irrvolv*^  the  (piestion  of 
fraud.  This  was  irrteirtioiral  wrong  in  a  .sense  that  they 
irrtended  doing  an  act.  which   they  did  do,  and   the  ivsult 

50 of  the  act  was  to  cairs(>  loss. 

Ml'.  Dickinsorr:  D  >  you  think  that  Sutlierland  meant 
evil  inleirt  ? 

Mr.  I'eters:  1  certainly  do  rrot  think  he  meant  evil 
intent,  aird  he  diaw^  tin-  disiinctron  by  usirrg  tluj  words 
"even  where  pnrrrtivc  danrages  arc  not  involved."  Of 
course,  we  all  know  that  punitive  damagi'S  are  involved, 
where  the  evil  intent  is  shown  ;ind  vindictive  damages 
and  smart  money  may  be  involved  there,  but  not  in  this 
case.      1  will  qrrote  yoiii'  Horrors  one  passage  from  Siither- 

6oland.  which  1  do  rr<il  thiirk  is  ipjoted  m  rrry  written  brief, 
arrd  I  quote  it  in  answer-  to  what  my  learned  fiiiMid  says: 
.At  pages  17:i  and  17:J  of  Sutherland,  \'ol.  I. 

"  Any  Huch  iirt,  wliicli  directly  ivtt'cctM,  iiijnriouHly,  1111  i'Mtal)lislie<l 
"  ImHini'sH,  lis  liy  dcHtnu'tiou  of  tin'  Ixiiiiliiif;  111  which  it  is  cendiictt'd; 
"  <)l)strnctiii({  the  aiU'Voaclii's  iioci'ssiin  to  it;  fraudulontly  ilivcrtiu){ 


(Mr.  Peters'  Argument  in  lieply.) 

"  custom  where  thore  was  a  thity  to  luaiutiiiu  the  good  will;  by  ciitic- 
"  ing  away  servantH,  or  l>y  Hlaudor,  or  tlio  briMich  of  any  iinr.'oiuout 
"  of  which  the  protitH  of  a  ImHiuoHH  are  the  couHidoratioii  or  iuduce- 
"  ment,  may  require  the  entimate  of  a  very  uncertain  losn;  hut  the 
"  party  whoHe  uiiHcouduet  or  default  Iuih  iieeesHitated  thi^  iu(iuiry. 
"cannot  object  to  it,  on  the  (i;round  of  the  uncertainty,  though  a 
"  court  will,  in  such  a  case,  proceed  with  caution,  and  not  award 
"  damages  iipon  more  conjecture." 

lo     There  is  no  (luestion  of  punitive  daniages  tliere. 

,  My  learned  friend  has  not  ans\\'(>red  my  arf;innent.  I 
have  never  said  tliat  there  was  any  necessity  for  what  lie 
calls  tivil  intent  oi  punitive  dauiaj;es  or  anything  of  that 
kind,  hut  lie  has  replied  always  on  the  hasis  that  I  did  so. 
All  I  say  is,  you  intended  the  consetjuences  which  followed; 
you  had  no  right  to  have  such  intention,  hut  you  caused 
the  damage  you  intended  to  cause,  and  therefoie  you 
must  nay  coini)ensation.  My  learned  friend  in  his  oral, 
as  well  as  his  written  argument,  relied  on  a  large  numher 

20of  cases  drawn  from  the  Admiralty  courts,  hut  in  every 
one  of  those  cases  which  he  cited,  tliere  was  wanting;  the 
very  i)rinciple  which  is  present  in  this  case,  natnely,  the 
intention  to  cause  the  damage  which  did  happen,  and  the 
intention  to  interfere  with  business.  My  learned  friend 
relied  on  certain  prize  cases,  hut  I  pointed  out  with  regard 
to  these  prize  cases  that  the  same  distinction  existed, 
and  that  there  was  no  ([uestion  of  intention  in  them.  I 
went  to  the  very  same  Admiralty  courts  where  my  learned 
friend  got  his  inspiration,  and  1  found  that  in  mery  case 

30  where  damages  had  heen  allowed  the  tjuestion  of  intent,  en- 
tered into  su<h  case,  in  the  measure  of  damages  allowed.  I 
cited  international  law  in  the  (Jeneva  case  and  the  "  (^osta 
Rica"  case,  and  I  showeti  that  the  Ueneva  case  was  not  in- 
consistent with  our  present  position.  I  showed  that  the  in- 
tention there  did  not  exist  to  do  any  damage,  and  I  showed 
that  Chief  Justice  (^ickhurn,  who  was  the  arbitrator  for 
Great  Britain,  in  giving  his  reasons  .against  prospective 
catch,  showed  that  damages  mider  that  head  weie  only 
asked  hy  the  United  States  on  the  ground  of  omission  to  do 

40  a  certain  thing— they  were  not  asked  on  the  grounds  that 
Great  Britain  had  committed  certain  acts.  I  showed  that 
counsel  for  the  United  States  in  that  v(>ry  Geneva  Argu- 
ment, although  th»'y  deliberately  stated  that  (Jreat  Bri- 
tain had  heen  only  cidpahly  negligent,  they  did  not  charge 
Great  Britain  witli  having  done  these  acts  for  the  pur|)ose 
of  making  a  gain  to  herself.  The  United  States  counsel 
claimed  there,  that  they  should  recover  because  the  fear  of 
these  cruisers  had  the  effect  of  causing  .i  transfer  of 
American  commerce  to  the   British   flag.     They  claimed 

50 damages  for  that,  hut  they  said:  we  do  not  charge  that 
(Jreat  Britain  did  these  acts  for  the  purpose  of  getting 
gain  for  hei  self,  but  nevertheless  it  has  been  the  coiise 
quence  of  her  acts.  Now.  your  Honors,  in  the  piesent 
case  we  have  the  fact  that  the  United  States  cruisers  in- 
tended to  prevent  us  from  sealing,  and  they  did  prevent 
us  from  sealing,  in  order  that  they  might  enjoy  sealing 
themselves,  and  be  left  to  seal  in  their  own  way.  I  pro 
pose,  as  briefly  as  I  can.  to  answer  the  criticism  which  my 
learned  fiiend.  Mr.  Dickinson,   has   made   upon    some— 1 

60  will  not  deal  with  all-authorities  which  we  have  cited 
in  our  brief, 

Fir-st,  taking  the  case  of  the  "Costa  iiica,"  which  we 
relied  upon  to  a  considerable' extent.  Mr.  Dickmson'scon- 
tentiovi  shortly  is,  that  in  that  case  prospective  ciamage  was 
not  allowed,  and  that  the  "Costa  Hica "'  case  is  an  authority 


'1    I 


1134 


(Mr.  Peters'  Argument  in  Reply.) 

against  prospective  damages,  and  not  in  favor  of  it.  I 
subnn't,  your  Honois  tliat  my  learned  friend's  contention 
in  that  respect  is  not  corit'ct. 

My  learned  friend  sjiys  that  tlie  claims  wiiich  are  set 
out  at  page  19  of  tiie  "  Costa  Rica  "  case  for  theoHicers  and 
crew  included  nothing  for  prosftective  catch.  Well,  your 
Honors,  a  glance  at  this  claim  will  show  that  there  was 

lono  other  item  in  it,  and  therefore  it  follows  that  if  any 
sum  was  allowed  on  account  of  that  claim  it  must  have 
been  for  piospective  catch,  and  as  a  matter  of  fact  the 
sum  of  €1,6(10  was  allowed  for  the  officers  and  crew,  and 
it  could  not  have  been  for  anything  else  than  prospective 
catch,  because  that  is  all  that  was  claimed.  My  learned 
friend  criticises  the  claim  of  the  owners  in  that  case— that 
(!laini  consisted  of  loss  of  the  vessel,  .£}?,588.  The  amount 
realized  at  sale,  including  sundries  sold,  was  ,tl,3!)5.  My 
learned  friend  therefore  says  that  they  were  not  found  to 

2obe  entitled  to  prospective  catch.  On  \»hat  groiuid  does 
my  learned  friend  say  that?  Which  part  of  tlie  claim  was 
for  the  forced  sale  of  the  vessel?  Tlie  arbitrator  on  that 
|)oint  says  that  he  did  not  allow  anything  for  the  loss  of 
the  sale  of  the  ve.^sel,  and  I  have  no  doubt  he  was  justi- 
fied in  doing  so.     He  says: 

"  Whereas,  on  the  other  haud,  Mr.  Carpenter,  on  being  net  free  was 

"in   a  position   to  have  returned  on  hoard  the   ship    'Oosta  Rica' 

"  packet  in  January,  1892,  at  the  latest,  and  whereas  no  conclusive 

"  proof  has  been  produced  by  him  to  show  that  he  was  obliged  to 

,     "  leave  the  ship  until  Ai)ril,  1892,  in  the  Port  of  Ternate  without  a 

3     "  master,  or,  still  less,. to  sell  her  at  a  reduced  price." 

He  says  there  that  the  sale  of  the  vessel  was  unneces- 
sary, and  be  gives  no  damage  for  it.  The  only  item  that 
the  owneis  claimed  for  was  £3,577  for  some  expenses  in- 
curred, and  it  is  absuid  to  say  that  all  of  these  expenses 
were  allowed  on  account  of  the  20  days  delay  of  the  vessel. 
They  awarded  the  owners  £3,800,  and  that  must  have 
been  for  prospective  catch  in  some  degree.  The  arbitrator 
says: 

40  "  Whereas  the  unjustifiable  detention  of  (Captain  Carpenter  caused 
"  him  to  miss  the  best  part  of  the  whale  flshing  season." 

Now,  your  Honors,  that  is  one  reason  why  the  arbitrator 
thought  Carpenter  should  have  damages;  and  then  he 
gives  the  reason  why  he  should  not  give  as  much  as  Mr. 
Carpentei-  was  asking: 

"  Whereas,  on  the  other  hand,  Mr.  Carpenter,  on  being  set  free,  was 
"  in  a  position  to  have  returned  on  board  the  ship  'Costa  Rica' 
"  packet  in  January,  1892,  at  the  latest,  and  whereas  no  conclusive 
"  proof  has  been  prodticed  by  him  to  show  that  he  was  obliged  to 
50 ''leave  his  ship  until  April,  1892,  in  the  Port  of  Ternate  without  a 
"  master,  or,  still  less,  to  sell  her  at  a  reduced  price." 

The  arbitrator  iei  this  case  gives  both  sides.  He  gives 
the  reason  why  he  should  give  some  damages,  and  he 
gives  the  reason  why  he  should  not  give  the  full  amount 
claimed.  If  your  Honors  refer  to  the  recital,  you  will  see 
that  he  especially  refers  to  prospective  cati;h,  and  if  he 
gave  nothing  for  prospective  catch  it  would  be  very  extraor- 
dmary  why  be  should  make  such  a  careful  statement  about 
prospective*  catch  in  the  recital  of  the  facts.  The  arbitra- 
^"^tor,  it  is  quite  clear,  luidertook  to  settle  the  anjount  of 
damages  apart  from  the  expert  testimony  altogether 
which  apparently  he  thought  be  could  not  rely  on.  I  do 
not  think  my  learned  friend,  Mr.  Dickinson,  can  argue  that 
the  "Costa  Rica"  case  decides  against  prospective  catch 
—and  I  believe  that  any  one  who  reads  that  case  carefully 


1135 


(Mr.  Peters'  Argument  in  Reply.) 

from  cover  to  cover  will  find  it  is  a  case  which  decides 
that  prospective  catch  can  bo  allowed.  Your  Honors  will 
see  that  the  "  Costa  Rica"  case  comes  within  the  class  of 
cases  where  intention  was .ipparent.  because  in  the  "Costa 
Rica  "  case  warning  was  given  at  time  of  arrest  that  the 
consequence  would  be  the  loss  of  the  whaling  season.  On 
that  ground  it  comes  within  the  cases  where  intent  is 

lo  evident,  because  notice  was  given  that  if  such  a  thing  was 
done  certain  loss  would  ensue,  an»l  in  that  way  the  ques- 
tion of  remoteneness  was  removed  and  with  it  tlie  ques- 
tion of  uncertainty.  I  leave  that  case  in  your  Honors' 
hands  to  decide  if  it  is  not  an  authority  in  our  favor. 

Mr.  Dickinson: — Tiie  full  case  has  been  furnished  to  the 
Court. 

Mr.  Peters: — Yes.  My  learned  friend  stated  that  we  did 
not  set  out  the  "  Costa  Rica  "  case  in  full  in  our  reply.  We 
set  out  such  parts  of  it  as  from  our  point  of  view  seemed 

20  material,  and  although  we  had  only  one  copy,  which  I  sent 
to  my  learned  friend,  Mr.  Dickinson,  in  order  to  avoid 
misunderstanding,  we  sent  to  England  and  got  other 
copies  in  order  that  the  full  case  might  be  within  the 
cognizance  of  the  Court.  I  think  now,  and  I  have  always 
thought,  that  we  inserted  sufficient  of  the  "Costa  Rica" 
case  to  explain  our  argument. 

It  is  now  ,5  o'clock  your  Honors,  but  if  you  will  permit 
me,  there  is  one  other  case  which  I  wish  to  refer  to. 
We  cited  in  our  argument  the  "  Bay  of  Fortune"  cases, 

30 and  we  contended  that  in  those  cases  a  large  portion  of 
the  claims  made  on  behalf  of  the  United  States  were  made 
for  prospective  catch.  We  have  dealt  very  fully  in  respect 
to  those  cases  in  our  brief  and  in  the  reply.  It  w^as  con- 
tended by  my  learned  friend,  Mr.  Dickinson,  that  this 
was  not  an  authority  for  prospective  catch.  We  allege 
that  £15,000  was  paid  in  compensation  to  the  United 
States,  and  that  that  included  prospective  catch.  My 
learned  friend,  Mr.  Dickinson,  makes  a  most  ingenious 
mistake  in  his  consideration  of  that  case.     My  learned 

40  friend,  Mr.  Dickinson,  says  that  the  whole  claim  was 
$120,000,  including  interest,  and  he  says  that  by  a  pecu- 
liar coincidence  the  exact  amount  claimed  for  prospective 
catch  was  $45,000— and  if  you  deduct  that  $45,000  from 
the  $120,000  which  was  claimed,  you  will  have  just  the 
amount  that  Great  Britain  paid  -and  therefore  he  in- 
geniously asks  your  Honors  to  come  to  the  conclusion  that 
Great  Britain  asked  to  have  the  prospective  catch  stricken 
out,  and  consented  to  pay  the  balance.  Why,  your  Honors, 
my  learned  friend's  argument  is  altogether  fallacious. 

50 The  original  claim,  without  interest,  was  $105,000,  which 
included  $45,000  for  prospective  catch.  If  the  payment  of 
the  prospective  catch  was  objected  to,  it  would  have  been 
deducted  from  the  1105,000  and  not  from  the  $lt>0,000  which 
included  interest  on  the  $45,000  which  was  prospective 
catch.  Included  in  that  $120,000  was  $15,000  interest,  so 
that  if  my  learned  friend  is  ri^ht,  that  they  intended  to 
take  off  prospective  catch  and  just  pay  the  balance,  they 
would  have  taken  $105,000,  the  original  amount,  and  de- 
ducted the  $45,000  from  that,  and  tliat  would  have  left  a 

60  balance  of  $tiO,000,  which  is  all  they  would  have  calculated 
interest  on.  I  wonder,  in  view  of  that,  how  my  learned 
friend,  Mr.  Dickinson,  got  his  figures? 

Mr.  Dickinson: — Oh,  that  is  all  very  fuimy,  but  if  you 
figure  it  for  yourself,  you  will  find  that  they  deducted  the 
interest  too. 


llHti 


(Mr.  Peters'  Arguiiu'iit  in  Reply.) 

Mr.  Poters:~WeIl,  I  have  flguretl  it  out  very  carefully, 
and  I  fltid  that  they  did  not  deduct  the  interest. 

Mr.  Peters:— My  learned  friend  does  not  think  it  is  an 
autliority,  hut  I  tiiink  it  is,  and  it  is  an  authority  that  the 
United  States  claimed  and  got  [)aid  for  prospective  catch. 

If  your  Honoia  will  read  the  corros|)ondence  from  be- 
ginning to  end,  you  will  see  that  no  such  proposition  is 
lolaid  down  as  that  Great  Britain  objected  to  that  claim  on 
the  ground  of  prospective  catch  being  asked. 

At  6.15  o'clock  the  Commissioners  rose. 


Commissioners  under  the  Convention  of  February  8, 

1896,  between  the  United  States  of  America 

and  Great  Britain. 


!l   :f 


S    :* 


10 


Legislative  Council  Chamber,  Provincial  Building, 
At  Halifax,  September  29,  1807. 

At  10.30  A.  M.  the  Commissioners  took  their  seats. 


The  Commissioner  on  the  pai-t  of  the  United  States: — 
The  Commissioners  are  clearly  of  opinion  that  there  is  no 
possiltility  of  a  lapse  of  the  Commission  by  any  failure  to 
adjourn  formally,  but  in  order  to  avoid  a  suspicion  of  a 
question  of  anythiufj;  of  that  character,  they  deem  it  ad- 
visiblo  to  have  the  following  order  made,  which  order  the 
stenographer  will  take  down  and  embody  in  his  notes  of 
20 the  proceedings  and  the  Secretary  will  enter: 

"Tlie  Commissioners,  whether  an  adjournment  shall 
have  been  made  to  a  |)articular  place  or  for  a  particular 
time,  or  in  the  event  of  no  such  adjournment,  may  meet 
at  any  times  or  places  as  to  them  shall  seem  fit.  And  in 
such  case,  in  the  event  of  the  proposed  session  being  in- 
tended to  be  an  open  session,  shall  give  such  reasonable 
notice  as  to  them  may  seem  proper,  of  such  proposed 
meeting  by  letter  posted  to  the  respective  addresses  of 
the  respective  senior  counsel,  as  entered  with  the  Secre- 
30tary." 

Mr.  Peters: — When  we  adjourned  yesterday  afternoon, 
I  had  been  making  a  few  remarks  anent  the  Bay  of  For- 
tune cases,  in  answer  to  the  argument  put  forward  by  my 
friend  Mr.  Dickinson.  I  iiad  attempted  to  show,  and  I 
think  did  show,  to  your  Honors  that  my  friends  made  a 
calculation  with  regard  to  the  Bay  of  Fortune  cases  which 
is  not  quite  correct.  In  confirmation  of  that  statement  I 
find  that  some  time  ago  -in  the  year  1895— a  report  was 
sent  down  to  the  British  House  of  Commons  by  Lord 
40  Salisbury.  This  matter  happened  to  come  up,  and  I  find 
a  refeience  to  a  report  made  by  one  Judge  Bennet,  whom 
I  presume,  though  I  may  be  in  error,  was  the  person  who 
had  to  do  with  the  distribution. 

The  Commissioner  on  tiie  part  of  the  United  States: — 
E.  H.  Bennet? 

Mr.  Peters:--The  initials  are  not  given.  I  presume  that 
he  was  tiie  person  who  liad  to  do  witii  the  distribution  of 
this  fund  that  was  paid.  At  all  events,  he  evidently  had 
something  to  do  with  it,  because  he  made  a  report,  and  the 
50  page  that  is  referred  to  in  Lord  Salisbury's  memorandum 
of  report  of  Judge  Bennet  is  '•  Keport  of  C.  1362-1883." 

Mr.  Dickinson:— I  have  not  seen  this  before. 

Mr.  Peters: — Nor  have  1  until  last  evening.  It  is  a 
memoiandum  referring  not  to  the  Bay  of  Fortune  cases, 
but  to  the  Behiing  Sea  question,  and  more  particularly  to 
the  i)hase  of  the  case  as  it  stcod  when  the  approval  of  the 
lump  sum  was  refused  by  the  Senate.     He  says: 

"  That  not  more  than  81,400  of  the  amount  claimed  was  for  the 
"  Talue  of  property  actually  destroyed." 


60 


Mr.  Dickinson: — What  is  the  date  of  this  reference? 

Mr.  Peters: — It  is  Si'ptembei-,  180.5,  at  the  time  when  the 
lump  sum  matter  had  fallen  through  and  when  they  were 
on  the  question  of  the  formation  of  this  treaty.  The  total 
amount  of  $103,000  claimed  by  the  United  States— that 


1138 


(Mr.  Peters'  Argument  in  Reply.) 

was  about  the  amount  without  interest— claimed  b)  the 
United  States  in  that  case,  only  i?l,4()(t  was  for  actual  de- 
struction of  proi'orty.  For  that  he  cites  the  report  of 
Judge  Beinu't.  I  give  this  to  your  Honors  as  a  further 
answer  to  my  learned  fri<'nd'rt  argument;  the  report  says 
that  the  actual  amount  of  daniage  to  property  clnimed  "is 
oidy  :t<l,40(),  and  all  the  other  items  were  for  damage  in 
loaddition   to   the   value  of   the  property.     He  hiiugs  out 

firominently  the  very  small  amount  of  money  claimed  for 
he  property  destroyed. 

Mr.  Dickinson:— if  you  take  I  he  s?t.'),0()0  actually  figured 
for  prospective  catch  from  the  -i^K'iS.ood  -without  niterest 
— you  will  get  a  jiroximate  amount. 

Mr.  IVteis:— It  is  a  matter  of  figures  and  can  be  calcu- 
lated. 

Ml'.  Dickinson: —1  will  look  at  this  repoit,  and  if  there 
is  anything  1  wish  to  say  about  it,  I  will. 

20      Mr.  I'eters:     So  nuicli  for  the  Hay  of  Fortune  cases. 

I  would  like  to  add  to  what  1  siiid  with  regard  to  the 
cases  at  (ieiieva,  tiiat  this  clearly  appeared,  that  a  sum  of 
money  had  been  given  in  addition  to  the  value  of  the 
pro])erty  destroyed  and  something  in  addition  was  given 
that  represented  profits.  A  distinction  was  attempted  to 
be  taken  by  my  learned  friend  with  legard  to  the  (J(>neva 
cases.  He  says  that  some  of  them  were  cases  for  partial 
loss.  That  is  true.  I  contend  that  there  is  no  distinction  so 
far  as  these  cases  were  concerned,  between  partial  and  total 

3olo,ss.  But  the  argument  isof  no  value  tohini,  forthe  rea.son 
that  some  of  the  ca.ses  were  of  total  loss,  and  tbeictoie  the 
rule  is  not  good  unless  it  applies  to  every  one  of  the  cases. 
Now,  my  learned  friend,  during  the  course  of  his  argu- 
ment, refers  to  a  large  mimber  of  cases  that  we  have 
cited.  With  regard  to  a  nund)er  of  these  cases  1  do  not 
intend  to  say  anything  more,  because  we  have  alieady 
discussed  them  fully  in  brief  and  in  oral  argument.  But 
there  is  one  case  in  his  oral  argument  that  he  relies  on, 
about  which  I  do  not  think  anything  has  been  said  on  our 

40  part.  I  refer  to  what  I  call  the  German  cases.  These 
were  cases  in  which  during  the  Franco-German  war,  cer- 
tain vessels  on  the  Seine,  1  tbiiik,  loaded  with  coal,  were 
destroyed  by  the  German  Government,  under  the  direc- 
tion of  their  militaiy  authorities.  Mr.  Dickinson  cites 
that  in  favor  of  his  conti'iition  in  respect  to  prospective 
profits.  These  cases  are  entirely  dissimilar.  It  was  a 
matter  of  war  and  it  was  necessary  in  order  to  carry  on 
war  that  these  vessels  should  be  destroyed  and  compensa- 
tion was  ))roinptly  made  for  them.     These  vessels  were 

50  there  in  time  of  war  and  they  nec«'ssarily  lan  the  danger 
that  existed  in  time  (jf  war,  and  there  was  no  intention 
then  to  do  anything  more  than  take  a  step  that  was  neces- 
sary in  the  conduct  of  the  campaign. 

He  also  refers  to  the  "  Umhria,"  which  was  a  case  of 
collision  with  another  vessel,  and  in  which  case  damages 
were  claimed  for  the  loss  of  some  earnings  which  the 
sunken  steamer  might  have  made.  In  that  case  the  Su- 
preme Court  of  the  United  States  did  not  allow  the  earn- 
ings, but  the  case  is  of  no  importance  whatever  so  far  as 

60  we  are  concerned,  when  this  retnark,  made  by  the 
Judges  of  the  Supreme  Court  in  giving  judgment,  is 
considered:  "We  come  to  the  conclusion  that  there 
"is  nothing  in  the  peculiar  facts  of  that  case  to  take  it  out 
"of  the  general  rule."  1  am  not  here  to  deny  that  ac- 
cording to  the  general  rule  in  collision  cases  damages  of 


11  Hit 


(Mr.  Peters'  Argument  in  Reply.) 

this  kind  would  not  he  recovered,  hut  1  am  hero  to  con- 
tend that  the  general  rule  as  laid  down  hy  Lnshiiigton 
and  Storey  has  exceptions  and  that  tlie  case  wo  have  he- 
fore  us  is  one  of  these  exceptions — and  that  is  all  that  the 
Judges  of  the  Sni)i"enie  Court  held  in  the  case  of  tlio 
"  Unihria."  They  say,  tlieie  is  a  general  rule  and  if  you 
wai't  to  take  yourself  out  of  tini  general  nde  you    must 

loshow  a  particular  circuinstance  entitling  you  to  tills.  In 
the  present  cas<'  you  liave  not  done  so,  therefoie  we  abide 
by  the  general  rule. 

Now,  my  learned  fiiend  has  contended  that  there  is 
nothing  whatever  in  this  ''new  tangled"  idea  of  inten- 
tion— which  according  to  hiui  was  ncvir  heard  of  till  now. 
I  am  (|uite  willing  that  my  learned  f  .'ixl  should  call  it  a 
"now  tangled"  idea,  hul  at  tlif  saiih'  time  I  could  refer 
him  to  tilt;  fad  that  at  all  events  the  idea  is  as  old  as  the 
time  of  liOrd    Keiiyon,  and    no  (hadit  a  good  deal  older. 

2oHe  says  that  the  ITnited  States  iiad  no  evil  intention; 
that  the  United  States  went  there  under  a  claim  of  right, 
and  did  these  acts  under  a  claim  of  right,  and  that  when 
an  act  is  done,  as  he  savs,  under  a  bona  Jidf  claim  of 
right,  you  are  nevei- to  get  exemplary  damages  or  |)iini- 
tive  damages.  That  may  he  all  right;  it  is  not  necessary 
for  me  to  controvert  that.  We  are  not  seeking  punitive 
damage.s.  We  are  only  seeking  the  damages  that  actually 
happened,  t'unitive  damages  mean  the  getting  of  dam- 
ages more  than  actually  occuried.     For  instance,  in  cases 

30of  assault  where  a  man  can  show  that  the  injury  only  cost 
him  a  five  cent  hit  of  sticking  plaster  and  a  little  hit  of 
pain— the  actual  damage  would  he  trifling — so  small  that 
you  could  hardly  compensate  for  it  liii  it  might  he  done 
under  circumstances  which  nught  induct;  a  jury  to  give 
▼ery  large  damages.  You,  in  that  case,  give  damages  more 
than  occurred.  But  in  this  case  we  are  claiming  dam.i'^es 
that  actually  occurred.  We  say,  whether  we  are  eutiiled 
to  recover  or  not— that  we  actually  did  lose  prospective 
catch.     We  are  not  claiming  a  thing  that  we  did  not  lose. 

40  We  are  not  claiming  it  on  the  ground  of  punitive  damage 
or  for  sniart  money,  hut  we  claim  the  damage  that  actually 
occurred.  There  is  where  the  distinction  comes  in.  I  do 
not  think  the  case  he  i)uts  as  to  contract  and  tort  (exists  at 
all  as  to  measure  of  damage.  Let  me  bring  it  down  to  the 
case  of  a  contract  that  is  made,  that  a  man  will  not  carry 
on  business  in  a  certain  place.  The  contract  is  broken. 
Suppose  the  contract  is  broken  with  the  idea  that  what  he 
did  was  not  a  breacli  of  the  contract.  The  actii>n  is  brought 
for  damages.     The  man  broke  the  contract  imder  a  claim 

50  that  he  was  right  in  doing  so,  but  you  give  damages. 
What  damages?    The  actual  damages  that  occurred. 

Mr.  Dickinson: — The  distinction  is  clearly  laid  down  in 
the  "Argentine  "  case  between  contract  and  tort.  Perhaps 
you  would  tell  me  the  old  case  in  which  Lord  Kenyon  takes 
the  position  you  as.sert. 

Mr.  Peters: — The  case  of  Tarleton  against  McGorrey. 
In  the  case  I  am  putting,  the  man  would  be  entitled  to 
recover  the  damages  that  actually  occurred,  and  that  is  all 
the  damage  lie  would  be  entitled  to.     If  it  were  done  with 

60  malicious  motive,  such  as  the  intention  to  run  him  out  of 
business — it  might  be  possible  to  give  him  more  damage. 
That  would  be  punitive  damage.  But  in  either  case, 
whether  done  with  good  or  bad  intention,  you  would  be 
entitled  to  recover  damage  sustained,  and  this  outside  the 
question  of  punitive  damage  altogether.     You  can  imagine 


U4o 


w 


(Mr.  Peters'  Argument  in  IJcply.) 

many  cnHos  wlicri!  that  principlf  would  Jioply.  My  Iciirned 
frit'iul  tiiki'S  tlu>  oiiso  of  realty  and  Im  drawH  a  jj;i'«iit  dis- 
tinction ht'twi'iMi  damages  to  realty  and  damages  to  per- 
sonal property.  Ho  says  tiiat  realty  can  never  he 
destroyed  -tlierefort*  it  i.s  always  a  case  of  partial 
loss-  hut  HO  far  as  those  eases  are  concerned, 
ther(«     is    no    distinction     hetween     partial     and     total 

10  loss,  although  there  is  a  distinction  in  certain  other 
cases.  Kealty,  he  says,  camiot  he  destroyed,  and  there- 
fore you  always  have  to  treat  it  as  a  case  of  partial  loss. 
That  might  he  one  reason  for  it,  hut  it  does  not  got  over  this 
point  that  the  real  ohjecfion  th«iy  raise  to  our  recovering 
this  damage  is,  that  tlie  damages  are  so  uncertain  that  you 
camiot  make  a  calculation  upon  it.  That  applies  to  every 
kind  of  profit  that  you  have  to  assess.  If  you  are  going 
to  assess  loss  if  vour  real  projierty  was  to  ho  taken — 
you  have  to  look  at  the  past  rental  and  other  consi<Iera- 

20tions.  Ov  take  the  cise  of  injury  hy  railway  (Collision. 
Tin-  loss  of  protit  that  the  injured  man  could  make  in  the 
future  is  always  a  question  of  douht  and  uncertainty,  hut 
that  does  not  shut  it  out,  if  the  first  ohjection  is  removed, 
that  the  damage  is  too  remote,  hecause,  as  Sedgwick 
says,  when  the  (piestion  of  remoteness  is  removed,  you  do 
not  so  carefully  look  into  t\\v  (piestion  as  to  whetlier  t'io 
damage  is  of  an  imceitain  or  certain  nature.  Now,  I 
think  if  your  Honors  will  as  1  am  sure  you  will— take 
the  argument  that  has   been  presented  orally  on  this  jiart 

30of  tlii^  case,  you  will  have  before  you  sufficient  to  enaltlo 
you  to  fully  understand  the  contention  of  the  two  parties 
on  this  important  (piestion  of  prospective  catch,  and  there- 
fore I  do  not  think  it  necessary  to  follow  the  matter  any 
further.  1  have  gone  over  my  friend's  argument— read 
it  very  carefully  -and  I  find  on  reading  that  argument 
over  as  it  is  reported,  and  as  I  listened  to  it  myself,  that 
after  all  the  issues  between  us  are  clearly  drawn,  and  I 
do  not  think  1  shall  give  any  more  assistance  to  your 
Honois  by  following  this  any  further. 

40  I  wish,  however,  before  leaving  the  question  of  measure 
of  damages  to  refer  to  my  written  argument,  and  correct 
what  appears  to  be  a  niisappreheiision  that  my  learned 
friend  has  fallen  into. 

In  our  ])rinted  argument,  wo  began  at  page  iJO  with 
a  chapter  headed,  "The  Measure  of  Damage,"  and  then 
we  proceeded  at  jiage  2u  with  another  chapter  headed, 
"  Loss  of  (,'atcli,"  making  two  separate  subjects  of  them. 
At  page  iio  we  set  forth  a  number  of  facts  leading  up  to 
the  proposition  which  is  stated  at  line  30,  on  page  20,  that 

SO  proposition  was: 

"  It  bnving  now  been  determined  beyond  question,  that  there  was 
"  no  foundation  in  intoruutioual  law  tor  the  aHHortion  of  any  of  the 
"  clainiH  jmt  forward  liy  the  United  States,  the  ordinary  practice 
"  aniou^  nations  reiiuircH  that  the  daniaKOH  shouhl  be  aHSOssed  upon  a 
"  Bcahj  HO  liberal  aw  to  leave?  no  room  for  doubt  that  any  form  or  clasB 
"  of  injury  wuHtaiued  has  been  left  without  a  full  and  just  reparation." 

It  was  to  support  that  proposition  that  we  stated  the 
facts  immediately  before  it  in  our  argument.  My  friend 
takes  it  for  granted  that  we  were  arguing  that  we  should 
Ooget  prospective  catch  on  account  of  the  manner  in  which 
the  thing  was  done,  and  that  this  chapter  applied  to  the 
prospective  catch,  but  this  chapter  applies  to  the  measure 
of  damages  generally.  The  proiiosition  we  lay  down 
there  is  the  proposition  we  stand  by  now— that  in  compu- 
tation of  damages  they  should  bo  computed  on  so  liberal  a 


1141 


(Mr.  Fotei'h'  Arguiiit'iit  in  Hiply.i 

Hculo  tliiit  every  pcrHoii  iiijtiriMl  wniiM  lie  liilly  coiniioii- 
HUttul.  Tliiit  iipplifs  also  Willi  pailiriilar  ami  Hpi-dai  force 
to  Mil'  (|iitNti((ii  yuu  will  prt'sciiily  have  Ui  coii>i(lt'r  in  (.oiu- 
puling  what  anidunt  ot  <laniag*'s  wnnld  Id-  allovvt'd  to 
tliuHu  parlies  who  wt)i«' ari't'stctl  and  inipiisoiied  and  pro- 
secuted what  anionnt  ol  dainagi's  yon  :ii(^  Koing  lo  give 
tliein.     [n  considering  a   (pu-stioii  oi   that  kind  yuii   will 

lohave  to  take  into  coiiBidtration  the  ciicunistunces  sur- 
rounding the  urresl  and  iinprisonnient  the  way  it 
waH  done,  and  with  regard  to  that  we  any  that 
the  tiieasuie  of  damages  should  he  on  a  liheral 
scale.  This  (piestion  liad  nothing  to  do  with  the  (piestioii 
of  prospective  catch  which  was  taken  up  in  a  sepaiuto 
chapter.  My  friend  Ic  >k  the  remarks  we  made  in  the  first 
chapter  and  seemed  to  construe  them  as  if  they  a|)phe(l 
particularly  to  the  (luestion  of  prospective  catch,  wliich 
they  did  not.  1  think  we  havt;  now  put  ht^loreyour  Honors 

20 this  (jueslion  of  prospective  catch  fully,  and  these  (pies- 
tiuiis  of  damage  so  far  as  1  need  put  them. 

DosiKiMi:. 

Now,  if  your  Honors  please,  I  will  come  to  another 
question  and  that  is  the  (jiu'stioii  of  the  effect  of  domicile 
of  these  claimants.  Heiore  dealing  with  the  general 
que,-,tion  1  would  like  to  refer  yoiir  lioiiois  to  the  I'liited 
Stales  hiief  at  page  87,  as  I  think  it  advisable  that  this 
question  should  he  cleared  up.  At  page  M7,  at  the  hottoiii 
30of  ihe  page,  the  loUowing  proposition  is  lai<l  down  l)y  niy 
learned  fiieiid: 

"It  mny  lit'  Htatcd  in  tliis  conui'otion  an  tlio  rule  in  rucIi  (laseH,  to 
"  wliich  tUiTc  liuvi!  lii'tMi  no  oxeeptious  under  prior  coniniiHHidus,  and 
"  aH  a  propoHition  which  cariics  ilH  uwn  iliMnouHtration,  that  tu  entitle 
"  that  nation  to  iiiiikc  rci'hmiation  fur  any  oun  um  '  a  person  in  whose 
"  bohalf  (Ireal  Itritiiin  ih  entitled  to  elaiin  eoiupenHation  from  the 
"  United  States,'  the  l)urdon  is  upon  that  nation  at  the  very  outset  to 
"  eBtahliHh  two  things: 

"  l''irst,  and  before  all  elHo,  that  at  the  time  of  the  l!onvontiou  and 
"  of  the  presentation  of  the  elaim  the  claimant  was  under  the  jirotec- 
._  "  tion  of  Oreat  Hritain  as  a  citizen,  with  a  le^^al  domicilo  in  the 
^    "  dominiouH  of  that  nation,  or  not  in  the  United  States; 

"  And  second,  it  must  also  he  estalilished  that  at  tho  time  of  the 
"  injury  of  which  complaint  is  made  the  persim  was  under  the  i»rotec- 
"  tion  of  Oreat  liritaiu  as  a  citiztm,  and  ilomiciled  within  her  domin- 
"  ionH,  or  not  in  tho  Unitod  States,  or,  as  the  t'(|nivaleut  of  domicile 
"  and  citizenship,  wos  on  hoard  a  ship,  as  one  ot  the  ollicers  or  crew, 
"  owned  by  a  Britisli  subject  in  British  territory  or  on  the  high  seas." 

To  put  the  question  shortly,  my  learned  friend  contends, 
that  to  he  a  claununl  here  you  must,  holli  at  tiie  time  of 
the  injury  and  at  tho  liiin'  of  the  Convention,  have  a 
50 domicile  in  Great  Britain  or  under  her  protection,  or  at  all 
events  3'ou  iniisl  not  he  in  the  United  Htates  at  either  of 
these  periods.  He  ha>^ea  that  contention  upon  an  argu- 
ment wliich  1  think  is  not  sound.  He  bases  it  upon  tlie 
word  "  is,"  in  the  Claims  Convention. 

Mr.  Dickinson:— 1  have  not  based  it  on  the  word  '"is"; 
I  based  it  on  that  wholi'  clause. 

Mr.  I'ctt'is:  — Well,  I  will  put  forward  my  coulention. 
This  is  the  clause;  1  say  that  he  must  base  it  on  the  word 
"is": 

"  The  High  Contracting  Parties  agree  that  all  claims  on  account  of 
"  injuries  sustained  by  any  person  in  whose  liehalf  Great  liritaiu  isen- 
"  titled  to  claim  compensation  from  tho  Unitod  States,  etc.,  etc." 

"  The  high  contracting  parties  agree  that  all  claims  on 
account  of  injuries  sustained  by  persons  in  whose  behalf 


i 

m 


1142 

(Mr.  Peters'  Argument  in  Reply.) 

Grout  Britain  is  entitled  to  (•Jiiin)."  Now  my  learned 
friend  elaims  tiiat  tiiat  means  persons  who  are  entitled  to 
claim  at  11, ;•  date  of  tlie  Convention.  Now  on  helialf  of 
Aviiat  pers(.ns  was  (ireat  Britain  entitled  toelaim  at  the 
date  of  the  Convention?  The  answer  is.  she  is  entitled  to 
claim  for  e\eiy  person  who  at  the  time  of  the  injui'V  was 
under  her  |)rote(tion.  'I'liat  is  the  i)luin  answer  to  that 
io(|nestioii.  and  it  seems  to  n)v.  it  is  a  clear  and  concise  an- 
swer to  the  point  taki'u.  Tin;  riji'lit  to  claim  compensation 
arose  when  the  injury  was  done,  and  that  right  never 
c<ndd  he  taken  away  from  (iieat  Britain.  My  learned 
fi'ieii.'.'s  conti'ntiiin  goes  to  this  exteid.  that  if  any  person 
who  was  injured,  a  natmal  horn  British  subject  at  the 
time  of  the  injuiy,  if,  between  that  time,  and  the  making 
of  the  Convention,  lie  went  to  the  I'nited  States,  and  was 
there  domiciled,  that  would  take  away  the  I'ight  of  (Jreat 
Britain  to  claim  compi'usation  on  his  behalf.  We  say  the 
2oclaim  became  vested  so  soon  as  tlie  injury  was  done.  I 
think  if  you  carry  ut  my  friend's  argument  to  its  legiti- 
mate ciinclusioii  ii  .irings  him  into  that  position. 

Till'  Commissioner  on  the  jiait  of  the  United  States:  — 
Snppo-e  he  became  ;i  naturalized  citizen.  1  thiid<  the 
piactice  of  conventions  and  of  mixed  commissions  has 
lieeu  the  other  way.  'i'lieic  seems  to  be  some  difficulty 
in  (ireat  l-!ritain  recovering  fi'om  the  United  States 
States  ,•)  fund  to  be  disi  riliu ted  among  t'ilizens  domiciled  m 
the  I'nited  States  at  the  tnne  when  the  distribution  takes 
30  place.  1  do  not,  nii'an  to  say  that  1  have  , any  views  aiiout 
it.  but  tbeieseem  to  be  practical  ilitticulties. 

Mr,  i^'ters:--  j  submit  that  there  is  no  real  ditticnlty 
about  it.  The  claim  is  put  toiward  by  (ireat  Britain  iuid 
to  a  certain  extent  as  a  national  claim,  a  claim  that  be- 
came vested  at  the  time  the  injury  took  place,  it  is  a 
laile  (d' Law,  practically  clear  and  plain,  I  submit,  that  even 
naturalization  is  in  no  respects  retrospective.  'I'hat  is  laid 
down  by  several  authorities,  that  if  you  becom(>  natiual- 
ized  it  has  im  ellect  on  acts  that  have  occui'red  before  the 
4onatui'.ilizatioii,  I  contend  under  this  case  th.it  there  is  no 
dilHculty  in  the  matter. 

.Now  theie  is  another  matter  which  I  wish  to  call  atten- 
tion to.  ( hi  page  Kl  of  the  argiuneut  my  fi'ieud  is  on  the 
question  as  to  the  effectof  a  citizen  of  the  United  States 
being  partly  interi'sted  in  the  ship,      lie  says: 

"  It  follows,  that  if  (ireat  Pritain  shall  shift  from  the  Rround  here- 
"  tofoie  taktMi.  that  owiH'rHlii))  in  that  riatioiiV  ixjlitioal  Hul)j(?('ts  is 
"  coucIikIccI  liy  showiiit;  a  ship's  rcyfistcr,  and  now  claim  the  ri(/ht  to 
"  protect  .Vnicncau  I'itizciiH  as  against  their  own  i-ouiitrv  hocaii.se  of 
-Q  "  their  ilnmicile  la  ,)ropiiHition  ni'ver  heard  of  before  except  in  the  ar- 
■*  "  K'lnient  here),  the  ehaiijje  should  start  from  the  postulate  as  to  them, 
"  that  their  domieili'  )i.v  residence  has  lietn  eonelusively  shown,  Ixith 
"at  the  time  of  the  seizure,  ami  at  tin-  tinui  of  tho  treaty  and  pre- 
"  Hentatn)U  of  the  elaiins. 

"  The  ipiestiuM  remains  as  to  the  eflfeot  of  part  owuerahii)  by  an 
"  American  citizen  with  a  liritish  suSjeet.  If  joint  owners  or  partners, 
"  the  wliide  (daim   must   fail  l>ey(Uid  (juestiou. 

"  \  recovery  cannot  in  such  casc>  he  had  for  a  moiety  by  the  rule  of 
"  international  or  common  law, 

"  Whatever  the  rule,  however,  on  this  aubjoet,  the  United  Statee 
^.  "  desires  to  nr^'e  it  only  as  a^rainst  those  persons  who  have  suireroj 
^^  "  their  nanu's  to  be  used  by  American  citizens,  or  have  permitt(!il  the 
"  investments  of  American  citizens,  with  them  jointly,  havint?  the 
"  object  in  view  to  aid  such  citizens  to  violate  the  laws  of  their 
"  country  under  cover  of  suidi  arrangements,  and  havt-  befouled  their 
"  consciences  in  the  elVort  to  sustain  the  frau<l8." 


1143 


„1L. 


(Mr.  Peters'  Argiiiiient  in  Keply.) 

I  do  not  understiind  liini  in  liis  oral  argument  to  make 
the  distinction  tiiat  lie  inai<es  lier  >.  I  tliink  your  Honors 
may  make  a  mental  note  of  the  f;ic't  tliat  that  statement 
in  his  written  argiiiiK^nt  goes  a  long  way  to  support  tiie 
contention  i  was  making  that  tliey  were  i)utting  tiiese 
cltiims  on  the  giound  that  I'nited  States  citizens  ac([uired 
vessels  tor  the  purpose  of    defrauding  the    United    States 

10 law.  Because  he  says  it  is  not  urged  hy  tiie  Tnited  States 
against  the  owners  of  tlie  "Tiiumph  "  oi-  tlie  "Onward." 
Finally,  he  says  that  the  (piestion  of  jurisdiction  remains 
for  the  Conmiissiouers  to  decide,  hut  that,  as  far  as  counsel 
are  concerned,  they  urge  it  only  against  tliosc  who  have 
aided  the  (;iti/ens  of  the  I'nited  States  to  violate  the  law, 
and  so  forth. 

My  learned  fiiend,  \v  lien  at  Victoria,  when  the  "  On- 
ward" case  was  closed,  said  the  ohjection  as  to  American 
ownership   only    seemed    to  api)ly  to  one   moiety  "f   this 

20claiin.  If.  my  lea rni'd  friend  is  correct  in  his  ])ri>pfisition 
that  hi'  only  wishes  to  urge  it  in  such  lU'^es,  ilicn  that 
ai)|ilies  to  the  "  Carolena  "  ;is  nuu'li  as  to  any  case  he  has 
mentioned.  However,  T  suhmit  to  the  Cdurl,  as  a  m;Ut(!r 
of  law,  that  there  is  no  donlit  ahout  it  whatever,  even  if 
there  wns  anything  at  ;dl  in  the  (piestion  of  I'nited  States 
citizenship,  it  coulfl  not  he  held  to  apply  to  anything  more 
than  the  interest  that  was  held  hy  :i  ( iiizen  of  the  I'nited 
States.  It  never  could  he  held  to  take  away  the  interest 
of  a  f'.il'  hlooded  British  suhject,  even  though  a  cili/en  of 

30the  United  States  happened  to  he  a  part  owner  in  the 
shi|).  The  (piestion  presents  itself  in  this  way:  take  the 
case  of  a  Ihitish  suhject  who  owiit d  a  part  of  a  ship,  and 
hetakesa  )iartner  with  him  whom  hebelievesto  hea  citizen 
of  tireat  Britain,  hut  it  turns  out  attei  waid  that  he  was 
a  citizen  of  tlu'  Uniti'd  States.  Sup|)ose  the  vessel  is 
seized.  Is  it  to  he  supposed  that  the  nian.  innocent  of 
any  idea  thai  there  was  a  United  States  citizen  with  him, 
shtiuld  he  punished  to  the  extent  of  the  loss  of  his  share 
in  tiie  vessel. 

40  Now  1  come  to  the  general  (juestion  of  the  etfect  of  dom- 
i'lie  on  the  rights  of  (ireat  Britain  to  jiresent  claims.  My 
learned  fiiend,  Mr  Dickinson,  has  argued  this  (piestion  at 
very  great  length,  and  many  of  the  principles  he  lays 
down  tliere  is  no  dispiit(>  about  in  the  lirst  part  of  his 
argument  he  examim  s  the  (p^e^tll)ll  as  to  whether,  pre- 
vious to  the  provisions  of  the 'i'reaty  of  187<i,  tlie  citizens 
of  either  country  wen^  allowed  to  sever  their  original  alle- 
giance. Tiiere  is  no  dispute  whatever  iietween  us  on  that 
point;  not  the  slightest.     Although  1  listened  with  great 

5oi)leasure  to  my  learned  friend's  liistoiical  sketch  from  the 
time  of  Cicero  down  to  that  date,  I  lit  re  was  no  dispute  be- 
tween us  on  that  point  whatever,  'i'lie  consi(l(Mation  of 
this  (]uestion,  we  submit,  is  not  involved  in  the  present 
case.  We  further  admit  that  under  the  Treaty  of  1870, 
whether  subjects  or  citizens  of  either  country  are  allowed 
to  renounce  their  original  allegiance,  does  not  mateiially 
affect  the  controversy  between  us.  Now,  having  !>ia(1e 
bis  historical  sketcli,  lie  proceeds  to  deal  with  the  (pies- 
tion of  allegiance  as  ai)plicable  to  the  picseiit  inquiry,  and 

60 tlie  position  he  has  taken  renders  it  necessary  that  we 
should  very  clearly  lay  down  our  position  in  contrast  with 
the  position  he  takes  here,  that  your  Honors  may  be  fully 
charged  with  the  dilTerence  between  counsel  on  this  im- 
portant   matter.     Mr.    Dickinson's   propositions   are   best 


1144 


lo 


(Mr.  I'etor'd  Argument  in  Repl\'.) 

taken  from  Ins  printed  brief.     On  page   14  he  lays  liown 
tliese  pi  inciples: 

"A  foreigner  i>onnnnpntly  (loniiinltHl  iu  tlio  United  StateH  like  the 
"  cliiimiiut  Cuojier,  nlllioiigli  uuiiiitiu'nlizeil,  owoh  during  the  duration 
"  of  bin  doiiiicili'  nlli'giiiiui>  to  tlii'ir  (ioverumont,  obedience  to  their 
"  nuiuicipai  lawn,  umi  cspeoiallv  to  tiieir  national  aHuertion  of  what 
"  is  variously  termed  dominion,  novereiguty,  or  jurisdiction." 
+  •:^  *  *  •>:•  »  * 

And  on  paj;*'  15  is  this  doctrine  asserted; 

'•  A  citizen  of  the  United  Htates,  wherever  resident  or  domiciled, 
"  until  he  becomes  natm'alized  in  tireat  Britain,  is  atill  bound  to  his 
"  original  alle;,'i,inee  to  the  United  States  in  respect  of — 

"  {a.  I  Their  ussertum  of  jurisdiction  and  Bovereiguty  over  territory 
"  or  j)roiierty. 

"  (  /i.)  All  municipal  luws  having  an  exterritorial  ettect. " 

These  ate  the  two  propositions  which  lu;  lay.s  before 
yon.     A'ow,  W(;  sid)nnt  that  both  of  these  propositions  are 

2o entirely  too  liroad.  Take  the  second  proposition,  and  we 
find  it  is  distinctly  contros't'rted  by  the  lv<>zta  case,  and 
also  by  the  Worth  and  8chreil)er  cases  cited  in  our  brief. 
Kow.  as  to  tile  JCozta  case,  Mr.  Dickinson  draws  attention 
to  the  fact  that  in  t  lie  Taussig  case,  Mr.  iVlarcy  did  not  iiold 
the  same  view  that  he  di<l  in  the  Kozta  case. 

The  facts  in  the  Kozta  case  are  liebue  yor.r  Honors. 
Kozta,  an  Austrian  by  i)irth,  was  dmniciled  in  the  United 
States;  he  was  seized  in  'I'urkisli  territory  by  Anstri;,'!; 
ofticers.      Now,  this  case  is  remarked  n|)on  in  the  book  ni" 

30 learned  friend  cites  so  often,  Cockburn  on  iN'aiionality. 
C'ockburii,  at  page  122,  says  in  a  note; 

"  Hotli  jiiirties  were  e(|iially  in  ttu"  wrong.  The  .Vustrians  had  no 
"  j)reteMsi'  oi  right  for  seizing  Kozta  on  Turkish  tenitory.  T'ho  argu- 
"  ments  of  Mr.  .Marcy  on  tliaV  point,  whicli  are  to  l)t^  found  in  Law- 
"  rence's  note  to  Wheat  on  n^liitive  to  this  case,  but  which  are  too 
"  long  to  lie  inserted  liere,  seem  cnnclusivi-  jn  this  ])oint.  On  the 
"  otiier  liaiul,  tlie  .\iiierican  autlmrities  iiad  no  rigid  to  claim  Ivozta  as 
"  an  American  suliject,  as  lie  had  not  liecome  naturalized.  T'he  |)a'-tv 
"  really  entitleil  to  complain  was  the  Ottoman  (iovernment,  which 
"  refused  the  application  ol  the  Awstriaus  for  leave  to  arrest  Kozta, 
^Q  "  and  [irotcsted  against  tlie  outrage  oll'ered  to  their  authority,  but 
"whose  protest  does  not  api)ear  to  liavo  been  heeded." 

So  that  it  seems,  according  to  this  learned  author,  the 
Ottoman  Ciovernment  had  the  light,  a  rio;ht  that  was  im- 
propeily  refused,  to  [irotect  Kozta  even  against  the 
Austiiaii  (iiyverniiKMit,  the  govermneiit  of  his  original 
birth,  so  that  position,  if  coriect,  controverts  myieaiiied 
friend's  secmul  proposition.  It  does  not  controvert  it 
altogethei'.  but  it  shows  that  his  |iroposition  is  too  broad, 
that  the  proposition  is  not  true  unless  it  has  eombiiied  with 

5oit  certain  (pMlilications.  And  when  yon  tiiid  him  laying 
down  a  proposition  uiiicli  is  too  liroad,  it  reiiuires  a  care- 
ful inspucticni  to  see  bow  lar  that  proposition  ought  really 
to  go. 

iNow,  if  your  Honors  will  tenienibir,  my  leariuMl  friend 
strongly  dilfered  with  .ludgi'  b'ayiior  m  the  ca.se  of  Worth, 
cited  by  lis,  and  be  slateil  that  Hay  nor,  when  aiiotlu'icaso 
came  up  involving  the  same  point,  had  abandoned  the  po- 
sition that  he  took  before  as  not  correct.  Mow,  as  a  mat- 
ter of  fact,  1  want  to  point  out  to  tlieCoiU't  with  reference 

6oto  the  Schreiher  case,  said  to  he  inconsistent  with  the 
Worth  case,  that  there  is  110  such  incoiisisteiicy;  ;iii(i  that 
Judge  Kaynor  ditl  not  iihandoii  the  position  he  took  in  the 
former  case  As  ;i  matter  of  fact  the  .lodges  who  gav<» 
their  jiidgineiit  in  the  Scbieiber  case  adopted  the  rt'ason- 
iiig  used  ni  the  otlii.'r  judgment.      I  will  leter  your  Honors 


lUii 


"^^1 


(Mr.  Peters'  Argumont  in  Reply.) 

to  tl)o  judgment  in  flint  case.    I  find  it  in  the  Senate  docu- 
ments, ^■()s.  21-1(1,  -Jd  Session,  44  Congress,  page  110: 

"  A  fort'ifjiior  iiiiiy  lio  ('iititlcd  to  nroteotioii  oitlior  as  trp  Iuh  ijorson 
"  or  as  to  his  proix'rtv,  or  liotli.  If  Ik?  in  within  tliiH  i'(nintrv  orou  the 
"  (lock  of  (iiic  of  our  vessels  his  person  and  liis  |iroi)(>rtv  with  him  are 
"  nnder  oni-  protection.  .Vml  if  liis  pro|ierty  alone  is  within  this  cmui- 
"  try  it  is  iMititled  to  and  everywhere  receives  the  Kaine  iirotection  as 
"the  pro)ierty  of  citizens;  and  so  of  the  i)ro|ierty  of  an  alien  noii- 
^  "  resilient  upon  the  sens  in  an  ,\niericaii  vessel,  this  (iov<'rniiient  has 
"  always  i'\tenileil  t><  it  the  same  protection  as  to  that  of  cil    'ens. 

"  W(!  think  the  lanf,'ua(j;e  of  this  clause  oi  the  act  exactly  adapted 
"  to  a  state  iif  facts  like  the  present,  anil  tl'at  (Jonjrress  meant 
"  to  say.  '  Whenever,  under  the  circunistaic's  of  the  case,  the  jier- 
"  sou  or  property  of  any  chiimant  was  so  situated  as  to  be  entitled 
"to  the  protection  of  the  I'liited  States,  you  shall  a  vard  to  such 
"  claimant  indc-mnity  fur  loss;  hut  you  shall  have  r  ■ijanl  to  the 
"  power  a>;ainst  whom  protei'limi  is' claimed.  If  a  el  limant  who 
"  eithei'  in  his  ]ierson  or  his  (irojicrty  mif^lit  otherwise  Iwive  liei'U  eii- 
"  titled  to  our  protci'tion.  was  a  native  horn  subject  if  Juifjland, 
"  thron^rh  whose  ne)^litj;etici'  thc.ie  losses  occurred,  you  '.viil  not  f^rant 
20  "  liiiii  vedri'Ss.  We  did  not  eiif,'ajj:e  to  protect  him  as  i.^xainst  the  acts 
"  of  his  own  f^overnineut,  even  tlKUi^h  as  a-^ainst  all  thf  icst  of  the 
"  world  he  «as  entitled  to  and  would  receive  protection." 

*  -;-  ■;-*■****  v 

"  The  only  other  objection  to  the  recovery  by  the  claimants  in  this 
"  case  arises  out  of  the  faei  that  Meyer  hail  aipjilicd  for  and  been  ad- 
"  mitted  to  the  |>rivilei;i>s  ota  liritish  subject  in  India.  It  is  claimed 
"  that  he  coni<>s  within  the  case  of  the  Ihitish  subject  excluded  by 
"  foi'iner  decisions  of  tins  Court. 

"  Meyer  was  not  a  mitive  biun  Mritish  subject,  as  has  i)een  the  case 
"  of  every  one  heretofore  rejecte.l.  He  was  never  naturalized  iu 
"  Kni;land.  I'he  ipialitied  naturalization  which  he  obtained  ^'avo 
.30"  lam  no  ri^htsof  a  Ihitish  born  subject  inKnt,danil.  It  only  entitled 
"  him  to  the  enjoyment  of  certain  privilcLres  in  liritish  India.  He  did 
"  not  renounce  his  alleniance  to  liis  native  country,  nor  did  he  ac- 
"  (luire  the  rij;ht  of  protection  fron;  (ireat  Britain.  exce|)t  as  to  his 
"  person  and  i)roperty  while  within  the  jurisdiction  of  the  colony 
"  which  f^ave  him  the  naturalization.  I'lion  his  return  to  his  native 
"country  he  niinht  lawfully  bear  arms  a(iainst  (ireat  Uritain." 


My  leaiiicd  IVieinl  lias  made  some  leiiiaiks  as  fo  tlie 
standing  of  .liidge  l\ayni>r.  I'eiSDiially,  1  kiow  nofliiiig 
alien  f  liim,  nor  aiiytliiiig  altoiif  flie  .Judges  tiiattumsli  tilted 
4otliat  court,  hut  my  le.iined  friend  is  in  error  when  lie  states 
tliat  tliey  are  not  entitled  to  he  called  Judges  or  to  lie  called 
a  court.  As  a  inatfer  of  fact  the  very  statute  under  whioli 
they  were  a|)poiiite(|  designated  them  asacoorf.  lie  says 
it  was  only  constituted  for  one  year,  hut  as  I  r<'a<l  it  it 
states  it  WHS  for  two  years. 

Jt  was  deliherately  decided  that  (hey  we>re  a  court  in  the 
case  of  Schieiher,  at  page  l'J4  of  the  volume  1  have  just 
re.ad  from. 

"  The  Court  of  Commissioners  of  Alabama  Claims  was,  by  the  act  of 
50  "  23d  .rune.  1H7I,  constituted  a  court,  not  in  form  merely,  but  in  every 
"  essential  attribute  of  a  court.  It  is  called  a  court,  and  its  mem- 
"  bers  are  desi(riiated  as  .Tudges.  It  is  rei|iiired  to  meet  and  orpiiiize 
•'  as  a  court.  It  is  emiiowered  to  compel  the  attendance  of  parties 
"  and  witnesstvs,  to  administer  oaths,  to  preserve  order,  to  punish 
"  for  contemjits,  and  to  enforce  the  production  of  books  and  papers. 
"  It  is  rei|iiii(Hl  to  hear  ami  consider  the  allegations  and  |iroofs  of  the 
"  parties,  to  keep  a  record  of  its  procecdintjs,  to  enter  jiidnmcuts, 
"  and  to  exercise,  for  certain  purposes,  the  powers  possessed  by  tllO 
"  t'ircuil  and  District  Courts  of  the  United  States." 

Now,  I  would  refer  you  to  t'ockhuin  on  Nationality, 
6opages  i;io  and  i:*.',*,  siiowing  that  Sei-refaiies  Seward  and 
(.,'ass  reallirmed  the  doctrines  of  iirotectiou  against  the 
country  of  original  allegiance.  I  do  not  tiiinU  it  would  he 
worth  niy  whih"  to  detain  the  Court  hy  reading  those 
pages,  hut  I  .1111  sure  your  Honors  will  do  so.  Our  con- 
tention is  thiit  it  shows  that  these  two  Secretaries  of  State 


i 


1140 

(Mr.  Peters'  Argument  in  Reply.) 

reaftiiDiiMl   the  doctrine  of   protection,  even  against  the 
country  of  oiigin;)!  allegiance. 

Now,  my  learned  friend  put  sonie  illustrations  as  to  the 
invasion  of  territory.  I  think  one  of  them  was  suggested 
by  tiie  Commissioner  on  the  part  of  the  United  States,  in  a 
case  of  su|)posei!  taking  from  some  part  of  New  Bruns- 
wick by  the  (lo vernment  of  tiie  United  States  of  some 
aocitizen  of  the  United  States,  would  such  citi/en  have  the 
right  to  piotection?  My  learned  friend,  aftei'  he  had  con- 
sidei'cd  the  matter  some  time,  had  to  admit  tliat  in  that 
case  his  doctrine  would  not  apply;  that  Great  Britain 
would  have  IIk^  rigid,  to  protect,  even  against  the  country 
of  original  allegiance.  So  that  again  shows  that  the  prop- 
osition laid  down  by  him  is  too  broad. 

Again,  let  us  see  if  there  are  not  other  cases  before  this 
Court  where  my  learned  friend  has  to  admit  that  his  d(Kv 
trines  were  too  broad;  that  tbeie  are  cases  where  the 
20country  of  domicil  can  claim  a  right  to  jirotect  i)eople, 
even  as  against  the  country  of  original  allegiaucc.  Take 
the  Tient  case,  wbei'e  Mason  and  Sliilell  were  taken  by 
force  of  arms  from  otf  a  British  ship,  .-md  1  i)ut  this 
proposition:  Assunung  that  Mason  and  Sjidell  jiad  on  their 
persons  a  large  sum  of  money  and  the  Unitwl  States 
took  it  aw.ay  from  them,  is  it  to  be  assumed  for  one  mo- 
ment that  (ireat  iiritain  would  bavi' Ikmhi  satisfied  with- 
out having  that  money  returned?  Assuming  that  they 
had  any  [)roperty  taken  from  them,  is  it  to  be  presumed 
3othat  Creat  Britam  would  have  been  satisfied  until  that 
property  was  returned?  Not  at  all.  (ireat  Bi'itain  re- 
(piired  those  two  men  to  be  put  back  Just  where  they  were. 
'Jbose  two  men  were  citizens  of  tiie  Unittid  States.  (Jreat 
Britain  was  not  satisfied  until  tliey  \V(>re  restoicd  to  their 
oiiginal  position,  and  if  they  had  had  prop(irty  taken 
away  fiom  them  they  ceitainly  would  have  re()uired  that 
it  be  lestoit'd  to  them. 

Mr.    J)ickinson:--Bear  in  mind  tii.at  the  belligerency  of 
tlu'  Southern  Conft'devacy  had  been  recognized. 
40     Mr.  Peters:— I   am   aware  of  that.     It  had  been  recog- 
nized by  Great   Biitain,  but  had  not  been  recognized  by 
the  United  States. 

Mr.  Dickinson:— Well,  practically. 

The  Commissioner  on  the  part  of  the  United  States: — 
The  Supreme  Court  have  pretty  well  settled  that  it  was  a 
state  of  belligerency  though  never  formally  recogiuzed. 

Mr.  Peters: — That  does  not  alter  my  position.  We  will 
admit  that  (ireat  Britain  acknowledged  a  state  of  belliger- 
ency at  that  time.  I  draw  your  Honors" attention  fuither 
50 to  the  fact  that  in  tb.at  particular  case;  Mason  and  Slidell 
were  not  only  citizens  of  liie  United  States,  but  also  were 
citizens  of  the  United  States  in  active  opi)osil ion  against 
the  (JovermniMit  of  the  United  St.ites.  So  the  case  is  still 
stronger  in  our  favor,  Notwithst.inding  that  fact.  Great 
Bi'itain  says  we  have  the  light  toi>rotert  you  because  you 
wereon  board  of  our  ship,  which  is  part  of  ourpropeity, 
and  therefore  when  you  were  taki'u  olf  even  by  the  Tnitud 
States,  against  whose  sovereignty  you  are  now  iigbting, 
we  uHist  demand  that  you  lie  put  back.  It  seems  to  me 
60 that  the  itro])osition  of  Mr.  Dickinson  thai  the  State  can 
never  protect  as  against  tlie  country  of  origin,  is  alto- 
getlu'r  too  broad  a  proposition. 

Take  the  case  of  tin'  "  \'irginius";  the  "  V'irginms"  was  a 
United  States  ship  with  a  United  States  legist  ry,  anl  hav- 
ing a  certilicate  of  nationality  she  Hew  the  American  flag. 


iu: 


(Mr.  Peters'  Argument  in  Reply.) 

As  a  niattei  of  fact  the  whole  of  the  "  Virginiiis"  was 
owned  hy  a  Spaniard.  It  was  proved  to  the  satisfaction 
of  the  Attorney-General  of  th(i  United  States— that 
the  papers  which  she  held  from  the  United  States 
(Jovernment  had  heen  obtained  by  the  t;rossest  frand. 
That  vessel  was  seized  and  some  of  the  men  on  hoard  were 
taken  on  shore  and  were  shot.     My   learned   friend  says 

lothat  that  has  not  anythinji  to  do  at  all  with  the  taking  of 
the  ship,  because  they  were  taken  on  shore  and  th.'re 
without  a  trial  and  against  th.n  laws  of  civili/ed  countries 
these  people  were  shot,  and  for  that  compimsation  was 
demanded.  Hut  my  learned  friend  loses  sight  of  this 
fact  that  inune(hatt>ly  the  United  States  insisted  that  the 
vessel,  although  admittedly  owned  hy  a  Spaniard,  should 
he  I'etiu'ned  to  the  United  States  ( iovcrnnuMit ;  and  mark, 
youi'  llonois,  they  also  insisted  that  the  people  who  were 
not  shot  by  them,  both  the   passengers   and    crew,  should 

20 be  returned  on  board  the  "  N'irginins ""  to  the  United 
States  (iovernmenl.  A  glai\co  at  the  list  of  survivors  will 
show  that  a  veiy  large  nnndier  of  them  were  citizens  of 
Spain.  You  will  find  a  list  of  them  in  Mxecutivii  Docu- 
ment No.  'M>.  4.'i  Congress,  pages  l,s7  and  ISS.  1  refer  you 
to  that  list  to  show  how  it  proves  my  i>osition.  A  mere 
glance  at  it  will  show  in  tiiatcase,  although  tlie  vessel  was 
really  owned  by  a  Spanianl,  and  although  the  crew  and 
])assengers  were  nearly  all  Spaniards,  the  L'nited  States 
were  not  satistied  with  a  mere  comi)ensation  for  shooting 

30 the  men,  but  she  demanded  and  successfully  demanded  a 
return  of  th(i  vess(>l  and  the  crew. 

Let  me  point  this  out.  Vour  Honors  will  remember 
that  thei'e  were  a  certain  mnuber  of  people  on  board  the 
"  X'irginius"  who  W(>r(!  British  subject'^,  and  some  of 
these  peopk^  were  taken  on  shore  and  shot.  (ilreat 
Britain  made  ;i  den)aud  on  the  Spanish  (iovernmeut 
for  comj>ensation  for  her  subjects  who  were  shot.  Great 
Britain  did  not  contend  .so  strongly  that  the  seizure  of 
tlie  "  VMrginius"  was  wrong,  as  they  thought  possibly  it 

40 might  be  justified  on  the  ground  of  self  jueservation,  but 
Great  Brit.iin  said  whether  it  was  right  or  wrong  to  seize 
the  "  Virginius,"  yet^  as  some  of  her  citizens  were  shot  at 
San  idego  de  Cuba,  after  a  mere  sham  tiial,  sl-.e  de- 
manded damages  for  them.  At  page  4'_',  Foreign  State 
Papers  of  Great  Biitain,  LXXVI  ,  the  British  Minister 
reports  to  Lord  Granville  on  Decend)er  \i,  ls73: 

"  Tlii>  ooi>v  of  till'  S|mnisli  ciri'uliir  to  iirovincial  autliontii'H  iu  wliich 
"  it  i«  stntt'ii  till'  iliH[mti'  with  tlio  Unitoil  Stiiti's  laini'il  by  tlu'  caiiture 
"  of  tlir  '  Viif^iiiiiis  '  has  Iuimi  aiiaut^i'il  in  a  iiiaiiiiin-  hif^hly  lumoiable 
CO  "  to  lioth  romitrioH.  Tho  Oovirnmi'iit  of  tlu'  Hi'inililic  will  jrive  uj) 
"the  steaiiicr  'Virniuins'  and  thi>  snrrirorx  tif'  Ilit'  creir  to  the  United 
"  States." 

J^oyd's  Wlu'aton,  paragraph  PJ4,  i)age  lit',),  says  the  ma- 
jority of  the  passengers  and  crew  were  Cidians. 

In  the  Senate  E.xecntive  Document,  No.  3(i,  page  185, 
Mr.  Hall  writes  to  Mr.  Fish  stating  that  the  total  number 
on  bo.u'd  the  "  \irginius ''  was  J.'i.'^i—,");}  were  executed,  1 
released  and  lol  were  still  held  as  prisoners.  As  to  the 
"N'irginins'"  surviving  crew  being  returned,  I  refer  your 
CoHonors  to  the  proclamation  of  the  Governor  of  Uuba,  page 
Iti'J,  where  he  says  on  December  1!,  1873: 

"  Meantiino  by  tlio  law  of  ueoessity  ami  tho  order  of  the  Oovcrn- 
"  nii'nt  of  tlu'Siiaiiish  Ht'imblic.  \et  ns  ti'tnrn  with  her  surviviu^  I'rcw 
"  till'  sti'anuu'  •  \  irnitini^i,'  whii'li  had  ahriidy  coniiiu'tod  and  was 
"  ttboiit  to  fouiliu't  munitious  of  war  iiud  oUii'i'l'.s  and  uu'U  to  the  camiis 
"  of  our  cncmit's." 


f^ 


j 


lO 


1U8 

(Mr.  Peters'  Argument  in  Rei)ly.) 

President  Grant's  message  on  January  5,  1874,  pages  2 
and  3,  Ex.  Doc.  Number  30,  refers  to  the— 

"  surrender  of  the  vobhoI  and  the  Rtirvivors  to  the  juriHdietion  of  the 
"  trilmnnls  of  the  United  States,  and  also  tlie  prisoners  who  survived 
"  the  niassaeres  were  surrendered  at  San  Diego  do  Cuba  on  the  18th 
"  ultimo,  and  reaehed  the  port  of  New  York  in  safety." 

The  ndditioual  fact  ai)])ears  that  as  to  tlio  British  sub- 
jects taken  on  hoanl  tliat  ship  and  who  were  not  shot,  the 
Spanish  novciiinient  (hd  not  dcHvci"  them  to  the  British 
Government,  hut  dclivei'ed  them  to  the  United  States 
Govcinnicnt,  npnn  \ho  ground  that  tliey  wer<' taken  from 
a  vessel  that  «as  regislered  as  an  .American  shiji  and  ilew 
the  Ar)ieiican  Ha^-.  That  ceit;iinly  sliows  tliat  tlie  con- 
tentinn  lit'  inyleameii  friend  is  aUogether  too  geneial  a 
proposition  iind  loo  liroail. 

Mr.  Dickinson:    d-)o  yon  mean  to  say  that  tlie  (piestion 
2„of  the  natmah/cd  citizensinp  of  the  ])eoph*  who  weie  shot 
was  not  CNtalihshcd? 

Mr.  I'eteis: — Tiiere  were  some  natuiah/Anl  citi/AMis  of 
course. 

i\ir.  Dickinson: — All  of  tliem? 

]\!i.  Peteis:  ~  I  do  not  take  that  to  he  the  case  with  re- 
gard to  ail  of  them. 

Ml-.  J)ickiiisoii:—  You  can  sec  the  wliok;  corres])ondence 
with  r«'feience  to  the  matter.     The  controversy  continued 
later  until  it  was  h(^ld  that  yiiu  could  not   go   behind   the 
^    naturalization  certilicatcs. 

"''  Mr.  I'ereis:  Cooper  was  a  natural  horn  British  subject. 
Again  at  anotlier  point  Mr.  Lear,  the  iiiitish  ^Minister  at 
Madrid,  i(>poits  to  Lord  (iianville,  iS'ovemher  2'.*,  1873, 
that  tlie  British  subjects  foiniiug  part  of  the  passengers 
and  crew  ol  tlie  '"  Virginius"  are  at  the  disjio.sal  of  the 
United  States  Government  because  they  were  captured  on 
board  the  said  American  vessel.  The  Spanish  Govern- 
ment g;ne  as  a  reason  for  giving  hack  these  British  sub- 
jects to  the  United  States,  that  they  were  captur»'d  on 
board  a  vt-ssel  heloiiging  to  the  United  States,  and  being 
there,  thfj  weie  entitled  to  the  full  protection  of  tlu;  flag 
of  tlie  Uutted  States.  We  admit,  as  stated  in  Cock  burn, 
and  (juotiijg  from  Story,  page  84  of  his  hook  on  "  Nation- 
ality": 

"  Jlr.  Justice  ;itory,  '  iin  oniiiient  Anienean,'  holds  that  every  nation 
"  has  lithe'-io  '.issunied  it  as  clear  that  its  laws  extend  to  and  bind 
'■  uatr.ral  oon.  snbjciets  ut  all  times  and  in  all  plaees,'  yet  Her  Majes- 
"  ty's  Coveriinieut  did  not  dissent  from  the  oi)iuiou  of  tlie  same 
"  learned  .1  kIkc,  thai  •  in  Kpeakiug  of  the  right  of  a  State  to  bind  itu 
"own  iiati'e  snbjeets  everywhere,  we  speak  only  of  its  own  claim 
50  "  and  exer.'iHo  of  sovereignty  over  them,  and  not  of  its  right  to  com- 
"  pel  or  equire  obedience  to  such  laws,  on  the  part  of  other  na- 
"  tions;'  and  Her  Majesty's  Government  concurred  with  Mr.  .lustice 
"  (Story  in  imtiutaining  tiuit  m'urji  mtlion  han  an  exiiiiaire  rif/lit  li>  I'eijiiliite 
"  persmiK  mid  ijthnia  irilhin  iln  uirn  territory  uccordiiig  to  ilK  own  sover- 
"  ei;/i/  will  (Did ]iolili/." 

Now,  your  Hon'ors,  I  call  your  alti'iition  to  these  words: 
"Power  to  regulate  persons  aiul  things  within  its  own 
teriitoiy  according  to  its  own   sovereign  will  iind  polity." 

We  fully  .agree  with  that  proposition.  Where  (here  are 
gQgfxids  belonging  to  citizens  of  the-  United  States  within 
tlie  Lcrritorv  of  (Jieat  Britain,  (rreat  Britain  claims  the 
right  to  j)r<>i.wt;  thesp  goods  Mieie.  Mv  learned  friend, 
Mr.  Dickiiis..'!.  ^tat'^i  'fibat  our  position  with  regard  to 
Coofier  is  imoiisisteait  with  our  position  as  regards  [I'raiik. 
T  say  that  as  ('iii*^  .Jiwtiee  (Jockbuin  lays  down  the  prop- 


1149 


(Mr.  Peters'  Argument  in  Reply.) 

osition,  our  position  is  perfectly  consistent.  No  other 
position  could  be  taken  by  Great  Britain,  ami  it  is  the  po- 
sition sbe  lias  taken  ail  thioufib  this  niattei'. 

In  otiier  words,  this  doctrine  applies  only  as  between 
the  nation  and  its  subjects  and  (ixclusively  in  relations  be- 
tween themselves  alone;  it  in  no  way  extends  to  claims 
presented  as  national  claims,  and  the  reason  is,  that 
10 such  claims  are  i)resented  not  so  much  on  behalf  or  in 
the  interest  of  the  ])erson  ag^i'^^'t'd  against  his 
own  nation,  as  in  r(3paration  for  a  national  injuiy  and  in 
discharge  of  the  duties  of  protection  due  to  such  person. 
Thei'e  is  our  position.  \Ve  stand  ui)on  broa:l  ground  - 
and  we  submit  that  the  ground  we  stand  on  cai.not  l)e  suc- 
cessfully assailed.  We  stand  upon  the  ground  that  the 
vessels  were  British  vessels,  and  as  such  they  were  con- 
sidered as  forming  paitof  Br'itish  territory;  that  the  asser- 
tion of  the  sovereignty  of  the  United  States  could  not  ex- 
20 tend  over  such  territ(  ry  or  vessel  and  that  Great  Britain 
i'  entitled  to  i>rotect  nil  parties  on  such  vessels,  who  were 
iiJterested  in  them  or  their  voyage.  In  other  words  that 
the  seizures  in  question  amount  to  an  invasion  of  teiri- 
tory . 

It  cannot  l»e  denied  that  whether  the  United  States  were 
asserting  lln'ir  sovereignty  or  not,  (iitat  Britain  would 
have  had  the  right  to  demand  at  the  mouth  of  the  camiou 
the  return  of  the  ve.;s(^ls  seized,  and  unless  it  is  asserted 
here  that  this  Commission  does  not  run  in  parallel  lines 
30  with  the  rights  of  Gieat  Britain,  as  twi-^ting  at  tlie  time  of 
the  seizure,  our  position  is  uncpiestionabltv 

Now,  let  me  put  it  in  this  way:  would  the  fact  that  the 
seizuies  were  made  by  th(^  United    States   in   assertion  of 
territoi'ial  or  extra  territorial  lights,  or  that  the  owners  of 
the  vessels  weie  domiciled    in    the    United   States,  or  that 
persons  interested    in    their   voyage    were    United  States 
citizens  domiciled  in  British  teriitory,  have  cut  any  figure 
in  the  right  or  action  of  Great  Brit;iin  in  retaking  posses- 
sion of  the  vessels  seized^ 
40     That  cpiestion  is  a  fair  one  to  argue,  and  that  is  a  ques- 
tion that    my    learned    frit>nd,   Mr.    Dickinson,    has  not 
answered    in    any    aigument    that     he    has    {)laced    1)6- 
fore    the    tribunal.     Up      to     the     present     timt;     we 
say    that     our    learned     friend     draws     his    deductions 
from  propositions  that  aiv  too  broad,  and  having  started 
with  those  too  broad  pro|)ositions,  he  comes  to  most  start- 
ling conclusions,      1  ask  wlure  aiv  the  rules  of  international 
law  permitting  the  United  States  to  seize  British  vessels 
on  the  high  seas  under  color  of  exercising  a   propiit'tary 
50 right  in  fur  bearing   animals,    whether  such   vessel  was 
actually  owned  or  not  by  a   Biitisii  snbj(M't  domicileil  in 
the   United  States^     I  liave  already  asked  that  (piestion, 
and   1   fail   to  see  tiiat  any  answer  has  been    given  to  it. 
Such  a  startling   proposition   is  laid  down  by  my  learned 
friend  the  counsi!    for  the  United  States,  and  I  say  it  is 
incumbent  njxtn  1.  in  to  produce  some  authority  in  favor  of 
it.    It  is  incumbent  •  \)ou  him  to  show  that  it  has  become  in- 
ternational law  and  tratthe  nations  haveconsented  to  it,  be- 
cau.so  it  is  the  found,  t^ion  of  international  law,  as  put  by 
60  Lord  Russell  in  bis  or,  '  aigument  before  the  Paris  tribu- 
nal, where  he  s,\id  the  .  hole  i|U(  stion  turned  on  the  ipies- 
tion  of  pluriiitiw  ijcutihii.s.      Wiiere  is  the  iuithority  that 
will  show  that  eitlifr  Grtat  Biitain  or  the   United  States 
ever  consented   tint    a  proposition  of  that  kind  became 
part  of  international  law;  a  pio|)osition  that  a  pioperly 


'I 


11. -.0 


(Mr.  Peters'  Argument  in  Reply.) 

registered  Britisli  vessel,  and  i)r()|ieily  flying  the  British 
flag  should  be  coiideinned?  We  iiave  the  right  to  ask 
for  some  autiioiity  on  tlie  (juestion  of  international  law 
to  su]>|)ort  that  jiroposition.  On  tiie  contrary  every 
authority  on  the  subject  of  international  law  admits  that 
every  comitry  has  the  light  and  tlio  sole  right  to  protect 
its  own  vessels,  to  look   after  its  own  flag,  and  as  some 

lo  writers  put  it  to  act  as  a  police  ovei'  their  own  commerce. 
The  proposition  that  Mr.  Dickinson  laid  down  is  the  very 
opposite  of  that.  England,  the  I'nited  States,  France 
and  every  coimtry  of  Europe  maintain  that  over  its  own 
flag,  anil  over  its  own  commerce,  every  country  has  the 
sole  right  to  act  a«  police.  My  leai'ned  friend,  Mr.  Dick- 
inson, in  making  this  contention  started  from  a  basis  thcit 
is  too  broad,  and  he  never  can  come  to  a  light  conclusion 
from  such  a  basis. 

My  learned  friend  goes  on  the  idea  that   L'nited  States 

20 citizens,  eilhei'  by  domicil  or  by  biith,  in  the  case  wlu're 
they  are  domiciled  in  (ireat  Mriiain,  and  peisons  who  were 
domicileil  in  the  rniteil  Slates,  who  were  original  subjects 
of  Great  Britain,  have  set  themselves  up  to  undertake  to 
break  and  disi(>gai(l  the  law  and  the  sovereignty  of  the 
United  St.ires.  We  denied  that  Cooper's  domicile  in  the 
United  States  made  any  of  the  vessels  in  question  Ameri- 
can properly,  any  more  than  it  would  have  made  a  piece 
of  real  estah'  on  Hritish  teriitory,  owned  by  him,  Amer- 
ican jiroperly.     The   shii)ping   laws  in  each  country  are 

30 no  doubt  municipal  laws,  but  having  under  the  iiiles 
of  international  law  the  effect  as  following  and  protect- 
ing on  the  high  seas  the  vessel  registered  under  such 
laws. 

We  go  fuifher,  and  v  <•  say  that  it  is  a  fallacy  to  argue 
that  either  Hritish  subjects  or  citizens  of  the  United  States, 
fishing  in  Hehiing  Sea  at  the  lime  of  the  seizures  in  ([ues- 
tion,  were  violating  the  laws  of  the  United  States.  J  sub- 
mit that  in  \ssi',,  lss7  and  1SS!»  theie  was  no  law  in  the 
United  States  that  prevented  any  one  from    hunting  fur 

40Beals  in  Behring  Sea.  I  contend  further  there  was  no  law 
to  prevent  eitbei  an  American  citizen  or  a  citizen  of  tireat 
Britain  from  doing  so.  It  is  a  fallacy  to  pretend  that  in 
1^86,  1887  or  188!>  the  law  of  the  United  States  prevented 
any  person,  either  its  own  subjects  or  the  citizens  of  Great 
Britain,  from  catching  seals!  in  Behring  Sea.  It  niitjht 
have  been  so  if  such  laws,  to  wit,  Section  lsi.56  of  the  Ke- 
vised  Statutes  had  in  terms  or  of  its  own  force  and  effect 
covered  Behring  Sea.  But  that  was  not  the  case.  The 
proof   of    it    is    that     Section     I'.thO    has     remained    in 

SOexistence  as  it  was,  and  that  now  it  in  no  svay  prevents  fish- 
ing in  said  Sea.  Through  an  erroneous  assumption  on 
the  part  of  the  Executive,  it  was  for  the  time  supposed 
that  Section  1056  extended  in  its  effecc  over  Behring  Sea, 
but  as  the  result  of  the  award  of  the  Paris  Tribunal  the 
error  has  been  ascertained  and  acknowledged.  This  er- 
roneous assumption  did  not  make  the  law  different  from 
what  it  now  is.  and  the  Paris  award  did  not  and  could  not 
change  the  Uiw;  it  merely  declares  what  the  law  was. 
That  IS  what  my  learned  friend  Mr.   Beique  meant  when 

^he  was  discussing  the  question  to  prove  that  the  Paris 
award  had  retroactive  effect. 

The  Uomniissioner  on  the  part  of  the  Uniied  States: — 
That  is  the  way  I  understami  him. 

Mr.  Peters:— I  shall  make  that  clear.  If  I  understood 
Mr.  Dickinson  correctly,  he  argued   that  Mr.  Beique  had 


ll.M 


r'S, 


(Mr.  Peters'  Arj^unient  in  Ifcply.) 

contended  tliattlie  "  La  Ninfa"  case  had  some  retroactive 
effect.  We  did  not  make  any  such  contention.  We  con- 
tend that  the  Pari.s  award  iiad  the  effect  of  declaring 
what  tiie  law  was  in  1HS((,  iss7  and  IHS'.t,  and  in  that  way 
was  retroactive  and  in  no  other  way. 

The  Connnissioner  on  the  jwut  of  the  United  States: — 
Mr.  Bei«]ne  made  hims(>]f  i)erfe(tly  clear  to  me. 

lo  Mr  Peters:-  If  you  remeniher,  Mr.  Dickinson  made  some 
sugf^estion  about  that. 

Mr.  Dickinson:— I  made  no  suggestion  at  all  as  to  it  be- 
ing retroactive;  that  came  from  the  Hencii. 

Mr.  Peters:  —At  all  events  there  seemed  to  bo  some  ob- 
scuricy  as  to  the  meaning,  and  I  wisbcul  to  have  that 
cleared  away.  Kven  if  it  were  true,  which  we  do  not  ad- 
mit, that  imtil  the  Paris  award  was  ren<lered,  tlu' judiciary 
of  tiie  United  States  wen;  bound  by  the  erroneous 
position    taken    by    the    Kxecutive    or   political   depart- 

20ment,  and  that  as  a  conse(iuence  the  persons  aggrieved 
by  the  seizures  would  liave  been  unable  to  recuvei',  this 
assuniptiou  of  the  Ext'cntive  has  proved  to  be  tnei'ely  a 
temporary  and  accidental  obstacle  which  iias  now  l)een 
removed.  And  it  is  only  in  tliis  connection  that  we  have 
cited  the  "  La  Ninfa"  case,  as  ai'knowledging  that  as  the 
result  of  the  Paris  award,  the  judiciary  is  no  more  bound 
by  assumption  which  has  been  removed,  and  that  Section 
li»56  never  extended  over  Behiing  Sea.  Tb(!  proposition 
Ave  make  will  Iw  made  more  apparent  if  it  be  supposed 

30  that  after  the  seizure  of  a  vessel  belonging  to  a  citizen  of 
the  Lnited  States,  the  proceecMugs  bad  Ik'i  n  suspended 
until  after  the  rendeiing  of  the  Paris  award  Can  it  be 
supposed  by  this  Commission,  appointed  to  giv(\  effect  to 
that  very  award,  that  the  vessel  could  have  been  c(ni- 
demned;    There  is  a  proposition  which  proves  itself. 

We  further  contend  that,  under  the  L'nited  States  Con- 
stitution, whether  the  construction  |>laced  upon  a  statute 
by  the  Executive  in  matters  of  assertion  of  territory  be 
binding  or  not  upon  the  Judic'iary.  is  a   matter  entirely 

40  municipal  in  its  character,  and  can  have  no  influence 
whatever  on  this  Commission.  If  the  position  was  re- 
ver.sed  and  a  law  siniilar  to  Section  l!t.")ti  had  been  enacted 
by  (rreat  Britain,  the  courts  in  the  latter  country  would 
have  been  free,  and  it  must  be  assumed  that  their  decision 
would  have  been  from  the  outset  m  accordance  with  the 
Paris  award,  and  that  therefore  the  law  (similar  to  Section 
lit56)  would  hav(>  l)een  iield  as  not  applying  to  Behring 
Sea. 

I  am  willing  to  admit  that  a  law  might  have  been  passed 

50 by  the  United  States  wliich  would  have  made  it  il- 
legal, notwithstanding  the  Paris  award,  for  any  of 
their  citizens  to  fish  in  Behring  Sea,  but  no  such 
law  was  ever  passed.  My  learned  friend,  Mr.  Dickinson, 
told  the  Commissioners  that  there  is  a  rule  that  a  person 
domiciled  in  the  United  States  has  no  right  to  ask 
the  countiy  of  his  allegiance  for  protection  as  against  the 
Governmeiit  of  the  United  States,  because  in  the  United 
States  they  have  a  magniticent  system  of  courts,  and  my 
learned  friend,  Mr.   Dickinson,  spoke  very  eloquently  on 

6otliat  point  and  said  that  these  subjects  of  the  foreign 
power  slioukl  apply  to  the  courts  of  tiie  country  they  lived 
in  before  they  could  api)ly  to  a  foreign  power  to  protect 
them  against  the  U  uited  States.  We  contend  that  the  ne- 
cessity of  having  recourse  to  the  courts  of  the  United 
States  does  not  apply  as  against  the  tortious  acts  of  the 


ii:.-_' 


(Mr.  I't'fiis'  ArKiiiiuMit  in  K'cply.^ 

(ii)vi  rnint'iit  itself.   Hall  in  his  hook  on  lnlt>rnation:il  Law, 
at  jiap'  -'7.'>,  states  as  foiious: 

"HtatcH  ixmscss  u  rifilit  of  pnitivtiiin  tlit-ir  H\iliji>i'fH  iiliroad  wliicli  in 
"  I'd-ri'lativi'  to  tlit'ir  rc'spdiisiliilitv  in  rfspocl  of  iiijiiriKs  intlicti'd 
"  upon  foii'innt'iN  witliin  their  iliiMiinidiiM." 

Mr.  Hail  calls  atti'iitidn  to  t lie  fact  that  tlie  ri^ilil  of  pro- 

lotcctinn  is  CO  iclativc  to  tlicir  icsiionsihilitics  in  n's|i('ct  to 
injmu's  iiitliclcil  on  persons  witliin  tlieii' dominions.  They 
have  the  right,  thai  is  to  say,  to  e.xact  reparation  for  inai- 
treatinent  of  their  snhjects  hy  the  administrative  aj^enls 
of  a  foreign  power,  if  no  nieansof  ohtainin}^  le};al  redress 
throngh  the  trilmnals  of  the  coinitry  exist,  or  if  sncli 
nie.nis  as  e.xist  have  heeii  e.\hans|e<l  in  vain;  and  they 
have  the  riyhl  to  iciinire  that  as  helwt'en  their  snhjects 
and  other  jnivate  individnals  the  jiroleclion  of  the  State 
and  the  justice  of  the  coni'ts  shall  lie  alVoi'ded  eipially  and 

2othat conipensalioii  shall  he  made  if  the  eonrts.  fi'oni  cor- 
rnption  or  from  prejndices  itrothei'  like  courses,  are  guilty 
of  serious  acts  of  injustice. 

.Mr.  Hall  there  points  ouf  that  when  it  l»e<'onies  a  tpies- 
tion  hi't ween  a  citizen  of  (iieat  Britain  and  the  govern- 
ment of  tlie  ((inntry  in  which  he  is  domiciled,  where  ho 
has  no  means  of  applying  to thei'ourtsof  that  coiudry  for 
redress,  then  his  lonnlry  of  origin  can  a'so  protect  him. 
My  learned  friend.  Mr.  Hickinsou.  lays  ilowu  an  entirely 
dih'erent  luoposition.     He  lays  down  the  proposition  that 

30whena  dispute  arises  hetweiMi  a  domiciled  citizen  and  a 
native  horn  citizen  the  country  of  domicil  has  a  ligiit 
to  send  the>etwo  men  to  the  same  com ts  and  lo  say  that 
they  sliall  he  treated  e()ually  and  in  the  same  manner. 
But  that  principle  does  not  apply  when  it  is  a  dispute  nt)t 
hetween  private  imiividuals  hut  .i  domiciled  citizen,  and 
the  country  where  he  is  domiciled,  hecause  as  against  that 
country  he  has  not  any  means  of  ri'dress  I  lull  says: 
"  I^ioadly,  all  persons  entering  a  foi'eign  country  nnist 
"  suhmit  to  the  laws  of  that  country;  provided  that  the 

40  "  laws  are  fairly  administered  they  cannot  as  a  rnlt;  com- 
"  plain  of  tin-  effects  u|>on  themselves,  however  great  may 
"  i)e  the  practical  injustice  which  ma.y  result  to  them.  It 
"is  only  when  those  laws  im  not  fairly  administered  or 
"  when  they  ])rovide  no  remedy  for  wrongs  or  when  they 
"  are  such  as  might  happen  in  very  excei)tional  cases  as  to 
"constitute  grievous  oi)|)ression.  then  that  the  Statt;  to 
"  which  the  individual  helongs  has  the  right  to  interfere  in 
"his  behalf."  Now,  I  call  yoiu-  Honors'  attention  to  this 
passage:  "  When  an  mjury  or  injustic(>  is  committed  l)y 

50  "  the  tioverimieiit  itsi-lf,  it  is  often  idle  to  appeal  to  the 
"  comts."  That  fine  (plot  at  ion  ought  to  settlt^  the  argumont 
of  my  leai'ued  friend.  Jn  this  case  the  citizetis  could  not 
be  told  to  go  to  the  courts  of  the  Uinted  Stat(>s  for  redress, 
because  the  United  States  did  not  admit  that  there  was 
any  giievance.  and  it  certainly  would  ht^  futile  to  appeal 
to  their  courts.  We  say  that  the  courts  of  the  United 
States  were  tied  by  tins  action  of  the  KxeciUive.  and  that 
there  was  no  couri.  open  to  our  subjects  to  get  justice  in. 
It  was  stated  by  Sir  t'harles  Tiipper  in  his  argument  that 

60 there  had  been  a  change  of  ground  on  the  part  of  the 
United  States  upon  this  matter,  because  at  Paris  they  did 
not  take  this  point  with  regard  to  Copper,  and  as  a  matter 
of  fact  they  never  did  take  it  until  they  presented  their 
printed  argument. 

I  wish  to  point  out  to  your  Honors  that   Mr.  Dickinson 


II.-.:! 


(Mr,  PcttMs'  Aigiimcnt  in  Ifcply.) 

>?AVt>  an  a  rtMsmi  wliy  it  wmw  imt  ciiiisidcii'ii  ;it  r.uis.  Ili,»t 
ht'furt'  tilt'  I'ai  is 'ri'iliiiiiiil  tlu'V  (ini  not  Invc  anv  i'\  iilciico 
to  sliow  that  ('()i)|i('r  was  (loiiiicilt'd  in  t  lie  riiilfii  Slates; 
that  (|iit'sti()ii  was  not  hel'oic  thcif  niiiiils  liccau^i'  ihi-  tact 
had  not  lii't'ii  provi'tl  to  lht>iu.  Now,  I  wisli  to  poinl  out. 
to  your  Honors  tlial  they  hail  lit't'ort>  the  I'aiis  'rrilinn.il 
(•om|i!t'tt'  t'vidcnct"  on  thi'  point  that  ("oopfi'  was  doniitaicd 
loin  tlio  Unitt'd  States.  I  lefer  to  Volume  Tot  the  .\nieric.in 
Itoprint,  at  paj;es  H-JUand  ;i'JI.  where  tliere  is  set  out.  not  ai\ 
iitViilavit.  ifyoin'  llonois  wiji  rernenilier,  hut  a  st;itenient 
which  is  taken  verl)aily  t'roni  Mr.  ("ooper  in  ,inswer  to 
questions  put  to  him  l)y  counsel  tor  tliel'niled  States; 
and  the  counsel  askinu;  the  ipiest ions  was  Mr.  liMUsinj.;, 
who  is  preHtMit  heri>.  and  he  put  the  tollowin^  ijiu'slionH  ; 

"  Q.  Wliiit  iH  your  iiiiinc",  iip>,  ri'Miili'iicc  iiixl  in'ciiinitiduV  \.  My 
"  mum'  IH  'I'lioimis  II.  Cooiu'r  ;  ii^i'.  .^^i  ;  rcHidfiicc.  noi'ihciiHl  i'diiiit  ef 
"  liiiiu'ct  luid  Hiii'iiiir  'iitu  sti't'cts,  Han   KriiiiciHce  ;  miMi|mtinM,   l)|iii'k- 

20  "  Nlllltll. 

"  t^.  How  loUK  tiavc  you  liccu  a  n'sidciit  of  San  KnmriHi'o  V  A. 
"  Tliirty-lhvi>i'  years. 

"  Q.   Arc  yon  an  .Xincririin  citi/i'n  ?     A.    No,  Hir. 
"  Q.    Have  you  lii'i'ii  nalnralizi'd  ?     A.   Never." 

There  was  I  he  com  pli>te  evidence  het'oie  tiieiii  1 1 i;it  showed 
Cooper's  precise  position;  and  I  would  refer  your  Honors 
to  this  fait  that  as  far  ii.ick  as  the  time  when  the  Cooper 
case  was  hefore  the  Suireme  Court   ol    the  Ciiited  Slati 


till  the  information  with  reo-,ird  to  ( '001 


slaiiilin^'  was 


30 hefore  that  ti  ibiiiial  and  it  w,'is  r.illieraii  extraordinary 
thing',  when  you  tiiid  a  case  arj;iieii  on  one  side  i»y  the  .At 
torney  (ieiu'ial  ol  t lie  I  niled  States,  and  mi  the  other  sido 
by  such  altle  counsel  as  were  employed  hy  (ire.it  Hrilain, 
Mr.  Clioate  and  Mr.  Carlyle,  hrl'ore  a  Court  like  tli« 
Sii|)rem(>  (  oiirt  of  the  I'liiled    Sl.ites,  that   Cooper's  (loiiii- 


cile  in  llie  I'liitcd  Stati 


's  never  came  up. 


Mr.  Hickiii'^on:  Do  ymi  seriously  contend.  ;is  a  lawyer 
having-  cei  tain  ohligatioiis,  t  hat  mere  residence  constitutes 
domicili^^ 
40  Mr.  lA'tiMs:  I  do  not  conleiid  at  all  that  ineie  residiiico 
niak(!s  a  coiutlusive  case  of  domicile;  hiifi  I  do  coiileiul 
that  residoiice  for  thirty  years  is  at  all   events,  as  all  the 


books  show,  piiniaj'acir  evidence  of  iloii 


11c 


am 


1  in  f; 


lit 


18  really  more 


Mr.  Dickinso 


than  / 


nnitii  liic/c. 


No  domicile  should    he   found,      it  was 


investigated  .at  \ictoria.  I  take  exception  that  it  had 
anything  to  do  with  the  appeal  to  the  Suprenu^  Court  of 
tilt)  Unileil  States,  or  that  the  domicile  appeared  or  even 
the  length  of  domicile  .aiipeareil  in  the  Ivecortl. 

50  Mr.  Peters:  'I'liere  is  no  doulit  alioiit  its  appt>ariiig  ht)- 
forti  tli,^  ParisTrihuniil  as  ,1  matter  of  fact;  if  you  w.ant  it 
I  will  give  a  reference  to  show  tli.if  the  lads  of  tliti  casc^ 
relating  to  Cooper's  tlomicile  wenNilsi>  hefore  the  Supreme 
Court  of  the  I'nited  States. 

Mr.  Dickinson:  Tilt!  fact  that  he  lived  at  San  Francisco 
appearetl.  The  f.act  of  his  tavil  tlomicile  was  not  im- 
fiortant,  aiitl  ilid  not  appear  as  a  matter  of  fact  in  th.it 
litigatit)n. 

Mr.  I'etors:-  I  make  the  assertion   that  all  along  tlit>se 

60 facts  were  practically  known  to  the  United  States;  they 
wert!  ctM'tainly  known  before  the  I'aris  Trihiiiial.  Mr. 
Lansing  went  to  San  Kr.ancisco  for  tlit;  purpose  of  invt  sti- 
gatiiig  this  very  ipiestion,  anil  hy  a  most  ciireful  examina- 
tion of  Mr.  Coopi-r  fouml  out  all  the  fat:ts. 


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1154 


(Mr.  Peters'  Argument  iu  Reply.) 

We  submit,  and  (his  applies  t<>  the  Cooper  case  particu- 
larly, that  under  Artifle  III.  of  the  convention,  where  you 
find  tlie  words  that  tlie  (loveriunent  of  the  United  States 
shall  have  the  rijjjht  to  raise  the  <|uestion  of  its  liahility 
before  tiic  Coniinissioners  in  any  case  where  it  shall  he 
proved  that  the  vessel  was  wholly  or  in  part  the  a<'tual 
property  of  a  citizen  of  the  United  States,  the  words 
lo"  citizen  of  the  United  States"  mean  a  citizen,  not 
merely  by  domicile,  hut  a  full  citizen  of  the  United  States 
either  by  birth  or  naturaliziition. 

Commercial  Domicii.k. 

Mr.  Bod  well  has  suggested  that  there  is  another  jKtint 
that  you  must  take  into  consideration,  and  that  is  that 
there'is  such  a  thing  as  conunercial  domicile,  which  he 
has  fully  described;  and  I  wish  to  make  a  few  remarks  in 
continuation  and  support  of  Mr.  Bodwell's  cctntention  on 

2otliat  question,  as  my  friend  Mr.  Dickinson  has  challenged 
the  conclusion  arrived  at  by  .Mr.  Hodwell.  My  friend  Mr. 
Dickinson  claims  that  tlu're  is  a  distinction  between  com- 
mercial domicile  and  ( ivil  domicile;  and,  if  I  understood 
his  argument  corrt'ctly.  he  has  come  to  this  conclusion 
that,  so  far  as  conunercial  domicile  is  concerned,  it  is  a 
doctrme  relating  to  a  state  of  war  and  a  state  of  war  only, 
and  he  cites  on  that  point  Dicey.  Whilst  w»f  admit  the 
proposition  th.it  when  a  state  of  war  exists  the  effect  of 
commercial  doinicde  may  Ite  ditferent  from  the   effect  of 

3° civil  domicile,  we  do  not  by  any  means  admit  that  in  time 
ot  peace  theie  is  no  such  thing  as  commercial  domicile. 
There  is  commercial  domicile  both  in  time  of  peace  and  in 
time  of  war.  The  difference  and  distinction  between 
them  < omes  out  wutiv  clearly  in  time  of  war,  but  they  may 
both  e.xist  all  the  tinif  either  in  peace  or  war.  This  point 
has  been  argued  by  Mr.  Hodwell  in  his  oral  argument.  I 
refer  your  Honors  to  pages  177  to  lit4  of  his  argument 
where  he  discusses  It.  It  has  there  been  shown  that  the 
doctrine  of  the   nationalization  of  property  by  rea.son  of 

40  the  commrrcial  domicile  of  the  person,  is  a  rule  not  only 
of  prize  courts  obtaining  in  time  of  war,  but  also  applies 
in  civil  action  when  the  same  question  arises  in  time  of 
peace. 

In  our  printed  argument,  at  |»age,52,  we  have  referred, 
among  other  authorities,  lo  the  case  of  the  "Matchless." 
This  case  was  also  mentioned  by  Mr.  Dickinson  in  his  oral 
argument,  and  it  is  an  authority  directly  in  point  as  to 
the  application  of  the  <loctrine  of  commercial  domicile  in 
time  of  i)eace. 

50  The  statute  in  question  in  that  case  provided  that  "no 
"  alien  shall  exercise  the  trade  or  occupation  of  a  factor  or 
"  merchant  in  the  plantations."  In  the  judgment  of  Lord 
Stowell,  i)age  97,  he  sets  out  the  facts  of  the  case  as  fol- 
lows: 

"  A  neizure  wan  miido  of  a  cargo  on  board  t't.ifl  vengel,  entering  the 
"  harl>orof8t.  JoIiuh,  Nowfoiiudlauil,  bv  tkeCuHtoniH  HuuHe  offlrera  of 
"  that  port  on  tlie  ground  of  unlawful  importution  into  that  settle- 
"  ment." 

6q  It  will  be  seen  at  once  that  no  principle  of  decision 
which  relates  exclusively  to  time  of  war  entered  into  the 
consideration  of  this  case. 

The  goods  were  libelled  and  claims  were  made  for  the 
goods  on  behalf  of  different  owners.  Among  the  claim- 
ants was  Mr.  Millidge — 


1166 


8H." 

to 
in 


(Mr.  Peters'  Ar^iunient  in  Jioply.) 

"  Described  as  late  of  Ht.  Johns  in  this  island,  at  present  residing  at 
"  Boston,  in  the  United  States." 

The  question  to  lie  decided  was  wliether  Mr.  Milliige 
was  an  alien  oi'  not,  by  reason  of  the  fact  that  he  was 
cairyiiiK  on  trade  in  the  United  States,  althoufrli  in  other 
respects  a  British  subject.  In  dis|>osinK  of  thiit  part  of 
the  case.  Lord  Stowell  used  the  language  ((noted  by  us  at 
'Opage  .52  of  our  printed  argument. 

In  addition  to  the  quotation  so  ni.ide,  the  following  ex- 
tract from  his  judgment,  at  page  104  of  the  Report  1 
Haggord  may  ho  referred  to: 

"  An  ancient  statute,  passed  after  the  principles  of  commerce  began 
"  to  be  cnltivatod  and  favored,  the  14  and  15  Hen.,  8  C.  4,  evidences 
"  a  regard  to  this  rule.  The  enactment  itself  goes  only  to  the  )>a7- 
"  ment  of  dues,  but  the  preamble  goes  much  further,  tending  to  a 
"  recognition  of  an  alien  character  belonging  to  u  Hritish  merchant 
'*  carrying  on  trade  in  a  foreign  country,  without  being  a  luenibe-r 
"of  a' British  factory  there,  and  preserving  to  him,   under  certain 

20  41  ordin,  nces,  the  lH>neflt  of  an  entire  Hritish  character. 

"  VariotiB  strong  authoritic-s,  both  in  diirtu  and  deciHiims,  incline 
"the same  wav.  Lord  Alvauley,  in  a  case  reported  in  BoHancjuet 
"  and  Puller,  declared  that  it  had  been  held  that  a  liritiHli  subject, 
"  resident  in  a  foreign  county ,  is  entitled  tn  nil  the  privileges  of  the 
"  neutral  nation  whilst  he  resides  in  it.  Lord  Keuyou  has  also  de- 
"  clared  that  persons  residing  in  this  country  must,  for  the  purposes 
"of  trade,  be  considered  as  belougiug  to  this  country.  In  the  still 
"  stronger  case  of  V  .non  and  Marryat  it  won  settled  that  a  liritish 
"  born  SI- .iject  residing  in  America  might  trad(>  to  the  East  Indies, 
"  thoutiii  a  British  subject  could  not,  and  surely  if  the  uciiuired  resi. 
"  dence  takes  of  the  British  incapacities  he  has  no  right  to  com))laiu 

30  "  if  it  fixes  upon  him  some  disabilities  of  its  own.  Under  the  shelter 
"  of  these  authorities,  I  should  iui^line  to  hold,  if  I  were  compelled 
"  to  face  the  general  question,  that  a  Hritish  merchant  resident  in  a 
"  foreign  country  must  part  with  some  cnuimcrcial  privileges  which 
"  he  would  preserve  if  resident  at  home,  whilst  he  ucipiires  others 
"  by  residence  abroad.  Hut  it  is  not  uecessary  for  me  to  go  farther 
"  than  to  deliver  the  result  of  my  consideration  of  the  present  mutter, 
"  which  is,  that  Mr.  Millidge  must  in  this  transaction  be  taken  as  an 
"  American,  and  not  as  a  British  merchant.  If  so.  it  is  clear  that  he 
"  can  do  whatever  an  American  merchant  can  do,  and  clearly  not 
"  more." 

40     VVc  submit  that  that  authority  is  directly  in  our  favor. 

In  Mr.  Dickinson's  argument  he  takes  the  ground  that 
the  doctrine  of  conunertial  domicile  is  one  of  war  alone, 
and  he  (juotes  fioui  Dicey's  (.'unHict  of  Laws  from  the 
paragraph  which  is  heacled  "  Conmiercial  Domicile  iu 
time  of  War." 

It  is  perfectly  plain,  however,  that  Mr.  Dicey  does  not 
intend  to  lay  down  a  rule  opposed  to  the  decisions  which 
are  referred  to  by  Lord  Stowell  in  the  rase  of  the  "  Match- 
less," and  in  the  other  authorities  which  we  have  quoted. 
50  It  is  not  denied  by  us  that  coininercial  domicile  is  a  doc- 
trine of  war  which  has  been  univeisally  applied  in  prize 
courts.  It  has  been  already  shown  in  Mr.  Bodwell's  argu- 
ment that  the  point  comes  up  for  discussion  more  fre- 
quently in  prize  courts  than  in  other  actions,  because  it  is 
seldom  that  the  character  of  property,  as  distinguished 
from  civil  status  of  the  individual,  becomes  of  great  im- 
portance except  in  time  of  war. 

It  has  been,  however,  also  concluHively  demonstrated  by 
authority  that  when  the  question  does  arise  in  time  uf 
60 peace  the  same  rule  applies.  The  quotation  which  has 
lust  been  lead  from  Lord  Stowoll's  argument  shows  that 
It  was  a  rule  laid  down  in  England  in  the  time  of  Henry 
Vlll.,  "  after  the  principles  of  commeice  began  to  be  cul- 
tivated and  favored." 

At  that  part  of  Dicey's  Conflict  of  Laws  which  Mr. 


1150 


i .  $  ■ 


(Mr.  Peters'  Argument  in  Reply.) 

Dickinson  was  reading  from,  the  author  defines  civil  domi- 
cile and  coniinercial  domicile,  and  in  ho  doing  uses  this 
language: 

"  When  a  perHon's  civil  domidle  ii  in  queHtion,  the  matter  to  he  de- 
"  termined  \h  whether  he  has  or  has  not  ho  Hetthnl  in  a  given  country 
"  aa  to  have  made  it  in  lionie.  Wlieu  a  ]icr«on'H  commercial  domicile 
"  is  in  queHtion,  the  matter  to )«  determined  iH  whether  he  is  or  is  not 
lo"  renident  in  n  given  couutrv  with  the  intention  of  continuing  to  trade 
"  there." 

It  is  plain  tliat  by  residence  for  the  purpose  of  trade,  ia 
meant  the  jxi.ssession  of  a  trading  establishment,  a  house 
of  biisines.^,  as  distinguished  from  a  domestic  abode.  That 
projxisition  1  may  say  is  supported  by  some  of  the  other 
authors  who  state  plainly  that  a  man  may  have  com- 
mercial domicile  in  two  or  three  countries  at  the  same 
time. 
Our  trontention  has  been,  and  is.  that  the  question  to  be 

20determiMtMl  before  this  Commission  is  the  commercial 
domicile  of  certain  persons,  and  that  the  protection  which 
we  assert  Great  Britain  is  entitled  to  extend,  is  over  the 
property  acciuired  by  those  persons  in  connection  with 
then'  commercial  domicile.  To  add  one  word  to  that,  we 
contend  that  the  right  to  protect  exists  so  long  as  that 
projH)ity  is  in  British  territory  or  in  what  is  equivalent  to 
British  territory,  the  high  seas,  under  her  flag.  It  has 
been  already  argued  that  when  a  nation  extends  to  cer- 
tain pei-sons  privileges  by  reason  of  comnitrcial  domicile, 

30  and  |M!rn.its  such  persons  to  ac(piire  property  in  connec- 
tion with  such  domicile,  it  engages  to  uphold  these  per- 
sons in  the  assertion  of  those  piivileges,  and  to  protect 
that  property  whenevei-  it  is  in  danger  from  the  acts  of 
another  nation. 

When  the  (piestion  arises,  the  point  to  be  determined  is 
one  of  fact,  namely,  is  the  protection  invoked  in  respect 
of  such  privileges  and  in  aid  of  such  property,  or  is  it 
sought  in  connection  with  the  peisonal  right  of  the  indi- 
vidual, founded  upon  his  political  or  civil  status? 

40  In  the  present  case  it  is  not  denied  that  the  United 
States  have  seized  and  forfeited  certain  property.  It  must 
l)e  admitted  that  that  nation  cannot,  for  any  alleged  vio- 
lation of  their  laws  or  sovereignty,  forfeit  British  prop- 
erty either  in  liiitish  territory  or  on  the  high  seas. 

It  will  be  seen,  therefore,  that  it  (Contuses  the  argument 
at  this  stige  to  speak  of  the  personal  obligation,  of  any  sub- 
ject, civil  or  otherwise,  of  the  United  States,  to  obey,  while 
within  the  territory  of  that  nation,  the  laws  of  the  United 
States  or  to  recognize  the  assertion  of  its  sovereignty;  for 

50  such  is  not  the  (juestion. 

An  important  point  for  this  Commission  to  determine  is, 
can  the  United  States,  on  any  groumi  which  has  been  ad- 
vanced respecting  their  aaseition  of  sovereignty,  forfeit 
the  property  which  is  now  the  subject  of  discussion? 

Upon  the  authorities  which  we  have  quote<l,  we  assert 
that  by  tha  rides  of  international  law  this  property  he- 
came,  while  in  a  British  |w)rt,  a  part  of  the  commerce  of 
that  nation,  by  reason  of  the  commercial  domicile  of  the 
owner.       We   further  contend  that   it   maintained   such 

6ociiaracter  upon  the  high  seas,  because  it  departed  from  a 

British  port,  under  the  British  flag.     While  it  remained 

thus  nationalized,  it  was  taken   from  the   possession   of 

Great   Britain,   and  was  without  right  forfeited   by  the 

authorities  of  the  United  States. 

I  have,  as  you  Honors  will  see,  taken  pains  to  put  this 


115: 


(Mr.  Peters'  Argument  in  Reply.) 

almost  in  tho  form  of  writinfi,  so  tliat  I  might  put  our 
views  upon  this  matter  more  concisely  than  if  I  simply  re- 
lied upon  rough  notes,  and  I  think  that  covers  oin-  arjju- 
ment  on  the  poiut  of  coiiunercial  domicile,  and  that  pomt 
your  Honors  will  see  atf»;cts  both  the  Cooper  cases  and 
the  case  of  those  people  who  were  <lomiciIeil  in  British 
territory,  that  is  the  American  citizens;  Cooper,  granting 

lothat  he  had  a  domicile  in  the  L'nited  States-a  civil  dom- 
icile-had also  a  commercial  domicile  and  owned  connner- 
cial  pr(»peity  at  Victoria.  These  other  men.  McLean  and 
Frank,  living  at  Victoria,  stand  in  this  position:  ihey  had 
the  right  to  protecrtion,  whatever  it  may  lie.  that  their 
civil  domicile  gavetluni;  they  also  had  th«- right  of  pro- 
tection that  the  connneniai  domic  ile  gives  them;  so  that 
they  had  hoth.     Coojier  had  one  and  either  is  suHi(  ient. 

Now   1    have  argued   this   point   at   some  considerahle 
length  and   I  have  argued  these  jioints  of  law  as  applying 

20 hoth  to  the  Cooper  cases  ami  to  the  case  of  citizens  of  the 
United  States  who  are  domiciled  at  Victoria.  I  have  gone  at 
this  length  in  the  argument  out  of  respect  I  or  the  great  labor 
my  learned  friend  has  taken  in  aiguingthvse  points,  not 
because  1  think  they  have  any  hearing  on  the  Cooper  case 
at  all.  I  say  that  the  Cooper  case  does  not  come  witiiin 
thenj  at  all.  We  have  another  ground  which  takes  the 
Cooper  case  out  of  every  |)oint  raised  by  my  learned 
friends.  Therefore  it  should  be  understood  that  while  I 
have  argued  these  (|uestion3  as  referring  to  the  Cooper 

30 case,  I  have  only  done  so  because  my  learned  friend  has 
gone  to  so  much  labor  t<»  try  to  show  that  bis  line  of  ar- 
gument a(fe(;ted  the  Cooper  claims  particulaily.  I  have  a 
statement  here  as  to  how  tiie  Cooper  case  actually  stands 
and  when  you  listen  to  that  statement  [  am  satisfied  that 
your  Honors  will  come  to  the  conclusion  that  tht^  (,'oo|)er 
case  does  not  <'ome  within  this  at  all.  What  are  tlie  facts? 
Cooper  was  a  British  subject  by  birth;  i.e  was  at  the  time 
of  seizing  and  now  is  domiciled  at  San  Fianci.sco;  for  many 
years  he  had  l)een  there,  I  think  some  thirty  years;  be  was 

40a  brother-in-law  of  J.  1).  Warren.  In  the  year  iss,-,  Warren, 
theownerof  the  "Grace,"  "Anna  Heck,"  "Sayward"and 
"Dolphin,"  got  into  financial  ditticulties  and  was 
compelled  to  assign  to  one  (iriftiths,  a  British  sub- 
ject, domiciled  at  Victoria  for  the  benefit  of  bis 
(Warren's)  creditors.  Amongst  other  assets  the  ve.'jsels 
mentioned  were  included  in  the  a.'isignment;  the 
vessels  were  at  the  time  of  assignment  mortgaged 
to  Joseph  Boscowitz,  and  in  order  to  jiay  these  off 
it  was  absolutely  necessary  that,  the  vesst*ls  should  be  kept 

Soemployed  piofitably.  an<l  the  circumstances  were  such  as 
in  the  opinion  of  everybody  interested  except  one  creditor 
that  the  actual  working  of  the  vessels  should  be  entrusted 
to  Warren  who  was  a  man  of  great  experience  in  such 
business.  The  (tbjection  raised  by  the  one  creditor  ujade 
it  difficult  for  the  assignee  to  act  as  he  would  have  liked 
to,  and  therefoie,  in  order  to  get  over  the  objection,  the 
vessels  were  put  up  for  sale  tmder  the  Bo.scowitz  mort- 
gages; the  sale  duly  took  place  and  the  vessels  were 
Bought  in  by  Ctioper.     He  paid  no  money,  but  after  the 

6osale  e.xecute'd  new  mortgages  to  Boscowitz.  His  evidence 
cited  in  our  brief  shows  clearly  that  be  did  this  solely  for 
the  benefit  of  Warren.  He  then  gave  Warr(>n  a  power  of 
attorney  to  transact  all  the  business— this  power  of  at- 
torney is  .set  out  in  the  exhibits,  the  page  I  have  not  at 
hand  at  this  moment,  but  I  will  state  it  in  the  notes.    And 


I 


ii:.s 


O  fi  >1 


(Mr.  IVters'  Argument  in  lifply.) 

from  tliiit  dat*'  to  tliis  lie  took  no  part  in  tlit'  nianagcnit'iit 
of  the  vcsM'Is.  leiH'iveii  no  sliaro  of  tlicir  earnings,  and 
a'ted  fioni  lieginniiig  to  end  as  a  mere  tiiiste*';  so  that  the 
tints  are  tliat  Coopiiisa  registered  owner,  hut  is  simply 
a  trustee  for  Warren;  there  is  no  contradiction  or  dispute 
whatsoever  as  to  this  point:  it  stands  alleged  and  [troved 
on  the  one  side  and  not  denied  on  the  other.     It  isohje(  ted 

lothat  MO  reclamation  can  he  made,  on  the  ground  that 
Cooper,  being  domiciled  in  the  United  States,  is  not  a  per- 
son on  whose  Itehalf  (ireat  Mritain  can  claim.  This  tjues- 
tion  was  not  even  mooted  at  Victoria;  it  was  hinted  there 
that  Cooper  might  leally  he  a  nalinalized  ci'i/eu  of  the 
United  States,  and  to  set  this  at  rest  (Jreat  Mritain  called 
him  as  a  witness -1  may  say  at  consideral)le  expense, 
for  we  had  to  s«'nd  to  San  Francisco  for  him;  hut 
when  we  in  our  aiginnent  jioiuted  out  that  the  ipiestion 
of  domicile  of  certain  United  States  citizens  living  at  Vic- 

-otoria  had  a  hearing,  and  that  (iieat  Hritain  had  a  protect- 
ing right  over  them,  the  connsel  for  the  United  States  for 
the  tirst  time  claimed  in  their  lirief  that  Cooper's  domicile 
cut  a  ligine.  Up  to  that  time?  Hoscowitz  only  was  aimed 
at  and  time  and  money  was  e.xpended  in  incpiiring  into 
the  status  of  Boscowitz,  who  now  has  disappeared  from 
the  scene. 

To  this,  even  assuming  land  this  we  do  not  admit  hut 
alisolutely  deny)  that  there  is  anything  at  all  in  the  ohjec- 
tion,  we  answer  in  the  tirsi   place,  that  iucording  to  the 

SOfontention  of  the  United  States,  the  (piestion  to  he  solved 
is,  who  was  the  a(  tu.il  owner,  and  that  the  whole  evidence 
shows  that  the  answer  to  this  (piestion  shonid  he  that 
Cooper  was  not  the  real  owner,  hutth.it  Warren,  a  British 
sul)j»'ct.  resident  in  N'ictoriii,  ^vas.  Warren  is  a  British 
sul)ject,  domiciled  and  reside], i,  -.t  Victoria  and  therefore 
certainly  can  cl.iiin.  even  according  to  their  own  conten- 
tions-and  it  follows  that  the  ohjeittion  has  no  foundation 
in  fact.  So  that  our  liist  answer  is  that  theii' contention 
has  no  foundation  in  fact;  that  the  real  owner  is  beyond 

40all  shadow  of  doubt  a  person  entitled  to  the  protection  of 
(Jieat  Britain. 

To  this  my  friend  Mr.  Dickinson  answers  that  Cooper 
has  stated  that  he  was  own(>r,  put  in  a  claim  and  made  ,an 
affid.ivit,  and  therefore  is  estopped  from  now  denying  or 
taking  up  any  other  position.  And  he  claims  that  Wairen 
has  also  made  an  atlidavit  in  ]iutting  in  the  claim  as  iittor- 
ney  for  Coojier,  wiii<h  is  correct.  As  a  matter  of  fact 
there  was  no  allidavit  of  Cooj)er  when  the  claim  was  put 
in,  and  1  will   show   what  the  anidavit  (  i    Warren    was. 

50 This  is  what  Wairen  swore  to;  you  will  tind  it  in  the 
dechiration  of  tlu'  claim  in  any  one  of  the  Coopei'  vessels. 
I  am  reailiig  from  the  claim  of  the  "(Jrace":  "  1  am 
"  the  duly  a  ithorized  agent  of  Thom.-is  H.  Cooper  of  the  ( 'ity 
"  of  San  FiJincisco  !iu(l  State  of  California  in  the  United 
"  Statt'sof  America,  theowiierof  the  hereinafter  mentioned 
•■  sihooner  '  (Jrace'  by  |)ower  of  attorney,  bearing  date  the 
"  4th  day  "  of  so  and  so.  Ho  does  not  assert  or  allege  that 
the  claim  belongs  to  him  or  to  whom  it  belongs.  He  as- 
serts and  alleges  that  Cooper  w.is  the  registered  owner  of 

<''0  the  ship,  which  he  was.  The  answer  I  give  to  Mr.  Dick- 
inson's claim  that  we  ;ire  estopped  now  from  saying  that 
anyotlier  person  was  interested  in  that  ship  is:  Cooper  is 
not  the  person  before  this  Conuni  ision  at  all.  Tiie  per.son 
wlio  is  before  this  Commission  is  the  C^neeii,  and  it  can- 
not be  alleged  that  any  question  of  estoppel  can  arise  in  her 


nr>i» 


(Mr.  Peters'  Argument  in  Uoply.) 

cast*.  Tlit'W  iM'isoMH  aio  to  bo  protected  Itecauso  property 
wliidi  tlu*  Queen  had  a  riglit  to  protect  has  Ituon  takon, 
and  the  question  is:  Was  that  tlie  fact  or  notf  And  no 
question  of  estopnel  can  prevent  lier  from  finding  out 
wiiether  tliat  is  tlie  case  or  not.  But  apart  from  tiiat 
question,  the  only  ground  on  wliicli  estoppel  could  arise  is 
tliat  (^toper  coidd  not  l>e  allowed  to  set  up  a  claim  incon- 

losistent  with  some  other  claim  prc-jously  asserted  hy  him, 
if  the  settling  np  of  his  present  (.-laim  had  in  some  way 
caused  the  pi'rson  claiming  the  estoppel  to  hav(>  changed 
his  position  hy  rea.son  of  the  setting  up  of  the  original 
claim. 

In  the  present  ("ase  no  such  facts  exist.  There  is  noth- 
ing inconsistent  in  the  position  taken  hy  (^)oper;  he  has 
always  alleged  that  he  was  the  duly  registered  (i..ner  of 
the  vessels;  he  now  says  that  is  true,  hut  he  says  I  have 
also  always  hehl  them  as  trustee  for  Warren.     No  person, 

20 especially  the  United  States,  has  heen  injured  Ity  this 
position.  It  is  one  <;onsiantly  occupied  hy  persons  as  to 
personalty  and  real  e.state.  The  question  of  estoppel  does 
not  really  arise.  The  parties  hefore  this  Commission  are 
(treat  Britain  and  the  L'nited  Slates,  and  not  Cooper  or 
Warren,  (ireat  Britain  is  claiming  to  protect  every  per- 
son who,  according  to  international  law.  she  has  a  right  to 
protect;  and  so  far  as  this  <)iiestion  is  concerned  it  is  a  mere 
matter  of  evidence  to  show  whether  the  person  actually 
owningthe  vessel  isa  citizen  of  the  United  States,     tireat 

30  Britain  cannot  be  estopped  by  action  of  any  person  in  this 
respect. 

The  facts  slutw  that  all  the  vessels  in  cpiestion  were 
registered  at  Victoria,  were  operated  from  there,  and  that 
Victoria  w;!8  their  homo  port  in  every  seus((  of  the  word. 
The  vessels  therefore  were  British  vessels,  lawfully  en- 
titled to  carry  a  British  flag  and  register,  forming  part  of 
the  commerce  of  Great  Britain,  in  full  conformity  with  her 
laws  and  with  the  consent  and  assent  of  her  constituted 
authorities  and  entirely  under  the  a-gis  of  her  protecting 

40  power.  My  learned  friend  seems  to  think  that  we  are 
putting  forward  some  doctrine  Great  Britain  never  con- 
tended for.  I  venture  to  say  that  Great  Britain  would 
never  admit  a  doctrine  which  would  allow  a  vessel  duly 
registered  hy  one  of  her  own  citizens— duly  registered  in 
every  respect  and  duly  entitled  to  fly  her  flag — which 
would  allow  the  United  States,  orany  other  foreign  power, 
when  that  vessel  was  t>n  th«>  high  seas  t(t  si'ize  her  for  a 
breach  of  some  of  its  municipal  laws  or  for  alleged  viola- 
tion of  the  sovereignty  of  the  United  States.     If  that  was 

5odone  on  the  high  seas,  I  ventui'o  to  .say  that  that  doctrine 
would  never  have  received  the  assent  of  Great  Britain,  nor 
of  the  United  Slates  either,  if  the  ca.se  was  put  to  I  hem. 
The  doctrine  my  learned  friends  now  assert  against  (Jreat 
Britain  may  to-morrow  he  asserted  against  the  United 
States,  and  I  venture  to  say  if  asserted  against  the  United 
States,  you  would  find  that  they  would  themselves  very 
soon  he  found  stating  that,  with  regard  to  a  vessel  legally 
owned  and  registered  b}-  one  of  theircitizens,  no  other  na- 
tion  has  a  right  to  takt^   that  vessel  on  the   high  seas  for 

60 breach  of  its  own  nnmicipal  laws.  The  proposition  of  the 
United  States  is  that  because  a  registered  owner  of  the 
ship  happens  to  be  domiciled  in  the  United  Stai  >s.  that 
therefore  the  United  States  can  at  any  time,  in  time  of 
peace,  on  the  high  seas,  seize  her;  and  when  comnensaticn 
18  demanded,  not  hy  Cooper  or  by  the  domiciled  citizen, 


1(1 


11(10 

(Mr.  Peters'  Argument  in  Reply,  i 

but  by  Gr«'nt  Britain  on  bis  bebalf.  can  answci'  Oc»oper  is 
not  a  person  for  wboni  you  are  entitled  ti>  rliiiin  conifjen- 
sation.  I  state  tbat  before  your  Honors  are  askeil  tc  de- 
ci(U'  any  sucb  questions  as  tbat,  it  is  incumbent  upon  'he 
person  alleging  tbat  to  be  international  law.  to  produco 
some  biniling  autbority  wlieie  it  is  sbovvn  tbat  sucb  a  doc- 
trine lias  ever  Iteen  acted  on  bv  any  tribunal  cbarged  with 
lotbe  tliity  of  deciding  matters  of  iiUernational  law. 

M  one  o'clock  the  Commissioners  took  recess. 


.At  baif-past  two  o'clock  tbe  Commissioners  resumed 
tbeir  seats. 

Mr.   Peteis:  -  In  presenting  bis  oral  argimient  to  your 
Honors  (111  tbe  (|uestion3  1  bave  been  dealing  witb,  my 
2ole,Hiie<l  fiiend.    .Mr.  Dickinson,  referred  to  two  pages  in 
"  Cockliiiin  on  Nationality,"  on«'  at  page  ;!S: 

"  It  iii>|ii'nrM,  lunvcvor,  timt  in  18(15  tho  oiiiniou  of  tlu?  law  offloors  of 
••  the  Crown  wits  tnkoii  on  tlii«  Hulijcct,  anil  tlmt,  ii<-cor<1inK  to  their 
"  view.  II  f(irfi>{M<'i',  ilulv  naturulizoil  in  a  RritiHli  colony,  in  entitlfd, 
"us  11  siil)ji>i-t  of  the  t^ufon  in  that  colony,  to  tlut  pro'tiH-tiou  of  tho 
'•  Hritish  (iovcrnuiciit  in  i-vciy  other  State  lint  tlmt  in  which  ho  was 
"  liorn.  ftiiil  to  wliidi  he  owch  a  natural  alluxianco." 

[  wish  to  say  that  at  tbis  point  tbe  autbor  refers  to 
tbe  •'  Keport  of  Connnissioners.  Judicature  Law  Courts' 
30  Naturalization  and  Allegiance,"  Volume  t>5.  If  your 
Honors  will  look  at  tbat  report,  tbe  meaning  of  Cock- 
burn  will  ;ipp(  ar.  and  you  will  see  tbat  tbe  te.\t  is  no 
autbority  for  tbe  contention  of  my  learned  friend.  I  read 
from  Appendi.x,  page  !•»•: 

"  .\  (jnestion  haviii);  ariHcn  a»  to  tho  oflTcct  of  certificates  of  natiiral- 
"  izatiou  );ntnteil  liy  tlie  Senate  of  tho  Ionian  iHlamlH,  I  am  diroctcil 
"  liy  Ijord  .1.  Unssell  to  aci|iuiint  yon  that  Much  <'i>rtiflcateH  do  not 
"  iniiily  tliat  tlie  iiorHons  to  wlioin  they  are  ({ranted  are  entitled  to 
"  British  protection  in  tlieconntrioH  to  which  tlieir  national  allcKianuo 

.Q  "  is  <lue. 

^  •'  You  will  bear  this  in  mind  in  all  cases  of  claims  to  British  protec- 
"  tion  niiide  liv  persons  fn  virtue  of  certiHcites  of  naturalization 
"  );ranttid  to  them  liy  loniiin  Senate." 

■•  Earl  Itussell's  attention  huvinf;  been  fre(jUontly  drawn  ti-  cases  in 
'•  whicli  fiireiffners,  naturalized  in  Britisli  ColonieH,  i-laim  Br  tisii  iiro- 
"  toclion  from  Her  Slajesty's  representatives  and  Consuls  abroi  1,  I  am 
"  directed  by  liis  Lordship  to  .state  to  you  that  tho  mere  fiiv-t  of  a 
"  forei|i{iier  having  boon  naturalized  in  a  British  Colony  does  not  e'ltitlc 
"  such  foreiguor  to  Hritish  protection  out  of  the  colony  in  whicii  tho 
"  cortittcate  of  naturalization  may  have  been  Kranted,  nor  does  it  en- 
"  title  him  to  claim  a  British  pii.ssport. 

,         •■  I  am  told   to  add  that   Her   Majesty's  Secretarv  of  State  for  t.jo 

5^  •'  Colonies  will  instruct  the  'tovornors  <it  British  ('olonies  to  make  the 
'•  above  principle  dearly  understood  iu  gri^ntinK  certitlcates  of 
"  naturalization." 

So  your  Honors  will  note  tbat  wliat  they  were  speaking 
about  was  tbe  rigbt  to  protect  tbe  person  naturali/ed  under 
the  circumstances  in  the  coimtry  of  his  original  birth. 
These  are  tbe  opinions  upon  which  tiiis  pas^^age  is  founded, 
and  tbis  passage  in  Cockbiuu  imtst  be  rtvid  in  the  light  of 
these  opinions.  He  was  not  treating  witb  the  pomt  that 
5q  we  are  considering. 

Mr.  Dickinson:— He  did  not  agr«e  witli  them  there. 

Mr.  Peters:— Tbat  maybe.  Now,  there  is  another  ref- 
erence on  page  1 II  of  Cockburn: 

"  Moreover,  it  is  conceded  that  as  against  any  other  power  except 
"  one  to  which  allegiance  in  due  by  reason  of  the  aecond  nationality, 


1101 


10 


(Mr.  Petei-H*  Argiimei)t  in  Rt'i»Iy.) 

"  ihcv  wonhl  lie  entitled  to  |troterti(in;  ho  t'.mt  it  cuiinot  Iw  nnitl  that 
"  their  eliarufter  of  UritiHli  BudjoctM  in  eoatiiu  .1  to  liritiHh  territory." 

That  (|iiotati(m  also  must  Im  read  in  view  of  the  matter 
whicli  1m'  was  then  discns.sinjr,  and  yon  cannot  get  the  real 
m<>.'tning  of  that  ((notation  nnless  yon  go  hack  to  pago  l)>{) 
and  see  with  what  matter  lie  was  then  dcaHng;  at  page 
inji  he  says: 

•'  ActiuK  on  tlie  rule  nilopted  l>v  hin  predecoHnor  in  ofHce,  the  Earl 
"of  MnluiHliury,  in  a  diM|iutch  written  Hhortly  iifterwiirdH  (March  13, 
"  IH-Vt),  to  Kurl  Cowly,  ou  the  huiiio  Hulgeet,  olmerveH: 

"If  a  perHoii  had  been  liorn  in  Franee,  of  liritiHli  pareutH,  and  had 
"  voluntarily  returned  to  Franco,  he  would  have  been  a  BritiHh  Hub- 
"  ject  in  England,  but  he  would  not  have  been  entitled  to  Itritifih 
"  )irivih!((eH  or  protection  in  France,  an  agaiuHt  the  country  of  bis 
"  actual  birth  and  douiicil." 

Scope  ok  Coxvkntion. 

2Q  Now,  having  made  tlicse  remarks  on  that  part  of  thecase, 
there  is  one  other  niatter  whicli  I  wish  to  refer  to,  as  to  the 
scope  of  the  (,'onveiilioii.  So  far  as  the  scope  of  the  Con- 
vention is  concerned.  I  intend  to  ask  your  Honors  to  read 
the  argument  presented  hv  my  learned  associate.  Mr. 
Bei<|ne.  and  I  propose  to  rest  the  case  entirely  upon  his 
argument,  and  the  remarks  incideiitallv  made  hy  other 
counsel  upon  that  same  suhject 

Mr.  Dickinson,  hoth  in  his  printed  argument  and  oral 
argument  here,  has  laid  down  this   proposition — he  says 

,Qthat  there  is  a  peculiarity  in  the  Constitution  of  the  United 
States,  whi(;li  is  that  a  treaty  (htes  not  heconie  hinding 
until  it  is  assciiteil  to  hy  the  Senate  of  the  United  States; 
and  if  1  apprehend  his  argument  correctly,  he  says  that 
the  construction  attempteil  to  he  placed  on  the  treaty  hy, 
the  counsel  for  (treat  Britain  is  a  menace  to  the  Conven- 
tion itsel" 

Now,  e  stand  upon  this  ground,  that  so  far  as  the 
construction  of  this  treaty  is  concerned,  the  fact  that 
the   Sciiat*'   may   or   may   not   he  asked  to  agree  to  the 

,Q treaty,  in  the  first  instance,  or  afterwards,  to  agree,  or 
find  that  the  arhitratois  were  rij;ht  or  wrong,  has  noth- 
ing to  do  with  how  this  treaty  should  he  construed. 
Your  Honors  are  hound  to  consirue  this  Convention  be- 
tween (Jreat  Britain  and  the  United  States  upon  precisely 
the  same  rules  that  you  would  have  to  construe  a  treaty 
between  (Jreat  Britain  and  Spain,  France,  or  any  otlier 
country,  and  that  provisions  of  the  Constitution  of  the 
United  States,  as  to  the  |trovisions  of  making  a  treaty  or 
for  carrying  into  effect  the  treaty,  have  nothing  to  do  with 

CQ the  construction  of  this  treaty  by  your  Honors.  On  this 
(jue.stion  the  two  powers  have  joined  together  in  commit- 
ting to  yon  the  task,  not  only  of  deciding  each  case  that  is 
properly  brought  before  you  under  the  treaty,  but  also  of 
deciding  whetTier  certain  cases  are  within  your  jurisdic- 
tion. Take  the  cjises  that  arose  under  the  Cominissions  of 
IH.53  and  1W71;  there  was  in  every  case  that  came  up  be- 
fore th«)8e  Commissioners  a  preliminary  (piestion  which 
aflfecte<l  the  jurisdiction  of  the  Commission,  whether  or 
not  the  claimant  was  a  British  subject.     They  had  to  de- 

(5Qcide  that  question.  It  was  committed  to  them  by  the 
powers  that  made  the  treaty  under  which  the  Commission 
sat,  and  they  had  to  decide  whether  they  had  jurisdiction 
over  certain  cases  or  not. 

I  submit  that  the  argument  put  forth  by  my  learned 
friend  is  almost  an   argument   iu   tenorem.     He    says: 


lit;:> 


(Mr.  Pelers"  Ar.4iirni>i)t  in  Wcply.) 

"  You  must  be  very  careful  wliat  you  do,  Itecause  Home 
''action  might  he  taken  hy  the  Senate  and  they  might  re- 
'•  fuse  to  ratifv  your  decision."  We  say  that  is  an  argu- 
ment that  ougfit  not  to  have  any  weight. 

The  case  of  the  "Indian  Cliief,"  H  Itohinson,  12,  was 
referred  to  hy  my  learned  friend,  Mr.  Dickiuson,  as  a  case 
where  the  queslion  of  war  was  not  involved  and  where 

10  the  vessel  seized,  heing  American  owned,  was  held  to  he 
an  American  vessel.  The  nationality  of  the  ship  followed 
the  residence  of  the  owner. 

A  reference  to  this  case,  however,  shows  it  was  a  case 
of  prixe.  The  ship  had  been  taken  in  1795  as  the  property 
of  a  British  subject  liable  to  conflscation  for  b(*it:^  en- 
gaged in  trading  with  the  enemy.  The  ship  was  claimed 
on  behalf  of  Mr.  .lohnson  as  an  American  subject,  hut  it 
was  contended  that,  as  the  property  of  an  American  sub- 
ject empl(»yed  in  a  trade  from  the  colonies  of  the  enemy 

20  to  ports  not  of  his  own  country,  nor  to  ports  of  Kngland, 
tilt  slii|)s  would  be  still  liable  as  bavin;.,' been  engaged  in  an 
illegal  commerce  (see  p.  12.  Argument  of  King's  Advocate). 
Sir  W.  Scott  ip.  17)  referred  to  the  vessel  sailing  with 
American  documents,  saying  if  the  owner  really  resided 
here  such  pa|iers  could  not  protect  his  ves.sel.  If  the 
owner  was  resident  in  England  and  the  voyage  such  as  an 
English  merchant  could  not  engage  in,  an  American  resid- 
ing here  and  carrying  on  trade,  could  not  protect  his  ship 
merely  by  putting  American  documents  on  board.     His 

30  interest  must  stand  or  fall  according  to  the  determination 
which  the  Court  shall  make  on  the  national  character  t^f 
such  person  (p.  17). 

At  page  19,  Sir  William  Scott  said  if  Johnson  had  re- 
.mained  resident  in  England  at  the  time  of  sailing  it  nuist 
be  considered  a  British  transaction,  and  therefoie  a  crim- 
inal transaction  on  the  common  principle  that  it  is  illegal 
in  any  person  owing  allegiance,  though  temporary,  to 
trade  with  a  public  enemy. 
Finally  Sir  William   Scott   held  that  the  adventitious 

40cbaracter  of  a  British  subject,  acquired  by  Johnson,  was 
kist  by  putting  himself  in  motion  to  quit  the  country, 
sine  auiiiio  revertemU,  pages  20-21,  and  he  ordered  the 
ship  to  be  restored  to  Johnson  as  an  American  subject. 
The  cargo  was  claimed  by  Miller,  an  asserted  American 
subject,  page  22,  3  liob.,  hut  Sir  William  Scott  held  that 
at  the  time  of  the  transaction  he  was  resident  in  a  British 
country  in  actual  receipt  of  the  benefit  of  protection  for 
his  personal  property  and  commerce  by  British  arms  and 
British  laws.     At  page  33  he  says: 

^  "  Ab  suck  he  uuRttake  tbe  Hituation  with  all  itn  duties  and  amongHt 
"  these  duties  tbe  duty  of  not  trading  with  the  enemies  of  his  country. 
"  I  am  of  opinion,  therefore,  he  must  l)e  considered  as  a  British  mer- 
"  chant,  and  his  property  as  the  property  of  a  British  merchant  taken 
"  in  trading  with  the  enemy  is  liable  to  contiscation. " 

Visit  and  Seakch.    Flag  and  Registry. 

My  learned  friend  Mr.  Dickinson  sugge.sted  that  the 
British  argument  on  this  subject  consisted  of  an  attempt 
to  contrast  the  views  of  American  statesmen  with  those 
60 of  the  American  jurists,  in  other  words  political  views  as 
opposed  to  legal  views.  When  it  is  remembered  that  the 
British  argument  refers  to  such  authorities  as  Webster, 
Laurence  and  Attorney-General  Williams,  this  position 
cannot  be  sustained.  It  was  said  that  Mr.  Laurence's 
work  and  couclusions  were  published  before  the  conclusion 


no:) 


lOD 

ce'8 
lion 


(Mr.  IVteis'  Aiguinont  in  I?»'ply.) 

of  tlio  corre8|K)n<1<>ii('e  l»etwo«'ii  tliu  two  governments.  Mr. 
Lniircncc'H  conclusions,  he  sayH,  with  in  1H5H,  and  tlie 
conclusion  of  the  coircspontlenct'  in  iH5!>.  At  any  mte 
Mr.  liiiui'i-nce's  hook  was  not  pnhlished  until  th«>  British 
Government,  in  lisr>s,  had  unnouufed  in  I'nrliament  the 
altundonment  of  any  claim  to  visit  or  search  vessels  Hying 
the  Aiiieritan  fla^;.  and  had  puhlicly  stated  that  the  in- 
to st  ructions  to  Kiif^lish  cruisers  liad  heen  suspended  "until 
the  negotiation  proceeds  further,"  and  that  the  British 
Governmt'ut  had  issued  orders  to  "cruisers  on  that  coast 
to  respe<'t  the  Amei'ican  fla^  under  any  circumstancea ' 
(p.  IMS.  LauriMice).  Before  Mr.  Laurence's  hook  was  pub- 
hshetl,  Mr.  Kit/.^erald,  speak in^  for  the  BriMsh  (Jovern- 
ment,  Jiuie  is,  Ih:,s,  Hansard,  101,  paf^e  4«.  i>nnounced: 

"  •  *  •  In  rofiTcnct'  to  thin  rinht  of  viHitntinn  it  \k  no  doiiht  • 
"  puHitivK  miiiriM'  of  irritation  iM'twfcn  tlit*  two  coiintripH,  auil  what- 
"  ever  may  liiivt>  Im>oii  the  |ira<'tico  of  |ir<>ct>ilinK  OovornincutH  of  this 
20  "  country,  the  ri^lit  of  iHiunlinK  I'or  vchhuIh  Iuih  never  lieen  eouoedod 
"  liy  Auieriea.  ('onMiijuontly  it  Imx-ohh-h  our  duty,  in  the  fare  of 
"  eiri'unistanoeH  ho  neriouH,  to  iiHcortain  what  our  ViKhtH  roiillv  are  ; 
"  whether  we  are  preimroil  to  Hland  liy  theui,  and  if  not,  candidly  to 
"  aeknowh'dKe  our  intention  of  K>vinK*th«m  up.  Her  MuieMty'H  (j>ov- 
"  erunieut  have,  tlierefore,  taken  the  advice  of  the  Law  Onicei-M  of  the 
"  (!ro«n  upon  the  whole  (|ueHtion.  It  in  their  decided  opinion  that  hr 
"  the  international  law,  in  timoR  of  peace,  wo  have  no  right  of  Hearcb 
"  or  viHitation  whatever,  and  that  lieinx  the  ca^e,  wo  think  we  Hhould 
"  lie  acting  in  a  luanuer  unworthy  of  the  liritinh  (}<iverninout  if  we  de- 
"  layed  one  minute  couiniuuicating  that  in  formation." 

30  The  question  dehated  between  England  and  the  United 
States  up  to  that  time  concerned  the  African  coast.  The 
corres|M)ndence  in  18r>H-,59,  to  which  Mr.  Dickinson  alluded, 
occurred  in  connection  with  riuban  waters,  and  Sir  Charles 
H.  Tupper  referred  to  this  discussion  as  well  as  to  the 
peiiiMl  dealt  with  by  Mr.  Laurence. 

The  following  reference  to  the  correspondence  1858-59, 
Vol.  XXXIX.  Accounts  &  Pajwrs,  Navy  57/58,  Vol.  L. 
State  I'apers,  British  and  H'oreign,  contaniing  some  addi- 
tional papers  mentioned  by  my  learned  friend,  Mr.  Dick- 

4oin8on,  serve  to  show  the  position  of  the  United  States, 
finally  assented  to  by  Great  Britain,  to  he  that  tliere  was 
no  right  in  time  of  peace  for  a  national  ship  to  visit  any 
ship  on  the  high  seas  flying  the  Hag  of  another  nationality. 
And  having  established  that  principle  without  any  (qualifi- 
cation the  correspondence  further  shows  the  position  of 
the  United  States  to  have  amounted  to  this:  "Such  being 
"  the  admitted  state  of  the  question  of  right,  we  are 
"  willing  for  certain  purposes,  and  under  certain  cir- 
"  cumstances,  not  to  complain  of  the  violation  of  this 

50 "right";  or  in  the  language  of  General  Cass,  Vol. 
XXXIX.,  page  7,  of  correspondence  on  the  question  of 
right  of  visit: 

"  ll  it  otie  Ihinii  to  ilo  a  Ihimj  nroirnilty  iUff/al  ami  excuse  it  hi/  the  iiUend- 
"  inq  ciroim.itiinves,  unit  it  in  mtollii'V  mill  quite  a  differi-itt  thin;/  to  claim  a 
"  riijhl  of  iiclion,  <mil  tlii-  rii/lit  alto  iif  deter-iniiiinij  when,  and  how  and  to 
"  what  extent  it  tif  ill  he  ejcerciteil." 

In  other  words,  you  may  visit  a  ship  flying  the  United 
States  flag  at  your  peril.  In  such  a  case  no  matter  what 
.^the  facts  as  to  the  ship,  we  have  the  strict  right  to  claim 
that  you  have  violated  the  law  of  nations  and  have 
illegally  interfered  w^ith  that  ship,  but  tve  will  not 
complain  where  you  Hnd  in  your  effort  to  sup- 
press the  slave  trade,  that  the  ship  flying  tne 
United    States   flag   is    not   certiHcated    as    a    United 


(Mr.  Pi'ti'is'  Ai'KiinH'iit  ill  |{t|ily.  I 

States  sliip,  but  as  n  iiiatter  of  fact  lu'lon^s  to  tli*>  ooin- 
rotrc-t'  of  (Ji'«>at  Britain  or  to  coiiiitri<>K  witli  which  (hoat 
Britain  has  tri-aty  ri};htH  coiictMliii};  the  ri^ht  of  visit  and 
R(;arch,  Ac. 

(JiMioral  Castt'  letter  of  April  lo.  iH.Vs,  referred  to  hy 
Mr.  I)ickins«)n  and  from  which  the  i|ii<itation  above  ih 
made,  contains  a  para);rapli  at    bottom    of    pa^e   <t   and 

lotop  of  pa^e  "i.  which  was  th«'  paragraph  the  British 
(Sovernment  '.lid  hold  of  in  briii};iiiK  tlH>  I'niled  States 
to  the  posilinii  where  she  conceded  practically  the  privi- 
lege, not  tiie  riKht,  to  ascert.iiii  by  (h(>  papers  the 
national  i<l«'iitity  of  a  vessel,  but  as  will  Ik*  seen,  the 
Treaty  of  isdii.  carefully  limited  this  concession  to  the 
case  of  ships  in  specilic  waters,  and  for  the  pin  pose  of  sup- 
pressing;  the  slave  trade  only.  Nevei theless.  as  will  be 
seen,  tliis  para^iapli  contains  the  sentence  already  quoted 
drawing  the  distinction   bttweeii  tlit!  illegality  of  an  act 

20 excused  by  attending;  '•ircninstances,  and  the  claim  of 
right  to  do  an  act  illegal.  'I'be  fdllowing  is  the  para- 
graph relied  on  by  .Mr.   Dickinson: 

**  Uiutdulttcillv,  if  a  vi'HNfl  iiKHUini'  11  nitliiiiiiil  fiinriiftfr  to  which  hIip 
"  it<  not  ciititlfil,  iinil  in  Huiliii^  uii<li>r  fulNt>  I'ohn-H,  nIii>  ciinnot  !>(<  pro- 
"  ti'cti'tl  \t\  till'  iiHMiiiii|itii>ii  of  a  iiiitioiinlilv,  to  whicliHhi' ImH  iiocliiim. 
••  .\h  tlir  iilfiifitv  of  II  pcrKoii  muHt  li.-  ili-torniiiD'il  l>v  tlif  ollh'i'r  lii'iir- 
"  iiiK  H  proct'sN  for  Ins  iirrcNt,  iiii.l  ili'tt'i'iiiini'il  iit  tlio  risk  of  Htich 
"  otHriT,  »o  iiiiiHt  tlic  nutioniil  ii|<>iitit y  of  u  vckkpI  lie  (U'tcriiiincil,  ut  11 
"  likt<  ha/itril  to  him  who.  iloiiMiiiK  th(>  thi^  hIio  iliH)ihiyH,  Ht'iirchcH 
"  her  to  usi'i'rtiiin  hiT  tnu- chHroftcr.     Thrri',   no  iloiilit.   umy  he  rir- 

10  "  •'iiniHtani'fH,  which  wonhl  ^o  far  to  moilify  the  roniplaiutH  a  nation 
••  would  liavi'  a  rijiht  to  niaki-  for  mich  a  violation  of  its  Novcrcijjnty. 
"  if  the  lioardiiiK  otliccr  hail  jiiNt  k)'ouii(1h  for  HiiKpicion.  and  deported 
"  hiniwelf  ivitli  jiropriety  in  the  perforniaiieo  of  liiH  tiiHk,  doiii>{  no  iu- 
"  jury,  and  iieaiealiiy  returiiinj;  wlien  Hatinfh'd  of  hit*  error,  no  nation 
"  would  make  siifli  an  aet  the  Huhjeet  of  HcrioUH  reelaiiiation.  It  in 
"  one  tliiliK  to  do  a  deed  avowetlly  ille);al,  and  ex'-UHo  it  by  the  attend- 
"  in(!  oircnniNtaiireH.  und  is  another  and  ipiite  a  dilVerent  tiling  to 
"  elaim  a  ri^ht  of  action. .  d  the  ri^ht  alHO  of  determining  when,  and 
"  liow,  and  to  what  exteiil,  it  Khali  lie  cxereiHed.  And  this  is  no  lia'Ti-n 
"  distinction,  sn  far  as  the  interest  of  this  country  is  involved,  luit  it 
"  is  closely  coiinected   with  all  oliject  dear  to  the  .Vmerii'an   pi'ople — 

^O  "  t'"'  freedom  of  their  citizens  upon  the  fji-eat   highway  of  the  world." 

So  Lord  Malinsbury  writing  to  Lord  Xapier  Juih'  II, 
If^.'is,  observes,  page  :is: 

"  Her  Majesty's  (iovernnu-iit  reoonni/e  as  sound  those  Jirinciples  of 
"  International  law  which  have  lieen  laid  down  liy  Oeneral  Casn  in  his 
*  note  ot  tl'.e  loth  of  .\pril  to  your  lordHliip.  principles  which  he  Hup- 
"  jiorts  liy  the  authority  of  Lord  JStowell  and  the  Duke  of  \Vellin){toD, 
"  and  Her  Majesty's  (iovernment  are  also  aware  that  nothing  in  their 
"  Treaty  of  |M42  with  the  I'liited  States  supersedes  that  law. 

"  Her  Majesty's  (iovernment.  however,  think  it  most  iiidiHitrnnnble 

50  •■  to  civilization  and  the  pidice  of  the  hi^li  seas,  that  there  slionld 
"  exist,  practii-ally.  a  liniiteil  power  of  verifyiiiK  the  nationality  of 
"  vessels  suspected,  on  ({ood  grounds,  of  earrviiin  false  colors. 

"  It  is  acknowledged  on  all  sides  that  this  fraud  has  been  exorcised 
"  by  pirates  of  every  country,  but  that  the  flan  of  those  iintioHH,  with 
"  whom  (ireat  Hritaiii  has  no  .Slave  TrenticM,  ih  the  most  often  prosti- 
"  tuted  by  these  enemies  of  mankind. 

"  The  .Vnierican  tiun  has,  therefore,  constantly  been  desecrated  to 
•'  jirotect  the  nefarious  practices  of  suidi  men,  and  if  the  United  Htates 
"  (Government  Khould  insist  upon  an  inexorable  adherence  to  the  letter 
"  of  International  law,  ami  that  this  deterniiuatiou  becomeM  known  to 
"  tlie  world,  the  I'nited  States  flan  will  then  be  the  only  one  to  which 

60  "  these  malefactors  will  hav«'  renource  for  Kccnrity,  and  the  si^ht  and 
"  approach  of  that  new  honored  banner  on  the  hif(li  seas  would, 
"  eventually,  become  the  cause  of  just  HURpieiou  and  alarm  to  the  law'- 
"  ful  but  defenseless  trader.  Hut  the  United  StateH  Oovornment  can- 
"  not  d(>sire  such  a  c<msuniniation.  Both  passaRea  in  General  CasR's 
"  able  note,"  and  the  practice  of  the  wor  novy  of  America,  iiiduce  Her 
"  Majesty's  ( iovernment  to  believe  that  the  veriileation  of  nationality 


ii)i:> 


10 


20 


(Mr.  PttciH'  ArgiiiDfiit  in  |{<|>ly.) 

'  iiin,v  l»'  olitnini'il  liv  mmn  mulinil  'irrtinii^miHt  in  r<>){iiril  to  prm-oocl- 
'  iiiKH  to  1)0  <'xi>oiitc<l  liv  llii'ir  ri-H|ii>i'tivf  oDIimtn,  wliirli  may  Ih'  found 
'  etTiM-tivi'  without  liciiiK  on't>ii»ivi<. 

"  Yon  will  thcroforu  iirKc  iipoii  (iciioriil  < 'hnh  t<i  Hut(K<'"t  to  Her 
'  MHJcMty'H  (liiviTiiiufiit  nonif  niji-  to  whirh  our  ofllrtTH  kIiouM  iiiu- 
'  tuiilly  uiliiitro  iiuilfr  tlii'  'ciri'miiHtunrcM  wliicli  li«<  ilf-McrilM>H  '  aHKoiiiK 
'  fnr  to  iiioilify  tin-  <'oiii|iluiiil  u  uution  would  linvt'  tlir  rl^lit  to  uiitke 
'  for  willful  violutioii  of  NovcrriKiity.' 

"  'I'lic  vii'w  luki'ii  of  till-  i|u<'Ntiou  liy  Ailuiirul  iiiiiiwlin,  itHfoiniuuiii- 
'  rat<'<l  to  iiH*  II  Hliort  tiiiit'  imo  liy  tin-  l''ri>iii'h  ('linrx«  il'AlTiiii'i'x,  in. 
'  tlint  ill  tiiiii' of  |i)'ikri>,  till- ri)(lit  to  uHrrrtuiii  tin'  uationitl  i'liiirii>'t<>r 
'  of  tt  forci)(ii  iiiori'liiiul  vi'hkoI  hIiouIiI,  fxccpt  uiiiIit  |>ciMiliar  ciDMiiii- 
'  Htitiici'H  ikiiil  urK<'Ut  iK'ct'HHity,  In-  ri'xti-ictfil  in  itn  i-xi>rri><i'  to  i'i>y\. 
'  |i(i||iii^  u  III)  i-cliuut  vt'HHi'l  to  hIiow  its  colorM;  thill  in  ri-rtiiin  caHvii 
'  Hucli  II  vi'HHi'l  limy  lie  M|>iiki'ii  with,  iivoiiliiiK,  |iow<'Vt>r,  niiy  iiiti'rru|i- 
'  tion  of  itM  coiirHi';  iinil  tliitt  in  onliT  to  wiirrniit  lionnlini^  11  vi-hhuI 
'  uiuliT  Kmii'li  rolors,  llic  |iroi'i>i'iliii((M  of  mu'Ii  vfuwl  kIioiiIiI  lie  Hiich 
'  iiH  to  iiD'oril  ri'iiHoiiulilc  );roiinclN  of  MiH|iicioii. 

'•  TliiH,  to  II  rrrliiin  ili'urcf.  Ih  11  siTiirity  iiKniiiHt  tin-  friiuiluli'Ul  use 
'  of  colorN,  iinil  if  Her  Miiji'Mly'M  tiovriiiiM  nt  ■!<'  not  foiiHidor  it  aa 
'  I'tTi'ftivi'  II  |ii-oci'SM  UN  lliry  I'ould  w  mil  hIioiiIii  '  ■  "xcrriHi'il,  uikI  to 
'  whirh  th)'y  would  In-  I'ciiily  ri'fi|ii'iii-iilly  to  kuIiji'  .  •  i'  IIh^  of  Oroat 
'  liritiiin,  it  in  ut  IcHNt  11  Hufi'^uiiril  ii^itiiiMt  tlii'  occniii  uco  of  hiii'Ii  itt'ts 
'  iiH  till'  rniti'd  Stnlfs  (iovrriiiiii'iit  i'oiii|i|iiiii  of,  nrid  roHtrict.4  the  diii- 
'  orction  of  oniccrM  within  iiiti'lli^'ililc  liiiiitx." 


(it'iu'iul   Cass   iiplies  to   tliis   mi 
follows: 


Ullf     ;<Otll,     'Sns,    H8 


"Till'  I'ri'Midi'iit  dcHiri'H  tliiit  von  would  rx|iri"i«'-  lo  i,..rd  Maliimlinry 
"  IiIh  ^riitillciitioi-  lit  tliit  MiitiHtiictoiy  ti'iiniiiiit'  ,.  of  tlii'  controVfrHy 
"  whirh  liiiH  (;ivi«n  ho  nnifh  trouldf  to  oiii    rt'H|M'i'iivi>  (lori'ninu-iitit 

30  " ''oui'i'riiiiiK  lli<>  cliiini  if  11  riitlit  in  lichiilf  of  11  HritiNli  criiiKi-r,  in 
"  tiiiir  of  iM'iicr.  to  Hi'iirch  of  visit  Anii'ricun  iiii-ri'liuiil  vrHHi>lH  u|iou 
"  tliv  oroiiii.  Hit  llritiuinir  MiijoNty'H  (loNiTuniciit  has  diHchiiniod 
"  this  |ir<'tcnsion." 

■  •  »  »  »  'I'Ik- I'l'i'Midriil  iH  iiwiirt' of  the  uliUNfH  to  which  thofriiudii- 
'•  lent  iiNHuni|ition  of  tin-  IIiik  of  one  I'liwi-r  liy  tin-  riti/i'iiH  or  Hulijcots 
"  of  Hiiothcr,  limy  jjivi'  risi'.  iind  lii'diTply  ri'uri'ts  that  tln'  lliin  of  the 
"  I'liitrd  Htiiti'H  liiiM  lii'iMi  )>roHtitiit<'d  to  unworthy  |inr|iosi'M  liy  Kiich  a 
"  r<'|MrhciiKili|('  iii'oi-fi'diiif;.  At  till'  siinir  tinif  In-  fiiliTtiiiuH  a  Htrong 
'  "  convii'tion  timt  the  oci-iisioniil  uIhihi'  of  tin'  Au)i  of  any  nation  is  an 
"  I'vil  li'HH  to  111'  di'prrniti'd  timii  woulil  In-  tin"  t-NtaliliHliini'iit  of  a  |>r<*- 
"  ti'iiHioii  liki'  this,  \%hii'h  is  inroni))iitiMi'  with  tin-  fri'i'doni  of  the  soaH. 

aq"  Hut  wliili>  iivowiiiK  this  I'onvirtion,  lii>  instriK'ts  nir  to  siiy  that  the 
"  I'niti'd  Sfiiti's  iiri!  not  leKssoliritoustlmn  (ireat  Itritaiii  that  it  rcnii'dy 
"  hIioiiIiI  lit-  found  for  this  fiilst- ciniiloyint'nt  of  imtiuiial  colours,  to 
"  which  liord  AInlinsliiiry  refers  in  just  terms  of  condi'iiiimtion.  And 
"  till'  I'rcsidciit,  though  not  |irc)iiircd  to  niiikc  any  suiincstion  on  the 
"  subject,  is  yet  ready  t  1  receive  iiny  |>ro|ioHitions  which  the  liritish 
"  (lovi-riimeiit  limy  feel  dis|iosed  to  make,  and  to  coiisiiler  them  with 
"  an  earnest  hope  that  the  oliject  niiiy  lie  safely  and  Hiitisfactorily  at- 
"  tained. 

"Hilt  while  comuiunicatiuK  to  his  Lordship  these  favouralile  senti- 
"  liioiitH  of  the  President,  it  is  due  to  the  occasion  to  say  that  there  are 
"  ffrave  diHiciiltii's  in  the  way  of  reconciling  any  kind  of  exiimiuatiou, 

jQ  "  looking'  to  the  detention  of  vessels,  with  tliat  entire  iiiiniiinity  which 

'  "  is  so  dear  to  the  people  of  the  I'nited  States  and  so  iinportiint  to  all 
"  commori'ial  nations.  H  is  a  practical  i|uestion  whose  solution  re- 
"  quires  much  cautiout:  consideration,  and  all  the  .■issiirance  that  cau 
"  lie  given  l>v  this  (ioverninent  is,  that  it  shall  lie  discussed  with 
"  an  earnest  liesire  that  it  may  lie  so  adjuHted  as  to  prevent  the  evil  to 
"  lie  complained  of,  while,  at  the  same  time,  the  ocean  shall  he  left 
"  free  to  the  inoreliant  vi'ssels  of  all  nations,  eaoli  maintaining  its  own 
"  police  without  the  interference   <f  others." 

Tlio  cont'siioinltMice  then  pioroedeil  iotichiii^  nicans  to 
secuii'  pioiKT  vcriticatioii  of  flaj;  as.-'U.' ed    l>y  iiici'cliant 
6oves8«ds  (I^oi'd  Maliiu'!<lniry  to  Loid  NapitT,  July  2Sr(t,  IS58, 
page  35). 

So  l/ifd   Napier  disoisscs  in  a   li'ttt-r  to  Cass,   Fflnu- 

ary  3rd,  IH.V.*,  liic  conrst'  wiiicli  might  ho  prt'sciihed  to  the 

■   coinmaiideis  of  vessels  of  war  in   the  veritieation  of  the 

nationality  of   merchniit   vessels  on  the  high  seas,  hoth 


lUiO 

(Mr.  IVteis'  Argument  in  lieply.) 

with  reference  to  the  enforcement  of  the  exiiihition  of 
colours  and  as  to  tlit;  aKcertaiiiingof  the  right  of  the  vessel 
to  wear  them  (page  ftSi. 

In   a  lett«'r  froru   Lord    Napier  '.  -    Lord   Maimesbury, 
March  2,  1859,  he  says  (page  55): 

"  The  riKlit  of  a  vchspI  of  war  to  compel  a  morchant  vessel  to  display 
"  colors  was  then  nilvcrtfd  to.  Such  a  right  was  not  distinctly  recog- 
"^  "  nized  by  General  Cass,  but  he  went  so  far  as  to  say  that  the  simple 
"  fact  of  refusing  to  exhibit  colors  was  so  high  a  ground  of  suspicion 
"  that  it  might  seem  to  sanction  boarding  and  further  inquiry,  and 
"  that  even  if  such  an  inciuiry  were  not  justitted  by  the  result,  the 
"  Oovernment  of  the  United  States  tntuttl  nut  demntnl  redress/or  itn  act 
"  of  tisil  execuleU  iiiiiler  tlioKe  circiivisliinees." 

And  Lord  Lyons,  writing  to  Lord  Mahiiesbury  April  25, 
lS5lt,  said  (page  tUt): 

"  With  respect  to  the  special  (jucstion  which  was  propounded  by  the 
,  "  British  and  French  (.tovernnients  respecting  the  steps  to  be  taken  in 
'  "  the  case  of  a  vessel  refusing  to  show  any  colors  at  nil,  (Jeneral  Cass 
"  told  me  that  he  could  have  no  difficulty  in  nsseuting  to  the  proposal 
"  that  a  boat  should  be  permittt'd  to  go  alongside;  and,  further,  that 
"  his  own  private  o]>inion  ',vas  that  in  case  a  ship  refused  to  show  her 
"  colors,  it  might  be  deiermiued  that  the  oflScer  of  a  cruiser  boarding 
•'  her  should  incur  no  reHi«)UHil>ility  by  so  doing;  but  there  might  be 
"objections  to  this  which  did  not  at  the  moment  occur  to  him.  Ho 
•' said  that  the  Executive  might  issue  orders  on  the  sul)ject  to  the 
"  collectors  at  the  ports  in  the  Union  and  to  the  otticers  in  command 
"  of  United  Htntes  criiisers,  desiring  them  to  urge  masters  of  American 
"  ships  to  show  their  colors  upon  all  proper  occasions;  but  that  the 
"  President  had  no  power,  without  an  act  of  the  Legislature,  to  impose 
30  "  penalties  upon  masters  of  vessels  who  should,  notwithstanding,  ne- 
"  gleet  or  refuse  to  do  so. 

"  General  t'ass  proceeded  to  remark  that  there  were  now  few  or  no 
"  points  of  difference  between  the  Gaveruments  of  Great  Britain,  the 
"  United  States  and  France  upon  the  slave  trade;  all  now  admitted 
"  that  cruisers  liad  no  right  to  board  vessels  of  a  foreign  nation;  all 
"  were  agreed  that  if  the  grounds  of  suspicion  against  a  ship  were 
"  serious  and  reasonable  no  government  should  raise  a  complaint  if 
"  she  should  be  boarded  by  mistake  bv  a  foreign  cruiser,  provided  that 
"  the  ])rocecdings  vere  conducted  with  i)roper  precautions  and  due 
•'  courtesy.  He  concluded  by  repeating  that  he  should  in  a  few  days 
"  be  prepared  to  enter  upon  the  whole  matter  with  me." 
40 

Independently  of  the  Treaty  of  I8t!2,  a  reference  to  the 
case  of  the  *•  Cortez,"  referred  to  by  (leneral  Ca.ss  as  late  as 
June  5th,  18.5!),  show  how  careful  the  (ilovernment  of  the 
United  States  was  not  to  tolerate,  under  any  circum- 
stances, interference  with  a  vessel  on  the  high  seas  in  time 
of  pence  if  she  had  United  States  papers.  I'age  13  of  the 
corres|)ondeiice  above,  same  volume.  General  Cass  says: 

"  Whatever  may  have  been  the  true  objects  ot  the  voyage  of  the 
"  '  Cortez,'  if  -"he  had  papers  showing  her  American  character  she  was 

50  "  suhjecl  neilhertii  searc/i  tmr  cdiitiire  hi/  it  Uritish  criiiter." 

Lord  Maimesbury,  June  7th,  1858.  page '25  of  the  cor- 
respondence above,  refers  to  information  before  him  to  the 
etfect  that  the  "C'orte/"  possessed  neither  colors  nor 
papers  when  boarded  and  taken,  and  he  adds: 

"  General  Cass,  in  his  note  of  the  12th  Mav,  a  copy  of  which  vou 
"  have  sent  me,  observes,  that  '  whatever  may  Lave  been  the  real  object 
"  of  the  voyage  of  the  "Cortez  "  if  she  had  papers  showing  her  Ameri- 
"  con  character,  she  was  subject  neither  to  search  or  capture  by  » 
(^  "  British  cruiser;'  from  «hich  declaration  I  infer  that  his  Excellency 
"  would  admit  her  liability  to  such  proceedings  if  neither  her  papers 
"  nor  her  colors  were  forthcoming. " 

The  following  paragraphs  in  this  letter  of  Lord  Napier, 
March  2nd,  1859,  page  55,  indicateat  once  the  point  taken  in 
connection  with  General  Cass's  letter  of  April  10th,  namely, 


1167 

(Mr.  Peters'  Argiimont  in  Reply.) 

that  having  estahhslied  the  iinrnunity  of  tlie  flag,  the 
United  States  were  williiitj  itnder  certain  circnmstances  to 
ieclnu'cal  violation  of  that  right  to  n)ake  no  complaint; 
but  it  is  only  in  connection  with  the  Slave  Trade: 

"  In  the  Rourse  of  my  conversation  with  General  Cass  yeaterdav 
"  forenoon,  he  alluded  to  the  debate  in  the  House  of  LordH  on  the  14tu 
"  of  February,  in  which  your  Lordnhip  is  reported  to  have  remarked 

10  "  that  the  Governments  of  Fjtiglaud  and  France  had  nKreed  upon  a  ror- 
"  tain  code  of  instructiouH  to  be  issued  to  tlieir  respective  commanders 
"  at  sea,  with  a  view  to  enforce  the  exhibition  of  colors  by  merchant 
"  vessels,  as  well  as  for  the  purpose  of  ascertaining  the  right  of  the 
*'  merchant  vessel  to  wear  the  flag  displayed,  and  tbat  this  code  had 
"  been  submitted  to  the  consideration  of  the  Government  of  the  United 
"States." 

"  The  right  of  a  vessel  of  war  to  compel  a  merchant  vessel  to  display 
"  colors  was  then  adverted  to.  Hnch  a  right  was  not  distinctly  recognized 
"  by  General  Cass,  but  he  went  so  far  as  to  say  that  the  simple  fact  of 
"  refusing  to  exhibit  <>olors  was  so  high  a  ground  of  suspicion  that  it 
"  might  seem  to  sanction  boarding  and  further  incpiiry,  and  that  oven 

20  "  i'  "wh  an  inqtiiry  were  not  justitted  by  the  result,  the  Government 
"  of  the  United  States  trauld  not  tlmiiiiml  redress  fur  tm  act  of  visit  executed 
"  iintler  those  circumstances," 


.he 

J' as 


)r- 
he 
or 


■ou 
ect 
sri- 

>■  » 
Ley 


ID 


Compare  with  these  paragraphs,  the  following  from 
General  Cass  to  Count  de  Sartiges,  January  2.'),  is,">',),  page 
72: 

"  To  agree  upon  any  plan  of  veriflcotion  which  would  change  the 
"  rule  of  International  law,  and  authorize  in  advance  the  commission 
"  of  trespass,  is  a  very  different  thing  from  merely  assenting  to  certain 
"  modes  of  proceeding  as  being  ;°easonablo  and  ftroper  in  a  given  case. 
30  "  The  former  would  be  alike  objectionable,  I  am  persuaded,  to  the 
"  United  States  and  to  France.  The  latter  would  be  far  less  objec- 
"  tionablo,  and,  as  I  have  already  saiil,  the  precautionary  instructions 
"  of  different  nations  to  their  naval  commanders  respectively,  viould 
"  not  probably  be  very  dissimilar  in  their  general  features." 

Following  these  nogotiationy  (Jeneral  Cass  transmits  to 
Lord  Lyons,  July  18,  IH.'iy  (B.  &  F.  State  Papers,  Vol.  .50, 
page  y7H),  extracts  from  the  instinctions  of  the  (>tli  July, 
1859,  given  by  the  Navy  lV]>artinent  to  Ca|tt.  William 
Innian  in  command  of  the  squadron  of  the  United  States 

40 on  the  African  station.  The.so  instructions  are  contined 
to  duties  in  suppressing  the  slair  trade.  Mr.  Dickinson 
referred  to  these  instructions,  where  it  is  said  the  flag 
which  the  vessel  wears  is  priiiitt  facie,  although  it  is  not 
conclusive  proof  of  nationality.  It  is  a  meie emblem,  and 
it  loses  its  true  character  when  it  is  worn  by  those  who 
Imve  no  right  to  wear  it  (page  {t74,  M  B.  &  K.  State 
Papers).  The  context  of  these  instructions  shows  that 
the  prima  facie  character  is  (juoad  cruisers  of  the  nation 
whose  flag  is  shown,  for  tiie  instructions  proceed  in  the 

50  sai,  :e  paragraph : 

"  Any  vessel  that  displavs  the  American  flag,  claims  to  be  an 
"  American,  and  may  therefore  be  rightfully  boarded  and  examined 
"  by  an  American  cruiser,  if  there  bo  any  circumstances  attending 
"  her  to  suggest  suspicion  that  she  is  not  what  she  professes  to  be, 
"  but  this  privilege  does  not  extend  to  the  cruisers  of  any  other 
"  nation." 

These  instructions,  after  dealing  with  the  case  of  a  dis- 
play of  coloii3  of  a  foreign  nation,  anil  to  a  well  grounded 
gQ suspicion  of  frautlulent  assumption  of  those  colors,  say: 

"In  such  case  it  would  be  a  reasonable  course,  after  due  notice  of 
"  your  intention,  to  send  a  boat  to  her  for  veriflcation  of  her  na- 
"  tionality.  If  she  exhibits  the  requisite  authentic  documents  to 
"  establish  her  foreign  nationality,  you  will  neither  board  her  nor 
"  detain  her  "  (page  975). 


11  r.8 


(Mr.  Peters'  Argument  in  Keply.) 

The  instrnctiona  given  to  British  cruisers  referred  to  by 
Mr.  Dickinson  (page  7H8,  «5()  H.  &  F.  State  papers),  were 
proposed  instructions  in  April  2nd,  ls.->)».  They  refer  to 
provisional  arrangements,  and,  in  conseijuence  of  the  cor- 
respondence already  referred  to,  indicated  the  circum- 
■*ances  and  the  manner  in  which  the  colors  of  a  vessel 
might  In;  veritiefl.  Clause  fi  of  these  legulations  has  the 
lo  following  significant  paragraph: 

"The  veriflontion  will consiHt  in  tho  oxamination  of  the  papers  estab- 
"  liHhing  tho  imtionalitT  of  n  ve.ssel.  Nothing  can  be  claimed  beyond 
"  the  exhibition  of  these  documents." 

These  instructions  not  permitting  any  step  in  the  veri- 
fication of  colors,  otiier  than  the  exhihition  of  the  ship's 
papers,  on  July  8.  1859.  Lord  Kussell  writes  to  Lord  Lyons 
(!»72  B.  &  V.  State  papers,  .")(•),  pointing  out  that  tho  alnise 
of  the  flag  having  been  dealt  with  as  above,  a  difficulty 
jghad  aiisen  from  the  covering  (>f  this  abuse  by  the  produc- 
tion of  shi|>'s  papers  whicli  are  in  reality  fraudulent.  So 
a  memo,  svas  forwarded  Feb.  2sth.  1H«5U,  by  Lord  Lyons 
to  General  Cass  on  the  abuse  of  the  American  flag  by 
vessels  fraudulently  a.ssutniug  it,  and  calling  attention  to 
the  fact — 

"  That  there  is  no  authority  competent  to  take  cognizance  of  the 
"  abuse  of  the  .\mi'rican  Hag,  whether  by  vesNcls  really  American  or 
"  by  ves.fcls  frauiluleutly  assuuiiug  the  nag,  as  there  are  no  United 
"  States  cruisers  on  the  eastern  coast  of  Africo." 

3°  Notwithstanding  these  representations,  tho  most  the 
United  States  would  allow  F^nglish  cruisers  to  <lo  is  .shown 
by  the  Treaty  of  \xi\2.  which  is  set  out  in  Sir  Charles  Top- 
per's argunient. 

That  concludes  the  whole  history  down  to  the  making 
of  the  Treaty  of  I8»i2,  and  contains  all  the  correspondence 
in  di.>ipute  as  to  the  right  of  visit  and  search.  There  are  a 
few  remarks  I  wish  to  make  with  regard  to  some  authori- 
ties cited  by  my  learned  friend.  Mr.  Dickinson,  bearing  on 
this  question.  He  refers  to  Mr.  Dana  in  very  laudablo 
40  terms,  and  |)iobably  they  may  i»e  justified. 

Mr.  Dickinson:  — I'robably; 

Mr.  Peters:— I  say  probably  they  may  be  justified.  They 
are  justified,  we  will  say.  He  referred  to  .\lr.  Dana  in  his 
notes  on  Wheaton;  auil  he  refers  to  him  as  a  distinguished 
coiuitryman.  Those  are  the  words  .Mr.  Dickinson  used. 
I  do  not  know  that  Mr.  Dana  is  iui  authority  sf)  over- 
whelming that,  after  all,  he  can  be  taken  as  an  absolute 
authority  when  he  comes  to  differ  from  men  who  are  also 
authorities  -for  example,  Mr.  liawrence. 
50  1  find  that  that  is  not  the  opinion  held  of  Mr.  Dana  by 
son)e  very  distinguished  counsel  in  the  United  States.  I 
read  from  the  written  argument  of  the  United  States  at 
Paris;  which  I  presume  was  |»r«'|mred  i»y  Mr.  Phelps, 
j)ages  l.W  and  1.">1.  where  it  is  said:  "Mr.  Dana,  wiio 
"  published  an  edition  of  Wheaton,  with  notes,  which,  so 
"  far  as  they  were  his  own,  did  not  add  to  its  value." 
"  There  is  bis  statement  that  in  bis  o|)inion  in  the  decision 
"  of  Church  and  Hubbard.  Chief  Justice  Marshall  and  his 
"  eminent  as.sociates  were  mistaken,  and  this  remark  is 
'^  "  cited  in  the  British  case.  Mr.  Dana  has  no  such  repute 
"  as  makes  iiiui  an  authority,  especially  wlien  be  under- 
"  takes  to  oveirule  the  greatest  of  American  Judges  and 
■'  the  reneated  decisions  of  the  Supreme  Court  of  the 
"  United  States.  No  other  writer  or  Judge,  so  far  as  wo 
"  are  aware,  has  ever  shared  his  opinion,  and,  as  has  been 


nm 


(Mr.  Peters'  Arnmiu'iit  in  Ho|tly.') 

"  seen,  tlin  decision  of  Chief  Justice  Marsliiili  has  received 
"  the  apjuoval  of  very  j^reat  lawyers.  A  little  latei.  re- 
"  ferrin^  to  Hose  r.  Hiniely,  Mr.  Dana  mistakes  that  case 
"  ill  sayiny  that  it  was  there  decided  that  the  j-eiznrc  of  a 
"  vessel  outside  the  territorial  .jnrisdi( lion  is  nnwar- 
"  ranted,  and  he  mistakes  the  Hudson  case,  in  which  the 
"contrary  is  distinctly  held  to  he  the  law,  Chief  .Justice 
lo"  Marshall  concurring;," 

Mr.  Dickinson: —I  am  quite  well  aware  of  the  statement 
made  in  that  argument,  and  I  have  hut  one  word  to  add 
in  relation  to  it,  that  the  statement  is  made  hy  Mr.|Phelps, 
also  of  New  England. 

Mr.  Peters:—!  would  like  on  that  juiint  to  refer  to 
Dana's  edition  of  Wheaton,  and  that  contains  the  preface 
to  the  third  edition,  which  was  hy  the  author  himself, 
and  he  gives  his  opinion  on  tiie  very  point  we  have  under 
discussion.  It  is  dated  Berlin,  Novemher,  IH45.  It  is 
20 page  XXIII. 

1  ask  your  Honors  to  refer  also  to  the  same  hook,  pages 
231.  25(n  2.5!>.  ii«()  and  425,  where  you  will  find  complete 
references  to  the  matter  we  are  <liscussing,  and  which  I 
think  will  illustrate  tiie  matter  more  than  the  reference 
my  learned  friend  gives. 

With  regard  to  Lawrence,  whom  my  learned  friend 
seems  to  look  upon  as  a  man  of  lint  IHtle  autlioritv,  I  find 
Mr.  Lawrence  was  in  1S28  cliaige  d'alTaires  ;it  London. 
This  same  gentleman  edited  an  edition  of  Wheaton  as  lute 
3oas  1863  Your  Honors  will  mark  that  the  edition  of 
Wheaton  he  edited  was  a  year  after  the  treaty  of  1802, 
which  was  the  upshot  of  the  (lis|>ute  as  to  visitation  niicl 
search  and  all  those  |>oints,  and  in  the  preface  of  that 
edition  you  will  lind  at  pages  4  and  .*)  that  lie  was  assisted 
in  tile  preparation  of  that  edition  hy  no  less  a  |)erson  than 
General  Cass;  so  it  may  lie  assumed  that  he  had  very  good 
authority  for  the  statenu'iits  he  made.  1  refer  yon  alsi>to 
page  2<>r)  of  Mr.  Lawrence's  notes  to  Wheaton,  edition  of 
18(i3: 

^  "In  anRwer  to  reclanintinnH  nmile  bv  the  American  Minister  in  Lon- 
"  (Ion,  for  the  seizure  anil  detention  of  vossek  liolouRinR  to  citizenB  of 
"  the  United  States,  Lord  Pahnerston,  under  date  of  August  '27,  1841, 
"  explii'itly  elainied  a  right,  and  which  he  avowed  the  intention  of  his 
"  Government  to  continue  to  exercise,  for  British  cruisers  to  examine 
"  o\ir  vessels,  with  a  view  to  ascertain  by  au  inspection  of  pajiers  their 
"  nationality  ;  and  that  they  meant  tliat  the  United  States  fliipr  sliould 
"  only  exempt  a  vessel  from  search,  when  that  vessel  is  ])rovided  with 
"  papers  entitling  her  to  wear  that  flag  and  i>roving  her  to  be  United 
"  States  property  and  navigated  according  to  law." 

50     Further  down  on  the  same  page: 

"  Mr.  Stevenson  remarks  in  his  answer  of  October  21,  1841,  that  the 
"  claim  asserted  by  Lord  Palmerston  made  the  commander  of  every 
"  British  cruiser  the  exclusive  judge  whether  American  vessels  were 
"  '  properly  provided  with  papers  entitling  them  to  the  protection  of 
"  the  fla;T  tliey  wear,  and  proving  them  to  bo  United  States  property 
"  and  navigating  the  ocean  according  to  law.'  In  Lord  Aberdeen's 
"  answer,  which  was  addressed  to  Mr.  Everett,  under  the  date  of  De- 
"  cember  20,  1841,  he  attempted  to  mako  the  distinction  between  visit 
"  and  search.  The  right  of  search,  he  sa.  t,  'is  not  couflned  to  veriii- 
"  cation  of  the  nationality  of  the  vessel  but  also  extends  to  the  object 
of  the  voyage,  and  the  nature  of  the  cargo.  The  sole  purpose  of 
the  British  cruisers  is  to  ascertain  whether  the  vessels  they  meet 
"  with  are  really  Americans.'" 

Page  268  of  the  .same  hook,  Mr.  Lawrence  takes  up  the 
subject  at  the  point  whore  his  book  referred  to— Lawrence 
on  Visitation  and  Search— left  it.     It  will  he  remembered 


60  .< 


1170 


lO 


(Mr.  Peters'  Argument  in  Heply.) 

that  Ml'.  Lawrence's  IkkiIc  was  written  in  1858,  and  what 
took  place  between  1S58  and  18(»2,  when  the  treaty  was 
made,  he  takes  up  and  considers. 

Mr.  Dickinson :— Does  he  dilTer  f'lom  Mr.  Daua'a  notes? 

Sir  C.   H.  Topper:— Consideiahly. 

Mr.  Peters:— I'age  208,  hottoiu of  the  page: 

*'Wlion  al>au(loiiiiif;  tlio  claim  of  right,  Grout  liritain  asked  that 
"  there  Hhould  bo  hoiuo  nrrangeuieut  among  the  maritime  Htnten  as  to 
"  how  far  their  ottleers  might  go  to  verify  the  uuture  of  the  flag." 

I  will  refer  you  also  to  what  ho  says  at  page  2GJ)  and 

pag((  270.     At  the  bottom  of  page  273  there  is  a  short  note 

I  would  like  to  read,  as  follows: 

"The  seeoiul  edition  of  Druilx  dfs  Nulions  Neiilren,  piililished  after 
"  the  renuueiation  l>.v  England,  in  1858,  of  the  right  of  vimtation,  con- 
"  demned  any  eonveutional  arrangement  that  might  be  ])ropo8ed,  even 
"  for  the  verifloatiou  of  the  nationality  of  the  flag  in  peace,  as  a  con- 
"  ceHRion  of  the  right  of  j)olice  over  its  flag,  which  every  nation  ought 
"to  preserve  intact." 

Another  point  that  was  niaile  by  my  friend,  Mr.  Dick- 
inson: He  leterred  to  some  diplom.itic  correspondence 
from  Lord  Salisbmy  in  which  he  said,  in  regard  to  this 
very  niattei',  when  negotiating  the  treaty,  that  ho  distinctly 
declined  to  become  responsible  for  acts  of  vt's.sels  Hying  the 
British  Hag,  and  he  argues  from  that  that  some  way 
or  otiicr  the  Hag  was  not  conclnsiv«>  and  did  not  show  the 
nationality  of  the  sliip;  bnt  the  objection  taken  bj'  Lord 

30 Salisbmy  goes  on  a  ddferent  groimd  altogetlu'r  anO  it  was 
this:  VVhilst  (ireat  Ihitain  will  hold  itself  respansible  for 
everything  thai  its  nal'onai  ships  may  do,  its  men  of  war, 
people  acting  under  their  authority,  she  dcciin,'s  to  become 
responsible  for  the  ads  of  people  who  simi)ly  aii>  her 
citizens  wheicvcr  they  go-  the  wrongful  acts  ot  citizens. 
Nations  arc  not  liable  and  nmcr  have  been  so  held,  e.xcept 
in  extraordinary  cases,  for  the  mere  wrongful  a(;ts  of  any 
one  of  their  citizens.  Tiie  language  used  by  Sir  Julian 
Pauncefote    in    his   letter   dated    August  2»'i,  isyi,  to  Mr. 

40  Wharton,  Volume  2,  American  Reprint,  page  3150,  is  as 
follows:  '■  My  government  are  unable  to  accept  the  form 
'•  of  clause  proposed  by  the  President  because  it  appears  to 
"  them,  taken  in  connection  with  your  note  of  the  23d 
"  ultimo,  to  imply  an  adnussion  im  their  jiart  of  a  doc- 
*'  trine  respecting  the  liability  of  governments  for  the 
"acts  of  their  nationals  or  other  persons  .sailing  under 
"  their  Hag  on  the  high  seas,  which  is  not  warranted  by 
"  international  law,  and  to  which  they  cannot  subscribe." 
That  was  simply  on  the  idea  that  (ireat  Britain  was  not 

50  held  to  bo  liable  for  every  fraudulent  act  that  every  one 
of  their  nationals  everywhere  did. 

I  think  1  have  already  referred  to  the  cases— I  did  so  by 
way  of  interrupting  my  learned  friend— on  the  Merchant 
Shipping  Act,  which  show  that  a  ship  is  forfeited  from 
the  time  an  impro|)er  register  is  put  in. 

Now  the  L'ommisHioner  for  the  United  States  asked  me 
a  few  days  ago  to  restate  the  |)osition  I  take  with  regard 
to  all  people  on  board  of  the  siiip  being  entitled  to  make  a 
claim.     1  think  the  best  answer  to  that  question  is  to  refer 

60  your  Honors  to  the  Record,  where  the  matter  was  fully 
discussed  at  Victoria.  1  do  not  think  I  have  anything  to 
add  to  the  statement  there  made.  It  came  up  for 
the  first  time  at  page  11S>8,  and  what  we  said  on  that 
occasion  was  restated  at  page  1202  and  following  of 
the  Record,  and  I  do  not  think  that  I  can  add  anything 


1171 


(Mr.  PoUts'  Ai-guinent  in  Hoply.) 

to  thitt  stattjiiu'iit.  To  inulurstaiul  tlio  contention  made, 
your  Honors  shouM  lefer  to  pam*  IIWS.  and  then  to 
page  1202  at  tlie  liottoin  of  the  page. 

There  is  one  matter  tliat  I  want  to  call  your  Honors'  at- 
tention to  briefly.  In  tlie  case  of  the  "  F^avourito,"  p.  H(i9 
of  the  brief  of  the  United  States,  in  connection  with  the 
amount  of  sealskins  she  caught  in  liehring  Sea  that  year. 

loTlie  matter  got  into  confusidu.  It  was  originully  stated 
that  having  taken  2,25!)  sealskins,  UTr)  being  taken  after 
the  warning,  siie  sailed  for  Victoria.  A  correct  i(m  waH 
afterwards  made  iiy  my  learned  friends  an<i  they  inserted 
the  figures  2,874  ami  tliey  made  the  other  figure  68.5.  The 
correcti«)n  was  ma<le  on  iiccnunt  of  evidence  given  l)y  Mr. 
Sprmg,  and  that  evidence  is  found  at  Wecord,  page  IHlHat 

.  the  bottom,  and  top  of  page  i;$M».  'I'bese  were  the  facts: 
Mr.  Spring  had  obtained  s<»me  books  that  had  Ix'eii  origin- 
ally mane  by  Ale.xander  Mc  J  x>an,    and  during  the  course 

20of  his  exammation,  which  tuok  place  som«>  time  before,  it 
was  found  out  that  Mr.  Spring  batl  these  books.  Of  course 
Mr.  Spring  *iid  not  make  the  books  and  was  not  respon- 
8d)le  for  their  corriH-tness,  but  it  bavuig  been  as»'ertained 
that  he  bad  them,  he  was  asked  to  produce  Ibeni,  and  on 
this  day  he  did  produce  them  and  was  e.xanuned  upon 
them  by  Mr.  VVarrcu.     This  is  tlie  eviilence  — 

Mr.  Warren:— |)o  you  state  that  is  troiii  Mr.  Mdjcan's 
books?     Does  Mr.  Spruig  id«'ntiry  the  books? 

Mr.    Peters:- Very  well  I  witlubaw  that.      He  produced 

30 a  statement  and  this  is  bis  e.xamiuatidii: 

"  Q.  I  heliovp  .villi  Imve  uciw  iirodiu-t'd  iiHtntonii'iit  of  tlic  total  oatch 
"  of  the  '  Favourito' iiH  nwouuttMl  to  yon  liv  ('uptniii  Alcxiiiult^r  Mo- 
"  Lean,  have  you,  Mr.  Siiringy     A.  Tliat  is  tlit'  HtatciiK'ut. 

"  y.  The  onu  1  liolil  in  my  hanilv     A.   Yoh. 

"  Cj.  I  will  read  thiHintotlio  notes,  and  if  I  read  it  i>orr)>ctlv  you  will 
"say  bo:  '  The  catch  of  Hcalw  of  the  Ncliooncr  "  Favoiiriti'"'  for  1H86, 
"  coast  catch,  414;  IJelirinK  Sea  catch.  'J.HSl;  total,  H,'2'.t5  'V    A.  Yes. 

"  Q.  The  al)ovc  total  includes  .'>07  seals  delivered  to  the  'Favourite ' 
"  Ity  the  '  Onward  ' V     A.  That  is  rinht. 

"\i.  The  2,8H1,  then,  Mr.  Hpriun,  includes  5(17  taken  from  the  '  On- 
,Q  "  ward  '?     A.   Yes,  sir. 

"  Q.  The  total  catch  in  Behring  Hea  of  the  '  Favourite  '  for  that  year 
"  would  be  2,374?    A.   Yes. 

»»«»♦»» 

"  y.  And,  of  course,  those  figures  include  the  catch  from  Kyu(iuot 
"  up  to  Behring  sea  as  well  us  in  Hehring  Sea?     A.   Yes." 

On  that  evidence  my  learned  fiieiid  askt'd  to  correct, 
and  did  correct,  and  put  2, 374  in  lieu  of  2,2.')i».  As  a 
matter  of  fact,  the  very  evidence  to  which  tlivy  refer 
states  specitically  that  the  tigiue  2,;{74  included  the  num- 
50 her  of  seals  that  they  got  on  the  way  u|»  from  Kyuquot  to 
Behring  Sea. 

Mr.  Warren: — What  is  the  414  you  have  just  read? 

Mr.  Peters:  -The  414  is  plainly  explained  as  the  coast 
catcli  which  was  landed  at  Victoria  or  Kyu(|Uot,  or  wher- 
ever it  Wcis,  before  they  started  for  Behring  Sea  at  all. 

Mr.  Lansing:— In  your  computation  you  use  the  figures 
2,374;  tliey  appear  in  your  taldes,  followed  by  you  all  the 
way  through  until  the  present  t'uuv. 

Mr.  Peters:— To  settle  that  point,  I  refer  your  Honors 
60 to  page  1322  of  the  Kecord,  line  1,  where  be  goes  on  fur- 
ther.    This  is  redirect-exanunatioii  by  Mr.  Beique: 

"  Q.  Yon  have  given  to  Mr.  Warren  a  stateinont  as  to  the  catch  of 
"  the  '  Favourite  '  iu  1HH6,  from  which  he  has  read,  and  in  this  state- 
"  ment  is  the  following:  '(.Joast  catch,  414;  Behring  Hea  oatoh,  2,881.' 
"  Is  this  statement  taken  from  your  books?    A.  Yes. 


llTi' 


lo. 


(,Mi'.  Potfis'  Argmneiit  in  Koply /> 

"Q,  An>  the  wonlM  •  i'o««t  ontoh '  or  '  BehriiiK  8«»« '  »'»t<<h  in  your 
■  l>ook?    A.  No;  it  in  not  pnt  in  timt  form  »>xiiftly. 

••{).  In  wlml  form  iM  ity  A.  What  m  ohIUxI  coiiHt  i>i»t>h  thi'ri<  would 
•  ii|<|i<>iir  in  luy  book  un  ■  i»kiuH  brouKht  in  liy  Iho  "  FBvourilf." ' 

•'  ().  Snrli  iiiul  Niu'li  II  |mrly  chitrKetl  up  with  bo  nmny  okintt,  iu  that 
'  form  ?     A.    Yes. 

"  (,).  An>l  from  lli«<  ilatoit  thnt  thoi«>  i>kin»  w»>r«>  lirou^''^  i"  jou  in- 
'  ft-rri'il  it  wti»  II  const  I'litcli  ?     A     Yos. 

•' y.   Auil  it  iMfortliiit  rniHon  tlmt    vou  linvo  futcroil  it  nii  tiuoh  in 

tliix  lucmoriuiiliim  ?  A.  'I'hiit  i»  it,  fiir  tho  iiur|>oHt'  of  lioiug  lu'tter 
•■  uiiilcrHtootl  III  oourt. 

••  (,>.  Auil  tin-  w(ir«i»  ■  Hfhrin^  Son  ciitcli '  ar«<  wortin  of  your  own, 
"  nscil  (or  tlif  first  tini<>  ht'ri>  lo-iliiy  for  tin-  imrpoiic  of  oonvonii-uce? 
•'  A.   Kxiiftly,  in  foiirt  lii-ro. 

"  (,).  Hut  you  Hi'osiitiHtioil  tlmt  •J.8W1,  Icnh  W>7,  r«>i>r«>Bont  the  oatob 
••  of  tin-  '  Fii'vonriti' '  iiftt-r  she  nrrivinl  Mftt>r  ht>r  Itohriug S«»»  trip  V  A. 
YVb.  " 

Of  i-ourso  fliat  iiu'liuli'il  what  sho  caiiglit  on  tlio  way 
up.  'I'lu'if  arc  two  »listiiict  ami  scpaialo  lumibcfs  of  soals 
2on>i>i\lioiioil  luMc,  414  on  tlic  spiiiig  trip,  wliicli  would  end 
sonii"  tinii'  in  May.  auti  in'  iviiow  Itv  liu'  tiati's  tiiey  wt>re 
landt'il  ln'foif  slic  ^tartiil  loi  lioi  Hi'ltring  Soa  tiip  at  all. 
Il(<  tisiit-d  on  tilt-  way  up  and  caught  sonic  s«>als,  and  tlie 
total  ainonnl  of  catcii  on  llic  way  up  and  in  Hchiing  Sea 
was  '-M<74,  wiiicli  included  s«  alsc.uigiit  outside  of  Heiuing 
Sea.  Tiiciefoic  my  learned  friend  in  eorrecting  the  notes, 
as  he  does  in  tiial  very  piece  of  evidence  of  Mr.  Spring's, 
is  making  a  coriectiou  which  1  hardly  tliink  tiie  evidence 
wairaids.  and  I  think  the  tignies  sliould  stand  as  it  was 
before. 

Mr.  Waireii:— In  tlie  lirst  place  1  did  not  correct  it  as 
based  on  Mr.  Spring's  testimony,  but  on  tiie  testimony  of 
tile  captain,  and  I  read  ins  t«'stimi>ny  wiiere  lie  added  110 
to  it.  to  llit>  L'.-_'.'>!t. 

.Mr.  i'etei-s:  It  lias  lueii  called  to  my  attention  liy  my 
leained  friend  that  tiiere  are  some  ciirrections  wiiicii  they 
allege  in  their  brief,  and  somt*  deduction  should  be 
made  iiere  and  there  that  we  iiav»>  not  taken  any  notice 
if.     Tliere  may  lie  one  or  tw«)   corrections    which  prop- 


30 


•QCily  should  be  made  I  do  not  propose  to  go  into  that 
lieie.  lint  1  propose,  if  1  liml  it  necessary,  lo  write  my 
learned  friends  staling  what  they  are,  ami  infoiiuing  the 
ComniissioiuMs  liial  sucli  and  such  items  we  do  not  claim. 
1  think  tlial  would  be  the  mote  conveuieiil  vvay. 

Thai,  your  llonotB,  is  all  1  have  {o  bring  before  vou,  so 
far  as  I  am  concerned.  I  have  now  couiplel»>d  tlie  tiisk 
imposed  upon  me  in  the  conduct  of  liiis  iiupiiiy.  The 
woik  has  necessarily  been  nmst  lalioiious,  involving  a^' it 
has  the  cousideiation  of  a  vast  amount  of  detail,  and  many 

co<l"*'^li*">t^  <'•  b'g;>l  tlispulaliou.  So  tar  as  our  work  is  con- 
cerned 1  desire  to  stale  that  the  learned  gentlemen  who 
have  been  associated  with  me  liave  on  all  tncasions  per- 
foittied  tiieir  full  share.  Every  tiling  that  has  lieen  done 
must  be  considered  as  tlie  result  of  joint  etftn't  ffoiu  the 
beginning  to  llie  end,  and  even  where  we  liave  divided 
the  work  of  .ictiial  argument,  that  aigument  is  the  result 
of  joint  consultation  and  leseaich,  in  wliicli  every  one  of 
my  assoiiales  willingly  took  part.  My  learned  friemi, 
Mr.  Dickinson,  has  referred  in  apt  and  graceful  words  to 

Motile  spirit  of  kii..iliness  whii  li  has  all  through  tiiese  pro- 
ceedings marked  the  relations  of  opposing  coinisel.  1  liope 
I  may  i>e  permitted  to  say  that  this  is  in  a  very  grent 
degree  due  to  the  uniform  courtesy  witii  which  he  has 
always  treated  us. 

Before  dosing  permit  me  to  join  my  learned  friend  Mr. 


117« 

Olr.  Peti'i-t.  Aiguinetit  in  IJoply^. 

Dii-kiiisoii  in  i>x|ii-i>ssiu^  our  warm  appioi'iatiiMi  of  tlie 
great  (-oiirt(>»<y,  patitMU'c  and  tirnuuss  (iisplavt'd  bv  your 
HoiioiM  nil  through  this  long  and  IimIious  in*|uii y. 

Mr.  Dickinson  I  havo  a  won!  to  say  in  regard  to  tho 
citation  of  IjJiwrtMU'o,  lS»t3.  'I'lu' (luostion  was  introdui'od 
by  my  loaruetl  frionds  in  prosiMiting  tlu>  corn'spondonce 

"'in  reference  to  the  slavery  «]uestion,  in  which  it  became 
most  ini)>ortant.  All  the  corr»>spondence  prior  to  tho 
treaty  was  on  the  question  of  geniM'al  inteiMiationnl  law 
aiid  the  conclusions  to  which  the  I'liited  States  (Jovern- 
ment  came  weiv  embodiiHl  in  instructions  to  our  own 
ships.  As  to  that  matter  there  is  no  ditTerence  between 
the  Lawrence  edition  of  Wheaton  and  the  notes,  and  the 
Dnna  edition  of  Wheaton  with  the  single  exception  that 
liHwrence.  owing  to  the  'I'reaty  of  |S»>'_».  which,  of  «'ourse, 
made  a  change  in  inttMiiational  law.  as  treaties  always  do, 

-^inserted  a  clause  that  he  had  omitted  all  comment  on  the 
instructions  issuetl  to  om-  navies,  tor  the  reason  that  the 
matter  was  adjusted  by  treaty.  The  instructions  issuetl 
to  the  r'especliv»>  navies,  of  couise.  (>nibodied  the  views  of 
the  two  (iovermnents  upon  inleriiational  law  irres|KH'tive 
of  the  treaty,  and  tln>  edition  i>f  Lawrence  here  coiitirms 
what  I  liave  shown. 


30  The  Commissioner  on  the  part  of  (iie.it  Hrilain:  -  Before 
separating.  I  desii«>  to  say  a  few  words  by  way  of  paying 
heartful  tribute  lo  the  unvarying  con^iih'ration  extended 
to  us  by  counsel  from  the  time  ol  our  lirst  meeting  to  the 
pn'sent;  and  also  to  expu'ss  warm  ap|ireciation  t>f  their 
work  which  has  thiougbout  been  markid  by  learning, 
research  and  ability  of  the  highest  onlt  r.  Tbe.><e  high 
(pialitii's  distinguish  the  work  of  each  of  the  learut'd  coun- 
sel whether  in  examination  of  proof  or  in  argument,  and 
it  is  a   privilege  for  me  to  have  opptulunity  io  say  this 

40nuich. 


The  Commissioner  on  the  part  of  the  I'nited  States:— I 
join  most  heartily  in  wliat  my  a-so(  iate  lias  said,  but  I 
tliink  it  suitable  that  1  should  make  a  f«>w  geneial 
observations.  1  was  entirely  aware  on  account  vf  the 
very  ct)nsith'rable  acquaintance  1  have  bad  tbrougliout 
Canada,  that  our  meetings  tbeie  would  b»<  marked  by  the 
official  and  unotlicial  hospitality  whicii  we  havt>  received, 

tQaiul  that  the  circuujstances  of  «>ur  proceedings  would 
Ih'  altogether  |)leasant.  But  of  c«uuse  1  could  not  foresee 
the  great  satisfactii>n  which  wi>  have  r»>ceivt>d  fr-om  the 
support  t»f  the  conscientiotjs  and  clean  hearted  gentlenuui 
on  each  side,  who  have  shown  by  their  skill  andat  tent  ion 
in  these  proceedings  their  altility,  experienc*'  and  fidelity 
as  jurists.  I  could  not,  moreover,  foresee  that  the  favt)r- 
able  sentiments  which  1  would  form  for  my  learned  asso- 
ciate would  be  far  stronger  than  he  has  anv  possible  esti- 
mate of;  nor  could  I  anticipate  the  strength  of  my  desira 

ggthat  tlie  friendship  which  has  lu-en  formed  between  us 
siiould  c«)ntinue  si»  buig  as  we  both  shall  live. 

Ti.b«  conference  will  mark  a  step  in  a«lvance  or  a  step 
backwards  in  the  matter  of  international  arbitration. 
So  far  as  we  have  gone,  I  feel  confident  that  it  marks  a 
long   step  in  advance;  and  the  basis  of  my  conndeiue  is 


1174 


i 


■'mi 


<l>^ 


(Mr.  Petei's'  ArKUiiieut  in  Reply.) 

that  it  haH  been  on  the  line  of  ordinary  arbitrations 
in  important  causoH.  Wo  have  liad  no  formalities  except 
those  wliich  were  necessary  for  the  orderly  conduct  of 
our  business.  We  have  lunf,  so  far  as  I  am  advised  and 
now  recollect,  for  the  ttret  time,  an  opportunity  in  an 
international  arhitration  for  the  general  examination  of 
witnesses  orally,  subject  to  cross-examination.  The  Com- 
10  mission  which  sat  nntler  the  12th  Article  of  the  Treaty 
of  Wfishinnton,  li;id  the  benefit  of  written  cross-ex- 
amination, but  it  did  not  have  that  which  we  all 
know  is  so  important,  the  presence  of  leading  witnesses 
before  the  tribunal  which  is  to  piuss  on  the  credibility 
and  effect  of  their  testimony.     We  have  seen  in  this  very 

f)roceeding  how  uncertain,  and  in  some  instances,  mis- 
eading  with  reference  to  particular  and  specific  topics, 
are  the  e.f  p(i/7e  affidavits  upon  which  international  arbi- 
trations must  for  the  mpst'p«i't  rely;  although  we  know, 

2oof  course,  that  there  are  certain  ouestions  with  refer- 
ence to  which  altidavits  are  all  that  can  be  procured 
or  desired.  You  will  excuse  me  for  again  referring 
to  counsel,  but  I  may  say  tiiat  we  have  also  had 
before  us  an  example  of  the  most  friendly  relations 
existing  hetween  them.  We  have  their  own  testimony 
as  to  those  relations,  and  we  have  also  recognized  the 
fact  from  our  own  observation.  We  have,  indeed,  had 
what  is  of  very  gr»'at  assistance  in  investigations  of  this 
nature,  have  had  such  relations  of  counsel  the  same  as 

30  they  would  have  been  if  they  had  all  been  of  the  same 
nationahy,  practicing  before  the  highest  courts  of  judica- 
ture in  Great  Britain  or  in  her  colonies,  or  in  the  United 
States  of  America. 

Some  of  the  questions  we  have  had  to  consider  have 
been  of  the  most  interesting  and  important  character,  and 
all  of  them,  so  far  as  the  Commissioners  can  now  pass 
judgment  upon  them,  we  are  bound  to  accept  from  the 
standpoint  of  counsel,  as  worthy  of  the  careful  investiga- 
tion  which  has  been  given   them.     I  doubt  very  much 

40  whether  the  rulings  of  this  Commission,  whatever  they 
may  be,  I  doubt  whether  the  rulings  of  a  Commission  so 
modest  and  unpretentious  as  this  is  made  by  the  treaty 
which  constituted  it,  will  have  the  effect  in  settling  any 
rule  of  International  law,  which  counsel  on  one  side  or 
the  other  have  from  time  to  time  intimated  they  may. 
But,  however  that  may  be,  the  questions  which  we  are 
called  on  to  consider,  we  are  bound  to  investigate 
with  all  the  same  care,  and  all  the  same  fidelity,  as 
though  our  rulings  wei-e  to  settle,  once  and  for  all,  l)e- 

ioitween  these  great  nations,  the  law  bore  involved.  It 
wis  on  that  ground,  but  mainly  by  reason  of  the  fact 
that  we  have  taken  the  testimony  orally,  that  our 
sittings  have  been  so  long.  But  for  the  fact  that  we  have 
had  the  advantage  of  taking  our  proofs  orally,  our  work 
would  have  commenced,  with  the  exception  of  one  or 
more  formal  sittings,  five  weeks  ago,  inst  4  of  extending 
through  the  winter  season.  However  that  maybe,  we  all 
bear  witness  to  the  extraordinary  diligence  and  zeal  which 
have  inspired  everyone  who  has  assisted  this  Commission. 

60  We  must  also  consider  that  a  proceeding  of  this  nature 
has  a  certain  international  effect  in  a  field  which  we  have 
not  particularly  spoken  of.  The  Commissioners  cannot 
escape  notice  of  the  fact  that  the  Governments  are  rep- 
resented here  by  gentlemen  on  my  right  hand  and  on  mjr 
left  who  have  had  large  influence  in  forming  public  senti- 


1175 

(Mr.  Petera'  Argument  in  Reply.) 

ment,  each  in  his  own  country,  and  who  are  liable  to  have 
even  larger  influence  in  the  future.  It  cannot  but  be  to 
the  advantage  of  both  countries  that,  by  meeting  here  in 
honorable  contest  before  a  tribunal  of  this  character, 
gentlemen  on  either  side  are  able  to  appreciate  the  good 
qualities  of  the  other,  and  to  excuse  those  things  which 
they  find  opposite  them  to  criticise. 
10  By  the  blessings  of  Providence,  we  have  been  spared  any 
break  in  our  ranks  during  the  periods  we  have  been  to- 

§  ether.    It  is  our  earnest  hope  that  these  blessings,  and 
ae  friendships  here  formed,  may  continue  for  many,  very 
many  years. 

At  4.16  o'clock  p.  M.  the^fStik^issiouers  adjoi!l|ned. 


*f^ 


'fi^-f^ 


18027SI 


